Exhibit 10.16
MASTER VESSEL AND COLLATERAL TRUST AGREEMENT
Dated as of June ___, 2001
Between
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH,
as Collateral Agent,
and
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH,
as Trustee.
TABLE OF CONTENT
Page
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TABLE OF CONTENT...........................................................ii
ARTICLE I......................................................................2
DEFINITIONS.................................................................2
ARTICLE II.....................................................................3
DECLARATION OF TRUST........................................................3
ARTICLE III....................................................................4
TRANSFER OF PROPERTY TO TRUST...............................................4
ARTICLE IV.....................................................................6
DUTIES OF THE TRUSTEE.......................................................6
ARTICLE V......................................................................7
CONCERNING THE TRUSTEE......................................................7
ARTICLE VI.....................................................................9
[RESERVED]..................................................................9
ARTICLE VII....................................................................9
TRANSFER OF THE AGENT'S INTEREST............................................9
ARTICLE VIII...................................................................9
PROCEDURE FOR ENFORCEMENT...................................................9
ARTICLE IX....................................................................11
PAYMENTS TO THE AGENT AND DISTRIBUTIONS....................................11
ARTICLE X.....................................................................11
COMPENSATION OF THE TRUSTEE................................................11
ARTICLE XI....................................................................12
REMOVAL, DISQUALIFICATION OR RESIGNATION OF THE TRUSTEE;
SUCCESSOR TRUSTEES.........................................................12
ARTICLE XII...................................................................13
TERMINATION AND DISCHARGE OF TRUST.........................................13
ARTICLE XIII..................................................................14
AMENDMENT OF TRUST AGREEMENT...............................................14
ARTICLE XIV...................................................................14
MISCELLANEOUS..............................................................14
SCHEDULE A....................................................................18
EXHIBIT A TRUST RECEIPT......................................................19
MASTER VESSEL AND COLLATERAL TRUST AGREEMENT
THIS MASTER VESSEL AND COLLATERAL TRUST AGREEMENT (this "Trust
Agreement") is made and entered into as of June __, 2001 between (A) Christiania
Bank og Kreditkasse ASA, New York Branch, a banking association organized and
existing under the laws of the Kingdom of Norway, as Collateral Agent (the
"Agent"), on behalf of itself, the other lenders (together with their successors
and assigns, the "Lenders") described in that certain Credit Agreement (as such
agreement may be amended, supplemented or otherwise modified from time to time,
the "Credit Agreement") dated as of June __, 2001 among the Agent, the Lenders
therein referenced, and General Maritime Corporation, a ▇▇▇▇▇▇▇▇ Islands
corporation (the "Borrower"), and the Other Creditors as defined in the Pledge
Agreement, and (B) Christiania Bank og Kreditkasse ASA, New York Branch, as
trustee (the "Trustee"). Capitalized terms used herein and not otherwise defined
herein shall have the same meanings ascribed to them as set forth in the Credit
Agreement.
W I T N E S S E T H :
WHEREAS,
(A) The terms of the Credit Agreement provide for Loans to be made
by the Lenders to the Borrower; and
(B) As a condition of the obligation of each Lender to make the
Loans, the Subsidiary Guarantors have entered or may enter into the Subsidiaries
Guaranty, the Pledge Agreement and certain other Credit Documents to secure (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
Subsidiary Guarantors and their respective subsidiaries under each Interest Rate
Protection Agreement and each Other Hedging Agreement (as defined below); and
(C) 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 Subsidiary
Guarantors 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 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) Pursuant to the Credit Agreement on the Initial Borrowing Date,
each Subsidiary Guarantor shall execute and deliver in favor of the Trustee,
solely for the benefit of the Secured Creditors, the Subsidiaries Guaranty
referred to in the Credit Agreement, a Mortgage (as defined below) on each of
the Mortgaged Vessels, and a related Assignment of Earnings and Assignment of
Insurances; and
(E) The Agent and the Lenders desire the Trustee to hold the
Mortgages and accept the said assignments of the said Security Documents
pursuant to the provisions of this Trust Agreement, and the Trustee is willing
to hold the Mortgages, and accept the said Security Documents in accordance with
the provisions hereof, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises, and subject
to the terms and conditions provided herein, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. For all purposes of this Trust Agreement, the
following terms shall have the meanings specified below and such meanings are
equally applicable both to the singular and plural forms of the terms defined
where appropriate:
(a) "ACTUAL KNOWLEDGE" shall mean actual knowledge of an officer of
Christiania Bank og Kreditkasse ASA, New York Branch who, in the normal
performance of his or her operational duties, would have knowledge of such
matters and the requirements with respect thereto.
