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EXHIBIT 2.23
NASSAU SPIRIT INC.
LUZON SPIRIT
ASSIGNMENT OF TIME CHARTER
Nassau Spirit Inc., a corporation organized and existing under the laws of
the Commonwealth of the Bahamas (the "Assignor"), in consideration of one dollar
($1.00) 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 does hereby 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 herein being used
herein as defined in the Indenture), its successors and assigns, to its and its
successors' and assigns' own proper use and benefit 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, all the right, title and interest of the Assignor in and to:
(i) that certain Time Charter Party dated May 1, 1992, between the Assignor and
Palm Shipping Inc. (the "Charterer"), a Liberian company, as charterer, with
respect to the Assignor's Bahamian flag vessel LUZON SPIRIT (said vessel or any
vessel hereafter
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substituted therefor under said Time Charter Party being herein called the
"Vessel"), as said Time Charter Party may heretofore or hereafter be amended
from time to time or extended or renewed (said Time Charter Party as heretofore
or hereafter amended or extended or renewed being hereinafter called the
"Charter"), including, without limitation, within such assignment the right to
receive all moneys due and to become due under the Charter and all rights
arising out of the owner's lien on cargoes and subfreights thereunder, all
claims for damages arising out of the breach thereof and the right of the
Assignor to terminate the Charter, to perform thereunder and to compel
performance of the terms thereof; and (ii) all moneys and claims for moneys due
and to become due to the Assignor, and all claims for damages and all insurance
and other proceeds in respect of, the actual or constructive loss of, or the
requisition (whether of title or use), condemnation, sequestration, seizure,
forfeiture or other taking of, the Vessel. The liability of the Assignor under
this Assignment shall be limited by the provisions of Section 2 of the
Guarantee.
It is expressly agreed that anything herein contained to the contrary
notwithstanding, (i) the Assignor shall remain liable under the Charter to
perform all the obligations assumed by it thereunder, (ii) the obligations of
the Assignor under the Charter may be performed by the Assignee or its nominee
or other assignee from the Assignee without releasing the Assignor therefrom and
(iii) the Assignee shall have no obligation or liability under the Charter by
reason of, or arising out of, this Assignment and shall not be obligated to
perform any of the obligations of the Assignor under the Charter, or to make any
payment or to make any inquiry of the sufficiency of any payment received by it,
or to present or file any claim or to take any other action to collect or
enforce any payment assigned hereunder.
The Assignor does hereby constitute the Assignee, its successors and
assigns, the Assignor's true and lawful attorney, 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 and claims for money due
and to become due under, or arising out of, the Charter or otherwise assigned
hereunder, 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
in connection therewith all as and to the extent permitted in the Indenture.
Notwithstanding anything to the contrary, 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. If an Event of
Default
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shall have occurred and be continuing and the Assignee shall have given the
Assignor written notice thereof, the Assignor shall specifically authorize and
direct the Charterer or other obligor to make payment of all of the 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 the Charterer or obligor of such instructions.
The Assignor agrees that at any time and from time to time, upon the
written request of the Assignee, the Assignor will promptly and duly execute and
deliver any and all such further instruments and documents as the Assignee may
reasonably request or as shall be necessary for the Assignee to obtain the full
benefits of this Assignment and of the rights and powers herein granted,
including, without limitation, the execution and delivery of such Uniform
Commercial Code financing and continuation statements and the filing thereof in
such jurisdictions as shall be appropriate. To the extent permitted by
applicable law, the Assignor hereby authorizes the Assignee to execute and file
any such financing or continuation statements without necessity of the signature
of the Assignor.
The Assignor does hereby represent and warrant that the Charter is in full
force and effect and is enforceable in accordance with the terms thereof, that
the Charterer has no claims against the Assignor thereunder and the Assignor is
not in default thereunder. The Assignor does hereby further represent and
warrant that there is not now in effect any assignment or pledge of, and hereby
covenants that Assignor will not assign, pledge, or suffer to exist any lien,
charge, security interest, or encumbrance, or any other type of preferential
arrangement, upon or with respect to, so long as this instrument of Assignment
shall remain in effect, the whole or any part of the rights hereby assigned, to
anyone other than the Assignee, its successors or assigns. The Assignor
represents and warrants that it does not maintain an office or place of business
in the United States of America or in Canada and covenants that it will give the
Assignee immediate notice if at any time it establishes such an office or place
of business.
Upon (a) payment in full of all of the Obligations and the performance and
observance of all agreements, covenants and provisions contained in its Guaranty
and First Preferred Ship Mortgage and of the Company and the Assignor in the
Indenture, and when neither the Assignor nor the Company is under any further
actual or contingent liability in respect of any thereof, (b) the occurrence of
the Termination and Release or (c) the substitution of a Qualified Substitute
Vessel for the Vessel under the Indenture, the Assignee will at the request and
cost of
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the Assignor reassign the Charter and its interest in all other rights assigned
to the Assignee hereunder to the Assignor or as the Assignor shall direct,
without any representation, warranty or recourse by or to the Assignee.
