DATED 2nd October 2006 TEEKAY OFFSHORE OPERATING L.P. (as Borrower) - and - DNB NOR BANK ASA NORDEA BANK NORGE ASA FORTIS CAPITAL CORP. and others (as Lenders) - and - DNB NOR BANK ASA (as Agent) - and - DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT (as...
CONFORMED
COPY
DATED
2nd
October 2006
TEEKAY
OFFSHORE OPERATING L.P.
(as
Borrower)
-
and -
DNB
NOR BANK ASA
NORDEA
BANK NORGE ASA
FORTIS
CAPITAL CORP.
and
others
(as
Lenders)
-
and -
DNB
NOR BANK ASA
(as
Agent)
-
and -
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
(as
Security Agent)
-
and -
DNB
NOR BANK ASA
NORDEA
BANK NORGE ASA
FORTIS
CAPITAL CORP.
(as
Mandated Lead Arrangers)
-
and -
DNB
NOR BANK ASA
NORDEA
BANK NORGE ASA
(as
Bookrunners)
___________________________________
US$940,000,000
SECURED
___________________________________
XXXXXXXXXX
XXXXXXX
Xxx
Xx. Xxxx'x Xxxxxxxxxx
Xxxxxx
XX0X 0XX
Tel:
000 0000 0000
Fax:
000 0000 0000
Ref:
819/1138
\P1\3549672.7
1
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CONTENTS
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Page
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1
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Definitions
and Interpretationβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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2
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The
Loan
and its Purposesβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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21
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3
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Conditions
of Utilisationβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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21
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4
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Advanceβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦...
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26
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5
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Repaymentβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦...
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26
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6
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Prepaymentβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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26
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7
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Interestβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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28
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8
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Indemnitiesβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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30
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9
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Feesβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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34
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10
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Security
and Application of Moneysβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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35
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11
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Representations
and Warrantiesβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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36
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12
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Undertakings
and Covenantsβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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41
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13
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Events
of Defaultβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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47
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14
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Assignment
and Sub-Participationβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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53
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15
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The
Agent, the Security Agent and the Lendersβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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56
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16
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Set-Offβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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65
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17
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Paymentsβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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65
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18
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Noticesβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦
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67
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19
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Partial
Invalidityβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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70
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20
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Remedies
and Waiversβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦
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70
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\P1\3549672.7
2
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21
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Miscellaneousβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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70
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22
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Law
and Jurisdictionβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦...
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71
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SCHEDULE
1: The Lenders and the Commitmentsβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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73
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SCHEDULE
2: Conditions Precedent and Subsequentβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦
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74
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Part
I: Conditions precedent to the First Drawdown Dateβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦
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74
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Part
II: Conditions subsequent to the First Drawdown Dateβ¦β¦β¦β¦β¦β¦β¦β¦β¦
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77
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Part
III: Conditions precedent to the Step-up Dateβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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78
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Part
IV: Conditions subsequent to the Step-up Dateβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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80
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SCHEDULE
3: Calculation of Mandatory Costβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦...
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81
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SCHEDULE
4: Form of Drawdown Noticeβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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83
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SCHEDULE
5: Form of Transfer Certificateβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦
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84
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SCHEDULE
6: Form of Compliance Certificateβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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87
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SCHEDULE
7: The Vesselsβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..
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88
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Part
I: The Initial Vesselsβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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88
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Part
II: The Step-up Vesselsβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.
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89
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SCHEDULE
8: Reductionsβ¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦...
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90
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\P1\3549672.7
3
Dated: 2nd
October 2006
BETWEEN:
|
(1)
|
TEEKAY
OFFSHORE OPERATING L.P.,
a
limited partnership formed and existing under the laws of the Republic
of
the Xxxxxxxx Islands whose registered office is at The Trust Company
Complex, Ajeltake Island, PO Box 1405 Majuro, The Xxxxxxxx Xxxxxxx,
XX00000 (the "Borrower");
and
|
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(2)
|
the
banks listed in Schedule 1, each acting through its office at the
address
indicated against its name in Schedule 1 (together the "Lenders"
and each a "Lender");
and
|
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(3)
|
DNB
NOR BANK ASA,
acting as agent (in that capacity the "Agent");
|
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(4)
|
DNB
NOR BANK ASA, NORDEA BANK NORGE ASA, New York Branch and
FORTIS CAPITAL CORP. acting
as mandated lead arrangers (in that capacity each an "MLA"
and together the "MLAs");
|
|
(5)
|
DNB
NOR BANK ASA
and NORDEA
BANK NORGE ASA,
New
York Branch
acting as bookrunners (in that capacity each a "Bookrunner"
and together the "Bookrunners");
and
|
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(6)
|
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
acting as security agent (in that capacity the "Security
Agent").
|
Each
of
the Lenders has agreed to advance to the Borrower its Commitment (aggregating,
with all the other Commitments,
a
revolving credit facility of up to nine hundred and forty million Dollars
$940,000,000) for
the
general corporate purposes of the Borrower (including but not limited to
the
making of intercompany loans to its shareholders and/or unitholders and
Subsidiaries).
IT
IS AGREED
as
follows:
|
1.1
|
In
this Agreement:
|
\P1\3549672.7
4
"Administration"
has
the
meaning given to it in paragraph 1.1.3 of the ISM Code.
"Affiliate"
means,
in relation to any entity, a Subsidiary of that entity, a Holding Company of
that entity or any other Subsidiary of that Holding Company.
"Approved
Brokers"
means
X. Xxxxxxxx & Co. Ltd, Xxxxxxx Xxxxxx & Xxxxx Shipbrokers Ltd, Fearnley
AS, X.X. Xxxxxx AS and X.X. Xxxxxx AS.
"Assignments"
means
the deeds of assignment of Insurances, Earnings and Requisition Compensation,
the Charter Rights (if applicable) and of the benefit of any relevant
Charterer's Assignment, in respect of each of the Vessels referred to in Clause
10.1.2 (each an "Assignment").
"Authorisation" means
an
authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration.
"Bareboat
Charters"
means
the bareboat charters identified in Schedule 7 for certain of the Vessels
only on the terms and subject to the conditions of which the relevant Charterer
will bareboat charter its Vessel to the Bareboat Charterer.
"Bareboat
Charterer"
means
in respect of certain Vessels either (i) FIC and Transpetro or (ii) Petrojarl
Production as identified against the names of the relevant Vessels in Schedule
7.
"Borrower's
Accounts"
means
the consolidated financial accounts of the Borrower to be provided to the Agent
pursuant to Clause 12.1.
"Break
Costs"
means
all sums payable by the Borrower from time to time under Clause
8.3.
"Business
Day"
means a
day on which banks are open for business of a nature contemplated by this
Agreement (and not authorised by law to close) in New York, London and any
other
financial centre which the Agent may reasonably consider appropriate for the
operation of the provisions of this Agreement.
"Charter
Rights"
in
relation to a Vessel means all rights and benefits accruing to the Charterer
of
that Vessel under or pursuant to the relevant Bareboat Charter and not forming
part of the Earnings.
\P1\3549672.7
5
"Charterer"
in
respect of certain Vessels only means either UNS or TKN as identified against
the names of the relevant Vessels in Schedule 7.
"Charterer's
Assignments"
means,
in respect of NORDIC STAVANGER, NORDIC BRASILIA and NORDIC SPIRIT only,
assignments by the relevant Charterer to the Owner of the Earnings and Charter
Rights.
"Commitment"
means,
in relation to a Lender, the aggregate amount of the
Loan
which
that
Lender agrees to advance to the Borrower as its several liability as indicated
against the name of that Lender in Schedule 1 and/or, where the context permits,
the amount of
the
Loan advanced
by that Lender and remaining outstanding and "Commitments"
means
more than one of them.
"Commitment
Commission"
means
the commitment commission to be paid by the Borrower to the Agent on behalf
of
the Lenders pursuant to Clause 9.1.
"Commitment
Termination Date"
means
the date being one (1) month before the Maturity Date or such later date as
the
Lenders may in their discretion agree.
"Completion
of Syndication"
means
that the Commitments have been fully syndicated in a manner acceptable to the
MLAs, as conclusively certified in writing by the Agent.
"Compliance
Certificate"
means a
certificate substantially in the form set out in Schedule 6.
"Currency
of Account"
means,
in relation to any payment to be made to a Finance Party under a Finance
Document, the currency in which that payment is required to be made by the
terms
of that Finance Document.
"Deeds
of Covenants"
means
the deeds of covenants referred to in Clause 10.1.1. (each a "Deed
of Covenant").
"Default"
means
an Event of Default or any event or circumstance specified in Clause 13.1 which
would (with the expiry of a grace period, the giving of notice, the making
of
any determination under the Finance Documents or any combination of any of
the
foregoing) be an Event of Default.
\P1\3549672.7
6
"DOC"
means,
in relation to the ISM Company, a valid Document of Compliance issued for the
ISM Company by the Administration under paragraph 13.2 of the ISM
Code.
"Dollars",
"US$"
and
"$"
each
means available and freely transferable and convertible funds in lawful currency
of the United States of America.
"Drawdown
Date"
means
the date on which
a
Drawing
is
advanced under Clause 4.
"Drawdown
Notice"
means a
notice substantially in the form set out in Schedule 4.
"Drawing"
means
any one amount advanced or to be advanced pursuant to a Drawdown Notice or,
where the context permits, the amount advanced and for the time being
outstanding and "Drawings"
means
more than one of them.
"Earnings"
in
relation to a Vessel means all hires, freights, pool income and other sums
payable to or for the account of the Owner or the relevant Charterer in respect
of that Vessel including (without limitation) all 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 that Vessel.
"Encumbrance"
means a
mortgage, charge, assignment, pledge, lien, or other security interest securing
any obligation of any person or any other agreement or arrangement having a
similar effect.
"Environmental
Affiliate"
means
an agent or employee of the Owner or a person in a contractual relationship
with
the Owner in respect of the Vessel owned by it (including without limitation,
the operation of or the carriage of cargo of such Vessel).
"Environmental
Approvals"
means
any present or future permit, licence, approval, ruling, variance, exemption
or
other authorisation required under the applicable Environmental
Laws.
\P1\3549672.7
7
"Environmental
Claim"
means
any and all enforcement, clean-up, removal, administrative, governmental,
regulatory or judicial actions, orders, demands or investigations instituted
or
completed pursuant to any Environmental Laws or Environmental Approvals together
with any claims made by any third person relating to damage, contribution,
loss
or injury resulting from any Environmental Incident.
"Environmental
Incident"
means:
|
(a)
|
any
release of Environmentally Sensitive Material from a Vessel;
or
|
|
(b)
|
any
incident in which Environmentally Sensitive Material is released
from a
vessel other than a Vessel and which involves a collision between
a Vessel
and such other vessel or some other incident of navigation or operation,
in either case, in connection with which the relevant Vessel is actually
or potentially liable to be arrested, attached, detained or injuncted
and/or where any guarantor, any manager (or any sub-manager of such
Vessel) or any of its officers, employees or other persons retained
or
instructed by it (or such sub-manager) are at fault or allegedly
at fault
or otherwise liable to any legal or administrative action;
or
|
|
(c)
|
any
other incident in which Environmentally Sensitive Material is released
otherwise than from such Vessel and in connection with which that
Vessel
is actually or potentially liable to be arrested and/or where any
guarantor, any manager (or any sub-manager of the relevant Vessel)
or any
of its officers, employees or other persons retained or instructed
by it
(or such sub-manager) are at fault or allegedly at fault or otherwise
liable to any legal or administrative
action.
|
"Environmental
Laws"
means
all present and future laws, regulations, treaties and conventions of any
applicable jurisdiction which:
|
(a)
|
have
as a purpose or effect the protection of, and/or prevention of harm
or
damage to, the environment;
|
|
(b)
|
relate
to the carriage of Environmentally Sensitive Material or to actual
or
threatened releases of Environmentally Sensitive
Material;
|
\P1\3549672.7
8
|
(c)
|
provide
remedies or compensation for harm or damage to the environment;
or
|
|
(d)
|
relate
to Environmentally Sensitive Materials or health or safety
matters.
|
"Environmentally
Sensitive Material"
means
(i) oil and oil products and (ii) any other waste, pollutant, contaminant or
other substance (including any liquid, solid, gas, ion, living organism or
noise) that may be harmful to human health or other life or the environment
or a
nuisance to any person or that may make the enjoyment, ownership or other
territorial control of any affected land, property or waters more costly for
such person to a material degree.
|
"Event
of Default"
means any of the events or circumstances set out in
Clause 13.1.
|
"Execution
Date"
means
the date on which this Agreement is executed by each of the parties
hereto.
"Facility"
means
the reducing revolving credit facility made available by the Lenders to the
Borrower pursuant to this Agreement.
"Facility
Outstandings"
means
the total of all Drawings made at that time, to the extent not reduced by
repayments, prepayments and voluntary reductions.
"Facility
Period"
means
the period beginning on the date of this Agreement and ending on the date when
the whole of the Indebtedness has been repaid in full and the Security Parties
have ceased to be under any further actual or contingent liability to the
Finance Parties under or in connection with the Finance Documents.
"Fee
Letter"
means
the letters dated 30 August 2006 between the Borrower and the Agent and/or
the
Bookrunners and/or the MLAs as applicable setting out any of the fees referred
to in Clause 9.
"FIC"
means
Fronape International Company of X.X. Xxx 000, Xxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxx
Xxxxxxx.
\P1\3549672.7
9
"Finance
Documents"
means
this Agreement, the Security Documents, any Fee Letter and any other document
designated as such by the Agent and the Borrower and "Finance
Document"
means
any one of them.
"Finance
Parties"
means
the Agent, the Security Agent, the MLAs, the Bookrunners and the Lenders and
"Finance
Party"
means
any one of them.
"First
Drawdown Date"
means
the date on which the first Drawing is advanced under Clause 4.
"Free
Liquidity"
means
cash, cash equivalents and marketable securities of maturities less than one
(1)
year to which the Group shall have free, immediate and direct access each as
reflected in the Borrower's most recent quarterly management accounts forming
part of the Borrower's Accounts.
"GAAP"
means
generally accepted accounting principles in the United States of
America.
"Group"
means
the Borrower and each of its Subsidiaries.
"Guarantee"
means
the guarantee and indemnity referred to in Clause 10.1.3.
"Guarantor"
means
the Owner and/or (where the context permits) any other person who shall at
any
time during the Facility Period give to the Lenders or to the Security Agent
on
their behalf a guarantee and/or indemnity for the repayment of all or part
of
the Indebtedness.
"Head
Charter",
in
respect of NORDIC STAVANGER, NORDIC BRASILIA and NORDIC SPIRIT only, means
the
charter between the Owner and the relevant Charterer.
"Holding
Company"
means,
in relation to any entity, any other entity in respect of which it is a
Subsidiary.
"Indebtedness"
means
the aggregate from time to time of: the amount of the Loan
outstanding; all accrued and unpaid interest on the Loan;
and all
other sums of any nature (together with all accrued and unpaid interest on
any
of those sums) which from time to time may be payable by the Borrower to any
of
the Finance Parties under all or any of the Finance Documents.
\P1\3549672.7
10
"Initial
Vessels"
means
the Vessels listed in Schedule 7 Part 1 and everything now or in the future
belonging to them on board and ashore (each an "Initial
Vessel").
"Insurances"
in
relation to a Vessel 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 that
Vessel
or her increased value and (where the context permits) all benefits under such
contracts and policies, including all claims of any nature and returns of
premium.
"Interest
Payment Date"
means
each date for the payment of interest in accordance with Clause 7.7.
"Interest
Period"
means
each period for the payment of interest selected by the Borrower or agreed
by
the Agent pursuant to Clause 7.
"ISM
Code"
means
the International Management Code for the Safe Operation of Ships and for
Pollution Prevention.
"ISM
Company"
means,
at any given time, the company responsible for a Vessel's compliance with the
ISM Code under paragraph 1.1.2 of the ISM Code.
"ISPS"
Code"
means
the International Ship and Port Facility Security Code.
"ISPS
Company"
means,
at any given time, the company responsible for a Vessel's compliance with the
ISPS Code.
"ISSC"
means a
valid international ship security certificate for a Vessel issued under the
ISPS
Code.
"law"
or
"Law"
means
any law, statute, treaty, convention, regulation, instrument or other
subordinate legislation or other legislative or quasi-legislative rule or
measure, or any order or decree of any government, judicial or public or other
body or authority, or any directive, code of practice, circular, guidance note
or other direction issued by any competent authority or agency (whether or
not
having the force of law).
"LIBOR"
means:
\P1\3549672.7
11
|
(a)
|
the
applicable Screen Rate; or
|
|
(b)
|
(if
no Screen Rate is available for any Interest Period) the arithmetic
mean
of the rates (rounded upwards to four decimal places) as supplied
to the
Agent at its request quoted by the Reference Banks (or by two of
them if
one is unable to quote) to leading banks in the London interbank
market,
|
at
11.00
a.m. London time two (2) Business Days before the first day of the relevant
Interest Period for the offering of deposits in Dollars in an amount comparable
to the
Loan (or
any relevant part of the Loan)
and
for a period comparable to the relevant Interest Period.
"Loan"
means
the aggregate amount advanced or to be advanced by the Lenders to the Borrower
under Clause 4 or, where the context permits, the amount advanced and for
the
time being outstanding.
"Majority
Lenders"
means a
Lender or Lenders whose Commitments aggregate more than sixty six and two thirds
per cent (66 2/3%) of the aggregate of all the Commitments.
"Management
Agreement"
means
any agreement(s) for the commercial and/or technical management of the Vessels
entered into between the Owner and a company which is not controlled either
by
Teekay Shipping Corporation or the Borrower.
"Managers"
in
relation to each Vessel means a management company which is controlled by Teekay
Shipping Corporation or such other commercial and/or technical managers of
the
Vessels nominated by the Borrower as the Agent acting on the instructions of
the
Majority Lenders may approve such approval not to be unreasonably withheld
or
delayed.
"Mandatory
Cost"
means
the percentage rate per annum calculated by the Agent in accordance with
Schedule 3.
"Margin"
means
nought point six two five per cent (0.625%) per annum.
"Material
Adverse Effect"
means a
material adverse change in, or a material adverse effect on:
\P1\3549672.7
12
|
(a)
|
the
financial condition, assets, prospects or business of any Security
Party
or on the consolidated financial condition, assets, prospects or
business
of the Group;
|
|
(b)
|
the
ability of any Security Party to perform and comply with its obligations
under any Security Document or to avoid any Event of
Default;
|
|
(c)
|
the
validity, legality or enforceability of any Security Document;
or
|
|
(d)
|
the
validity, legality or enforceability of any security expressed to
be
created pursuant to any Security Document or the priority and ranking
of
any such security,
|
provided
that, in determining whether any of the forgoing circumstances shall constitute
such a material adverse change or material adverse effect for the purposes
of
this definition, the Finance Parties shall consider such circumstance in the
context of (x) the Group taken as a whole and (y) the ability of the Borrower
and the Guarantor to perform each of their obligations under the Security
Documents.
"Maturity
Date"
means
the
earlier of (i) the date falling ninety six (96) months after the First Drawdown
Date and (ii) 31 October 2014.