(b) "ASSIGNMENT OF EARNINGS" shall mean each Assignment of Earnings
executed or to be executed by each Subsidiary Guarantor in favor of the Trustee
pursuant to the Credit Agreement.
(c) "ASSIGNMENT OF INSURANCES" shall mean each Assignment of
Insurances executed or to be executed by each Subsidiary Guarantor in favor of
the Trustee pursuant to the Credit Agreement.
(d) "CONCENTRATION ACCOUNTS" shall have the meaning set forth in the
Pledge Agreement.
(e) "ENFORCEMENT" shall mean the exercise of any remedy provided for
under any of the Mortgages, the Security Documents or otherwise available by
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applicable law upon the occurrence of an event of default under any of the
Mortgages or an Event of Default under the Credit Agreement.
(f) "MORTGAGE" shall mean any, and "MORTGAGES" shall mean all, the
various Liberian, ▇▇▇▇▇▇▇▇ Islands, Maltese and Norwegian Mortgages (and any
Deed of Covenants collateral thereto) executed or to be executed by a Subsidiary
Guarantor in favor of the Trustee relating to the respective Vessels.
(g) "OBLIGATIONS" shall have the meaning provided in Section 3.02 of
Article III hereof.
(h) "PLEDGE AGREEMENT" shall mean the Pledge and Security Agreement
dated the date hereof and made by each Subsidiary Guarantor and the Borrower to
the Collateral Agent, for the benefit of the Secured Creditors (as defined
therein).
(i) "REQUIRED SECURED CREDITORS" shall have the meaning provided in
the Pledge Agreement.
(j) "SUBSIDIARIES GUARANTY" shall have the meaning provided in
Section 5.07 of the Credit Agreement.
(k) "TRUST AGREEMENT" shall mean this Master Vessel and Collateral
Trust Agreement, as amended, supplemented or otherwise modified from time to
time, together with all Exhibits hereto.
(l) "TRUST ESTATE" shall mean, and consist of, (i) the Mortgages,
(ii) the Assignment of Earnings, (iii) the Assignments of Insurances, and (iv)
the Vessels, the Concentration Accounts, funds and other property which the
Trustee acquires in its capacity as Trustee or Mortgagee in connection with the
Mortgages, the Vessels or the Security Documents.
(m) "TRUST RECEIPT" shall mean a receipt, substantially in the form
of Exhibit A hereto, given by the Trustee to the Agent upon receipt of each of
the Mortgages.
(n) "TRUSTEE" shall have the meaning given that term in the
Preamble, and any successor Trustee.
(o) "VESSELS" and "VESSEL" shall mean each vessel on which a
Mortgage may be granted from time to time in favor of the Trustee pursuant to
the Credit Agreement or any other Credit Document, and more particularly
described in Schedule III attached to the Credit Agreement.
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ARTICLE II
DECLARATION OF TRUST
SECTION 2.01. The Trustee hereby declares that it will hold the
Trust Estate upon the trust hereinafter set forth, subject to, and upon the
terms and conditions of this Trust Agreement, for the sole use and benefit of
the Agent on behalf of the Lenders.
ARTICLE III
TRANSFER OF PROPERTY TO TRUST
SECTION 3.01. The Agent hereby authorizes the Trustee and the
Trustee hereby agrees to accept the Mortgages as a part of the Trust Estate. At
any time hereafter and from time to time, the Trustee shall execute or enter
into, as the case may be, as Trustee, any Mortgage upon written direction of the
Agent. The Trustee shall issue to the Agent a Trust Receipt for each Mortgage
upon the execution of such Mortgage.
