Exhibit 10.13
FORM OF
EARNINGS ASSIGNMENT
[VESSEL]
Official Number [NUMBER]
THIS EARNINGS ASSIGNMENT, dated [DATE], is given by [SHIPOWNER], a
[PLACE OF INCORPORATION] corporation (the "Assignor"), in favor of CHRISTIANIA
BANK OG KREDITKASSE ASA, NEW YORK BRANCH ("CBK"), a banking association
organized and existing under the laws of the Kingdom of Norway, not in its
individual capacity, but solely as trustee (together with its successors in
trust and assigns, the "Trustee") pursuant to that certain Master Vessel and
Collateral Trust Agreement dated [CLOSING DATE] (as the same may be amended,
supplemented or otherwise modified from time to time, the "Master Vessel Trust
Agreement") between CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH, as
Collateral Agent for the Secured Creditors referred to therein, and CHRISTIANIA
BANK OG KREDITKASSE ASA, NEW YORK BRANCH, as Trustee (the "Assignee"). Except as
otherwise defined herein, capitalized terms used herein and defined in the
Credit Agreement (as defined below) shall be used herein as so defined.
RECITALS
A. The Assignor is the sole owner of the [COUNTRY FLAG] flag vessel
[VESSEL], Official Number [NUMBER], (the "Vessel").
B. General Maritime Corporation, a Marshall Islands corporation (the
"Borrower") has entered into a Credit Agreement dated as of [DATE] (as the same
may be amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among CBK, as Administrative Agent, Syndication Agent and
Lead Arranger (the "Agent") and each of the other lenders from time to time
parties thereto (each a "Lender" and collectively the "Lenders"), providing for
loans to the Borrower in the principal amount of up to One Hundred Sixty-Five
Million United States Dollars (US $165,000,000) (as defined in the Credit
Agreement, the "Loan").
C. The Assignor is an indirectly wholly-owned subsidiary of the
Borrower. The Borrower may at any time and from time to time on and after the
date hereof enter into, or guaranty the obligations of the Assignor or one or
more other or any of their respective subsidiaries under, one or more Interest
Rate Protection Agreements or Other Hedging Agreements with respect to the
Borrower's obligations under the Credit Agreement, with one or more Secured
Creditors; each such Interest Rate Protection Agreement, as amended, modified,
restated and/or supplemented from time to time, is herein called an "Interest
Rate
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Protection Agreement," and each such Other Hedging Agreement, as amended,
modified, restated and/or supplemented from time to time, is herein called an
"Other Hedging Agreement.")
D. The Assignor has entered into the Subsidiaries Guaranty and the
Pledge Agreement in favor of the Lenders, pursuant to which the Assignor has
guaranteed and secured, as the case may be, (i) all obligations of the Borrower
under the Credit Agreement and the other Credit Documents to which it is a
party, and (ii) all obligations of the Borrower, the Assignor, the other
Pledgors and their respective subsidiaries under each Interest Rate Protection
Agreement and each Other Hedging Agreement, and the Assignor has granted the
Assignee a First Preferred [COUNTRY FLAG of VESSEL] Mortgage to secure its
obligations under the Subsidiaries Guaranty and the other Credit Documents to
which it is a party.
E. It is a condition to the obligation of the Lenders to advancing
funds to the Borrower under the Credit Agreement that the Assignor enters into
this Assignment as security for its obligations under the Subsidiaries Guaranty
and the other Credit Documents to which it is a party.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. As security for all amounts due and to become due to the
Secured Creditors, the Agent, the Pledgee, the Collateral Agent, the Assignee
and the Mortgagee under the Subsidiaries Guaranty and the other Credit
Documents, including without limitation:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (including, without limitation, principal, premium,
interest, fees and indemnities (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency, reorganization or
similar proceeding of the Assignor at the rate provided for in the
respective documentation, whether or not a claim for post-petition
interest is allowed in any such proceeding)) of the Assignor to the Lender
Creditors (as defined in the Pledge Agreement), whether now existing or
hereafter incurred under, arising out of, or in connection with, the
Credit Agreement and the other Credit Documents to which the Assignor is a
party and the due performance and compliance by the Assignor with all of
the terms, conditions and agreements contained in the Credit Agreement and
in such other Credit Documents (all such obligations, liabilities and
indebtedness under this clause (i), except to the extent consisting of
obligations, liabilities or indebtedness with respect to Interest Rate
Protection Agreements or Other Hedging Agreements, being herein
collectively called the "Credit Document Obligations");
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(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (including, without limitation, all interest that accrues
after the commencement of any case, proceeding or other action relating to
the bankruptcy, insolvency, reorganization or similar proceeding of any
Assignor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such
proceeding) owing by such Assignor to the Other Creditors (as defined in
the Pledge Agreement) under, or with respect to (including, in the case of
each Assignor that is a Subsidiary Guarantor, all such obligations,
liabilities and indebtedness of such Assignor under the Subsidiaries
