EXHIBIT 10.2
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ASSIGNMENT OF INSURANCES
in favor of
MANUFACTURERS AND TRADERS TRUST COMPANY
as Assignee
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[DATE], 2004
ASSIGNMENT OF INSURANCES
THIS ASSIGNMENT is made this [DAY] day of [MONTH], 2004, from
[ASSIGNOR], a company organized and existing under the laws of the [JURISDICTION
OF INCORPORATION], with offices at [ADDRESS] (the "Assignor"), in favor of
MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation, with
offices at 25 South Charles Street, Baltimore, Maryland, as trustee under the
Indenture referred to in Recital B hereto (the "Assignee").
W I T N E S S E T H T H A T:
WHEREAS:
(A) The Assignor is the sole, legal and beneficial owner of the
whole of [each of] the [NATIONALITY] flag vessel[s] listed on Schedule 1 hereto
(the ["Vessels", and each a] "Vessel");
(B) Pursuant to an indenture dated as of November 24, 2004, by and
among Ultrapetrol (Bahamas) Limited, as issuer (the "Company"), the Guarantors
party thereto (the "Guarantors"), the Pledgors party thereto (the "Pledgors")
and the Assignee as trustee, (as amended or supplemented from time to time, the
"Indenture"), the Company issued its 9% First Preferred Ship Mortgage Notes due
2014 (the "Securities") in the aggregate principal amount of One Hundred Eighty
Million United States Dollars (US$180,000,000), the proceeds of which have been
used to repay the Company's 10 1/2% First Preferred Ship Mortgage Notes dues
2008, to refinance the acquisition cost of other vessels owned by the
Guarantors, and for general corporate purposes;
(C) By the Indenture, the Guarantors [(including the Assignor)],
have jointly and severally guaranteed, upon the terms and conditions contained
therein, the punctual payment, performance and observance when due of the
obligations of the Company under and in connection with the Securities,
including, but not limited to, the Company's obligation to pay the principal of,
and premium and interest on, the Securities as provided in the Indenture and the
Securities;
(D) By the Security Agreements (other than this Assignment), the
Guarantors [(including the Assignor)] and the Pledgors [(including the
Assignor)] have, upon the terms and conditions contained therein, pledged
certain assets held by them, including the Vessel[s], and assigned certain
insurances obtained by them, to secure the punctual payment, performance and
observance when due of the obligations of the Company under and in connection
with the Indenture and Securities, including, but not limited to, the Company's
obligation to pay the principal of, and premium and interest on, the Securities
as provided in the Indenture and the Securities; and
(E) The Assignor has agreed to grant this Assignment to secure
its, the [other] Subsidiary Guarantors' and the Company's obligations under the
Indenture, and in order to secure the prompt and due payment to the Trustee of
any and all sums which may be or become due to the Trustee and/or the
Securityholders from the Assignor under or pursuant to the Indenture and also to
secure the exact performance and observance and compliance with all and any of
the covenants and agreements and terms and conditions contained in the
Indenture.
NOW, THEREFORE, in consideration of the premises and of other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the Assignor:
1. Defined Terms. Unless otherwise defined herein, terms defined
in the Indenture shall have the same meanings when used herein.
2. Grant of Security. As security for all Obligations of the
Assignor, the Company and the [other] Subsidiary Guarantors pursuant to the
Indenture, and in consideration of One Dollar ($1) lawful money of the United
States of America, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the Assignor as legal and beneficial owner does
hereby sell, assign, transfer and set over and grant a security interest unto
the Assignee, for the benefit of the Assignee and its successors and assigns,
and does hereby grant the Assignee a security interest in, all of the Assignor's
right, title and interest in, to and under all policies and contracts of
insurance, including the Assignor's rights under all entries in any Protection
and Indemnity or War Risks Association or Club, which are from time to time
taken out by or for the Assignor in respect of [the/any] Vessel, her hull,
machinery, freights, disbursements, profits or otherwise, and all the benefits
thereof including, without limitation, all claims of whatsoever nature, as well
as return premiums (all of which are herein collectively called the
"Insurances"), and in and to all moneys and claims for moneys in connection
therewith and all other rights of the Assignee under or in respect of said
insurances and all proceeds of all of the foregoing.
3. Notices; Loss Payable Clauses.
(A) All Insurances, except entries in Protection and
Indemnity Associations or Clubs or insurances effected in lieu of such entries,
relating to [the/any] Vessel shall contain a loss payable and notice of
cancellation clause in substantially the form of Exhibit 1 hereto or in such
other form as the Assignee may agree.
