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EXHIBIT 1.1
TEEKAY SHIPPING CORPORATION
_____ % FIRST PREFERRED SHIP MORTGAGE NOTES DUE 2008
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FORM OF UNDERWRITING AGREEMENT
January , 1996
Xxxxxxx, Xxxxx & Co.,
As representatives of the several
Underwriters named in Schedule I
hereto
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Teekay Shipping Corporation, a Liberian corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") $225,000,000
aggregate principal amount of % First Preferred Ship Mortgage Notes due 2008
(the "Securities"). The Securities are to be issued pursuant to the provisions
of the Indenture to be dated as of , 1996 (the "Indenture"), among
the Company, VSSI Oceans Inc., a Liberian corporation ("VSSI Oceans"), VSSI
Atlantic Inc., a Liberian corporation ("VSSI Atlantic"), Senang Spirit Inc., a
Bahamian corporation ("Senang Spirit"), VSSI Appian Inc., a Liberian corporation
("VSSI Appian"), Exuma Spirit Inc., a Bahamian corporation ("Exuma Spirit"),
Nassau Spirit Inc., a Bahamian corporation ("Nassau Spirit") and Andros Spirit
Inc., a Bahamian corporation ("Andros Spirit" and, together with VSSI Oceans,
VSSI Atlantic, Senang Spirit, VSSI Appian, Exuma Spirit and Nassau Spirit, the
"Guarantors" and individually a "Guarantor") and United States Trust Company of
New York, as trustee (the "Trustee").
The Company's obligations under the Securities and the Indenture will be
irrevocably and unconditionally guaranteed by each of the Guarantors on a senior
secured basis, pursuant to a guarantee substantially in the form heretofore
delivered to you by each Guarantor in favor of the Trustee (each a "Subsidiary
Guarantee").
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To secure, among other things, the Securities and its respective Subsidiary
Guarantee, each Guarantor will pledge and assign to the Trustee all of its
right, title and interest in and to (i) the Aframax tanker (the "Mortgaged
Vessel") owned by it, pursuant to a First Preferred Ship Mortgage (as defined in
the Indenture) substantially in the form heretofore delivered to you to be
issued in favor of the Trustee, (ii) the time charter party (the "Charter")
between it and Palm Shipping Inc., a Liberian corporation ("Palm Shipping"),
relating to its Mortgaged Vessel, pursuant to an Assignment of Time Charter
substantially in the form heretofore delivered to you (an "Assignment of Time
Charter"), (iii) freights and hires relating to its Mortgaged Vessel, pursuant
to an Assignment of Freights and Hires substantially in the form heretofore
delivered to you (an "Assignment of Freights and Hires"), (iv) all of its
policies and contracts of insurance taken out from time to time in respect of
the Mortgaged Vessels, pursuant to an Assignment of Insurance substantially in
the form heretofore delivered to you (an "Assignment of Insurance") and (v) the
account maintained in the name of the Trustee into which charter hire under the
Charter will be paid following an Event of Default (as defined in the Indenture)
(the "Cash Collateral Account"), pursuant to the Indenture and a Cash Collateral
Account Agreement substantially in the form heretofore delivered to you (a "Cash
Collateral Account Agreement").
The Securities will also be secured by, among other things, a pledge by the
Company of (i) all of the issued and outstanding capital stock of each
Guarantor, pursuant to a pledge agreement in favor of the Trustee substantially
in the form heretofore delivered to you (the "Pledge Agreement") and (ii) the
investment account in the name of the Trustee maintained pursuant to the terms
of the investment account agreement between the Company and the Trustee (the
"Investment Account Agreement"). The Subsidiary Guarantees, Pledge Agreement,
Investment Account Agreement, First Preferred Ship Mortgages, Assignments of
Time Charter, Assignments of Freights and Hires, Assignments of Insurance and
Cash Collateral Account Agreements collectively will hereinafter be referred to
as the "Security Documents".
At the Time of Delivery (as defined below), approximately $
million of the proceeds from the offering of the Securities will be used to
repay certain indebtedness outstanding with respect to the Mortgaged Vessels,
and, upon such repayment, all outstanding Liens (as defined in the Indenture) on
the Mortgaged Vessels with respect to such indebtedness will be released.
1. Each of the Company and the Guarantors represents and warrants to, and
agrees with, each of the Underwriters that:
(a) A registration statement on Form F-3 (File No. 33-65139) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement, as amended prior to its effective date, and
any post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto but including all
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documents incorporated by reference in the prospectus contained
therein, have been declared effective by the Commission in such form; other
than a registration statement, if any, increasing the size of the offering
(the "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule 424(a)
of the rules and regulations of the Commission under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto but excluding Form T-1 and including
(i) the information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be
part of the registration statement at the time it was declared effective
and (ii) the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time such part of
the registration statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, each
as amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "Registration
Statement"; such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form F-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement;
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
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regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Xxxxx & Co. expressly for use therein;
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however,that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein;
(e) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
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court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or long-term
debt (other than an immaterial change due to repayment or borrowing under
existing credit agreements) of the Company or any of its subsidiaries or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus;
(f) The Company has good and marketable title to all properties and
assets owned by it, free and clear of all liens, encumbrances and defects
except for Permitted Liens (as defined in the Indenture) and such as are
described or referenced in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company. Each Guarantor has
good and marketable title, free and clear of all liens, encumbrances and
defects, to the Mortgaged Vessel listed opposite its name on Schedule III
attached hereto, except for Permitted Liens (as defined in the Indenture)
and such as are created pursuant to the credit agreements and security
documents listed on Schedule V attached hereto or are imposed pursuant to
the Indenture and any relevant Security Document;
(g) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the Republic of Liberia, has
the power and authority to own its property and to conduct its business as
currently conducted and as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(h) Each subsidiary of the Company (including, without limitation, the
Guarantors and Palm Shipping) has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole, on any Guarantor or on Palm Shipping;
(i) All of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
nonassessable. None of the
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outstanding shares of capital stock of the Company was issued in violation
of the preemptive rights of any stockholder of the Company. The Company had
at the date indicated a duly authorized and outstanding capitalization as
set forth in the Prospectus;
(j) All of the issued shares of capital stock of each Guarantor and
Palm Shipping have been duly and validly authorized and issued, are fully
paid and nonassessable and are owned by the Company free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance of
any kind, except, in the case of capital stock of the Guarantors, any
security interest to be created under the Indenture and the Security
Documents. All of the outstanding shares of capital stock of each
subsidiary of the Company other than the Guarantors and Palm Shipping have
been duly and validly authorized and issued, are fully paid and
nonassessable and, at the Time of Delivery, will be owned by the Company
free and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind, except as set forth in Schedule II
attached hereto. There are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of
capital stock of any subsidiary of the Company.
