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Indenture
Dated as of December 1, 1996
AMONG
GOLDEN STATE PETROLEUM TRANSPORT CORPORATION, as Agent
GOLDEN STATE PETRO (IOM I-A) PLC
AND
GOLDEN STATE PETRO (IOM I-B) PLC
AND
UNITED STATES TRUST COMPANY OF NEW YORK
as Indenture Trustee,
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS............................... 1
SECTION 1.1 CERTAIN TERMS DEFINED....................................... 1
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT........... 18
ARTICLE TWO
THE MORTGAGE NOTES........................... 18
SECTION 2.1 FORMS AND DATING............................................ 18
SECTION 2.2 TITLE AND TERMS............................................. 19
SECTION 2.3 EXECUTION, AUTHENTICATION AND DELIVERY...................... 20
SECTION 2.4 TEMPORARY NOTES............................................. 20
SECTION 2.5 REGISTRAR, DEPOSITORY AND PAYING AGENT...................... 21
SECTION 2.6 PAYING AGENT TO HOLD MONEY IN TRUST......................... 21
SECTION 2.7 HOLDER LISTS................................................ 21
SECTION 2.8 TRANSFER AND EXCHANGE....................................... 22
SECTION 2.9 MUTILATED, DESTROYED, LOST AND STOLEN NOTES................. 27
SECTION 2.10 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.............. 28
SECTION 2.11 PERSONS DEEMED OWNERS....................................... 29
SECTION 2.12 CANCELLATION................................................ 29
SECTION 2.13 COMPUTATION OF INTEREST..................................... 29
SECTION 2.14 MANNER OF PAYMENTS IN RESPECT OF MORTGAGE NOTES............. 29
SECTION 2.15 CUSIP AND CINS NUMBERS...................................... 29
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ARTICLE THREE
THE TRUST ACCOUNTS; DISTRIBUTIONS................... 30
SECTION 3.1 THE TRUST ACCOUNTS.......................................... 30
SECTION 3.2 INVESTMENT OF FUNDS DEPOSITED IN TRUST ACCOUNTS............. 32
SECTION 3.3 PAYMENT DATES............................................... 32
SECTION 3.4 APPLICATION OF MONEYS IN THE TRUST ACCOUNT.................. 34
ARTICLE FOUR
SECURITY................................ 37
SECTION 4.1 GRANT OF SECURITY INTEREST.................................. 37
SECTION 4.2 RECORDING, ETC.............................................. 39
SECTION 4.3 PROTECTION OF THE TRUST ESTATE.............................. 40
SECTION 4.4 RELEASE OF LIEN............................................. 40
SECTION 4.5 LIMITATION ON INDENTURE TRUSTEE'S DUTY IN RESPECT
OF COLLATERAL............................................... 41
ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES OF GOLDEN STATE PETROLEUM
AND THE OWNERS.............................. 41
SECTION 5.1 ORGANIZATION, POWER AND STATUS OF GOLDEN STATE PETROLEUM
AND EACH OWNER.............................................. 41
SECTION 5.2 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND DELIVERY....... 41
SECTION 5.3 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT................. 42
SECTION 5.4 GOVERNMENTAL APPROVALS...................................... 42
SECTION 5.5 LITIGATION.................................................. 42
SECTION 5.6 TAXES....................................................... 42
SECTION 5.7 TRADE OR BUSINESS........................................... 42
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ARTICLE SIX
COVENANTS............................... 43
SECTION 6.1 PAYMENT OF PRINCIPAL AND INTEREST........................... 43
SECTION 6.2 CORPORATE EXISTENCE; COMPLIANCE WITH LAWS................... 43
SECTION 6.3 PERFORMANCE OF OBLIGATIONS.................................. 43
SECTION 6.4 ACTIVITIES OF THE OWNERS.................................... 43
SECTION 6.5 BOOKS AND RECORDS........................................... 44
SECTION 6.6 RESTRICTED PAYMENTS......................................... 44
SECTION 6.7 WAIVER OF STAY, EXTENSION OR USURY LAWS..................... 44
SECTION 6.8 REPORTS BY GOLDEN STATE PETROLEUM AND THE OWNERS............ 45
SECTION 6.9 NOTICE OF DEFAULT........................................... 45
SECTION 6.10 NEGATIVE COVENANTS.......................................... 46
SECTION 6.11 APPOINTMENT TO FILL A VACANCY IN OFFICE OF INDENTURE
TRUSTEE..................................................... 46
SECTION 6.12 NOTEHOLDERS' LISTS.......................................... 46
SECTION 6.13 REPORTS BY THE INDENTURE TRUSTEE............................ 47
SECTION 6.14 CHANGE OF FLAG.............................................. 47
ARTICLE SEVEN
REMEDIES OF THE INDENTURE TRUSTEE AND
NOTEHOLDERS ON INDENTURE EVENT OF DEFAULT................ 48
SECTION 7.1 INDENTURE EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY;
WAIVER OF DEFAULT........................................... 48
SECTION 7.2 COLLECTION OF INDEBTEDNESS BY INDENTURE TRUSTEE; INDENTURE
TRUSTEE MAY PROVE DEBT...................................... 50
SECTION 7.3 GENERAL AUTHORITY OF THE INDENTURE TRUSTEE OVER THE
COLLATERAL.................................................. 52
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SECTION 7.4 SUITS FOR ENFORCEMENT....................................... 53
SECTION 7.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS......... 54
SECTION 7.6 LIMITATIONS ON SUITS BY NOTEHOLDERS......................... 54
SECTION 7.7 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER
OF DEFAULT.................................................. 54
SECTION 7.8 CONTROL BY NOTEHOLDERS...................................... 55
SECTION 7.9 WAIVER OF PAST DEFAULTS..................................... 55
SECTION 7.10 UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE PRINCIPAL AND
INTEREST.................................................... 55
SECTION 7.11 LIMITATION BY LAW........................................... 56
SECTION 7.12 APPLICATION OF PROCEEDS..................................... 56
SECTION 7.13 NON-DISTURBANCE............................................. 56
ARTICLE EIGHT
CONCERNING THE INDENTURE TRUSTEE............................. 56
SECTION 8.1 DUTIES AND RESPONSIBILITIES OF THE INDENTURE TRUSTEE........ 56
SECTION 8.2 CERTAIN RIGHTS OF THE INDENTURE TRUSTEE..................... 58
SECTION 8.3 INDENTURE TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION
OF MORTGAGE NOTES OR APPLICATION OF PROCEEDS THEREOF........ 59
SECTION 8.4 INDENTURE TRUSTEE AND AGENTS MAY HOLD MORTGAGE NOTES;
COLLECTIONS; ETC............................................ 59
SECTION 8.5 MONEYS HELD BY INDENTURE TRUSTEE............................ 59
SECTION 8.6 COMPENSATION AND EXPENSES................................... 59
SECTION 8.7 RIGHT OF INDENTURE TRUSTEE TO RELY ON OFFICERS'
CERTIFICATE, ETC............................................ 60
SECTION 8.8 PERSONS ELIGIBLE FOR APPOINTMENT AS INDENTURE TRUSTEE....... 61
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SECTION 8.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR INDENTURE
TRUSTEE..................................................... 61
SECTION 8.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR INDENTURE TRUSTEE.... 62
SECTION 8.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
OF INDENTURE TRUSTEE........................................ 63
SECTION 8.12 COMMENCEMENT OF BANKRUPTCY PROCEEDINGS...................... 63
SECTION 8.13 NOT ACTING IN INDIVIDUAL CAPACITY........................... 63
SECTION 8.14 CO-TRUSTEES AND SEPARATE TRUSTEES........................... 63
ARTICLE NINE
CONCERNING THE NOTEHOLDERS........................ 65
SECTION 9.1 EVIDENCE OF ACTION TAKEN BY NOTEHOLDERS..................... 65
SECTION 9.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
MORTGAGE NOTES; RECORD DATE................................. 65
SECTION 9.3 HOLDERS TO BE TREATED AS OWNERS............................. 65
SECTION 9.4 MORTGAGE NOTES DEEMED NOT OUTSTANDING....................... 66
SECTION 9.5 RIGHT OF REVOCATION OF ACTION TAKEN......................... 66
ARTICLE TEN
SUPPLEMENTAL INDENTURES........................ 66
SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS...... 66
SECTION 10.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS......... 67
SECTION 10.3 EFFECT OF SUPPLEMENTAL INDENTURE............................ 68
SECTION 10.4 DOCUMENTS TO BE GIVEN TO INDENTURE TRUSTEE.................. 68
SECTION 10.5 NOTATION ON MORTGAGE NOTES IN RESPECT OF SUPPLEMENTAL
INDENTURES.................................................. 68
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SECTION 10.6 ISSUANCE OF SERIES OF ADDITIONAL NOTES...................... 69
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS....................... 70
SECTION 11.1 SATISFACTION AND DISCHARGE OF INDENTURE..................... 70
SECTION 11.2 APPLICATION BY INDENTURE TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF MORTGAGE NOTES................................... 71
SECTION 11.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT.................... 71
SECTION 11.4 RETURN OF MONEYS HELD BY INDENTURE TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS..................................... 71
ARTICLE TWELVE
REDEMPTION OF MORTGAGE NOTES...................... 72
SECTION 12.1 OPTIONAL REDEMPTION; MANDATORY REDEMPTION; PRICES........... 72
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS................... 73
SECTION 12.3 PAYMENT OF MORTGAGE NOTES CALLED FOR REDEMPTION............. 74
SECTION 12.4 TERM NOTE MANDATORY SINKING FUND............................ 75
SECTION 12.5 ADDITIONAL NOTE MANDATORY SINKING FUND...................... 76
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS........................ 77
SECTION 13.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
GOLDEN STATE PETROLEUM AND THE OWNERS EXEMPT FROM
INDIVIDUAL LIABILITY........................................ 77
SECTION 13.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES
AND NOTEHOLDERS............................................. 77
SECTION 13.3 SUCCESSORS AND ASSIGNS OF THE OWNERS BOUND BY INDENTURE..... 77
SECTION 13.4 NOTICES AND DEMANDS ON GOLDEN STATE PETROLEUM, INDENTURE
TRUSTEE AND NOTEHOLDERS..................................... 77
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SECTION 13.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS
TO BE CONTAINED THEREIN..................................... 78
SECTION 13.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS............. 79
SECTION 13.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE
ACT......................................................... 79
SECTION 13.8 NEW YORK LAW TO GOVERN...................................... 80
SECTION 13.9 COUNTERPARTS................................................ 80
SECTION 13.10 EFFECT OF HEADINGS.......................................... 80
SECTION 13.11 SEPARABILITY CLAUSE......................................... 80
SECTION 13.12 CONSENT TO JURISDICTION..................................... 80
EXHIBITS AND SCHEDULES
EXHIBIT A - Form of Mortgage Note
EXHIBIT B - Form of Transfer Certification
EXHIBIT C - Form of Acknowledgement
EXHIBIT D - Form of Mortgage
EXHIBIT E - Form of Assignment of Charter
EXHIBIT F - Form of Assignment of Charter Supplements
EXHIBIT G - Form of Assignment of Earnings and Insurances
EXHIBIT H - Form of Assignment of Guarantee
EXHIBIT I - Form of Assignment of Management Agreement
EXHIBIT J - Form of Issue of One Debenture
EXHIBIT K - Form of Stock Pledge
EXHIBIT L - Form of Assignment of Building Contract
EXHIBIT M - Form of Assignment of Building Contract Guarantee
SCHEDULE 1 - Sinking Fund Redemption Amounts and Final Principal
Payment Schedule
SCHEDULE 2 - Allocated Principal Amount of the Note
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This Indenture, dated as of December 1, 1996, among Golden
State Petro (IOM I-A) PLC, an Isle of Man company ("Golden State Petro I-A" or
an "Owner"), Golden State Petro (IOM I-B) PLC, an Isle of Man company ("Golden
State Xxxxx X-X" or an "Owner" and, collectively with Golden State Petro I-A,
the "Owners"), Golden State Petroleum Transport Corporation, a Delaware
corporation, as agent for the Owners, a Delaware corporation ("Golden State
Petroleum"), and United States Trust Company of New York, as trustee, a bank and
trust company organized under the New York Banking Law (the "Indenture
Trustee").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein shall have the
respective meanings set forth or referred to in Article One hereof;
WHEREAS, each of the Owners has authorized the issuance by
Golden State Petroleum, as its agent, of its Notes and each of the Owners has
duly appointed Golden State Petroleum as its duly authorized agent to issue the
Mortgage Notes and undertake certain other actions set forth in this Indenture
on behalf of the Owners;
WHEREAS, all things necessary to make the Notes, when executed
by Golden State Petroleum, as agent for the Owners, and authenticated and
delivered by the Indenture Trustee as provided in this Indenture, the valid,
binding and legal obligations of the Owners, and to constitute this Indenture a
valid indenture and agreement according to its terms, have been done; and
WHEREAS, from time to time as specified herein, pursuant to
one or more Supplemental Indentures, Golden State Petroleum, as agent for the
Owners, may issue one or more Series of Additional Notes, and, in accordance
therewith, Golden State Petroleum, the Owners and the Indenture Trustee intend
to do all things necessary to make the Additional Notes subject thereto, when
executed by Golden State Petroleum, as agent for the Owners, and authenticated
and delivered by the Indenture Trustee as provided in this Indenture, as
supplemented, the valid, binding and legal obligations of the Owners, and to
constitute this Indenture, as supplemented, a valid indenture and agreement
according to its terms.
NOW, THEREFORE:
In consideration of the foregoing and the purchase of the
Mortgage Notes by the holders thereof from time to time, Golden State Petroleum,
the Owners and the Indenture Trustee mutually covenant and agree for the equal
and proportionate benefit of the respective Holders from time to time of the
Mortgage Notes as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms (except
as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes
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of this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section. All other terms used in this
Indenture which are defined in the Trust Indenture Act or the definitions of
which in the Securities Act are referred to in the Trust Indenture Act (except
as herein otherwise expressly provided or unless the context otherwise clearly
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
Indenture and at the date of any indenture supplemental hereto, as applicable .
All accounting terms used herein and not expressly defined shall have the
meanings given to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" shall mean
such accounting principles which are generally accepted in the United States of
America at the date or time of any computation. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision. All references
to Articles or Sections refer to Articles or Sections of this Indenture unless
otherwise indicated. The terms defined in this Article include the plural as
well as the singular.
"ACCEPTABLE REPLACEMENT CHARTER" means any replacement charter
which satisfies each of the following requirements: (i) the charter is a
bareboat charter and requires that the charterer thereunder "gross up"
charterhire payments to indemnify and hold the holders of the Mortgage Notes
harmless from any withholding, transportation or excise tax imposed on the
charterhire payments or on the payments of the Mortgage Notes, (ii) the
charterhire payments payable during the non-cancelable term of such replacement
charter, after giving effect to (1) any "gross up" of such amounts as a result
of any withholding tax on such charterhire payments, (2) the Allocable Portion
of the Debt Service Reserve Fund and (3) all fees and expenses incurred in
connection with the recharter of the Vessel, provide sufficient funds for the
payment in full when due of (A) the Allocated Principal Amount of the Mortgage
Notes for the related Vessel and interest thereon in accordance with the revised
schedule of sinking fund and principal payments, that is applicable upon
termination of the related Charter, (B) the amount of Recurring Fees for such
Vessel, (C) the amount of Management Fees for such Vessel, (D) the amount of
fees and expenses of the Indenture Trustee and Trustee Fees allocable to such
Vessel and (E) an amount at least equal to 30% of the estimated amounts, on a
per annum basis, referred to in clauses (B), (C) and (D) above for miscellaneous
or unexpected expenses and (iii) the Rating Agencies shall have confirmed in
writing to the Indenture Trustee that the terms and conditions of such proposed
charter will not result in the withdrawal or reduction of the then current
ratings of the Mortgage Notes.
"ACKNOWLEDGEMENT TO ASSIGNMENT OF CHARTERS" means, with
respect to each Charter, the acknowledgement executed by the Charterer, wherein
the Charterer acknowledges the assignment of such Charter to the Indenture
Trustee.
"ACKNOWLEDGEMENT TO ASSIGNMENT OF CHEVRON GUARANTEE" means,
with respect to each Chevron Guarantee, the acknowledgement executed by Chevron,
wherein Chevron acknowledges the assignment of such Chevron Guarantee to the
Indenture Trustee.
"ADDITIONAL CONSTRUCTION COSTS" means any net increases in
construction costs for a Vessel which (i) result from actions by the Charterer
or the Technical Supervisor; (ii) are approved by the related Owner, such
approval not to be unreasonably withheld; and (iii) occur
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after execution of the related Building Contract on the Closing Date but prior
to the related Delivery Date.
"ADDITIONAL NOTE" means each first preferred mortgage note
issued pursuant to a Supplemental Indenture to finance the Additional
Construction Costs of a Vessel.
"AFFILIATE" means, with respect to any Person (the "relevant
Person"), (i) any other Person that directly, or indirectly through one or more
intermediaries, controls the relevant Person (a "Controlling Person") or (ii)
any Person (other than the relevant Person) which is controlled by or is under
common control with a Controlling Person. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGENT" means Golden State Petroleum, a Delaware corporation.
"ALLOCABLE PORTION OF THE DEBT SERVICE RESERVE FUND" means, as
of any date of determination and for each Vessel, that portion of the Debt
Service Reserve Fund funded from charterhire or earnings of the related Vessel.
"ALLOCATED PRINCIPAL AMOUNT OF THE ADDITIONAL NOTES" means,
when used with reference to the Additional Notes and either Vessel at any date
of determination, the product of (a) the aggregate outstanding principal amount
of Additional Notes as of such date and (b) a fraction (i) the numerator of
which is the aggregate outstanding principal amount of Additional Notes for such
Vessel as specified with respect to such Vessel in the related Supplemental
Indenture and (ii) the denominator of which is the aggregate initial principal
amount of all Additional Notes.
"ALLOCATED PRINCIPAL AMOUNT OF THE MORTGAGE NOTES" means, when
used with reference to the Mortgage Notes and either Vessel at any date of
determination, the sum of (a) the Allocated Principal Amount of the Notes for
such Vessel and (b) the Allocated Principal Amount of the Additional Notes for
such Vessel.
"ALLOCATED PRINCIPAL AMOUNT OF THE NOTES" means, when used
with reference to the Notes and either Vessel at any date of determination,
amounts indicated on Schedule 2 attached hereto.
"ASSIGNMENT OF BUILDING CONTRACT" means, for each Vessel, the
Building Contract Assignment, dated as of December 1, 1996, between the related
Owner and the Indenture Trustee, pursuant to which such Owner collaterally
assigns its rights, title and interests in the related Building Contract and the
Technical Supervision Agreement to the Indenture Trustee.
"ASSIGNMENT OF BUILDING CONTRACT GUARANTEE" means, for each
Building Contract Guarantee, the Assignment of Building Contract Guarantee,
dated as of December 1, 1996, between the related Owner and the Indenture
Trustee, as the same may be amended from time to time, pursuant to which such
Owner collaterally assigns its rights, title and interest in the related
Building Contract Guarantee therein to the Indenture Trustee.
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"ASSIGNMENT OF CHARTER" means, for each Charter, the
Assignment of Charter, dated as of December 1, 1996, between the Owner of the
related Vessel and the Indenture Trustee, as the same may be amended from time
to time, pursuant to which such Owner collaterally assigns its rights, title and
interest therein to the Indenture Trustee.
"ASSIGNMENT OF CHARTER SUPPLEMENT" means, for the Charter
Supplement, the Assignment of Charter Supplement, dated the date of the related
Supplemental Indenture, between the Owner of the related Vessel and the
Indenture Trustee, as the same may be amended from time to time, pursuant to
which such Owner collaterally assigns its right, title and interest therein to
the Indenture Trustee.
"ASSIGNMENT OF EARNINGS AND INSURANCES" means, for each
Vessel, the Assignment of Earnings and Insurances, dated as of the Delivery Date
for such Vessel, between the related Owner and the Indenture Trustee, as the
same may be amended from time to time, pursuant to which such Owner collaterally
assigns its right, title and interest in the earnings and insurances on such
Vessel to the Indenture Trustee.
"ASSIGNMENT OF GUARANTEE" means, for each Chevron Guarantee,
the Assignment of Guarantee, dated as of December 1, 1996, between the Owner of
the related Vessel and the Indenture Trustee, as the same may be amended from
time to time, pursuant to which such Owner collaterally assigns its right, title
and interest therein to the Indenture Trustee.
"ASSIGNMENT OF MANAGEMENT AGREEMENT" means, for each
Management Agreement, the Assignment of Management Agreement, dated as of
December 1, 1996, between the Owner of the related Vessel and the Indenture
Trustee, as the same may be amended from time to time, pursuant to which such
Owner collaterally assigns its right, title and interest therein to the
Indenture Trustee.
"AUTHORIZED FINANCIAL OFFICER" of any Person means the Chief
Financial Officer, Treasurer or Controller of such Person.
"AUTHORIZED OFFICER" of any Person means the President, any
Vice President or Authorized Financial Officer of such Person.
"BANKRUPTCY CODE" means Title 11 of the United States Code.
"BOARD OF DIRECTORS" means either the Board of Directors of a
Person or any committee of such Board duly authorized to act hereunder.
"BUILDER" means, collectively, Samsung Corporation and Samsung
Heavy Industries, Ltd.
"BUILDING CONTRACT" means either the Golden State Petro I-A
Building Contract or the Golden State Xxxxx X-X Building Contract.
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"BUILDING CONTRACT GUARANTEE" means, for each Vessel, the
Building Contract Guarantee, dated the Closing Date, given by the Building
Contract Guarantor to the Owner in connection with the related Vessel.
"BUILDING CONTRACT GUARANTOR" means The Korean Development
Bank.
"BUSINESS DAY" means any day except a Saturday, a Sunday or a
day on which banking institutions in New York, New York, San Francisco,
California or in the city and state where the Indenture Trustee's principal
offices are located, are authorized or are obligated by law, executive order or
governmental decree to be closed.
"CASUALTY ACCOUNT" means the account established and
maintained by the Indenture Trustee pursuant to Section 3.1(d).
"CHARTER" means, for each Vessel, the bareboat charter between
the related Owner and the Charterer, dated the Closing Date, as the same may be
amended, supplemented and modified from time to time.
"CHARTER EVENT OF DEFAULT" means, for each Charter, each of
the events designated as a default in Clause 17 of such Charter.
"CHARTER PERIOD" means, for any Charter, the period from the
date of commencement of such Charter to the expiration or earlier termination of
such Charter pursuant to the terms and conditions thereof.
"CHARTER PERMITTED LIENS", with respect to each Charter, has
the meaning specified in such Charter.
"CHARTER SUPPLEMENT" means, with respect to each Charter, the
Charter Supplement dated the date of the related Supplemental Indenture, between
the Owner of the related Vessel and the Charterer.
"CHARTERER" means Chevron Transport Corporation, a Liberian
corporation.
"CHARTERHIRE" means, for each Charter, the scheduled payments
of charterhire thereunder, as may be increased from time to time pursuant to a
Charter Supplement.
"CHEVRON" means Chevron Corporation, a Delaware corporation,
and its successors and assigns.
"CHEVRON GUARANTEE" means, for either Vessel, the Guarantee,
dated the Closing Date, given by Chevron to the related Owner in connection with
the related Charter.
"CLASS" means each class of securities constituting a separate
issuance by Golden State Petroleum, as agent for the Owners, of serial first
preferred mortgage notes or first preferred mortgage notes hereunder or
additional first preferred mortgage notes under a Supplemental Indenture,
provided that (i) any first preferred mortgage notes have identical terms
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(other than their date of issuance) shall constitute one class for purposes of
this definition and (ii) the Initial Term Notes and the Exchange Term Notes
shall constitute one class for purposes of this definition.
"CLOSING DATE" means December 24, 1996.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" means the property in which the Indenture Trustee
is granted a Lien from time to time hereunder or under any Security Document,
which lien or security interest has not been released in accordance with the
terms hereof or thereof.
"COLLATERAL ACCOUNT" means the account established and
maintained by the Indenture Trustee pursuant to Section 3.1(e).
"COMMISSION" means the United States Securities and Exchange
Commission.
"COMPANY ORDER" means a written request or order signed in the
name of Golden State Petroleum or an Owner by any Director, its Chairman of the
Board, its President or any Vice President, and by its Controller, its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Indenture Trustee.
"COMPULSORY ACQUISITION" means requisition for title or other
compulsory acquisition of either Vessel (otherwise than by requisition for
hire), capture, seizure, condemnation, destruction, detention or confiscation of
such Vessel by any Governmental Authority or by persons acting or purporting to
act on behalf of any Governmental Authority.
"CORPORATE TRUST OFFICE" means the corporate trust office of
the Indenture Trustee at which the corporate trust business of the Indenture
Trustee shall, at any particular time, be principally administered, which office
is, at the date of this Indenture, located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, Attention: Corporate Trust Department.
"DEBT SERVICE RESERVE FUND" means the account established and
maintained by the Indenture Trustee pursuant to Section 3.1(f).
"DEBT SERVICE RESERVE REQUIREMENT" means an amount, together
with interest earned thereon, that is sufficient to provide for the payment of
average annual sinking fund payments and interest on the Term Notes for a period
of 1.2 years.
"DEFAULT" means any Indenture Event of Default or any event or
condition which, with the giving of notice or lapse of time, or both, would
constitute an Indenture Event of Default.
"DEFAULT PAYMENT" means, as of any date of determination and
as calculated by the Manager, with respect to each Vessel and the related
Charter, the sum of (a) the sum of (i) the Stipulated Loss Value in relation to
the period in question calculated pursuant to the related Charter, (ii) all
Charter Hire accrued (on a daily basis) but unpaid under such Charter to the
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actual date of payment and (iii) any other amounts due to the related Owner
under such Charter on or prior to the actual date of payment, and (b) interest
on the amount described in (a) (after as well as before judgment) at the Default
Rate from the date such amounts were payable to the actual date of payment.