(B) All entries in Protection and Indemnity Associations or
Clubs or insurances effected in lieu of such entries relating to [the/any]
Vessel shall contain a loss payable clause in substantially the form of Exhibit
2 hereto or in such other form as the Assignee may agree.
4. Covenants and Undertakings. The Assignor hereby represents to
and covenants with the Assignee that:
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(A) it will do or permit to be done each and every act or
thing which the Assignee may from time to time reasonably require to be done for
the purpose of enforcing the Assignee's rights under this Assignment and will
allow its name to be used as and when required by the Assignee for that purpose;
(B) it will forthwith give notice in the form set out in
Exhibit 3 attached hereto, or cause its insurance brokers to give notice, of
this Assignment to all insurers, underwriters, clubs and associations providing
insurance in connection with [the/any] Vessel and her earnings and procure that
such notice is endorsed on all the policies and entries of insurances in respect
of [the/any] Vessel and her respective earnings;
(C) the Insurances in effect on the date hereof are now
valid and in full force and effect, and the Assignor will not do or omit or
knowingly suffer to be done or omitted anything whereby any of the Insurances
assigned hereby may become void or voidable in whole or in part or the Assignee
or any other person claiming title through it may be prevented from receiving
the proceeds thereof;
(D) if by reason of anything done or omitted or knowingly
suffered to be done or omitted the Insurances assigned hereby shall at any time
become voidable in whole or in part, the Assignor will forthwith at its own cost
take all such action as shall be necessary for keeping such Insurances in force
and in particular will pay all premiums as they become due; and
(E) if by reason of anything done or omitted or knowingly
suffered to be done or omitted the Insurances assigned hereby or any of them
shall at any time become void in whole or in part, the Assignor shall, at its
expense, affect new insurances in compliance with the terms of the Mortgage over
the Vessel[s,or any of them,] in favor of the Assignee, and shall forthwith (if
required by the Assignee), execute an assignment of such new insurances in favor
of the Assignee, and will pay any sums payable by way of premiums under the new
insurances.
5. No Duty of Inquiry. The Assignee shall not be obliged to make
any inquiry as to the nature or sufficiency of any payment received by it
hereunder or to make any claim or take any other action to collect any moneys or
to enforce any rights and benefits hereby assigned to the Assignee or to which
the Assignee may at any time be entitled hereunder except such reasonable action
as may be requested by any underwriter, association or club. The Assignor shall
remain liable to perform all the obligations assumed by it in relation to the
property hereby assigned, and the Assignee shall be under no obligation of any
kind whatsoever in respect thereof or be under any liability whatsoever
(including, without limitation, any obligation or liability with respect to the
payment of premiums, calls, assessments or any other sums at any time due and
owing in respect of the Insurances) in the event of any failure by the Assignor
to perform such obligations.
6. Negative Pledge. The Assignor does hereby warrant and
represent that it has not assigned or pledged, and hereby covenants that it will
not assign or pledge so long as this Assignment shall remain in effect, any of
its right, title or interest in the whole or any part of the Insurances or other
moneys and claims hereby assigned, to anyone other than the Assignee, and it
will not take or omit to take any action, the taking or omission of which might
result in an
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alteration or impairment of the rights hereby assigned or any of the rights
created in this Assignment; and the Assignor hereby irrevocably appoints and
constitutes the Assignee as the Assignor's true and lawful attorney-in-fact with
full power (in the name of the Assignor or otherwise) should an Event of Default
(as such term is defined in the Indenture) have occurred and be continuing to
ask, require, demand, receive, compound and give acquittance for any and all
moneys and claims for moneys assigned hereby, to endorse any checks or other
instruments or orders in connection therewith and to file any claims or take any
action or institute any proceedings which the Assignee may deem to be necessary
or advisable and otherwise to do any and all things which the Assignor itself
could do in relation to the property hereby assigned, including, but not limited
to, filing any and all Uniform Commercial Code financing statements or renewals
thereof in connection with this Assignment which the Assignee may deem to be
necessary or advisable in order to perfect or maintain the security interest
granted hereby. The powers and authorities granted to the Assignee have been
given for valuable consideration and are hereby declared irrevocable.
7. Further Assurances. The Assignor agrees that any time and from
time to time upon the written request of the Assignee it will promptly and duly
execute and deliver to the Assignee any and all such further instruments and
documents as the Assignee may reasonably deem advisable in obtaining the full
benefits of this Assignment and of the rights and powers herein granted.