SECTION 3.02. Upon satisfaction or discharge of certain obligations
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 any Credit Party 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 such Credit Party 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 such
Credit Party is a party (including, in the case of each Credit Party that
is a Subsidiary Guarantor, all such obligations, liabilities and
indebtedness of such Credit Party under the Subsidiaries Guaranty) and the
due performance and compliance by such Credit Party 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
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Rate Protection Agreements or Other Hedging Agreements, being herein
collectively called the "Credit Document Obligations");
(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
Credit Party 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 Credit Party to the Other Creditors (as defined
in the Pledge Agreement) under, or with respect to (including, in the case
of each Credit Party that is a Subsidiary Guarantor, all such obligations,
liabilities and indebtedness of such Credit Party 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 Credit Party 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 Collateral Agent, Trustee,
Pledgee or Mortgagee in order to preserve the Collateral or preserve its
security interest in the Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of such Credit
Party 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 Collateral, or of any exercise by the
Collateral Agent, Trustee, Pledgee or Mortgagee, as the case may be, of
its rights hereunder or under any other Security Document, together with
reasonable attorneys' fees and court costs; and
(v) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under any Credit
Documents;
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,
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the Agent shall so notify the Trustee. The Trustee shall advise the parties,
upon request of the Agent, whether or not there has been a satisfaction or
discharge of such Obligations, execute and deliver to the Agent, such
satisfaction or discharge of such Mortgage as the Agent may request. Upon
satisfaction or discharge of the Obligations, the Agent shall return the
respective Trust Receipt to the Trustee for cancellation and thereafter the
Trustee shall return the respective Mortgage to the Agent, at which time such
Mortgage shall be deemed withdrawn from the Trust Estate.
SECTION 3.03. The Agent shall deliver to the Trustee each year a
certificate setting forth the principal amount then outstanding under the
Mortgages.
SECTION 3.04. The Agent hereby authorizes the Trustee, and the
Trustee hereby agrees, to execute and deliver the Assignments of Earnings and
Assignments of Insurances and the Trustee agrees to hold and accept the same,
and all rights, interests, monies and things thereby acquired in connection
therewith, as a part of the Trust Estate.
SECTION 3.05. None of the terms and conditions of any Mortgage,
Assignment of Earnings or Assignment of Insurances, as the case may be, may be
approved, changed, waived, modified or varied in any manner whatsoever by the
Trustee except if the Trustee is instructed in writing by the Agent acting upon
instruction of the Required Secured Creditors; PROVIDED, that any change,
waiver, modification or variance affecting the rights and benefits of a single
Class (as defined below) of Secured Creditors (and not all Secured Creditors in
a like or similar manner) shall also require the written consent of the
Requisite Creditors (as defined below) of such affected Class. For the purpose
of this Trust Agreement, the term "Class" shall mean each class of Secured
Creditors, I.E., whether (i) the Lender Creditors as holders of the Credit
Document Obligations or (ii) the Other Creditors as the holders of the Other
Obligations. For the purpose of this Agreement, the term "Requisite Creditors"
of any Class shall mean each of (i) with respect to the Credit Document
Obligations, the Required Lenders and (ii) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Protection Agreements and the Other
Hedging Agreements.
SECTION 3.06. In the event that any part of the Trust Estate is sold
in connection with a sale permitted by the Credit Documents or is otherwise
released with the consent of the Agent, and the proceeds of such sale or sales
or from such release are applied in accordance with the provisions of the Pledge
Agreement or the Credit Agreement, to the extent required to be so applied, the
Trustee, at the request and expense of the respective Subsidiary Guarantor,
shall duly assign, transfer and deliver to such Subsidiary Guarantor (without
recourse and without
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representation or warranty) such of the Trust Estate (and releases therefor) as
is then being (or has been) so sold or released and has not therefore been
released pursuant to this Agreement and the applicable Credit Document.
ARTICLE IV
DUTIES OF THE TRUSTEE
SECTION 4.01. The Trustee shall take such action with respect to any
event of default under the Mortgages or Event of Default under the Credit
Agreement as shall be specified by the Agent (acting upon the written
instructions of the Required Secured Creditors), but the Trustee shall not be
required to take any action not expressly set forth in such written
instructions. If the approval of any governmental agency or body is required in
order to carry out the instructions of the Agent, the Trustee shall not be
required to carry out such instructions unless such approval shall have been
obtained.