Guaranty), any Interest Rate Protection Agreement or Other Hedging
Agreement, whether such Interest Rate Protection Agreement or Other
Hedging Agreement is now in existence or hereafter arising, and the due
performance and compliance by such Assignor with all of the terms,
conditions and agreements contained therein (all such obligations,
liabilities and indebtedness described in this clause (ii) being herein
collectively called the "Other Obligations");
(iii) any and all sums advanced by the Assignee in order to preserve
the Earnings Collateral (as defined below) or preserve its security
interest in the Earnings Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of such
Assignor referred to in clauses (i) and (ii) above, after an Event of
Default shall have occurred and be continuing, the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Earnings Collateral, or of any exercise
by the Assignee of its rights hereunder, together with reasonable
attorneys' fees and court costs; and
(v) all amounts paid by the Assignee as to which the Assignee has
the right to reimbursement hereunder or under the Mortgage;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) hereof being herein collectively called the "Obligations," it being
acknowledged and agreed that the "Obligations" shall include extensions of
credit of the types described above, whether outstanding on the date hereof or
extended from time to time after the date hereof,
the Assignor hereby grants, sells, conveys, assigns, transfers, mortgages and
pledges to the Assignee, and unto the Assignee's successors and assigns, all its
right, title, interest, claim and demand in and to, and hereby also grants unto
the Assignee a security interest in and to (the following clauses (i) through
(v), collectively, the "Earnings Collateral") (i) the earnings of the Vessel,
including, but not limited to, all freight, hire and passage moneys, proceeds of
off-hire insurance,
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any 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 ownership, use, operation or management by the
Assignor or its agents of the Vessel, (ii) all moneys and claims for moneys due
and to become due to the Assignor under and all claims for damages arising out
of the breach (or payments for variation or termination) of any charter, or
contract relating to or under which is employed the Vessel, any and all other
present and future charter parties, contracts of affreightment, 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 now and hereafter accrue or
belong to the Assignor, its successors or assigns, arising out of or in any way
connected with the present or future ownership, use, operation or management of
the Vessel or arising out of or in any way connected with the Vessel, (iii) all
moneys and claims for moneys due and to become due to the Assignor, and all
claims for damages, in respect of the actual or constructive total loss of or
requisition of use of or title to the Vessel, (iv) all moneys and claims for
moneys due in respect of demurrage or detention and (v) any proceeds of any of
the foregoing.
SECTION 2. (a) The Assignor covenants that (i) it will have all the
earnings and other moneys hereby assigned paid over promptly to such
Concentration Account as the Collateral Agent may specify in writing from time
to time; (ii) it will promptly notify in writing substantially in the form of
Exhibit B hereto, and deliver a duplicate copy of such notice to the Assignee,
each of the Assignor's agents and representatives into whose hands or control
may come any earnings and moneys hereby assigned, informing each such person of
this Assignment and instructing such addressee to remit promptly to such
Concentration Account all earnings and moneys hereby assigned which may come
into such person's hands or control and to continue to make such remittances
until such time as such person may receive written notice or instructions to the
contrary directly from the Assignee; and (iii) it will instruct each such person
to acknowledge directly to the Assignee receipt of the Assignor's written
notification and the instructions.
SECTION 3. Anything herein contained to the contrary
notwithstanding, the Assignee, or its respective successors and assigns, shall
have no obligation or liability under any agreement, including any charter or
contract of affreightment by reason of or arising out of this Assignment, or out
of any Charter Assignment (as defined below) made pursuant to Section 6 hereof,
and the Assignee, or its respective successors and assigns, shall not be
required or obligated in any manner to perform or fulfill any obligations of the
Assignor under or pursuant to any agreement, including any charter or contract
of affreightment or to make any payment or to make any inquiry as to the nature
or sufficiency of any payment received by it 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 to which it may be entitled hereunder at any
time or times.
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SECTION 4. The Assignor hereby constitutes the Assignee, its
successors and assigns, its true and lawful attorney-in-fact, irrevocably, with
full power, in the name of the Assignor or otherwise, upon the occurrence and
continuance of a Default or an Event of Default, to ask, require, demand,
receive, compound and give acquittance for any and all moneys and claims for
moneys due and to become due, property and rights hereby assigned, to endorse
any checks or other instruments or orders in connection therewith and to file
any document or to take any action or institute any proceedings which the
Assignee and its successors and assigns may reasonably deem necessary or
advisable in the premises.