"DEFAULT RATE" means, with respect to a Mortgage Note, a rate
per annum for each day from the date of a default in any payment hereunder until
such payment shall be paid in full equal to the lesser of (a) 1.0% above the
interest rate indicated in such Mortgage Note and (b) the sum of 1.5% and LIBOR.
"DEFINITIVE NOTES" means with respect to each Class of
Mortgage Notes, Mortgage Notes that are substantially in the form of Exhibits
A-1 and A-2 attached hereto that do not include the information called for by
the footnotes thereof.
"DELIVERY DATE" means the Vessel A Delivery Date or the Vessel
B Delivery Date.
"DEPOSITORY" means the depository of the Global Notes
representing the Mortgage Notes and any successor to such depository appointed
pursuant to Section 2.5. The Depository initially shall be The Depository Trust
Company, a New York corporation.
"DISTRIBUTION DATE" means each date fixed by the Indenture
Trustee for a distribution to the Noteholders of funds, if any, held in the
Collateral Account pursuant to Section 3.1(e), which shall be the date from time
to time determined by the Indenture Trustee or requested by the Majority
Noteholders.
"EXCHANGE ACT" means the United States Securities Exchange Act
of 1934, as amended.
"EXCHANGE OFFER" means the offer registered by Golden State
Petroleum, as agent for the Owners and the Owners pursuant to the Exchange Offer
Registration Statement in which Golden State Petroleum, as agent for the Owners,
offers to the Holders of the outstanding Initial Term Notes the opportunity to
exchange such outstanding Initial Term Notes for Exchange Term Notes in an
aggregate principal amount equal to the aggregate principal amount of the
Initial Term Notes tendered in such offer by such Holders.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the registration
statement under the Securities Act relating to the Exchange Offer, including the
related prospectus.
"EXCHANGE TERM NOTE" means any of the 8.04% First Preferred
Mortgage Notes due 2019 of Golden State Petroleum, as agent for the Owners, to
be issued pursuant to this Indenture (i) in the Exchange Offer, (ii) in exchange
for Exchange Term Notes or (iii) at the request of a Holder of Initial Term
Notes covered by a Shelf Registration Statement, in exchange for such Initial
Term Notes.
"FIRST TERM NOTE SINKING FUND PAYMENT DATE" means August 1,
2007.
7
"FIXED PERIOD" means, with respect to each Charter, the period
commencing on the Delivery Date of the related Vessel and expiring on the eighth
anniversary thereof.
"GLOBAL NOTES" means, with respect to each Class, Mortgage
Notes that are in the form of Exhibits A-1 and A-2 attached hereto that contains
the paragraph referred to in footnote l and the additional schedule referred to
in footnote 3 of such Exhibit A.
"GOLDEN STATE PETRO I-A" means Golden State Petro (IOM I-A)
PLC, an Isle of Man public limited company.
"GOLDEN STATE XXXXX X-X" means Golden State Petro (IOM I-B)
PLC, an Isle of Man public limited company.
"GOLDEN STATE PETRO I-A BUILDING CONTRACT" means the
Shipbuilding Contract between the Builder and Golden State Petro I-A.
"GOLDEN STATE XXXXX X-X BUILDING CONTRACT" means the
Shipbuilding Contract between the Builder and Golden State Xxxxx X-X.
"GOVERNMENTAL APPROVAL" means any authorization, consent,
approval, license, franchise, lease, ruling, permit, tariff, rate,
certification, exemption, filing or registration by or with any Governmental
Authority relating to the ownership of the Collateral or to the execution,
delivery or performance of this Indenture or any Security Document.
"GOVERNMENTAL AUTHORITY" means the United States federal or
any foreign government, any state or other political subdivision thereof, and
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government and any other
governmental entity with authority over an Owner, the Charterer or operation of
a Vessel.
"HOLDER", "HOLDER OF MORTGAGE NOTES", "NOTEHOLDER" or other
similar terms means a registered holder of any Mortgage Note.
"INDEBTEDNESS" means, with respect to any Person, all
obligations, whether or not contingent, of such Person (i)(a) for borrowed money
(including, but not limited to, any indebtedness secured by a Lien on the assets
of such person which is (1) given to secure all or part of the purchase price of
property subject thereto, whether given to the vendor of such property or to
another, or (2) existing on property at the time of acquisition thereof), (b)
evidenced by a note, debenture, bond or written instrument, (c) under a lease
required to be capitalized on the balance sheet of the lessee under generally
accepted accounting principles or under any lease or related document (including
a purchase agreement) which provides that such person is contractually obligated
to purchase or to cause a third party to purchase such leased property, (d) in
respect of letters of credit, bank guarantees or bankers' acceptances (including
reimbursement obligations with respect to any of the foregoing), (e) with
respect to indebtedness secured by a Lien affecting title or resulting in an
encumbrance to which the property or assets of such Person are subject, whether
or not the obligation secured thereby shall have been assumed or guaranteed by
or shall otherwise be such person's legal liability, (f) in respect of the
8
balance of deferred and unpaid purchase price of any property or assets, and (g)
under interest rate or currency swap agreements, cap, floor and collar
agreements, spot and forward contracts and similar agreements and arrangements;
(ii) with respect to any obligation of others of the type described in the
preceding clause (i) assumed by or guaranteed in any manner by such Person or in
effect guaranteed by such Person through an agreement to purchase (including,
without limitation, "take or pay" and similar arrangements), contingent or
otherwise (and the obligations of such Person under any such assumptions,
guarantees or other such arrangements); and (iii) any and all deferrals,
renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any of the foregoing.
"INDENTURE" means this Indenture dated as of December 1, 1996
among the Owners, Golden State Petroleum, as agent, and the Indenture Trustee,
as the same may be amended or supplemented from time to time, and which shall
include any Supplemental Indenture or supplemental indenture.
"INDENTURE EVENT OF DEFAULT" means any event or condition
specified as such in Section 7.1 which shall have continued for the period of
time, if any, therein designated.
"INDENTURE TRUSTEE" means United States Trust Company of New
York, not in its individual capacity but solely as Indenture Trustee under this
Indenture, or any other Person acting from time to time as Indenture Trustee
hereunder.
"INITIAL NOTE" means either a Serial Note or an Initial Term
Note.
"INITIAL TERM NOTE" means any of the 8.04% First Preferred
Mortgage Notes due 2019 of Golden State Petroleum, as agent for the Owners, to
be originally issued, authenticated and delivered pursuant to this Indenture and
Term Notes subsequently issued in exchange therefor, other than the Exchange
Term Notes.
"INITIAL PURCHASER" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation.
"ISSUE OF ONE DEBENTURE" means, for each Owner, the Issue of
One Debenture, dated as of December 1, 1996, between such Owner and the
Indenture Trustee, as the same may be amended from time to time.
"LAW" means any statute, law, rule, regulation, ordinance,
order, code, policy or rule of common law, now or hereafter in effect, and any
judicial or administrative interpretation thereof by a Governmental Authority or
otherwise, including any judicial or administrative order, consent decree or
judgment.
"LIBOR" means the rate calculated on the basis of the offered
rates for deposits in dollars for a one-month period which appear on the Reuters
Screen LIBO Page as of 11:00 A.M., London time, on the date that is two London
Banking Days preceding the date of calculation. If at least two such offered
rates appear on the Reuters Screen LIBO Page, LIBOR will be the arithmetic mean
of such offered rates (rounded to the nearest .0001 percentage point). If, at
any time of determination, the Reuters Screen LIBO Page is not available, LIBOR
will be calculated as the average (rounded upward, if necessary, to the next
higher 1/16 of 1%)
9
of the respective ratio per annum at which deposits in dollars for a one month
period are offered to each of three reference banks in the London interbank
market at approximately 11:00 A.M., London time, on the date that is two London
Banking Days preceding the date of calculation. Each of the Charterer and the
Indenture Trustee will select a reference bank and the third reference bank will
be selected by the Charterer and the Indenture Trustee together or, failing
agreement, by the previously selected reference banks together.
"LIEN" means, with respect to any asset, any mortgage, lien
(statutory or otherwise), pledge, security interest, claim, hypothecation,
assignment for security, deposit arrangement or security interest of any kind in
respect of such asset. For the purposes of this Indenture, a Person shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"LONDON BANKING DAY" means any day on which dealings in
deposits in United States dollars are carried on in the London interbank market
and on which commercial banks are open for domestic and international business
(including dealings in United States dollar deposits) in London and New York.
"LOSS PAYMENT DATE" means, with respect to a Total Loss, the
date which is 90 days after the occurrence of such Total Loss.
"MAKE-WHOLE PREMIUM," if applicable to the optional redemption
of any Term Note, means the excess, if any, of (i) the aggregate present value
as of the date of such redemption of each dollar of principal of such Term Note
being redeemed and the amount of interest (exclusive of interest accrued to the
date of redemption) that would have been payable in respect of such dollar if
such redemption had not been made, determined by discounting, on a semiannual
basis, such principal and interest at a rate equal to the sum of the Treasury
Yield (determined on the Business Day immediately preceding the date of such
redemption) plus 0.375% (three-eighths of one percent) from the respective dates
on which such principal and interest would have been payable if such redemption
had not been made, over (ii) the aggregate principal amount of such Term Notes
being redeemed.
"MANAGEMENT AGREEMENT" means, for each Owner, the Management
Agreement, dated the Closing Date, between such Owner and the Manager, as the
same may be amended from time to time.
"MANAGEMENT FEE" means, with respect to each Vessel, an amount
per year payable semi-annually in arrears on each Payment Date equal to $50,000.
"MANAGER" means Cambridge Fund Management, L.L.C., a Delaware
limited liability company, or any other Person acting from time to time as
Manager in accordance with the terms of the Management Agreement.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
10
"MORTGAGE" means, for each Vessel, the First Preferred Ship
Mortgage for such Vessel, dated the Delivery Date for such Vessel, between the
related Owner and the Indenture Trustee, as the same may be amended from time to
time in substantially the form of Exhibit D hereto.
"MORTGAGE EVENT OF DEFAULT" means, for any Mortgage, each of
the events designated as an "Event of Default" in Section 5.01 of such Mortgage.
"MORTGAGE NOTES" means any Serial Notes, Term Notes and any
Additional Notes.
"NET REDUCTION IN CONSTRUCTION COSTS" means any net decreases
in construction costs for a Vessel which (i) result from actions by the
Charterer or the Technical Supervisor; (ii) are approved by the related Owner,
such approval not to be unreasonably withheld; and (iii) occur after the
execution of the related Building Contract on the Closing Date but prior to the
related Delivery Date.
"NOTE" means a Serial Note or a Term Note.
"NOTE CUSTODIAN" has the meaning specified in Section 2.5
"NOTE PURCHASE AGREEMENT" means the Purchase Agreements, dated
December 19, 1996, among Golden State Petroleum, the Owners and the Initial
Purchaser relating to the issuance and sale of $127,100,000 aggregate principal
amount of Initial Term Notes and (ii) the Purchase Agreement, dated December 19,
1996, among Golden State Petroleum, the Owners and the Initial Purchaser
relating to the issuance and sale of $51,700,000 aggregate principal amount of
Serial Notes.
"NOTE REGISTER" has the meaning specified in Section 2.5.
"OFFICERS' CERTIFICATE" means a certificate signed by a
Responsible Officer of Golden State Petroleum or two Responsible Officers of an
Owner, as the case may be, and delivered to the Indenture Trustee. Each such
certificate shall include the statements provided for in Section 13.5 and, to
the extent required pursuant to Section 314 of the Trust Indenture Act, shall
comply with Section 314 of the Trust Indenture Act.
"OPINION OF COUNSEL" means an opinion in writing signed by
legal counsel satisfactory to the Indenture Trustee. Each such opinion shall
include the statements provided for in Section 13.5 and to the extent required
pursuant to Section 314 of the Trust Indenture Act, shall comply with Section
314 of the Trust Indenture Act.
"OUTSTANDING", when used with reference to the Mortgage Notes,
shall, subject to the provisions of Section 9.4, mean, as of any particular
time, all Mortgage Notes authenticated and delivered by the Indenture Trustee
under this Indenture, except:
(a) Mortgage Notes theretofore canceled by the Indenture
Trustee or delivered to the Indenture Trustee for cancellation;
11
(b) Mortgage Notes, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Indenture Trustee or with any paying agent,
PROVIDED that if such Mortgage Notes are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Indenture Trustee
shall have been made for giving such notice; and
(c) Mortgage Notes in substitution for which other Mortgage
Notes shall have been authenticated and delivered, or which shall have
been paid, pursuant to the terms of Section 2.3 (unless proof
satisfactory to the Indenture Trustee is presented that any of such
Mortgage Notes are held by a Person in whose hands such Mortgage Note
is a legal, valid and binding obligation of the Owners).
"OWNER" means Golden State Petro I-A, in the case of Vessel A
and Golden State Xxxxx X-X, in the case of Vessel B.
"PAYING AGENT" has the meaning specified in Section 2.5.
"PAYMENT DATE" means each February 1 and August 1, commencing
August 1, 1997.
"PERMITTED INVESTMENTS" means any of the following:
(a) direct general obligations of, or obligations fully and
unconditionally guaranteed as to the timely payment of principal and interest
by, the United States or any agency or instrumentality thereof, PROVIDED such
obligations are backed by the full faith and credit of the United States,
Federal Housing Administration debentures, Federal Home Loan Mortgage
Corporation senior debt obligations or Federal National Mortgage Association
senior debt obligations, but excluding any of such securities whose terms do not
provide for payment of a fixed dollar amount upon maturity or call for
redemption;
(b) federal funds, certificates of deposit, time and demand
deposits and banker's acceptances (having original maturities of not more than
one year) of any bank or trust company incorporated under the laws of the United
States or any state thereof, PROVIDED that the short-term debt obligations of
such bank or trust company at the dates of acquisition thereof have been rated
at least "A-l" or "P-1" or better (or the equivalent) by Standard & Poor's and
Moody's, respectively;
(c) commercial paper (having original maturities of not more
than one year) rated at least "A-1" or "P-l" or better (or the equivalent) by
Standard & Poor's and Moody's, respectively; or
(d) guaranteed investment contracts, investment agreements or
similar agreements initially rated at least "A" or "A-2" or better (or the
equivalent) by Standard & Poor's or Moody's, respectively, that are treated as
indebtedness for United States federal income tax purposes;
12
provided, however, that in the event amounts on deposit in the Pre-Funding
Account or the Revenue Account (until the latest maturity date of the Serial
Notes) are invested pursuant to clauses (b), (c) or (d), then such investments
must initially be rated at least "AA" or "Aa" (or the equivalent) or better by
Standard & Poor's or Moody's, respectively.
For purposes of clause (d) above, (i) each payment received will be considered
to be the maturity of such Permitted Investment and (ii) a guaranteed investment
contract, investment agreement or similar agreement that constitutes a senior
unsecured long-term debt obligation of a Person shall be deemed to have the same
rating as such Person's other senior unsecured long-term debt obligations, if
any, that are rated by a Rating Agency. Notwithstanding the foregoing,
"Permitted Investments" shall not include "stripped securities" or investments
which contractually may return less than the purchase price therefor.
"PERMITTED LIENS" means, for each Owner, Liens created under
the related Mortgage and Security Documents, the Charter for the related Vessel
or other charter or conditional sale contracts and agreements for such Vessel
permitted under the Mortgage and Charter Permitted Liens.
"PERSON" means an individual, a corporation, a partnership, a
joint venture, unincorporated association, a joint stock company, a trust or any
other entity or a Governmental Authority.
"PLEDGED STOCK" means all of the capital stock of each Owner,
including any additional or substitute shares of capital stock of any such Owner
now owned or hereafter acquired by Golden State Holdings I Ltd., issued and
outstanding at any time or from time to time.
"PRE-FUNDING ACCOUNT" means the account established and
maintained by the Indenture Trustee pursuant to Section 3.5.
"PRINCIPAL TERMS" means, with respect to any Series, (i) the
name or designation of such Series; (ii) the initial principal amount of the
Additional Notes to be issued for such Series (or method for calculating such
amount); (iii) the interest rate to be paid with respect to the Additional Notes
for such Series (or method for the determination thereof); (iv) the Allocated
Principal Amount of the Additional Notes for a Series for each Vessel; (v) if
applicable, whether any Additional Notes of such Series (a) will be issued in
the form of Global Notes or (b) will be Transfer Restricted Notes and the manner
of applying the provisions of Article Two hereof to the transfer of such
Additional Notes and (vi) any other terms of such Series.
"RATING AGENCY" means, at any time of determination, each
rating agency then rating the Mortgage Notes which shall always include at least
one of Moody's or Standard & Poor's or their respective successors.
"RATING AGENCY CONDITION" means, with respect to any action,
that the Rating Agency then rating the Mortgage Notes (of which one must be
Standard & Poor's or Moody's) shall have notified Golden State Petroleum, the
Owners, Chevron and the Indenture Trustee in writing that such action will not
result in a reduction or withdrawal of the rating of any
13
Outstanding Mortgage Note or a placement of the Mortgage Notes on credit watch
or surveillance with respect to which it is a Rating Agency.
"RECORD DATE" means, with respect to any Payment Date, the
January 15 or July 15 (whether or not a Business Day), as the case may be, next
preceding such Payment Date.
"RECURRING FEES" means, for either Vessel, any periodic fees
necessary or appropriate to maintain the corporate status of the related Owner,
any filing or other fees necessary or appropriate to maintain the status of such
Owner as a reporting company under the Exchange Act and to comply with any
covenants of such Owner under the related Mortgage, any fees and expenses
(including the cost of insurance required by the related Mortgage and not
maintained by the charterer under the charter to which such Vessel is then
subject) necessary to comply with any covenants under the related Mortgage, any
other fees and expenses contemplated to be paid pursuant to the Management
Agreement (other than the Management Fee) which the Manager certifies to the
Indenture Trustee are qualified to be paid thereunder and any accounting or
other professional fees and other expenses, including any fees and expenses of
the Rating Agencies, incurred in connection with the foregoing. In addition,
each Owner's Recurring Fees will include a pro rata portion of the fees and
expenses, including any accounting, administrative or other professional fees,
necessary or appropriate to maintain the registration of the Mortgage Notes
under the Securities Act, to effect a mandatory redemption, if any, of the
Mortgage Notes, to maintain the corporate status of Golden State Petroleum and
the status of Golden State Petroleum as a reporting company (if necessary) under
the Exchange Act and to comply with any covenants under the Indenture.
"REGISTRAR" has the meaning specified in Section 2.5.
"REGISTRATION JURISDICTION" means, with respect to each
Vessel, the jurisdiction under the laws of which such Vessel is registered from
time to time. Initially, the Registration Jurisdiction for each Vessel means the
Republic of Liberia.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated the Closing Date, among the Owners, Golden State Petroleum and
the Initial Purchasers, as initial purchasers of the Initial Term Notes.
"REGISTRATION STATEMENT" means either an Exchange Offer
Registration Statement or a Shelf Registration Statement.
"REMAINING AVERAGE LIFE" means, with respect to the Term Notes
the number of years (calculated to the nearest one-twelfth year) obtained by
dividing (i) the principal amount of the Term Notes to be redeemed into (ii) the
sum of the products obtained by multiplying (a) the principal component of each
payment that would have been made on the Term Notes (including payments to be
made through operation of the mandatory sinking fund) assuming such Term Notes
were not subject to early redemption other than by operation of the mandatory
sinking fund by (b) the number of years (calculated to the nearest one-twelfth
year) that will elapse between the date on which the Term Notes are to be
redeemed (the "Settlement Date") and the scheduled due date of such principal
payment.
14
"REQUIRED NOTEHOLDERS" means the Holders of a majority in
aggregate principal amount of the Outstanding Mortgage Notes.
"REQUIREMENT OF LAW" means, as to any Person, the certificate
of incorporation and by-laws or partnership agreement or other organizational or
governing documents of such Person, and any Law applicable to or binding upon
such Person or any of its properties or to which such Person or any of its
properties is subject.
"RESPONSIBLE OFFICER" of any Person other than the Indenture
Trustee, means the President or any other officer with authority of at least a
Vice President; or, in the case of the Indenture Trustee, means an officer or
assistant officer of the Indenture Trustee in its Corporate Trust Department.
"RESTRICTED PAYMENT" means, with respect to each Owner, (a)
the declaration or payment of any dividend or other distribution on any shares
of such Owner's capital stock, or (b) the purchase, redemption or other
acquisition or retirement for value of its capital stock.
"RESTRICTED SECURITY" means each Term Note, until the earliest
to occur of (a) the date on which such Term Note is exchanged in the Exchange
Offer and entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act, (b) the date on
which such Term Note has been disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Term Note is disposed of by a
broker-dealer registered under the Exchange Act pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the prospectus contained therein) or (d) the date on
which such Term Note is distributed to the public pursuant to Rule 144 under the
Act.
"REVENUE ACCOUNT" means the account established and maintained
by the Indenture Trustee pursuant to Section 3.1(a).
"SECURED INSTRUMENTS" means, at any time, the Indenture and
the Outstanding Mortgage Notes.
"SECURITIES ACT" means the United States Securities Act of
1933, as amended.
"SECURITY DOCUMENTS" means the Mortgages, the Assignments of
Charter, the Assignments of Charter Supplements, the Assignments of Earnings and
Insurances, the Assignments of Guarantee, the Assignments of Management
Agreement, each Issue of One Debenture, the Stock Pledge, the Assignments of
Building Contract, Assignments of Building Contract Guarantee, and any
additional security agreement, assignment or mortgage document entered into by
either Owner from time to time in connection with the Secured Instruments.
"SERIAL NOTE" means any of the 6.360% Serial First Preferred
Mortgage Notes Due 2000, 6.465% Serial First Preferred Mortgage Notes Due 2001,
6.550% Serial First Preferred Mortgage Notes Due 2002, 6.610% Serial First
Preferred Mortgage Notes Due 2003, 6.700% Serial First Preferred Mortgage Notes
Due 2004, 6.800% Serial First Preferred Mortgage Notes Due 2005 and 6.855%
Serial First Preferred Mortgage Notes Due 2006 of
15
Golden State Petroleum, as agent for the Owners, to be originally issued,
authenticated and delivered pursuant to this Indenture.
"SERIES ISSUANCE DATE" means, with respect to any Series, the
date on which the Additional Notes of such Series are to be originally issued in
accordance with Section 10.6.
"SERIES OF ADDITIONAL NOTES" or "SERIES" means each series of
Additional Notes issued pursuant to a Supplemental Indenture.
"SHELF REGISTRATION STATEMENT" means a shelf registration
statement under the Securities Act relating to the Term Notes, including the
related prospectus, filed in accordance with the Registration Rights Agreement.
"STANDARD & POOR'S" means Standard & Poor's Rating Group, a
division of XxXxxx-Xxxx Co. Inc.
"STATED MATURITY" means, when used with respect to a Mortgage
Note or any installment of interest thereon, the date specified in such Mortgage
Note as the fixed date on which the principal of such Mortgage Note or such
installment of interest is due and payable. The Stated Maturity of each Class of
Notes is set forth opposite such Class in Section 2.2.
"STIPULATED LOSS VALUE" means, for any Vessel on any date, the
amount specified in the related Charter as the "Stipulated Loss Value" for such
date, which amount will be at least sufficient to redeem in full the Allocated
Principal Amount of the Mortgage Notes for such Vessel.
"STOCK PLEDGE" means the Stock Pledge Agreement, dated as of
December 1, 1996, between Golden State Holdings I, Ltd. and the Indenture
Trustee, as the same may be amended from time to time.
"SUPPLEMENTAL INDENTURE" means each supplement to this
Indenture pursuant to which a Series of Additional Notes is issued by Golden
State Petroleum, as agent for the Owners.
"TECHNICAL SUPERVISION AGREEMENT" means, for each Vessel, the
Agreement on Contract for Technical Matters, dated as of the Closing Date, 1996,
among the related Owner, the Builder and Chevron Shipping Company.
"TERM NOTE" means either an Initial Term Note or an Exchange
Term Note.
"TERMINATION ACCOUNT" means the account established and
maintained by the Indenture Trustee pursuant to Section 3.1(b).
"TOTAL LOSS" means, with respect to a Vessel, either (a)
actual or constructive or compromised or arranged total loss of the Vessel, (b)
Compulsory Acquisition of the Vessel or (c) if so declared by the Charterer at
any time and in its sole discretion a requisition by a Governmental Authority
for hire of the Vessel for a period in excess of 180 days. Any actual
16
loss of the Vessel shall be deemed to have occurred at 1200 hours Greenwich Mean
Time ("GMT") on the actual date on which the Vessel was lost or in the event of
the date of the loss being unknown then the actual total loss shall be deemed to
have occurred at 1200 hours GMT on the day next following the day on which the
Vessel was last heard of. A constructive total loss shall be deemed to have
occurred at 1200 hours GMT on the earliest of: (1) the date that notice of
abandonment of the Vessel is given to the insurers, provided a claim for total
loss is admitted by the insurers, (2) if the insurers do not admit such a claim,
at the date and time GMT at which a total loss is subsequently adjudged by a
competent court of law or arbitration tribunal to have occurred, or (3) the date
that a report is rendered by one or more experts in marine surveying and vessel
valuation (said experts to be appointed by the Charterer at its expense and
approved by the Owner, such approval not to be unreasonably withheld) concluding
that salvage, repair and associated costs in restoring the Vessel to the
condition specified in each Charter exceed the Vessel's fair market value in
sound condition.