SECTION 4.02. The Trustee shall not have any duty or obligation to
manage, operate, control, use, sell, make investments in respect of, dispose of
or otherwise deal with the Vessels, the Subsidiaries Guaranty, the Concentration
Accounts or any other part of the Trust Estate or to otherwise take or refrain
from taking any action under, or in connection with the Mortgages, or any of the
other Credit Documents, except as expressly provided by the terms of this Trust
Agreement or as expressly provided in written instructions received from the
Agent. Except for the accounting for monies or things actually received by it as
Trustee hereunder the Trustee shall have no duties as to any monies, instruments
or securities standing to the credit of the Concentration Accounts. The Trustee
shall not be obligated or required, and this Trust Agreement shall not be
construed so as to obligate or require the Trustee, to expend or risk its own
funds or incur any financial responsibility in the performance of any of its
duties under this Trust Agreement, to file any reports or other matters with any
governmental authority relating to the matters hereof other than those required
to be filed by the Trustee as a depository institution, or to follow any written
instructions received from any Lender or any Person other than the Agent.
SECTION 4.03. In the event the Trustee shall be unable to act as
trustee under any applicable governmental rule or regulation, the sole
obligation of the Trustee hereunder shall be to advise the Agent promptly of any
such fact of which it has Actual Knowledge and to resign under this Trust
Agreement, if requested by the Agent. The Trustee shall have no liability to the
Agent, the Lenders, the Borrower, the Subsidiary Guarantors, any of the their
Subsidiaries, or any other Person by reason of its failure to be or remain
qualified to act under applicable law as trustee, except that the Trustee agrees
to pay its own costs and expenses,
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including, without limitation, legal counsel fees and expenses, in connection
with any resignation under this Section 4.03.
SECTION 4.04. The Trustee shall furnish promptly to the Agent each
communication received by it or a copy thereof relating to the Mortgages, or any
of the other Security Documents, but shall have no duty to act upon or reply to
any such communication in the absence of written instructions from the Agent.
SECTION 4.05. The Trustee shall keep custody of any cover notes,
insurance policies, brokers' opinion letters, or other documents delivered to it
from time to time as may be required by the Mortgages and shall promptly give
copies thereof to the Agent. The Trustee shall have no duty to advise the Agent
or the Lenders of its failure to receive in timely fashion any such insurance
document and the responsibility of determining if any insurance document does
not comply with the requirements of the Mortgages shall be solely that of the
Agent.
ARTICLE V
CONCERNING THE TRUSTEE
SECTION 5.01. The Trustee accepts the trust hereby created and
agrees to perform such trust but only upon the terms of this Trust Agreement.
The Trustee shall not be answerable or accountable to the Agent, the Lenders or
any other Person under any circumstances, except for its own willful misconduct
or gross negligence (as determined by a court of competent jurisdiction in a
final and non-appealable decision).
SECTION 5.02. Except in accordance with written instructions
furnished pursuant to Section 4.01 hereof, and without limiting the generality
of Section 4.02 hereof, the Trustee shall have no duty (a) to record, file or
deposit the Mortgages or any amendments thereto, (b) to effect or maintain any
insurance on the Vessels, (c) to pay or discharge any tax, assessment or other
governmental charge or any Lien or encumbrance of any kind owing with respect
to, assessed or levied against, any part of the Trust Estate, (d) to confirm or
verify any notices or reports of the Borrower or any of the Borrower's
Subsidiaries other than to furnish the Agent with a copy of each notice or
report furnished the Trustee by the Borrower or any of the Borrower's
Subsidiaries pursuant to the Mortgages or (e) to inspect the Vessels at any time
or ascertain or inquire as to the performance or observance of the Borrower or
any of the Borrower's Subsidiaries' covenants under the Mortgages, or any other
Security Documents or whether any default shall have occurred thereunder.
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SECTION 5.03. THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO:
(a) THE VALIDITY, LEGALITY, ENFORCEABILITY OR PRIORITY OF ANY OF THE MORTGAGES
OR ANY OTHER CREDIT DOCUMENT OR AS TO THE CORRECTNESS OF ANY STATEMENT CONTAINED
IN ANY THEREOF, OR AS TO ITS TITLE THERETO; (b) THE TITLE, DOCUMENTATION,
SEAWORTHINESS, VALUE, CONDITION OR FITNESS FOR USE OF THE VESSELS, OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT THERETO; OR (c) THE VALIDITY, LEGALITY
OR ENFORCEABILITY OF THIS TRUST AGREEMENT OR ANY DOCUMENT HEREBY CONTEMPLATED,
except that the Trustee represents and warrants that this Trust Agreement and
any other instrument executed by the Trustee have been or will be executed by an
officer duly authorized to execute them on its behalf.