"Material
Subsidiary"
means:
any
Subsidiary of the Borrower whose assets, as determined in accordance with GAAP
and as shown from the most recent financial statements available to the Agent
relating to it, as multiplied by the Relevant Percentage in respect of such
Subsidiary, equal or exceed 10% of the aggregate value of the assets of the
Group as determined in accordance with GAAP and as shown from the most recently
available financial statements of the Group,
provided
that:
|
(i)
|
in
respect of any Subsidiary of the Borrower, only the value of its
assets as
multiplied by the Relevant Percentage in respect of such Subsidiary
shall
be taken into account
in the computation of the value of the assets of the
Group;
|
\P1\3549672.7
13
|
(ii)
|
a
statement by the auditors of the Borrower to the effect that,
in their
opinion, a Subsidiary of the Borrower is or is not or was or
was not at
any particular time a Material
Subsidiary shall, in the absence of manifest error, be conclusive
and
binding on each of the parties to this Agreement.
|
"Maximum
Amount"
means
|
(i)
|
prior
to the Step-up Date, five hundred and twenty million Dollars
($520,000,000); and
|
|
(ii)
|
on
or after the Step-up Date, nine hundred and forty million Dollars
($940,000,000),
|
as
reduced from time to time in accordance with Clause 3.4 and/or Clause
7.9.5.
the
"MLP"
means
Teekay Offshore Partners L.P.
"Mortgages"
means
the statutory mortgages referred to in Clause 10.1.1 together with the Deeds
of
Covenants.
"Necessary
Authorisations" means
all
Authorisations of any person including any government or other regulatory
authority required by applicable Law to enable it to:
|
(a)
|
lawfully
enter into and perform its obligations under the Security Documents
to
which it is party;
|
|
(b)
|
ensure
the legality, validity, enforceability or admissibility in evidence
in
England and, if different, its jurisdiction of incorporation, of
such
Security Documents to which it is party;
and
|
|
(c)
|
carry
on its business from time to time.
|
"Owner"
means
Teekay Navion Offshore Loading Pte Ltd, a company incorporated according to
the
law of Singapore with company registration no. 20041820N whose registered office
is at 0 Xxxxxxx Xxx, #00-00 Xxxxxxx Xxxxx, Xxxxxxxxx 000000 at all times to
be a
Subsidiary of the Borrower.
\P1\3549672.7
14
"Petroatlantic"
means
Petroatlantic L.L.C. of Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro, The Xxxxxxxx Xxxxxxx, XX00000.
"Petrol
Geo"
means
Petroleum Geo Services ASA of Strandveien 50, Postboks 89, N-1324
Lysaker.
"Petrojarl
Production"
means
Petrojarl Production AS of Xxxxxxxxx 00, 0000 Xxxxxxxxx, Xxxxxx (formerly known
as Golar-Nor Offshore AS).
"Petrojarl"
means
Petrojarl ASA of Xxxxxxxxx 00, 0000 Xxxxxxxxx, Xxxxxx.
"Petronordic"
means
Petronordic LLC of Trust Company Complex, Ajelktake Road, Ajeltake Island,
Majuro, The Xxxxxxxx Xxxxxxx, XX00000.
"Permitted
Encumbrance"
means
(i) any Encumbrance which has the prior written approval of the Agent acting
on
the instructions of all the Lenders or (ii), or any liens for current crews'
wages and salvage and liens incurred in the ordinary course of trading a Vessel
up to an aggregate amount at any time not exceeding ten million Dollars
($10,000,000).
"Pre-Approved
Classification Society"
means
any of Det norske Veritas, Lloyds Register, American Bureau of Shipping (ABS),
Germanischer Xxxxx or Bureau Veritas or such other classification society
acceptable to the Majority Lenders.
"Pre-Approved
Flag"
means
Xxxxxxxx Islands, Norwegian International Ship Registry, Liberia, Panama, Isle
of Man, Cayman Islands, Bermuda, Bahamas, Singapore or (in the case of "NAVION
STAVANGER", "NORDIC BRASILIA", "NORDIC SPIRIT" and any other Vessels on charter
to Transpetro) Registro Especial Brasileiro
"Proportionate
Share"
means,
at any time, the proportion which a Lenderβs Commitment (whether
or not advanced) then bears to the aggregate Commitments of all the Lenders
(whether
or not advanced) being on the Execution Date the percentage indicated against
the name of that Lender in Schedule 1.
\P1\3549672.7
15
"Quiet
Enjoyment Letters"
means
those letters between the Agent and the Bareboat Charterer relating to those
Vessels subject to Bareboat Charters.
"Reduction
Date"
means
each date falling at consecutive six monthly intervals after the earlier to
occur of (i) the First Drawdown Date and (ii) 31 October 2006.
"Reference
Banks"
means,
in relation to LIBOR, the principal London offices of each of the MLAs or such
other banks as may be appointed by the Agent in consultation with the
Borrower.
"Relevant
Documents"
means
the Finance Documents, the Bareboat Charters, the Charterer's Assignments,
the
Quiet Enjoyment Letters and the Management Agreements.
"Relevant
Percentage"
means,
in respect of any Subsidiary of the Borrower at any time, the percentage of
the
equity share capital or the partnership capital, as the case may be, of such
Subsidiary which is beneficially owned (free from Encumbrances) by the Borrower
at such time.
"Relevant
Reduction Amount"
means,
in respect of each Vessel, a figure equal to (x) a fraction in which (i) the
numerator is the market value of such Vessel (based on the most recent
Valuation) and (ii) the denominator is the aggregate market value of all the
Vessels (based on the most recent Valuations) multiplied by (y) the Maximum
Amount.
"Replacement
Vessel"
means a
vessel acceptable to the Agent acting on the instructions of the Majority
Lenders.
"Requisition
Compensation"
in
relation to a Vessel means all compensation or other money which may from time
to time be payable to the Owner as a result of that Vessel being requisitioned
for title or in any other way compulsorily acquired (other than by way of
requisition for hire).
"Same
Day Drawing",
means,
in respect of the first drawing only, a Drawing requested by the Borrower prior
to 1600 hours (New York time) on the day before the First Drawdown Date and
made
by the Lenders on the First Drawdown Date.
"Screen
Rate"
means
in relation to LIBOR, the British Bankers' Association Interest Settlement
Rate
for the relevant currency and period displayed
on the appropriate page of the Reuters page
LIBOR 01 (or such other page or pages which replace(s) such page for the
purposes of displaying offered rates of leading banks, for deposits in Dollars
of amounts equal to the amount of the relevant Drawing for a period equal in
length to the relevant Interest Period.
\P1\3549672.7
16
"Security
Documents"
means
the Mortgages, the Deeds of Covenants, the Assignments, the Guarantee, 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 and "Security
Document"
means
any one of them.
"Security
Parties"
means
at any relevant time, the Borrower, the Guarantor and any other person who
may
at any time during the Facility Period be liable for, or provide security for,
all or any part of the Indebtedness (but for the avoidance of doubt shall not
include the Charterer or Bareboat Charterer), and "Security
Party"
means
any one of them.
"SMC"
means a
valid safety management certificate issued for a Vessel by or on behalf of
the
Administration under paragraph 13.7 of the ISM Code.
"SMS"
means a
safety management system for a Vessel developed and implemented in accordance
with the ISM Code.
"Step-up
Date"
means
the date on which the Agent confirms that both (i) all of the conditions set
out
in Part III of Schedule 2 have been satisfied and (ii) Completion of Syndication
has occurred.
"Step-up
Vessels"
means
the Vessels listed in Schedule 7 Part II and everything now or in the future
belonging to them on board and ashore (each a "Step-up
Vessel").
"Subsidiary"
means a
subsidiary undertaking, as defined in section 736 Companies Act 1985 or any
analogous definition under any other relevant system of law.
"Tax"
means
any tax, levy, impost, duty or other charge or withholding of a similar nature
(including any penalty or interest payable in connection with any failure to
pay
or any delay in paying any of the same) and "Taxation"
shall
be interpreted accordingly.
\P1\3549672.7
17
"TKN"
means
Teekay Norway AS of Verven 4, N-4014, X.X. Xxx 0000, X-0000, Xxxxxxxxx,
Xxxxxx.
"Total
Debt"
means
the aggregate of:-
|
(a)
|
the
amount calculated in accordance with GAAP shown as each of "long
term
debt", "short term debt" and "current portion of long term debt"
on the
latest consolidated balance sheet of the Borrower;
and
|
|
(b)
|
the
amount of any liability in respect of any lease or hire purchase
contract
entered into by the Borrower or any of its Subsidiaries which would,
in
accordance with GAAP, be treated as a finance or capital lease (excluding
any amounts applicable to leases to the extent that the lease obligations
are secured by a security deposit which is held on the balance sheet
under
"Restricted
Cash").
|
"Total
Loss"
in
relation to a Vessel means:
|
(a)
|
an
actual, constructive, arranged, agreed or compromised total loss
of that
Vessel; or
|
|
(b)
|
the
requisition for title or compulsory acquisition, nationalisation
or
expropriation of that Vessel by or on behalf of any government or
other
authority (other than by way of requisition for hire);
or
|
|
(c)
|
the
capture, seizure, arrest, detention or confiscation of that Vessel
unless
the Vessel is released and returned to the possession of the Owner
within
ninety (90) days after the capture, seizure, arrest, detention or
confiscation in question.
|
"Transfer
Certificate"
means a
certificate substantially in the form set out in Schedule 5 or any other form
agreed between the Agent and the Borrower.
"Transfer
Date"
means,
in relation to any Transfer Certificate, the
date
for the making of the Transfer specified in the schedule to such Transfer
Certificate.
\P1\3549672.7
18
"Transpetro"
means
Petrobras Transporte S.A. - Transpetro of Av Presidente Xxxxxx, 328, 20091-060
Rio de Janeiro, X.X. Brazil.
"Trust
Property"
means:
|
(a)
|
all
benefits derived by the Security Agent from Clause 10;
and
|
|
(b)
|
all
benefits arising under (including, without limitation, all proceeds
of the
enforcement of) each of the Security
Documents,
|
with
the
exception of any benefits arising solely for the benefit of the Security
Agent.
"UNS"
means
Xxxxxx Nordic Shipping AS of X.X. Xxx 00, 0000 Xxxxxxxxxx, Xxxxxx a company
formed by the merger under Norwegian law of Xxxxxx Nordic Investment AS and
Xxxxxx Nordic Shipping AS.
"Valuation"
means
in relation to a Vessel or a Replacement Vessel, the written valuation of that
Vessel or Replacement Vessel expressed in Dollars prepared by one of the
Approved Brokers (or such other firm of reputable independent shipbrokers as
may
be acceptable to the Majority Lenders) to be nominated by the Borrower, such
nomination to be subject to the approval of the Agent. Such valuations shall
be
prepared at the Borrower's expense, without a physical inspection, on the basis
of a sale for prompt delivery for cash at arm's length between a willing buyer
and a willing seller without the benefit of any charterparty or other
engagement.
"Vessels"
means
the
vessels listed in Schedule 7 (comprising the Initial Vessels and the Step-up
Vessels and including any Replacement Vessel) and everything now or in the
future belonging to them on board and ashore (each a "Vessel)".
"WSJ
Prime Rate"
means
the "Prime Rate" as published in the printed copy of the Wall Street Journal
on
any particular day as the same may be adjusted from time to time..
|
1.2
|
In
this Agreement:
|
|
1.2.1
|
words
denoting the plural number include the singular and vice
versa;
|
\P1\3549672.7
19
|
1.2.2
|
words
denoting persons include corporations, partnerships, associations
of
persons (whether incorporated or not) or governmental or
quasi-governmental bodies or authorities and vice
versa;
|
|
1.2.3
|
references
to Recitals, Clauses and Schedules are references to recitals, clauses
and
schedules to or of this Agreement;
|
|
1.2.4
|
references
to this Agreement include the Recitals and the
Schedules;
|
|
1.2.5
|
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 Agreement;
|
|
1.2.6
|
references
to any document (including, without limitation, to all or any of
the
Relevant Documents) are, unless the context otherwise requires, references
to that document as amended, supplemented, novated or replaced from
time
to time;
|
|
1.2.7
|
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;
|
|
1.2.8
|
references
to any Finance Party include its successors, transferees and assignees;
|
|
1.2.9
|
a
time of day (unless otherwise specified) is a reference to New York
time.
|
|
1.3
|
This
Agreement supersedes the terms and conditions contained in any correspondence
relating to the subject matter of this Agreement exchanged between any Finance
Party and the Borrower or their representatives prior to the date of this
Agreement.
\P1\3549672.7
20
|
2
|
The
Loan
and its
Purposes
|
|
2.1
|
Amount
Subject to the terms of this Agreement, each of the Lenders agrees
to make
available to the Borrower its
Commitment of a
revolving credit in an aggregate amount not exceeding the Maximum
Amount
at any one time.
|
|
2.2
|
Finance
Parties' obligations The
obligations of each Finance Party under the Finance Documents are
several.
Failure by a Finance Party to perform its obligations under the Finance
Documents does not affect the obligations of any other party to the
Finance Documents. No Finance Party is responsible for the obligations
of
any other Finance Party under the Finance
Documents.
|
|
2.3
|
Purposes The
Borrower shall apply the
Loan for the purpose referred to in the Recital.
|
|
2.4
|
Monitoring
No
Finance Party is bound to monitor or verify the application of any
amount
borrowed under this Agreement.
|
|
3.1
|
Conditions
precedent Before
any Lender shall have any obligation to advance any Drawing under
the
Facility the Borrower shall deliver or cause to be delivered to or
to the
order of the Agent all
of the documents and other
evidence listed in Part I of Schedule
2.
|
|
3.2
|
Further
conditions precedent The
Lenders will only be obliged to advance a
Drawing
if
on the date of the Drawdown Notice and on the proposed Drawdown
Date:
|
|
3.2.1
|
no
Default is continuing or would result from the advance of that
Drawing;
and
|
|
3.2.2
|
the
representations
made by the Borrower under Clause 11 are true in all material
respects.
|
|
3.3
|
Drawing
limit The
Lenders will only be obliged to advance a Drawing
if:
|
|
3.3.1
|
no other Drawing has been made on the same Business Day; |
\P1\3549672.7
21
|
3.3.2
|
that
Drawing will not result in there being more than seven Drawings
outstanding at any one time;
|
|
3.3.3
|
that
Drawing is not less than five million Dollars ($5,000,000) and
in an
integral multiple of one million Dollars ($1,000,000);
and
|
|
3.3.4
|
that
Drawing will not increase the outstanding amount of the Loan
to a sum in
excess of the Maximum Amount.
|
The
First
Drawdown Date must occur on or before 31 October 2006 or such later date as
the
Majority Lenders shall agree.
|
3.4.1
|
The
amount of the Facility available to the Borrower for drawing
under this
Agreement shall, subject to the provisions of Clause 3.4.5, be
five
hundred and twenty million Dollars ($520,000,000) prior to the
Step-up
Date and nine hundred and forty million Dollars ($940,000,000)
during the
period from the Step-up Date until the first Reduction Date.
On the
Reduction Dates the amount of the Facility available for drawing
shall be
reduced by the amounts set out in Schedule 8 (the "Initial
Reduction Amounts").
On the Maturity Date the Facility available shall be reduced
to zero.
Subject to the proviso hereto, the mandatory reductions in the
amount of
the Facility available for drawing required pursuant to this
Clause will
be made in the amounts and at the times specified whether or
not the
Maximum Amount is reduced pursuant to Clause 3.4.2, Clause 3.4.3,
Clause
3.4.4, Clause 6.1 or Clause 7.9. PROVIDED ALWAYS THAT any reductions
pursuant to Clause 3.4.2 (voluntary reductions), Clause 3.4.3
(sale) or
Clause 3.4.4 (Total Loss) shall be applied to the remaining mandatory
reductions hereunder on a pro rata
basis.
|
|
3.4.2
|
The
Borrower may voluntarily cancel the Maximum Amount in whole
or in part in
an amount of not less than five million Dollars ($5,000,000)
such amount
to be in integral multiples of one million Dollars ($1,000,000)
(or as
otherwise may be agreed by the Agent), provided that it has
first given to
the Agent not fewer than five (5) Business Days' prior written
notice
expiring on a Business Day (the "Cancellation
Date")
of its desire to reduce the Maximum Amount; such notice once
received by
the Agent shall be irrevocable and shall oblige the Borrower
to make
payment of all interest and Commitment Commission accrued
on the amount so
cancelled up to and including the Cancellation Date together
with any
Break Costs in respect of such cancelled amount if the Cancellation
Date
is not the final day of an Interest Period. Any such reduction
in the
Maximum Amount shall not be reversed. If, as a result of
any such
cancellation, the Loan outstanding would exceed the Maximum
Amount, the
Borrower shall, on the Cancellation Date, prepay such amount
of the Loan
as will ensure that the Loan outstanding is not greater than
the Maximum
Amount.
|
\P1\3549672.7
22
|
3.4.3
|
In
the event of a sale or disposal of a Vessel or the Agent
having received
not less than 5 Business Days' notice from the Borrower
requesting that
the security relating to a Vessel be released and discharged
(a "Released
Vessel"),
the Maximum Amount shall be reduced by the Relevant Reduction
Amount
applicable to that Vessel, such reduction to be applied
on a pro rata
basis against the Initial Reduction Amounts as reduced
from time to time
in accordance with this clause 3.4. Such reduction shall
be made in the
case of a sale or disposal of such Vessel on the date
of such sale or
disposal and in the case of a Released Vessel on the
date proposed by the
Borrower for release and discharge of the security relating
to that Vessel
unless the Vessel or Released Vessel in question is replaced
on or prior
to the sale, disposal or release with a Replacement Vessel
and in such
case of replacement any security held by the Agent (whether
directly or
indirectly) from the Owner and over such Vessel or Released
Vessel is
reconstituted immediately after the sale to the new owner
or after the
release and discharge of security (as the case may be)
or over the
Replacement Vessel in substantially identical form, and
the Agent obtains
favourable legal opinions in respect of such reconstituted
security. If,
as a result of any reduction in the Maximum Amount pursuant
to this
Clause, the Loan outstanding would exceed the Maximum
Amount, the Borrower
shall, on the date of the sale, disposal or replacement,
prepay such
amount of the Loan as will ensure that the Loan outstanding
is not greater
than the Maximum Amount. Any such prepayment shall oblige
the Borrower to
make payment of all interest and Commitment Commission
accrued on the
amount so reduced up to and including the date of reduction
together with
any Break Costs in respect of such reduced amount if
the date of such
reduction is not the final day of an Interest Period.
Any such reduction
in the Maximum Amount shall not be
reversed.
|
\P1\3549672.7
23
|
3.4.4
|
In
the event that any Vessel becomes a Total Loss, on
the earlier to occur of
(a) the date of receipt of the proceeds of the Total
Loss and (b) the date
falling one hundred and eighty (180) days after the
occurrence of the
Total Loss (the "Reduction
Date"),
the Maximum Amount shall (subject to the proviso
hereto) be reduced by the
Relevant Reduction Amount in respect of such Vessel.