SECTION 5. The powers and authorities granted to the Assignee and
its successors or assigns herein have been given for valuable consideration and
are hereby declared to be irrevocable.
SECTION 6. The Assignor hereby agrees that at any time and from time
to time, upon entering into any charter or contract of affreightment or other
agreement for employment of the Vessel of whatsoever nature for a period of
twelve (12) months or longer including permitted extensions and renewals, it
will promptly and duly execute and deliver to and in favor of the Assignee at
the cost and expense of the Assignor a Charter Assignment in respect of such
charter to the Assignee substantially in the form attached as Exhibit A hereto
(the "Charter Assignment") and it will promptly execute and deliver any and all
such further instruments and documents as the Assignee, and its successors or
assigns, may reasonably require in order to obtain the full benefits of this
Assignment, the Charter Assignment and of the rights and powers herein and
therein granted. The Assignor covenants to use its best efforts to obtain the
consent of the charterer under said charter to the Charter Assignment pursuant
to the terms of the Charter Assignment or in other form and substance reasonably
satisfactory to the Assignee.
SECTION 7. The Assignor warrants and represents that it has not
assigned or pledged the rights, title and interest assigned hereunder to anyone
other than the Assignee. The Assignor hereby covenants that, without the prior
written consent thereto of the Assignee, so long as this Assignment shall remain
in effect, it will not assign or pledge the whole or any part of the rights,
title and interest 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 alteration or impairment of this Assignment, or of any of the
rights created by this Assignment.
SECTION 8. The Assignor hereby appoints the Assignee as its
attorney-in-fact to execute on the Assignor's behalf and file any financing
statements or continuation statements under the Uniform Commercial Code or
papers of similar purpose or effect in respect of this Assignment.
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SECTION 9. 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 further instruments and documents as the
Assignee may deem desirable in obtaining the full benefits of this Assignment.
SECTION 10. THIS ASSIGNMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES (OTHER
THAN TITLE 14 OF ARTICLE 5 OF THE GENERAL OBLIGATIONS LAW). This Assignment
shall not be amended and/or varied except by agreement in writing signed by the
parties hereto.
SECTION 11. Any notice, demand or other communication to be given
under or for the purposes of this Assignment shall be made as provided in
Section 13.03 of the Credit Agreement or Section 4 of Article IV of the
Mortgage.
SECTION 12. This Assignment may be executed in any number of
counterparts each of which shall be an original, but all such counterparts shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the Assignor has duly executed this instrument
as of the day and year first above written.
[SHIPOWNER],
as Assignor,
By _____________________________________
Name:
Title:
EARNINGS ASSIGNMENT [VESSEL NAME]
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Exhibit A to
EARNINGS ASSIGNMENT
[Form of]
CHARTER ASSIGNMENT
No.
[VESSEL]
Official Number [NUMBER]
[SHIPOWNER], a [PLACE OF INCORPORATION] corporation (the
"Assignor"), refers to an Earnings Assignment, dated [DATE] (the "Earnings
Assignment") given by the Assignor in favor of, CHRISTIANIA BANK OG KREDITKASSE
ASA, NEW YORK BRANCH, a banking association organized and existing under the
laws of the Kingdom of Norway (the "Assignee"), not in its individual capacity,
but solely as agent on behalf of the Lenders, pursuant to the Credit Agreement,
wherein the Assignor agreed to enter into a Charter Assignment in the event the
Assignor entered into any charter or contract of affreightment or other
agreement for employment of the Vessel for a period of twelve (12) months or
longer including permitted extensions and renewals.
The Assignor represents that it has entered into a charter dated
___________ between the Assignor and __________________ (the "Charterer"), a
true and complete copy of which is attached hereto (the "Charter"), and agrees
that Section 1 of the Earnings Assignment is hereby amended to add to the
description of collateral contained in said Section all of the Assignor's right,
title and interest in and to the Charter, all earnings and freights thereunder,
and all amounts due the Assignor thereunder, and the Assignor does hereby grant,
sell, convey, assign, transfer, mortgage and pledge to the Assignee, and unto
the Assignee's successors and assigns, all its right, title, interest, claim and
demand in and to, and hereby does also grant unto the Assignee, a security
interest in and to, the Charter and all claims for damages arising out of the
breach of and rights to terminate the Charter, and any proceeds of any of the
foregoing.
The Assignor hereby warrants that the Assignor will promptly give
notice to the Charterer of the Earnings Assignment as provided by Section 6 of
the Earnings Assignment and the Assignor will use its best efforts to obtain the
consent of the Charterer as evidenced by the execution by the Charterer of the
Charterer's Consent and Agreement in the form attached hereto as Annex 1.