SECTION 5.04. No monies received by the Trustee hereunder need be
segregated in any manner except to the extent required hereunder or by law and
the Trustee shall not be liable for any interest thereon.
SECTION 5.05. The Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed by
it in good faith to be genuine and believed by it in good faith to be signed by
the proper party or parties. The Trustee may accept a copy of a resolution of
the board of directors of any corporate party, certified by the secretary, an
assistant secretary or any other officer of said party, as duly adopted and in
full force and effect, as conclusive evidence that such resolution has been
adopted by said board and is in full force and effect. As to any fact or matter,
the manner of ascertainment of which is not specifically described herein, the
Trustee may for all purposes hereof rely in good faith on a certificate, signed
by or on behalf of the party executing such certificate, as to such fact or
matter, and such certificate shall constitute full protection to the Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereof.
In the administration of the Trust Estate, the Trustee may perform its powers
and duties hereunder directly or through other agents or attorneys and may, at
the cost and expense of the Agent, seek advice of counsel (including counsel for
the Agent, the Borrower or the Borrower's Subsidiaries), accountants and other
skilled persons to be selected and employed by it, and the Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the actions, advice or opinion of any such counsel, agents, accountants or
other skilled persons.
SECTION 5.06. In accepting the trust hereby created, the Trustee
acts solely as trustee hereunder and not in its individual capacity, and the
Trustee shall have no liability hereunder or under the Mortgages or any of the
other Credit Documents, except as expressly set forth herein or therein.
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SECTION 5.07. The Trustee shall be entitled to receive reasonable
compensation from the Agent for its services hereunder, as provided in Section
10.01 below. Pursuant to Section 13.01 of the Credit Agreement, the Borrower has
agreed to pay such compensation as therein provided.
ARTICLE VI
[RESERVED]
ARTICLE VII
TRANSFER OF THE AGENT'S INTEREST
SECTION 7.01. None of the Agent nor the Secured Creditors shall
assign, convey or otherwise transfer any of its right, title or interest in and
to this Trust Agreement, the Trust Estate or any part thereof except (i) with
respect to the Agent and the Secured Creditors in compliance with the Credit
Agreement and the other Credit Documents, as the case may be, or (ii) with the
prior written consent of the Trustee. In connection with any conveyance or
transfer described above, the Trustee shall execute and deliver such instruments
or do such acts as the Agent may require, at the cost and expense of the Agent,
in order to consummate such assignment, conveyance or transfer.
ARTICLE VIII
PROCEDURE FOR ENFORCEMENT
SECTION 8.01. Upon receipt of a notice and instructions provided for
in Section 4.01 hereof, the Trustee shall proceed to exercise such rights and
remedies available to it under the Mortgages, and the other Credit Documents as
the Agent (acting upon the written instructions of the Required Secured
Creditors) shall, from time to time, instruct it to exercise.
SECTION 8.02. If so instructed by the Agent (acting upon the written
instructions of the Required Secured Creditors), the Trustee shall, in
connection with any enforcement, employ attorneys, experts, consultants,
managers, security guards, surveyors, insurance brokers, inspectors or any other
persons or entities deemed desirable by the Agent.
SECTION 8.03. If so instructed by the Agent (acting upon the written
instructions of the Required Secured Creditors), the Trustee shall file such
suits or
10
actions or bring such proceedings before any court or agency in connection with
the enforcement of the Mortgages and the other Credit Documents in its own name
in its capacity as Trustee, or shall join in any such suits, actions or
proceedings as co-plaintiff with the Agent, the Lenders, as the case may be, as
the Agent deems necessary or desirable. The conduct of such suits, actions or
proceedings shall be in accordance with instructions from the Agent.
SECTION 8.04. If so instructed by the Agent (acting upon the written
instructions of the Required Secured Creditors), the Trustee shall, in
connection with any Enforcement, provided the same be lawful, do any or all of
the following:
(a) Operate the Vessels under the Mortgages;
(b) Conduct a private sale of any Vessel or other collateral covered
by the Mortgages and execute and deliver an appropriate ▇▇▇▇ of sale
transferring title to such Vessel to a purchaser thereof at such a private
sale;
(c) Bid upon or purchase a Vessel at any judicial sale or other
auction, provided that the Secured Creditors shall have made funds
available in advance to the Trustee for this purpose; and
(d) Operate a Vessel acquired by it as a result of an enforcement.