Any such reductions
in the Maximum Amount shall not be reversed. If,
as a result of any
reduction in the Maximum Amount pursuant to this
Clause the Loan
outstanding would exceed the Maximum Amount, the
Borrower shall, on the
earlier to occur of (i) the date on which the Owner
receives the proceeds
of such Total Loss and (ii) the one hundred and eightieth
day after the
date of such Total Loss occurring, prepay such amount
of the Loan as will
ensure that the Loan outstanding is equal to or less
than the Maximum
Amount. Any such prepayment shall not be reborrowed
and Clause 8.3 shall
apply to any such prepayment. PROVIDED ALWAYS that
if there is an
investment in a Replacement Vessel on or prior to
the Reduction Date, and
a guarantee from the owner of the Replacement Vessel
(in substantially the
same form as the Guarantee or such other form as
the Majority Lenders may
require at that time) and security over such Replacement
Vessel acceptable
to the Majority Lenders in their absolute discretion
is also executed and
delivered either prior to or on the Reduction Date,
then the reduction in
the Maximum Amount shall not
apply.
|
|
3.4.5
|
To
the extent that repayments or prepayments made
by the Borrower to the
Agent in accordance with this Agreement reduce
the Loan outstanding to
less than the Maximum Amount, the Borrower shall
again be entitled to make
Drawings up to the Commitment Termination Date
in accordance with and
subject to the terms of this Agreement. Any part
of the Facility which is
undrawn on the Commitment Termination Date shall
be automatically
cancelled.
|
\P1\3549672.7
24
|
3.4.6
|
Simultaneously
with each reduction of the Maximum Amount
in accordance with Clause 3.4.1,
Clause 3.4.2, Clause 3.4.3 or Clause 3.4.4
(as the case may be), the
Commitment of each Lender will reduce so
that the Commitments of the
Lenders in respect of the reduced Maximum
Amount remain in accordance with
their respective Proportionate
Shares.
|
|
3.5
|
Termination
Date No
Lender shall be under any obligation to advance all or any part
of its
Commitment after the Commitment Termination
Date.
|
|
3.6
|
Conditions
subsequent
The Borrower undertakes to deliver or to cause to be delivered
to the
Agent:
|
|
3.6.1
|
on,
or as soon as practicable after, the First
Drawdown
Date the additional documents and other evidence listed in Part
II of
Schedule 2; and
|
|
3.6.2
|
on,
or as soon as practicable after, the Step-up Date the additional
documents
and other evidence listed in Part IV of Schedule
2.
|
|
3.7
|
No
Waiver
If
the Lenders in their sole discretion agree to advance a
Drawing
to
the Borrower before all of the documents and evidence required
by Clause
3.1 have been delivered to or to the order of the Agent, the Borrower
undertakes to deliver all outstanding documents and evidence to
or to the
order of the Agent no later than the date specified by the
Agent.
|
The
advance of all or any part of the Loan
under
this Clause 3.7
shall
not be taken as a waiver of the Lenders' right to require production of all
the
documents and evidence required by Clause 3.1.
|
3.8
|
Form
and content
All documents and evidence delivered to the Agent under this Clause
3
shall:
|
|
3.8.1
|
be
in form and substance reasonably acceptable to the Agent;
and
|
|
3.8.2
|
if
reasonably required by the Agent, be certified, notarised, legalised
or
attested in a manner acceptable to the
Agent.
|
\P1\3549672.7
25
|
4
|
Advance
|
|
4.1
|
Drawdown
Request The
Borrower may request a Drawing to be advanced in one amount on
any
Business Day prior to the Commitment Termination Date by delivering
to the
Agent a duly completed Drawdown Notice not more than ten (10) and
not
fewer than three (3) Business Days before the proposed Drawdown
Date save
in respect of a Same Day
Drawing.
|
|
4.2
|
Lenders'
participation Subject
to Clauses 2 and 3, the Agent shall promptly notify each Lender
of the
receipt of a
Drawdown Notice, following which each Lender shall advance its
Proportionate
Share of the relevant Drawing
to
the Borrower through the Agent on the
relevant
Drawdown Date.
|
|
5.1
|
Repayment
of each Drawing The
Borrower agrees to repay each Drawing to the Agent for the account
of the
Lenders on the last day of the Interest Period in respect of that
Drawing
unless the Borrower selects a further Interest Period for that
Drawing in
accordance with Clause 7 provided that the Borrower shall not be
permitted
to select such a further Interest Period if a Default has occurred
and
shall then be obliged to repay such Drawing on the last day of
its then
current Interest Period. The Borrower shall on the Maturity Date repay to
the Agent as agent for the Lenders all Facility
Outstandings.
|
|
5.2
|
Reborrowing
Amounts
of the Loan which are repaid or prepaid shall be available for
reborrowing
in accordance with Clause 3 prior to the Commitment Termination
Date.
|
|
6
|
Prepayment
|
|
6.1
|
Illegality
If
it becomes unlawful in any jurisdiction for a Lender to fund or maintain
its Commitment as contemplated by this Agreement or to fund or maintain
the Loan:
|
|
6.1.1
|
that
Lender shall promptly notify the Agent of that event;
|
|
6.1.2
|
upon
the Agent notifying the Borrower, the
Commitment of that Lender (to the extent not already advanced)
will be
immediately cancelled;
and
|
\P1\3549672.7
26
|
6.1.3
|
the
Borrower shall repay that Lender's Proportionate Share of any Drawing
on
the last day of its current Interest Period or, if earlier, the
date
specified by that Lender in the notice delivered to the Agent and
notified
by the Agent to the Borrower (being no earlier than the last day
of any
applicable grace period permitted by law) and the Maximum Amount
shall be
reduced by the amount of that Lender's Commitment in the Loan.
Prior to the date on which repayment is required to be made under
this
Clause 6.1.3 the affected Lender shall negotiate in good faith
with the
Borrower to find an alternative method or lending base in order
to
maintain the Facility.
|
|
6.2
|
Voluntary
prepayment of Loan
The Borrower may prepay the whole or any part of a Drawing (but,
if in
part, being an amount that reduces that Drawing by a minimum amount
of
five million Dollars ($5,000,000)) provided that
it
gives the Agent not less than three (3) Business Days' prior
notice.
|
|
6.3
|
Restrictions
Any
notice of prepayment given under this Clause 6 shall be irrevocable
and,
unless a contrary indication appears in this Agreement, shall specify
the
date or dates upon which the relevant prepayment is to be made
and the
amount of that prepayment.
|
Any
prepayment under this Agreement shall be made together with accrued interest
on
the amount prepaid and, subject to any Break Costs, without premium or penalty.
If
the
Agent receives a notice under this Clause 6 it shall promptly forward a copy
of
that notice to the Borrower or the Lenders, as appropriate.
|
6.4
|
Mandatory
Prepayment If
at any time the Facility Outstandings shall exceed the Maximum Amount
the
Borrower shall immediately prepay to the Agent on behalf of the Lenders
such amounts as will ensure that the Facility Outstandings do not
exceed
the Maximum Amount and shall pay to the Lenders all interest accrued
on
the amount prepaid up to and including the date on which such prepayment
occurred.
|
|
7.1
|
Interest
Periods
The period during which each Drawing shall be outstanding under
this
Agreement shall be an Interest Period of one, three or six months'
duration, as selected by the Borrower in the Drawdown Notice in
respect of
the Drawing in question, or such other duration as may be agreed
by the
Agent (acting on the instructions of all the Lenders).
Not more than five one (1) month Interest Periods may be selected
by the
Borrower in each twelve (12) month
period.
|
|
7.2
|
Beginning
and end of Interest Periods The
first Interest Period in respect of each Drawing shall begin on
the
Drawdown Date of that Drawing and shall end on the last day of
the
Interest Period selected in accordance with Clause 7.1. Any subsequent
Interest Period selected in respect of each Drawing shall commence
on the
day following the last day of its previous Interest Period and
shall end
on the last day of its current Interest Period selected in accordance
with
Clause 7.1.
|
|
7.3
|
Interest
Periods to meet Maturity Date
If
an Interest Period for a Drawing would otherwise expire after the
Maturity
Date, the Interest Period for that Drawing shall expire on the
Maturity
Date.
|
|
7.4
|
Non-Business
Days
If
an Interest Period would otherwise end on a day which is not a
Business
Day, that Interest Period will instead end on the next Business
Day in
that calendar month (if there is one) or the preceding Business
Day (if
there is not).
|
|
7.5
|
Interest
rate
During each Interest Period interest shall accrue on the
relevant Drawing at
the rate determined by the Agent to
be
|
|
(i)
|
the
WSJ Prime Rate in the case of a Same Day
Drawing; or
|
|
(ii)
|
in
all other cases the aggregate of (a) the Margin,
(b) LIBOR and (c) the Mandatory Cost, if
applicable.
|
|
7.6
|
Failure
to select Interest Period If
the Borrower at any time fails to select or agree an Interest Period
in
accordance with Clause 7.1,
the interest rate applicable shall be three (3)
months.
|
\P1\3549672.7
28
|
7.7
|
Accrual
and payment of interest Interest
shall accrue from day to day, shall be calculated on the basis
of a 360
day year and the actual number of days elapsed (or, in any circumstance
where market practice differs, in accordance with the prevailing
market
practice) and shall be paid by the Borrower to the Agent for the
account
of the Lenders on the last day of each Interest Period and, if
the
Interest Period is longer than three months, on the dates falling
at three
monthly intervals after the first day of that Interest
Period.
|
|
7.8
|
Default interest If the Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date, subject to any applicable grace period, up to the date of actual payment (both before and after judgment) at a rate which is one point five per cent (1.5%) higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Drawing for successive Interest Periods, each selected by the Agent (acting reasonably). Any interest accruing under this Clause 7.8 shall be immediately payable by the Borrower on demand by the Agent. If unpaid, any such interest will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable. |
|
7.9
|
Changes
in market circumstances If
at any time the Agent determines (which determination shall be
final and
conclusive and binding on the Borrower) that, by reason of changes
affecting the London interbank market, adequate and fair means
do not
exist for determining the rate of interest on a
Drawing
for any Interest Period:
|
|
7.9.1
|
the
Agent shall give notice to the Lenders and the Borrower of the
occurrence
of such event; and
|
|
7.9.2
|
the
rate of interest on each Lender's Commitment
in
the relevant Drawing
for that Interest Period shall be the rate per annum which is the
sum
of:
|
|
(a)
|
the
Margin; and
|
|
(b)
|
the
rate notified to the Agent by that Lender as soon as practicable,
and in
any event before interest is due to be paid in respect of that
Interest
Period, to be that which expresses as a percentage rate per annum
the cost
to that Lender of funding its Commitment
in
the relevant Drawing
from whatever source it may reasonably select;
and
|
\P1\3549672.7
29
|
(c)
|
the
Mandatory Cost, if any, applicable to that Lender's
|
PROVIDED
THAT if the resulting rate of interest on any Commitment is not acceptable
to
the Borrower:
|
7.9.3
|
the
Agent on behalf of the Lenders will negotiate with the Borrower
in good
faith with a view to modifying this Agreement to provide a substitute
basis for determining the rate of interest which is financially
a
substantial equivalent to the basis provided for in this
Agreement;
|
|
7.9.4
|
any
substitute basis agreed pursuant to Clause 7.9.3
shall be binding on all the parties to this Agreement and shall
apply to
all Commitments
in
the relevant Drawing;
and
|
|
7.9.5
|
if,
within thirty (30) days of the giving of the notice referred to
in Clause
7.9.1, the Borrower and the Agent fail to agree in writing on a
substitute
basis for determining the rate of interest in respect of the relevant
Drawing, the relevant Lender shall cease to be obliged to advance
its
Proportionate Share of that Drawing, but, if it has already been
advanced,
the Borrower will immediately prepay that Proportionate Share of
that
Drawing, together with any Break Costs, and the Maximum Amount
shall be
reduced by the amount of that Lender's Proportionate Share of that
Drawing.
|
|
7.10
|
Determinations
conclusive The
Agent shall promptly notify the Borrower of the determination of
a rate of
interest under this Clause 7 and each such determination shall
(save in
the case of manifest error) be final and
conclusive.
|
|
8.1
|
Transaction
expenses The
Borrower will, within fourteen (14) days of the Agent's written demand,
pay the Agent (for the account of the Finance Parties) the amount
of all
reasonable out of pocket costs and expenses (including legal fees
and
Value Added Tax or any similar or replacement tax if applicable)
reasonably incurred by the Finance Parties or any of them in connection
with:
|
\P1\3549672.7
30
|
8.1.1
|
the
negotiation, preparation, printing, execution and registration
of the
Finance Documents (whether or not any Finance Document is actually
executed or registered and whether or
not a
Drawing
is
advanced);
|
|
8.1.2
|
any
amendment, addendum or supplement to any Finance Document (whether
or not
completed); and
|
|
8.1.3
|
any
other document which may at any time be required by a Finance Party
to
give effect to any Finance Document or which a Finance Party is entitled
to call for or obtain under any Finance
Document.
|
|
8.2
|
Funding
costs
The Borrower shall indemnify each Finance Party, by payment to
the Agent
(for the account of that Finance Party) on the Agent's written
demand,
against all losses and costs incurred or sustained by that Finance
Party
if, for any reason due to a default or other action by the
Borrower,
a
Drawing
is
not advanced
to the Borrower after the relevant Drawdown Notice has been given
to the
Agent, or is advanced on a date other than that requested in the
Drawdown
Notice.
|
|
8.3
|
Break
Costs
The Borrower shall indemnify each Finance Party, by payment to
the Agent
(for the account of that Finance Party) on the Agent's written
demand,
against all documented costs, losses, premiums or penalties incurred
by
that Finance Party as a result of its receiving any prepayment
of all or
any part of a
Drawing
(whether pursuant to Clause 6 or otherwise) on a day other than
the last
day of an Interest Period for that
Drawing,
or any other payment under or in relation to the Finance Documents
on a
day other than the due date for payment of the sum in question,
including
(without limitation) any losses or costs incurred in liquidating
or
re-employing deposits from third parties acquired to effect or
maintain
all or any part of a
Drawing,
and any liabilities, expenses or losses incurred by that Finance
Party in
terminating or reversing, or otherwise in connection with, any
interest
rate and/or currency swap, transaction or arrangement entered into
by that
Finance Party with any member of the Group to hedge any exposure
arising
under this Agreement, or in terminating or reversing, or otherwise
in
connection with, any open position arising under this
Agreement.
|
\P1\3549672.7
31
|
8.4
|
Currency
indemnity In
the event of a Finance Party receiving or recovering any amount payable
under a Finance Document in a currency other than the Currency of
Account,
and if the amount received or recovered is insufficient when converted
into the Currency of Account at the date of receipt to satisfy in
full the
amount due, the Borrower shall, on the Agent's written demand, pay
to the
Agent for the account of the relevant Finance Party such further
amount in
the Currency of Account as is sufficient to satisfy in full the amount
due
and that further amount shall be due to the Agent on behalf of the
relevant Finance Party as a separate debt under this
Agreement.
|
|
8.5
|
Increased
costs (subject to Clause 8.6) If,
by reason of the introduction of any law, or any change in any law,
or any
change in the interpretation or administration of any law, or compliance
with any request or requirement from any central bank or any fiscal,
monetary or other authority occurring after the date of this
Agreement:
|
|
8.5.1
|
a
Finance Party (or the holding company of a Finance Party) shall be
subject
to any Tax with respect to payment of all or any part of the Indebtedness
(other than Tax on overall net income);
or
|
|
8.5.2
|
the
basis of Taxation of payments to a Finance Party in respect of all
or any
part of the Indebtedness shall be changed;
or
|
|
8.5.3
|
any
reserve requirements shall be imposed, modified or deemed applicable
against assets held by or deposits in or for the account of or loans
by
any branch of a Finance Party; or
|
|
8.5.4
|
the
manner in which a Finance Party allocates capital resources to its
obligations under this Agreement or any ratio (whether cash, capital
adequacy, liquidity or otherwise) which a Finance Party is required
or
requested to maintain shall be affected;
or
|
|
8.5.5
|
there
is imposed on a Finance Party (or on the holding company of a Finance
Party) any other condition in relation to the Indebtedness or the
Finance
Documents;
|
\P1\3549672.7
32
and
the
result of any of the above shall be to increase the cost to a Finance Party
(or
to the holding company of a Finance Party) of that Finance Party making or
maintaining its
Commitment, or to cause a Finance Party to suffer (in its opinion) a material
reduction in the rate of return on its overall capital below the level which
it
reasonably anticipated at the date of this Agreement and which it would have
been able to achieve but for its entering into this Agreement and/or performing
its obligations under this Agreement, then, subject to Clause 8.6, the Finance
Party affected shall notify the Agent and the Borrower shall from time to
time
pay to the Agent on demand for the account of that Finance Party the amount
which shall compensate that Finance Party (or the relevant holding company)
for
such additional cost or reduced return. A certificate signed by an authorised
signatory of that Finance Party setting out the amount of that payment and
the
basis of its calculation shall be submitted to the Borrower and shall be
conclusive evidence of such amount save for manifest error or on any question
of
law.
|
8.6
|
Exceptions
to increased costs Clause
8.5 does not apply to the extent any additional cost or reduced return
referred to in that Clause is:
|
|
8.6.1
|
compensated for by a payment made under Clause 8.10; or |
|
8.6.2
|
compensated for by a payment made under Clause 17.3; or |
|
8.6.3
|
compensated for by the payment of the Mandatory Cost; or |
|
8.6.4
|
attributable
to the wilful breach by the relevant Finance Party (or the holding
company
of that Finance Party) of any law or
regulation.
|
|
8.7
|
Events
of Default The
Borrower shall indemnify each Finance Party from time to time, by
payment
to the Agent (for the account of that Finance Party) on the Agent's
written demand, against all losses and costs incurred or sustained
by that
Finance Party as a consequence of any Event of Default.
|
|
8.8
|
Enforcement
costs
The Borrower shall pay to the Agent (for the account of each Finance
Party) on the Agent's written demand the amount of all costs and
expenses
(including legal fees) incurred by a Finance Party in connection
with the
enforcement of, or the preservation of any rights under, any Finance
Document including (without limitation) any losses, costs and expenses
which that Finance Party may from time to time sustain, incur or
become
liable for by reason of that Finance Party being mortgagee of a Vessel
and/or a lender to the Borrower, or by reason of that Finance Party
being
deemed by any court or authority to be an operator or controller,
or in
any way concerned in the operation or control, of a Vessel. No such
indemnity will be given where any such loss or cost has occurred
due to
gross negligence or wilful misconduct on the part of that Finance
Party;
however, this shall not effect the right of any other Finance Party
to
receive such indemnity.
|
\P1\3549672.7
33
|
8.9
|
Other
costs
The Borrower shall pay to the Agent (for the account of each Finance
Party) on the Agent's written demand the amount of all sums which
a
Finance Party may pay or become actually or contingently liable for
on
account of the Borrower in connection with a Vessel (whether alone
or
jointly or jointly and severally with any other person) including
(without
limitation) all sums which that Finance Party may pay or guarantees
which
it may give in respect of the Insurances, any expenses incurred by
that
Finance Party in connection with the maintenance or repair of a Vessel
or
in discharging any lien, bond or other claim relating in any way
to a
Vessel, and any sums which that Finance Party may pay or guarantees
which
it may give to procure the release of a Vessel from arrest or
detention.