(k) This Agreement has been duly authorized, executed and delivered by
the Company and each Guarantor;
(l) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized by the Company and each
Guarantor and duly qualified under the Trust Indenture Act and when
executed and delivered by the Company, the Guarantors and the Trustee will
constitute a valid and legally binding instrument, enforceable against the
Company and each Guarantor in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium and
other similar laws of general applicability from time to time in effect
relating to or affecting creditors' rights and to general equity principles
(regardless of whether considered in a proceeding in equity or at law); and
the Securities and the Indenture will conform to the descriptions thereof
in the Prospectus;
(m) Each of the Security Documents has been duly authorized by the
Company and the Guarantors, as the case may be (and Palm Shipping with
respect to the Investment Account Agreement), that are a party thereto,
and, when executed and delivered by the Company and the Guarantors, as the
case may be (and Palm Shipping with respect to the Investment Account
Agreement), party thereto, will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency (including, without limitation, all
laws relating
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to fraudulent transfers), reorganization, moratorium or other similar laws
of general applicability from time to time in effect relating to or
affecting creditors' rights and to general equity principles (regardless of
whether considered in a proceeding in equity or at law);
(n) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, this Agreement, the
Indenture and the Security Documents to which it is a party (i) will not
contravene any provision of applicable law or the articles of incorporation
or by-laws of the Company or any of its subsidiaries or any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
("Governmental Agency") having jurisdiction over the Company or any
subsidiary and (ii) will not result in or require the creation or
imposition of any lien, charge or other encumbrance upon or with respect to
any of the properties of the Company or any of its subsidiaries, except
pursuant to the terms of the Indenture and the Security Documents; and no
consent, approval, authorization or order of or qualification with
("Governmental Authorization") any governmental body or agency is required
for the issue and sale of the Securities or the performance by the Company
of its obligations under this Agreement, the Indenture or the Security
Documents to which it is a party, except the registration under the Act of
the Securities and the Subsidiary Guarantees, such as have been obtained
under the Trust Indenture Act and such as may be required by the securities
or Blue Sky laws of the various states in the United States, or other
applicable jurisdictions, in connection with the offer and sale of the
Securities;
(o) The compliance by each Guarantor with all of the provisions of
this Agreement, the Indenture and the Security Documents to which such
Guarantor is a party (i) will not contravene any provision of applicable
law, or the articles of incorporation or by-laws of such Guarantor or any
of its subsidiaries or any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument binding upon such
Guarantor or any of its subsidiaries that is material to such Guarantor and
its subsidiaries taken as a whole, or any judgment, order or decree of any
Governmental Agency having jurisdiction over such Guarantor or any of its
subsidiaries and (ii) will not result in or require the creation or
imposition of any lien, charge or other encumbrance upon or with respect to
any of the properties of such Guarantor or any of its subsidiaries, except
pursuant to the terms of the Indenture and the Security Documents; and no
Governmental Authorization of any governmental body or agency is required
for the performance by such Guarantor of its obligations under this
Agreement, the Indenture and the Security Documents to which such Guarantor
is a party, except the registration under the Act of the Securities and the
Subsidiary Guarantees, such as have been obtained under the Trust Indenture
Act and such as may be required by the securities or Blue Sky laws of the
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various states in the United States, or other applicable jurisdictions, in
connection with the offer and sale of the Securities;
(p) Neither the Company nor any of its subsidiaries is in violation of
its articles of incorporation or by-laws or in default in the performance
or observance of any material obligation, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound;
(q) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(r) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(s) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
provincial, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except to the extent
that the failure to obtain or file would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, on any Guarantor or
on Palm Shipping, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to revocation or modification
of any such licenses, permits, certificates, consents, orders, approvals or
authorizations;
(t) No material labor dispute with the employees of the Company or any
of its subsidiaries exists, except as described in or contemplated by the
Prospectus, or, to the knowledge of the Company, is imminent;
(u) Each Charter with respect to each of the Mortgaged Vessels has
been duly authorized and constitutes a valid and binding obligation of Palm
Shipping and the Guarantor that is a party thereto enforceable against Palm
Shipping and such Guarantor in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or other
similar laws of general applicability from time to time in effect
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relating to or affecting creditors' rights and to general equity principles
(regardless of whether considered in a proceeding in equity or at law).
None of Palm Shipping or the Guarantors is, nor with giving of notice or
lapse of time or both would be, in violation of or in default under, nor
will the execution or delivery of this Agreement or the consummation of the
transactions contemplated hereby result in a violation of, or constitute a
default under, any Charter;
(v) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged;
(w) Except as otherwise described in the Prospectus, each of the
Company and its subsidiaries has filed all income or other tax returns that
are required to have been filed in its relevant jurisdictions, except
insofar as the failure to file such returns would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole, and
has paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Company and the Guarantors, except for such
taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided;
(x) There is no tax, levy, impost, deduction, charge or withholding
imposed by the Republic of Liberia or any political subdivision or taxing
authority thereof either (i) on or by virtue of the execution, delivery or
performances of this Agreement, the Indenture, any Security Document or any
other document to be furnished hereunder, or (ii) on any payment to be made
by the Company or any Guarantor pursuant to this Agreement, the Indenture,
the Securities or any Security Document, except for any tax, levy, impost,
deduction, charge or withholding imposed on payments made to holders of
Securities who reside in, maintain an office in or engage in business in
the Republic of Liberia;
(y) The representations and warranties made by the Company and the
Guarantors in the Security Documents to which they are a party will, when
such documents are executed and delivered, be true and correct;
(z) Each of the Company, the Guarantors and Palm Shipping is, and
immediately after the Time of Delivery will be, Solvent. As used herein,
the term "Solvent" means, with respect to each of the Company, the
Guarantors or Palm Shipping on a particular date (i) the fair market value
of the assets of the Company, such Guarantor, or Palm Shipping, as the case
may be, is greater than the total amount of liabilities (including
contingent liabilities) of the Company, such Guarantor or Palm Shipping, as
the case may be, (ii) the present fair saleable value of the assets of the
Company, such Guarantor, or Palm Shipping, as the case may be, is greater
than the amount that will be required to pay the probable liabilities of
the Company, such
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Guarantor, or Palm Shipping, as the case may be, on its debts as they
become absolute and matured, (iii) the Company, such Guarantor, or Palm
Shipping, as the case may be, is able to realize upon its assets and pay
its debts and other liabilities, including contingent obligations, as they
mature and (iv) the Company, such Guarantor, or Palm Shipping, as the case
may be, does not have an unreasonably small capital.
(aa) Except as otherwise described in the Prospectus, the Company and
its subsidiaries are (i) in compliance with any and all applicable foreign,
federal, provincial, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(bb) Except as otherwise described in the Prospectus, in the ordinary
course of its business, the Company conducts a periodic review of the
effect of Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(cc) The consolidated financial statements of the Company included in
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act, and the
related published rules and regulations thereunder. The consolidated
financial statements included in the Prospectus present fairly the
consolidated financial position of the Company and its subsidiaries as of
the dates indicated and the consolidated results of operations and changes
in financial position of the Company and its subsidiaries for the periods
specified. Such financial statements have been prepared in conformity with
United States generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The selected financial
data included in the Prospectus present fairly the information shown
therein. Such selected financial data as at and for the fiscal years ended
April 30, 1991, 1992 and 1993, as at and for the 11-month period ended
March 31, 1994, and as at and
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for the fiscal year ended March 31, 1995 have been derived from the audited
consolidated financial statements of the Company, and such selected
financial data as at and for the six month periods ended September 30, 1994
and 1995 have been derived from the unaudited consolidated financial
statements of the Company. The pro forma financial information included in
the Prospectus presents fairly the information shown therein and has been
properly compiled on the pro forma bases described therein, and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein. Ernst and Young
are independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(dd) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida); and
(ee) The statements set forth in the Prospectus under the captions
"Description of the Notes", insofar as they purport to constitute a summary
of the terms of the Securities, and under the caption "Tax Considerations",
insofar as they purport to describe the provisions of the laws referred to
therein, are accurate, complete and fair;
2. Subject to the terms and conditions herein set forth, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of % of the principal amount thereof, plus accrued interest, if any,
from January [29], 1996 to the Time of Delivery hereunder, the principal amount
of Securities set forth opposite the name of such Underwriter in Schedule I
hereto.
3. Upon the authorization by you of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to
Xxxxxxx, Sachs & Co., for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by wire transfer to
or at the direction of the Company in immediately available funds. Except as set
forth in the next paragraph, the Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive global Securities in
book-entry form which will be deposited by or on behalf of the Company with The
Depository Trust Company ("DTC") or its designated custodian. The Company will
deliver the Securities to Xxxxxxx, Xxxxx & Co., for the account of each
Underwriter, against payment by or on behalf of such Underwriter of
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the purchase price therefor by wire transfer to or at the direction of the
Company in immediately available funds, by causing DTC to credit the Securities
to the account of Xxxxxxx, Sachs & Co., at DTC. The Company will cause the
certificates representing such Securities to be made available to Xxxxxxx, Xxxxx
& Co., for checking at least twenty-four hours prior to the Time of Delivery (as
defined below) at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall be 9:30 a.m., New
York City time, on January [29], 1996 or such other time and date as Xxxxxxx,
Sachs & Co. and the Company may agree upon in writing. Such time and date are
herein called the "Time of Delivery".