The Assignor reconfirms that the Earnings Assignment including all
of the rights and liabilities, covenants and obligations therein remains in full
force and effect.
EARNINGS ASSIGNMENT [VESSEL NAME]
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Terms used herein and not otherwise defined herein are used as
defined in, or by reference in, the Earnings Assignment.
The Assignor hereby agrees that so long as this Charter Assignment
is in effect it will not terminate said Charter, or amend, modify, supplement,
or waive any material term of said Charter in a manner adverse to the Assignee,
in each case without first obtaining the written consent of the Assignee
therefor. The Assignor hereby agrees to notify the Assignee in writing of any
arbitration.
No amendment or modification of the Charter, and no consent, waiver
or approval with respect thereto shall be valid unless joined in, in writing, by
the Assignee. No notice, request or demand under the Charter, shall be valid as
against the Assignee unless and until a copy thereof is furnished to the
Assignee.
IN WITNESS WHEREOF, the Assignor has caused this Charter Assignment
No. ___ to be duly executed this _____ day of __________________.
[SHIPOWNER],
as Assignor
By _____________________________________
Name:
Title:
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Annex I to
Exhibit A to
EARNINGS ASSIGNMENT
[Form of]
CHARTERER'S CONSENT AND AGREEMENT
No. _____
[VESSEL]
Official Number [NUMBER]
The undersigned, charterer of the [COUNTRY] flag vessel [VESSEL]
pursuant to a time charter-party dated [DATE OF TIME CHARTER PARTY] (the
"Charter"), does hereby acknowledge notice of the assignment by the Assignor of
all the Assignor's right, title and interest in and to the Charter to
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH, as agent (the "Assignee"),
pursuant to a Charter Assignment dated [DATE] and an Earnings Assignment dated
[DATE] (as the same may be amended, supplemented or otherwise modified from time
to time, the "Assignment"), consents to such assignment, and agrees that, it
will make payment of all moneys due and to become due under the Charter, without
setoff or deduction for any claim not arising under the Charter, and
notwithstanding the existence of a default or event of default by the Assignor
under the Charter, direct to the Assignee or such account specified by the
Assignee at such address as the Assignee shall request the undersigned in
writing until receipt of written notice from the Assignee that all obligations
of the Assignor to it have been paid in full.
The undersigned agrees that it shall look solely to the Assignor for
performance of the Charter and that the Assignee shall have no obligation or
liability under or pursuant to the Charter arising out of the Assignment, nor
shall the Assignee be required or obligated in any manner to perform or fulfill
any obligations of the Assignor under or pursuant to the Charter.
Notwithstanding the foregoing, if in the sole opinion of the Assignee an Event
of Default under the Credit Agreement (as defined in or by reference in the
Assignment) shall have occurred and be continuing, the undersigned agrees that
the Assignee shall have the right, but not the obligation, to perform all of the
Assignor's obligations under the Charter as though named therein as owner.
The undersigned agrees that it shall not seek the recovery of any
payment actually made by it to the Assignee pursuant to this Charterer's Consent
and Agreement once such payment has been made. This provision shall not be
construed to relieve the Assignor of any liability to the Charterer.
EARNINGS ASSIGNMENT [VESSEL NAME]
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The undersigned hereby waives the right to assert against the
Assignee, as assignee of the Assignor, any claim, defense, counterclaim or
setoff that it could assert against the Assignor under the Charter.
The undersigned agrees to execute and deliver, or cause to be
executed and delivered, upon the written request of the Assignee any and all
such further instruments and documents as the Assignee may deem desirable for
the purpose of obtaining the full benefits of this Assignment and of the rights
and power herein granted.
The undersigned agrees that no amendment, modification or alteration
of the terms or provisions of the Charter shall be made unless the same shall be
consented to in writing by the Assignee.
The undersigned hereby confirms that the Charter is a legal, valid
and binding obligation, enforceable against it in accordance with its terms.
Dated: _________________
[CHARTERER],
as Charterer
By _____________________________________
Name:
Title:
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Exhibit B to
EARNINGS ASSIGNMENT
FORM OF NOTICE OF ASSIGNMENT
The undersigned, [__________________], the Owner of the [__________]
flag vessel "[___________]", hereby gives you notice that by an Earnings
Assignment dated as of [________________], entered into by us with CHRISTIANIA
BANK OG KREDITKASSE ASA, NEW YORK BRANCH in its capacity as Trustee for certain
Lenders (hereinafter called the "Assignee"), a copy of which is attached hereto,
there has been assigned by us to the Assignee all earnings effected and to be
effected in respect of the said vessel.
[___________________]
Owner,
By: ____________________________________
Name:
Title:
Dated: _________________
EARNINGS ASSIGNMENT [VESSEL NAME]