|
|
8.10
|
Taxes
The
Borrower shall pay all Taxes to which all or any part of the Indebtedness
or any Finance Document may be at any time subject (other than Tax
on a
Finance Party's overall net income) and shall indemnify the Finance
Parties, by payment to the Agent (for the account of the Finance
Parties)
on the Agent's written demand, against all liabilities, costs, claims
and
expenses resulting from any omission to pay or delay in paying any
such
Taxes.
|
|
9
|
|
9.1
|
Commitment
fee
The Borrower shall pay to the Agent (for the account of the Lenders
in
proportion to their Commitments) a fee computed at the rate of
thirty two
point five per cent (32.5%) of the Margin on the undrawn and uncancelled
amount of the Maximum Amount from time to time from the date of
this
Agreement until the Commitment Termination Date. The accrued commitment
fee is payable on the last day of each successive period of three
months
from the Execution Date and on the Commitment Termination
Date.
|
|
9.2
|
Other
fees
The Borrower shall pay to the Agent the fees
in
the amount and at the times agreed in a Fee
Letter.
|
\P1\3549672.7
34
|
10.1
|
Security
Documents
As
security for the payment of the Indebtedness, the Borrower shall
execute
and deliver to the Security Agent or cause to be executed and delivered
to
the Security Agent the following documents in such forms and containing
such terms and conditions as the Security Agent shall
require:
|
|
10.1.1
|
a
first priority statutory mortgage over each of the Vessels together
with a
collateral deed of covenants;
|
|
10.1.2
|
a
first priority deed or deeds of assignment of the Insurances, Earnings,
Charter Rights (if applicable)
and Requisition Compensation of each of the Vessels, and of the benefit
of
any relevant Charterer's Assignment;
and
|
|
10.1.3
|
an
on demand guarantee and indemnity from the
Guarantor;
|
|
10.2
|
|
10.3
|
General
application of moneys
Whilst an Event of Default is continuing unremedied and unwaived
the
Borrower irrevocably authorises the Agent and the Security Agent
to apply
all sums which either of them may
receive:
|
|
10.3.1
|
pursuant
to a sale or other disposition of a Vessel or any right, title or
interest
in the Vessel; or
|
|
10.3.2
|
by
way of payment of any sum in respect of the Insurances, Earnings,
Charter
Rights or Requisition Compensation;
or
|
|
10.3.3
|
otherwise
arising under or in connection with any Security
Document,
|
in
accordance with Clause 3.4.3 or Clause 3.4.4 (if relevant) or
otherwise in or towards satisfaction, or by way of retention on account, of
the
Indebtedness, as follows:-
|
(i)
|
first in payment of all outstanding fees and expenses of the Agent and the Security Agent; |
\P1\3549672.7
35
| (ii) | secondly in or towards payment of all outstanding interest hereunder; |
|
(iii)
|
thirdly
in or towards payment of all outstanding principal
hereunder;
|
| (iv) |
fourthly
in or towards payment of all other
Indebtedness hereunder;
|
| (v) |
fifthly
the balance, if any, shall be remitted
to the Borrower or whoever may be entitled
thereto.
|
The
Borrower represents and warrants to each of the Finance Parties at the Execution
Date and (by reference to the facts and circumstances then pertaining) at the
date of each Drawdown Notice, at each Drawdown Date and at each Interest Payment
Date as follows (except that the representation and warranty contained at Clause
11.6 shall only be made on the First Drawdown Date and that the representations
and warranties contained at Clause 11.2 and 11.21 shall only be made on the
Execution Date) :-
|
11.1
|
Status
and Due Authorisation Each
of the Security Parties is a corporation or limited partnership duly
incorporated or formed under the laws of its jurisdiction of
incorporation, organisation or formation (as the case may be) with
power
to enter into the Security Documents and to exercise its rights and
perform its obligations under the Security Documents and all corporate
and
other action required to authorise its execution of the Security
Documents
and its performance of its obligations thereunder has been duly
taken.
|
|
11.2
|
No
Deductions or Withholding
Under the laws of the Security Parties' respective jurisdictions
of
incorporation or formation in force at the date hereof, none of the
Security Parties will be required to make any deduction or withholding
from any payment it may make under any of the Security
Documents.
|
|
11.3
|
Claims
Pari Passu
Under the laws of the Security Parties' respective jurisdictions
of
incorporation or formation in force at the date hereof, the Indebtedness
will, to the extent that it exceeds the realised value of any security
granted in respect of the Indebtedness, rank at least pari
passu
with all the Security Parties' other unsecured indebtedness save
that
which is preferred solely by any bankruptcy, insolvency or other
similar
laws of general application.
|
\P1\3549672.7
36
|
11.4
|
No
Immunity
In
any proceedings taken in any of the Security Parties' respective
jurisdictions of incorporation or formation in relation to any of
the
Security Documents, none of the Security Parties will be entitled
to claim
for itself or any of its assets immunity from suit, execution, attachment
or other legal process.
|
|
11.5
|
Governing
Law and Judgments
In
any proceedings taken in any of the Security Parties' jurisdiction
of
incorporation or formation in relation to any of the Security Documents
in
which there is an express choice of the law of a particular country
as the
governing law thereof, that choice of law and any judgment or (if
applicable) arbitral award obtained in that country will be recognised
and
enforced.
|
|
11.6
|
Validity
and Admissibility in Evidence
As
at the date hereof, all acts, conditions and things required to be
done,
fulfilled and performed in order (a) to enable each of the Security
Parties lawfully to enter into, exercise its rights under and perform
and
comply with the obligations expressed to be assumed by it in the
Security
Documents, (b) to ensure that the obligations expressed to be assumed
by
each of the Security Parties in the Security Documents are legal,
valid
and binding and (c) to make the Security Documents admissible in
evidence
in the jurisdictions of incorporation or formation of each of the
Security
Parties, have been done, fulfilled and
performed.
|
|
11.7
|
No
Filing or Stamp Taxes Under
the laws of the Security Parties' respective jurisdictions of
incorporation or formation in force at the date hereof, it is not
necessary that any of the Security Documents be filed, recorded or
enrolled with any court or other authority in its jurisdiction of
incorporation or formation (other than the Registrar of Companies
for
England and Wales or the relevant maritime registry, to the extent
applicable) or that any stamp, registration or similar tax be paid
on or
in relation to any of the Security
Documents.
|
|
11.8
|
Binding
Obligations
The obligations expressed to be assumed by each of the Security Parties
in
the Security Documents are legal and valid obligations, binding on
each of
them in accordance with the terms of the Security Documents and no
limit
on any of their powers will be exceeded as a result of the borrowings,
granting of security or giving of guarantees contemplated by the
Security
Documents or the performance by any of them of any of their obligations
thereunder.
|
\P1\3549672.7
37
|
11.10
|
|
11.10.1
|
Neither
the Borrower, the Guarantor nor the Group taken as a whole is
unable, or
admits or has admitted its inability, to pay its debts or has
suspended
making payments
in respect of any of its debts.
|
|
11.10.2
|
Neither the Borrower, the Guarantor nor any Material Subsidiary by reason of actual or anticipated financial difficulties, has commenced, or intends to commence, negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness. |
|
11.10.3
|
The value of the assets of each of the Borrower, the Guarantor and the Group taken as a whole is not less than the liabilities of such entity or the Group taken as a whole (as the case may be) (taking into account contingent and prospective liabilities). |
|
11.10.4
|
No moratorium has been, or may, in the reasonably foreseeable future be, declared in respet of any indebtedness of the Borrower, the Guarantor or any Material Subsidiary. |
|
11.11
|
|
11.11.1
|
Without prejudice to Clause 11.11.2, neither the Borrower, the Guarantor nor any Material Subsidiary is in breach of or in default under any agreement to which it is a party or which is binding on it or any of its assets to an extent or in a manner which might have a material adverse effect on the business or financial condition of the Group taken as a whole. |
\P1\3549672.7
38
|
11.11.2
|
No Event of Default is continuing or might reasonably be expected to result from the advance of any Drawing. |
|
11.12
|
No
Material Proceedings
No
action or administrative proceeding of or before any court, arbitral
body
or agency which is not covered by adequate insurance or which might
have a
material adverse effect on the business or financial condition of
the
Group taken as a whole has been started or is reasonably likely to
be
started.
|
|
11.13
|
Borrower's
Accounts All
financial statements relating to the Group required to be delivered
under
Clause 12.1, were each prepared in accordance with GAAP, give (in
conjunction with the notes thereto) a true and fair view of (in the
case
of annual financial statements) or fairly represent (in the case
of
quarterly accounts) the financial condition of the Group at the date
as of
which they were prepared and the results of the Groupβs operations during
the financial period then ended.
|
|
11.14
|
No
Material Adverse Change
Since the publication of the last financial statements relating
to the
Group delivered pursuant to Clause 12.1, there has been no change
that has
a Material Adverse Effect.
|
|
11.15
|
No
Undisclosed Liabilities
As
at the date to which the Borrower's Accounts were prepared neither
the
Borrower, the Guarantor nor any Material Subsidiary had any material
liabilities (contingent or otherwise) which were not disclosed thereby
(or
by the notes thereto) or reserved against therein nor any unrealised
or
anticipated losses arising from commitments entered into by it which
were
not so disclosed or reserved against
therein.
|
|
11.16
|
No
Obligation to Create Security The
execution of the Security Documents by the Security Parties and their
exercise of their rights and performance of their obligations thereunder
will not result in the existence of nor oblige the Borrower or the
Guarantor to create any Encumbrance over all or any of their present
or
future revenues or assets, other than pursuant to the Security
Documents.
|
|
11.17
|
No
Breach The
execution of the Security Documents by each of the Security Parties
and
their exercise of their rights and performance of their obligations
under
any of the Security Documents do not constitute and will not result
in any
breach of any agreement or treaty to which any of them is a
party.
|
\P1\3549672.7
39
|
11.18
|
Security
Each of the Security Parties is the legal and beneficial owner of
all
assets and other property which it purports to charge, mortgage,
pledge,
assign or otherwise secure pursuant to each Security Document and
those
Security Documents to which it is a party create and give rise to
valid
and effective security having the ranking expressed in those Security
Documents.
|
|
11.20
|
Money
Laundering Any
amount borrowed hereunder, and the performance of the obligations
of the
Security Parties under the Security Documents, will be for the
account of
members of the Group and will not involve any breach by any of
them of any
law or regulatory measure relating to "money laundering" as defined
in
Article 1 of the Directive (91/308/EEC) of the Council of the
European
Communities.
|
|
11.21
|
Disclosure
of material facts The
Borrower is not aware of any material facts or circumstances which
have
not been disclosed to the Agent and which might, if disclosed, have
reasonably been expected to adversely affect the decision of a person
considering whether or not to make loan facilities of the nature
contemplated by this Agreement available to the
Borrower.
|
|
11.22
|
Use
of Facility
The Facility will be used for the purposes specified in the
Recital.
|
|
11.23
|
Representations
Limited
The representation and warranties of the Borrower in this Clause
11 are
subject to:
|
|
11.23.1
|
the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court; |
|
11.23.2
|
the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting or limiting the rights of creditors; |
\P1\3549672.7
40
| 11.23.3 | the time barring of claims under any applicable limitation acts; |
| 11.23.4 | the possibility that a court may strike out provisions for a contract as being invalid for reasons of oppression, undue influence or similar; and |
| 11.23.5 | any other reservations or qualifications of law expressed in any legal opinions obtained by the Agent in connection with the Facility. |
The
undertakings and covenants in this Clause 12 remain in force for the duration
of
the Facility Period.
|
12.1
|
General
Undertakings
|
|
12.1.1
|
Financial
statements The
Borrower shall supply to the Agent as soon as the same become available,
but in any event within one hundred and fifty (150) days after the
end of
each of its financial years, its audited consolidated financial statements
for that financial year, together with a Compliance Certificate,
signed by
a duly authorised representative of the Borrower, setting out computations
as to compliance with Clause 12.2 as at the date as at which those
financial statements were drawn up.
|
|
12.1.2
|
Requirements
as to financial statements Each
set of financial statements delivered by the Borrower under Clause
12.1.1:
|
|
(a)
|
shall
be certified by an authorised signatory of the Borrower as fairly
representing its financial condition as at the date as at which those
financial statements were drawn up;
and
|
|
(b)
|
shall
be prepared in accordance with
GAAP.
|
|
12.1.3
|
Interim
financial statements
The Borrower shall supply to the Agent as soon as the same become
available, but in any event within ninety (90) days after the end
of each
quarter during each of its financial years, its unaudited consolidated
quarterly financial statements for that quarter together with a Compliance
Certificate, signed by a duly authorised representative of the Borrower,
setting out computations as to compliance with Clause 12.2 as at
the date
such financial statements were drawn
up.
|
\P1\3549672.7
41
|
12.1.4
|
Maintenance
of Legal Validity
The Borrower shall obtain, comply with the terms of and do all that
is
necessary to maintain in full force and effect all authorisations,
approvals, licences and consents required in or by the laws and
regulations of its jurisdiction of formation and all other applicable
jurisdictions, to enable it lawfully to enter into and perform its
obligations under the Security Documents and to ensure the legality,
validity, enforceability or admissibility in evidence of the Security
Documents in its jurisdiction of incorporation or organisation and
all
other applicable jurisdictions.
|
|
12.1.5
|
Notification
of Default
The Borrower shall promptly, upon becoming aware of the same, inform
the
Agent in writing of the occurrence of any Event of Default and, upon
receipt of a written request to that effect from the Agent, confirm
to the
Agent that, save as previously notified to the Agent or as notified
in
such confirmation, no Event of Default has
occurred.
|
|
12.1.6
|
Claims
Pari Passu
The Borrower shall ensure that at all times the claims of the Finance
Parties against it under the Security Documents rank at least pari
passu
with the claims of all its other unsecured creditors save those whose
claims are preferred by any bankruptcy, insolvency, liquidation,
winding-up or other similar laws of general
application.
|
|
12.1.7
|
Management
of Vessels
The Borrower shall procure that the Owner shall ensure that each
of the
Vessels is at all times technically and commercially managed by a
management company controlled by Teekay Shipping Corporation or the
Borrower or such other management company as may be acceptable to
the
Agent acting on the instructions of the Majority
Lenders.
|
|
12.1.8
|
Classification
The Borrower shall procure that the Owner shall ensure that each
of the
Vessels maintains the highest classification required for the purpose
of
the relevant trade of such Vessel which shall be with a Pre-Approved
Classification Society, in each case, free from any overdue
recommendations and conditions affecting that Vesselβs
class.
|
\P1\3549672.7
42
|
12.1.9
|
Certificate
of Financial Responsibility
The Borrower shall procure that the Owner shall obtain and maintain
a
certificate of financial responsibility in relation to any Vessel
which is
to call at the United States of
America.
|
|
12.1.10
|
Negative Pledge The Borrower shall procure that the Owner does not create, or permit to subsist, any Encumbrance (other than pursuant to the Security Documents) over all or any part of the Vessels or the Insurances other than a Permitted Encumbrance. |
|
12.1.11
|
Registration
The Borrower shall procure that for the duration of the Facility
Period
the Owner shall not change or permit a change to the flag of the
Vessels
other than to a Pre-Approved Flag or under such other flag as may
be
approved by the Agent acting on the instructions of the Majority
Lenders,
such approval not to be unreasonably withheld or
delayed.
|
|
12.1.12
|
ISM
and ISPS Compliance
The Borrower shall procure that the Owner shall ensure that the relevant
Company complies in all material respects with the ISM Code and the
ISPS
Code or any replacements thereof and in particular (without prejudice
to
the generality of the foregoing) shall procure that the Owner shall
ensure
that the Company holds (i) a valid and current Document of Compliance
issued pursuant to the ISM Code, (ii) a valid and current SMC issued
in
respect of each Vessel pursuant to the ISM Code, and (iii) an ISSC
in
respect of each Vessel, and the Borrower shall promptly, upon request,
supply the Agent with copies of the
same.
|
|
12.1.13
|
Necessary
Authorisations
Without prejudice to Clause 12.1.12 or any other specific provision
of the
Security Documents relating to an Authorisation, the Borrower shall
(i)
obtain, comply with and do all that is necessary to maintain in full
force
and effect all Necessary Authorisations if a failure to do the same
may
cause a Material Adverse Effect; and (ii) promptly upon request,
supply
certified copies to the Agent of all Necessary Authorisations.
|
\P1\3549672.7
43
|
12.1.14
|
Compliance
with Applicable Laws
The Borrower shall comply with all applicable laws to which it may
be
subject if a failure to do the same may have a Material Adverse
Effect.
|
|
12.1.15
|
Loans
and Guarantees
The Borrower shall be permitted to make loans and grant credit
upon such
terms as it may determine to any other member of the Group or
to any of
the Borrower's shareholders or unitholders and may otherwise
give any
guarantee or indemnity to procure financing for other members
of the
Group, but shall not otherwise make any loans or grant any credit
(save in
the ordinary course of business) or give any guarantee or indemnity
(except pursuant to the Security Documents); Provided that the
Borrower
shall not make any such loans following the occurrence of an
Event of
Default which is continuing unremedied or unwaived.
|
|
12.1.16
|
Further
Assurance
The Borrower shall at its own expense, promptly take all such action
as
the Agent may reasonably require for the purpose of perfecting or
protecting any Finance Partyβs rights with respect to the security created
or evidenced (or intended to be created or evidenced) by the Security
Documents.
|
|
12.1.17
|
Other
information
The Borrower will promptly supply to the Agent such information and
explanations as the Majority Lenders may from time to time reasonably
require in connection with the operation of the Vessels and any reasonable
financial information in connection with the Borrower, and will procure
that the Agent be given the like information and explanations relating
to
all other Security Parties.
|
|
12.1.18
|
Inspection
of records
The Borrower will permit the inspection of its financial records
and
accounts on reasonable notice from time to time during business hours
by
the Agent or its nominee.
|
|
12.1.19
|
Valuations
The Borrower will deliver to the Agent a Valuation of each of the
Vessels
(i) on the due date for delivery of the annual Borrower's Accounts
pursuant to Clause 12.1 (ii) on a sale or Total Loss of any Vessel
to
determine the Relevant Reduction Amount for the purposes of clauses
3.4.3
and 3.4.4 respectively and (iii) following the occurrence of an Event
of
Default which is continuing unremedied and unwaived on such other
occasions as the Agent may request.
|
\P1\3549672.7
44
|
12.1.20
|
Insurance
The
Borrower shall procure that the Owner shall ensure at its own expense
throughout the Facility Period that the Vessels are insured and operated
in accordance with the provisions set out in the relevant Security
Documents.
|
|
12.1.21
|
Change
of Control
The Borrower shall procure that throughout the Facility
Period:
|
|
(a)
|
Teekay
Shipping Corporation owns a minimum of fifty one percent (51%) of
the
voting rights in Teekay Offshore GP L.L.C, the general partner in
the
MLP;
|
|
(b)
|
Teekay
Shipping Corporation or the MLP owns a minimum of fifty one percent
(51%)
of the voting rights in Teekay Offshore Operating GP L.L.C., the
general
partner in the Borrower;
|
|
(c)
|
there
is no change in the legal or beneficial ownership of the Guarantor
from
that advised to the Agent at the date of this Agreement without the
Agent's prior written consent provided that the Agent's consent shall
not
be required if the change of Guarantor shareholding arises from a
corporate reorganisation of the Group and the legal and beneficial
ownership of the Guarantor remains wholly owned within the Group
following
such re-organisation.