Such Securities, if any, as Xxxxxxx, Xxxxx & Co. may request upon at least
forty-eight hours' prior notice to the Company (such request to include the
authorized denominations and the names in which such Securities are to be
registered), shall be delivered in definitive certificated form, by or on behalf
of the Company to Xxxxxxx, Sachs & Co. for the account of certain of the
Underwriters, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer to or at the direction of the Company
in immediately available funds. The Company will cause the certificates
representing such Securities to be made available for checking and packing at
least twenty-four hours prior to the Time of Delivery at the office of Xxxxxxx,
Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated
Office").
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Underwriters
pursuant to Section 7(w) hereof, will be delivered at the offices of Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing
Location"), and the Securities will be delivered at the Designated Office, all
at the Time of Delivery. A meeting will be held at the Closing Location at 2:00
p.m., New York City time, on the New York Business Day next preceding such Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus prior to the Time of Delivery which shall be disapproved by you
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promptly after reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof; to file promptly all reports required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the offering
or sale of the Securities; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such qualification,
to promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering
or sale of the Securities and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust indenture Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
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Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a prospectus
in connection with sales of any of the Securities at any time nine months
or more after the time of issue of the Prospectus, upon your request but at
the expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder any securities of the Company that are substantially similar to
the Securities;
(f) To furnish to its holders of the Securities as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries certified by independent
chartered accountants) and, as soon as practicable after the end of each of
the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
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(i) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; and
(j) To use its best efforts to list, subject to notice of issuance,
the Securities on the New York Stock Exchange (the "Exchange").
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Indenture, the Blue Sky and Legal
Investment Memoranda, and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities; (viii) all taxes arising as a result of the issuance, sale and
delivery of the Securities by the Underwriters to the initial purchasers thereof
in the manner contemplated by this Agreement, including, in any such case, any
Liberian income, capital gains, withholding, transfer or other tax asserted
against an Underwriter by reason of the purchase and sale of the Securities
pursuant to this Agreement and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
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7. The obligations of the Underwriters hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company and of each Guarantor are, at and as of such Time of
Delivery, true and correct, the condition that the Company and each Guarantor
shall have performed all of its obligations hereunder and under the Security
Documents to which it is a party theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Time of Delivery, in
form and substance satisfactory to you, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Haight, Gardner, Poor & Xxxxxx, counsel for the Company, VSSI
Oceans, VSSI Atlantic and VSSI Appian, shall have furnished to you their
written opinion substantially in the form attached as Annex I(a) hereto,
dated such Time of Delivery.
(d) Xxxxxx, Xxxxxxxx & Company, special Bahamian counsel for the
Company, and for Senang Spirit, Exuma Spirit, Nassau Spirit, and Andros
Spirit (collectively, the "Bahamian" Guarantors, and each, individually, a
"Bahamian Guarantor"), shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex I(b) hereto) dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered
by each Bahamian Guarantor;
(ii) each of the subsidiaries of the Company listed on a schedule
thereto has been duly incorporated, is validly existing as a corporation
in good standing under the laws of The Bahamas and has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus;
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(iii) all of the issues shares of capital stock of each Bahamian
Guarantor have been duly authorized and validly issued and, assuming
issuance against payment therefor, are fully paid and nonassessable. To
such counsel's knowledge, all of the shares of capital stock of each
Bahamian Guarantor are owned by the Company free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance of
any kind, except for the security interest created under the Pledge
Agreement. To such counsel's knowledge, there are no outstanding rights,
warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock of any of the Bahamian
Guarantors.
(iv) the Indenture has been duly authorized, executed and delivered
by each Bahamian Guarantor;
(v) each of the Security Documents to which a Bahamian Guarantor is
a party has been duly authorized, executed and delivered by such
Bahamian Guarantor;
(vi) each Charter to which a Bahamian Guarantor is a party has been
duly authorized, executed and delivered by such Bahamian Guarantor;
(vii) there is no tax, levy, impost, deduction, charge or
withholding imposed by The Bahamas or any political subdivision or
taxing authority thereof or therein either (1) on or by virtue of the
execution, or delivery or performance or continued validity of any of
the Indenture or any Security Document or any other document referred to
therein or to be furnished thereunder (including without limitation the
Securities) or (2) on any payment to be made by the Company or any
Guarantor pursuant to any of the Indenture, the Securities or any
Security Document. All filing, registration and recording fees required
under the laws of The Bahamas in connection with the Indenture or any
Security Document or other fees necessary to assure the validity,
effectiveness and priority of any liens, charges and encumbrances
created thereby, have to our knowledge been paid;
(viii) insofar as any matter of Bahamian law is addressed therein,
the statements made in the Prospectus under "Enforceability of Civil
Liabilities under the Federal Securities Laws", "Risk Factors --
Enforcement of Mortgages", "Description of the Notes -- Fraudulent
Conveyance Statutes", "The Subsidiary Guarantees" and "The Mortgaged
Vessels -- The Mortgages", to the extent that they constitute matters of
law or legal conclusions, fairly present the information disclosed
therein in all material respects;
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(ix) no authorization, consent, license, permission, permit or
approval (including exchange control approval) of or action by, and no
notice to or filing with, any governmental authority or regulatory body
of The Bahamas is required for the execution, delivery and performance
of the Indenture or any of the Security Documents by the respective
Bahamian Guarantor party thereto and no such authorization, consent,
license, permission, permit, approval, action, notice or filing is
required for the exercise by the Trustee of the rights and remedies
granted to it under any of the Security Documents, except for the filing
and registration of the First Preferred Ship Mortgages in The Bahamas;
(x) VSSI Atlantic, VSSI Appian and each Bahamian Guarantor is the
registered owner of record of its respective Mortgaged Vessel, free and
clear of any Liens (as defined in the Indenture), except for the
respective liens of the First Preferred Ship Mortgages and Permitted
Liens (as defined in the Indenture);
(xi) each of the First Preferred Ship Mortgages over the Mortgaged
Vessels owned by the Bahamian Guarantors and VSSI Atlantic and VSSI
Appian was duly received for recording in The Bahamas Maritime
Authority's Office at The Bahamas High Commission in the City of London
and was duly recorded, as follows: the First Preferred Ship Mortgage
over the Torben Spirit in Book P.M. [ ] at Page [ ]; the First
Preferred Ship Mortgage over the Senang Spirit in Book P.M. [ ] at
Page [ ]; the First Preferred Ship Mortgage over the Mayon Spirit in
Book P.M. [ ] at Page [ ]; the First Preferred Ship Mortgage
over the Leyte Spirit in Book P.M. [ ] at Page [ ]; the First
Preferred Ship Mortgage over the Luzon Spirit in Book P.M. [ ] at
Page [ ]; and the First Preferred Ship Mortgage over the Samar
Spirit in Book P.M. [ ] at Page [ ]; all in accordance with the
laws of The Bahamas; and each creates the first preferred mortgage lien
covering the respective Mortgaged Vessel which it purports to create,
with each First Preferred Ship Mortgage being a first preferred mortgage
lien on the related Mortgaged Vessel;
(xii) the security interests created by each Security Document
(other than the First Preferred Ship Mortgages and the Cash Collateral
Account Agreements) do not require any action to be taken under or
pursuant to the laws of The Bahamas to create or perfect such security
interests or to permit the Trustee to enforce its rights under the
Security Document creating the same, other than the delivery by the
Company of the stock certificates of each of the Guarantors to the
Trustee at the Closing;
(xiii) the choice of New York law to govern this Agreement, the
Indenture and the Security Documents (other than the First Preferred
Ship Mortgages) constitutes a valid choice of law insofar as the law of
The Bahamas
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is concerned. The submission by the Bahamian Guarantors to the
non-exclusive jurisdiction of any federal or state court in the Borough
of Manhattan, The City of New York (a "New York court") is a valid
submission insofar as the law of The Bahamas is concerned, provided that
Lawco of Oregon, Inc. has accepted its appointment by each Bahamian
Guarantor as its agent to accept service of process in the United States
of America;
(xiv) in a suit on the merits brought before a Bahamian court, a
Bahamian court will respect and enforce the agreement of the parties as
to judgment currency;
(xv) a final and conclusive judgment in personam granted by a
foreign court against any Bahamian Guarantor may be enforced in The
Bahamas without a retrial on the merits of the matter;
(xvi) none of the Bahamian Guarantors nor any of their respective
property has any immunity from jurisdiction of any court or from any
legal process under the law of The Bahamas;
(xvii) the execution and delivery by each Bahamian Guarantor of,
and the performance by each Bahamian Guarantor of its obligations under,
this Agreement, the Indenture and the Security Documents to which it is
a party will not contravene the articles of incorporation or by-laws of
such Bahamian Guarantor;
(xviii) the First Preferred Ship Mortgages over the Mortgaged
Vessels owned by the Bahamian Guarantors and by VSSI Atlantic and VSSI
Appian conform in all material respects to the descriptions thereof in
the Prospectus;
(xix) each of the First Preferred Ship Mortgages over the Mortgaged
Vessels owned by the Bahamian Guarantors is a valid and binding
agreement of the Bahamian Guarantor party thereto, enforceable against
such Bahamian Guarantor in accordance with its terms, subject (1) as to
enforcement, to bankruptcy, moratorium and other laws of general
applicability from time to time in effect relating to or affecting
creditors' rights and (2) to general equitable principles (regardless of
whether considered in a proceeding in equity or law); and
(xx) the First Preferred Ship Mortgages over the Mortgaged Vessels
owned by the Bahamian Guarantors and by VSSI Atlantic and VSSI Appian
create valid security interests enforceable against the Guarantor party
thereto with
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respect to the collateral subject thereto as security for the
performance of the obligations secured thereby.