8. Remedies Cumulative and Not Exclusive; No Waiver. Each and
every right, power and remedy herein given to the Assignee shall be cumulative
and shall be in addition to every other right, power and remedy of the Assignee
now or hereafter existing at law, in equity or by statute, and each and every
right, power and remedy, whether herein given or otherwise existing, may be
exercised from time to time, in whole or in part, and as often and in such order
as may be deemed expedient by the Assignee, and the exercise or the beginning of
the exercise of any right, power or remedy shall not be construed to be a waiver
of the right to exercise at the same time or thereafter any other right, power
or remedy. No delay or omission by the Assignee in the exercise of any right or
power in the pursuance of any remedy accruing upon any breach or default of the
Indenture by the Assignor, the Company or any other Guarantor or Pledgor shall
impair any such right, power or remedy or be construed to be a waiver of any
such right, power or remedy or to be an acquiescence therein; nor shall the
acceptance by the Assignee of any security or of any payment of or on account of
any of the amounts due from the Assignor, the Company or any other Guarantor or
Pledgor under or in connection with the Indenture or any document delivered in
connection therewith and maturing after any breach or default or of any payment
on account of any past breach or default be construed to be a waiver of any
right to take advantage of any future breach or default or of any past breach or
default not completely cured thereby.
9. Invalidity. If any provision of this Assignment shall at any
time for any reason be declared invalid, void or otherwise inoperative by a
court of competent jurisdiction, such declaration or decision shall not affect
the validity of any other provision or provisions of this Assignment, or the
validity of this Assignment as a whole, which shall remain in full force and
effect. In the event that it should transpire that by reason of any law or
regulation, or by reason of a ruling of any court, or by any other reason
whatsoever, the assignment herein
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contained is either wholly or partly defective, the Assignor hereby undertakes
to furnish the Assignee with an alternative assignment or alternative security
and/or to do all such other acts as, in the sole opinion of the Assignee, shall
be required in order to ensure and give effect to the full intent of this
Assignment.
10. Continuing Security. It is declared and agreed that the
security created by this Assignment shall be held by the Assignee as a
continuing security for the payment of all moneys which may at any time and from
time to time be or become payable by the Company, the [other] Subsidiary
Guarantors or the Assignor under the Indenture and that the security so created
shall not be satisfied by any intermediate payment or satisfaction of any part
of the amount hereby secured and that the security so created shall be in
addition to and shall not in any way be prejudiced or affected by any other
collateral or security now or hereafter held by the Assignee for all or any part
of the moneys hereby secured.
11. Waiver; Amendment. None of the terms and conditions of this
Assignment may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by the Assignee and the Assignor.
12. Termination. If the Assignor shall pay and discharge all of
its obligations under or in connection with the Indenture and the Securities or
is released therefrom in accordance with the terms thereof, all the right, title
and interest herein assigned shall revert to the Assignor, and this Assignment
shall terminate.
13. WAIVER OF JURY TRIAL. EACH OF THE ASSIGNOR, AND BY ITS
ACCEPTANCE HEREOF, THE ASSIGNEE, HEREBY WAIVES TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO OR ANY BENEFICIARY HEREOF
ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
ASSIGNMENT, THE INDENTURE OR THE SECURITY AGREEMENTS TO WHICH THEY ARE PARTY
THEREIN DESCRIBED, ANY AMENDMENTS THERETO, OR ANY TRANSACTIONS CONTEMPLATED
THEREBY.
14. Notices. Notices and other communications hereunder shall be
in writing and may be given or made by facsimile as follows:
If to the Assignor: [ASSIGNOR]
[ADDRESS]
Attention: [NAME].
Facsimile: [NUMBER]
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with copy to: Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Attention: Lawrence Rutkowski, Esq.
Facsimile: 212-480-8421
If to the Assignee- Manufacturers and Traders Trust Company
Corporate Trust Department
Mail Code 101-591
25 South Charles Street
Baltimore, Maryland 21201
Attention: Robert D. Brown
Facsimile: 410-244-4236
with copy to: Ober, Kaler, Grimes & Shriver
120 East Baltimore Street
Baltimore, Maryland 21202-1643
Attention: Patrick Cameron, Esq.
Facsimile: 443-263-7540
or to such other address as either party shall from time to time specify in
writing to the other. Any notice or communication sent by facsimile shall be
confirmed by letter dispatched as soon as practicable thereafter.
