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EXHIBIT 2.27
NASSAU SPIRIT INC.
LUZON SPIRIT
ASSIGNMENT OF FREIGHTS AND HIRES
The undersigned, NASSAU SPIRIT INC., a corporation organized and existing
under the laws of the Commonwealth of the Bahamas (the "Assignor"), 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, has sold, assigned, transferred and set over and by this
instrument does sell, assign, transfer and set over unto UNITED STATES TRUST
COMPANY OF NEW YORK (the "Assignee"), a New York corporation, as Trustee
pursuant to, and for the benefit of the Holders of the Securities (as defined in
the Indenture hereinafter defined) issued under, that certain Indenture dated as
of the date hereof among Teekay Shipping Corporation (the "Company"), certain
subsidiaries of the Company and the Trustee (the "Indenture"; terms used herein
and not otherwise defined shall be used herein as defined in the Indenture), and
unto the Assignee's successors and assigns, to its and its successors' and
assigns' own proper use and benefit and does hereby grant to the Assignee a
security interest in all the right, title, interest, claim and demand of the
Assignor in and to (i) all freights, hire and other moneys earned and to be
earned, due or to become due, or paid or payable to, or for the account of, the
Assignor, of whatsoever nature, arising out of or as a result of the use,
operation or chartering by the Assignor or its agents of the Bahamian documented
vessel LUZON SPIRIT, Official No. 720776 (the "Vessel"), including, without
limitation, all rights arising out of the owner's lien on cargoes and
subfreights thereunder, (ii) all moneys and claims for moneys due and to become
due to the Assignor, and all claims for damages, arising out of the breach of
any and all present and future charter parties, bills of lading, contracts and
other engagements of affreightment or for the carriage or transportation of
cargo, and operations of every kind whatsoever of the Vessel and in and to any
and all claims and causes of action for money, loss or damages that may accrue
or belong to the Assignor, its successors or assigns, arising out of or in any
way connected with the present or future use, operation or chartering of the
Vessel or arising out of or in any way
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connected with any and all present and future requisitions, charter parties,
bills of lading, contracts and other engagements of affreightment or for the
carriage or transportation of cargo, and other operations of the Vessel, (iii)
all moneys and claims due and to become due to the Assignor, and all claims for
damages and all insurances and other proceeds, in respect of the actual or
constructive total loss of or requisition of use of or title to the Vessel, and
(iv) any proceeds of any of the foregoing and all interest and earnings from
the investment of any of the foregoing and the proceeds thereof. The liability
of the Assignor under this Assignment shall be limited by the provisions of
Section 2 of the Guarantee.
Section 1. Recital. This Assignment is given as security for all of the
obligations of the Assignor under its Guarantee dated the date hereof (the
"Guarantee"), the payment of the principal of (and premium, if any) and interest
on the Securities, the payment of all other sums of money payable by the Company
under the Indenture, the payment of all other sums of money payable by the
Shipowner under this Assignment and the other Guarantor Security Documents to
which it is a party, and the payment of all sums payable by the other Guarantors
under their respective Subsidiary Guarantees and Guarantor Security Documents
(collectively, the "Obligations"), and to secure as well the performance and
observance of all agreements, covenants and provisions contained in this
Assignment, and of the Company and the Guarantors in the Indenture and the
Security Documents.
Section 2. Representations and Warranties. The Assignor hereby represents
and warrants to the Assignee, as an inducement to the Assignee to accept this
Assignment, that neither the whole nor any part of the right, title and interest
hereby assigned is the subject of any present assignment, security interest or
pledge other than any assignments for the benefit of the Assignee.
Section 3. Covenants. The Assignor hereby covenants to the Assignee that:
(a) If an Event of Default has occurred and is continuing and the
Assignee has given the Assignor written notice thereof, and without
derogation of the rights of the Assignee under Section 5 hereof to issue
instructions to the charterers and other obligors directly, the Assignor
shall specifically authorize and direct each charterer or other obligor to
make payment of all of the freights, hire and other moneys hereby assigned
directly to the Cash Collateral Account in accordance with the Cash
Collateral Account Agreement, and shall deliver to the Assignee the written
acknowledgment of such charterer or other obligor of such instructions.
Notwithstanding anything to
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the contrary, the Assignor and the Assignee hereby agree that so long
as no Event of Default shall have occurred and be continuing, the
Assignor shall be entitled to receive and retain any and all moneys
otherwise assigned hereunder.
(b) The Assignor shall notify the Assignee promptly of any and all
time charter parties or series of successive voyage charter parties or
contract of affreightment entered into by the Assignor respecting the
Vessel having an indicated duration of at least six (6) months and, upon
the Assignee's request, any other charter party. The Assignor shall also
provide the Assignee with a true and complete copy of the agreements
specified in this paragraph (b) upon the Assignee's request. The Assignor
shall execute any further assignments of its rights, titles and interests
pursuant to any and all such agreements, as the Assignee may, at its sole
discretion, require.