"TOTAL LOSS PAYMENT" means, with respect to each Vessel, the
related Charter and a Loss Payment Date, the sum of (a) any deficiency between
(i) the Stipulated Loss Value in relation to the period in question calculated
pursuant to the related Charter and (ii) all insurance proceeds for damage to or
loss of the Vessel and amounts paid by any governmental authority in connection
with any requisition, seizure or forfeiture actually received in hand by Owners
prior to or on such Loss Payment Date; and (b) all Charterhire and Additional
Charterhire accrued (on a daily basis) but unpaid hereunder to such Loss Payment
Date and any other sums due under any provisions of the related Charter,
together with interest thereon at the Default Rate from the date upon which any
such Charterhire and Additional Charterhire or other sums was due until the Loss
Payment Date.
"TRANSFER RESTRICTED NOTE" means any Mortgage Note that bears
or is required to bear the legend set forth in Section 2.8(g).
"TREASURY YIELD" means, in connection with the calculation of
any Make-Whole Premium on the Term Notes, the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical Release
H.15 (519) which has become publicly available at least two Business Days prior
to the date fixed for redemption (or, if such Statistical Release is no longer
published, any publicly available source of similar data)) equal to the
Remaining Average Life of the Term Notes; provided that if no United States
Treasury security is available with such a constant maturity and for which a
closing yield is given, the Treasury Yield shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the closing
yields of United States Treasury securities for which such yields are given,
except that if the average life of the Term Notes is less than one year, the
weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
"TRUST ACCOUNTS" means the Revenue Account, the Termination
Account, the Casualty Account, the Collateral Account, the Debt Service Reserve
Fund, the Operating Account and the Pre-Funding Account.
"TRUST ESTATE" has the meaning specified in Section 4.1.
17
"TRUST FUNDS" means the funds, together with any income
thereon from Permitted Investments, deposited in the Trust Accounts.
"TRUST INDENTURE ACT" means the United States Trust Indenture
Act of 1939, as amended.
"TRUSTEE FEES" means those fees and expenses of the Trustee as
set forth in a separate letter agreement between the Trustee and the Owners.
"UCC" means the Uniform Commercial Code as in effect on the
date hereof in the State of New York; provided, however, that if by reason of
mandatory provisions of law, the validity or perfection of the Indenture
Trustee's security interest in any item of Collateral is governed by the UCC as
is then in effect in a jurisdiction other than New York, "UCC" means the Uniform
Commercial Code (or equivalent Law) as is in effect in such other jurisdiction
for purposes of the provisions hereof relating to such validity or perfection.
"VESSEL A" means the vessel being constructed pursuant to the
Golden State Petro I-A Building Contract.
"VESSEL A DELIVERY DATE" means the date when Vessel A is ready
in fact for delivery by the Builders after completion of trials.
"VESSEL A INSTALLMENT DATE" means the date an installment of
the purchase price for Vessel A is due under the Golden State Petro I-A Building
Contract.
"VESSEL A PURCHASE DATE" means the date (if any) on which the
Builder sells Vessel A to Golden State Petro I-A pursuant to the related
Building Contract and such Vessel becomes part of the Trust Estate.
"VESSEL B" means the vessel being constructed pursuant to the
Golden State Xxxxx X-X Building Contract.
"VESSEL B DELIVERY DATE" means the date when Vessel B is ready
in fact for delivery by the Builders after completion of trials.
"VESSEL B INSTALLMENT DATE" means the date an installment of
the purchase price for Vessel B is due under the Golden State Xxxxx X-X Building
Contract.
"VESSEL B PURCHASE DATE" means the date (if any) on which the
Builder sells Vessel B to Golden State Xxxxx X-X pursuant to the related
Building Contract and such Vessel becomes part of the Trust Estate.
"VESSELS" means, collectively, the Vessel A and Vessel B, Hull
Numbers 1228 and 1229 respectively, together, in each case, with all her
engines, boilers, machinery, masts, anchors, cables, rigging, tackle, apparel,
furniture, electronics, small boats and all her other appurtenances, whether
aboard or removed from such Vessel, together with any and all additions,
improvements and/or replacements made to, on or in such Vessel.
18
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
This Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this Indenture.
All terms used in this Indenture that are defined by the Trust
Indenture Act, defined by the Trust Indenture Act reference to another statute
or defined under rules promulgated by the Commission have the meanings assigned
to them by such definitions.
ARTICLE TWO
THE MORTGAGE NOTES
SECTION 2.1 FORMS AND DATING. The Mortgage Notes and the
Indenture Trustee's certificate of authentication shall be in substantially the
form set forth in Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Mortgage Notes as evidenced by their
execution of the Mortgage Notes. Any such legend or endorsement shall be
delivered in writing to the Indenture Trustee by Golden State Petroleum. Each
Mortgage Note shall be dated the date of its authentication. The Mortgage Notes
will be issued only in fully registered form without coupons, in denominations
of $100,000 and multiples of $1,000 in excess thereof. All payments with respect
to the Mortgage Notes shall be in United States Dollars.
The Serial Notes and Initial Term Notes offered and sold to
"qualified institutional buyers" (as defined in Rule 144A under the Securities
Act) will be issued initially in global form, substantially in the form of
Exhibits A-1 and A-2, respectively, attached hereto (including footnotes 1
through 4 thereto), respectively. Each Global Note shall represent such of the
Outstanding Initial Notes as shall be specified therein and each shall provide
that it shall represent the aggregate amount of Outstanding Initial Notes from
time to time endorsed thereon and that the aggregate amount of Outstanding
Initial Notes represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges and redemptions. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the amount of
Outstanding Initial Notes represented thereby shall be made by the Indenture
Trustee or the Note Custodian, at the direction of the Indenture Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.8. The Initial Notes offered and sold pursuant to Regulation S under the
Securities Act pursuant to the Purchase Agreement will be issued in the form of
Definitive Notes.
SECTION 2.2 TITLE AND TERMS. The aggregate principal amount of
Serial Notes and Initial Term Notes which may be authenticated and delivered
under this Indenture is limited to $51,700,000 and $127,100,000, respectively,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Sections 2.4, 2.8 or
2.9. The aggregate principal amount of any Series of Additional Notes
19
which may be authenticated and delivered under any Supplemental Indenture shall
be specified therein.
The Serial Notes shall be known and designated as the "6.360%
Serial First Preferred Mortgage Notes Due 2000", "6.465% Serial First Preferred
Mortgage Notes Due 2001", "6.550% Serial First Preferred Mortgage Notes Due
2002", "6.610% Serial First Preferred Mortgage Notes Due 2003", "6.700% Serial
First Preferred Mortgage Notes Due 2004", "6.800% Serial First Preferred
Mortgage Notes Due 2005" and "6.855% Serial First Preferred Mortgage Notes Due
2006" of Golden State Petroleum, as agent for the Owners. The Initial Term Notes
shall be known and designated as the "8.04% First Preferred Mortgage Notes Due
2019" of Golden State Petroleum, as agent for the Owners. The Exchange Term
Notes shall be known and designated as the "8.04% Exchange First Preferred
Mortgage Notes due 2019" of Golden State Petroleum, as agent for the Owners. The
Additional Notes shall be known and designated as provided in the relevant
Supplemental Indenture. Each Serial Note shall bear interest at the rate per
annum indicated on the face of each such Serial Note from the date of issuance
thereof or from the most recent Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semi-annually on February 1 and
August 1, commencing on August 1, 1997, until the principal thereof is paid or
made available for payment. Each Term Note shall bear interest at the rate per
annum indicated on the face of each such Term Note from the date of issuance
thereof or from the most recent Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semi-annually on February 1 and
August 1, commencing, with respect to the Initial Term Notes, on August 1, 1997,
until the principal thereof is paid or made available for payment. Each
Additional Note shall bear interest at the rate per annum indicated on the face
of each such Additional Note from the date of issuance thereof or from the most
recent Payment Date to which interest has been paid or duly provided for, as the
case may be, payable semi-annually on February 1 and August 1, commencing on the
Payment Date after which such Additional Notes are issued. The Stated Maturity
for each Class of Initial Note is set forth below:
Class Stated Maturity Date
----- --------------------
6.360% Serial First Preferred Mortgage Note Due 2000 February 1, 2000
6.465% Serial First Preferred Mortgage Note Due 2001 February 1, 2001
6.550% Serial First Preferred Mortgage Note Due 2002 February 1, 2002
6.610% Serial First Preferred Mortgage Note Due 2003 February 1, 2003
6.700% Serial First Preferred Mortgage Note Due 2004 February 1, 2004
6.800% Serial First Preferred Mortgage Note Due 2005 February 1, 2005
6.855% Serial First Preferred Mortgage Note Due 2006 February 1, 2006
8.04% First Preferred Mortgage Note Due 2019 February 1, 2019
SECTION 2.3 EXECUTION, AUTHENTICATION AND DELIVERY. The
Mortgage Notes shall be signed on behalf of Golden State Petroleum by its
Chairman of the Board of Directors, its Vice Chairman of the Board of Directors,
its President, any Vice President or its
20
Treasurer under its corporate seal and attested by its Secretary or an Assistant
Secretary. Such signatures may be manual or facsimile signatures of the present
or any future such authorized officers and may be imprinted or otherwise
reproduced on the Mortgage Notes. The seal of Golden State Petroleum may be in
the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Mortgage Notes.
Only such Mortgage Notes as shall bear thereon a certificate
of authentication substantially in the form recited in Exhibit A hereto,
manually executed by the Indenture Trustee, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by
the Indenture Trustee upon any Mortgage Note executed by Golden State Petroleum
shall be conclusive evidence that the Mortgage Note so authenticated has been
duly authenticated and delivered hereunder.
Mortgage Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of Golden State Petroleum
shall bind the Owners, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Mortgage Notes or did not hold such offices at the date of such Mortgage Notes.
The Indenture Trustee may appoint an authenticating agent to authenticate the
Mortgage Notes. An authenticating agent may authenticate Mortgage Notes whenever
the Indenture Trustee may do so. Each reference in this Indenture to
authentication by the Indenture Trustee includes authentication by such
authenticating agent.
At any time and from time to time after the execution and
delivery of this Indenture, Golden State Petroleum may deliver Mortgage Notes
executed by Golden State Petroleum to the Indenture Trustee for authentication.
The Indenture Trustee shall thereupon authenticate and deliver such Mortgage
Notes to Golden State Petroleum as directed by a Company Order, without any
further action by Golden State Petroleum.
SECTION 2.4 TEMPORARY NOTES. Pending the preparation of
definitive Mortgage Notes, Golden State Petroleum may prepare and execute, and
upon Company Order the Indenture Trustee shall authenticate and deliver,
temporary Mortgage Notes substantially of the tenor of the definitive Mortgage
Notes in lieu of which they are issued, which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Mortgage Notes may determine, as
evidenced by their execution of such Mortgage Notes.
If temporary Mortgage Notes are issued, Golden State Petroleum
will cause definitive Mortgage Notes to be prepared without unreasonable delay.
After the preparation of definitive Mortgage Notes, the temporary Mortgage Notes
shall be exchangeable for definitive Mortgage Notes upon surrender of the
temporary Mortgage Notes at the office or agency of Golden State Petroleum
maintained by Golden State Petroleum for the purpose pursuant to Section 2.5.
Upon surrender for cancellation of any one or more temporary Mortgage Notes,
Golden State Petroleum shall execute and the Indenture Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Mortgage Notes of authorized denominations and of like tenor. Until
so exchanged, the temporary Mortgage Notes shall in all respects be entitled to
the same benefits under this Indenture as definitive Mortgage Notes.
21
SECTION 2.5 REGISTRAR, DEPOSITORY AND PAYING AGENT. Golden
State Petroleum shall maintain in the Borough of Manhattan, in The City of New
York, an office or agency where Mortgage Notes may be presented for registration
of transfer or for exchange ("Registrar") and an office or agency where Mortgage
Notes may be presented for payment ("Paying Agent"). The Registrar shall keep a
register of the Mortgage Notes (the "Note Register") and of their transfer and
exchange. Golden State Petroleum may appoint one or more co-registrars and one
or more additional paying agents; provided, however, in no event shall the
Paying Agent be an Affiliate of Chevron. The term "Registrar" includes any
co-registrar, and the term "Paying Agent" includes any additional paying agent.
Golden State Petroleum may change any Paying Agent or Registrar without notice
to any Holder. Golden State Petroleum shall notify the Indenture Trustee in
writing of the name and address of any Paying Agent or Registrar. If Golden
State Petroleum fails to appoint or maintain another entity as Registrar or
Paying Agent, the Indenture Trustee shall act as such.
Golden State Petroleum initially appoints The Depository Trust
Company to act as Depository with respect to the Global Notes.
Golden State Petroleum initially appoints the Indenture
Trustee to act as the Registrar and Paying Agent and to act as the note
custodian (the "Note Custodian") with respect to the Global Notes.
SECTION 2.6 PAYING AGENT TO HOLD MONEY IN TRUST. Golden State
Petroleum shall require each Paying Agent other than the Indenture Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Indenture Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest (including default interest)
on the Mortgage Notes, and will notify the Indenture Trustee of any default by
Golden State Petroleum, as agent for the Owners, in making any such payment.
While any such default continues, the Indenture Trustee may require a Paying
Agent to pay all money held by it to the Indenture Trustee. Golden State
Petroleum at any time may require a Paying Agent to pay all money held by it to
the Indenture Trustee. Upon payment over to the Indenture Trustee, the Paying
Agent shall have no further liability for the money.
SECTION 2.7 HOLDER LISTS. The Indenture Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of all Holders and shall otherwise comply with
Section 312(a) of the Trust Indenture Act. If the Indenture Trustee is not the
Registrar, Golden State Petroleum shall furnish to the Indenture Trustee at
least seven Business Days before each Payment Date, and at such other times as
the Indenture Trustee may request in writing a list in such form and as of such
date as the Indenture Trustee may reasonably require of the names and addresses
of the Holders and Golden State Petroleum shall otherwise comply with Section
312(a) of the Trust Indenture Act.
SECTION 2.8 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive
Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Definitive Notes; or
22
(y) to exchange such Definitive Notes for an equal principal
amount of Definitive Notes of other authorized denominations of the
same Class,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; PROVIDED, HOWEVER, that the
Definitive Notes presented or surrendered for register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing;
and
(ii) except in the case of the Exchange Offer or
pursuant to Section 2.8(g)(iii)(y), in the case of a Definitive Note
that is a Transfer Restricted Note, such request shall be accompanied
by the following additional information and documents, as applicable:
(A) if such Transfer Restricted Note is being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification to that
effect from such Holder (in substantially the form of Exhibit
B hereto); or
(B) if such Transfer Restricted Note is being
transferred to (1) a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act or (2) pursuant to an
exemption from registration in accordance with (x) Rule 144 or
(y) Rule 904 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit B hereto) and, in case of
(2)(y), the transferee; or
(C) if such Transfer Restricted Note is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit B hereto) and an Opinion of
Counsel from such Holder or the transferee reasonably
acceptable to Golden State Petroleum and to the Registrar to
the effect that such transfer is in compliance with the
Securities Act.
(b) TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL INTEREST IN
A GLOBAL NOTE. A Definitive Note may not be exchanged for a beneficial interest
in a Global Note of the same Class, except upon satisfaction of the requirements
set forth below. Upon receipt by the Indenture Trustee of a Definitive Note,
duly endorsed or accompanied by appropriate instruments of transfer, in form and
substance satisfactory to the Indenture Trustee, together with:
(i) except in the case of the Exchange Offer or
pursuant to Section 2.8(g)(iii)(y), if such Definitive Note is a
Transfer Restricted Note, a certification from the Holder thereof (in
substantially the form of Exhibit B hereto) to the effect that such
Definitive Note is being transferred by such Holder to a "qualified
institutional buyer"
23
(as defined in Rule 144A under the Securities Act) in accordance with
Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Note is a Transfer
Restricted Note, written instructions from the Holder thereof directing
the Indenture Trustee to make, or to direct the Note Custodian to make,
an endorsement on the Global Note to reflect an increase in the
aggregate principal amount of the Mortgage Notes represented by the
Global Note,
the Indenture Trustee shall cancel such Definitive Note and cause, or direct the
Note Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Note Custodian, the aggregate
principal amount of Mortgage Notes represented by the Global Note to be
increased accordingly. If no Global Notes are then outstanding, Golden State
Petroleum shall issue and the Indenture Trustee shall authenticate a new Global
Note in the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and
exchange of each Class of Global Notes or beneficial interests therein shall be
effected through the Depository, in accordance with this Indenture (including
the restrictions on transfer set forth herein) and with the procedures of the
Depository therefor.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE FOR A
DEFINITIVE NOTE. Any Person having a beneficial interest in a Global Note may
upon request exchange such beneficial interest for a Definitive Note of the same
Class. Upon receipt by the Indenture Trustee of written instructions or such
other form of instructions as is customary for the Depository, from the
Depository or its nominee on behalf of any Person having a beneficial interest
in a Global Note and upon receipt by the Indenture Trustee of a written order or
such other form of instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest containing
registration instructions and, in the case of a Transfer Restricted Note only,
the following additional information and documents (all of which may be
submitted by facsimile);
(i) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner, a
certification to that effect from such Person (in substantially the
form of Exhibit B hereto); or
(ii) except in the case of the Exchange Offer or pursuant to
Section 2.8(g)(iii)(y), if such beneficial interest is being
transferred (1) to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) in accordance with Rule 144A under
the Securities Act, or (2) pursuant to an exemption from registration
in accordance with (x) Rule 144 or (y) Rule 904 under the Securities
Act or pursuant to an effective registration statement under the
Securities Act, a certification to that effect from the transferor (in
substantially the form of Exhibit B hereto) and in the case of (2)(y),
the transferee; or
(iii) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that
24
effect from the transferor and the transferee (in substantially the
form of Exhibit B hereto) and an Opinion of Counsel from the transferee
or transferor reasonably acceptable to Golden State Petroleum and to
the Registrar to the effect that such transfer is in compliance with
the Securities Act,
the Indenture Trustee or the Note Custodian, at the direction of the Indenture
Trustee, shall cause, in accordance with the standing instructions and
procedures existing between the Depository and the Note Custodian, the aggregate
principal amount of the Class represented by Global Notes to be reduced
accordingly and, following such reduction, Golden State Petroleum shall execute
and the Indenture Trustee shall authenticate and deliver to the transferee a
Definitive Note in the appropriate principal amount.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.8), a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(f) AUTHENTICATION OF DEFINITIVE NOTES IN ABSENCE OF
DEPOSITORY. If at any time:
(i) the Depository for a Class of the Mortgage Notes
notifies Golden State Petroleum that the Depository is unwilling or
unable to continue as Depository for such Class of the Global Notes and
a successor Depository for such Global Notes is not appointed by Golden
State Petroleum within 90 days after delivery of such notice; or
(ii) Golden State Petroleum, at its sole discretion,
notifies the Indenture Trustee in writing that it elects to cause the
issuance of Definitive Notes for a Class of Mortgage Notes under this
Indenture,
then Golden State Petroleum shall execute, and the Indenture Trustee, upon
receipt of an Officers' Certificate requesting the authentication and delivery
of Definitive Notes for such Class, shall authenticate and deliver, Definitive
Notes for such Class in an aggregate principal amount equal to the principal
amount of the Global Notes for such Class, in exchange for such Global Notes for
such Class.
(g) LEGENDS.
(i) Except as permitted by paragraph (iii), each
Mortgage Note evidencing Global Notes and Definitive Notes (and all
Mortgage Notes issued in exchange therefor or substitution thereof)
shall bear a legend in substantially the following form:
"THE MORTGAGE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE MORTGAGE NOTE EVIDENCED
HEREBY MAY NOT BE OFFERED,
25
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE MORTGAGE NOTE EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE MORTGAGE NOTE EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF GOLDEN STATE PETROLEUM AND THE OWNERS THAT, UNTIL THE LATER OF
[DECEMBER 24, 1999/JANUARY 6, 2000]* OR THREE YEARS SINCE THE DATE THIS MORTGAGE
NOTE WAS LAST HELD BY AN AFFILIATE OF GOLDEN STATE PETROLEUM (OR, IN EACH CASE,
SUCH EARLIER DATE AS RESALES HEREOF ARE PERMITTED PURSUANT TO RULE 144(K) OR THE
SUCCESSOR RULE THERETO) (A) SUCH MORTGAGE NOTE MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) (a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND,
IN THE CASE OF CLAUSE (b), (c) OR (d), BASED ON AN OPINION OF COUNSEL AND/OR
CERTIFICATES TO THE EXTENT PROVIDED IN THE INDENTURE), (2) TO THE OWNERS, (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE MORTGAGE NOTE
EVIDENCED HEREBY OR ANY MORTGAGE NOTE ISSUED IN EXCHANGE FOR OR IN SUBSTITUTION
HEREOF OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(ii) Each Global Note shall also bear the legend
referred to in footnote 1 or 3 of Exhibit A.
(iii) Notwithstanding the foregoing, (x) upon
consummation of the Exchange Offer, Golden State Petroleum, as agent
for the Owners, shall issue and, upon receipt of an authentication
order in accordance with Section 2.3 hereof, the Indenture Trustee
shall authenticate Exchange Term Notes in exchange for Initial Term
Notes accepted for exchange in the Exchange Offer, which Exchange Term
Notes shall not bear the legends set forth in (i) above, (y) upon the
transfer of any Initial Term Note pursuant to an effective Shelf
Registration Statement and if the Holder thereof so requests, the
Indenture Trustee shall remove the legends set forth in (i) above from
such Initial Term Note or exchange such Initial Term Note for an
Exchange Term Note and (z) at any time
--------
* December 24, 1999 shall be with respect to the Serial Notes and January
6, 2000 shall be with respect to the Term Notes.
26
there is delivered to the Owners such satisfactory evidence, which may
include an Opinion of Counsel, as may reasonably be requested by the
Owners, confirming that neither such legend nor the restrictions on
transfer set forth therein are required to ensure that transfers of a
Mortgage Note will violate the registration and prospectus delivery
requirements of the Securities Act; provided that the Indenture Trustee
shall not be required to determine (but may rely on a determination
made by the Owners with respect to) the sufficiency of any such
evidence; and upon provision of such evidence, the Indenture Trustee
shall authenticate and deliver in exchange for such Mortgage Note, one
or more Mortgage Notes (representing the same aggregate principal
amount of the Mortgage Note being exchanged) without such legend, and
the Registrar shall rescind any restriction on the transfer of such
Term Notes, in each case unless the Holder of such Mortgage Notes is
either (A) a broker-dealer who purchased such Mortgage Notes directly
from Golden State Petroleum, as agent for the Owners, to resell
pursuant to Rule 144A or any other available exemption under the
Securities Act, (B) a Person participating in the distribution of the
Mortgage Notes or (C) a Person who is an affiliate (as defined in Rule
144A) of the Owners, the Charterer or Chevron.
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such
time as all beneficial interests in Global Notes of a Class have either been
exchanged for Definitive Notes for such Class, redeemed, repurchased or
cancelled, all Global Notes of such Class shall be returned to or retained and
cancelled by the Indenture Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Note of such Class is exchanged for
Definitive Notes of such Class, redeemed, repurchased or cancelled, the
principal amount of Mortgage Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note, by the
Indenture Trustee or the Note Custodian, at the direction of the Indenture
Trustee, to reflect such reduction.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges,
Golden State Petroleum shall execute and the Indenture Trustee shall
authenticate Definitive Notes and Global Notes at the Registrar's
request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but Golden State Petroleum may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Section 12.1).
(iii) The Registrar shall not be required:
(A) to register the transfer or exchange of any
Mortgage Note selected for redemption in whole or in part,
except the unredeemed portion of any Mortgage Note being
redeemed in part;
(B) to register the transfer of or to exchange
Mortgage Notes during a period beginning at the opening of 15
days before the day of the mailing of a
27
notice of redemption of a Mortgage Note of such Class selected
for redemption under Section 12.2 and ending at the close of
business on the day of such mailing; or
(C) to register the transfer or exchange of a
Mortgage Note between a Record Date and the next succeeding
Payment Date.
(iv) All Definitive Notes and Global Notes issued upon
any registration of transfer or exchange of Definitive Notes or Global
Notes shall be the valid obligations of the Owners, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Definitive Notes or Global Notes surrendered upon such registration of
transfer or exchange.
(v) Golden State Petroleum, as agent for the Owners,
shall not be required to issue Mortgage Notes during a period beginning
at the opening of 15 days before the day of the mailing of a notice of
redemption of a Mortgage Note of such Class selected for redemption
under Section 12.2 and ending at the close of business on the day of
such mailing.
SECTION 2.9 MUTILATED, DESTROYED, LOST AND STOLEN NOTES. If
any mutilated Mortgage Note is surrendered to the Indenture Trustee, Golden
State Petroleum shall execute, and the Indenture Trustee shall authenticate and
deliver in exchange therefor, a new Mortgage Note of like tenor, principal
amount, Class and Stated Maturity and bearing a number not contemporaneously
outstanding.
If there shall be delivered to Golden State Petroleum and the
Indenture Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Mortgage Note and (ii) such security or indemnity as may be
required by them to hold each of them and any agent of either of them harmless,
then, in the absence of notice to Golden State Petroleum or the Indenture
Trustee that such Mortgage Note has been acquired by a bona fide purchaser,
Golden State Petroleum shall execute and upon its request the Indenture Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Mortgage Note, a new security of like tenor, principal amount, Class and Stated
Maturity and bearing a number not contemporaneously outstanding. If after the
delivery of such new Mortgage Note, a bona fide purchaser of the original
Mortgage Note in lieu of which such new Mortgage Note was issued presents for
payment such original Mortgage Note, Golden State Petroleum and the Indenture
Trustee shall be entitled to recover such new Mortgage Note from the person to
whom it was delivered or any transferee thereof, except a bona fide purchaser,
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by Golden
State Petroleum or the Indenture Trustee in connection therewith.
In case any such mutilated, destroyed, lost or stolen Mortgage
Note has become or is about to become due and payable, Golden State Petroleum in
its discretion may, instead of issuing a new Mortgage Note, pay such Mortgage
Note.
Upon the issuance of any new Mortgage Note under this Section,
Golden State Petroleum may require the payment of a sum sufficient to cover any
tax or other governmental
28
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Indenture Trustee) connected therewith.