(e) Xxxxxxx Coie, counsel for the Company, shall have furnished to you
their written opinion (a draft of such opinion is attached as Annex I(c)
hereto) dated such Time of Delivery, in a form and substance satisfactory
to you, to the effect that:
(i) the Indenture has been fully qualified under the Trust
Indenture Act;
(ii) the Securities, the Indenture, the Pledge Agreement, the
Investment Account Agreement, the Subsidiary Guarantees and the Cash
Collateral Account Agreements (the Pledge Agreement, the Investment
Account Agreement, the Subsidiary Guarantees and the Cash Collateral
Account Agreements are collectively referred to herein as the
"Collateral Documents") conform in all material respects to the
descriptions thereof in the Prospectus;
(iii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Collateral Documents to which it is a party and the
Securities (i) will not contravene any provision of the laws of the
United States or New York or, to such counsel's knowledge, any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken
as a whole, or, to such counsel's knowledge, any judgment or decree of
any governmental body, agency or court of the United States or any state
thereof having jurisdiction over the Company or any subsidiary and (ii)
to such counsel's knowledge, will not result in or require the creation
or imposition of any lien, charge, or other encumbrance upon or with
respect to any of the properties of the Company or any of its
subsidiaries, except pursuant to the terms of the Indenture, the
Collateral Documents and the other Security Documents; and no consent,
approval, authorization or order of or qualification with any
governmental body or agency of the United States or New York is required
for the issue and sale of the Securities or the performance by the
Company of its obligations under this Agreement, the Indenture, the
Collateral Documents to which it is a party or the Securities, except
such as have been obtained under the Act and the Trust Indenture Act and
as may be required by the securities or Blue Sky laws of the various
states in the United States, or other applicable jurisdictions, in
connection with the offer and sale of the Securities by the
Underwriters;
(iv) the execution and delivery by each Guarantor of, and the
performance by each Guarantor of its obligations under, this Agreement,
the
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Indenture and the Collateral Documents to which it is a party (i) will
not contravene any provision of the laws of the United States or New
York or, to such counsel's knowledge, any indenture, mortgage, deed of
trust, loan agreement, lease, or other agreement or instrument binding
upon such Guarantor or any of its subsidiaries that is material to such
Guarantor and its subsidiaries, taken as a whole, or, to such counsel's
knowledge, any judgment, or decree of any governmental body, agency or
court of the United States or any state thereof having jurisdiction over
such Guarantor or any of its subsidiaries and (ii) to such counsel's
knowledge, will not result in or require the creation of imposition of
any lien, charge or other encumbrance upon or with respect to any of the
properties of such Guarantor or any of its subsidiaries, except pursuant
to the terms of the Indenture, the Collateral Documents and the other
Security Documents; and no consent, approval, authorization or order of
or qualification with any governmental body or agency of the United
States or New York is required for the performance by such Guarantor of
its obligations under this Agreement, the Indenture or the Collateral
Documents to which it is a party, except such as have been obtained
under the Act and the Trust Indenture Act and as may be required by the
securities or Blue Sky laws of the various states in the United States,
or other applicable jurisdictions, in connection with the offer and sale
of the Securities by the Underwriters;
(v) the statements in the Prospectus under the captions "Management
-Executive Compensation", "Description of Certain Indebtedness",
"Description of the Notes", "The Subsidiary Guarantees" and "Tax
Considerations -- United States Tax Considerations", in each case
insofar as such statements constitute summaries of legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings referred to therein, and fairly summarize the matters
referred to therein, in each case in all material respects;
(vi) insofar as any matter of United States federal law (other than
federal maritime law) or New York laws is addressed therein, the
statements made in the Prospectus under "Enforceability of Civil
Liabilities under the Federal Securities Laws", "Description of the
Notes -- Fraudulent Conveyance Statutes" and "The Subsidiary
Guarantees", to the extent that they constitute matters of law or legal
conclusions, fairly present the information disclosed therein in all
material respects;
(vii) to such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to
be described in the Registration
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Statement or the Prospectus and are not so described nor are there any
statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required;
(viii) the Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended;
(ix) to such counsel's knowledge, all of the shares of capital
stock of the Guarantors and of Palm Shipping are owned by the Company
free and clear of any pledge, lien, security interest, charge, claim or
encumbrance of any kind, except, in the case of the capital stock of the
Guarantors, for the security interest created under the Pledge
Agreement; to such counsel's knowledge, there are no outstanding rights,
warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock of any subsidiary of the
Company;
(x) assuming the due authorization, execution, issuance and
delivery of the Securities by the Company and the due authentication of
the Securities by the Trustee, the Securities constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture;
(xi) assuming the due authorization, execution and delivery of the
Indenture by each party thereto, the Indenture constitutes a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium and other laws of general applicability from
time to time in effect relating to or affecting creditors' rights and to
general equitable principles (regardless of whether considered in a
proceeding in equity or at law);
(xii) assuming the due authorization, execution and delivery of
each Collateral Document by each party thereto, each Collateral Document
is a valid and binding agreement of the Company or the Guarantor party
thereto, as the case may be, enforceable against the Company or such
Guarantor in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium and other laws of
general applicability from time to time in effect relating to or
affecting creditors' rights and to general equitable principles
(regardless of whether considered in a proceeding in equity or at law);
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(xiii) assuming the due authorization, execution and delivery by
each party thereto, the Collateral Documents create valid security
interests enforceable against the Company or the Guarantor party
thereto, as the case may be, with respect to the collateral subject
thereto as security for the performance of the obligations secured
thereby and the security interests created by each such Collateral
Document (other than the Cash Collateral Account Agreements and the
Investment Account Agreement) do not require any action to be taken
under or pursuant to the laws of the State of New York in order to
perfect such security interests, other than the delivery by the Company
of the stock certificates of each of the Guarantors to the Trustee at
the Closing;
(xiv) on the basis of information reviewed by such counsel in the
course of such counsel's performance of services in connection with the
registration of the Securities, including such counsel's participation
in conferences with officers and other representatives of the Company,
representatives of the Chartered Accountants for the Company,
representatives of the Underwriters and counsel for the Underwriters at
which the contents of the Prospectus were discussed (relying as to
materiality to the extent such counsel deems appropriate upon the
opinions of officers and other representatives of the Company), the
Registration Statement and Prospectus, including the documents
incorporated by reference in the Prospectus and any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
(except for financial statements and schedules included therein as to
which such counsel need not express any opinion) comply as to form in
all material respects with the Act, the Exchange Act and the Trust
Indenture Act, as applicable, and the rules and regulations of the
Commission thereunder.