|
|
12.1.22
|
"Know
your customer" checks If:
|
|
(a)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
Agreement;
|
|
(b)
|
any
change in the status of the Borrower after the date of this Agreement;
or
|
\P1\3549672.7
45
|
(c)
|
a
proposed assignment or transfer by a Lender of any of its rights
and
obligations under this Agreement to a party that is not a Lender
prior to
such assignment or transfer,
|
obliges
the Agent or any Lender (or, in the case of (c) above, any prospective new
Lender) to comply with "know your customer" or similar identification procedures
in circumstances where the necessary information is not already available to
it,
the Borrower shall promptly upon the request of the Agent or any Lender supply,
or procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself or on behalf of any Lender) or any Lender
for
itself (or, in the case of (c) above, on behalf of any prospective new Lender)
in order for the Agent or that Lender (or, in the case of (c) above, any
prospective new Lender) to carry out and be satisfied it has complied with
all
necessary "know your customer" or other similar checks under all applicable
laws
and regulations pursuant to the transactions contemplated in the Finance
Documents.
|
12.1.23
|
Intercompany
borrowings
The Borrower will only borrow from other members of the Group on
a
subordinated and unsecured basis.
|
|
12.2
|
Financial
covenants
|
Throughout
the Facility Period the Group shall:-
|
12.2.1
|
maintain a Free Liquidity together with undrawn committed revolving credit lines available to the Group (including under this Agreement but excluding undrawn committed revolving credit lines with less than six (6) months to maturity) of not less than seventy five million Dollars ($75,000,000); and |
|
12.2.2
|
ensure that the aggregate of the Free Liquidity and undrawn committed revolving credit lines available to be drawn by members of the Group (including under this Agreement, but excluding undrawn committed revolving credit lines with less than six (6) months to maturity) will not be less than five per cent (5%) of the Total Debt of the Group. |
\P1\3549672.7
46
PROVIDED
THAT following any change in the applicable accounting policies for the Borrower
from GAAP the Agent (acting on the instructions of the Majority Lenders and
in
consultation with the Borrower) may require an amendment to this Clause 12.2
as
the Agent deems logical and necessary having regard to the nature of such
changes in policy and the intended substance of this Clause 12.2.
|
13.1
|
Events
of Default
Each of the events or circumstances
set out in this Clause 13.1 is an
Event of Default.
|
|
13.1.1
|
Borrower's Failure
to Pay under this Agreement The
Borrower fails to pay any amount of principal due from it under
this
Agreement at the time, in the currency and otherwise in the manner
specified herein provided that, if the Borrower can demonstrate
to the
reasonable satisfaction of the Agent that all necessary instructions
were
given to effect such payment and the non-receipt thereof is attributable
solely to an error in the banking system, such payment shall instead
be
deemed to be due, solely for the purposes of this paragraph, within
three
(3) Business Days of the date on which it actually fell due under
this
Agreement (if a payment of principal), five (5) Business Days (if
a
payment of interest) or ten (10) Business Days (if a sum payable
on
demand); or
|
|
13.1.2
|
Misrepresentation
Any
representation or statement made by any Security Party in any
Security
Document to which it is a party or in any notice or other document,
certificate or statement delivered by it pursuant thereto or
in connection
therewith is or proves to have been incorrect or misleading in
any
material respect, where the circumstances causing the same give
rise to a
Material Adverse Effect; or
|
|
13.1.3
|
Specific
Covenants A
Security Party fails duly to perform or comply with any of
the obligations
expressed to be assumed by or procured by the Borrower under
Clauses
12.1.4, 12.1.6, 12.1.10 or 12.1.21; or
|
\P1\3549672.7
47
|
13.1.4
|
Financial
Covenants The
Borrower is in breach of the Borrower's financial covenants
set out in
Clause 12.2 at any time; or
|
|
13.1.5
|
Other
Obligations A
Security Party fails duly to perform or comply with any
of the obligations
expressed to be assumed by it in any Security Document
(other than those
referred to in Clause 13.1.3 or Clause 13.1.4) and such
failure is not
remedied within 30 days after the Agent has given notice
thereof to the
Borrower; or
|
|
13.1.6
|
Cross
Default Any
indebtedness of any Security Party or any Material
Subsidiary is not paid
when due (or within any applicable grace period) or
any indebtedness of
any Security Party or any Material Subsidiary is declared
to be or
otherwise becomes due and payable prior to its specified
maturity where
(in either case) the aggregate of all such unpaid or
accelerated
indebtedness (i) of the Borrower is equal to or greater
than fifty million
Dollars ($50,000,000) or its equivalent in any other
currency; or (ii) of
the Guarantor, or any Material Subsidiary is equal
to or greater than
twenty five million Dollars ($25,000,000) or its equivalent
in any other
currency; or
|
|
13.1.7
|
Insolvency
and Rescheduling A
Security Party or a Material Subsidiary is unable
to pay its debts as they
fall due, commences negotiations with any one or
more of its creditors
with a view to the general readjustment or rescheduling
of its
indebtedness or makes a general assignment for
the benefit of its
creditors or a composition with its creditors;
or
|
|
13.1.8
|
Winding-up
A
Security Party or a Material Subsidiary takes
any corporate action or
other steps are taken or legal proceedings
are started for its winding-up,
dissolution, administration or re-organisation
or for the appointment of a
liquidator, receiver, administrator, administrative
receiver, conservator,
custodian, trustee or similar officer of
it or of any or all of its
revenues or assets or any moratorium is declared
or sought in respect of
any of its indebtedness; or
|
\P1\3549672.7
48
|
13.1.9
|
Execution
or Distress
|
|
(a)
|
Any
Security Party or a Material Subsidiary fails to comply with or
pay any
sum due from it (within 30 days of such amount falling due) under
any
final judgment or any final order made or given by any court or
other
official body of a competent jurisdiction in an aggregate (i) in
respect
of the Borrower equal to or greater than fifty million Dollars
($50,000,000) or its equivalent in any other currency; or (ii)
in respect
of the Guarantor or a Material Subsidiary equal to or greater than
twenty
five million Dollars ($25,000,000) or its equivalent in any other
currency, being a judgment or order against which there is no right
of
appeal or if a right of appeal exists, where the time limit for
making
such appeal has expired.
|
|
(b)
|
Any
execution or distress is levied against, or an encumbrancer
takes
possession of, the whole or any part of, the property, undertaking
or
assets of a Security Party or a Material Subsidiary in an aggregate
amount
(i) in respect of the Borrower equal to or greater than fifty
million
Dollars ($50,000,000) or its equivalent in any other currency;
or (ii) in
respect of the Guarantor or a Material Subsidiary equal to
or greater than
twenty five million Dollars ($25,000,000) or its equivalent
in any other
currency, other than any execution or distress which is being
contested in
good faith and which is either discharged within 30 days or
in respect of
which adequate security has been provided within 30 days to
the relevant
court or other authority to enable the relevant execution or
distress to
be lifted or released.
|
|
(c)
|
Notwithstanding
the foregoing paragraphs of this Clause 13.1.9, any levy
of any distress
on or any arrest, condemnation, confiscation, requisition
for title or
use, compulsory acquisition, seizure, detention or forfeiture
of a Vessel
(or any part thereof) or any exercise or purported exercise
of any lien or
claim on or against a Vessel where the release of or discharge
the lien or
claim on or against such Vessel has not been procured within
30 days;
or
|
\P1\3549672.7
49
|
13.1.10
|
Similar
EventAny
event occurs which, under the laws of any jurisdiction,
has a similar or
analogous effect to any of those events mentioned
in Clauses 13.1.7,
13.1.8 and 13.1.9; or
|
|
13.1.11
|
Insurances
Insurance
is not maintained in respect of any Vessel in
accordance with the terms of
the relevant Security Document in respect of
that Vessel; or
|
|
13.1.12
|
Class
A
Vessel has its classification withdrawn
by the relevant classification
society PROVIDED THAT if such withdrawal
is (in the opinion of the Agent
in its absolute discretion) capable of
remedy such Event of Default shall
only occur if the Vessel's classification
is not reinstated to the
satisfaction of the Agent within twenty
one (21) days;
or
|
|
13.1.13
|
Environmental
Matters
|
|
(a)
|
Any
Environmental Claim is pending or made against the Owner or any
of the
Owner's Environmental Affiliates or in connection with a Vessel,
where
such Environmental Claim has a Material Adverse Effect.
|
|
(b)
|
Any
actual Environmental Incident occurs in connection with a
Vessel, where
such Environmental Incident has a Material Adverse Effect;
or
|
|
13.1.14
|
Repudiation
Any
Security Party repudiates any Security Document to
which it is a party or
does or causes to be done any act or thing evidencing
an intention to
repudiate any such Security Document;
or
|
|
13.1.15
|
Validity
and Admissibility At
any time any act, condition or thing required
to be done, fulfilled or
performed in
order:
|
|
(a)
|
to
enable any Security Party lawfully to enter into, exercise
its rights
under and perform the respective obligations expressed to be
assumed by it
in the Security Documents;
|
\P1\3549672.7
50
|
(b)
|
to
ensure that the obligations expressed to be assumed
by each of the
Security Parties in the Security Documents are legal,
valid and binding;
or
|
|
(c)
|
to
make the Security Documents admissible in evidence
in any applicable
jurisdiction
|
is
not
done, fulfilled or performed within 30 days after notification
from the Agent to
the relevant Security Party requiring the same to be
done, fulfilled or
performed;
or
|
13.1.16
|
Illegality
At
any time it is or becomes unlawful for any Security Party
to perform or
comply with any or all of its obligations under the Security
Documents to
which it is a party or any of the obligations of the
Borrower hereunder
are not or cease to be legal, valid and binding and such
illegality is not
remedied or mitigated to the satisfaction of the Agent
within thirty (30)
days after it has given notice thereof to the relevant
Security Party;
or
|
|
13.1.17
|
Material
Advers Change At any time there shall occur a
change in the
business or operations of a Security Party
or a change in the financial
condition of any Security
Party which, in the reasonable opinion of
the Majority Lenders, materially
impairs such Security Party's ability
to discharge its obligations under the Security
Documents
in the manner provided therein and such change,
if capable of remedy, is
not
so remedied within 15 days of the delivery
of a notice confirming such
change
by the Agent to the relevant Security
Party; or
|
|
13.1.18
|
Qualifications
of Financial
Statements The
auditors of the Group qualify their report
on any audited consolidated
financial statements of the Group in any
regard which, in the reasonable
opinion of the Agent, has a Material Adverse
Effect;
or
|
|
13.1.19
|
Conditions
Subsequent if
any of the conditions set out in
Clause 3.6 is not satisfied within
thirty
(30) days or such other time period
specified by the Agent in its
discretion;
or
|
\P1\3549672.7
51
|
13.1.20
|
Revocation
or Modification of consents etc.
if
any Necessary Authorisation which
is now or which at any time during
the
Facility Period becomes necessary
to enable any of the Security
Parties to
comply with any of their obligations
in or pursuant to any of the
Security
Documents is revoked, withdrawn
or withheld, or modified in a
manner which
the Agent reasonably considers
is, or may be, prejudicial to
the interests
of a Finance Party in a material
manner, or if such Necessary
Authorisation ceases to remain
in full force and effect;
or
|
|
13.1.21
|
Curtailment
of Business if
the business of any of the
Security Parties is wholly
or materially
curtailed by any intervention
by or under authority of
any government, or
if all or a substantial part
of the undertaking, property
or assets of any
of the Security Parties is
seized, nationalised, expropriated
or
compulsorily acquired by
or under authority of any
government or any
Security Party disposes or
threatens to dispose of a
substantial part of
its business or assets;
or
|
|
13.1.22
|
Reduction
of Capital if
the Borrower reduces
its committed or subscribed
capital;
or
|
|
13.1.23
|
Challenge
to Registration if
the registration
of any Vessel or
any Mortgage becomes
void or voidable
or
liable to cancellation
or termination;
or
|
|
13.1.24
|
War
if
the country of registration of any
Vessel becomes involved in war (whether
or not declared) or civil war or is
occupied by any other power and the
Agent reasonably considers that, as
a result, the security conferred by
the Security Documents is materially
prejudiced;
or
|
|
13.1.25
|
Notice
of Termination if
the Guarantor gives notice
to the Agent to determine
its obligations under
the
Guarantee.
|
|
13.2
|
Acceleration
If
an Event
of Default is continuing unremedied or unwaived the Agent may (with
the
consent of the Majority Lenders) and shall (at the request of the
Majority
Lenders) by notice to the Borrower
cancel any part of the Maximum Amount not then advanced and:
|
\P1\3549672.7
52
|
13.2.1
|
declare
that the Loan,
together with accrued interest, and all other amounts accrued or
outstanding under the Finance Documents are immediately due and payable,
whereupon they shall become immediately due and payable;
and/or
|
|
13.2.2
|
declare
that the Loan
is payable
on demand, whereupon it
shall immediately become payable on demand by the Agent;
and/or
|
|
13.2.3
|
declare
the Commitments terminated and the Maximum Amount reduced to
zero.
|
|
14.1
|
Lenders'
rights A
Lender may assign any of its rights under this Agreement or transfer
by
novation any of its rights and obligations under this Agreement
to any
other branch or Affiliate of that
Lender or (subject to the prior written consent of the Borrower,
such
consent not to be unreasonably withheld but not to be required
at any time
after an Event of Default which is continuing unremedied and unwaived)
to
any other bank or financial institution, and may grant sub-participations
in all or any part of its
Commitment.
|
|
14.2
|
Borrower's
co-operation The
Borrower will co-operate fully with a Lender in connection with any
assignment, transfer or sub-participation by that Lender; will execute
and
procure the execution of such documents as that Lender may require
in that
connection; and irrevocably authorises any Finance Party to disclose
to
any proposed assignee, transferee or sub-participant (whether before
or
after any assignment, transfer or sub-participation and whether or
not any
assignment, transfer or sub-participation shall take place) all
information relating to the Security Parties, the Loan, the Relevant
Documents and the Vessels which any Finance Party may in its discretion
consider necessary or desirable (subject to any duties of confidentiality
applicable to the Lenders generally). Additionally, (but subject
to the
same duties of confidentiality), any Lender may disclose the size
and term
of the Facility and the names of each Security Party to any investor
or
potential investor in a securitisation (or similar transaction of
broadly
equivalent economic effect) of that Lender's rights and obligations
under
the Finance Documents.
|
\P1\3549672.7
53
|
14.3
|
Rights
of assignee Any
assignee of a Lender shall (unless limited by the express terms of
the
assignment) take the full benefit of every provision of the Finance
Documents benefitting that Lender PROVIDED THAT an assignment will
only be
effective on notification by the Agent to that Lender and the assignee
that the Agent is satisfied it has complied with all necessary "Know
your
customer" or other similar checks under all applicable laws and
regulations in relation to the assignment to the
assignee.
|
|
14.4
|
Transfer
Certificates If
a Lender wishes to transfer any of its rights and obligations under
or
pursuant to this Agreement, it may do so by delivering to the Agent
a duly
completed Transfer Certificate, in which event on the Transfer
Date:
|
|
14.4.1
|
to
the extent that that Lender seeks to transfer its rights and obligations,
the Borrower (on the one hand) and that Lender (on the other) shall
be
released from all further obligations towards the
other;
|
|
14.4.2
|
the
Borrower (on the one hand) and the transferee (on the other) shall
assume
obligations towards the other identical to those released pursuant
to
Clause 14.4.1; and
|
|
14.4.3
|
the
Agent, each of the Lenders and the transferee shall have the same
rights
and obligations between themselves as they would have had if the
transferee had been an original party to this Agreement as a
Lender
|
PROVIDED
THAT the
Agent
shall only be obliged to execute a Transfer Certificate once:
|
(a)
|
it
is satisfied it has complied with all necessary "know your customer"
or
other similar checks under all applicable laws and regulations in
relation
to the transfer to the transferee;
and
|
|
(b)
|
the
transferee has paid to the Agent for its own account a transfer fee
of
three thousand Dollars.
|
The
Agent
shall, as soon as reasonably practicable after it has executed a Transfer
Certificate, send to the Borrower a copy of that Transfer
Certificate.
\P1\3549672.7
54
|
14.5
|
Finance
Documents Unless
otherwise expressly provided in any Finance Document or otherwise
expressly agreed between a Lender and any proposed transferee and
notified
by that Lender to the Agent on or before the relevant Transfer Date,
there
shall automatically be assigned to the transferee with any transfer
of a
Lender's rights and obligations under or pursuant to this Agreement
the
rights of that Lender under or pursuant to the Finance Documents
(other
than this Agreement) which relate to the portion of that Lender's
rights
and obligations transferred by the relevant Transfer
Certificate.
|
|
14.6
|
No
assignment or transfer by the Borrower
The Borrower may not assign any of its rights or transfer any of
its
rights or obligations under the Finance
Documents.
|
|
14.7
|
Transfer
of the Loan Agreement by KfW. Notwithstanding
the provisions of Clause 14.1 KfW may transfer all its rights and
obligations under this Agreement to a KfW Subsidiary with effect
from
1 January 2008 or any later date. By signing this Agreement the
Borrower consents to such a transfer. KfW or the KfW Subsidiary will
inform the Borrower of the date on which the transfer of KfWβs rights and
obligations to the KfW Subsidiary takes effect. In this connection
the
following will apply:
|
|
14.7.1
|
Deductions
and Increased costs. If,
by reason of circumstances already existing at the transfer date,
the
Borrower would be obliged to make a payment to the KfW Subsidiary
under
Clauses 8.5, 17.2 or 17.3, it need pay the KfW Subsidiary only such
an
amount as it would have been obliged to pay KfW if the transfer had
not
occurred.
|
|
14.7.2
|
Costs.