Except as provided above, every new Mortgage Note issued
pursuant to this Section in lieu of any destroyed, lost or stolen Mortgage Note
shall constitute an original additional contractual obligation of the Owners,
whether or not the destroyed, lost or stolen Mortgage Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Mortgage Notes duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Mortgage
Notes.
SECTION 2.10 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest (including default interest) on any Mortgage Note is payable on
each Payment Date to the Person in whose name that Mortgage Note is registered
at the close of business on the Record Date for such interest.
(b) Each Mortgage Note delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Mortgage
Note shall carry the rights to interest (including default interest) accrued and
unpaid, and to accrue, which were carried by such other Mortgage Note.
(c) Any overdue installment of interest, sinking fund payment,
principal or other amount payable by the Owners hereunder shall accrue interest
at the Default Rate from the date such amount was due to but not including the
actual date of payment.
(d) If (i) the Exchange Offer is not consummated within 180
days of the Closing Date, (ii) a Shelf Registration Statement required under the
Registration Rights Agreement is not declared effective within the time period
specified therein, (iii) the Shelf Registration Statement or the Exchange Offer
Registration Statement is declared effective but thereafter ceases to be
effective during the periods specified in the Registration Rights Agreement, or
(iv) the Commission determines that nether the consummation of the Exchange
Offer nor continued effectiveness of the Shelf Registration Statement will
permit the free resale of the Exchange Term Notes or the Term Notes, as the case
may be, without additional registration under the Securities Act then a
"Registration Event" event will be deemed to have occurred. During any time that
a Registration Event has occurred and is continuing, until the Exchange Term
Notes or the Term Notes may be freely resold pursuant to Rule 144(k) by a person
who is not an affiliate of the issuer (within the meaning of Rule 144(k)),
special interest ("Special Interest") will accrue on such Term Notes which
constitute Restricted Securities at a rate of 0.25% of the principal amount
thereof per annum payable semiannually in arrears on each Payment Date. If, and
during this period that, Special Interest is accruing to Term Notes that
constitute Restricted Securities, any payments of interest to the holders
thereof shall include payments of all accrued and unpaid Special Interest.
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SECTION 2.11 PERSONS DEEMED OWNERS. Prior to due presentation
of a Mortgage Note for registration of transfer, Golden State Petroleum, the
Owners, the Indenture Trustee and any agent of Golden State Petroleum, the
Owners or the Indenture Trustee may treat the Person in whose name any Mortgage
Note is registered as the owner of such Mortgage Note for the purpose of
receiving payment of principal of and (subject to Section 2.10) interest
(including default interest) on such Mortgage Note and for all other purposes
whatsoever, whether or not such Mortgage Note be overdue, and neither Golden
State Petroleum, the Owners, the Indenture Trustee nor any agent of Golden State
Petroleum, the Owners or the Indenture Trustee shall be affected by notice to
the contrary.
SECTION 2.12 CANCELLATION. All Mortgage Notes surrendered for
payment, registration of transfer or exchange shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by it. Golden State Petroleum may at any time
deliver to the Indenture Trustee for cancellation any Mortgage Notes previously
authenticated and delivered hereunder which Golden State Petroleum may have
acquired in any manner whatsoever, and all Mortgage Notes so delivered shall be
promptly cancelled by the Indenture Trustee. No Mortgage Notes shall be
authenticated in lieu of or in exchange for any Mortgage Notes cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Mortgage Notes held by the Indenture Trustee shall be disposed of as
directed by a Company Order. Golden State Petroleum shall, within 120 days of a
request therefor by the Indenture Trustee, deliver a Company Order directing the
destruction of cancelled Mortgage Notes. If Golden State Petroleum fails to
respond to such a request within such 120-day period, the Indenture Trustee may
destroy any or all cancelled Mortgage Notes, in which case the Indenture Trustee
shall deliver a certificate as to such destruction to Golden State Petroleum.
SECTION 2.13 COMPUTATION OF INTEREST. Interest on the Mortgage
Notes shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.14 MANNER OF PAYMENTS IN RESPECT OF MORTGAGE NOTES.
Payment of principal of the Mortgage Notes will be made at the office or agency
maintained by Golden State Petroleum pursuant to Section 2.5 by delivery of a
check on the Payment Date against surrender of such Mortgage Notes, and, at the
option of Golden State Petroleum, any interest (including default interest) on
any Mortgage Note will be paid at the office or agency maintained by Golden
State Petroleum pursuant to Section 2.5 by mailing a check to the Holder
entitled thereto at the address of such Holder appearing on the Note Register;
provided, that notwithstanding the foregoing, all payments in respect of Global
Notes shall be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof.
SECTION 2.15 CUSIP AND CINS NUMBERS. Golden State Petroleum,
as agent for the Owners, in issuing the Mortgage Notes, may use a "CUSIP" or
"CINS" number for the Initial Notes, the Exchange Notes and each Class of
Mortgage Notes and, if so, the Indenture Trustee shall use the relevant CUSIP or
CINS number in any notices to Holders as a convenience to such Holders; PROVIDED
that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP or CINS numbers printed in the notice or on
the Mortgage Notes and that reliance may be placed only on the other
identification
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numbers printed on the Mortgage Notes. Golden State Petroleum shall promptly
notify the Indenture Trustee of any change in any CUSIP or CINS number used.
ARTICLE THREE
THE TRUST ACCOUNTS; DISTRIBUTIONS
SECTION 3.1 THE TRUST ACCOUNTS. (a) There is hereby
established and, at all times hereafter until the trusts created by this
Indenture shall have terminated, there shall be maintained with the Indenture
Trustee at the Corporate Trust Office, a trust account (the "Revenue Account")
in the name and under the control of the Indenture Trustee for the benefit of
the Noteholders into which there shall be deposited for each Vessel (i) any and
all Charterhire payments under the Charters and any charterhire received
pursuant to an Acceptable Replacement Charter, (ii) any and all charterhire
payments received by an Owner under any other charters of the Vessels, (iii) any
and all income from the investment of amounts held in the Revenue Account and
the Debt Service Reserve Fund and (iv) any amounts transferred to the Revenue
Account from the Pre-Funding Account pursuant to Section 3.5. Notwithstanding
anything to the contrary contained herein, any such amounts shall be held for
the benefit of the Holders of the Term Notes. Funds on deposit in the Revenue
Account shall be disbursed by the Indenture Trustee on each Payment Date in
accordance with Section 3.3.
(b) There is hereby established and, at all times hereafter
until the trusts created by this Indenture shall have terminated, there shall be
maintained with the Indenture Trustee at the Corporate Trust Office, a trust
account (the "Termination Account") in the name and under the control of the
Indenture Trustee for the benefit of the Noteholders into which there shall be
deposited for each Vessel, if such Vessel is a Total Loss, the Total Loss
Payment. Any Total Loss Payment deposited into the Termination Account shall be
disbursed by the Indenture Trustee in accordance with Section 12.1(c). Any funds
remaining in the Termination Account after application in accordance with
Section 12.1(c) and after providing for the expenses of the Indenture Trustee as
a result of the mandatory redemption of Mortgage Notes in accordance with
Section 12.1(c) shall be transferred to the Owner of the Vessel that is a Total
Loss.
(c) There is hereby established and, at all times hereafter
until the trusts created by this Indenture shall have terminated, there shall be
maintained with the Indenture Trustee at the Corporate Trust Office, a trust
account (the "Operating Account") in the name and under the control of the
Indenture Trustee for the benefit of the Noteholders into which the Indenture
Trustee shall deposit the amounts described in Section 3.3(e) on each Payment
Date following the Delivery Date for each Vessel. Funds deposited into the
Operating Account will be disbursed by the Indenture Trustee from time to time,
to pay Recurring Fees for each Vessel as such amounts become due and payable
upon presentation of invoices therefor pursuant to the Management Agreement.
(d) There is hereby established and, at all times hereafter
until the trusts created by this Indenture shall have terminated, there shall be
maintained with the Indenture Trustee at the Corporate Trust Office, a trust
account (the "Casualty Account) in the name and under the control of the
Indenture Trustee for the benefit of the Noteholders into which there shall be
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deposited, pursuant to the provisions of the related Security Documents,
insurance proceeds and all payments in connection with the occurrence of a Total
Loss to either Vessel. Funds deposited into the Casualty Account in respect of a
Total Loss of a Vessel will be disbursed by the Indenture Trustee in the
following order of priority: first, an amount equal to the related Total Loss
Payment will be deposited into the Termination Account and second, the
remainder, if any, will be remitted to the Charterer.
(e) There is hereby established and, at all times hereafter
until the trusts created by this Indenture shall have terminated, there shall be
maintained with the Indenture Trustee at the Corporate Trust Office, a trust
account (the "Collateral Account") in the name and under the control of the
Indenture Trustee for the benefit of the Noteholders into which there shall be
deposited from time to time (i) the Default Payment, (ii) the cash proceeds of
any sale of, or other realization upon, all or any part of the Collateral upon
the exercise by the Indenture Trustee of any of the rights and remedies
described in Article Seven and (iii) any other amount received by the Indenture
Trustee pursuant to any of the Security Documents for which this Indenture does
not specify another Trust Account into which such amount is to be deposited.
While an Indenture Event of Default is in effect, all moneys which are required
by any Security Document to be delivered to the Indenture Trustee or which are
received by the Indenture Trustee or any agent or nominee of the Indenture
Trustee in respect of the Collateral, whether in connection with the exercise of
the remedies provided in any Security Document or otherwise, shall be deposited
in the Collateral Account and held by the Indenture Trustee as part of the Trust
Estate and applied in accordance with the terms of this Indenture.
(f) There is hereby established and, at all times hereafter
until the trusts created by this Indenture shall have terminated, there shall be
maintained with the Indenture Trustee at the Corporate Trust Office, a trust
account (the "Debt Service Reserve Fund") in the name and under the control of
the Indenture Trustee for the benefit of Noteholders into which there shall be
deposited (i) by Golden State Petro I-A on the Vessel A Delivery Date, an amount
equal to any liquidated damages paid by the Builder to Golden State Petro I-A
pursuant to the Golden State Petro I-A Building Contract, (ii) by Golden State
Xxxxx X-X on the Vessel B Delivery Date, an amount equal to any liquidated
damages paid by the Builder to Golden State Xxxxx X-X pursuant to the Golden
State Xxxxx X-X Building Contract and (iii) by the Indenture Trustee, from time
to time on a Payment Date, the amount described in Section 3.3(h) and (j)
hereof. Funds on deposit in the Debt Service Reserve Fund shall be disbursed by
the Indenture Trustee on each Payment Date to the extent required, to make the
payments set forth in Section 3.3.
(g) Any income received by the Indenture Trustee with respect
to the balance from time to time standing to the credit of any Trust Account,
including any interest or capital gains on Permitted Investments, shall be
deposited, in the Revenue Account. All cash amounts on deposit from time to time
in the Trust Accounts, together with any Permitted Investments from time to time
made with amounts on deposit therein as provided herein, shall constitute part
of the Collateral. The deposit or holding of such amounts in any Trust Account
shall not constitute payment of the Mortgage Notes until applied to the payment
of the Mortgage Notes as provided herein. The parties to this Indenture agree
that all income from Permitted Investments shall be income of the Owners, to be
held in the sole and exclusive control of the Indenture Trustee pursuant to this
Indenture.
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SECTION 3.2 INVESTMENT OF FUNDS DEPOSITED IN TRUST ACCOUNTS.
Amounts on deposit in the Trust Accounts shall be invested and re-invested from
time to time in such Permitted Investments as the Owners shall direct by written
instruction to the Indenture Trustee, which Permitted Investments shall be held
in the name and be under the control of the Indenture Trustee or a co-trustee or
separate trustee permitted under Section 8.14. If the amounts on deposit in any
of the Trust Accounts are invested in a Permitted Investment described in
paragraph (d) of the definition thereof and the rating thereof falls below the
rating that is indicated in such paragraph, the Owners may direct the Indenture
Trustee to re-invest such amounts in another Permitted Investment and if the
Majority Noteholders so direct the Indenture Trustee in writing, the Owners
shall re-invest such amounts in another Permitted Investment. Each Permitted
Investment in which the Trust Funds are invested must mature on or before the
next succeeding Payment Date. In order to provide the Indenture Trustee, for the
benefit of the Holders, with a perfected security interest in any Permitted
Investment, each Permitted Investment shall be either:
(A) evidenced by negotiable certificates or instruments, or if
nonnegotiable then issued in the name of the Indenture Trustee, which (together
with any appropriate instruments of transfer) are delivered to, and held by, the
Indenture Trustee or any agent thereof in the State of New York; or
(B) in book-entry form and issued by the United States or any
agency thereof and backed by the full faith and credit of the United States, and
subject to pledge under applicable state law and Treasury regulations and as to
which appropriate measures shall have been taken for perfection of the security
interests.
In the absence of negligence or willful misconduct, the Indenture Trustee shall
not be responsible for any loss resulting from any such Permitted Investment.
SECTION 3.3 PAYMENT DATES. On each Payment Date, the Indenture
Trustee shall make the payments from amounts on deposit first in the Revenue
Account and with respect to the payments described in clauses (a) through (e)
and (g) below, then from the Debt Service Reserve Fund, in each case to the
extent of funds available therein, in the priority set forth below:
(a) if the Delivery Date for a Vessel has occurred, to pay
Recurring Fees for such Vessel that the Manager certifies to the
Indenture Trustee are then due and payable up to an amount equal to
$50,000;
(b) (i) to pay all interest (including default interest) then
due and payable on the Serial Notes to the holders of the Serial Notes,
ratably in the proportion that the amount of such payment then due
under each Serial Note bears to the aggregate amount of the payments
then due under all Serial Notes; (ii) to pay all interest (including
default interest) then due and payable on each Series of Additional
Notes to the holders of such Series of Additional Notes, ratably in the
proportion that the amount of such payment then due under such Series
of Additional Notes bears to the aggregate amount of the payments then
due under such Series of Additional Notes and (iii) to pay all interest
(including default interest) then due and payable on the Term Notes to
the holders of the
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Term Notes, ratably in the proportion that the amount of such payment
then due under each Term Note bears to the aggregate amount of the
payments then due under all such Term Notes;
(c) (i) if such Payment Date is a maturity date of a Class of
Serial Notes, to the holders of such Class of Serial Notes, on a PRO
RATA basis in proportion to the principal balance of each Serial Note
then outstanding within such Class, an amount equal to the aggregate
principal balance of such Class and (ii) to pay the aggregate sinking
fund redemption amount or amounts of principal then due and payable on
each Series of Additional Notes (as indicated on the Schedule of
Sinking Fund Payments attached to the related Supplemental Indenture as
such Schedule may be adjusted pursuant to the terms and subject to the
conditions of this Indenture) to the holders of such Series of
Additional Notes, ratably in the proportion that the amount of such
principal then due under each Additional Note of such Series bears to
the aggregate amount of such principal then due under such Series of
the Additional Notes;
(d) commencing on the First Term Note Sinking Fund Payment
Date, to pay the aggregate sinking fund redemption amount or amounts of
principal then due and payable on the Term Notes (as indicated on
Schedule 1 attached hereto and made a part hereof as such Schedule may
be adjusted pursuant to the terms and subject to the conditions of the
Indenture) to the holders of the Term Notes, ratably in the proportion
that the amount of such principal then due under each Term Note bears
to the aggregate amount of such principal then due under all the Term
Notes;
(e) to pay Recurring Fees for each Vessel that are then due
and payable, to the extent not paid pursuant to (a) above;
(f) if the Delivery Date for a Vessel has occurred, to deposit
into the Operating Account the estimated Recurring Fees certified by
the Manager to the Indenture Trustee to become due and payable for such
Vessel prior to the next succeeding Payment Date;
(g) to pay to the Indenture Trustee, the Trustee Fees;
(h) to deposit into the Debt Service Reserve Fund, an amount
equal to the positive difference, if any, between (i) the Debt Service
Reserve Requirement and (ii) the amount then on deposit in the Debt
Service Reserve Fund (after giving effect to the distributions
described in (a) through (g) hereof);
(i) if the Delivery Date for a Vessel has occurred, to pay to
the Manager, the positive difference, if any, between (i) the
Management Fee then due and payable for such Vessel and (ii) the
aggregate amount paid pursuant to clauses (a), (e) and (f); and
(j) to deposit the excess, if any, into the Debt Service
Reserve Fund.
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Any amounts payable to the Holders of the Term Notes pursuant to clause
(b) above shall include any amounts received pursuant to the Chevron
Registration Rights Agreement, ratably to each Holder of Term Notes.
After the foregoing payments have been made, the Indenture Trustee will
invest (and reinvest, as applicable) any balance remaining in each of the Trust
Accounts in Permitted Investments that will mature on or before the next
succeeding Payment Date.
SECTION 3.4 APPLICATION OF MONEYS IN THE TRUST ACCOUNT. Upon
the occurrence of an Indenture Event of Default and to the extent amounts are
distributable pursuant to the terms of this Indenture, any moneys held by the
Indenture Trustee in the Trust Accounts shall, to the extent available for
distribution (it being understood that the Indenture Trustee may liquidate
Permitted Investments prior to maturity in order to make a distribution pursuant
to this Section 3.4), be distributed by the Indenture Trustee on each
Distribution Date, to the extent of available funds, in the following order of
priority:
FIRST: to the Indenture Trustee, an amount equal to any due
and unpaid trustee fees and all reasonable expenses and charges
incurred by or on behalf of the Indenture Trustee in connection with
the ascertainment or protection of its rights and the pursuance of its
remedies under this Indenture or under any of the Security Documents
(including, without limitation, the reasonable fees and disbursements
of counsel);
SECOND: to the Holders of the Serial Notes and Additional
Notes, on a pro rata basis, an amount equal to the due and unpaid
interest (including default interest) on the Serial Notes and
Additional Notes then outstanding;
THIRD: to the Holders of the Term Notes, on a pro rata basis,
an amount equal to the due and unpaid interest (including default
interest) on the Term Notes then outstanding;
FOURTH: to the Holders of each Class of Serial Notes and the
Additional Notes, on a PRO RATA basis, an amount equal to the due and
unpaid principal of the Serial Notes and the Additional Notes then
outstanding;
FIFTH: to the Holders of the Term Notes, on a pro rata basis,
an amount equal to the due and unpaid principal on the Term Notes then
outstanding; and
SIXTH: to the Owners or their respective successors or assigns
or to whomsoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct, the excess.
SECTION 3.5 PRE-FUNDING ACCOUNT.
(a) There is hereby established with the Indenture Trustee a
trust account (the "Pre-Funding Account") in the name and under the control of
the Indenture Trustee for the benefit of the Noteholders, into which there shall
be deposited (i) on the Closing Date by Golden State Petro I-A and Golden State
Xxxxx X-X, the net proceeds of the Notes issued on the Closing
35
Date, (ii) on January 6, 1997 by Golden State Petro I-A an amount equal to
$26,730,000, (iii) on January 6, 1997 by Golden State Xxxxx X-X an amount equal
to $26,730,000, (iv) any investment income from Permitted Investments of amounts
held therein from time to time and (v) any proceeds payable pursuant to either
Building Contract or Building Contract Guarantee. The Indenture Trustee may
withdraw an amount equal to the expenses payable by the Owners with respect to
the Exchange Offer upon the presentation of invoices therefor or a payment
direction letter executed by the Owners; provided that the aggregate amount of
such expenses shall not exceed $240,000. To the extent such expenses are less
than $240,000, the Indenture Trustee shall withdraw the excess from the
Pre-Funding Account and shall remit such amount to the Owners' designee,
Cambridge Petroleum Transport Corporation.
(b) (i) On each Payment Date prior to the Delivery Date for
each Vessel, the Indenture Trustee shall withdraw from the Pre-Funding Account
an amount equal to the interest accrued on the Allocated Principal Amount of the
Notes for such Vessel and shall deposit such amount in the Revenue Account. (ii)
On each Payment Date on which Special Interest is payable on a Term Note which
constitutes a Restricted Security, the Indenture Trustee should withdraw from
the Pre-Funding Account an amount equal to the aggregate Special Interest
payable on all Term Notes which constitute Restricted Securities and shall
deposit such amount in the Revenue Account. (iii) On the later to occur of the
Delivery Date of the last Vessel or the date on which the last Vessel is
rejected by the related Owner, all amounts then or deposit in the Pre-Funding
Account (after giving effect to the other withdrawals set forth in this Section
3.5) will be withdrawn by the Indenture Trustee and deposited into the Debt
Service Reserve Fund.
(c) On or before three Business Days prior to each Vessel A
Installment Date, Golden State Petro I-A shall give the Indenture Trustee
written notice of such Vessel A Installment Date. On each Vessel A Installment
Date the Indenture Trustee shall, provided that no material default under the
Golden State Petro I-A Building Contract exists, withdraw from the Pre-Funding
Account an amount equal to the installment of the purchase price due on such
date as indicated in the Golden State Petro I-A Building Contract and shall
remit such amount to the Builder, or to the Builder's order, as an installment
payment of the purchase price of the Vessel A.
(d) On or before three Business Days prior to each Vessel B
Installment Date, Golden State Xxxxx X-X shall give the Indenture Trustee
written notice of such Vessel B Installment Date. On each Vessel B Installment
Date, the Indenture Trustee shall, provided that no material default under the
Golden State Xxxxx X-X Building Contract exists, withdraw from the Pre-Funding
Account an amount equal to the installment of the purchase price due on such
date as indicated in the Golden State Xxxxx X-X Building Contract and shall
remit such amount to the Builder, or to the Builder's order, as an installment
payment of the purchase price of the Vessel B.
(e) On the Vessel A Delivery Date, the Indenture Trustee
shall, provided that the conditions precedent set forth in Section 3.5(g) shall
have been satisfied, withdraw from the Pre-Funding Account (i) an amount equal
to the final installment of the Purchase Price for Vessel A and shall remit such
amount to the Builder, or to the Builder's order, as the final purchase price of
Vessel A and (ii) an amount equal to the fees and expenses incurred in
36
connection with the recordation and filing of the related Security Documents in
the Registration Jurisdiction and shall remit it to the Manager.
(f) On the Vessel B Delivery Date, the Indenture Trustee
shall, provided that the conditions precedent set forth in Section 3.5(g) shall
have been satisfied, withdraw from the Pre-Funding Account (i) an amount equal
to the final installment of the Purchase Price for Vessel B and shall remit such
amount to the Builder, or to the Builder's order, as the final purchase price of
Vessel B and (ii) an amount equal to the fees and expenses incurred in
connection with the recordation and filing of the related Security Documents in
the Registration Jurisdiction and shall remit it to the Manager.
(g) The remittances described in Sections 3.5(e) and (f) shall
be subject to the Indenture Trustee's receipt of the following items on or prior
to the Delivery Date for such Vessel:
(i) executed originals of the Security Documents (in the forms
attached hereto as Exhibits D through M) relating to such Vessel to the
extent not previously delivered to the Indenture Trustee;
(ii) evidence (including an Opinion of Counsel) that the
Vessel has been registered in the name of Golden State Petro I-A or
Golden State Xxxxx X-X, as the case may be, under the laws of the
Registration Jurisdiction;
(iii) evidence (including an Opinion of Counsel) that the
related Mortgage has been properly recorded under the laws of the
Registration Jurisdiction and constitutes a first preferred mortgage
subject only to Permitted Liens;
(iv) executed originals of the related Charter, Chevron
Guarantee, Acknowledgement of the Assignment of Charter and the
Acknowledgement of the Assignment to Chevron Guarantee to the extent
not previously delivered to the Indenture Trustee, together with
evidence that the Charterer has accepted such Vessel under the related
Charter;
(v) evidence that such Vessel is classed in the highest
category for ships of the same type as the Vessel with The American
Bureau of Shipping free of recommendations and notations affecting
class;
(vi) evidence that all necessary governmental or regulatory
approvals, licenses and authorities which are necessary to the
operation of the Vessel have been obtained;
(vii) evidence that the Builder has no claims of any nature in
respect of the Vessel and that there are no disputes relating to the
Building Contract; and
(viii) such other items as the Indenture Trustee may
reasonably require.
(h) If the Indenture Trustee shall not have received the items
described in Section 3.5(g) on or before August 1, 2000, for Vessel A, or on or
before January 1, 2001, for
37
Vessel B then (unless in either case such date has been extended by the related
Owner pursuant to the terms of the related Building Contract and the Owners have
provided the Indenture Trustee with evidence that such extension would not
downgrade the then current rating of the Notes, in which case on or before such
extended Delivery Date) the Indenture Trustee (i) shall withdraw from the
Pre-Funding Account an amount equal to the sum of (A) the Allocated Principal
Amount of the Mortgage Notes for the such Vessel and (B) all interest accrued
and unpaid to the date fixed for redemption of the Mortgage Notes and (ii) shall
redeem the Allocated Principal Amount of the Mortgage Notes for such Vessel in
an amount equal to (i) above in the following order of priority: first, with
respect to Serial Notes comprising such Notes, and second, the Term Notes
comprising such Notes at a redemption price of 100% of the principal amount
thereof plus accrued and interest through the date of redemption. The redemption
date for any redemption pursuant to this Section 3.5(h) shall be on August 1,
2000 for Vessel A and January 1, 2001 for Vessel B.
SECTION 3.6 INDENTURE TRUSTEE'S CALCULATIONS. All
distributions made by the Indenture Trustee pursuant to this Article Three shall
(subject to any decree of any court of competent jurisdiction) be final, and the
Indenture Trustee shall have no duty to inquire as to the application of any
amounts so distributed. However, if at any time the Indenture Trustee determines
that an allocation or distribution previously made pursuant to this Article
Three was based on a mistake of fact, the Indenture Trustee may in its
discretion, but shall not be obligated to, adjust subsequent allocations and
distributions thereunder upon written confirmation from the Owners of the amount
of such allocations and distributions so that, on a cumulative basis, the
Holders receive the distributions to which they would have been entitled if such
mistake of fact had not been made.