This Assignment and the Agreement and Consent to Assignment annexed hereto
may be executed by the Assignor and the Charterer under the Charter on separate
counterparts without in any way adversely affecting the validity of said
Agreement and Consent to Assignment. The Assignor agrees that it will forthwith
procure that the Charterer delivers to the Assignee such Agreement and Consent
to Assignment duly executed by the Charterer.
This Assignment shall be governed by and construed in accordance with the
laws of the State of New York. 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
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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 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.
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IN WITNESS WHEREOF, the Assignor has caused this instrument of Assignment
to be duly executed as of the 29th day of January, 1996.
NASSAU SPIRIT INC.
By /s/ Anthony Gurnee
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Name: Anthony Gurnee
Title: Attorney-in-Fact
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ASSIGNMENT OF TIME CHARTER
AGREEMENT AND CONSENT TO ASSIGNMENT
TO: PALM SHIPPING INC.
LUZON SPIRIT
We refer to the time charter party dated May 1, 1992, as amended, made
between us, Nassau Spirit Inc., and you, Palm Shipping Inc., by which we agreed
to let and you agreed to take on time charter for the period and on the terms
and conditions set out in the Charter of the LUZON SPIRIT of about 28,742 net
tons and 57,448 gross tons registered in our name under the Bahamian flag.
We hereby give you notice of the following, and you by your execution and
delivery of this Agreement and Consent to Assignment hereby agree to the
following:
1. By an assignment (the "Assignment", the defined terms therein being
used herein as therein defined) dated the date hereof (a copy of which
is attached hereto) made between us and the Trustee referred to therein,
we have sold, assigned, transferred and set over unto the Trustee all
our right, title and interest in and to the Charter (as such term is
defined in the attached Assignment) and in and to certain moneys and
claims for moneys due and to become due to us (all as more fully
described in the Assignment).
2. You are hereby irrevocably authorized and instructed to pay, and agree
that you will make payment of, all such moneys payable by you under the
Charter to such place as the Trustee may from time to time direct.
3. We shall remain liable to perform all our obligations under the Charter
and the Trustee shall not be under any obligation under the Charter, but
should the Trustee exercise its right to perform, or cause performance
by its designee of, our obligations under the Charter, you agree,
without thereby releasing us from our obligations under the Charter, to
accept such performance.
4. By your acknowledgement below, you agree that your obligation to make
payment of all moneys payable by you under the Charter to the Trustee
pursuant to paragraph 2 above is absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right against
us, the Company, the Trustee or any Holder (as defined in the Indenture
referred to in the Assignment) or anyone else for any reason whatsoever
(whether in connection with the Vessel or otherwise), including, without
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limitation, any defect in the title, condition, design, operation, or
fitness for use of, or any damage to or loss or destruction of, or any
lien, security interest or other charge or encumbrance upon, the Vessel
or any part thereof or any interruption or cessation in the use or
possession thereof by us or you or any subcharterer thereof for any
reason, (ii) any insolvency, bankruptcy, reorganization or similar
proceeding by or against the Company, us, the Trustee or any Holder or
anyone else, (iii) any liability, obligation, claim, damage, penalty,
cost or expense (including, without limitation, fees and expenses of
attorneys, consultants, engineers and appraisers and any claim arising
under any law, rule, regulation, charter, lease, permit, license or
other requirement relating to pollution or to the protection of health
or the environment) which may be imposed upon or incurred by or asserted
against you or us or the Company, the Trustee, any Holder or anyone else
for any reason or (iv) any other circumstance, happening or event
whatsoever, whether foreseen or unforeseen and whether or not similar to
any of the foregoing. If for any reason whatsoever, the Charter shall be
terminated as to any vessel subject thereto by operation of law or
otherwise, you nonetheless agree to pay to the Trustee all amounts
payable under such Charter at the time such payments would have become
due and payable in accordance with the terms of the Charter had such
Charter not been so terminated. You hereby waive, to the extent
permitted by applicable law, any and all rights which you may now have
or which at any time hereafter may be conferred upon you, by statute or
otherwise, to terminate, cancel, quit or surrender any Charter unless
(a) the Securities shall have been paid in full and all sums payable to
the Trustee under the Indenture shall have been paid in full or (b) the
Termination and Release shall have occurred.
5. You agree that the Trustee shall be entitled to exercise any and all
rights and remedies of the Assignor under the Charter in accordance with
the terms of the Assignment and the Indenture, and you shall comply in
all respects with such exercise. You agree that the Charter, including,
without limitation, all of your liens thereunder, shall be subordinated
in all respects to the lien of the First Preferred Ship Mortgage in
favor of the Trustee on the Vessel, and, at the option of the Trustee,
foreclosure under such First Preferred Ship Mortgage shall terminate
such Charter and such liens and divest you and your subcharterers of all
right, title and interest in and to the Vessel. You agree that each
subcharter of the Vessel shall be subordinate in all respects to the
lien of such First Preferred Ship Mortgage.
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6. You and we are each subsidiaries of the Company. Each present and
future Guarantor (as defined in the Indenture) will assign its rights
under a Charter (as defined in the Indenture and including but not
limited to the Charter referred to in the Assignment) to the Trustee as
security for, among other obligations, the Company's obligations under
the Indenture and the Securities (as defined in the Indenture).