SECTION 8.05. Upon the acquisition of title to a Vessel, as
contemplated by Section 8.04 above, the Trustee shall have no obligation to
protect, conserve or deal with the Vessel, except as so specifically instructed
by the Agent (acting upon the written instructions of the Required Secured
Creditors) in writing.
ARTICLE IX
PAYMENTS TO THE AGENT AND DISTRIBUTIONS
SECTION 9.01. The Trustee shall pay, pursuant to Section 9.02
hereof, to the Agent promptly upon receipt thereof, all sums collected by it
under the Mortgages and the other Credit Documents. Such payments shall be made
in immediately available funds to such place as the Agent from time to time may
direct the Trustee.
SECTION 9.02. Save as expressly stated to the contrary in any of the
Credit Documents to which the Trustee is a party or in any written instructions
to the Trustee from the Agent (acting upon the written instructions of the
Required Secured Creditors), to the extent that the Trustee receives or recovers
monies pursuant to the Credit Documents to be applied in discharge of the
Obligations,
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such monies (after deduction of the costs, expenses and fees of the Trustee or
any receiver, attorney, agent, delegate or other Person appointed by the
Trustee) shall be paid by the Trustee to the Agent for application by the Agent
in accordance with the provisions of Section 9 of the Pledge Agreement.
SECTION 9.03. The Trustee shall not be required to segregate its
collections or sums received in payment from its other funds, except as
otherwise by law required or required hereunder, but shall, upon request of the
Agent furnish to the Agent, a statement and accounting of any monies, or funds
or other things of value (other than the Mortgages and the other Credit
Documents held by it as Trustee for the benefit of the Agent). The form of such
report shall be as mutually agreed by the Trustee and the Agent.
ARTICLE X
COMPENSATION OF THE TRUSTEE
SECTION 10.01. The Trustee shall receive as compensation for its
services hereunder such fees as may from time to time be agreed upon between the
Borrower and the Trustee. Pursuant to Section 13.01 of the Credit Agreement, the
Borrower has agreed to pay such fees of the Trustee together with expenses as
therein provided.
SECTION 10.02. The compensation provided for in Section 10.01 above
shall be in addition to those costs, expenses and liabilities for which the
Trustee is entitled to be reimbursed or indemnified pursuant to the Credit
Documents.
ARTICLE XI
REMOVAL, DISQUALIFICATION OR RESIGNATION OF
THE TRUSTEE; SUCCESSOR TRUSTEES
SECTION 11.01. (a) In its discretion, the Agent may remove the
Trustee at any time, without cause, by directing a written notice to the Trustee
of such removal. No removal shall be effective unless a qualified successor
trustee, described in Section 11.02(e) below, shall have been appointed on or
prior to the effective date of such removal in accordance with the provisions of
this Trust Agreement.
(b) The Trustee may resign at any time without cause by giving at
least thirty (30) days' prior written notice to the Agent, such resignation to
be effective, subject to the provisions of the last sentence of this paragraph,
on the date
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specified in such notice. If the Agent shall not have appointed a successor
trustee within thirty (30) days after such notice of resignation, the Trustee
may apply to any court of competent jurisdiction to appoint a qualified
successor trustee to act until such time, if any, as a successor trustee shall
have been appointed by the Agent. Any successor trustee so appointed by such
court shall immediately and without further act be superseded by any successor
trustee appointed by the Agent. In any event, however, no resignation shall be
effective until a qualified trustee shall have been appointed by the Agent or a
court of competent jurisdiction.
SECTION 11.02. (a) A successor trustee shall be appointed by an
instrument in writing which shall state the effective date said successor
trustee shall become the Trustee hereunder, which document shall contain the
executed acknowledgment of acceptance by the successor trustee of this Trust
Agreement, the Trust Estate and the duties of the Trustee as herein provided.