SECTION 3.7 DISTRIBUTION TO OWNERS. Except as specifically set
forth in Sections 3.1 and 3.4 so long as the Mortgage Notes remain Outstanding,
the Indenture Trustee shall not distribute any amounts held in the Trust
Accounts to the Owners.
ARTICLE FOUR
SECURITY
SECTION 4.1 GRANT OF SECURITY INTEREST. (a) To secure the
payment of the principal of, premium, if any, and interest on the Mortgage
Notes, the payment of any other amounts due under this Indenture or any other
Security Document and the performance of all covenants, terms and conditions
under this Indenture and the other Security Documents, each Owner does hereby
grant, bargain, sell, assign, transfer, convey, mortgage, pledge and grant a
security interest in and confirm to the Indenture Trustee, its successors and
assigns, in trust for the Noteholders, a first priority security interest in and
first Lien on all estate, right, title and interest of such Owner in, to and
under the following described property, rights and privileges (the "Trust
Estate"), whether now owned or existing or hereafter acquired or arising and
regardless of where located, which collectively, including all property
specifically subjected to the Lien of this Indenture by the terms hereof, by any
supplement or amendment hereto, are included within the Trust Estate, subject to
the other terms and conditions of this Indenture:
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(i) Each Vessel, in accordance with the terms and conditions
of the related Mortgage;
(ii) Each Charter, in accordance with the terms and conditions
of the related Assignment of Charter;
(iii) Each Charter Supplement, in accordance with the terms
and conditions of the related Assignment of Charter Supplement;
(iv) Each Chevron Guarantee, in accordance with the terms and
conditions of the related Assignment of Chevron Guarantee;
(v) Each Management Agreement, in accordance with the terms of
the related Assignment of Management Agreement;
(vi) Each Building Contract and Technical Supervision
Agreement, in accordance with the terms of the related Assignment of
Building Contract;
(vii) Each Building Contract Guarantee, in accordance with the
terms and conditions of the related Assignment of Building Contract
Guarantee;
(viii) Each Assignment of Earnings and Insurances;
(ix) Each Issue of One Debenture;
(x) The Pledged Stock, in accordance with the Stock Pledge;
(xi) Any additional security agreement, assignment or mortgage
document entered into by such Owner from time to time in connection
herewith;
(xii) All rights of such Owner to receive payments of any
kind, to execute any election or option or to give or receive any
notice, consent, waiver or approval under or in respect of any of the
foregoing documents and instruments;
(xiii) All the charterhire, tolls, rents, issues, profits,
products, revenues and other income (including insurance, warranty and
sales proceeds) of the property subjected or required to be subjected
to the Lien of this Indenture, and all of the estate, right, title and
interest of such Owner in and to the same and every part of said
property;
(xiv) All moneys and securities, including the Trust Accounts
and any Permitted Investments, now or hereafter paid or deposited or
required to be paid or deposited to or with the Indenture Trustee by or
for the account of such Owner or otherwise pursuant to any term of any
Security Document, and held or required to be held by the Indenture
Trustee hereunder;
(xv) All requisition proceeds with respect to either Vessel or
any part thereof (to the extent of the Indenture Trustee's interest
therein, as mortgagee of such Vessel,
39
pursuant to the terms of the Mortgage) and all insurance proceeds with
respect to either Vessel or any part thereof (to the extent of the
Indenture Trustee's interest therein, as mortgagee of such Vessel,
pursuant to the terms of the Mortgage);
(xvi) Any charter assigned to the Indenture Trustee pursuant
to the Assignment of Earnings and Insurances; and
(xvii) All income, payments and proceeds of the foregoing.
(b) It is expressly agreed that anything contained in this
Indenture to the contrary notwithstanding, each Owner shall remain liable under
the Security Documents to which such Owner is a party to perform all of the
obligations assumed by it under any of those documents, all in accordance with
and pursuant to the terms and provisions of those documents, and the Indenture
Trustee and the Noteholders shall have no obligation or liability under the
Security Documents by reason of or arising out of the assignment under this
Indenture, nor shall the Indenture Trustee or the Noteholders be required or
obligated in any manner to perform or fulfill any obligations of the Owners
under or pursuant to the Security Documents or, except as expressly provided in
this Indenture, to make any payment, or to make any inquiry as to the nature or
sufficiency of any payment received by it, or present or file any claim, or take
any action to collect or enforce the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
SECTION 4.2 RECORDING, ETC. (a) The Owners will cause the
applicable Security Documents, including the Mortgages and any financing
statements, all amendments or supplements to each of the foregoing and any other
similar security documents as necessary, to be registered, recorded and filed or
re-recorded, re-filed and renewed in such manner and in such place or places, if
any, as may be required by law or reasonably requested by the Indenture Trustee
and shall take all further action that may be necessary and desirable in order
fully to preserve, protect and perfect the Lien of the Indenture Trustee
securing the Mortgage Notes (for the ratable benefit of the Noteholders) and to
effectuate and preserve the security of the Noteholders and all rights of the
Indenture Trustee.
(b) Golden State Petroleum, as agent for the Owners, shall
furnish the Indenture Trustee:
(i) promptly after the execution and delivery of this
Indenture, and promptly after the execution and delivery of any other
instrument of further assurance or amendment, an Opinion of Counsel
either (i) stating that, in the opinion of such counsel, and as of the
date of such opinion, this Indenture and the applicable Security
Documents and all other instruments of further assurance or amendment
have been properly recorded, registered and filed, as appropriate, to
the extent necessary to make effective the Lien intended to be created
by such Security Documents and reciting the details of such action or
referring to prior Opinions of Counsel in which such details are given,
and stating that as to such Security Documents and such other
instruments such recording, registering and filing are the only
recordings, registerings and filings necessary to give notice thereof
and that no re-recordings, re-registerings or re-filings are necessary
to maintain such notice, and further stating that all financing
statements and continuation
40
statements have been executed and filed that are necessary fully to
preserve and protect the rights of the Noteholders, the Indenture
Trustee hereunder and under the Security Documents or (ii) stating
that, in the opinion of such counsel, no such action is necessary to
make any other Lien created under any of the Security Documents
effective as intended by such Security Documents.
(ii) within 30 days after January 1 in each year beginning
with the year 1998, an Opinion of Counsel, dated as of such date,
either (i) stating that, in the opinion of such counsel, such action
has been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of this Indenture and all
supplemental indentures, financing statements, continuation statements
or other instruments of further assurance as is necessary to maintain
the Lien of this Indenture and the Security Documents and reciting the
details of such action or referring to prior Opinions of Counsel in
which such details are given, and stating that all financing statements
and continuation statements have been executed and filed that are
necessary fully to preserve and protect the rights of the Noteholders,
the Indenture Trustee hereunder and under the Security Documents or
(ii) stating that, in the opinion of such counsel, no such action is
necessary to maintain such Lien.
SECTION 4.3 PROTECTION OF THE TRUST ESTATE. The Indenture
Trustee shall have the power to enforce the obligations of the Owners under this
Indenture and under the Security Documents, to the extent permitted hereunder
and thereunder, to institute and maintain such suits and proceedings as it may
deem expedient to prevent any impairment of the Collateral under any of the
Security Documents and in the profits, rents, revenues and other income arising
therefrom, including the power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair any Collateral or be prejudicial to the interests of the
Noteholders or the Indenture Trustee.
SECTION 4.4 RELEASE OF LIEN. (a) Subject to the provisions of
Section 6.14 and 7.2 and so long as no Indenture Event of Default is in effect,
Collateral may be released from the Lien and security created by this Indenture
and the Security Documents, as the case may be, at any time or from time to time
in accordance with the provisions of the Indenture, the Security Documents and
the Trust Indenture Act. In the case of Collateral consisting of cash or
Permitted Investments in the Trust Accounts, such Collateral shall be released
as provided herein without the need for any Officer's Certificate, Opinion of
Counsel, release, waiver or other action.
(b) Upon the request of Golden State Petroleum and pursuant to
an Officer's Certificate and an Opinion of Counsel certifying that all
conditions precedent hereunder have been met (to be provided at the sole cost
and expense of Golden State Petroleum) and upon the satisfaction of such
conditions precedent hereunder, the Indenture Trustee shall release (i) any
portion of the Collateral as to the release of which the consent of Noteholders
has been obtained, and (ii) all Collateral (except as provided in Article Eleven
hereof) upon discharge or defeasance of this Indenture in accordance with
Article Eleven hereof.
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(c) Upon receipt of such Officer's Certificate and Opinion of
Counsel, the Indenture Trustee must execute, deliver or acknowledge any
necessary or proper instruments of termination, satisfaction or release to
evidence the release of any Collateral permitted to be released pursuant to this
Indenture or the Indenture and the Security Documents, as the case may be.
Whenever Collateral is to be released pursuant to this Section 4.4, the
Indenture Trustee will execute any document or termination statement reasonably
necessary to release the Lien of this Indenture or this Indenture and the
Security Documents, as the case may be.
(d) The release of any Collateral from the terms of this
Indenture or this Indenture and the Security Documents, as the case may be, will
not be deemed to impair the security under this Indenture in contravention of
the provisions hereof if and to the extent the Collateral is released pursuant
to the terms hereof and of the Security Documents. To the extent applicable,
Golden State Petroleum and any other obligor shall cause Section 314(d) of the
Trust Indenture Act relating to the release of property from the Lien arising
out of the Security Documents to be complied with. Any certificate or opinion
required by Section 314(d) of the Trust Indenture Act may be made by any
Responsible Officer of Golden State Petroleum, PROVIDED that to the extent
required by Section 314(d) of the Trust Indenture Act, any such certificate or
opinion shall be made by an independent engineer, appraiser or other expert (as
such terms are set forth in Section 314(d) of the Trust Indenture Act), who is
not an Affiliate of Golden State Petroleum or any other obligor.
(e) Notwithstanding the other provisions of this Section 4.4,
if no Charter Event of Default has occurred and is continuing, upon the
Indenture Trustee's receipt of the Total Loss Payment for a Vessel, together
with all other amounts owing under the Indenture in respect of such Vessel, the
Indenture Trustee shall (i) release such Vessel and the related Collateral from
the Lien of this Indenture and (ii) release the related Owner from any and all
of its obligations hereunder, under the Mortgage Notes and the related Security
Documents.
SECTION 4.5 LIMITATION ON INDENTURE TRUSTEE'S DUTY IN RESPECT
OF COLLATERAL. Beyond its duties as to the custody thereof expressly provided
herein or in any Security Document and to account to the Noteholders and the
Owners for moneys and other property received by it under any Security Document,
the Indenture Trustee shall not have any duty to the Owners or the Noteholders
as to any Collateral in its possession or control or in the possession or
control of any of its agents or nominees, or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto. The Indenture Trustee shall be deemed to have exercised reasonable care
in the custody of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property.
ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES OF GOLDEN STATE PETROLEUM
AND THE OWNERS
Golden State Petroleum and each Owner each hereby represents
and warrants to the Indenture Trustee as follows:
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SECTION 5.1 ORGANIZATION, POWER AND STATUS OF GOLDEN STATE
PETROLEUM AND EACH OWNER. It (a) is an entity duly formed, validly existing and
in good standing under the laws of the jurisdiction of its organization and (b)
is duly authorized, to the extent necessary, to do business in each jurisdiction
where the character of its properties or the nature of its activities makes such
qualification necessary. Golden State Petroleum and each Owner has all requisite
corporate power and authority to own and operate the property it purports to own
and to carry on its business as now being conducted and, in the case of an
Owner, as proposed to be conducted in respect of the related Vessel.
SECTION 5.2 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND
DELIVERY. (a) It has all necessary corporate power and authority to execute,
deliver and perform its obligations under this Indenture and each other Security
Document to which it is a party.
(b) All action on its part that is required for the
authorization, execution, delivery and performance of this Indenture and each
other Security Document to which it is a party, in each case has been duly and
effectively taken; and the execution, delivery and performance of this Indenture
and each such other Security Document does not require the approval or consent
of any Person except for such consents and approvals as shall have been obtained
on or prior to the Closing Date.
(c) This Indenture and each other Security Document to which
it is a party has been duly executed and delivered by it. Each of this Indenture
and each other Security Document to which it is a party constitutes its legal,
valid and binding obligation, enforceable against it in accordance with the
terms thereof.
SECTION 5.3 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT. (a)
Neither the execution, delivery and performance of this Indenture and each other
Security Document to which it is a party nor the consummation of any of the
transactions contemplated hereby or thereby nor performance of or compliance
with the terms and conditions hereof or thereof (i) contravenes any Requirement
of Law applicable to it or any of the Collateral, (ii) constitutes a default
under any Security Document or (iii) results in the creation or imposition of
any Lien on any of the Collateral (other than a Permitted Lien) or results in
the acceleration of any of its obligations.
(b) It is in compliance with and not in default under any and
all Requirements of Law applicable to it and all terms and provisions applicable
to it of this Indenture and all other Security Documents to which it is a party.
SECTION 5.4 GOVERNMENTAL APPROVALS. All Governmental Approvals
which are required to be obtained in its name in connection with (a) in the case
of the Owners, the construction, operation and maintenance of the Vessel and (b)
in the case of Golden State Petroleum and the Owners its execution, delivery and
performance of this Indenture and the Security Documents have been obtained and
are in effect on the Closing Date.
SECTION 5.5 LITIGATION. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending against it or any of its property or other assets or rights or, to the
best of its knowledge, threatened against it or any
43
of its property or other assets or rights, in either case with respect to this
Indenture and any other Security Document.
SECTION 5.6 TAXES. It has filed, or caused to be filed, all
tax and information returns that are required to have been filed by it in any
jurisdiction and has paid, or caused to be paid, all taxes shown to be due and
payable on such returns and all other taxes and assessments payable by it,
including, with respect to the Owners, without limitation, any taxes payable by
such Owner with respect to its Vessel and its interest in the related Charter,
to the extent the same have become due and payable.
SECTION 5.7 TRADE OR BUSINESS; EXECUTIVE OFFICE. (a) With
respect to the Owners, neither Owner is engaged in a trade or business in the
United States (and does not have any gross income as effectively connected with
the conduct of a trade or business in the United States) within the meaning of
section 884(f) of the Code and does not have an office or fixed place of
business in the United States within the meaning of sections 864 or 887(b)(4) of
the Code (including any office or fixed place of business attributed to either
Owner as a result of the activities of the Manager or Golden State Petroleum, as
agent of the Owners).
(b) With respect to the Owners, neither Owner has an executive
office in the United States as defined in Section 9-103 of the UCC.
ARTICLE SIX
COVENANTS
SECTION 6.1 PAYMENT OF PRINCIPAL AND INTEREST. Each of the
Owners jointly and severally covenants and agrees that it will duly and
punctually pay or cause to be paid the premium, if any, principal of, and
interest on, each of the Mortgage Notes at the place or places, at the time and
in the manner provided in this Indenture and the Mortgage Notes. Each of the
Owners jointly and severally covenants and agrees (a) to pay on demand interest
at the applicable Default Rate on any overdue payment of principal of, interest
or any other amount payable on any Mortgage Note from the due date for such
payment to the date such amount is paid in full and (b) not to deduct any
pre-issuance accrued interest on any Mortgage Notes for United States federal
income tax purposes.
SECTION 6.2 CORPORATE EXISTENCE; COMPLIANCE WITH LAWS. Golden
State Petroleum and each Owner covenants and agrees that it will: (a) do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the rights (charter and statutory), licenses
and franchises; (b) pay or discharge or cause to be paid or discharged, before
the same shall become delinquent (i) all taxes, assessments and governmental
charges levied or imposed upon it or upon its income, profits or property and
(ii) all lawful claims against it for labor, materials, supplies or services;
(c) endeavor to have the Mortgage Notes rated by the Rating Agency at all times;
and (d) comply with all applicable Laws in respect of its business and the
ownership of its properties.
SECTION 6.3 PERFORMANCE OF OBLIGATIONS. Golden State Petroleum
and each Owner each agree that it shall not take, or fail to take, any action,
and will use its best
44
efforts not to permit any action to be taken by others, which would release any
Person from any of such Person's covenants or obligations under any agreement or
instrument included in the Collateral, or which would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such agreement or instrument, except as
expressly permitted in this Indenture.
SECTION 6.4 ACTIVITIES OF THE OWNERS. (a) Each Owner agrees
that it shall not engage in any activities other than (i) to enter into, or
become a party to, a Building Contract and Technical Supervision Agreement for
its Vessel, (ii) to register its Vessel under and pursuant to the laws of the
Registration Jurisdiction, (iii) to enter into, or become a party to, the
Charter with the Charterer and any additional charters or contracts of
affreightment occasioned by the termination of the Charter, (iv) to enter into
and perform the Agency Agreement, (v) to assign, grant, transfer, pledge,
mortgage or convey its Vessel and its freights and earnings to the Indenture
Trustee, (vi) to enter into, perform its obligations under, and perform any
other activities contemplated by, this Indenture and the Security Documents and
(vii) to engage only in those activities, including the entering into,
performing and/or delivering any and all applications, licenses, agreements,
necessary, suitable or convenient to accomplish the foregoing or incidental
thereto or connected therewith.
(b) Each Owner agrees that it shall at all times have at least
one director who is not an employee of either Owner, Golden State Petroleum or
the Manager.
(c) Each Owner agrees that in the event the Isle of Man
imposes a withholding tax with respect to sinking fund payments or payments of
principal, interest or premium, if any, on the Mortgage Notes, it shall take any
lawful action to the extent necessary to prevent or avoid the imposition of any
such withholding tax, including changing its jurisdiction of incorporation or
residence; PROVIDED HOWEVER, that neither Owner will be required to take, or
fail to take, any action (x) if in the opinion of counsel such act or failure to
act would violate applicable law or (y) if in the reasonable opinion of such
Owner the actions necessary to avoid or prevent imposition of such taxes would
be unduly burdensome. For purposes of clause (y) of the immediately preceding
sentence, a requirement to change the jurisdiction of such Owner's incorporation
or residence will not be treated as unduly burdensome unless changing such
Owner's jurisdiction of incorporation or residence (I.E., to reincorporate under
the laws of another jurisdiction) to such other jurisdiction or location would
(i) subject such Owner to charges in such other jurisdiction, including but not
limited to taxes imposed on or measured by its income, receipts, property,
assets, capital, sales or value-added or (ii) cause the Charterer to be required
to withhold or deduct charges with respect to charterhire payable under the
related Charter.
SECTION 6.5 BOOKS AND RECORDS. Each Owner agrees that it shall
at all times keep proper books and records of all of its business and financial
affairs in accordance with generally accepted accounting principles of the
United States, as in effect on the date thereof. Each Owner shall keep books of
account or records concerning its accounts, inventory, contract rights,
equipment and proceeds at its offices located at 00-00 Xxxxx Xxxxxx, Xxxx xx
Xxx.
SECTION 6.6 RESTRICTED PAYMENTS. Each Owner agrees, so long as
any Mortgage Note is Outstanding, that it shall not make any Restricted Payment.
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SECTION 6.7 WAIVER OF STAY, EXTENSION OR USURY LAWS. Golden
State Petroleum and each of the Owners each covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim, and will actively resist any and all efforts to be
compelled to take the benefit or advantage of, any stay or extension law or any
usury law or other law, which would prohibit or forgive Golden State Petroleum,
as agent for the Owners, from paying all or any portion of the principal of,
premium, if any, and interest (including default interest) on the Mortgage Notes
as contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) Golden State Petroleum and each of the
Owners hereby expressly waive all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 6.8 REPORTS BY GOLDEN STATE PETROLEUM AND THE OWNERS.
Golden State Petroleum and each Owner each covenants:
(a) to file with the Indenture Trustee, within 15 days after
Golden State Petroleum or such Owner is required to file the same with
the Commission, copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which Golden State Petroleum or either Owner, as
the case may be, may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act, or, if Golden State
Petroleum or either Owner is not required to file information,
documents, or reports pursuant to either of such Sections of the
Exchange Act, then to file with the Indenture Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents, and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange, as may be prescribed from
time to time in such rules and regulations;
(b) to file with the Indenture Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents, and reports
with respect to compliance by Golden State Petroleum and each Owner
with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit to the holders of the Mortgage Notes in the
manner and to the extent required by Section 313(c) of the Trust
Indenture Act, within 30 days after the filing thereof with the
Indenture Trustee, such summaries of any information, documents and
reports required to be filed by Golden State Petroleum or such Owner
pursuant to subsections (a) and (b) of this Section 6.8 as may be
required by rules and regulations prescribed from time to time by the
Commission; and
(d) to furnish to the Indenture Trustee, on or before each
January 1, commencing in 1998, a brief certificate from the principal
executive officer, principal
46
financial officer or principal accounting officer of Golden State
Petroleum and each Owner as to his or her knowledge of Golden State
Petroleum's or such Owner's compliance with all conditions and
covenants under this Indenture. For purposes of this subsection (d),
such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture.
(e) to furnish to the Indenture Trustee, on each January 15
and July 15 commencing January 15, 2002, the charter hire payable under
the then current charter of the Vessels.
The Indenture Trustee shall furnish the Rating Agencies a copy
of the items described in this Section 6.8.
SECTION 6.9 NOTICE OF DEFAULT. Golden State Petroleum or
either Owner shall promptly give written notice to the Indenture Trustee of any
Default of which Golden State Petroleum or such Owner has actual knowledge.
SECTION 6.10 NEGATIVE COVENANTS. Golden State Petroleum and
each Owner will maintain its corporate existence and will not:
(a) create, incur, assume or issue, directly or indirectly,
guarantee or in any manner become, directly or indirectly, liable for or with
respect to the payment of any Indebtedness, except for its obligations under
this Indenture, the Security Documents and the Mortgage Notes;
(b) (i) commence any case, proceeding or other action under
any existing or future bankruptcy, insolvency or similar law seeking to have an
order for relief entered with respect to it, or seeking reorganization,
arrangement, adjustment, wind-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, (ii) seek appointment to a receiver,
trustee, custodian or other similar official for it or any part of its assets,
(iii) make a general assignment for the benefit of creditors or (iv) take any
action in furtherance of, or consenting or acquiescing in, any of the foregoing;
(c) create, incur, assume or suffer to exist any Lien on any
of its assets or properties or on any of the Collateral, except for the Liens
created in connection with this Indenture and Permitted Liens;
(d) consolidate with, or merge with or into, any other Person
or, except as contemplated hereby, convey or transfer to any Person all or any
part of its assets including the Collateral;
(e) make any capital contributions, advances or loans to, or
investments or purchases of capital stock in, any Person; and
(f) amend or modify its certificate of incorporation or
articles of association without the prior written consent of the Indenture
Trustee.
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SECTION 6.11 APPOINTMENT TO FILL A VACANCY IN OFFICE OF
INDENTURE TRUSTEE. Golden State Petroleum, as agent for the Owners, whenever
necessary to avoid or fill a vacancy in the office of Indenture Trustee, will
appoint, in the manner provided in Section 8.9, an Indenture Trustee, so that
there shall at all times be an Indenture Trustee hereunder.
SECTION 6.12 NOTEHOLDERS' LISTS. If and so long as the
Indenture Trustee shall not be the Registrar, Golden State Petroleum, as agent
for the Owners, will furnish or cause to be furnished to the Indenture Trustee a
list in such form as the Indenture Trustee may reasonably require of the names
and addresses of the Holders pursuant to Section 312 of the Trust Indenture Act
(a) semi-annually not more than five days after each Record Date, as of such
Record Date, and (b) at such other times as the Indenture Trustee may request in
writing, within 30 days after receipt by Golden State Petroleum, as agent for
the Owners, of any such request as of a date not more than 15 days prior to the
time such information is furnished.
SECTION 6.13 REPORTS BY THE INDENTURE TRUSTEE.
(a) The Indenture Trustee shall on or before each August 1,
commencing in 1997, transmit in the manner and to the extent required
by Section 313(c) or 313(d) of the Trust Indenture Act, any report
required by Section 313(a) or Section 313(b) of the Trust Indenture Act
to be transmitted by the Indenture Trustee to the holders of the
Mortgage Notes.
(b) A copy of each report required under this Section shall,
at the time of such transmission to holders of Mortgage Notes be filed
by the Indenture Trustee with the Commission and with each securities
exchange, if any, upon which the Mortgage Notes are listed. Golden
State Petroleum, as agent for the Owners, will notify the Indenture
Trustee when the Mortgage Notes are listed on any securities exchange.
(c) The Indenture Trustee shall supply to the Manager and the
Rating Agencies within 15 days of receipt the documents referred to in
(a) and (b) above as well as any documents supplied to the Indenture
Trustee by Chevron pursuant to the Acknowledgement of Assignment of
Chevron Guarantee.
(d) The Indenture Trustee shall provide a statement to the
Rating Agencies on each February 1 and August 1 commencing February 1, 2006
indicating (i) the amounts held in the Trust Accounts and (ii) based solely on
the information provided to the Indenture Trustee pursuant to Section 6.8(e) the
charter hire payable under the then current charter of the Vessels.