(c) So long as this Assignment is in effect, the Assignor shall
not assign, grant a security interest in or pledge the whole or any part of
the right, title and interest hereby assigned to anyone other than the
Assignee, its successors, endorsees and/or assigns without the prior
written consent of the Assignee and it shall not take or omit to take any
action, the taking or omission of which might result in any material
alteration or impairment of this Assignment or any of the rights created by
this Assignment.
(d) The Assignor covenants and agrees with the Assignee that the
Assignor will (i) duly perform and observe all of the terms and provisions
of any charter or contract of affreightment on the part of the Assignor to
be performed or observed; and (ii) clearly record on the books and records
of the Assignor notations of this Assignment.
(e) At any time and from time to time, upon the written request of
the Assignee, the Assignor shall promptly and duly execute and deliver any
and all such further instruments and documents as the Assignee may
reasonably request in order to obtain the full benefits of this Assignment
and of the rights and powers herein granted.
(f) Whenever requested by the Assignee, the Assignor shall deliver
letters to each of its agents and representatives into whose hands or
control may come any earnings, moneys and property hereby assigned,
informing each such addressee of this Assignment and instructing such
addressee to remit or deliver promptly to the Assignee all earnings, moneys
and property hereby assigned which may come into the addressee's hands or
control and to continue to make such remittances or delivery until such
time as the addressee may receive written notice or instructions to
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the contrary direct from the Assignee. Each such addressee shall acknowledge
directly to the Assignee receipt of the Assignor's letter of notification and
instructions.
Section 4. Freedom of Assignee from Obligations. It is hereby
expressly agreed that anything herein contained to the contrary
notwithstanding, the Assignee shall have no obligation or liability under any
charter or contract of affreightment by reason of or arising out of this
Assignment, nor shall the Assignee be required or obligated in any manner to
perform or to fulfill any obligations of the Assignor under or pursuant to any
charter or contract of affreightment nor to make any payment, nor to make any
inquiry as to the nature or sufficiency of any payment received by the Assignee
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 which
it may be entitled to hereunder at any time or times.
Section 5. Payment Directions to Charterers; Power of Attorney;
Financing Statements. Upon the occurrence and continuance of an Event of
Default and issuance of notice thereof to the Assignor, the Assignee shall be
entitled to direct the charterers and other obligors to pay all moneys assigned
hereunder to such bank account in New York City or elsewhere as the Assignee
may from time to time designate. Upon request of the Assignor, the Assignee
shall furnish the Assignor with information from time to time as to the
accounts into which moneys assigned hereunder are paid, the amounts and sources
of such payments and the amounts and application of moneys withdrawn therefrom.
The Assignee, its successors and assigns, are hereby constituted lawful
attorneys of the Assignor, irrevocably, with full power (in the name of the
Assignor or otherwise), to ask, require, demand, receive, compound and give
acquittance for any and all moneys, claims, property and rights hereby
assigned, 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 in the
premises. Any action or proceeding brought by the Assignee pursuant to any of
the provisions hereof or of any charter or contract of affreightment or
otherwise, and any claim made by the Assignee hereunder or under any charter or
contract of affreightment, may be compromised, withdrawn or otherwise dealt
with by the Assignee without any notice to, or approval of, the Assignor. The
Assignor hereby irrevocably authorizes the Assignee to file, at any time and
from time to time, at the Assignor's expense, such financing and continuation
statements or papers of similar purpose or effect relating to this Assignment,
without the Assignor's signature, as the Assignee at its option may deem
appropriate and appoints the Assignee as the Assignor's attorney-in-fact to
execute any such statements in the Assignor's
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name and to perform all other acts which the Assignee may deem appropriate to
perfect and continue the security interest conferred hereby.
Section 6. Irrevocable Assignment. The powers and authority granted
to the Assignee herein have been given for a valuable consideration and are
hereby declared to be irrevocable and may not be amended or waived except by an
instrument in writing signed by the party against whom enforcement is sought.
Section 7. Governing Law. This Assignment shall be construed in
accordance with and governed by the laws of the State of New York, United
States of America. The Assignor hereby irrevocably submits itself to the non-
exclusive jurisdiction of any New York State or Federal court sitting in New
York City and any appellate court from any thereof, for the purposes of (and
solely for the purposes of) any suit, action or other proceeding arising out
of, or relating to, this Assignment or any of the transactions contemplated
hereby, hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard in such New York State or Federal court and hereby
irrevocably waives, and agrees not to assert, by way of motion, as a defense,
or otherwise, in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of the above-named courts for any reason
whatsoever, that such suit, action or proceeding is brought in an inconvenient
forum, or that the venue of such suit, action or proceeding is improper, or
that this Assignment or the subject matter hereof may not be enforced in or by
such courts. The Assignor hereby irrevocably appoints Haight, Gardner, Poor &
Havens (the "Process Agent"), with an office on the date hereof at 195
Broadway, New York, New York 10007, United States, as its agent to receive on
behalf of the Assignor and its property service of copies of the summons and
complaint and any other process which may be served in any such suit, action or
proceeding and in any suit, action or proceeding arising out of or relating to
any other Security Document to which the Assignor is a party. Such service may
be made by mailing or delivering a copy of such process to the Assignor in care
of the Process Agent at the Process Agent's above address, and the Assignor
hereby irrevocably authorizes and directs the Process Agent to accept such
service on its behalf. As an alternative method of service, the Assignor also
irrevocably consents to the service of any and all process in any such suit,
action or proceeding by the mailing of copies of such process to the Assignor
at its address specified in the Indenture. The Assignor agrees that a final
judgment in any such action, suit or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this paragraph shall affect the right of the
Assignee to serve legal process in any other manner
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permitted by law or affect the right of the Assignee to bring any action or
proceeding against the Assignor or its property in the courts of any other
jurisdiction.