In addition to the matters set forth above, counsel rendering the
foregoing opinion shall also include a statement to the effect that
although such counsel assumes no responsibility for the factual accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, on the basis of the procedures undertaken by
such counsel (and relying as to materiality to the extent such counsel
deems appropriate upon the opinions of officers and other representatives
of the Company), no facts have come to the attention of such counsel that
cause it to believe that the Registration Statement, at the time it became
effective and as of such Time of Delivery, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that
the Prospectus, including the documents incorporated by reference and any
further amendment or supplement thereto, at the time it was mailed or
otherwise delivered to the commission for filing pursuant to Rule 424(b)
and as of such Time of Delivery, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that counsel need not express any opinion with
respect to the financial
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statements and supporting schedules and other financial data included in
the Registration Statement and the Prospectus. Counsel may indicate that it
has not undertaken any independent investigation to verify the
completeness, accuracy or fairness of the statements made in the
Registration Statement or the Prospectus.
With respect to subparagraph (xiv) of paragraph (e) above, Xxxxxxx
Coie and Shearman & Sterling may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without independent
check or verification except as specified.
The opinion of Haight, Gardner, Poor & Xxxxxx described in paragraph
(c) above, the opinion of Xxxxxx, Xxxxxxxx & Company described in paragraph
(d) above and the opinion of Xxxxxxx Coie described in paragraph (e) above
shall each be rendered to you at the request of the Company and shall so
state therein.
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at the Time of Delivery, Ernst &
Young shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you, to
the effect set forth in Annex II hereto (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as Annex
II(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex II(b)
hereto);
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been
any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in Clause (i)
or (ii), is in the judgment of Xxxxxxx, Xxxxx & Co. so material and adverse
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
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(h) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 426(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities;
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on any exchange
or in any over-the-counter market; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; (iv) a change or development involving a prospective change in
Liberian taxation affecting the Company, the Securities or the transfer
thereof or the imposition of exchange controls by the United States or
Liberia; or (v) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this Clause
(v) in the judgment of Xxxxxxx, Sachs & Co. makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus or (vi) the occurrence of any
material adverse change in the existing financial, political or economic
conditions in the United States, the Republic of Liberia or elsewhere
which, in the judgment of Xxxxxxx, Xxxxx & Co. would materially and
adversely affect the financial markets or the market for the Securities and
other debt securities;
(j) The Company and the Guarantors shall have furnished to you and the
Trustee a copy of the Charters with respect to each Mortgaged Vessel
substantially in the form heretofore delivered to you certified by the
Company, Palm Shipping and the respective Guarantor to be true and correct;
(k) The Company and the Guarantors shall have furnished to you and the
Trustee a copy of the Management Agreement with respect to each Mortgaged
Vessel certified by the Company and the respective Guarantor to be true and
correct;
(l) Security Documents substantially in the form heretofore delivered
to you shall have been executed and delivered to the Trustee by each of the
Company and the Guarantors party thereto.
(m) The Company shall have delivered to the Trustee a Certificate of
Ownership and Encumbrances issued by the Office of the Deputy Commissioner
for Maritime Affairs of the Republic of Liberia at the Port of New York or
The Bahamas Maritime Authority's Office at The Bahamas High Commission in
the City of London,
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as the case may be, with respect to each Mortgaged Vessel showing that each
Guarantor is the sole owner of its Mortgaged Vessel free and clear of all
Liens, except Liens created pursuant to the Security Documents and
Permitted Liens (as defined in the Indenture);
(n) First Preferred Ship Mortgages with respect to each Mortgaged
Vessel shall have been duly received for recording in the Office of the
Deputy Commissioner for Maritime Affairs of the Republic of Liberia at the
Port of New York or The Bahamas Maritime Authority's Office at The Bahamas
High Commission in the City of London and duly recorded, all in accordance
with the laws of the Republic of Liberia or The Bahamas, as the case may
be.
(o) The Company shall have delivered to the Trustee the stock
certificates of each of the Guarantors pledged to the Trustee pursuant to
the Pledge Agreement, together with stock powers executed in blank;
(p) The Company shall have delivered to the Trustee its irrevocable
proxy pursuant to the Pledge Agreement;
(q) The Company shall have delivered to the Trustee the report of an
insurance broker required by Section 1.15(a)(iii) of each of the First
Preferred Ship Mortgages with respect to the insurance policies maintained
by each Guarantor in respect of its Mortgaged Vessel, which report shall
include loss payable clauses substantially in the form set in Schedule I
and Schedule II to each of the First Preferred Ship Mortgages;
(r) You shall have received from Xxxxxxx, Xxxxxx & Xxxxx Shipbrokers
Ltd. and X.X. Xxxxxx Shipbrokers Ltd. letters, in form and substance
satisfactory to you, setting forth their determination of the Appraised
Value (as defined in the Indenture), as of December 13, 1995, of each of
the Mortgaged Vessels, which Appraised Values shall, for each Mortgaged
Vessel not be less than the value set forth below opposite such Mortgaged
Vessel:
MINIMUM
MORTGAGED VESSEL APPRAISED VALUE
---------------- ---------------
Poul Spirit .................................... $
Torben Spirit .................................. $
Senang Spirit .................................. $
Mayon Spirit ................................... $
Leyte Spirit ................................... $
Luzon Spirit ................................... $
Samar Spirit ................................... $
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(s) With respect to each Mortgaged Vessel, you shall have received a
Classification Certificate, dated as of a date not more than 10 days prior
to the Time of Delivery, from the classification societies listed below
certifying that each Mortgaged Vessel is in the class listed below opposite
such vessel:
MORTGAGED VESSEL CLASSIFICATION SOCIETY CLASS
---------------- ---------------------- ---------
Poul Spirit ......................................
Torben Spirit ....................................
Senang Spirit ....................................
Mayon Spirit .....................................
Leyte Spirit .....................................
Luzon Spirit .....................................
Samar Spirit .....................................
(t) You and the Trustee shall have received evidence satisfactory to
you and the Trustee to the effect that all indebtedness outstanding at the
Time of Delivery with respect to the Mortgaged Vessels, as set forth on
Schedule IV attached hereto, has been repaid and that all security granted
by, or covering assets or property or capital stock of any Guarantor with
respect to such indebtedness, as set forth in Schedule V, shall have been
released;
(u) You and the Trustee shall have received a solvency certificate
from the Company and from each Guarantor;
(v) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(w) The Company and each Guarantor shall have furnished or caused to
be furnished to you at the Time of Delivery certificates of officers of the
Company and each Guarantor satisfactory to you as to the accuracy of the
representations and warranties of the Company and each Guarantor herein at
and as of such Time of Delivery, as to the performance by the Company and
each Guarantor of all of its obligations hereunder to be performed at or
prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (g) of this Section and as to such other matters as you may
reasonably request; and
(x) You shall have received satisfactory evidence that the Securities
shall have been approved for listing on the Exchange, subject only to
notice of issuance.
8. (a) The Company and the Guarantors, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as
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28
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and the Guarantors shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein.