SECTION 6.14 CHANGE OF FLAG. Each Owner shall have the right to change
the registry and flag of its Vessel to the registry and flag of the Republic of
Panama, the Republic of Liberia, the Republic of Vanuatu, the Commonwealth of
The Bahamas, The United Kingdom, the Isle of Man and any other jurisdiction with
laws and regulations affording rights and remedies in favor of mortgagees
substantially similar to those afforded by any of the jurisdictions named in the
preceding part of this sentence; PROVIDED, that the right of each Owner to
change the registry and flag of its Vessel to a jurisdiction other than those
named in the preceding part of this sentence shall be subject to the requirement
that the Owner shall have demonstrated, by providing opinion(s) of counsel or
other evidence requested by the Indenture Trustee, to the
48
satisfaction of the Indenture Trustee that the requirements of this Section 6.14
(including the last sentence hereof) have been satisfied. Prior to any such
change in registry and flag, the Owner shall (i) obtain all necessary approvals
of Governmental Authorities including, without limitation, those of the then
current Registration Jurisdiction and otherwise comply with all applicable law,
if any, (ii) execute and deliver to the Indenture Trustee, in form and substance
reasonably satisfactory to the Indenture Trustee, and after execution by the
Indenture Trustee and immediately after the registration of the Vessel, file for
recordation, a replacement mortgage (the "Replacement Mortgage") with terms and
conditions substantially similar to the terms and conditions of Mortgage to
which such Vessel is subject, which Replacement Mortgage shall constitute a
first priority lien on the Vessel and shall be in compliance with all applicable
laws and regulations of any such country where the Vessel is re-registered and
re-flagged, and immediately after the filing of the Replacement Mortgage for
recordation deliver to the Indenture Trustee (A) an opinion of counsel
reasonably satisfactory to the Indenture Trustee confirming that any Replacement
Mortgage constitutes such a first priority lien under the laws and regulations
of such country and is a "preferred mortgage" within the meaning of 46 U.S.C.
Section 31301(b)(B), and that, if there shall have been any change in the
applicable laws and regulations of such country of re-registration and
re-flagging after the Closing Date, such change does not materially adversely
affect the interests of the Indenture Trustee with respect to the Vessel, and
(B) a certificate of the Owner that the Vessel is duly documented under the laws
of the country where the Vessel is re-registered and re-flagged, and that the
Vessel is free of any Lien (except the Replacement Mortgage) other than
Permitted Liens. In connection with any such change of registry and flag, the
Indenture Trustee shall, at the request of the Owner and at the Owner's cost and
expense, and upon compliance with subclauses (i) and (ii) of this Section 6.14,
execute and deliver to the Owner the Replacement Mortgage, an instrument in
recordable form duly acknowledging the satisfaction and discharge of Mortgage,
and any other instrument or document necessary or appropriate for the orderly
consummation of the change in registry and flag and replacement of the Mortgage.
Notwithstanding the foregoing, no such reflagging shall be permitted (x) if an
Indenture Event of Default shall have occurred and be continuing or (y) if in
the sole opinion of the Indenture Trustee such reflagging will, or may be
expected to, adversely affect the rights or remedies of the Indenture Trustee
under the Security Documents, the value of the Vessel, or will be or may
otherwise be expected to be, disadvantageous to the Indenture Trustee.
ARTICLE SEVEN
REMEDIES OF THE INDENTURE TRUSTEE AND
NOTEHOLDERS ON INDENTURE EVENT OF DEFAULT
SECTION 7.1 INDENTURE EVENT OF DEFAULT DEFINED; ACCELERATION
OF MATURITY; WAIVER OF DEFAULT. An Indenture Event of Default means any of the
following events (whatever the reason for such Indenture Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) if any Mortgage Event of Default shall have occurred and
be continuing;
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(b) a default in the payment of any sinking fund installments,
or all or any part of the principal of, premium, if any, or interest on
any of the Mortgage Notes as and when such payment becomes due and
payable either at maturity, upon any redemption, by declaration or
otherwise and, with respect to any such payments other than payments on
maturity, the continuance of such default for a period of two Business
Days;
(c) a failure on the part of Golden State Petroleum or either
Owner duly to observe or perform in any material respect any of the
other agreements or covenants on the part of Golden State Petroleum or
such Owner contained in any Mortgage Note, this Indenture, any Security
Document or any document or certificate delivered pursuant hereto or
thereto for a period of 30 days after the earlier of (i) actual
knowledge by Golden State Petroleum or either Owner of such failure and
(ii) the date on which written notice specifying such failure and
stating that such notice is a "Notice of Default" hereunder has been
given by registered or certified mail, return receipt requested, to
Golden State Petroleum and the Owners by the Indenture Trustee, or to
Golden State Petroleum, the Owners and the Indenture Trustee by the
holders of at least 25% in aggregate principal amount of the Mortgage
Notes at the time Outstanding;
(d) if any representation or warranty of Golden State
Petroleum or either Owner made in this Indenture, any Security Document
or any document or certificate delivered pursuant hereto or thereto
proves to have been inaccurate in any material respect when made,
remains inaccurate in such material respect for a period of 30 days
after the earlier of (i) actual knowledge by Golden State Petroleum or
either Owner of such inaccuracy and (ii) the date on which written
notice specifying such inaccuracy and stating that such notice is a
"Notice of Default" hereunder has been given by registered or certified
mail, return receipt requested, to Golden State Petroleum and the
Owners by the Indenture Trustee, or to Golden State Petroleum, the
Owners and the Indenture Trustee by the holders of at least 25% in
aggregate principal amount of the Mortgage Notes at the time
Outstanding;
(e) if a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of Golden State Petroleum or
either Owner in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of Golden State Petroleum or such
Owner or for any substantial part of its property or ordering the
winding up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days;
(f) if Golden State Petroleum or either Owner shall commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent
to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
Golden State Petroleum or such Owner or for any substantial part of its
property, or make any general assignment for the benefit of creditors;
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(g) if a Charter Event of Default shall have occurred and be
continuing or if either of the Charters is repudiated by the Charterer
in writing or in a public statement or ceases to be in full force and
effect, other than pursuant to the terms thereof;
(h) if any Security Document is repudiated by an Owner in
writing or in a public statement or ceases to be in full force and
effect or any of such Security Documents ceases to give the Indenture
Trustee, in any material respect, the Liens, rights, powers and
privileges purported to be created thereby, in each case other than
pursuant to the terms thereof;
(i) if the Builders fail to make any payment when due under
either Building Contract and such payment is not made pursuant to the
Building Contract Guarantee and the continuance of such default for a
period of two Business Days;
(j) if an event of default shall have occurred and be
continuing under the Chevron Guarantees or if either of the Chevron
Guarantees is repudiated by Chevron in writing or in a public statement
or ceases to be in full force and effect, other than pursuant to the
terms thereof; or
(k) A breach of the Companies' obligations under the
Registration Rights Agreement (as defined in the Indenture) to use
reasonable best efforts to cause the Exchange Registration Statement
(as defined in the Indenture) or Shelf Registration Statement (as
defined in the Indenture), as the case may be, to become effective and
the continuance of such breach for a period of 30 days after the date
the Companies receive written notice thereof.
If an Indenture Event of Default (other than an Indenture
Event of Default specified in clause (e) or (f) above occurs and is continuing,
then and in each and every such case, unless the principal of all of the
Mortgage Notes shall have already become due and payable, either the Indenture
Trustee or the holders of not less than 25% in aggregate principal amount of the
Mortgage Notes then Outstanding hereunder, by notice in writing to Golden State
Petroleum and the Owners (and to the Indenture Trustee if given by the
Noteholders), may declare the entire principal of all the Mortgage Notes and the
interest accrued thereon, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Indenture
Event of Default specified in clause (e) or (f) above occurs and is continuing,
then and in each and every such case, unless the principal of all of the
Mortgage Notes shall have already become due and payable, the entire principal
of all the Mortgage Notes and the interest accrued thereon, shall immediately
and without further act become due and payable, without presentment, demand,
protest or notice by the Indenture Trustee or any holder of Mortgage Notes, all
of which are hereby waived.
This provision, however, is subject to the condition that if,
at any time after the principal of the Mortgage Notes shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided,
Golden State Petroleum shall pay or shall deposit with the Indenture Trustee a
sum sufficient to pay all matured installments of interest and sinking fund
installments
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upon all the Mortgage Notes and the principal of any and all Mortgage Notes
which shall have become due otherwise than by acceleration with interest upon
such principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate for
each Mortgage Note as the rate of interest specified in such Mortgage Note, to
the date of such payment or deposit) and such amount as shall be sufficient to
cover reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under this Indenture, other
than the non-payment of the principal of the Mortgage Notes which shall have
become due by acceleration, shall have been cured, waived or otherwise remedied
as provided herein -- then and in every such case the holders of a majority in
aggregate principal amount of the Mortgage Notes then Outstanding, by written
notice to Golden State Petroleum and the Owners and to the Indenture Trustee,
may waive all defaults and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
SECTION 7.2 COLLECTION OF INDEBTEDNESS BY INDENTURE TRUSTEE;
INDENTURE TRUSTEE MAY PROVE DEBT. Each of the Owners covenants that if an
Indenture Event of Default specified in clause (b) of Section 7.1 occurs and is
continuing, then upon demand of the Indenture Trustee, the Owners will pay to
the Indenture Trustee for the benefit of the Holders the whole amount that then
shall have become due and payable on all the Mortgage Notes for principal or
interest, as the case may be (with interest to the date of such payment upon the
overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest at the
same rate for each Mortgage Note as the rate of interest specified in such
Mortgage Note); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Indenture Trustee and each predecessor Indenture Trustee,
their respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Indenture Trustee, the Owners
may pay the principal of and interest on the Mortgage Notes to the Holders,
whether or not the Mortgage Notes are overdue.
In case the Owners shall fail forthwith to pay such amounts
upon such demand, the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Owners or
other obligor upon the Mortgage Notes and collect in the manner provided by law
out of the property of the Owners or other obligor upon the Mortgage Notes,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to Golden
State Petroleum, either Owner or any other obligor upon the Mortgage Notes under
the Bankruptcy Code or any
52
other applicable Federal or state bankruptcy, insolvency or other similar law,
or any applicable laws of any applicable jurisdiction, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of Golden
State Petroleum, the Owners or their respective property or such other obligor,
or in case of any other comparable judicial proceedings relative to Golden State
Petroleum, the Owners or other obligor upon the Mortgage Notes, or to the
creditors or property of Golden State Petroleum, the Owners or such other
obligor, the Indenture Trustee, irrespective of whether the principal of the
Mortgage Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (including default interest) owing and unpaid
in respect of the Mortgage Notes, and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee (including any claim for reasonable
compensation to the Indenture Trustee and each predecessor Indenture
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence or bad faith) and of the
Noteholders allowed in any judicial proceedings relative to the Owners
or other obligor upon the Mortgage Notes, or to the creditors or
property of Golden State Petroleum or such other obligor;
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or Person performing similar functions in
comparable proceedings; and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Noteholders and of
the Indenture Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by
each of the Noteholders to make payments to the Indenture Trustee, and,
in the event that the Indenture Trustee shall consent to the making of
payments directly to the Noteholders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to
the Indenture Trustee, each predecessor Indenture Trustee and their
respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee except as a result of negligence
or bad faith.
Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Mortgage Notes or the rights of any Holder thereof, or
to authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar person.
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All rights of action and of asserting claims under this
Indenture, or under any of the Mortgage Notes, may be enforced by the Indenture
Trustee without the possession of any of the Mortgage Notes or the production
thereof on any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders.
In any proceedings brought by the Indenture Trustee (and also
any proceedings involving the interpretation of any provision of this Indenture
to which the Indenture Trustee shall be a party) the Indenture Trustee shall be
held to represent all the Holders, and it shall not be necessary to make any
Holders parties to any such proceedings.
SECTION 7.3 GENERAL AUTHORITY OF THE INDENTURE TRUSTEE OVER
THE COLLATERAL. Each of the Owners hereby irrevocably constitutes and appoints
the Indenture Trustee and any officer or agent thereof, with full power of
substitution, as its respective true and lawful attorney-in-fact with full power
and authority in the name of such Owner or in its own name, as the case may be,
from time to time in the Indenture Trustee's discretion, so long as any
Indenture Event of Default is in effect, to take any and all appropriate action
directed by the Majority Noteholders and to execute any and all documents and
instruments which may be necessary or desirable to carry out the terms hereof
and accomplish the purposes hereof and, without limiting the generality of the
foregoing or any of the rights conferred on the Indenture Trustee, whether in
its own right or as assignee of the Owners; pursuant to the other Security
Documents, each of the Owners hereby gives the Indenture Trustee the power and
right on its behalf, without notice to or further assent by either Owner, so
long as any Indenture Event of Default is in effect, to do the following (to the
extent the Indenture Trustee is directed to do so by the Majority Noteholders):
(i) to ask for, demand, xxx for, collect, receive and give
acquittance for any and all moneys due or to become due upon, or in
connection with, the Collateral;
(ii) to receive, take, endorse, assign and deliver any and all
checks, notes, drafts, acceptances, documents and other negotiable and
non-negotiable instruments taken or received by the Indenture Trustee
as, or in connection with, the Collateral;
(iii) to commence, prosecute, defend, settle, compromise,
compound or adjust any claim, suit, action or proceeding with respect
to, or in connection with, the Collateral;
(iv) to sell, transfer, assign or otherwise deal in or with
the Collateral or any part thereof as fully and effectively as if the
Indenture Trustee were the absolute owner thereof;
(v) to do, at its option and at the expense and for the
account of the Owners, at any time or from time to time, all acts and
things which the Indenture Trustee shall
54
deem necessary or advisable to protect or preserve the Collateral and
to realize upon the Collateral;
(vi) to extend the time of payment of any or all of the
Collateral and to make any allowance and other adjustments with
reference thereto; and
(vii) to exercise any of the remedies set forth in the
Security Documents;
PROVIDED that the Indenture Trustee shall give each of the Owners not less than
thirty days' prior written notice of the time and place of any sale or other
intended disposition of any Collateral. Each of the Owners agrees that such
notice constitutes "reasonable notification" within the meaning of Section
9-504(3) of the UCC.
SECTION 7.4 SUITS FOR ENFORCEMENT. In case an Indenture Event
of Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as the
Indenture Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the Indenture Trustee by
this Indenture or by law.
SECTION 7.5 RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS. In case the Indenture Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Indenture Trustee, then and in every such case the Owners and the Indenture
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Owners, the Indenture
Trustee and the Noteholders shall continue as though no such proceedings had
been taken.
SECTION 7.6 LIMITATIONS ON SUITS BY NOTEHOLDERS. Subject to
the provisions of Section 7.10, no Holder of any Mortgage Note shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such holder previously shall have given to the
Indenture Trustee written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Mortgage Notes then Outstanding shall have
made written request upon the Indenture Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to the
Indenture Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and the Indenture
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceedings and no
direction inconsistent with such written request shall have been given to the
Indenture Trustee pursuant to Section 7.8; it being understood and intended, and
being expressly covenanted by the Holder of every Mortgage Note with every other
Holder and the Indenture Trustee, that no one or more Holders of Mortgage Notes
shall have any right in any manner
55
whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder of Mortgage Notes, or to
obtain or seek to obtain priority over or preference to any other such Holder or
to enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all Holders. For the protection
and enforcement of the provisions of this Section, each and every Noteholder and
the Indenture Trustee shall be entitled to such relief as can be given either at
law or in equity.
SECTION 7.7 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION
NOT WAIVER OF DEFAULT. Except as provided in Section 7.6, no right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the Noteholders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Indenture Trustee or of any Holder
of any of the Mortgage Notes to exercise any right or power accruing upon any
Indenture Event of Default occurring and continuing as aforesaid shall impair
any such right or power or shall be construed to be a waiver of any such
Indenture Event of Default or an acquiescence therein; and, subject to Section
7.6, every power and remedy given by this Indenture or by law to the Indenture
Trustee or to the Noteholders may be exercised from time to time, and as often
as shall be deemed expedient, by the Indenture Trustee or by the Noteholders.
SECTION 7.8 CONTROL BY NOTEHOLDERS. The Majority Noteholders
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or exercising any
trust or power conferred on the Indenture Trustee by this Indenture; PROVIDED
that such direction shall not be otherwise than in accordance with law and the
provisions of this Indenture and PROVIDED FURTHER that (subject to the
provisions of Section 8.1) the Indenture Trustee shall have the right to decline
to follow any such direction if the Indenture Trustee, being advised by counsel,
shall determine that the action or proceeding so directed may not lawfully be
taken or if the Indenture Trustee in good faith by its board of directors, the
executive committee, or a trust committee of directors or responsible officers
of the Indenture Trustee shall determine that the action or proceedings so
directed would involve the Indenture Trustee in personal liability or if the
Indenture Trustee in good faith shall so determine that the actions or
forebearances specified in or pursuant to such direction shall be unduly
prejudicial to the interests of Holders of the Mortgage Notes not joining in the
giving of said direction, it being understood that (subject to Section 8.1) the
Indenture Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Indenture Trustee in its discretion to take any action deemed proper by the
Indenture Trustee and which is not inconsistent with such direction by
Noteholders.
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SECTION 7.9 WAIVER OF PAST DEFAULTS. Prior to the declaration
of the maturity of the Mortgage Notes as provided in Section 7.1, the Majority
Noteholders may on behalf of the Holders of all the Mortgage Notes waive any
past Default or Indenture Event of Default hereunder and its consequences,
except a default (a) in the payment of principal of, premium, if any, sinking
fund installment or interest on any of the Mortgage Notes or (b) in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Mortgage Note affected. In the case of any such
waiver, the Owners, the Indenture Trustee and the Holders of the Mortgage Notes
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Indenture Event of
Default arising therefrom shall be deemed to have been cured, and not to have
occurred for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Indenture Event of Default or impair any
right consequent thereon.
SECTION 7.10 UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE
PRINCIPAL AND INTEREST. Notwithstanding any other provision in this Indenture,
the Holder of any Mortgage Note shall have the right, to the extent permitted by
applicable law, which right is absolute and unconditional except to the extent
restricted by applicable law, (i) to receive payments of interest on such
Mortgage Note on each interest payment date, (ii) to receive payments of
principal on such Mortgage Note on such principal or sinking fund payment date
(or, in the case of any Mortgage Note called for redemption, on or after the
date fixed for such redemption) and (iii) to institute suit for the enforcement
of any such payment, and such right shall not be impaired without the consent of
such Holder; provided, however, no Holder of a Mortgage Note shall have any
right to institute any such suit, if and to the extent that the institution or
prosecution thereof or the entry of a judgment therein would, under applicable
law, result in the surrender, impairment, or waiver of the Lien of this
Indenture upon the Trust Estate.
SECTION 7.11 LIMITATION BY LAW. All rights, remedies and
powers provided herein may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law, and all the provisions
hereof are intended to be subject to all applicable mandatory provisions of law
which may be controlling and to be limited to the extent necessary so that they
will not render this Indenture invalid, unenforceable in whole or in part or not
entitled to be recorded, registered or filed under provisions of any applicable
law.
SECTION 7.12 APPLICATION OF PROCEEDS. All proceeds received by
the Indenture Trustee in the exercise of its rights, remedies and powers
hereunder and under any Security Document shall be deposited into the Collateral
Account and shall be distributed pursuant to Section 3.4
SECTION 7.13 NON-DISTURBANCE. So long as no Charter Event of
Default shall have occurred and be continuing under the Charter or any
Acceptable Replacement Charter, the Charterer or charterer shall be entitled to
quiet enjoyment of the Vessel.
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ARTICLE EIGHT
CONCERNING THE INDENTURE TRUSTEE
SECTION 8.1 DUTIES AND RESPONSIBILITIES OF THE INDENTURE
TRUSTEE. The Indenture Trustee, prior to the occurrence of an Indenture Event of
Default and after the curing or waiving of all Indenture Events of Default which
may have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Indenture Event of Default
has occurred (which has not been cured or waived) the Indenture Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of its own affairs.
No provision of this Indenture shall be construed to relieve
the Indenture Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Indenture Event of Default
and after the curing or waiving of all such Indenture Events of Default
which may have occurred:
(i) the duties and obligations of the
Indenture Trustee shall be determined solely by the express
provisions of this Indenture, and the Indenture Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on the part of
the Indenture Trustee, the Indenture Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Indenture Trustee
and conforming to the requirements of this Indenture; but in
the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Indenture Trustee, the Indenture Trustee
shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Indenture Trustee, unless it shall be proved that the
Indenture Trustee was negligent in ascertaining the pertinent facts;
(c) the Indenture Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in principal amount of the Mortgage Notes at the time
Outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee,
under this Indenture;
58
(d) the Indenture Trustee shall have no duty to see to any
filing of any financing or continuation statements in respect of any
such filing;
(e) the Indenture Trustee shall have no duty to see to any
insurance, or to effect or maintain any such insurance, whether or not
the Charterer shall be in default with respect thereto;
(f) the Indenture Trustee shall have no duty to see to the
payment or discharge of any tax, assessment or other governmental
charge or any Lien of any kind owing with respect to, or assessed or
levied against, any part of the Trust Estate;
(g) the Indenture Trustee shall have no duty to see to confirm
or verify or to inquire into the failure to receive any financial
statements of the Charterer; and
(h) the Indenture Trustee shall have no duty to inspect any of
the Vessels at any time or ascertain or inquire as to the performance
or observance of the Charterer's covenants under the Charter.
None of the provisions contained in this Indenture shall
require the Indenture Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
This Section 8.1 is in furtherance of and subject to Sections
315 and 316 of the Trust Indenture Act.
SECTION 8.2 CERTAIN RIGHTS OF THE INDENTURE TRUSTEE. In
furtherance of and subject to the Trust Indenture Act, and subject to Section
8.1:
(a) the Indenture Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, coupon,
security or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of Golden State
Petroleum or the Owners mentioned herein shall be sufficiently
evidenced by an Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution of the
Board of Directors may be evidenced to the Indenture Trustee by a copy
thereof certified by the secretary or an assistant secretary of Golden
State Petroleum;
(c) the Indenture Trustee may consult with counsel and any
advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to
be taken by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
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(d) the Indenture Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this Indenture at
the request, order or direction of any of the Noteholders pursuant to
the provisions of this Indenture, unless such Noteholders shall have
offered to the Indenture Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Indenture Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it
by this Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to
do by the holders of not less than a majority in aggregate principal
amount of the Mortgage Notes then Outstanding; PROVIDED that, if the
payment within a reasonable time to the Indenture Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Indenture Trustee, not
reasonably assured to the Indenture Trustee by the security afforded to
it by the terms of this Indenture, the Indenture Trustee may require
reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such
examination shall be paid by Golden State Petroleum or, if paid by the
Indenture Trustee or any predecessor trustee, shall be repaid by Golden
State Petroleum upon demand; and
(g) the Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys not regularly in its employ and the
Indenture Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due
care by it hereunder.
SECTION 8.3 INDENTURE TRUSTEE NOT RESPONSIBLE FOR RECITALS,
DISPOSITION OF MORTGAGE NOTES OR APPLICATION OF PROCEEDS THEREOF. The recitals
contained herein and in the Mortgage Notes, except the Indenture Trustee's
certificates of authentication, shall be taken as the statements of the Owners,
and the Indenture Trustee assumes no responsibility for the correctness of the
same. The Indenture Trustee makes no representation as to the validity or
sufficiency of this Indenture or of the Mortgage Notes. The Indenture Trustee
shall not be accountable for the use or application by the Owners of any of the
Mortgage Notes or of the proceeds thereof.
SECTION 8.4 INDENTURE TRUSTEE AND AGENTS MAY HOLD MORTGAGE
NOTES; COLLECTIONS; ETC. The Indenture Trustee or any agent of Golden State
Petroleum, the Owners or the Indenture Trustee, in its individual or any other
capacity, may become the owner or pledgee of Mortgage Notes with the same rights
it would have if it were not the Indenture Trustee or such agent and may
otherwise deal with Golden State Petroleum and the Owners and receive,
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collect, hold and retain collections from the Owners with the same rights it
would have if it were not the Indenture Trustee or such agent.
SECTION 8.5 MONEYS HELD BY INDENTURE TRUSTEE. Subject to the
provisions of Section 11.4 hereof, all moneys received by the Indenture Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither the
Indenture Trustee nor any agent of Golden State Petroleum, the Owners or the
Indenture Trustee shall be under any liability for interest on any moneys
received by it hereunder.
SECTION 8.6 COMPENSATION AND EXPENSES. (a) The Owners shall on
demand pay or reimburse the Indenture Trustee for (i) reasonable compensation to
the Indenture Trustee, to the extent permitted by law (which shall not be
limited by any provision of law in regard to compensation of fiduciaries or of a
trustee of an express trust), for its services hereunder and (ii) all of the
reasonable costs and expenses of the Indenture Trustee (including, without
limitation, the reasonable compensation and expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ) (A) in
connection with the preparation, execution and delivery of this Indenture or the
other Security Documents, any waiver or consent thereunder, any modification or
termination thereof, or any Default or alleged Default; (B) if an Indenture
Event of Default occurs, in connection with such Indenture Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings relating
thereto; (C) in connection with the administration or protection of the Trust
Estate, the sale or other disposition of any Collateral or the preservation,
protection or defense of the Indenture Trustee's or the Indenture Trustee's
rights under the Security Documents or in and to the Trust Estate pursuant
hereto; or (D) in connection with any removal of the Indenture Trustee pursuant
to subsection 8.9(a) hereof.
(b) The Owners shall indemnify and hold harmless the Indenture
Trustee from and against any and all liabilities, obligations, losses, damages,
penalties, judgments, actions, suits, proceedings, reasonable costs and expenses
(including reasonable fees and disbursements of counsel) of any kind whatsoever
which may be incurred by the Indenture Trustee in connection with any
investigative, administrative or judicial proceeding (whether or not such
indemnified party is designated a party to such proceeding) relating to this
Indenture, the Mortgage Notes, the Trust Estate, the Collateral or the Security
Documents, PROVIDED that the Indenture Trustee shall not have the right to be
indemnified hereunder for its own negligence or bad faith as determined by a
court of competent jurisdiction. In any suit, proceeding or action brought by
the Indenture Trustee under or with respect to any contract, agreement, interest
or obligation constituting part of the Collateral for any sum owing thereunder
or hereunder, or to enforce any provisions thereof, the Owners agree to save,
indemnify and keep the Indenture Trustee harmless from and against all expense,
loss or damage suffered by reason of any defense, setoff, counterclaim,
recoupment or reduction of liability whatsoever of the Owners thereunder,
arising out of a breach by the Owners of any obligation thereunder or arising
out of any other agreement, indebtedness or liability at any time owing to, from
or in favor of the Owner or its successors, and all such obligations of the
Owners shall be and remain enforceable against and only against the Owners and
shall not be enforceable against the Indenture Trustee.