The Trustee, the successor trustee and the Agent shall execute, acknowledge and
deliver such assignments as may be required, in recordable form, and a
sufficient number of counterparts, whereby the successor trustee becomes vested
with all of the estates, properties, rights, remedies and trusts of its
predecessor to the trust hereunder and such instruments shall be duly recorded
forthwith in accordance with the laws or statutes governing the Mortgages or the
other Credit Documents, as the case may be. The Trustee shall duly assign,
transfer, deliver and pay over to any successor trustee any monies and other
property or things of value subject to the trust hereunder and held by the
Trustee. Should any act or further instrument from the Trustee, the Secured
Creditors or the Agent be required by any successor trustee for more fully and
certainly vesting in and confirming to such successor trustee such estates,
properties, rights, remedies and trusts, then on request any and all such acts
and instruments shall be done, made, executed, acknowledged and delivered by the
Agent, such Secured Creditor(s) and the Trustee.
(b) The Agent shall pay or cause to be paid all recording fees,
transfer taxes, court costs, if applicable, and all other costs arising out of
the transfer of the Trust Estate from the Trustee to a successor trustee.
(c) Upon the removal or resignation of the Trustee, the Trustee's
compensation shall cease as of the effective date thereof, but its rights of
indemnification shall survive such removal or resignation. Within thirty (30)
days following the effective date of such removal or resignation, the Trustee
shall furnish to the Agent a complete accounting of the Trust Estate and its
compensation, costs and expenses as of the date of removal or resignation.
(d) Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation to which substantially all the business of the Trustee
may be
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transferred, shall be the Trustee under this Trust Agreement without any further
act, provided the successor corporation remains qualified as an approved
trustee.
(e) Any successor to the Trustee, however appointed, shall be a bank
or trust company organized under the laws of the United States or any
jurisdiction thereof having a combined capital and surplus of at least Fifty
Million Dollars ($50,000,000), if there be such an institution willing, able and
legally qualified to perform the duties of the Trustee hereunder upon reasonable
or customary terms.
SECTION 11.03. If at any time: (a) events occur which will or could,
in the opinion of the Agent or the Trustee, result in the disqualification of
the Trustee; or (b) the Trustee becomes disqualified, the Trustee or the Agent,
or both of them, may petition the United States District Court for the Southern
District of New York for instructions to the Trustee in order that the trust may
be preserved to prevent the Agent, the Secured Creditors or the Trustee from
falling into violation of law. To the extent that such may be required or
necessary, the parties hereto agree that said court has jurisdiction for this
purpose; however, if in the interest of justice, the said court determines to
transfer the matter to any other United States Court, the parties hereby agree
to the jurisdiction of such transferee court. Any such petition shall be served
upon the other party hereto. The Trustee, the Agent and any successor trustee
hereby agree to abide by the instructions of the court and to do all acts,
execute such agreements and instruments as may be required in connection
therewith and all other instruments and/or documents necessary to preserve the
Trust Estate for the benefit of the Agent on behalf of the Secured Creditors
under the terms hereunder.
ARTICLE XII
TERMINATION AND DISCHARGE OF TRUST
SECTION 12.01. This trust is hereby declared to be irrevocable
except that this trust may be terminated by notice given by the Agent (acting
upon the written instructions of the Required Secured Creditors) to the Trustee
at any time that there is no Mortgage held or to be held as a part of the Trust
Estate and termination of the trust would not create an interest in a Vessel on
the part of the Agent and the Secured Creditors that would be contrary to
applicable law, or otherwise cause the Agent or the Secured Creditors to be in
violation of any applicable law and no Obligations to the Agent and the Secured
Creditors under the Credit Documents remain and no Commitment is still
outstanding. Within thirty (30) days following the date of such notice, the
Trustee shall furnish to the Agent a complete accounting of the Trust Estate and
its compensation, costs and expenses. This trust shall terminate, cease and
determine upon: (i) the assignment, conveyance and transfer by the Trustee to
the Agent of any property
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then comprising the Trust Estate and (ii) the acceptance of such accounting of
the Trustee by the Agent (acting upon the written approval of the Required
Secured Creditors).
ARTICLE XIII
AMENDMENT OF TRUST AGREEMENT
SECTION 13.01. No term or provision of this Trust Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the Agent (acting upon the written instructions of the
Required Secured Creditors) and the Trustee; and any waiver of the terms hereof
shall be effective only in the specific instance and for the specific purpose
given; provided, however, because of the irrevocable nature of this trust and
the reasons for which it is created the trust may not be amended in any way that
may vest or revest in the Agent or the Secured Creditors any interest in the
Vessels contrary to applicable law.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01. The headings of the various articles are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 14.02. Any assignment, sale, transfer or other conveyance by
the Trustee of the interest of the Trustee in the Mortgages, the Vessels, the
Concentration Accounts, the Assignments of Earnings, the Assignments of
Insurances or any part of the Trust Estate made pursuant to this Trust Agreement
shall bind the Agent and the Secured Creditors and shall be effective to
transfer or convey all right, title and interest of the Trustee, the Agent and
the Secured Creditors therein. No purchaser or other grantee shall be required
to inquire as to the authorization, necessity, expediency or regularity of such
assignment, sale, transfer or conveyance or as to the application of any sale or
other proceeds with respect thereto by the Trustee.
SECTION 14.03. Unless otherwise expressly specified or permitted by
the terms hereof, all notices shall be in writing, delivered or mailed by first
class mail, postage prepaid, (i) if to the Trustee, addressed to the Trustee at
its offices at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and (ii) if to the
Agent, addressed to it as provided in Section 13.03 of the Credit Agreement, or
such other address as the Trustee or the Agent may designate by notice to the
other parties. All notices
15
given pursuant to this Section 14.03 shall be effective upon receipt. All
notices required to be delivered by the Trustee under this Trust Agreement shall
be delivered promptly by the Trustee.
SECTION 14.04. Any provision of this Trust Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 14.05. This Trust Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
SECTION 14.06. All covenants and agreements contained herein shall
be binding upon, and inure to the benefit of, the Trustee, and its successors
and assigns, the Agent, and its successors and assigns, and the Secured
Creditors, and their respective successors and assigns. Any request, notice,
direction, consent, waiver or other instrument or action by the Agent shall bind
its successors and assigns and the Secured Creditors, and their respective
successors and assigns.
SECTION 14.07. Nothing expressed or implied herein is intended or
shall be construed to confer upon or give to any Person, other than the parties
hereto, their successors or assigns, any right, remedy or claim under or by
reason of this Trust Agreement or of any term, covenant or condition hereof, and
all of the terms, covenants, conditions, promises and agreements contained
herein shall be for the sole and exclusive benefit of the parties hereto and
their successors and assigns.
SECTION 14.08. THIS TRUST AGREEMENT 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).
SECTION 14.09. No provision of this Trust Agreement or any action
taken pursuant hereto shall be considered to be a waiver of the preferred status
of any preferred ship mortgage transferred to the Trustee hereunder or in
derogation of any of the benefits, privileges, rights or remedies provided for
by the applicable law or the Mortgages or any other Credit Document.
SECTION 14.10. This Trust Agreement has been delivered in New York,
New York.
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IN WITNESS WHEREOF, the parties hereto, have caused this Trust
Agreement to be duly executed and delivered in New York, New York by their
respective officers thereunto duly authorized on the day and year first above
written.
CHRISTIANIA BANK OG
KREDITKASSE ASA,
NEW YORK BRANCH,
as Security Agent for the Secured
Creditors heretofore mentioned,
By______________________________________
Name:
Title:
By______________________________________
Name:
Title:
CHRISTIANIA BANK OG
KREDITKASSE ASA,
NEW YORK BRANCH,
as Trustee,
By______________________________________
Name:
Title:
By______________________________________
Name:
Title:
18
SCHEDULE A
19
EXHIBIT A
TRUST RECEIPT
Date: _______________________ Number: _________________
To: Christiania Bank og Kreditkasse ASA, New York Branch,
as Collateral Agent for the Secured Creditors
From: Christiania Bank og Kreditkasse ASA, New York Branch,
not in its individual capacity, but solely as Trustee
The Trustee hereby acknowledges the delivery to the Trustee, as
trustee under the Master Vessel Trust Agreement dated as of June __, 2001 with
you (the "Trust Agreement"), of the First Preferred Mortgage covering the
[Maltese] [Norwegian] [Liberian] [▇▇▇▇▇▇▇▇ Islands] flag vessel [VESSEL] entered
into by [SHIPOWNER] in favor of the Trustee for your benefit on behalf of the
Lenders (the "Mortgage") and more particularly described in the Schedule hereto
made a part hereof.
Terms used herein are used as defined in the Trust Agreement.
CHRISTIANIA BANK OG
KREDITKASSE ASA,
NEW YORK BRANCH
not in its individual
capacity, but solely as Trustee,
By _____________________________________
Name:
Title:
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