7. Your obligations to pay hire under the Charter referred to in the
Assignment include, without limitation, the obligation to pay hire
thereunder so that each installment of hire thereunder shall be, under
any circumstances and in any event, in an amount and paid on such date
as shall be sufficient, when combined with all payments made on or
before such date by you to the Trustee under all of the Charters (as
defined in the Indenture) assigned to the Trustee, so that the Trustee
shall have been paid in full as of its due date each payment of
principal of and interest (and premium, if any) on the Securities (as
defined in the Indenture) required to be paid by the Company pursuant to
the Indenture on such due date.
8. You hereby agree that, so long as any Securities (as defined in the
Indenture) shall be outstanding and the Termination and Release shall
not have occurred:
(a) If an Event of Default (as defined in the Indenture) has occurred
and is continuing and the Trustee has given you written notice
thereof and requested that you issue instructions to the charterers
and other obligors directly (and without derogation of any other
rights of the Trustee), you shall specifically authorize and direct
each charterer or other obligor to make payment of all the freights,
hire and other moneys assigned pursuant to the Assignment of
Freights and Hires (as defined in the Indenture) directly to our
Cash Collateral Account (as defined in the Indenture) in accordance
with our Cash Collateral Account Agreement (as defined in the
Indenture), and shall obtain and deliver to the Trustee the written
acknowledgment of each such charterer or other obligor of such
instructions.
(b) Upon the request of the Trustee from time to time, you shall
provide to the Trustee such information as the Trustee may
reasonably request regarding the Vessel and its use, including but
not limited to the terms of each subcharter thereof, the subcharter
party, the routes
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plied and to be plied by such Vessel and its scheduled arrival and
departure from each port on such route.
(c) You covenant and agree with the Trustee that you will (i) duly
perform and observe all of the terms and provisions of any charter
or contract of affreightment on your part to be performed or
observed; and (ii) clearly record on your books and records
notations of the Assignment and the Assignment of Freights and Hires
(as defined in the Indenture).
(d) At any time and from time to time, upon the written request of the
Trustee, you shall promptly and duly execute and deliver any and all
such further instruments and documents as the Trustee may reasonably
request in order to obtain the full benefits of the Assignment and
of the rights and powers herein granted.
(e) Whenever requested by the Trustee, you shall deliver letters to
each of your agents and representatives into whose hands or
control may come any earnings, moneys and property assigned by the
Assignment or assigned pursuant to the Assignment of Freights and
Hires, informing each such addressee of such assignments and, if
any Event of Default has occurred, instructing such addressee to
remit or deliver promptly to the Trustee all earnings, moneys and p
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 the contrary direct from the Trustee. Each such
addressee shall acknowledge directly to the Trustee receipt of
your letter of notification and instructions.
9. Your acknowledgement and consent hereunder, and your agreements herein
contained, are for the benefit of the Trustee and the Holders and shall
be enforceable by the Trustee for its benefit and the benefit of the
Holders.
10. This Agreement and Consent to 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 First
Preferred Ship Mortgage and of the Company and us in the ndenture,
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
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Qualified Substitute Vessel for the Vessel under the Indenture.
The authorizations and instructions by us in this Agreement and Consent to
Assignment cannot be revoked or varied by us without the Trustee's prior written
consent.
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For and on behalf of
NASSAU SPIRIT INC.
By: /s/ Anthony Gurnee
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Name: Anthony Gurnee
Title: Attorney-in-Fact
Dated: January 29, 1996
To: Nassau Spirit Inc.
In consideration of the extension of the term of the Time Charter, and for other
good and valuable consideration, the receipt of which is hereby acknowledged, we
hereby agree to the terms set out above and consent to, and agree to be bound
by, the Assignment.
For and on behalf of
PALM SHIPPING INC.
By: /s/ Esther E. Gibson
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Name: Esther E. Gibson
Title: Secretary
Dated: January 29, 1996
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SCHEDULE TO EXHIBIT 2.23
The Assignments of Time Charter not required to be filed because each of
them is substantially identical to Exhibit 2.23, and the material details by
which each such Assignment of Time Charter differs from such Exhibit are as
follows:
1. Assignment of Time Charter 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. Gross Tonnage of Ship: 57,486
e. Date of Related Time Charter Party: January 4, 1994
2. Assignment of Time Charter 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. Date of Related Time Charter Party: February 1, 1992
3. Assignment of Time Charter 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. Gross Tonnage of Ship: 52,508
d. Net Tonnage of Ship: 28,208
e. Date of Related Time Charter Party: December 1, 1993
4. Assignment of Time Charter 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. Date of Related Time Charter Party: August 1, 1992
5. Assignment of Time Charter 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. Date of Related Time Charter Party: November 1, 1992
6. Assignment of Time Charter 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. Flag of Ship: Liberian
e. Gross Tonnage of Ship: 57,463
f. Net Tonnage of Ship: 28,828
g. Date of Related Time Charter Party: July 3, 1995