KfW
will pay all costs incurred as a result of or in connection with
such
transfer.
|
For
the
purposes of this Clause KfW Subsidiary means a company which within the meaning
of section 15 ff. German Stock Corporation Act (Aktiengesetz)
is
directly or indirectly (i) majority owned (im
Mehrheitsbesitz)
by KfW
or (ii) controlled (abhβngig)
by
KfW.
|
14.8
|
Disclosure
of information. In
connection with any transfer under Clause 14.7 KfW
may disclose confidential information to the KfW Subsidiary or its
agents
or its legal advisors.
|
\P1\3549672.7
55
|
14.9
|
Mitigation
If
a transfer is to take place under Clause 14.7 then, without in any
way
limiting the rights of KfW under Clauses 8.5, 17.2 or 17.3, KfW shall
take
reasonable steps to mitigate any circumstances which arise and which
would
result in any amount becoming payable under or pursuant to Clauses
8.5,
17.2 or 17.3 and it shall co-operate in completing any procedural
formalities necessary for the Borrower to obtain authorisation to
make any
payment under Clauses 8.5, 17.2 or 17.3 without a deduction or
withholding.
|
|
15
|
The
Agent, the Security
Agent and the
Lenders
|
|
15.1
|
Appointment
|
|
15.1.1
|
Each
Lender appoints the Agent to act as its agent under and in connection
with
the Finance Documents and each Lender and the Agent appoints the
Security
Agent to act as its security agent for the purpose of the Security
Documents.
|
|
15.1.2
|
Each
Lender authorises the Agent and each Lender and the Agent authorises
the
Security Agent to exercise the rights, powers, authorities and discretions
specifically given to the Agent or the Security Agent (as the case
may be)
under or in connection with the Finance Documents together with any
other
incidental rights, powers, authorities and
discretions.
|
|
15.1.3
|
Except
where the context otherwise requires, references in this Clause 15
to the
"Agent"
shall mean the Agent and the Security Agent individually and
collectively.
|
|
15.2
|
Authority
Each
Lender irrevocably authorises the Security Agent (in the case of
Clause
15.2.1) and the Agent (in the case of Clauses 15.2.2, 15.2.3 and
15.2.4)
(in each case subject to Clauses 15.4 and 15.18):
|
|
15.2.1
|
to
execute any Finance Document (other than this Agreement) on its
behalf;
|
|
15.2.2
|
to
collect, receive, release or pay any money on its
behalf;
|
|
15.2.3
|
acting
on the instructions from time to time of the Majority Lenders (save
where
the terms of any Security Document expressly provide otherwise) to
give or
withhold any waivers, consents or approvals under or pursuant to
any
Finance Document; and
|
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56
|
15.2.4
|
acting
on the instructions from time to time of the Majority Lenders (save
where
the terms of any Security Document expressly provide otherwise)
to
exercise, or refrain from exercising, any rights, powers, authorities
or
discretions under or pursuant to any Finance Document.
|
The
Agent
shall have no duties or responsibilities as agent or as security agent other
than those expressly conferred on it by the Finance Documents and shall not
be
obliged to act on any instructions from the Lenders or the Majority Lenders
if
to do so would, in the opinion of the Agent, be contrary to any provision of
the
Finance Documents or to any law, or would expose the Agent to any actual or
potential liability to any third party.
|
15.3
|
Trust
The
Security Agent agrees and declares, and each of the other Finance
Parties
acknowledges, that, subject to the terms and conditions of this Clause
15.3, the Security Agent holds the Trust Property on trust for the
Finance
Parties absolutely. Each of the other Finance Parties agrees that
the
obligations, rights and benefits vested in the Security Agent shall
be
performed and exercised in accordance with this Clause 15.3. The
Security
Agent shall have the benefit of all of the provisions of this Agreement
benefiting it in its capacity as security agent for the Finance Parties,
and all the powers and discretions conferred on trustees by the Trustee
Xxx 0000 (to the extent not inconsistent with this Agreement). In
addition:
|
|
15.3.1
|
the
Security Agent and any attorney, agent or delegate of the Security
Agent
may indemnify itself or himself out of the Trust Property against
all
liabilities, costs, fees, damages, charges, losses and expenses sustained
or incurred by it or him in relation to the taking or holding of
any of
the Trust Property or in connection with the exercise or purported
exercise of the rights, trusts, powers and discretions vested in
the
Security Agent or any other such person by or pursuant to the Security
Documents or in respect of anything else done or omitted to be done
in any
way relating to the Security Documents other than as a result of
its gross
negligence or wilful misconduct;
|
\P1\3549672.7
57
|
15.3.2
|
the
other Finance Parties acknowledge that the Security Agent shall be
under
no obligation to insure any property nor to require any other person
to
insure any property and shall not be responsible for any loss which
may be
suffered by any person as a result of the lack or insufficiency of
any
insurance; and
|
|
15.3.3
|
the
Finance Parties agree that the perpetuity period applicable to the
trusts
declared by this Agreement shall be the period of eighty years from
the
date of this Agreement.
|
|
15.4
|
Limitations
on authority Except
with the prior written consent of all the Lenders, the Agent
shall not be
entitled
to:
|
|
15.4.1
|
release
or vary any security given for the Borrower's obligations under this
Agreement; nor
|
|
15.4.2
|
waive
the payment of any sum of money payable by any Security Party under
the
Finance Documents; nor
|
|
15.4.3
|
change
the meaning of the expressions "Majority
Lenders",
"Margin",
"Commitment
Commission"
or "Default
Rate";
nor
|
|
15.4.4
|
exercise,
or refrain from exercising, any right, power, authority or discretion,
or
give or withhold any consent, the exercise or giving of which is,
by the
terms of this Agreement, expressly reserved to the Lenders;
nor
|
|
15.4.5
|
extend
the due date for the payment of any sum of money payable by any Security
Party under any Finance Document;
nor
|
|
15.4.6
|
take
or refrain from taking any step if the effect of such action or inaction
may lead to the increase of the obligations of a Lender under any
Finance
Document; nor
|
|
15.4.7
|
agree
to change the currency in which any sum is payable under any Finance
Document (other than in accordance with the terms of the relevant
Finance
Document); nor
|
|
15.4.8
|
agree
to amend this Clause 15.4.
|
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58
|
15.5
|
Liability
Neither
the Agent nor any of its directors, officers, employees or agents
shall be
liable to the Lenders for anything done or omitted to be done by
the Agent
under or in connection with any of the Relevant Documents unless
as a
result of the Agent's gross negligence or wilful
misconduct.
|
|
15.6
|
Acknowledgement
Each
Lender acknowledges that:
|
|
15.6.1
|
it
has not relied on any representation made by the Agent or any of
the
Agent's directors, officers, employees or agents or by any other
person
acting or purporting to act on behalf of the Agent to induce it to
enter
into any Finance Document;
|
|
15.6.2
|
it
has made and will continue to make without reliance on the Agent,
and
based on such documents and other evidence as it considers appropriate,
its own independent investigation of the financial condition and
affairs
of the Security Parties in connection with the making and continuation
of
the Loan;
|
|
15.6.3
|
it
has made its own appraisal of the creditworthiness of the Security
Parties; and
|
|
15.6.4
|
the
Agent shall not have any duty or responsibility at any time to provide
it
with any credit or other information relating to any Security Party
unless
that information is received by the Agent pursuant to the express
terms of
a Finance Document.
|
Each
Lender agrees that it will not assert nor seek to assert against any director,
officer, employee or agent of the Agent or against any other person acting
or
purporting to act on behalf of the Agent any claim which it might have against
them in respect of any of the matters referred to in this Clause
15.6.
|
15.7
|
Limitations
on responsibility The
Agent shall have no responsibility to any Security Party or to any
Lender
on account of:
|
|
15.7.1
|
the
failure of a Lender or of any Security Party to perform any of its
obligations under a Finance Document;
nor
|
|
15.7.2
|
the
financial condition of any Security Party;
nor
|
\P1\3549672.7
59
|
15.7.3
|
the
completeness or accuracy of any statements, representations or warranties
made in or pursuant to any Finance Document, or in or pursuant to
any
document delivered pursuant to or in connection with any Finance
Document;
nor
|
|
15.7.4
|
the
negotiation, execution, effectiveness, genuineness, validity,
enforceability, admissibility in evidence or sufficiency of any Finance
Document or of any document executed or delivered pursuant to or
in
connection with any Finance
Document.
|
|
15.8
|
The
Agent's rights The
Agent
may:
|
|
15.8.1
|
assume
that all representations or warranties made or deemed repeated by
any
Security Party in or pursuant to any Finance Document are true and
complete, unless, in its capacity as the Agent, it has acquired actual
knowledge to the contrary;
|
|
15.8.2
|
assume
that no Default has occurred unless, in its capacity as the Agent,
it has
acquired actual knowledge to the contrary;
|
|
15.8.3
|
rely
on any document or notice believed by it to be genuine;
|
|
15.8.4
|
rely
as to legal or other professional matters on opinions and statements
of
any legal or other professional advisers selected or approved by
it;
|
|
15.8.5
|
rely
as to any factual matters which might reasonably be expected to be
within
the knowledge of any Security Party on a certificate signed by or
on
behalf of that Security Party; and
|
|
15.8.6
|
refrain
from exercising any right, power, discretion or remedy unless and
until
instructed to exercise that right, power, discretion or remedy and
as to
the manner of its exercise by the Lenders (or, where applicable,
by the
Majority Lenders) and unless and until the Agent has received from
the
Lenders any payment which the Agent may require on account of, or
any
security which the Agent may require for, any costs, claims, expenses
(including legal and other professional fees) and liabilities which
it
considers it may incur or sustain in complying with those
instructions.
|
\P1\3549672.7
60
|
15.9
|
The
Agent's duties The
Agent shall:
|
|
15.9.1
|
if
requested in writing to do so by a Lender, make enquiry and advise
the
Lenders as to the performance or observance of any of the provisions
of
any Finance Document by any Security Party or as to the existence
of an
Event of Default; and
|
|
15.9.2
|
inform
the Lenders promptly of any Event of Default of which the Agent has
actual
knowledge.
|
|
15.10
|
No
deemed knowledge The
Agent shall not be deemed to have actual knowledge of the falsehood
or
incompleteness of any representation or warranty made or deemed repeated
by any Security Party or actual knowledge of the occurrence of any
Default
unless a Lender or a Security Party shall have given written notice
thereof to the Agent in its capacity as the Agent. Any information
acquired by the Agent other than specifically in its capacity as
the Agent
shall not be deemed to be information acquired by the Agent in its
capacity as the Agent.
|
|
15.11
|
Other
business The
Agent may, without any liability to account to the Lenders, generally
engage in any kind of banking or trust business with a Security Party
or
with a Security Party's subsidiaries or associated companies or with
a
Lender as if it were not the Agent.
|
|
15.12
|
Indemnity
The
Lenders shall, promptly on the Agent's request, reimburse the Agent
in
their respective Proportionate Shares,
for, and keep the Agent fully indemnified in respect of all liabilities,
damages, costs and claims sustained or incurred by the Agent in connection
with the Finance Documents, or the performance of its duties and
obligations, or the exercise of its rights, powers, discretions or
remedies under or pursuant to any Finance Document, to the extent
not paid
by the Security Parties and not arising solely from the Agent's gross
negligence or wilful misconduct.
|
|
15.13
|
Employment
of agents In
performing its duties and exercising its rights, powers, discretions
and
remedies under or pursuant to the Finance Documents, the Agent shall
be
entitled to employ and pay agents to do anything which the Agent
is
empowered to do under or pursuant to the Finance Documents (including
the
receipt of money and documents and the payment of money) and to act
or
refrain from taking action in reliance on the opinion of, or advice
or
information obtained from, any lawyer, banker, broker, accountant,
valuer
or any other person believed by the Agent in good faith to be competent
to
give such opinion, advice or
information.
|
\P1\3549672.7
61
|
15.14
|
Distribution
of payments The
Agent shall pay promptly to the order of each Lender that Lender's
Proportionate Share of every sum of money received by the Agent pursuant
to the Finance Documents (with the exception of any amounts payable
pursuant to Clause 9 and/or any Fee Letter and any amounts which,
by the
terms of the Finance Documents, are paid to the Agent for the account
of
the Agent alone or specifically for the account of one or more Lenders)
and until so paid such amount shall be held by the Agent on trust
absolutely for that Lender.
|
|
15.15
|
Reimbursement
The
Agent shall have no liability to pay any sum to a Lender until it
has
itself received payment of that sum. If, however, the Agent does
pay any
sum to a Lender on account of any amount prospectively due to that
Lender
pursuant to Clause 15.14 before it has itself received payment of
that
amount, and the Agent does not in fact receive payment within five
(5)
Business Days after the date on which that payment was required to
be made
by the terms of the Finance Documents, that Lender will, on demand
by the
Agent, refund to the Agent an amount equal to the amount received
by it,
together with an amount sufficient to reimburse the Agent for any
amount
which the Agent may certify that it has been required to pay by way
of
interest on money borrowed to fund the amount in question during
the
period beginning on the date on which that amount was required to
be paid
by the terms of the Finance Documents and ending on the date on which
the
Agent receives reimbursement.
|
|
15.16
|
Redistribution
of payments Unless
otherwise agreed between the Lenders and the Agent, if at any time
a
Lender receives or recovers by way of set-off, the exercise of any
lien or
otherwise from any Security Party, an amount greater than that Lender's
Proportionate Share of any sum due from that Security Party to the
Lenders
under the Finance Documents (the amount of the excess being referred
to in
this Clause 15.16 and in Clause 15.17 as the "Excess
Amount")
then:
|
|
15.16.1
|
that
Lender shall promptly notify the Agent (which shall promptly notify
each
other Lender);
|
\P1\3549672.7
62
|
15.16.2
|
that
Lender shall pay to the Agent an amount equal to the Excess Amount
within
ten (10) days of its receipt or recovery of the Excess Amount;
and
|
|
15.16.3
|
the
Agent shall treat that payment as if it were a payment by the Security
Party in question on account of the sum due from that Security Party
to
the Lenders and shall account to the Lenders in respect of the Excess
Amount in accordance with the provisions of this Clause
15.16.
|
However,
if a Lender has commenced any legal proceedings to recover sums owing to it
under the Finance Documents and, as a result of, or in connection with, those
proceedings has received an Excess Amount, the Agent shall not distribute any
of
that Excess Amount to any other Lender which had been notified of the
proceedings and had the legal right to, but did not, join those proceedings
or
commence and diligently prosecute separate proceedings to enforce its rights
in
the same or another court.
|
15.17
|
Rescission
of Excess Amount If
all or any part of any Excess Amount is rescinded or must
otherwise be
restored to any Security Party or to any other third party,
the Lenders
which have received any part of that Excess Amount by way
of distribution
from the Agent pursuant to Clause 15.16 shall repay to
the Agent for the
account of the Lender which originally received or recovered
the Excess
Amount, the amount which shall be necessary to ensure that
the Lenders
share rateably in accordance with their Proportionate Shares
in the amount
of the receipt or payment retained, together with interest
on that amount
at a rate equivalent to that (if any) paid by the Lender
receiving or
recovering the Excess Amount to the person to whom that
Lender is liable
to make payment in respect of such amount, and Clause 15.16.3
shall apply
only to the retained amount.
|
|
15.18
|
Instructions
Where
the Agent is authorised or directed to act or refrain from acting
in
accordance with the instructions of the Lenders or of the Majority
Lenders
each of the Lenders shall provide the Agent with instructions within
three
(3) Business Days of the Agent's request (which request may be made
orally
or in writing). If a Lender does not provide the Agent with instructions
within that period, that Lender shall be bound by the decision of
the
Agent. Nothing in this Clause 15.18 shall limit the right of the
Agent to
take, or refrain from taking, any action without obtaining the
instructions of the Lenders or the Majority Lenders if the Agent
in its
discretion considers it necessary or appropriate to take, or refrain
from
taking, such action in order to preserve the rights of the Lenders
under
or in connection with the Finance Documents. In that event, the Agent
will
notify the Lenders of the action taken by it as soon as reasonably
practicable, and the Lenders agree to ratify any action taken by
the Agent
pursuant to this Clause 15.18.
|
\P1\3549672.7
63
|
15.19
|
Payments
All amounts payable to a Lender under this Clause 15 shall be paid
to such
account at such bank as that Lender may from time to time direct
in
writing to the Agent.
|
|
15.20
|
"Know
your customer" checks Each
Lender shall promptly upon the request of the Agent supply, or procure
the
supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent to carry
out
and be satisfied it has complied with all necessary "know your customer"
or other similar checks under all applicable laws and regulations
pursuant
to the transactions contemplated in the Finance
Documents.
|
|
15.21
|
Resignation
Subject
to a successor being appointed in accordance with this Clause 15.21,
the
Agent may resign as agent and/or the Security Agent may resign as
security
agent at any time without assigning any reason by giving to the Borrower
and the Lenders notice of its intention to do so, in which event
the
following shall apply:
|
|
15.21.1
|
with
the consent of the Borrower not to be unreasonably withheld (but
such
consent not to be required at any time after an Event of Default
which is
continuing unremedied and unwaived) the Lenders may within thirty
(30)
days after the date of the notice from the Agent or the Security
Agent (as
the case may be) appoint a successor to act as agent and/or security
agent
or, if they fail to do so with the consent of the Borrower, not to
be
unreasonably withheld (but such consent not to be required at any
time
after an Event of Default which is continuing unremedied and unwaived),
the Agent or the Security Agent (as the case may be) may appoint
any other
bank or financial institution as its
successor;
|
|
15.21.2
|
the
resignation of the Agent or the Security Agent (as the case may be)
shall
take effect simultaneously with the appointment of its successor
on
written notice of that appointment being given to the Borrower and
the
Lenders;
|
\P1\3549672.7
64
|
15.21.3
|
the
Agent or the Security Agent (as the case may be) shall thereupon
be
discharged from all further obligations as agent and/or security
agent but
shall remain entitled to the benefit of the provisions of this Clause
15;
and
|
|
15.21.4
|
the
successor of the Agent or the Security Agent (as the case may be)
and each
of the other parties to this Agreement shall have the same rights
and
obligations amongst themselves as they would have had if that successor
had been a party to this Agreement.
|
|
15.22
|
No
fiduciary relationship Except
as provided in Clauses 15.3 and 15.14, the Agent shall not have any
fiduciary relationship with or be deemed to be a trustee of or for
any
other person and nothing contained in any Finance Document shall
constitute a partnership between any two or more Lenders or between
the
Agent and any other person.
|
|
16
|
A
Finance
Party may set off any matured obligation due from the Borrower under any Finance
Document (to the extent beneficially owned by that Finance Party) against any
matured obligation owed by that Finance Party to the Borrower, regardless of
the
place of payment, booking branch or currency of either obligation. If the
obligations are in different currencies, that Finance Party may convert either
obligation at a market rate of exchange in its usual course of business for
the
purpose of the set-off.
|
17
|
|
17.1
|
Payments
Each
amount payable by the Borrower under a Finance Document shall be
paid to
such account at such bank as the Agent may from time to time direct
to the
Borrower in the Currency of Account and in such funds as are customary
at
the time for settlement of transactions in the relevant currency
in the
place of payment. Payment shall be deemed to have been received by
the
Agent on the date on which the Agent receives authenticated advice
of
receipt, unless that advice is received by the Agent on a day other
than a
Business Day or at a time of day (whether on a Business Day or not)
when
the Agent in its reasonable discretion considers that it is impossible
or
impracticable for the Agent to utilise the amount received for value
that
same day, in which event the payment in question shall be deemed
to have
been received by the Agent on the Business Day next following the
date of
receipt of advice by the Agent.
|
\P1\3549672.7
65
|
17.2
|
No
deductions or withholdings Each
payment (whether of principal or interest or otherwise) to be made
by the
Borrower under a Finance Document shall, subject only to Clause 17.3,
be
made free and clear of and without deduction for or on account of
any
Taxes or other deductions, withholdings, restrictions, conditions
or
counterclaims of any nature.
|
|
17.3
|
Grossing-up
If
at any time any law requires (or is interpreted to require) the Borrower
to make any deduction or withholding from any payment, or to change
the
rate or manner in which any required deduction or withholding is
made, the
Borrower will promptly notify the Agent and, simultaneously with
making
that payment, will pay to the Agent whatever additional amount (after
taking into account any additional Taxes on, or deductions or withholdings
from, or restrictions or conditions on, that additional amount) is
necessary to ensure that, after making the deduction or withholding,
the
relevant Finance Parties receive a net sum equal to the sum which
they
would have received had no deduction or withholding been made.
|
|
17.4
|
Evidence
of deductions If
at any time the Borrower is required by law to make any deduction
or
withholding from any payment to be made by it under a Finance Document,
the Borrower will pay the amount required to be deducted or withheld
to
the relevant authority within the time allowed under the applicable
law
and will, no later than thirty (30) days after making that payment,
deliver to the Agent an original receipt issued by the relevant authority,
or other evidence reasonably acceptable to the Agent, evidencing
the
payment to that authority of all amounts required to be deducted
or
withheld.
|
\P1\3549672.7
66
|
17.5
|
Rebate
If
the Borrower pays any additional amount under Clause 17.3, and a
Finance
Party subsequently receives a refund or allowance from any tax authority
which that Finance Party identifies as being referable to that increased
amount so paid by the Borrower, that Finance Party shall, as soon
as
reasonably practicable, pay to the Borrower an amount equal to the
amount
of the refund or allowance received, if and to the extent that it
may do
so without prejudicing its right to retain that refund or allowance
and
without putting itself in any worse financial position than that
in which
it would have been had the relevant deduction or withholding not
been
required to have been made. Nothing in this Clause 17.5 shall be
interpreted as imposing any obligation on any Finance Party to apply
for
any refund or allowance nor as restricting in any way the manner
in which
any Finance Party organises its tax affairs, nor as imposing on any
Finance Party any obligation to disclose to the Borrower any information
regarding its tax affairs or tax
computations.
|
|
17.6
|
Adjustment
of due dates If
any payment or transfer of funds to be made under a Finance Document,
other than a payment of interest on
a
Drawing,
shall be due on a day which is not a Business Day, that payment
shall be
made on the next succeeding Business Day (unless the next succeeding
Business Day falls in the next calendar month in which event the
payment
shall be made on the next preceding Business Day). Any such variation
of
time shall be taken into account in computing any interest in respect
of
that payment.
|
|
17.7
|
Control
Account
The Agent shall open and maintain on its books a control account
in the
name of the Borrower showing the advance of the Loan
and the computation and payment of interest and all other sums due
under
this Agreement. The Borrower's obligations to repay the Loan
and to pay interest and all other sums due under this Agreement shall
be
evidenced by the entries from time to time made in the control account
opened and maintained under this Clause 17.7 and those entries will,
in
the absence of manifest error, be conclusive and
binding.
|
|
18
|
|
18.1
|
Communications
in writing Any
communication to be made under or in connection with this Agreement
shall
be made in writing and, unless otherwise stated, may be made by fax
or
letter or (subject to Clause 18.6) electronic mail.
|
|
18.2
|
Addresses
The
address and fax number (and the department or officer, if any, for
whose
attention the communication is to be made) of each party to this
Agreement
for any communication or document to be made or delivered under or
in
connection with this Agreement are:
|
\P1\3549672.7
67
|
18.2.1
|
in
the case of the Borrower, c/o Teekay Shipping (Canada) Ltd Suite
2000,
Bentall 5, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X., Xxxxxx X0X 0X0 (fax
no: x0
000 000 0000) marked for the attention of Director
Finance;
|
|
18.2.2
|
in
the case of each Lender, those appearing opposite its name in
Schedule 1;
|
|
18.2.3
|
in
the case of the Agent, 000
Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 10166-0396, United States of America
(fax
no: x0 000 000 0000) marked for the attention of Credit, Xxxxxx
Xxxxx/Erlend Bryn; and
|
|
18.2.4
|
in
the case of the Security Agent, Xxxxxxx
00, 00000 Xxxxxx, Xxxxxxx Xxxxxxxx of Germany (fax
no: + 00 000 0000 000) marked for the attention of
Credit Department;
|
or
any
substitute address, fax number, department or officer as any party may notify
to
the Agent (or the Agent may notify to the other parties, if a change is made
by
the Agent) by not less than five (5) Business Days' notice.
|
18.3
|
Delivery
Any
communication or document made or delivered by one party to this
Agreement
to another under or in connection this Agreement will only be
effective:
|
|
18.3.1
|
if
by way of fax, when received in legible form;
or
|
|
18.3.2
|
if
by way of letter, when it has been left at the relevant address or
five
(5) Business Days after being deposited in the post postage prepaid
in an
envelope addressed to it at that address;
or
|
|
18.3.3
|
if
by way of electronic mail, in accordance with Clause
18.6;
|
and,
if a
particular department or officer is specified as part of its address details
provided under Clause 18.2, if addressed to that department or
officer.
Any
communication or document to be made or delivered to the Agent will be effective
only when actually received by the Agent.
All
notices from or to the Borrower shall be sent through the Agent.
\P1\3549672.7
68
|
18.4
|
Notification
of address and fax number Promptly
upon receipt of notification of an address, fax number or change
of
address, pursuant to Clause 18.2 or changing its own address or fax
number, the Agent shall notify the other parties to this
Agreement.
|
|
18.5
|
English
language Any
notice given under or in connection with this Agreement must be in
English. All other documents provided under or in connection with
this
Agreement must be:
|
|
18.5.1
|
in
English; or
|
|
18.5.2
|
if
not in English, and if so required by the Agent, accompanied by a
certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or
other
official document.
|
|
18.6
|
Electronic
communication
|
|
(a)
|
Any communication to be made in connection with this Agreement may be made by electronic mail or other electronic means, if the Borrower and the relevant Finance Party: |
|
(i)
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication; |
|
(ii)
|
notify
each other in writing of their electronic mail address and/or
any other
information required to enable the sending and receipt of
information by
that means; and
|
| (iii) | notify each other of any change to their address or any other such information supplied by them. |
|
(b)
|
Any electronic communication made between the Borrower and the relevant Finance Party will be effective only when actually received in readable form and acknowledged by the recipient (it being understood that any system generated responses do not constitute an acknowledgement) and in the case of any electronic communication made by the Borrower to a Finance Party only if it is addressed in such a manner as the Finance Party shall specify for this purpose. |
\P1\3549672.7
69
If,
at
any time, any provision of a Finance Document 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.
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under a Finance Document shall operate as a waiver,
nor shall any single or partial exercise of any right or remedy prevent any
further or other exercise or the exercise of any other right or remedy. The
rights and remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.
|
21.1
|
No
oral variations No
variation or amendment of a Finance Document shall be valid unless
in
writing and signed on behalf of all the Finance
Parties.
|
|
21.2
|
Further
Assurance If
any provision of a Finance Document shall be invalid or unenforceable
in
whole or in part by reason of any present or future law or any decision
of
any court, or if the documents at any time held by or on behalf of
the
Finance Parties or any of them are considered by the Lenders for
any
reason insufficient to carry out the terms of this Agreement, then
from
time to time the Borrower will promptly, on demand by the Agent,
execute
or procure the execution of such further documents as in the opinion
of
the Lenders are necessary to provide adequate security for the repayment
of the Indebtedness.
|
|
21.3
|
Rescission
of payments etc. Any
discharge, release or reassignment by a Finance Party of any of the
security constituted by, or any of the obligations of a Security
Party
contained in, a Finance Document shall be (and be deemed always to
have
been) void if any act (including, without limitation, any payment)
as a
result of which such discharge, release or reassignment was given
or made
is subsequently wholly or partially rescinded or avoided by operation
of
any law.
|
\P1\3549672.7
70
|
21.4
|
Certificates
Any
certificate or statement signed by an authorised signatory of the
Agent
purporting to show the amount of the Indebtedness (or any part of
the
Indebtedness) or any other amount referred to in any Finance Document
shall, save for manifest error or on any question of law, be conclusive
evidence as against the Borrower of that amount.
|
|
21.5
|
Counterparts
This
Agreement may be executed in any number of counterparts each of which
shall be original but which shall together constitute the same
instrument.
|
|
21.6
|
Contracts
(Rights of Third Parties) Xxx 0000 A
person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy
the
benefit of any term of this
Agreement.
|
|
21.7
|
Disclosure
of Information The
Borrower authorises each Lender to disclose any information and/or
document(s) concerning its relationship with such Lender (i) to
authorities in any other countries where such Lender or any Affiliate
is
represented and/or where any Lender or any Affiliate may be requested
information by any regulatory authority, when this shall be deemed
necessary in order for such Lender or any Affiliate to meet its
requirements for the contribution to reduction or prevention of money
laundering, terrorism and corruption, and (ii) to any Affiliate of
that
Lender making it possible to consolidate the client's total commitments
and offer the client any other products offered by that Lender or
any
Affiliate, subject always to the duties of confidentiality on the
Lenders
set out herein.
|
|
22.1
|
Governing
law This
Agreement shall in all respects be governed by and interpreted in
accordance with English law.
|
|
22.2
|
Jurisdiction
For
the exclusive benefit of the Finance Parties, the parties to this
Agreement irrevocably agree that the courts of England are to have
jurisdiction to settle any disputes which may arise out of or in
connection with this Agreement and that any proceedings may be brought
in
those courts.
|
|
22.3
|
Alternative
jurisdictions Nothing
contained in this Clause 22 shall limit the right of the Finance
Parties
to commence any proceedings against the Borrower in any other court
of
competent jurisdiction nor shall the commencement of any proceedings
against the Borrower in one or more jurisdictions preclude the
commencement of any proceedings in any other jurisdiction, whether
concurrently or not.
|
\P1\3549672.7
71
|
22.4
|
Waiver
of objections The
Borrower 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 22, 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.
|
|
22.5
|
Service
of process Without
prejudice to any other mode of service allowed under any relevant
law, the
Borrower:
|
|
22.5.1
|
irrevocably
appoints Teekay Shipping (UK) Ltd of 0xx
Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX Xxxxxxx as its agent for
service
of process in relation to any proceedings before the English courts
in
connection with this Agreement; and
|
|
22.5.2
|
agrees
that failure by a process agent to notify the Borrower of the process
will
not invalidate the proceedings
concerned.
|
\P1\3549672.7
72
SCHEDULE
1: The Lenders and the Commitments
The
Lenders The
Commitments The
Proportionate Share
(US$) (%)
|
DnB NOR Bank ASA
000
Xxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx, XX00000
Xxxxxx
Xxxxxx of America
Fax
no. x0 000 000 0000
Attn:
Xxxxxx Xxxx
|
230,000,000
|
24.5
|
|
Fortis
Capital Corp.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx
XX
00000 XXX
Fax
no: x0 000 000 0000
Attn:
Global Shipping Group
|
230,000,000
|
00.0
|
|
Xxxxxx
Xxxx Xxxxxxx XXX,
Xxx
Xxxx Branch
000
Xxxxxxx Xxxxxx
Xxx
Xxxx
XX
00000
Fax
no: x0 000 000 0000
Attention:
Shipping, Offshore and
Oil
Services Group
|
230,000,000
|
24.5
|
|
Deutsche
Schiffsbank
Aktiengesellschaft
Domshof
17
28195
Bremen
Federal
Republic of Germany
Fax
no: x00 000 0000 000
Attn:
Credit Department
|
125,000,000
|
13.25
|
|
Landesbank
Hessen-Thuringen
Girozentrale
New
York Branch
000
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx
XX
00000-0000
U.S.A.
Fax
no: x0000 000 0000
Attn:
Shipping Finance
|
125,000,000
|
13.25
|
\P1\3549672.7
73
SCHEDULE
2: Conditions Precedent and Subsequent
Part
I: Conditions precedent
to the First Drawdown Date
|
(a)
|
Constitutional
Documents
Copies of the constitutional documents of each Security Party together
with such other evidence as the Agent may reasonably require that
each
Security Party is duly formed or incorporated in its country of formation
or incorporation and remains in existence with power to enter into,
and
perform its obligations under, the Relevant Documents to which it
is or is
to become a party.
|
|
(b)
|
Certificates
of good standing
A
certificate of good standing in respect of each Security Party (if
such a
certificate can be obtained).
|
|
(c)
|
Board
resolutions A
copy of a resolution of the board of directors of each Security Party
(or
its sole member or general
partner):
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Relevant
Documents
to which it is a party and ratifying or resolving that it execute
those
Relevant Documents; and
|
|
(ii)
|
if
required authorising a specified person or persons to execute those
Relevant Documents (and all documents and notices to be signed and/or
despatched under those documents) on its
behalf.
|
|
(d)
|
Officer's
certificates A
certificate of a duly authorised officer or representative of each
Security Party certifying that each copy document relating to it
specified
in this Part I of Schedule 2 is correct, complete and in full force
and
effect as at a date no earlier than the date of this Agreement and
setting
out the names of the directors and officers of that Security Party
(or its
sole member or general partner) and the proportion of shares held
by each
shareholder.
|
|
(e)
|
Powers
of attorney The
notarially attested and legalised (where necessary for registration
purposes) power of attorney of each Security Party under which any
documents are to be executed or transactions undertaken by that Security
Party.
|
\P1\3549672.7
74
|
2
|
Security
and related
documents
|
|
(a)
|
Vessel
documents In
respect of each Initial Vessel photocopies, certified as true, accurate
and complete by a duly authorised representative of the Borrower,
of any
relevant Management Agreement together with all addenda, amendments
or
supplements.
|
|
(b)
|
Evidence
of Owner's title Evidence
that on the Drawdown Date (i) each of the Initial Vessels will be
registered under the flag stated in Schedule 7 in the ownership of
the
Owner and (ii) each of the relevant Mortgages will be capable of
being
registered against the Initial Vessels with first
priority.
|
|
(c)
|
Evidence
of insurance Evidence
that each of the Initial Vessels is insured in the manner required
by the
Security Documents and that letters of undertaking will be issued
in the
manner required by the Security Documents, together with the written
approval of the Insurances by an insurance adviser appointed by the
Agent.
|
|
(d)
|
Security
Documents The
Security Documents (other than those relating to the Step-up Vessels),
together with all other documents required by any of them, including,
without limitation, all notices of assignment and/or charge and evidence
that those notices will be duly acknowledged by the
recipients.
|
|
(e)
|
Other
Relevant Documents
Copies of each of the Relevant Documents (other than those relating
to the
Step-up Vessels) not otherwise comprised in the documents listed
in this
Part I of Schedule 2.
|
If
a
Security Party is incorporated in a jurisdiction other than England and Wales
or
if any Finance Document is governed by the laws of a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Lenders in
each
relevant jurisdiction, substantially in the form provided to the Agent prior
to
the Drawdown Date or confirmation satisfactory to the Agent that such an opinion
will be given.
|
4
|
Other
documents and evidence
|
|
(a)
|
Drawdown
Notice A
duly completed Drawdown Notice.
|
\P1\3549672.7
75
|
(b)
|
Process
agent Evidence
that any process agent referred to in Clause 22.5 and any process
agent
appointed under any other Finance Document has accepted its
appointment.
|
|
(c)
|
Other
authorisations A
copy of any other consent, licence, approval, authorisation or other
document, opinion or assurance which the Agent considers to be necessary
or desirable (if it has notified the Borrower accordingly) in connection
with the entry into and performance of the transactions contemplated
by
any of the Relevant Documents or for the validity and enforceability
of
any of the Relevant Documents.
|
|
(d)
|
Fees
Evidence
that the fees, costs and expenses then due from the Borrower under
Clause
8 and Clause 9 have been paid or will be paid by the Drawdown
Date.
|
|
(e)
|
"Know
your customer" documents
Such documentation and other evidence as is reasonably requested
by the
Agent in order for the Lenders to comply with all necessary "know
your
customer" or similar identification procedures in relation to the
transactions contemplated in the Finance Documents.
|
\P1\3549672.7
76
Part
II: Conditions subsequent
to the First Drawdown Date
|
1
|
Evidence
of Owner's title Certificate
of ownership and encumbrance (or equivalent) issued by the Registrar
of
Ships (or equivalent official) of each Initial Vessel's flag
state
confirming that (a) each of the Initial Vessels is permanently
registered
under that flag in the ownership of the Owner, (b) each of the
relevant
Mortgages has been registered with first priority against the
Initial
Vessels and (c) there are no further Encumbrances registered
against the
Initial Vessels.
|
|
2
|
Letters
of undertaking Letters
of undertaking in respect of the Insurances as required by the
Security
Documents (other than those relating to the Step-up Vessels)
together with
copies of the relevant policies or cover notes or entry certificates
duly
endorsed with the interest of the Finance
Parties.
|
|
3
|
Acknowledgements
of notices Acknowledgements
of all notices of assignment and/or charge given pursuant to
the Security
Documents (other than those relating to the Step-up
Vessels).
|
|
4
|
Legal
opinions Such
of the legal opinions specified in Part I of this Schedule
2 as have not
already been provided to the
Agent.
|
|
5
|
Companies
Act registrations Evidence
that the prescribed particulars of the Security Documents
have been
delivered to the Registrar of Companies of England and
Wales and (where
relevant) the appropriate registry in Singapore within
the statutory time
limit.
|
|
6
|
Confirmation
of class Certificates
of Confirmation of Class for hull and machinery confirming
that each of
the Initial Vessels is classed with the highest class
applicable to
vessels of her type with a Pre-Approved Classification
Society.
|
|
7
|
Structure
Such
documents and information as the Lenders may
require to satisfy themselves
as to the corporate structure of the Borrower
and the
Guarantor.
|
\P1\3549672.7
77
Part
III: Conditions precedent to the Step-up Date
|
1
|
Security
Parties
|
|
A
certificate from a duly authorised officer or representative of the
Borrower confirming that none of the documents delivered to the Agent
pursuant to Schedule 2 Part I (a), (b), (c), (d) and (e) have been
amended
or modified in any way since the date of their delivery to the
Agent.
|
|
2
|
Security
and related documents
|
|
(a)
|
Vessel
documents In
respect of each Step-up Vessel photocopies, certified as true, accurate
and complete by a duly authorised representative of the Borrower,
of:
|
|
(i)
|
the
Bareboat Charters and any relevant Head Charters;
|
|
(ii)
|
any
relevant Management Agreement
|
together
in each case with all addenda, amendments or supplements.
|
(b)
|
Evidence
of Owner's title Evidence
that on the Step-up Date (i) the Step-up Vessels will be registered
under
the flag stated in Schedule 7 in the ownership of the Owner and (ii)
each
of the relevant Mortgages will be capable of being registered against
the
Step-up Vessels with first
priority.
|
|
(c)
|
Evidence
of insurance Evidence
that each of the Step-up Vessels is insured in the manner required
by the
Security Documents and that letters of undertaking will be issued
in the
manner required by the Security Documents, together with the written
approval of the Insurances by an insurance adviser appointed by the
Agent.
|
|
(d)
|
Security
Documents The
Security Documents relating to the Step-up Vessels, together with
all
other documents required by any of them, including, without limitation,
all notices of assignment and/or charge and evidence that those notices
will be duly acknowledged by the
recipients.
|
|
(e)
|
Charterer's
Assignments
The Charterer's Assignments, duly executed, together with evidence
of the
signing authority of the relevant Charterer and all notices of assignment
and evidence that those notices have been or will be duly acknowledged
by
the recipient.
|
\P1\3549672.7
78
|
(f)
|
Quiet
Enjoyment Letters
Any relevant Quiet Enjoyment Letters, duly executed, together with
evidence of the signing authority of the Bareboat
Charterer.
|
|
(g)
|
Other
Relevant Documents
Copies of each of the Relevant Documents not otherwise comprised
in the
documents listed in Part I of Schedule 2 or this Part III of
Schedule 2.
|
If
a
Security Party is incorporated in a jurisdiction other than England and Wales
or
if any Finance Document is governed by the laws of a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Lenders in
each
relevant jurisdiction, substantially in the form provided to the Agent prior
to
the Step-up Date or confirmation satisfactory to the Agent that such an opinion
will be given.