Every notice or other communication shall, except so far as
otherwise expressly provided by this Assignment, be deemed to have been received
(provided that it is received prior to 2 p.m. New York time; otherwise it shall
be deemed to have been received on the next following Business Day) in the case
of a facsimile at the time of dispatch thereof (provided further that if the
date of dispatch is not a Business Day in the locality of any party to whom such
notice or communication is sent it shall be deemed to have been received on the
next following Business Day in such locality), and in the case of a letter, at
the time of receipt thereof.
15. Governing Law. This Assignment shall be governed by and
construed in accordance with the laws of the State of New York.
16. Headings. In this Assignment, Section headings are inserted
for convenience of reference only and shall be ignored in the interpretation
hereof.
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IN WITNESS WHEREOF, the Assignor has caused this Assignment to be
executed and delivered on the day and year first above written.
By____________________________
[NAME]
[TITLE]
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SCHEDULE 1
Official Gross Net
Vessel Name Number Length Breadth Depth Tons Tons
- ----------- -------- ------ ------- ----- ----- ----
mts mts mts
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EXHIBIT 1
LOSS PAYABLE CLAUSE
Hull and Machinery
Loss, if any, is payable to the [ASSIGNOR], as Owner, or to its
order, unless and until the underwriters receive notice from MANUFACTURERS AND
TRADERS TRUST COMPANY, as Mortgagee, that the Owner is in default under the
Mortgage, in which case any loss involving any damage to the Vessels or
liability of the Vessels, the underwriters may pay directly for the repair
salvage, liability or other charges involved, otherwise any other payment will
be paid by the underwriters to the Mortgagee except if the Mortgagee authorizes
in writing such payment to be made to the Owner.
In addition, regardless of whether the Owner is in default under the
Mortgage, in the event of the actual total loss or agreed, compromised or
constructive total loss of the Vessels, payment shall be made to MANUFACTURERS
AND TRADERS TRUST COMPANY, as Assignee, for distribution by it to itself and to
the Owner as their respective interests appear.
EXHIBIT 2
LOSS PAYABLE CLAUSE
Protection and Indemnity
Payment of any recovery that [OWNER] (the "Owner") is entitled to
make out of the funds of the Association in respect of any liability, costs or
expenses incurred by it shall be made to the Owner or to its order unless and
until the Association receives notice from MANUFACTURERS AND TRADERS TRUST
COMPANY, as Mortgagee, that the Owner is in default under the Mortgage, in which
event all recoveries shall thereafter be paid to the Mortgagee for distribution
by it to itself and the Owner, as their respective interests may appear, or
order; provided always that no liability whatsoever shall attach to the
Association, its managers or their agents for failure to comply with the latter
obligation until after the expiry of two business days from the receipt of such
notice.
EXHIBIT 3
NOTICE OF ASSIGNMENT OF INSURANCES
TO:
TAKE NOTICE:
(a) that by an Assignment of Insurances dated the [DAY] day
of[MONTH], 2004 made by us to Manufacturers and Traders Trust
Company (the "Assignee"), a copy of which is attached hereto,
we have assigned to the Assignee as from the date hereof,
inter alia, all our right, title and interest in, to and under
all policies and contracts of insurance, including our rights
under all entries in any Protection and Indemnity or War Risk
Association or Club, which are from time to time taken out by
us in respect of the [NATIONALITY] flag vessels, [VESSEL NAME]
[Patente/Official] No. [NUMBER] (the "Vessels"), and its
earnings and all the benefits thereof including all claims of
whatsoever nature (all of which together are hereinafter
called the "Insurances").
(b) that you are hereby irrevocably authorized and instructed to
pay as from the date hereof all payments under
(i) all Insurances, except entries in Protection and
Indemnity Associations or Clubs or insurances effected
in lieu of such entries, relating to the Vessels in
accordance with the loss payable clause in Exhibit 1 of
the Assignment of Insurances; and
(ii) all entries in Protection and Indemnity Associations or
Clubs or insurances affected in lieu of such entries
relating to the Vessel in accordance with the loss
payable clause in Exhibit 2 of the Assignment of
Insurances.
(c) that you are hereby instructed to endorse the assignment,
notice of which is given to you herein, on all policies or
entries relating to the Vessels.
DATED AS OF THE [DAY] day of [MONTH], 2004.
[ASSIGNOR]
By______________________________
Name:
Title:
We hereby acknowledge receipt of the foregoing Notice of Assignment and agree to
act in accordance with the terms thereof:
By_______________________
Name:
Title: