Filed by Bowne Pure Compliance





Exhibit 10.4




EXECUTION VERSION




DATED
                    
2008 




GYPSUM TRANSPORTATION LIMITED




- to -




DVB BANK SE




 






DEED OF ASSIGNMENT

m.v. “GYPSUM CENTENNIAL”




 






STEPHENSON HARWOOD

One, St. Paul’s Churchyard

London EC4M 8SH

Tel: 020 7329 4422

Fax: 020 7329 7100

Ref: 819/1575/47-00986



 


 









 





CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	1 Definitions and Interpretation
	 	 	2	 
	 
	 	 	 	 
	2 Covenant to Pay and Perform
	 	 	4	 
	 
	 	 	 	 
	3 Assignment
	 	 	4	 
	 
	 	 	 	 
	4 Ancillary Provisions
	 	 	6	 
	 
	 	 	 	 
	5 Application of Moneys
	 	 	6	 
	 
	 	 	 	 
	6 Power of Attorney
	 	 	7	 
	 
	 	 	 	 
	7 Partial Invalidity
	 	 	7	 
	 
	 	 	 	 
	8 Further Assurance
	 	 	7	 
	 
	 	 	 	 
	9 Miscellaneous
	 	 	7	 
	 
	 	 	 	 
	10 Re-Assignment
	 	 	8	 
	 
	 	 	 	 
	11 Notices
	 	 	8	 
	 
	 	 	 	 
	12 Counterparts
	 	 	8	 
	 
	 	 	 	 
	13 Law and Jurisdiction
	 	 	8	 
	 
	 	 	 	 
	APPENDIX A
	 	 	11	 
	 
	 	 	 	 
	APPENDIX B
	 	 	12	 
	 
	 	 	 	 
	APPENDIX C
	 	 	13	 
	 
	 	 	 	 
	APPENDIX D
	 	 	14	 
	 
	 	 	 	 
	Acknowledgement
	 	 	16	 
	 
	 	 	 	 





 


 









 





DEED OF ASSIGNMENT




Dated:
                     2008




BY:





	(1)	 	GYPSUM TRANSPORTATION LIMITED, a company incorporated according to the law of Bermuda whose
registered office is at Clarendon House, 2 Church Street, Hamilton HM11, Bermuda (the “Owner”)






IN FAVOUR OF:





	(2)	 	DVB BANK SE with its registered office in Frankfurt and acting through its office at Parklaan
2, 3016BB Rotterdam, The Netherlands (the “Assignee”).






WHEREAS:





	(A)	 	Each of the banks listed in Schedule 1 to the Loan Agreement (as defined below) (collectively
the “Banks”) has agreed to advance to the Owner its respective Commitment of an aggregate
amount not exceeding the total of (i) the lesser of forty million Dollars ($40,000,000) and
fifty per centum (50%) of the Market Value of Vessel A (in respect of Tranche A) and (ii) the
lesser of fifty million Dollars ($50,000,000) and fifty per centum (50%) of the Market Value
of Vessel B (in respect of Tranche B) (the “Loan”) on the terms and subject to the conditions
set out in a loan agreement dated 2008 made between the
Owner (as borrower), the Banks (as lenders), and the Assignee as agent and security trustee
for the Banks (the “Loan Agreement”).







	(B)	 	Pursuant to the Loan Agreement, and as a condition precedent to the several obligations of
the Banks to make the Loan available to the Owner, the Owner has, amongst other things, agreed
to execute and deliver in favour of the Assignee as security trustee for the Finance Parties a
first priority statutory mortgage of the Owner’s Bermuda flag vessel m.v. “GYPSUM CENTENNIAL”
(the “Vessel” and together with the m.v. “GYPSUM INTEGRITY” the “Vessels”) together with a
collateral deed of covenants (together the “Mortgage”) and this Deed as security for the
payment of the Indebtedness.







	(C)	 	The Owner is the legal and beneficial owner of the Vessel and the Assigned Property and has
executed the Mortgage on the same date as this Deed.





 


 









 










THIS DEED WITNESSES as follows:





	1	 	Definitions and Interpretation







	 	1.1	 	In this Deed:

	 
	 	 	 	“Assigned Property” means the Insurances, the Earnings and the Requisition
Compensation and the CoA Rights.

	 
	 	 	 	“CoAs” means each of:-







	 	(a)	 	the contract of affreightment commencing as of
January 1, 2008 made between the Borrower and United States Gypsum
Company;







	 	(b)	 	the contract of affreightment dated 30 October
2007 made between the Borrower and Public Service of New Hampshire
Company;







	 	(c)	 	the contract of affreightment dated 18 April
2008 made between the Borrower and Mt. Tom Generating Co. LLC; and







	 	(d)	 	any future contracts of affreightment to be
entered into by the Borrower in respect of the Vessel







(each a “COA”).




“CoA Rights” means all of the rights of the Borrower under or pursuant to the CoAs.




“Earnings” means all hires, freights, pool income and other sums payable to or for
the account of the Owner in respect of the Vessel including (without limitation) all
payments under the CoAs remuneration for salvage and towage services, demurrage and
detention moneys, contributions in general average, compensation in respect of any
requisition for hire, and damages and other payments (whether awarded by any court
or arbitral tribunal or by agreement or otherwise) for breach, termination or
variation of any contract for the operation, employment or use of the Vessel.




“Finance Parties” means the Assignee and the Banks and “Finance Party” means any one
of them.




“Indebtedness” means the Loan; all other sums of any nature (together with all
interest on any of those sums) which from time to time may be payable by the Owner
to the Banks or to the Assignee pursuant to the Security Documents; any
damages payable as a result of any breach by the Owner of any of the Security
Documents; and any damages or other sums payable as a result of any of the
obligations of the Owner under or pursuant to any of the Security Documents being
disclaimed by a liquidator or any other person, or, where the context permits, the
amount thereof for the time being outstanding.


 


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“Insurances” means all policies and contracts of insurance (including all entries in
protection and indemnity or war risks associations) which are from time to time
taken out or entered into in respect of or in connection with the Vessel or her
increased value or the Earnings and (where the context permits) all benefits under
such contracts and policies, including all claims of any nature and returns of
premium.




“Requisition Compensation” means all compensation or other money which may from time
to time be payable to the Owner as a result of the Vessel being requisitioned for
title or in any other way compulsorily acquired (other than by way of requisition
for hire).




“Security Documents” means the Loan Agreement, the Mortgages, the Assignments, the
Guarantee, the Account Security Deed, the Managers’ Undertakings or (where the
context permits) any one or more of them, and any other agreement or document which
may at any time be executed by any person as security for the payment of all or any
part of the Indebtedness.




	 	1.2	 	Unless otherwise specified in this Deed, or unless the context otherwise
requires, all words and expressions defined in the Loan Agreement shall have the same
meaning when used in this Deed.

	 
	 	1.3	 	In this Deed:







	 	1.3.1	 	words denoting the plural number include the singular and vice versa;

	 
	 	1.3.2	 	words denoting persons include corporations, partnerships,
associations of persons (whether incorporated or not) or governmental or
quasi-governmental bodies or authorities and vice versa;

	 
	 	1.3.3	 	references to Clauses are references to clauses of this Deed;

	 
	 	1.3.4	 	references to this Deed include the recitals to this Deed;





 


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	 	1.3.5	 	the headings and contents page(s) are for the purpose of
reference only, have no legal or other significance, and shall be ignored in
the interpretation of this Deed;







	 	1.3.6	 	references to any document (including, without limitation, to
any of the Security Documents) are, unless the context otherwise requires,
references to that document as amended, supplemented, novated or replaced from
time to time;







	 	1.3.7	 	references to statutes or provisions of statutes are
references to those statutes, or those provisions, as from time to time
amended, replaced or re-enacted; and







	 	1.3.8	 	references to any Finance Party include its successors,
transferees and assignees.







	2	 	Covenant to Pay and Perform







The Owner agrees to pay to the Finance Parties all moneys comprised in the Indebtedness and
to perform all its other obligations arising out of the Security Documents as and when the
same shall be due for payment or performance.




	3	 	Assignment







	 	3.1	 	In order to secure the payment of the Indebtedness and the performance by the
Owner of all its other obligations under or arising out of the Security Documents the
Owner with full title guarantee assigns and agrees to assign absolutely and
unconditionally to the Assignee as security trustee for the Finance Parties all the
Owner’s right, title and interest, present and future, in and to the Assigned Property.







	 	3.2	 	The Owner warrants that it has not disposed of, nor created or permitted any
Encumbrance or other third party right to arise on or over, any of the Assigned
Property other than Permitted Encumbrances.





 


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	 	3.3	 	The Owner undertakes:







	 	3.3.1	 	immediately following the execution of this Deed and at any
other time reasonably required by the Assignee during the Facility Period, to
give written notice (materially in the form set out in Appendix A or in such
other form as the Assignee may require) to the underwriters (or, in the case of
entries in protection and indemnity or war risks associations or clubs, to
the managers of those associations or clubs) of the assignment of the
Insurances contained in this Deed; and







	 	3.3.2	 	immediately following the execution of this Deed and at any
other time required by the Assignee during the Facility Period, to give to the
Assignee a written authority (materially in the form set out in Appendix B or
in such other form as the Assignee may require) addressed to the managers of
each protection and indemnity or war risks association or club in which the
Vessel is entered irrevocably authorising those managers to give to the
Assignee or its agents such information and documents relating to the entry of
the Vessel in the association or club as the Assignee may from time to time
reasonably require; and







	 	3.3.3	 	to procure that a loss payable clause materially in the form
set out in Appendix C (or in such other form as the Assignee may approve) or,
in the case of entries in a protection and indemnity association, a note of the
Assignee’s interest in such form as the Assignee may approve, shall be endorsed
on or attached to the policies, cover notes or certificates of entry relating
to the Insurances and that letters of undertaking in such form as the Assignee
may approve shall be issued to the Assignee by the brokers through whom the
Insurances are placed (or, in the case of entries in protection and indemnity
or war risks associations, by their managers); and







	 	3.3.4	 	immediately following the execution of this Deed in respect of
the existing COAs and immediately following the execution of any future COAs to
give written notice (materially in the form of Appendix D or in such other form
as the Assignee may require) to the counterparties to each CoA of the
assignment of the Earnings contained in this Deed, and to procure the
acknowledgement of that notice by such counterparties in the manner provided in
the notice; and







	 	3.3.5	 	from time to time immediately on the written request of the
Assignee to give such further written notice in such form as the Assignee shall
reasonably require of the assignment of the Earnings and/or the Requisition
Compensation contained in this Deed.





 


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	4	 	Ancillary Provisions







	 	4.1	 	The Owner undertakes to reimburse the Assignee on demand for all reasonable
sums which the Assignee may from time to time pay or become liable for in or about the
protection, maintenance or enforcement of the rights created in favour of the Assignee
by this Deed or in or about the exercise by the Assignee of any of the powers vested in
it under or pursuant to this Deed, together in each case with interest at the Default
Rate from the date when those sums were paid by the Assignee until the date of actual
receipt, before or after any relevant judgment, and to keep the Assignee fully and
effectually indemnified from and against all actions, losses, claims, proceedings,
costs, demands and liabilities which the Assignee may suffer or incur under or in
connection with the Assigned Property, except when due to the Assignee’s wilful
misconduct or gross negligence.







	 	4.2	 	Notwithstanding the assignments contained in this Deed, the Assignee shall not
be obliged to make any enquiry as to the nature or sufficiency of any payment received
by it under or in connection with this Deed nor to make any claim or take any other
action to collect any money or to enforce any rights or benefits assigned to the
Assignee by this Deed or to which the Assignee may at any time be entitled under or
pursuant to this Deed.







	 	4.3	 	The Owner shall remain liable to perform all the obligations assumed by it in
relation to the Assigned Property and the Assignee shall be under no obligation of any
kind in respect of the Assigned Property nor under any liability in the event of any
failure by the Owner to perform, or breach by the Owner of, any of those obligations.







	 	4.4	 	The Owner undertakes to hold the original copies of any and all documents in
connection with any of the Assigned Property to the order of the Assignee.







	5	 	Application of Moneys







	 	5.1	 	The benefits and proceeds of any of the Insurances shall be distributed in
accordance with the terms of any relevant loss payable clause referred to in
Clause 3.3.3.







	 	5.2	 	Subject to Clause 5.1, the benefits and proceeds of any of the Assigned
Property shall, unless otherwise agreed by the Assignee or otherwise expressly provided
in the Loan Agreement, be applied by the Assignee in or towards satisfaction, or by way
of retention on account, of the Indebtedness, in such manner as the Assignee may in
its discretion determine.





 


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	6	 	Power of Attorney







So far as may be necessary to give effect to this Deed the Owner hereby irrevocably appoints
the Assignee its attorney (with unlimited power of substitution and delegation) for the
purpose of doing in the name of the Owner all acts which the Owner could do in relation to
the Assigned Property. Such power of attorney shall only be exercisable during the
continuance of an Event of Default. The Assignee shall advise the Owner of the exercise of
such power of attorney pursuant to this Clause, promptly following the exercise of such
power of attorney.




	7	 	Partial Invalidity







If, at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable
in any respect under any law of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way be affected or
impaired.




	8	 	Further Assurance







The Owner agrees that from time to time on the written request of the Assignee it will
immediately execute and deliver to the Assignee all further documents which the Assignee may
reasonably require for the purpose of obtaining the full benefits of this Deed.




	9	 	Miscellaneous







	 	9.1	 	In the event of there being any conflict between this Deed and the Loan
Agreement or the Mortgage, the Loan Agreement or the Mortgage (as the case may be)
shall prevail.







	 	9.2	 	All the covenants and agreements of the Owner in this Deed shall bind the Owner
and its successors and permitted assignees and shall inure to the benefit of the
Finance Parties and their respective successors, transferees and assignees.







	 	9.3	 	The representations and warranties on the part of the Owner contained in this
Deed shall survive the execution of this Deed.





 


7









 











	 	9.4	 	The rights of the Assignee under this Deed shall not be affected by any change
in the constitution of the Owner or by the liquidation, bankruptcy or insolvency of the
Owner.







	 	9.5	 	No variation or amendment of this Deed shall be valid unless in writing and
signed on behalf of the Owner and the Assignee.







	 	9.6	 	Other than the Finance Parties, a person who is not a party to this Deed has no
right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the
benefit of any term of this Deed.







	10	 	Re-Assignment







Following the expiry of the Facility Period the Assignee will, at the cost of and on the
request of the Owner, promptly execute and deliver a re-assignment to the Owner of the
Assigned Property, to the extent then still subsisting and capable of re-assignment.




	11	 	Notices







The provisions of clause 16 of the Loan Agreement shall (mutatis mutandis) apply to this
Deed as if it were set out in full with references to this Deed substituted for references
to the Loan Agreement.




	12	 	Counterparts







This Deed may be executed in any number of counterparts, and this has the same effect as if
the signatures on the counterparts were on a single copy of this Deed.




	13	 	Law and Jurisdiction







	 	13.1	 	This Deed shall in all respects be governed by and interpreted in accordance
with English law.







	 	13.2	 	For the exclusive benefit of the Assignee, the Owner irrevocably agrees that
the courts of England are to have jurisdiction to settle any disputes which may arise
out of or in connection with this Deed and that any proceedings may be brought in those
courts.





 


8









 











	 	13.3	 	Nothing contained in this Clause shall limit the right of the Assignee to
commence any proceedings against the Owner in any other court of competent jurisdiction
nor shall the commencement of any proceedings against the Owner in one or more
jurisdictions preclude the commencement of any proceedings in any other
jurisdiction, whether concurrently or not.







	 	13.4	 	The Owner irrevocably waives any objection which it may now or in the future
have to the laying of the venue of any proceedings in any court referred to in this
Clause and any claim that those proceedings have been brought in an inconvenient or
inappropriate forum, and irrevocably agrees that a judgment in any proceedings
commenced in any such court shall be conclusive and binding on it and may be enforced
in the courts of any other jurisdiction.







	 	13.5	 	Without prejudice to any other mode of service allowed under any relevant law,
the Owner:







	 	13.5.1	 	irrevocably appoints USG (U.K.) Ltd, 1 Swan Road, South West Industrial
Estate, Peterlee, County Durham, SR8 2HS, Attention: Secretary, as its agent
for service of process in relation to any proceedings before the English
courts; and







	 	13.5.2	 	agrees that failure by a process agent to notify the Owner of the process
will not invalidate the proceedings concerned.





 


9









 










IN WITNESS of which this Deed has been duly executed and delivered the day and year first before
written.



	 	 	 
	SIGNED and DELIVERED

	 	) 
	as a DEED

	 	) 
	by GYPSUM TRANSPORTATION

	 	) 
	LIMITED

	 	) 
	acting by

	 	) 
	 

	 	) 
	its duly authorised

	 	) 
	 

	 	) 
	in the presence of:

	 	) 
	 
	 	 
	SIGNED and DELIVERED

	 	) 
	as a DEED

	 	) 
	by DVB BANK SE

	 	) 
	acting by

	 	) 
	 

	 	) 
	its duly authorised

	 	) 
	 

	 	) 
	in the presence of:

	 	) 





 


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APPENDIX A




NOTICE OF ASSIGNMENT




(For attachment by way of endorsement to




all policies, contracts and cover notes)




We, Gypsum Transportation Limited of Clarendon House, 2 Church Street, Hamilton HM11, Bermuda, the
owner of the m.v. “Gypsum Centennial” (the “Vessel”) GIVE NOTICE that, by an assignment in writing
dated
                     2008, we assigned to DVB Bank SE with its registered office in Frankfurt, acting through its
office at Parklaan 2, 3016BB Rotterdam, The Netherlands (as security trustee for itself and others)
all our right, title and interest in and to all insurances effected or to be effected in respect of
the Vessel, including the insurances constituted by the policy on which this notice is endorsed,
and including all money payable and to become payable thereunder or in connection therewith
(including return of premiums).



	 	 	 	 	 
	Signed:
	 	 	 	 
	 

	 	 

	 	 







 For and on behalf of




 Gypsum Transportation Limited



Dated:
                     2008


 


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APPENDIX B




To: Willis




We, Gypsum Transportation Limited of Clarendon House, 2 Church Street, Hamilton HM11, Bermuda, the
owner of the m.v. “Gypsum Centennial” (the “Vessel”) irrevocably authorise you to disclose to DVB
Bank SE (the “Assignee”) or its agents all information and documents relating to the entry of the
Vessel in [name of association or club] as the Assignee or its agents may from time to time
require.



Please note that this authority may not be varied or revoked without the prior written consent of
the Assignee.



	 	 	 	 	 
	Signed:
	 	 	 	 
	 

	 	 

	 	 







 For and on behalf of




 Gypsum Transportation Limited



Dated:
                     2008


 


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APPENDIX C




Loss Payable Clause




It is noted that, by an assignment in writing collateral to a first priority statutory mortgage and
deed of covenants both dated
                     2008 (together the “Mortgage”), Gypsum Transportation Limited of Clarendon House, 2 Church Street, Hamilton HM11,
Bermuda (the “Owner”), owner of the vessel m.v. “GYPSUM CENTENNIAL” (the “Vessel”), assigned
absolutely to DVB Bank SE with its registered office in Frankfurt, acting through its office at
Parklaan 2, 3016BB Rotterdam, The Netherlands (as security trustee for itself and others) (the
“Mortgagee”) this policy and all benefits of this policy, including all claims of any nature
(including return of premiums) under this policy.



Claims payable under this policy in respect of a total or constructive total or an arranged or
agreed or compromised total loss or unrepaired damage and all claims which (in the opinion of the
Mortgagee) are analogous thereto shall be payable to the Mortgagee up to the Mortgagee’s mortgage
interest.