(b) Each Underwriter will indemnify and hold harmless the Company and the
Guarantors against any losses, claims, damages or liabilities to which the
Company or the Guarantors may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein; and will
reimburse the Company and the Guarantors for any legal or other expenses
reasonably incurred by the Company or the Guarantors in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the
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indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantors on the one hand and the Underwriters on the
other from the offering of the Securities. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and the Guarantors on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Guarantors on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities purchased under this Agreement (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Securities
purchased under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Guarantors on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Guarantors and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does
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30
not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Guarantors under this Section 8
shall be in addition to any liability which the Company or the Guarantors may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and each
Guarantor and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
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31
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the principal
amount of Securities which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Securities which such Underwriter agreed
to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Guarantors except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Guarantors and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company and the Guarantors shall not then be under any liability to any
Underwriter except as provided in Sections 6 and 8 hereof; but, if for any other
reason, the Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but the
Company and the Guarantors shall then be under no further liability to any
Underwriter except as provided in Sections 6 and 8 hereof, provided that if the
Underwriters are not required to perform their obligations under this Agreement
due to the occurrence of any event specified in Subsection 7(i) hereof, the
Company shall not be obligated to reimburse the Underwriters for such
out-of-pocket expenses.
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12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and if to the Company
or any Guarantor shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company and the Guarantors set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Guarantors and, to the extent provided
in Sections 8 and 10 hereof, the officers and directors of the Company and the
Guarantors and each person who controls the Company, the Guarantors or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Any legal suit, action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby may be instituted in any
federal or state court in the Borough of Manhattan, The City of New York. Each
of the Company, the Guarantors and the Underwriters waives any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding, waives any immunity from jurisdiction or to service of process in
respect of any such legal suit, action or proceeding, irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding and further submits to the jurisdiction of the courts of its
corporate domicile in any legal suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
15. The Company and each Guarantor irrevocably designate and appoint Lawco
of Oregon, Inc. as its authorized agent upon which process may be served in any
legal suit, action or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby which may be instituted in any federal or
state court in the Borough of Manhattan, The City of New York, and agrees that
service of process upon such agent, and written notice of said service to the
Company or such Guarantor by the person serving the same, shall be deemed in
every respect effective service of process upon the Company and such Guarantor
in any such
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suit or proceeding. The Company and each Guarantor further agrees to take any
and all actions as may be necessary to maintain such designation and appointment
of such agent in full force and effect.
16. If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due hereunder into any currency other than United States
dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures Xxxxxxx, Xxxxx & Co. could purchase
United States dollars with such other currency in The City of New York on the
business day proceeding that on which final judgment is given. The obligations
of the Company and each Guarantor in respect of any sum due from it to any
Underwriter shall, notwithstanding any judgment in a currency other than United
States dollars, not be discharged until the first business day, following
receipt by such Underwriter of any sum adjudged to be so due in such other
currency, on which (and only to the extent that) such Underwriter may in
accordance with normal banking procedures purchase United States dollars with
such other currency; if the United States dollars so purchased are less than the
sum originally due to such Underwriter hereunder, the Company and each Guarantor
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Underwriters against such loss. If the United States dollars so
purchased are greater than the sum originally due to such Underwriter hereunder,
such Underwriter agrees to pay to the Company and the Guarantors (but without
duplication) an amount equal to the excess of the dollars so purchased over the
sum originally due to such Underwriter hereunder.
17. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
18. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
19. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company plus one for each counsel, counterparts hereof,
and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement
between each of the Underwriters and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
TEEKAY SHIPPING CORPORATION
By:
-----------------------
Name:
Title:
VSSI OCEANS INC.
By:
-----------------------
Name:
Title:
VSSI ATLANTIC INC.
By:
-----------------------
Name:
Title:
SENANG SPIRIT INC.
By:
-----------------------
Name:
Title:
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35
VSSI APPIAN INC.
By:
-----------------------
Name:
Title:
EXUMA SPIRIT INC.
By:
-----------------------
Name:
Title:
NASSAU SPIRIT INC.
By:
-----------------------
Name:
Title:
ANDROS SPIRIT INC.
By:
-----------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By:
---------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
PRINCIPAL AMOUNT
OF SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ----------------
Xxxxxxx, Xxxxx & Co. ....................................................... $
Xxxxx Xxxxxx Inc. ..........................................................
Xxxxxx Xxxxxxx & Co. Incorporated...........................................
------------
Total............................................................. $
============
37
SCHEDULE II
ENCUMBRANCES ON SUBSIDIARY CAPITAL STOCK
[TO BE PROVIDED]
3
38
SCHEDULE III
The Mortgaged Vessels
Guarantor Vessel
--------- ------
VSSI Oceans Inc, Poul Spirit, Official Number 10328, of
approximately 57,463 gross and 31,958 net tons,
having its home port at the Port of Monrovia,
Republic of Liberia, which vessel was built by
Onomichi Dockyard, Japan, in the year 1995, and is
documented under the laws and flag of the Republic
of Liberia.
VSSI Atlantic Inc. Torben Spirit, Official Number 723526, of
approximately 57,486 gross and 28,742 net tons,
having its home port at the Port of Nassau,
Commonwealth of The Bahamas, which vessel was built
by Onomichi Dockyard, Japan, in the year 1994, and
is documented under the laws and flag of the
Commonwealth of The Bahamas.
Senang Spirit Inc. Senang Spirit, Official Number 723521, of
approximately 52,508 gross and 28,208 net tons,
having its home port at the Port of Nassau,
Commonwealth of The Bahamas, which vessel was built
by Imabari Shipbuilding, Japan, in the year 1994,
and is documented under the laws and flag of the
Commonwealth of The Bahamas.
VSSI Appian Inc. Mayon Spirit, Official Number 720752, of
approximately 57,448 gross and 28,742 net tons,
having its home port at the Port of Nassau,
Commonwealth of The Bahamas, which vessel was built
by Onomichi Dockyard, Japan, in the year 1992, and
is documented under the laws and flag of the
Commonwealth of The Bahamas.
Exuma Spirit Inc. Leyte Spirit, Official Number 720796, of
approximatey 57,448 gross and 28,742 net tons,
having its home port at the Port of Nassau,
Commonwealth of The Bahamas, which vessel was built
by Onomichi Dockyard, Japan, in the year 1992, and
is documented under the laws and flag of the
Commonwealth of The Bahamas.
39
Nassau Spirit Inc. Luzon Spirit, Official Number 720776, of
approximately 57,448 gross and 28,742 net tons,
having its home port at the Port of Nassau,
Commonwealth of The Bahamas, which vessel was built
by Onomichi Dockyard, Japan, in the year 1992, and
is documented under the laws and flag of the
Commonwealth of The Bahamas.
Andros Spirit Inc. Samar Spirit, Official Number 723134, of
approximately 57,448 gross and 28,742 net tons,
having its home port at the Port of Nassau,
Commonwealth of The Bahamas, which vessel was built
by Onomichi Dockyard, Japan, in the year 1992, and
is documented under the laws and flag of the
Commonwealth of The Bahamas.
40
SCHEDULE IV
OUTSTANDING INDEBTEDNESS ON MORTGAGED VESSELS
[TO BE PROVIDED]
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41
SCHEDULE V
[TO BE PROVIDED]
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ANNEX 1(A)
[Form of Opinion of Haight, Gardner, Poor & Xxxxxx]
January , 1996
Teekay Shipping Corporation
Tradewinds Building
Xxxxx Xxxxx
Xxx Xxxxxx
X.X. Xxx XX-0000
Nassau, The Bahamas
Xxxxxxx, Sachs & Co.
As representatives of the several Underwriters
named in Schedule I to the Underwriting
Agreement (as defined below)
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Teekay Shipping Corporation
Ladies and Gentlemen:
We have acted as special Liberian counsel to Teekay Shipping
Corporation, a Liberian corporation (the "Company"), and to VSSI Oceans Inc.
("VSSI Oceans"), VSSI Atlantic Inc. ("VSSI Atlantic") and VSSI Appian Inc.