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(c) In addition to, but without duplication of, its
obligations under subsection (b) above, the Owners shall indemnify and hold
harmless the Indenture Trustee and the holders from and against any and all
losses, damages and expenses incurred by the Indenture Trustee and the holders
as a result of any oil or other environmental damage resulting from the
operation of any Vessel, including, without limitation, any liability under the
United States Oil Pollution Act of 1990, as amended, or the laws of any other
jurisdiction relating to oil spills.
(d) The agreements in this Section 8.6 shall survive the
termination of the other provisions of this Indenture but shall not be secured
by any Lien on the Collateral.
SECTION 8.7 RIGHT OF INDENTURE TRUSTEE TO RELY ON OFFICERS'
CERTIFICATE, ETC. Subject to Sections 8.1 and 8.2, whenever in the
administration of the trusts of this Indenture the Indenture Trustee shall deem
it necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Indenture Trustee, be
deemed to be conclusively proved and established by an Officers' Certificate
delivered to the Indenture Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Indenture Trustee, shall be full
warrant to the Indenture Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon reliance thereon.
SECTION 8.8 PERSONS ELIGIBLE FOR APPOINTMENT AS INDENTURE
TRUSTEE. The Indenture Trustee hereunder shall at all times be a bank or trust
company in good standing, having power to act as Indenture Trustee hereunder and
which is eligible to do so within the provisions of Section 310(a) of the Trust
Indenture Act, incorporated under the laws of the United States of America or
any State thereof or the District of Columbia and having its principal corporate
trust office within the 48 contiguous States and shall also have capital,
surplus and undivided profits of not less than $10,000,000, if there be such an
institution with such capital, surplus and undivided profits willing, qualified
and able to accept the trust hereunder upon reasonable or customary terms.
SECTION 8.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
INDENTURE TRUSTEE. (a) The Indenture Trustee may at any time resign by giving
written notice of resignation to the Owners and Golden State Petroleum and by
mailing notice thereof by first-class mail to Holders of Mortgage Notes at their
last addresses as they shall appear on the Mortgage Note register. Upon
receiving such notice of resignation (i) Golden State Petroleum, as agent for
the Owners, if no Indenture Event of Default exists, or (ii) the Holders of a
majority in aggregate principal amount of Mortgage Notes, if an Indenture Event
of Default exists, shall promptly appoint a successor trustee by an instrument
in writing delivered to the resigning Indenture Trustee, the successor trustee,
Golden State Petroleum and the Owners. If no successor trustee shall have been
so appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or Golden
State Petroleum, as agent for the Owners, the Indenture Trustee or any
Noteholder who has been a bona fide holder of a Mortgage Note or Mortgage Notes
for at least six months, on behalf of himself and all others similarly situated,
may petition any such court for the appointment of a successor
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trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act after written
request therefor by Golden State Petroleum, as agent for the Owners, or
by any Noteholder who has been a bona fide Holder of a Mortgage Note or
Mortgage Notes for at least six months; or
(ii) the Indenture Trustee shall cease to be eligible in
accordance with the provisions of Section 8.8 and shall fail to resign
after written request therefor by Golden State Petroleum, as agent for
the Owners, or by any such Noteholder; or
(iii) the Indenture Trustee shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver or
liquidator of the Indenture Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Indenture Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case (x) Golden State Petroleum, as agent for the Owners, if
no Indenture Event of Default shall be continuing, or (y) the Majority
Noteholders, if an Indenture Event of Default shall be continuing, may remove
the Indenture Trustee and appoint a successor trustee by an instrument in
writing delivered to the Indenture Trustee so removed, the successor trustee and
the Indenture Trustee, or, subject to Section 315(e) of the Trust Indenture Act,
the Indenture Trustee or any Noteholder who has been a bona fide Holder of a
Mortgage Note or Mortgage Notes for at least six months may on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Indenture Trustee and the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Indenture Trustee and appoint a successor
trustee.
(c) The Majority Noteholders may at any time remove the
Indenture Trustee and appoint a successor trustee by delivering to the Indenture
Trustee so removed, to the successor trustee so appointed, to Golden State
Petroleum, the Owners and the Indenture Trustee, the evidence provided for in
Section 9.1 of the action in that regard taken by the Noteholders.
(d) Any resignation or removal of the Indenture Trustee and
any appointment of a successor trustee pursuant to any of the provisions of this
Section 8.9 shall become effective only upon acceptance of appointment by the
successor trustee as provided in Section 8.10.
SECTION 8.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR INDENTURE
TRUSTEE. Any successor indenture trustee appointed as provided in Section 8.9
shall execute and deliver to Golden State Petroleum, the Owners, the Indenture
Trustee, and its predecessor indenture trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor indenture trustee shall become effective and such successor
indenture trustee, without any further act, deed or conveyance, shall become
vested with all rights,
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powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of Golden State Petroleum, as agent of the Owners, or of the successor indenture
trustee, upon payment of its charges then unpaid, the indenture trustee ceasing
to act shall, subject to Section 11.4, pay over to the successor trustee all
moneys at the time held by it hereunder and shall execute and deliver an
instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, Golden State
Petroleum, as agent of the Owners, shall execute any and all instruments in
writing for more fully and certainly vesting in and conferring to such successor
trustee all such rights and powers. Any indenture trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such indenture trustee to secure any amounts then due it pursuant to the
provisions of Section 8.6.
Upon acceptance of appointment by a successor indenture
trustee as provided in this Section 8.10, Golden State Petroleum, as agent of
the Owners, shall mail notice thereof by first-class mail to the Holders of
Mortgage Notes at their last addresses as they shall appear in the Mortgage Note
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 8.9. If Golden State Petroleum
fails to mail such notice within 10 days after acceptance of appointment by the
successor indenture trustee, the successor indenture trustee shall cause such
notice to be mailed at the expense of the Owners.
SECTION 8.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS OF INDENTURE TRUSTEE. Any corporation into which the Indenture
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Indenture Trustee shall be a party, or any corporation succeeding to the
corporate trust business of the Indenture Trustee, shall be the successor of the
Indenture Trustee hereunder, PROVIDED that such corporation shall be eligible
under the provisions of Section 8.8, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case, at the time such successor to the Indenture Trustee
shall succeed to the trusts created by this Indenture, any of the Mortgage Notes
shall have been authenticated but not delivered, any such successor to the
Indenture Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Mortgage Notes so authenticated; and, in case
at that time any of the Mortgage Notes shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Mortgage Notes either
in the name of any predecessor hereunder or in the name of the successor
Indenture Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Mortgage Notes or in this Indenture provided
that the certificate of the Indenture Trustee shall have; PROVIDED, that the
right to adopt the certificate of authentication of any predecessor Indenture
Trustee or to authenticate Mortgage Notes in the name of any predecessor
Indenture Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 8.12 COMMENCEMENT OF BANKRUPTCY PROCEEDINGS. The
Indenture
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Trustee hereby agrees that, prior to the date which is one year and one day
after the payment in full of all of the Outstanding Mortgage Notes, it will not
institute against, or join any other person in instituting against Golden State
Petroleum or either Owner any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other similar proceeding under the Laws
of the United States or any other applicable jurisdiction.
SECTION 8.13 NOT ACTING IN INDIVIDUAL CAPACITY. Except as
otherwise provided in this Indenture, the Indenture Trustee acts hereunder
solely as trustee as herein provided and not in its individual capacity, and all
persons, other than the Noteholders as provided in this Indenture, having any
claim against the Indenture Trustee by reason of the transactions contemplated
hereby shall, subject to priorities of payment as herein provided, look only to
the Collateral for payment or satisfaction thereof.
SECTION 8.14 CO-TRUSTEES AND SEPARATE TRUSTEES. (a) At any
time or times, for the purpose of meeting the legal requirements of any
jurisdiction in which any of the Trust Estate may at the time be located or
maintaining the situs of Permitted Investments in a particular jurisdiction,
Golden State Petroleum, as agent for the Owners, and the Indenture Trustee shall
have power to appoint, and, upon the written request of the Indenture Trustee or
of the Holders of at least 25% in principal amount of the Mortgage Notes
Outstanding, Golden State Petroleum, as agent for the Owners, shall for such
purpose join with the Indenture Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Indenture Trustee either to act as
co-trustee, jointly with the Indenture Trustee, or all or any part of the Trust
Estate, or to act as separate trustee of any such property, in either case with
such powers as may be provided in the instrument of appointment, and to vest in
such Person or Persons in the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other provisions of this
Section. If Golden State Petroleum, as agent for the Owners, does not join in
such appointment within 15 days after the receipt by it of a request so to do,
or in case an Event of Default has occurred and is continuing, the Indenture
Trustee alone shall have power to make such appointment.
(b) Should any written instrument from Golden State Petroleum, as agent
for the Owners, be required by any co-trustee or separate trustee so appointed
for more fully confirming to such co-trustee or separate trustee such property,
title, right or power, any and all such instruments shall, on request, be
executed, acknowledged and delivered by Golden State Petroleum.
(c) Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Mortgage Notes shall be authenticated and delivered,
and all rights, powers, duties and obligations hereunder in respect of
the custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Indenture Trustee
hereunder, shall be exercised solely, by the Indenture Trustee.
(ii) The rights, powers, duties and obligations hereby
conferred or imposed upon the Indenture Trustee in respect of any
property covered by such appointment shall
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be conferred or imposed upon and exercised or performed by the
Indenture Trustee or by the Indenture Trustee and such co-trustee or
separate trustee jointly or with the written consent of the Indenture
Trustee, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law
of any jurisdiction in which any particular act is to be performed, the
Indenture Trustee shall be incompetent or not qualified to perform such
act, in which event such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or separate trustee.
(iii) The Indenture Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Golden State
Petroleum, as agent for the Owners, evidenced by a Board Resolution,
may accept the resignation or remove any co-trustee or separate trustee
appointed under this Section, and, in case an Indenture Event of
Default has occurred and is continuing, the Indenture Trustee shall
have power to accept the resignation of, or remove, any such co-trustee
or separate trustee without the concurrence of Golden State Petroleum,
as agent for the Owners. Upon the written request of the Indenture
Trustee, Golden State Petroleum, as agent for the Owners, shall join
with the Indenture Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Indenture
Trustee, or any other such trustee hereunder.
(v) Any act of Noteholders delivered to the Indenture Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
ARTICLE NINE
CONCERNING THE NOTEHOLDERS
SECTION 9.1 EVIDENCE OF ACTION TAKEN BY NOTEHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Noteholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Noteholders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 8.1 and 8.2) conclusive in favor of the Indenture
Trustee, the Owners and Golden State Petroleum, if made in the manner provided
in this Article.
SECTION 9.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING
OF MORTGAGE NOTES; RECORD DATE. Subject to Sections 8.1 and 8.2, the execution
of any instrument by a Noteholder or his agent or proxy may be proved in
accordance with such reasonable rules
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and regulations as may be prescribed by the Indenture Trustee or in such manner
as shall be satisfactory to the Indenture Trustee. The holding of Mortgage Notes
shall be proved by the Mortgage Note register or by a certificate of the
Registrar thereof. Golden State Petroleum, as agent of the Owners, may set a
record date for purposes of determining the identity of Holders entitled to vote
or consent to any action referred to in Section 9.1, which record date may be
set at any time or from time to time by notice to the Indenture Trustee, for any
date or dates (in the case of any adjournment or resolicitation) not more than
60 days nor less than five days prior to the proposed date of such vote or
consent, and thereafter, notwithstanding any other provisions hereof, only
Holders on such record date shall be entitled to so vote or give such consent or
to withdraw such vote or consent.
SECTION 9.3 HOLDERS TO BE TREATED AS OWNERS. Golden State
Petroleum, the Owners, the Indenture Trustee and any agent of Golden State
Petroleum, the Owners or the Indenture Trustee may deem and treat the Person in
whose name any Mortgage Note shall be registered upon the Mortgage Note register
as the absolute owner of such Mortgage Note (whether or not such Mortgage Note
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest (including default
interest) on such Mortgage Note and for all other purposes; and none of Golden
State Petroleum, the Owners or the Indenture Trustee nor any agent of Golden
State Petroleum, the Owners or the Indenture Trustee shall be affected by any
notice to the contrary. All such payments so made to any such Person, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Mortgage Note.
SECTION 9.4 MORTGAGE NOTES DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount of
Mortgage Notes have concurred in any direction, consent or waiver under this
Indenture, Mortgage Notes which are owned by Golden State Petroleum, either
Owner or any Affiliate of them, or Chevron, or any Affiliate thereof, shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Indenture
Trustee shall be protected in relying on any such direction, consent or waiver
only Mortgage Notes which the Indenture Trustee knows are so owned shall be so
disregarded. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Indenture Trustee in
accordance with such advice. Upon request of the Indenture Trustee, the Owners
shall furnish to the Indenture Trustee promptly an Officers' Certificate listing
and identifying all Mortgage Notes, if any, known by Golden State Petroleum to
be owned or held by or for the account of any of the above-described Persons;
and, subject to Sections 8.1 and 8.2, the Indenture Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Mortgage Notes not listed therein are
Outstanding for the purpose of any such determination.
SECTION 9.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided in
Section 9.1, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Mortgage Notes specified in this Indenture in
connection with such action, any Holder of a Mortgage Note, the serial number of
which is shown by the evidence to be included among the serial numbers
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of the Mortgage Notes the Holders of which have consented to such action may, by
filing written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Mortgage
Note. Except as aforesaid any such action taken by the Holder of any Mortgage
Note shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Mortgage Note and of any Mortgage Notes issued in
exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon any such Mortgage Note. Any action taken by the
Holders of the percentage in aggregate principal amount of the Mortgage Notes
specified in this Indenture in connection with such action shall be conclusively
binding upon Golden State Petroleum, the Owners, the Indenture Trustee and the
Holders of all the Mortgage Notes.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
NOTEHOLDERS. Without the prior written consent of or notice to any Holder of
Mortgage Notes, Golden State Petroleum, as agent for the Owners, when authorized
by the Owners, and the Indenture Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto for one or more of the
following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Indenture Trustee as security for the Mortgage Notes any property or
assets;
(b) to cure any ambiguity or to correct or supplement any
provision contained herein, in any supplemental indenture or any
Security Document (including any document assigned thereby) which may
be defective or inconsistent with any other provision contained herein,
in any supplemental indenture or any Security Document (including any
document assigned thereby); or to make such other provisions in regard
to matters or questions arising under this Indenture, under any
supplemental indenture or under any Security Document (including any
document assigned thereby) as they may deem necessary or desirable and
which shall not adversely affect the interests of the Holders of the
Mortgage Notes;
(c) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act or, if such qualification is not required, to
comply with the requirements of the Commission so that the Indentures
would be so qualified;
(d) to issue Additional Notes pursuant to Supplemental
Indentures in accordance with Section 10.6 of this Indenture; or
(e) to evidence and provide for the acceptance of appointment
of a successor trustee hereunder.
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The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Indenture Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the holders of any of the
Mortgage Notes at the time Outstanding, notwithstanding any of the provisions of
Section 10.2.
SECTION 10.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
NOTEHOLDERS. With the consent (evidenced as provided in Article Nine) of the
Majority Noteholders, Golden State Petroleum, as agent of the Owners, when
authorized by the Owners, and the Indenture Trustee may, from time to time and
at any time, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, changing or eliminating any provisions of
or modifying in any manner the rights of the holders of the Mortgage Notes under
this Indenture, any supplemental indenture or Security Document (including any
document assigned thereby); PROVIDED that if any such addition, change,
elimination or modification disproportionately adversely affects the Serial
Notes and the Additional Notes on the one hand or the Term Notes on the other
hand, it shall not be effective against such Notes unless it shall have been
approved by the holders of a majority of the Outstanding Notes so
disproportionately adversely affected; and PROVIDED FURTHER that, without the
consent of the Holders of each Mortgage Note affected, no such supplemental
indenture shall extend the final maturity or redemption date thereof, reduce the
rate of interest thereon, extend the time of payment of interest, reduce the
principal amount thereof, reduce any amount payable upon the redemption thereof,
change the sinking fund redemption amount, or impair the right to institute suit
for the enforcement of any such payment, or reduce the percentage of the Holders
whose consent is required for any such modification or amendment or modify any
provisions of this Indenture relating to the amendment thereof or the creation
of a supplemental indenture (unless the change increases the rights of the
Holders).
Upon the request of Golden State Petroleum, as agent of the
Owners, accompanied by a copy of a resolution of the Board of Directors of the
Owners certified by the Secretary or an Assistant Secretary of the Owners
authorizing the execution of any such supplemental indenture, and upon the
filing with the Indenture Trustee of evidence of the consent of Noteholders and
other documents, if any, required by Section 9.1, the Indenture Trustee shall
join with Golden State Petroleum, as agent of the Owners, in the execution of
such supplemental indenture unless such supplemental indenture affects the
Indenture Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Indenture Trustee may in its discretion, but shall
not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Noteholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
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Promptly after the execution by Golden State Petroleum, as
agent of the Owners, and the Indenture Trustee of any supplemental indenture
pursuant to the provisions of this Section 10.2, Golden State Petroleum, as
agent of the Owners, shall mail a notice thereof by first-class mail to the
Holders of Mortgage Notes at their addresses as they shall appear on the
registry books of Golden State Petroleum, setting forth in general terms the
substance of such supplemental indenture. Any failure of Golden State Petroleum
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 10.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Indenture
Trustee, Golden State Petroleum, the Owners and the Holders of Mortgage Notes
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 10.4 DOCUMENTS TO BE GIVEN TO INDENTURE TRUSTEE. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to receive,
and, subject to Sections 8.1 and 8.2, shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture.
SECTION 10.5 NOTATION ON MORTGAGE NOTES IN RESPECT OF
SUPPLEMENTAL INDENTURES. Mortgage Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Indenture Trustee as to any
matter provided for by such supplemental indenture. If Golden State Petroleum or
the Indenture Trustee shall so determine, new Mortgage Notes so modified as to
conform, in the opinion of the Indenture Trustee and Golden State Petroleum, to
any modification of this Indenture contained in any such supplemental indenture
may be prepared by Golden State Petroleum, as agent of the Owners, authenticated
by the Indenture Trustee and delivered in exchange for the Mortgage Notes then
Outstanding.
SECTION 10.6 ISSUANCE OF SERIES OF ADDITIONAL NOTES. (a)
Notwithstanding the provisions of Sections 10.1 and 10.2 hereof, upon the terms
and subject to the conditions of this Section 10.6, Golden State Petroleum, as
agent of the Owners, may, on a Delivery Date for a Vessel, direct the Indenture
Trustee to execute and authenticate one or more Series of Additional Notes
(each, a "Series"). Pursuant to each Charter, the Additional Construction Costs
to which a Series relates shall not exceed $250,000 without the consent of the
related Owner.
(b) On or before the Series Issuance Date relating to any
Series, the parties hereto will execute and deliver a Supplemental Indenture
which will specify the Principal Terms of such Series. The terms of such
Supplemental Indenture may modify or amend the terms of this Indenture solely as
applied to such Series. The obligation of the Indenture Trustee to
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authenticate, execute and deliver the Additional Notes of such Series and to
execute and deliver the related Supplemental Indenture is subject to the
satisfaction of the following conditions:
(i) on or before the tenth Business Day immediately
preceding the Series Issuance Date (unless the parties to be notified
agree to a shorter notice period), Golden State Petroleum, as agent of
the Owners, shall have given the Indenture Trustee, Xxxxxx and each
Rating Agency, pursuant to the relevant Supplemental Indenture, notice
of the Series and the Series Issuance Date;
(ii) the original principal amount of such Series of
Additional Notes is equal to or less than the sum of (A) the aggregate
Additional Construction Costs for a Vessel and (B) the aggregate costs
of issuance of such Series of Additional Notes;
(iii) Golden State Petroleum, as agent of the Owners,
shall have delivered to the Indenture Trustee executed originals of the
related Supplemental Indenture, the related Charter Supplement and the
related Assignment of Charter Supplement, in form satisfactory to the
Indenture Trustee;
(iv) the Rating Agency Condition shall have been
satisfied with respect to the Series;
(v) Golden State Petroleum, as agent of the Owners,
shall deliver to the parties hereto an Officer's Certificate stating
that the above conditions have been satisfied;
(vi) Golden State Petroleum, as agent of the Owners,
shall have delivered an Opinion of Counsel to the Indenture Trustee
stating that the security interest of the Indenture Trustee in any new
collateral acquired in connection with the issuance of such Series of
Additional Notes, upon the issuance of the Additional Notes and
application of the proceeds therefrom, shall be a first priority
perfected security interest;
(vii) the maturity date of the Additional Notes
issued pursuant to such Series will be no later than the last day of
the Fixed Period of the related Charter;
(viii) all Collateral securing the obligations of the
Owners with respect to such Additional Notes will also secure on an
equal and ratable basis the Mortgage Notes then Outstanding;
(ix) the Collateral securing the Mortgage Notes then
outstanding will secure the Additional Notes issued pursuant to such
Series on an equal and ratable basis;
(x) the additional charterhire payable under the
related Charter Supplement is sufficient to pay the debt service
payable on the related Series of Additional Notes to the Maturity Date;
and
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(xi) the principal amount of the related Series of
Additional Notes will be amortized on the basis of an approximately
level mortgage-style semi-annual amortization to the Maturity Date.
Upon satisfaction of the above conditions, the Indenture Trustee shall execute
the Supplemental Indenture and authenticate, execute and deliver the Additional
Notes of such Series.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS
SECTION 11.1 SATISFACTION AND DISCHARGE OF INDENTURE. If at
any time (a) the Owners shall have paid or caused to be paid the principal of,
premium, if any, and interest on all the Mortgage Notes Outstanding hereunder,
as and when the same shall have become due and payable, or (b) the Owners shall
have delivered to the Indenture Trustee for cancellation all Mortgage Notes
theretofore authenticated and delivered (except lost, stolen or destroyed
Mortgage Notes which have been replaced or paid and Mortgage Notes for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Indenture Trustee and thereafter repaid or discharged from such
trust); or (c)(i) all Mortgage Notes not theretofore delivered to the Indenture
Trustee for cancellation have become due and payable and the Owners irrevocably
deposited or caused to be deposited with the Indenture Trustee as trust funds in
trust for the purpose an amount of cash or direct obligations of the United
States, backed by its full faith and credit, maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay and discharge the entire indebtedness on the Mortgage
Notes not theretofore delivered to the Indenture Trustee for cancellation, for
principal, premium, if any, and accrued interest to the date of such deposit;
(ii) the Owners have paid all sums payable by them under the Indenture; and
(iii) the Owners have delivered irrevocable instructions to the Indenture
Trustee to apply the deposited money toward the payment of the Mortgage Notes at
maturity or the redemption date, as the case may be, then this Indenture and the
Security Documents (except to the extent specifically set forth therein) shall
cease to be of further effect (except as to (i) rights of registration of
transfer and exchange, (ii) substitution of apparently mutilated, destroyed,
lost or stolen Mortgage Notes, (iii) rights of Holders to receive payments of
principal, premium, if any, and interest thereon, upon the original stated due
dates therefor (but not upon acceleration), (iv) the rights, obligations and
immunities of the Indenture Trustee hereunder and (v) the rights of the
Noteholders as beneficiaries hereof with respect to the property so deposited
with or on behalf the Indenture Trustee payable to all or any of them), and the
Indenture Trustee, on demand of the Owners accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the Owners,
shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture. In connection with the satisfaction and discharge of
this Indenture, the Owners must deliver an Officers' Certificate and an Opinion
of Counsel to the Indenture Trustee stating that all conditions precedent to
satisfaction and discharge have been complied with. Each of the Owners agrees to
reimburse the Indenture Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Indenture Trustee for any
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services thereafter reasonably and properly rendered by the Indenture Trustee in
connection with this Indenture or the Mortgage Notes.
SECTION 11.2 APPLICATION BY INDENTURE TRUSTEE OF FUNDS
DEPOSITED FOR PAYMENT OF MORTGAGE NOTES. Subject to Section 11.4, all moneys
deposited with the Indenture Trustee (or the Paying Agent on behalf of the
Indenture Trustee) pursuant to Section 11.1 shall be held in trust and applied
by it (or the Paying Agent on behalf of the Indenture Trustee) to the payment,
either directly or through any Paying Agent (including the Indenture Trustee),
to the Holders of the particular Mortgage Notes for the payment or redemption of
which such moneys have been deposited with the Indenture Trustee (or the Paying
Agent on behalf of the Indenture Trustee), of all sums due and to become due
thereon for principal, premium, if any, and interest (including default
interest); but such money need not be segregated from other funds except to the
extent required by law.
SECTION 11.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture, all moneys
then held by any Paying Agent in accordance with this Indenture shall be paid to
the Persons entitled thereto pursuant to the Security Documents and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
SECTION 11.4 RETURN OF MONEYS HELD BY INDENTURE TRUSTEE AND
PAYING AGENT UNCLAIMED FOR TWO YEARS. Any moneys deposited with or paid to the
Indenture Trustee or any Paying Agent for the payment of the principal of,
premium, if any, or interest (including default interest) on any Mortgage Note
and not applied but remaining unclaimed for two years after the date upon which
such principal, premium, if any, or interest shall have become due and payable,
shall, upon the written request of the Owners and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Owners by the Indenture Trustee or such paying agent, and
the Holder of such Mortgage Note shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Owners for any payment which such Holder may be
entitled to collect, and all liability of the Indenture Trustee or any Paying
Agent with respect to such moneys shall thereupon cease.
ARTICLE TWELVE
REDEMPTION OF MORTGAGE NOTES
SECTION 12.1 OPTIONAL REDEMPTION; MANDATORY REDEMPTION;
PRICES.
(a) GENERAL. Except as provided in this Section 12.1 and
Section 12.4, the Mortgage Notes may not be redeemed prior to maturity.