Subject thereto, all other claims, unless and until underwriters have received notice from the
Mortgagee of an event of default under the Mortgage, in which event all claims under this policy
shall be payable directly to the Mortgagee up to the Mortgagee’s mortgage interest, shall be
payable as follows:




	(i)	 	a claim in respect of any one casualty where the aggregate claim against all insurers does
not exceed FIVE HUNDRED THOUSAND UNITED STATES DOLLARS (US$500,000) or the equivalent in any
other currency, prior to adjustment for any franchise or deductible under the terms of the
policy, shall be paid directly to the Owner for the repair, salvage or other charges involved
or as a reimbursement if the Owner has fully repaired the damage and paid all of the salvage
or other charges;







	(ii)	 	a claim in respect of any one casualty where the aggregate claim against all insurers exceeds
FIVE HUNDRED THOUSAND UNITED STATES DOLLARS (US$500,000) or the equivalent in any other
currency prior to adjustment for any franchise or deductible under the terms of the policy,
shall, subject to the prior written consent of the Mortgagee, be paid to the Owner as and when
the Vessel is restored to her former state and condition and the liability in respect of which
the insurance loss is payable is discharged, and provided that the insurers may with such
consent make payment on account of repairs in the course of being effected,
but, in the absence of such prior written consent shall be payable directly to the Mortgagee
up to the Mortgagee’s mortgage interest.





 


13









 










APPENDIX D




Notice of Assignment of Contract of Affreightment




To:




Dear Sirs




We hereby notify you that we have assigned in favour of DVB Bank SE (the “Lender”) pursuant to an
assignment of created by us in favour of the Lender dated
                     2008, as security for a loan made to us,
all our right, title and interest in and to the Contract of Affreightment made between ourselves
and yourselves dated [                    ] (the “Contract”) including all monies payable by you to us in respect of
the Contract.



With effect from the date you receive this notice:




	(a)	 	all payments to be made by you to us under or in respect of the Contract should be made to
our account number [                    ] held with [                    ] or as the Lender may otherwise specify in writing from
time to time;

	 
	(b)	 	we remain liable to perform all the obligations assumed by us under the Contract;







	(c)	 	no changes may be made to the Contract and no rights of termination may be exercised by us
without the reasonable consent of the Lender; and







	(d)	 	you are hereby authorised and instructed to provide to the Lender such information relating
to the Contract as the Lender may request and to send to it copies of all notices issued by
you under the Contract, and to provide us with copies of such request and notices.






These instructions may not be revoked or varied without the prior written consent of the Lender.


 


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Please acknowledge receipt of this notice by signing and returning the enclosed copy of this notice
to the Lender at Parklaan 2, 3016BB Rotterdam, The Netherlands.



Yours faithfully




	 	 	 
	 
	 	 
	 

For and on behalf of

	 	 
	GYPSUM TRANSPORTATION LIMITED
	 	 
	 
	 	 
	Date:                      2008
	 	 






 


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Acknowledgement




of Assignment of Contract of Affreightment





			
	To:	 	(i) DVB Bank SE (the “Lender”)

(ii) Gypsum Transportation Limited (the “Company”)






We acknowledge receipt of the notice set out above and confirm that:




	(a)	 	we shall comply with the terms of the notice;

	 
	(b)	 	we have not received notice of any other interest in respect of the Contract;

	 
	(c)	 	no amendment, waiver or release of any right, interest or benefit under the Contract shall be
effective without the prior written consent of the Lender;

	 
	(d)	 	we shall not exercise any right to terminate the Contract or enforce any of our rights unless
we have given 30 days’ prior written notice to the Lender of the proposed exercise or
enforcement;

	 
	(e)	 	no default by the Company of any of the terms of the Contract shall be deemed to have
occurred until the expiry of 30 days after the date notice of that default is given to the
Lender with details of the steps required to remedy that default;

	 
	(f)	 	we consent to the assignment reflected in the notice; and

	 
	[(g)	 	we waive the requirement that the Lender as assignee assume in writing the obligations of the
Company as assignor under the Contract, as required pursuant to paragraph 27 of the Contact
and confirm that we may look only to the Company for performance under the Contract] [COA
dated 1 January 2008 only.]





 


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This acknowledgement shall be governed by English law and is executed and delivered as a deed.



	 	 	 
	 
	 	 
	 

For and on behalf of

	 	 
	[                                         ]
	 	 
	 
	 	 
	Date:                      2008
	 	 







 


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