("VSSI Appian" and, together with VSSI Oceans and VSSI Atlantic, the "Liberian
Guarantors" and each, individually, a "Liberian Guarantor"), each a Liberian
corporation, in connection with the offering and sale by underwriters in the
United States and abroad of up to Two Hundred Twenty Five Million Dollars
($225,000,000) aggregate principal amount of % First Preferred Ship Mortgage
Notes due 2008 (the "Securities") pursuant to the Underwriting Agreement dated
January , 1996 (the "Underwriting Agreement") between the Company and
Xxxxxxx, Xxxxx & Co., as representative of the several underwriters named
therein (the "Underwriters"). The Securities are to be issued pursuant to the
provisions of the Indenture to be dated as of January , 1996 (the
"Indenture"), among the Company, the Liberian Guarantors, certain other
Guarantors named therein (the "Bahamian Guarantors" and, together with the
Liberian Guarantors, the "Guarantors"), and United States Trust Company of New
York, as Trustee (the "Trustee"). This opinion is rendered pursuant to Section
7(c) of the Underwriting Agreement.
43
In connection with the opinions set forth herein, we have examined (i)
the Registration Statement on Form F-3 (No. 33- ), as amended (the
"Registration Statement"), filed by the Company with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, and the
rules and regulations thereunder, (ii) the Final Prospectus dated January ,
1996 (the "Prospectus") relating to the Registration Statement, (iii) the
Underwriting Agreement and (iv) all such originals and copies, certified or
otherwise identified to our satisfaction, of such other agreements,
certificates and other statements of government officials and corporate
officers and other representatives of the Company and other documents as we
have deemed necessary as the basis for the opinions set forth herein.
In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals or copies, and
the conformity with the original documents of all documents submitted to us as
copies. As to any questions of fact material to our opinions, we have, when
relevant facts were not independently established, relied upon written or oral
statements of corporate officers and other representatives of the Company.
To the extent our opinion involves the valid existence and good
standing of the Company and the subsidiaries listed on Schedule A hereto under
Liberian law, we have relied upon information supplied to us by the
International Trust Company of Liberia.
We are not licensed to practice in the Republic of Liberia, and insofar
as the law of the Republic of Liberia is concerned, we have relied on opinions
received from Liberian counsel in analogous transactions and on Liberian legal
materials available to us to the extent such examination has enabled us to
confirm said opinions. We have assumed that the Liberian statutes as
previously in force, particularly the Associations Law, 1976 (Title 5 of the
Liberian Code of Laws, Revised) and the practices, frameworks and procedures
relating thereto have not been altered as a result of the current political
situation. We have further assumed that all Liberian officials and
representatives involved in this transaction are authorized to act on behalf of
the International Trust Company of Liberia and/or the Republic of Liberia.
Except with respect to the Company and the Liberian Guarantors, we have
assumed that each document or instrument mentioned herein has been duly
authorized by the other parties thereto, has been duly executed and delivered
by the other parties thereto and constitutes the legal, valid and binding
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44
obligation of the other parties thereto in accordance with its terms.
As some of the documents mentioned herein have been executed and/or governed
by laws of jurisdictions other than the Republic of Liberia, we have assumed
the correctness of all matters in connection therewith. As some of the
representations and warranties contained in the Underwriting Agreement and the
Registration Statement pertain to matters governed by the law of jurisdictions
other than the Republic of Liberia, we have assumed the correctness of all
matters in connection therewith.
The opinions expressed herein are further qualified in their entirety
as follows: (a) unless otherwise hereinafter expressly provided, no opinion is
expressed with respect to the laws other than those of the Republic of Liberia;
(b) to the extent that any such opinion relates to the enforceability of any
agreement or other document referred to herein, such opinion is subject to the
effect of applicable bankruptcy, insolvency, moratorium or other laws affecting
creditors' rights generally or laws respecting fraud on creditors and (c) no
opinion is expressed as to the availability of equitable remedies, including
specific performance, or the enforceability of any legal remedies insofar as
such remedies may be subject to overriding considerations of public policy or
to the exercise of the constitutional powers of the Republic of Liberia or
other governmental units which have jurisdiction in the premises.
We express no opinion as to the effect of any litigation or similar
proceedings referred to in the Registration Statement on the opinions
hereinafter expressed.
Based upon the foregoing and subject to the quali-fications set out
herein, we are of the opinion that insofar as present Liberian law is
concerned:
(i) the Underwriting Agreement has been authorized, executed and
delivered by the Company and by the Liberian Guarantors;
(ii) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus;
(iii) each of the subsidiaries of the Company listed on Schedule A
hereto has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the Republic of Liberia and has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus;
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45
(iv) the authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus;
(v) all of the issued shares of capital stock of the Company have
been duly authorized and validly issued and, assuming issuance against
payment therefor, are fully paid and nonassessable;
(vi) all of the issued shares of capital stock of each of the
Liberian Guarantors and of Palm Shipping Inc. ("Palm") have been duly
authorized and validly issued and, assuming issuance against payment
therefor, are fully paid and nonassessable;
(vii) the Securities have been duly authorized, executed and
delivered;
(viii) the Indenture has been duly authorized, executed and delivered
by the Company and the Liberian Guarantors;
(ix) each of the Security Documents (as defined in the Indenture) to
which the Company or a Liberian Guarantor is a party has been duly
authorized, executed and delivered by the Company or such Liberian
Guarantor; the First Preferred Mortgage of the POUL SPIRIT (the "Poul
Spirit Mortgage") and each of the Assignments of Insurance, Charter
Assignments and Assignments of Freights and Hires (as defined in the
Indenture; the foregoing are referred to herein as the "Assignments") is a
valid and binding agreement of the Guarantor party thereto, assuming the
due authorization, execution and delivery by each Bahamian Guarantors of
the Indenture and the Security Document to which it is party, enforceable
against such Guarantor in accordance with its terms under the laws of the
Republic of Liberia, in the case of the Poul Spirit Mortgage, and the laws
of the State of New York, in the case of the Assignments, except (i) as the
enforceability thereof may be limited by applicable bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting creditors' rights
generally, (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability (regardless of whether
considered in a proceeding in equity or at law), (iii) certain provisions
of the Security Documents and the consents contemplated thereby are or may
be unenforceable in whole or in part, but the inclusion of such provisions
does not affect the validity of such agreements and each such agreement
contains adequate provisions for enforcing performance of the obligations
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46
under such agreements and for the practical realization of the rights
and benefits afforded thereby, (iv) with respect to each of the
Assignments of Insurance, enforceability against underwriters and third
parties may depend upon due and timely notice thereof being given to
such persons and the consent of underwriters or such third parties where
the terms of insurance policies, other insurance documents or provisions
of applicable law so require and (v) with respect to each of the
Assignments of Freights and Hires, enforcement against charterers and
third parties may depend upon due and timely notice thereof being given
by such persons;
(x) VSSI Oceans has title of record to the Poul Spirit, free and
clear of any Liens (as defined in the Indenture) of record, except for the
lien of the First Preferred Ship Mortgage;
(xi) each Charter and the Investment Account Agreement has been duly
authorized, executed and delivered by Palm and the Charter relating to the
Poul Spirit has been duly authorized, executed and delivered by VSSI
Oceans;
(xii) there is no tax, levy, impost, deduction, charge or withholding