|
4
|
Other
documents and evidence
|
|
(a)
|
Process
agent Evidence
that any process agent appointed under any Finance Document relating
to
the Step-up Vessels has accepted its
appointment.
|
|
(b)
|
Other
authorisations A
copy of any other consent, licence, approval, authorisation or other
document, opinion or assurance which the Agent considers to be necessary
or desirable (if it has notified the Borrower accordingly) in connection
with the entry into and performance of the transactions contemplated
by
any of the Relevant Documents or for the validity and enforceability
of
any of the Relevant Documents.
|
|
(c)
|
Fees
Evidence
that the fees, costs and expenses then due from the Borrower under
Clause
8 and Clause 9 have been paid or will be paid by the Step-up
Date.
|
\P1\3549672.7
79
Part
IV: Conditions subsequent to the Step-up Date
|
1
|
Evidence
of Owner's title Certificate
of ownership and encumbrance (or equivalent) issued by the Registrar
of
Ships (or equivalent official) of each Step-up Vessel's flag state
confirming that (a) each of the Step-up Vessels is permanently
registered
under that flag in the ownership of the Owner, (b) each of the
relevant
Mortgages has been registered with first priority against the Step-up
Vessels and (c) there are no further Encumbrances registered against
the
Step-up Vessels.
|
|
2
|
Letters
of undertaking Letters
of undertaking in respect of the Insurances as required by the
Security
Documents relating to the Step-up Vessels together with copies
of the
relevant policies or cover notes or entry certificates duly endorsed
with
the interest of the Finance
Parties.
|
|
3
|
Acknowledgements
of notices
Acknowledgements of all notices of assignment and/or charge
given pursuant
to the Security Documents relating to the Step-up
Vessels.
|
|
4
|
Legal
opinions Such
of the legal opinions specified in Part III of this Schedule
2 as have not
already been provided to the Agent.
|
|
5
|
Companies
Act registrations
Evidence that the prescribed particulars of the Security
Documents have
been delivered to the Registrar of Companies of England
and Wales and
(where relevant) the appropriate registry in Singapore
within the
statutory time limit.
|
\P1\3549672.7
80
SCHEDULE
3: Calculation of Mandatory Cost
|
1
|
The
Mandatory Cost is an addition to the interest rate to
compensate the Lenders for the cost of compliance with
(a) the
requirements of the Bank of England and/or the Financial
Services
Authority (or, in either case, any other authority which
replaces all or
any of its functions) or (b) the requirements of the
European Central
Bank.
|
|
(a)
|
On
the first day of each Interest Period (or as soon as possible
thereafter)
the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate")
for each Lender in accordance with the paragraphs set out
below. The
Mandatory Cost will be calculated by the Agent as a weighted
average of
the Lenders' Additional Cost Rates (weighted in proportion
to the
percentage participation of each Lender in the
Loan) and will be expressed as a percentage rate per
annum.
|
|
(b)
|
The
Additional Cost Rate for any Lender lending from
an office in the
euro-zone will be the percentage notified by that
Lender to the Agent to
be its reasonable determination of the cost (expressed
as a percentage of
that Lender's participation in the Loan)
of complying with the minimum reserve requirements
of the European Central
Bank as a result of participating in the
Loan from that
office.
|
|
(c)
|
The
Additional Cost Rate for any Lender lending from an office
in the United
Kingdom will be calculated by the Agent as
follows:
|
F x 0.01
per cent
per annum
300
|
|
where
F is the charge payable by that Lender to the Financial
Services Authority
under paragraph 2.02 or 2.03 (as appropriate) of the Fees
Regulations or
the equivalent provisions in any replacement regulations
(with, for this
purpose, the figure for the minimum amount in paragraph
2.02b or such
equivalent provision deemed to be zero), expressed in pounds
per Β£1
million of the fee base of that
Lender.
|
|
2
|
For
the purpose of this
Schedule:
|
|
(a)
|
"eligible
liabilities"
and "special deposits"
have the meanings given to them at the time of application of the
formula
by the Bank of England;
|
|
(b)
|
"fee base"
has the meaning given to it in the Fees
Regulations;
|
\P1\3549672.7
81
|
(c)
|
"Fees
Regulations"
means the regulations governing periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force
from
time to time in respect of the payment of fees for the acceptance
of
deposits.
|
|
3
|
If
a Lender does not supply the information required by the Agent to
determine its Additional Cost Rate when requested to do so, the applicable
Mandatory Cost shall be determined on the basis of the information
supplied by the remaining Lenders.
|
|
4
|
If
a change in circumstances has rendered, or will render, the formula
inappropriate, the Agent shall notify the Borrower of the manner
in which
the Mandatory Cost will subsequently be calculated. The manner of
calculation so notified by the Agent shall, in the absence of manifest
error, be binding on the Borrower.
|
\P1\3549672.7
82
SCHEDULE
4: Form of Drawdown Notice
|
To:
|
DnB
NOR Bank ASA
|
From: Teekay
Offshore Operating L.P.
[Date]
Dear
Sirs,
Drawdown
Notice
We
refer
to the Loan Agreement dated 2006 made between, amongst others, ourselves and
yourselves (the "Agreement").
Words
and
phrases defined in the Agreement have the same meaning when used in this
Drawdown Notice.
Pursuant
to Clause 4.1 of the Agreement, we irrevocably request that you advance
a
Drawing
in the sum of [ ]
to us
on 200 , which is a Business Day, by
paying
the amount of the advance to [ ].
We
warrant that the representations and warranties contained in Clause 11.1 of
the
Agreement are true and correct at the date of this Drawdown Notice and will
be
true and correct on 200 , that no Default has occurred and is continuing, and
that no Default will result from the advance of the sum requested in this
Drawdown Notice.
We
select
the period of [ ] months as the
Interest Period
in
respect of the said Drawing.
Yours
faithfully
.......................
For
and
on behalf of
Teekay
Offshore Operating L.P.
\P1\3549672.7
83
SCHEDULE
5: Form of Transfer Certificate
To:
DnB
NOR
Bank ASA
TRANSFER
CERTIFICATE
This
transfer certificate relates to a secured loan facility agreement (as from
time
to time amended, varied, supplemented or novated
the "Loan
Agreement")
dated
2006, on
the terms and subject to the conditions of which a secured revolving
credit facility was
made
available to Teekay Offshore Operating L.P., by a syndicate of banks on whose
behalf you act as agent and security agent.
|
1
|
Terms
defined in the Loan Agreement shall, unless otherwise expressly
indicated,
have the same meaning when used in this certificate. The terms
"Transferor"
and "Transferee"
are defined in the schedule to this
certificate.
|
|
2
|
The
Transferor:
|
|
2.1
|
confirms
that the details in the Schedule under the heading "Transferor's
Commitment"
accurately summarise its Commitment;
and
|
|
2.2
|
requests
the Transferee to accept by way of novation the transfer to the Transferee
of the amount of the Transferorβs Commitment specified in the Schedule by
counter-signing and delivering this certificate to the Agent at its
address for communications specified in the Loan
Agreement.
|
|
3
|
The
Transferee requests the Agent to accept this certificate as being
delivered to the Agent pursuant to and for the purposes of clause
14.4 of
the Loan Agreement so as to take effect in accordance with the
terms of
that clause on the Transfer Date specified in the
Schedule.
|
|
4
|
The
Agent confirms its acceptance of this certificate for the purposes
of
clause 14.4 of the Loan
Agreement.
|
|
5
|
The
Transferee confirms that:
|
|
5.1
|
it
has received a copy of the Loan Agreement together with all
other
information which it has required in connection with this
transaction;
|
\P1\3549672.7
84
|
5.2
|
it
has not relied and will not in the future rely on the Transferor
or any
other party to the Loan Agreement to check or enquire on
its behalf into
the legality, validity, effectiveness, adequacy, accuracy
or completeness
of any such information; and
|
|
5.3
|
it
has not relied and will not in the future rely on the
Transferor or any
other party to the Loan Agreement to keep under review
on its behalf the
financial condition, creditworthiness, condition, affairs,
status or
nature of any Security
Party.
|
|
6
|
Execution
of this certificate by the Transferee constitutes its representation
and
warranty to the Transferor and to all other parties to the Loan
Agreement
that it has the power to become a party to the Loan Agreement as
a Lender
on the terms of the Loan Agreement and has taken all steps to authorise
execution and delivery of this certificate.
|
|
7
|
The
Transferee undertakes with the Transferor and each of the other
parties to
the Loan Agreement that it will perform in accordance with their
terms all
those obligations which by the terms of the Loan Agreement will
be assumed
by it after delivery of this certificate to the Agent and the
satisfaction
of any conditions subject to which this certificate is expressed
to take
effect.
|
|
8
|
The
Transferor makes no representation or warranty and assumes
no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any document
relating to any Finance Document, and assumes no responsibility
for the
financial condition of any Finance Party or for the performance
and
observance by any Security Party of any of its obligations
under any
Finance Document or any document relating to any Finance Document
and any
conditions and warranties implied by law are expressly
excluded.
|
|
9
|
The
Transferee acknowledges that nothing in this certificate
or in the Loan
Agreement shall oblige the Transferor to:
|
|
9.1
|
accept
a re-transfer from the Transferee of the whole or any part of the
rights,
benefits and/or obligations transferred pursuant to this certificate;
or
|
|
9.2
|
support
any losses directly or indirectly sustained or incurred by the Transferee
for any reason including, without limitation, the non-performance
by any
party to any Finance Document of any obligations under any Finance
Document.
|
\P1\3549672.7
85
|
10
|
The
address and fax number of the Transferee for the purposes of clause
18 of
the Loan Agreement are set out in the
Schedule.
|
|
11
|
This
certificate may be executed in any number of counterparts each
of which
shall be original but which shall together constitute the same
instrument.
|
|
12
|
This
certificate shall be governed by and interpreted in accordance
with
English law.
|
THE SCHEDULE
|
1
|
Transferor:
|
|
2
|
Transferee:
|
|
3
|
Transfer
Date
(not earlier that the fifth Business Day after the date of
delivery of the
Transfer Certificate to the
Agent):
|
|
4
|
Transferorβs
Commitment:
|
|
5
|
Amount
transferred:
|
|
6
|
Transfereeβs
address and fax number for the purposes of clause 18
of the Loan
Agreement:
|
[name
of Transferor] [name
of Transferee]
By:
By:
Date:
Date:
DnB
NOR Bank ASA
as
Agent
By:
Date:
\P1\3549672.7
86
SCHEDULE
6: Form of Compliance Certificate
To: DnB
NOR Bank ASA
From: Teekay
Offshore Operating L.P.
Dated:
Dear
Sirs
Teekay
Offshore Operating L.P. Loan Agreement dated
[ ]
(the "Agreement")
|
1.
|
We
refer to the Agreement. This is a Compliance Certificate. Terms defined
in
the Agreement have the same meaning when used in this Compliance
Certificate unless given a different meaning in this Compliance
Certificate.
|
2. We
confirm that as at the date of this certificate:
|
2.1
|
we
maintain a Free Liquidity together with undrawn committed revolving
credit
lines available to us (including under the Loan Agreement but excluding
undrawn committed revolving credit lines with less than six (6) months
to
maturity) of not less than seventy five million Dollars ($75,000,000);
and
|
|
2.2
|
the
aggregate of the Free Liquidity and undrawn committed revolving credit
lines available to be drawn by us (including under the Loan Agreement,
but
excluding undrawn committed revolving credit lines with less than
six (6)
months to maturity) is not less than five per cent (5%) of our Total
Debt.
|
3. We
confirm that no Default is continuing.*
|
Signed:
|
β¦..................
|
|
Duly
authorised representative
|
|
|
of
|
|
|
Teekay
Offshore Operating L.P.
|
* If
this
statement cannot be made, the certificate should identify any Default that
is
continuing and the steps, if any, being taken to remedy
it.]
\P1\3549672.7
87
SCHEDULE
7: The Vessels
Part
I: The Initial Vessels
|
Vessel
|
Flag
|
Bareboat
Charter (where relevant)
|
|
Fuji
Spirit
|
Bahamas
|
|
|
Gotland
Spirit
|
Bahamas
|
|
|
Hamane
Spirit
|
Bahamas
|
|
|
Kilimanjaro
Spirit
|
Bahamas
|
|
|
Leyte
Spirit
|
Bahamas
|
|
|
Luzon
Spirit
|
Bahamas
|
|
|
Navion
Fennia
|
Bahamas
|
|
|
Navion
Torinita
|
Bahamas
|
|
|
Nordic
Xxxxxx
|
Bahamas
|
|
|
Navion
Svenita
|
Bahamas
|
|
|
Poul
Spirit
|
Bahamas
|
|
|
Torben
Spirit
|
Bahamas
|
\P1\3549672.7
88
Part
II: The Step-up Vessels
|
Vessel
|
Flag
|
Bareboat
Charter (where relevant)
|
|
Xxxxxx
Spirit
|
Bahamas
|
|
|
Navion
Stavanger
|
Bahamas
|
Bareboat
Charter dated 16 January 2006 granted by TKN as charterer in favour
of FIC
and Transpetro as bareboat charterers.
|
|
Nordic
Brasilia
|
Bahamas
|
Bareboat
Charter dated 26 August 2003 granted by UNS as charterer in favour
of FIC
and Transpetro as bareboat charterers;
|
|
Nordic
Savonita
|
NIS
|
|
|
Nordic
Spirit
|
Bahamas
|
Bareboat
Charter dated 5 August 2002 granted by UNS as charterer in favour
of FIC
and Transpetro as bareboat charterers;
|
|
Petroatlantic
|
Bahamas
|
Bareboat
Charter dated 19 June 2000 between UNS as original owner and Petrojarl
Production (in its former name of PGS Production AS) as bareboat
charterer
as transferred pursuant to a transfer agreement dated 23 August 2004
entered into between UNS as original owner, Petroatlantic as new
owner,
Petrojarl Production as bareboat charterer and Petroleum Geo as guarantor
(with Petrojarl having replaced Petroleum Geo as guarantor by a release
and replacement agreement dated 22 March 2006) as further transferred
to
the Owner by a deed of assignment dated on or about the date hereof
between Petroatlantic, the Owner, Petrojarl Production and
Petrojarl;
|
|
Petronordic
|
Bahamas
|
Bareboat
Charter dated 19 June 2000 between UNS as original owner and Petrojarl
Production (in its former name of PGS Production AS) as bareboat
charterer
as transferred pursuant to a transfer agreement dated 23 August 2004
entered into between UNS as original owner, Petronordic as new owner,
Petrojarl Production as bareboat charterer and Petroleum Geo as guarantor
(with Petrojarl having replaced Petroleum Geo as guarantor by a release
and replacement agreement dated 22 March 2006) as further transferred
to
the Owner by a deed of assignment dated on or about the date hereof
between Petronordic, the Owner, Petrojarl Production and
Petrojarl;
|
\P1\3549672.7
89
SCHEDULE
8: Reductions
|
Reduction
Dates
(months
after the earlier to occur of (i) the First Drawdown Date and
(ii)
31
October 2006)
|
Reductions
|
Committed
amount
|
Initial
Reduction Amounts
|
|
0
|
$940,000,000
|
0
|
|
|
6
|
1st
reduction
|
$910,902,375
|
$29,097,625
|
|
12
|
2nd
reduction
|
$880,909,998
|
$29,992,377
|
|
18
|
3rd
reduction
|
$849,995,355
|
$30,914,643
|
|
24
|
4th
reduction
|
$818,130,088
|
$31,865,267
|
|
30
|
5th
reduction
|
$785,284,963
|
$32,845,125
|
|
36
|
6th
reduction
|
$751,429,850
|
$33,855,113
|
|
42
|
7th
reduction
|
$716,533,693
|
$34,896,157
|
|
48
|
8th
reduction
|
$680,564,479
|
$35,969,214
|
|
54
|
9th
reduction
|
$643,489,212
|
$37,075,267
|
|
60
|
10th
reduction
|
$605,273,880
|
$38,215,332
|
|
66
|
11th
reduction
|
$565,883,427
|
$39,390,453
|
|
72
|
12th
reduction
|
$525,281,718
|
$40,601,709
|
|
78
|
13th
reduction
|
$483,431,505
|
$41,850,213
|
|
84
|
14th
reduction
|
$440,294,399
|
$43,137,106
|
|
90
|
15th
reduction
|
$395,830,827
|
$44,463,572
|
|
96
|
16th
reduction
|
$350,000,000
|
$45,830,827
|
\P1\3549672.7
90
IN
WITNESS
of which
the parties to this Agreement have executed this Agreement the day and year
first before written.
| SIGNED by | ) |
|
| duly authorised for and on behalf | ) |
[signed]
|
| of TEEKAY OFFSHORE | ) |
|
| OPERATING L.P. | ) |
|
| SIGNED by | ) |
|
| duly authorised for and on behalf | ) |
[signed]
|
| of DNB NOR BANK ASA (as a Lender) | ) |
|
| SIGNED by | ) |
|
| duly authorised for and on behalf | ) |
[signed]
|
|
of
NORDEA
BANK NORGE ASA
|
) |
|
| (as a Lender) | ) |
|
| SIGNED by | ) |
|
| duly authorised for and on behalf | ) |
[signed]
|
|
of
FORTIS
CAPITAL CORP.
|
) |
|
| (as a Lender) | ) |
|
| SIGNED by | ) |
|
|
duly
authorised for and on behalf
|
) |
[signed]
|
|
of
DEUTSCHE
SCHIFFSBANK
|
) |
|
|
AKTIENGESELLSCHAFT
|
) |
|
|
(as
a Lender)
|
) |
|
\P1\3549672.7
91
|
SIGNED
by
|
) |
|
|
duly
authorised for and on behalf
|
) |
[signed]
|
|
of
LANDESBANK HESSEN-THURINGEN
|
) |
|
| GIROZENTRALE | ) |
|
|
(as
a Lender)
|
) |
|
| SIGNED by | ) |
|
| duly authorised for and on behalf | ) |
[signed]
|
| of DNB NOR BANK ASA (as a Agent) | ) |
|
| SIGNED by | ) |
|
| duly authorised for and on behalf | ) |
[signed]
|
|
of
DEUTSCHE
SCHIFFSBANK
|
) |
|
| AKTIENGESELLSCHAFT | ) |
|
| (as the Security Agent) | ) |
|
| SIGNED by | ) |
|
| duly authorised for and on behalf | ) |
[signed]
|
| of DNB NOR BANK ASA (as an MLA) | ) |
|
| SIGNED by | ) |
|
| duly authorised for and on behalf | ) |
[signed]
|
|
of
NORDEA
BANK NORGE ASA
|
) |
|
| (as an MLA) | ) |
|
| SIGNED by | ) |
|
| duly authorised for and on behalf | ) |
[signed]
|
|
of
FORTIS
CAPITAL CORP.
|
) |
|
| (as an MLA) | ) |
|
\P1\3549672.7
92
| SIGNED by | ) |
|
| duly authorised for and on behalf | ) |
[signed]
|
|
of
DNB
NOR BANK ASA
|
) |
|
| (as a bookrunner) | ) |
|
| SIGNED by | ) |
|
| duly authorised for and on behalf | ) |
[signed]
|
|
of
NORDEA
BANK NORGE ASA
|
) |
|
| (as a bookrunner) | ) |
|
\P1\3549672.7
93