Section 8. Notices. All notices or other communications required or
permitted to be made or given hereunder shall be made in writing, in English,
and personally delivered to an officer or other responsible employee of the
addressee, or sent, by registered air mail, return receipt requested, postage
prepaid, telex, facsimile transmission, or other direct written electronic
means to the applicable address set opposite such party's name below, or to
such other address as any party hereto may from time to time designate to the
others in such manner:
If to the Assignee:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Attention: Trust Administration
Facsimile: (212) 852-1625
If to the Assignor:
Nassau Spirit Inc.
c/o Teekay Shipping Corp.
Tradewinds Building
Sixth Floor
Bay Street
P.O. Box SS-6293
Nassau, Commonwealth of the Bahamas
Attention: Managing Director
Facsimile: (809) 328-7330
Any communication personally delivered shall be deemed to have been
validly and effectively given or delivered on the date of such delivery. Any
communication transmitted by facsimile, telex or other direct written
electronic means, or by registered air mail, shall be deemed to have been
validly and effectively given or delivered on the day when received.
Section 9. Headings. The division of this Assignment into sections
and the insertion of headings are for convenience of reference only and shall
not affect the interpretation or construction of this Assignment.
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Section 10. Termination. This Assignment shall terminate, and be of no
further force and effect, upon (i) the payment in full of all of the
Obligations and the performance and observance of all agreements, covenants and
provisions contained in the Guarantee and the Mortgage, and of the Company and
the Assignor under the Indenture, and the absence of any further actual or
contingent liability in respect of any thereof, (ii) the occurrence of the
Termination and Release or (iii) the substitution of a Qualified Substitute
Vessel for the Vessel under the Indenture.
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IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly
executed this 29th day of January, 1996.
NASSAU SPIRIT INC.
By: /s/ Anthony Gurnee
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Name: Anthony Gurnee
Title: Attorney-in-Fact
The terms and conditions of
this Assignment are hereby
ACCEPTED BY:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: /s/ Cynthia Chaney
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Name: Cynthia Chaney
Title: Assistant Vice President
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SCHEDULE TO EXHIBIT 2.27
The Assignments of Freights and Hires not required to be filed because each
of them is substantially identical to Exhibit 2.27, and the material details by
which each such Assignment of Freights and Hires differs from such Exhibit are
as follows:
1. Assignment of Freights and Hires dated January 29, 1996 by VSSI Atlantic
Inc. to United States Trust Company of New York, as Trustee.
a. Name of Assignor: VSSI Atlantic Inc.
b. Name of Ship: TORBEN SPIRIT
c. Jurisdiction of Organization: Republic of Liberia
d. Official Number of Ship: 723526
2. Assignment of Freights and Hires dated January 29, 1996 by VSSI Appian Inc.
to United States Trust Company of New York, as Trustee.
a. Name of Assignor: VSSI Appian Inc.
b. Name of Ship: MAYON SPIRIT
c. Jurisdiction of Organization: Republic of Liberia
d. Official Number of Ship: 720752
3. Assignment of Freights and Hires dated January 29, 1996 by Senang Spirit
Inc. to United States Trust Company of New York, as Trustee.
a. Name of Assignor: Senang Spirit Inc.
b. Name of Ship: SENANG SPIRIT
c. Official Number of Ship: 723521
4. Assignment of Freights and Hires dated January 29, 1996 by Exuma Spirit
Inc. to United States Trust Company of New York, as Trustee.
a. Name of Assignor: Exuma Spirit Inc.
b. Name of Ship: LEYTE SPIRIT
c. Official Number of Ship: 720790
5. Assignment of Freights and Hires dated January 29, 1996 by Andros Spirit
Inc. to United States Trust Company of New York, as Trustee.
a. Name of Assignor: Andros Spirit Inc.
b. Name of Ship: SAMAR SPIRIT
c. Official Number of Ship: 723134
6. Assignment of Freights and Hires dated January 29, 1996 by VSSI Oceans Inc.
to United States Trust Company of New York, as Trustee.
a. Name of Assignor: VSSI Oceans Inc.
b. Name of Ship: POUL SPIRIT
c. Jurisdiction of Organization: Republic of Liberia
d. Documentation of Ship: Liberian
e. Official Number of Ship: 10328