imposed by the Republic of Liberia or any political subdivision or taxing
authority thereof or therein either (1) on or by virtue of the execution,
or delivery or performance or continued validity of any of the Indenture or
any Security Document or any other document referred to therein or to be
furnished thereunder (including without limitation the Securities) or (2)
on any payment to be made by the Company or any Guarantor pursuant to any
of the Indenture, the Securities or any Security Document, assuming that
(1) the Company is an intends to maintain its status as a "non-resident
domestic corporation" under the Business Corporation act of Liberia; (2)
the Guarantors are not now engaged, and are not in the future expected to
engage in voyages exclusively within the territorial waters of the Republic
of Liberia; (3) the Securities and all related documentation will be
executed outside of the Republic of Liberia; and (4) the holders of the
Securities will neither reside in, maintain an office in nor engage in
business in the Republic of Liberia. All filing, registration and
recording fees required under the laws of the Republic of Liberia in
connection with the Indenture or any Security Document or other fees
necessary to assure the validity, effectiveness and priority of any liens,
charges and encumbrances created thereby, have to our knowledge been paid;
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47
(xiii) insofar as any matter of Liberian law or United States
maritime law is addressed therein, the statements made in the Prospectus
under "Enforceability of Civil Liabilities Under the Federal Securities
Laws", "Investment Considerations -- Enforcement of Mortgages",
"Description of Notes -- Fraudulent Conveyance Statutes", "The Subsidiary
Guarantees" and "The Mortgages", to the extent that they constitute matters
of law or legal conclusions, fairly present the information disclosed
therein in all material respects;
(xiv) no authorization, consent, license, permission, permit or
approval (including exchange control approval) of or action by, and no
notice to or filing with, any governmental authority or regulatory body of
the Republic of Liberia or, in the case of the Assignments, of the State of
New York, is required for the execution, delivery and performance of the
Indenture or any of the Security Documents by the respective parties
thereto and no such authorization, consent, license, permission, permit,
approval, action, notice or filing is required for the exercise by the
Trustee of the rights and remedies granted to it under any of the Security
Documents, except for the filing and registration of the First Preferred
Ship Mortgage over the Poul Spirit in the Republic of Liberia;
(xv) the First Preferred Ship Mortgage over the Poul Spirit was duly
received for recording in the Office of the Deputy Commissioner of Maritime
Affairs of the Republic of Liberia at the Port of New York and was duly
recorded in accordance with the laws of the Republic of Liberia, and
creates the first preferred mortgage lien covering the Poul Spirit which it
purports to create, with the First Preferred Ship Mortgage being a first
preferred mortgage lien on the Poul Spirit;
(xvi) the security interests created by each Security Document (other
than the First Preferred Ship Mortgages and the Cash Collateral Account
Agreements) do not require any action to be taken under or pursuant to the
laws of the Republic of Liberia or, in the case of the Assignments, of the
State of New York, in order to create or perfect such security interests or
to permit the Trustee to enforce its rights under the Security Document
creating the same, other than (i) the delivery by the Company of the stock
certificates of each of the Guarantors to the Trustee at the Closing, (ii)
due and timely notice of the Assignments of Freights and Hires to
charterers and third parties and (iii) due and timely notice of each of the
Assignments of Insurances to underwriters and third parties, as well as
6
48
the consent of such underwriters or such third parties where the terms
of insurance policies, other insurance documents or provisions of
applicable law so require;
(xvii) the statements (1) in the Prospectus under the captions "Tax
Considerations -- Liberian Tax Considerations" and (2) in the Registration
Statement in Item 15, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the matters
referred to therein;
(xviii) the choice of New York law to govern this Agreement, the
Indenture and the Security Documents (other than the First Preferred Ship
Mortgages) constitutes a valid choice of law insofar as the law of the
Republic of Liberia is concerned. The submission by the Company and the
Liberian Guarantors to the non-exclusive jurisdiction of any federal or
state court in the Borough of Manhattan, The City of New York (a "New York
court") is a valid submission insofar as the law of the Republic of Liberia
is concerned; in this regard we note that Haight, Gardner, Poor & Xxxxxx
has accepted its appointment by the Company and the Guarantors as their
agent to accept service of process in the United States of America under
the Underwriting Agreement, the Indenture and the Security Documents;
(xix) in a suit on the merits brought before a Liberian court, a
Liberian court will respect and enforce the agreement of the parties as to
judgment currency;
(xx) a judgment granted by a foreign court against the Company or a
Liberian Guarantor may be enforced in the Republic of Liberia without a
retrial on the merits of the matter provided that: (A) the judgment is for
a specific, ascertained sum of money and is final in the jurisdiction
granting the judgment; (B) the court granting the judgment had jurisdiction
under the laws of the place where the court is seated; (C) the judgment
does not offend the principles of the Republic of Liberia as to due
process, natural justice or public policy; (D) the judgment was not
obtained by fraud; (E) the defendant was actually present in person or by a
duly appointed representative; and (F) the judgment does not in effect
constitute a default judgment;
(xxi) neither the Company, Palm nor any Liberian Guarantor nor any of
their respective property has any immunity from jurisdiction of any court
or from any legal process under the laws of the Republic of Liberia; and
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49
(xxii) the execution and delivery by the Company of, and the
performance by the Company and the Liberian Guarantors of their respective
obligations under, the Indenture, each Security Document to which each
respective company is a party, and, in the case of the Company, the
Securities, will not contravene the articles of incorporation or by-laws of
the Company or any Liberian Guarantor.
The opinions expressed herein are based on our knowledge of the law and
facts as of the date hereof, and we hereby expressly disclaim any duty or other
obligation to communicate to you with respect to any matter subsequent to the
date hereof.
The opinions expressed herein are specific to the transaction and are
furnished to you for your use and are not otherwise to be quoted, reproduced or
published in any form without our prior written consent, except that you may
furnish copies to your independent auditors and to Shearman & Sterling in their
capacity as counsel to the Underwriters for this transaction. The opinions
expressed herein may not be quoted, used or relied upon by any other party other
than the addressees hereof or filed or furnished to any government agencies
(other than regulatory agencies as required by law) or other natural or legal
person, without our prior written consent.
This opinion should not be assumed to state general principles of law
applicable to transactions of this kind. This opinion and the analysis upon
which it is based in no way imply any approval or recommendation of an
investment in the Securities.
Very truly yours,
HAIGHT, GARDNER, POOR & XXXXXX
By ----------------------------
8
50
Schedule A to Opinion Letter of
Haight, Gardner, Poor & Xxxxxx
dated January , 1996
VSSI Appian Inc.
VSSI Apollo Inc.
VSSI Atlantic Inc.
VSSI Boxships Inc.
VSSI Bulkers Inc.
VSSI Carriers Inc.
VSSI Challenger Inc.
VSSI Condor Inc.
VSSI Containers Inc.
VSSI Deepsea Inc.
VSSI Drake Inc.
VSSI Gemini Inc.
VSSI Hong Kong Inc.
VSSI Magellan Inc.
VSSI Marine Inc.
VSSI Oceans Inc.
VSSI Overseas Inc.
VSSI Pacific Inc.
VSSI Singapore Inc.
VSSI Star Inc.
VSSI Sun Inc.
VSSI Tankers Inc.
VSSI Tokyo Inc.
VSSI Transport Inc.
VSSI Ulsan Inc.
Alliance Spirit Corp.
Diamond Spirit Inc.
Elcano Spirit Inc.
Jasmin Holdings Limited
Kobe Spirit Inc.
Kyushu Spirit Inc.
Mendana Spirit Inc.
Musashi Spirit Inc.
Nagasaki Spirit Inc.
Nakata Spirit Inc.
Onomichi Spirit Inc.
Xxxxxxxx Spirit Inc.
Sentosa Spirit Inc.
Tasman Spirit Inc.
Tokyo Spirit Inc.
Xxx Xxxxxx Spirit Inc.
Vancouver Spirit Inc.
Volar Spirit Inc.
Flying Clipper Inc.
Flying Cloud Inc.
Palmstar Rose Inc.
Palmstar Thistle Inc.
Palm Monarch Inc.
Bull Shipping Ltd.
Cloudesdale Shipping Corporation
51
Cranberry Corporation
Xxxxx Shipping Ltd.
Hoi Wan Shipping Limited
Palm Shipping Inc.
Viking Consolidated Shipping Corp.
Pinewell Spirit Inc.
52
ANNEX 1(B)
[TO BE PROVIDED]
ANNEX 1(C)
[TO BE PROVIDED]
2