(b) OPTIONAL REDEMPTION. The Owners at their option may, on
any Payment Date on or after the later of (i) August 1, 1999 and (ii) the
Delivery Date of the last Vessel to be delivered, redeem the Term Notes in whole
or in part upon payment of a redemption price equal to 100% of the principal
amount thereof plus accrued and unpaid interest to the date fixed for
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redemption, provided that if (i) such redemption occurs prior to February 1,
2018 and (ii) a Vessel is then subject to the related Charter or to an
Acceptable Replacement Charter pursuant to which the charterer thereunder is
required to pay charter hire equal to or greater than the Charter Hire payable
by the Charterer during the Fixed Period, then the Make-Whole Premium shall be
payable with respect to Mortgage Notes in an amount equal to Allocated Principal
Amount of the Mortgage Notes for such Vessel. The owners may not exercise such
optional redemption if such optional redemption would adversely affect the then
applicable ratings on the Serial Notes. In addition, in the event a Charter is
terminated and an Acceptable Replacement Charter is commercially unavailable,
the Owners, at their option, may redeem the Mortgage Notes in part in an amount
equal to the Allocated Principal Amount of the Mortgage Notes for such Vessel
upon payment of a redemption price equal to 100% of the principal amount
thereof, together with accrued interest (including default interest) to the date
fixed for redemption.
(c) PARTIAL MANDATORY REDEMPTION ON A TOTAL LOSS. For either
Vessel, the Owners shall redeem Outstanding Mortgage Notes in an aggregate
principal amount equal to the Allocated Principal Amount of the Mortgage Notes
for such Vessel, on a pro rata basis at 100% of the principal amount thereof
together with accrued interest (including default interest) to the date fixed
for redemption, if a Total Loss occurs or is declared with respect to such
Vessel. The redemption date for any redemption pursuant to this Section 12.1(c)
shall be the date which is no later than 90 days after the occurrence of the
Total Loss.
(d) MANDATORY REDEMPTION IN CERTAIN CIRCUMSTANCES. For either
Vessel, if the Charter for such Vessel is terminated at the option of the
Charterer in accordance with the terms of such Charter and the related Owner
does not enter into an Acceptable Replacement Charter for such Vessel on or
before the date which is one week prior to the next Payment Date under the
Mortgage Notes and the Manager has not received offers for the purchase of such
Vessel in an amount, together with the Allocable Portion of the Debt Service
Reserve Fund and after deducting fees and expenses relating to such termination
and sale, at least sufficient to redeem the Allocated Principal Amount of
Mortgage Notes for such Vessel, then within one year following the effective
date of such termination, the Indenture Trustee shall solicit the consent
(evidenced as provided in Article Nine) of all the Holders of Outstanding
Mortgage Notes. If such consent is so received, then, after the Manager has
certified to the Indenture Trustee, based on an appraisal, that the sale amount
is at least equal to the fair market value of such Vessel, the Mortgage Notes
shall be redeemed in part, from the net proceeds of the sale of such Vessel and
the Allocable Portion of the Debt Service Reserve Fund. The aggregate principal
amount of Mortgage Notes to be redeemed pursuant to this Section 12.1(d) shall
equal the Allocated Principal Amount of Mortgage Notes for the related Vessel.
The redemption price for Mortgage Notes to be redeemed pursuant to this Section
12.1(d)(ii) shall equal the product of (A) 100% of the principal amount thereof
and (B) the ratio obtained by dividing (1) the sum of the Allocable Portion of
the Debt Service Reserve Fund and the net proceeds from the sale of such Vessel
(after deducting fees and expenses relating to the sale of such Vessel) by (2)
the Allocated Principal Amount of Mortgage Notes being so redeemed; no
additional interest shall be paid on such Mortgage Notes redeemed pursuant to
this Section 12.1(d). The redemption date for any redemption pursuant to this
Section 12.1(d) shall be the date which is 90 days after the sale of the related
Vessel.
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(e) MANDATORY REDEMPTION UPON A NET REDUCTION IN CONSTRUCTION
COSTS. For either Vessel, the Owners shall redeem Outstanding Term Notes and
Serial Notes, on a PRO RATA basis, in an aggregate principal amount equal to the
Net Reduction in Construction Costs if such a Net Reduction in Construction
Costs occurs. The purchase price for such redemption shall be 100% of the Net
Reduction in Construction Costs, together with accrued and unpaid interest on
such Initial Notes to be redeemed to the date fixed for redemption.
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice
of redemption to the Holders of Mortgage Notes to be redeemed in whole or in
part shall be given by mailing notice of such redemption by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date
fixed for redemption to such Holders of Mortgage Notes at their last addresses
as they shall appear upon the registry books. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the holder receives the notice. Failure to give notice by mail,
or any defect in the notice to the holder of any Mortgage Note designated for
redemption as a whole or in part, shall not affect the validity of the
proceedings for the redemption of any other Mortgage Note.
The notice of redemption to each such Holder shall specify the
principal amount of each Mortgage Note held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Mortgage
Notes, that such redemption is pursuant to the mandatory sinking fund, if such
be the case, that interest (including default interest) accrued to the date
fixed for redemption will be paid as specified in said notice and that on and
after said date interest thereon (including default interest) or on the portions
thereof to be redeemed will cease to accrue and, that if any Mortgage Note
contains a CUSIP number as provided in Section 2.16, no representation is being
made as to the correctness of the CUSIP number either as printed on the Mortgage
Notes or as contained in the notice of redemption and that reliance may be
placed only on the other identification numbers printed on the Mortgage Notes.
If any Mortgage Note is to be redeemed in part only the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Mortgage Note, a new Mortgage Note or Notes in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Mortgage Notes to be redeemed
shall be given by Golden State Petroleum, as agent of the Owners, or, at the
Owner's request, by the Indenture Trustee in the name and at the expense of the
Owners.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Owners shall deposit or cause
to be deposited with the Indenture Trustee or with the paying agent an amount of
money sufficient to redeem on the redemption date all the Mortgage Notes so
called for redemption at the appropriate redemption price, together with accrued
and unpaid interest (including default interest) to the date fixed for
redemption.
If less than all the Mortgage Notes are to be redeemed, the
Indenture Trustee shall select Mortgage Notes from each Class of Mortgage Notes
to be redeemed ratably from each Holder of the same Class such that the ratio of
the principal amount of Mortgage Notes of a
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Class to be redeemed from each Holder to the aggregate principal amount of
Mortgage Notes Outstanding of such Class held by such Holder shall, as nearly as
practicable and subject to rounding, equal the ratio of the aggregate principal
amount of Mortgage Notes from each Class of Mortgage Notes to be redeemed on
such redemption date to the aggregate principal amount of Mortgage Notes from
each Class of Mortgage Notes Outstanding. Mortgage Notes may be redeemed in part
in multiples of $1,000 only. The Indenture Trustee shall promptly notify the
Owners in writing of the Mortgage Notes selected for redemption and, in the case
of any Mortgage Notes selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Mortgage Notes
shall relate, in the case of any Mortgage Note redeemed or to be redeemed only
in part, to the portion of the principal amount of such Mortgage Note which has
been or is to be redeemed.
SECTION 12.3 PAYMENT OF MORTGAGE NOTES CALLED FOR REDEMPTION.
If notice of redemption has been given as above provided, the Mortgage Notes or
portions of Mortgage Notes specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable redemption
price, together with interest (including default interest accrued and unpaid to
the date fixed for redemption, and on and after said date (unless the Owners
shall default in the payment of such Mortgage Notes at the redemption price,
together with interest accrued and unpaid to said date) interest (including
default interest) on the Mortgage Notes or portions of Mortgage Notes so called
for redemption shall cease to accrue and, except as provided in Sections 8.5 and
11.4, such Mortgage Notes shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Mortgage Notes except
the right to receive the redemption price thereof and unpaid interest (including
default) to the date fixed for redemption. On presentation and surrender of such
Mortgage Notes at a place of payment specified in said notice, said Mortgage
Notes or the specified portions thereof shall be paid and redeemed by Golden
State Petroleum at the applicable redemption price, together with interest
accrued (including default interest) thereon to the date fixed for redemption;
PROVIDED that any semi-annual payment of interest becoming due on the date fixed
for redemption shall be payable to the Holders of such Mortgage Notes registered
as such on the relevant record date subject to the terms and provisions of
Section 2.5 hereof.
If any Mortgage Note called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall, until paid or
duly provided for, bear interest from the date fixed for redemption at the
applicable Default Rate.
Upon presentation of any Mortgage Note redeemed in part only,
Golden State Petroleum, as agent of the Owners, shall execute and the Indenture
Trustee shall authenticate and deliver to or on the order of the holder thereof,
at the expense of the Owners, a new Mortgage Note or Mortgage Notes, of
authorized denominations, in a principal amount or amounts equal to the
unredeemed portion of the Mortgage Note so presented.
SECTION 12.4 TERM NOTE MANDATORY SINKING FUND. The Term Notes
shall also be subject to redemption in part on each date and in the amount
specified in Schedule I hereto (subject to adjustment by the Indenture Trustee
upon the occurrence of a Total Loss of either Vessel and of any mandatory
redemption of the Term Notes), which Schedule I is hereby
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incorporated by reference herein, through the operation of the sinking fund as
set forth in this Section, at a sinking fund redemption price equal to 100% of
the principal amount thereof (the "sinking fund redemption price"), together
with accrued and unpaid interest to the date fixed for redemption.
As and for a mandatory sinking fund for the retirement of the
Term Notes and so long as any of the Term Notes remain outstanding and unpaid,
the Owners will, except as hereinafter provided, pay to the Indenture Trustee,
on or before the First Term Note Sinking Fund Payment Date, and on each February
1 and August 1 thereafter to and including August 1, 2018 prior to 11:00 a.m. on
such date an amount sufficient to redeem on such sinking fund redemption date, a
principal amount of Term Notes specified in Schedule I hereto (subject to
adjustment as aforesaid), or such lesser amount as shall then be outstanding, at
100% of the principal amount thereof, the sinking fund redemption price,
together with accrued and unpaid interest to the date fixed for redemption. Each
date on which a sinking fund payment is to be made in each year is herein
referred to as the "sinking fund payment date".
On or before each sinking fund payment date, the Owners shall
pay to the Indenture Trustee in cash or shall otherwise provide for the payment
of all interest accrued to the date fixed for redemption on Term Notes to be
redeemed on such sinking fund payment date.
The Indenture Trustee shall not redeem or cause to be redeemed
any Term Notes with sinking fund moneys or mail any notice of redemption of Term
Notes by operation of the sinking fund during the continuance of a default in
payment of interest on the Mortgage Notes or of any other Indenture Event of
Default of which the Indenture Trustee shall have knowledge except that, where
the mailing of notice of redemption of any Term Notes shall theretofore have
been made, the Indenture Trustee shall redeem or cause to be redeemed such Term
Notes, provided that it shall have received from the Owners a sum sufficient for
such redemption. Except as aforesaid, any moneys in the sinking fund at the time
when any such Indenture Event of Default shall occur, and any moneys thereafter
paid into the sinking fund, shall, during the continuance of such Indenture
Event of Default, be deemed to have been collected under Article Seven and held
for the payment of all the Term Notes. In case such Indenture Event of Default
shall have been waived as provided in Section 7.9 or the Default cured on or
before the sixtieth day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of Term Notes.
SECTION 12.5 ADDITIONAL NOTE MANDATORY SINKING FUND. Each
Series of Additional Notes shall also be subject to redemption in part on each
date and in the amount specified in the schedule attached to the related
Supplemental Indenture (subject to adjustment by the Indenture Trustee upon the
Total Loss of the related Vessel and of any mandatory redemption of the
Additional Notes), through the operation of the sinking fund as set forth in
this Section, at a sinking fund redemption price equal to 100% of the principal
amount thereof (the "sinking fund redemption price"), together with accrued and
unpaid interest to the date fixed for redemption.
As and for a mandatory sinking fund for the retirement of a
Series of Additional Notes and so long as any Additional Notes in such Series
remain outstanding and unpaid, the
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Owners will, except as hereinafter provided, pay to the Indenture Trustee, on or
before each Payment Date immediately succeeding the date such Series of
Additional Notes were issued, and on each February 1 and August 1 thereafter to
and including the Payment Date immediately prior to the Maturity Date thereof
prior to 11:00 a.m. on such date an amount sufficient to redeem on such sinking
fund redemption date, a principal amount of Additional Notes specified in
schedule attached to the related Supplemental Indenture (subject to adjustment
as aforesaid), or such lesser amount as shall then be outstanding, at 100% of
the principal amount thereof, the sinking fund redemption price, together with
accrued and unpaid interest to the date fixed for redemption. Each date on which
a sinking fund payment is to be made in each year is herein referred to as the
"sinking fund payment date".
On or before each sinking fund payment date, the Owners shall
pay to the Indenture Trustee in cash or shall otherwise provide for the payment
of all interest accrued to the date fixed for redemption on such Additional
Notes to be redeemed on such sinking fund payment date.
The Indenture Trustee shall not redeem or cause to be redeemed
any Additional Notes with sinking fund moneys or mail any notice of redemption
of Additional Notes by operation of the sinking fund during the continuance of a
default in payment of interest on the Mortgage Notes or of any other Indenture
Event of Default of which the Indenture Trustee shall have knowledge except
that, where the mailing of notice of redemption of any Additional Notes shall
theretofore have been made, the Indenture Trustee shall redeem or cause to be
redeemed such Additional Notes, provided that it shall have received from the
Owners a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund at the time when any such Indenture Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such Indenture Event of Default, be deemed to have been collected
under Article Seven and held for the payment of all the Additional Notes. In
case such Indenture Event of Default shall have been waived as provided in
Section 7.9 or the Default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of Additional Notes.
SECTION 12.6 PURCHASE OPTION OF HOLDERS. On August 1, 2014,
(the "Optional Purchase Date") if neither Charter has been terminated by the
Charterer, each Holder of the Term Notes will have a one-time option to cause
the Owners to purchase all or a part of such Holder's Term Notes at a purchase
price equal to 100% of the principal amount thereof plus accrued and unpaid
interest through the date of purchase. The Term Notes will be purchased in
multiples of $1,000 principal amount, provided that the principal amount of Term
Notes not so purchased must be of an authorized denomination.
Golden State Petroleum, at the direction of the Owners, shall
mail to all holders of record of the Term Notes a notice of the availability or
non-availability of the purchase option on or before the 60th day prior to the
Optional Purchase Date. Golden State Petroleum shall deliver to the Indenture
Trustee a copy of such notice. To exercise the purchase right, Holders of Term
Notes must deliver, on or before the 30th day after the date of Golden State
Petroleum's notice, the Term Notes to be redeemed, duly endorsed for transfer,
together with
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the form provided with such notice duly completed, to Golden State Petroleum (or
agent designated by the Companies for such purpose).
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF GOLDEN STATE PETROLEUM AND THE OWNERS EXEMPT FROM INDIVIDUAL
LIABILITY. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Mortgage Note, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such
or against any past, present or future stockholder, officer or director, as
such, of Golden State Petroleum, the Owners or of any successor, either directly
or through Golden State Petroleum, the Owners, or any successor, under any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the Indenture Trustee and by
the acceptance of the Mortgage Notes by the Holders thereof and as part of the
consideration for the issue of the Mortgage Notes.
SECTION 13.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF
PARTIES AND NOTEHOLDERS. Nothing in this Indenture or in the Mortgage Notes,
expressed or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Mortgage Notes, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Mortgage Notes.
SECTION 13.3 SUCCESSORS AND ASSIGNS OF THE OWNERS BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of Golden State Petroleum and the Owners
shall bind their respective successors and assigns, whether so expressed or not.
SECTION 13.4 NOTICES AND DEMANDS ON GOLDEN STATE PETROLEUM,
INDENTURE TRUSTEE AND NOTEHOLDERS. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the
Indenture Trustee or by the Holders of Mortgage Notes to or on Golden State
Petroleum or the Owners may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of Golden State Petroleum or the Owners, as the
case may be, is filed by Golden State Petroleum or the Owners, as the case may
be, with the Indenture Trustee) to Golden State Petroleum Transport Corporation
c/o Cambridge Fund Management LLC, 00 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000 and to the Owners at [00-00 Xxxxx Xxxxxx, Xxxxxxx, Xxxx of Man].
Any notice, direction, request or demand by Golden State Petroleum or any
Noteholder to or upon the Indenture Trustee shall be deemed
79
to have been sufficiently given or made, for all purposes, if given or made at
the Corporate Trust Department at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000.
Where this Indenture provides for notice to Holders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Mortgage Note register. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Indenture Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to Golden State
Petroleum, the Owners and Noteholders, when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 13.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by Golden
State Petroleum or the Owners to the Indenture Trustee to take any action under
any of the provisions of this Indenture, Golden State Petroleum or the Owners,
as the case may be, shall furnish to the Indenture Trustee an Officers'
Certificate stating that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Indenture Trustee with respect to compliance with a condition
or covenant provided for in this Indenture shall include (a) a statement that
the Person making such certificate or opinion has read such covenant or
condition, (b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
Person, such Person has made such examination or investigation as is necessary
to enable such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with and (d) a statement as to whether
or not, in the opinion of such Person, such condition or covenant has been
complied with and such other opinions as the Indenture Trustee may reasonably
request.
Any certificate, statement or opinion of an officer of Golden
State Petroleum or the Owners may be based, insofar as it relates to legal
matters, upon a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or representations with
respect to the matters upon which such officer's certificate, statement or
80
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any certificate,
statement or opinion of counsel may be based, insofar as it relates to factual
matters with respect to information which is in the possession of Golden State
Petroleum or the Owners, as the case may be, upon the certificate, statement or
opinion of or representations by an officer or officers of Golden State
Petroleum, as the case may be, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
such counsel certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of Golden
State Petroleum, the Owners or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of Golden State Petroleum or the
Owners, as the case may be, unless such officer or counsel, as the case may be,
knows that the certificate or opinion or representations with respect to the
accounting matters upon which such officer's or counsel's certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a statement that such
firm is independent.
SECTION 13.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS.
If the date of maturity of interest on or principal of the Mortgage Notes, the
date fixed for redemption of any Mortgage Note or the date for the payment of
any other amount due thereunder or hereunder shall not be a Business Day, then
such payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity, the date fixed for redemption or such other date for payment, and,
provided that payment is made on such next succeeding Business Day, no interest
shall accrue for the period of such extension.
SECTION 13.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture by
operation of Section 318, inclusive, of the Trust Indenture Act (an
"incorporated provision"), such incorporated provision shall control
notwithstanding that at the time of the issuance of the Notes this Indenture is
not required to be qualified under the Trust Indenture Act, it being the intent
of the parties that this Indenture contain all terms and conditions as are
required of indentures under the Trust Indenture Act.
SECTION 13.8 NEW YORK LAW TO GOVERN. THIS INDENTURE AND EACH
MORTGAGE NOTE SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS).
SECTION 13.9 COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
81
SECTION 13.10 EFFECT OF HEADINGS. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 13.11 SEPARABILITY CLAUSE. In case any provision in
this Indenture or in the Mortgage Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 13.12 CONSENT TO JURISDICTION. Any legal suit, action
or proceeding against either Owner arising out of or relating to this Indenture,
or any transaction contemplated hereby, may be instituted in any federal or
state court in The City of New York, State of New York, and each Owner hereby
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding. Each Owner hereby waives, to the fullest extent permitted
by applicable law, any defense which it may now or hereafter have based upon
lack of personal jurisdiction or venue or FORUM NON CONVENIENS. Each Owner
hereby irrevocably appoints and designates CT Corporation System, having an
address at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, its true and lawful
attorney-in-fact and duly authorized agent for the limited purpose of accepting
servicing of legal process and each Owner agrees that service of process upon
such party shall constitute personal service of such process on such Person.
Each Owner shall maintain the designation and appointment of such authorized
agent until all amounts payable under this Indenture shall have been paid in
full. If such agent shall cease to so act, each Owner shall immediately
designate and appoint another such agent satisfactory to the Indenture Trustee
and shall promptly deliver to the Indenture Trustee evidence in writing of such
other agent's acceptance of such appointment.
82
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed this __th day of ______, 1996 by their respective
officers thereunto duly authorized and acknowledge that this Indenture has been
made and delivered in The City of New York, and this Indenture shall be
effective only upon such execution and delivery.
GOLDEN STATE PETROLEUM TRANSPORT
CORPORATION, as agent for the Owners
By: /s/ Xxxx XxXxxxxx
-----------------------------
Name: Xxxx XxXxxxxx
Title: President
GOLDEN STATE PETRO (IOM I-A) PLC
By:/s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
GOLDEN STATE PETRO (IOM I-B) PLC
By:/s/ Xxxxxx Xxxxxx
-----------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Secretary
UNITED STATES TRUST COMPANY OF NEW
YORK,
not in its individual capacity,
except as expressly provided herein,
but as Indenture Trustee
By:/s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
83
EXHIBIT A-1
FACE OF MORTGAGE NOTE
(Serial Note)
[THIS MORTGAGE NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS MORTGAGE NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A MORTGAGE NOTE REGISTERED, AND NO TRANSFER OF THIS MORTGAGE NOTE IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR
A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR MORTGAGE NOTES IN
DEFINITIVE FORM, THIS MORTGAGE NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS AND UNTIL THIS MORTGAGE NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), TO GOLDEN STATE
PETROLEUM TRANSPORT CORPORATION, AS AGENT FOR GOLDEN STATE PETRO (IOM I-A) PLC
AND GOLDEN STATE PETRO (IOM I-B) PLC, OR ITS AGENTS FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY MORTGAGE NOTE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]**
No. ___ $________________
CUSIP ___________
Golden State Petroleum Transport Corporation, as agent for
Golden State Petro (IOM I-A) PLC and Golden State Petro (IOM I-B) PLC
____% Serial First Preferred Mortgage Notes Due [____]
THE MORTGAGE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933 (THE "SECURITIES
--------
**These two paragraphs should be included only if this Mortgage Note is issued
in global form.
A-1-1
ACT"), AND THE MORTGAGE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE MORTGAGE NOTE EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THE MORTGAGE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
GOLDEN STATE PETROLEUM AND THE OWNERS THAT, UNTIL THE LATER OF DECEMBER 24, 1999
OR THREE YEARS SINCE THE DATE THIS MORTGAGE NOTE WAS LAST HELD BY AN AFFILIATE
OF GOLDEN STATE PETROLEUM (OR, IN EACH CASE, SUCH EARLIER DATE AS RESALES HEREOF
ARE PERMITTED PURSUANT TO RULE 144(K) OR THE SUCCESSOR RULE THERETO) (A) SUCH
MORTGAGE NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATE STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND (a) IN THE CASE OF CLAUSE (b), (c) OR
(d), BASED ON AN OPINION OF COUNSEL AND/OR CERTIFICATES TO THE EXTENT PROVIDED
IN THE INDENTURE), (2) TO THE OWNERS, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE MORTGAGE NOTE EVIDENCED HEREBY OR ANY MORTGAGE NOTE ISSUED IN
EXCHANGE FOR OR IN SUBSTITUTION HEREOF OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE.
Golden State Petroleum Transport Corporation, a Delaware
corporation ("Golden State Petroleum"), solely as agent for Golden State Petro
(IOM I-A) PLC (an "Owner") and Golden State Petro (IOM I-B) PLC (an "Owner" and,
together with Golden State Petro (IOM I-A) PLC, the "Owners"), for value
received hereby promises to pay to CEDE & CO. or registered assigns the
principal sum of _____________________ on February 1, ____ at the office or
agency of United States Trust Company of New York (the "Indenture Trustee") or
its paying agent under the Indenture dated as of December 1, 1996 by and among
Golden State Petroleum, the Owners and the Indenture Trustee (the "Indenture";
terms defined in the Indenture are used herein as so defined) maintained for
such purpose in New York, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest (computed on the basis of a
360-day year of twelve 30-day months), semi-annually on February 1 and August 1
of each year commencing August 1, 1997 on said principal sum in like coin or
currency at the rate per annum set forth above at said office or agency from the
February 1 or the August 1, as the case may be, next preceding the date of this
Mortgage Note to which interest on the Mortgage Notes has been paid or duly
provided for, unless the date hereof is a date to which interest on the
A-1-2
Mortgage Notes has been paid or duly provided for, in which case from the date
of this Mortgage Note, or unless no interest has been paid or duly provided for
on the Mortgage Notes, in which case from December 24, 1996 until payment of
said principal sum has been made or duly provided for. Notwithstanding the
foregoing, if the date hereof is after any February 1 or August 1 and before the
following February 1 or August 1, as the case may be, this Mortgage Note shall
bear interest from such February 1 or August 1. The interest so payable on any
February 1 or August 1 will, except as otherwise provided in the Indenture, be
paid to the person in whose name this Mortgage Note is registered at the close
of business on the January 15 or July 15 preceding such February 1 or August 1,
whether or not such day is a Business Day.
Interest is payable on demand at the Default Rate on any
overdue payment of principal of, interest or any other amount payable on this
Mortgage Note from the due date for such payment to the date such amount is paid
in full.
If any amount payable under this Mortgage Note or under the
Indenture falls due on a day that is not a Business Day, then such amount shall
be payable on the next succeeding Business Day without additional interest
thereon for the period of such extension (provided that payment is made on such
next succeeding Business Day).
Reference is made to the further provisions of this Mortgage
Note set forth on the reverse hereof. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Mortgage Note shall not be valid or obligatory until the
certificate of authentication hereon shall have been duly signed by the
Indenture Trustee acting under the Indenture.
A-1-3
IN WITNESS WHEREOF, Golden State Petroleum, as agent on behalf
of the Owners, has caused this instrument to be duly executed under its
corporate seal.
Dated:
Golden State Petroleum Transport Corporation,
as agent on behalf of the Owners
______________________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Mortgage Notes described in the
within-mentioned Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK, as
Indenture Trustee
______________________________________
Authorized Officer
A-1-4
REVERSE OF MORTGAGE NOTE
Golden State Petroleum Transport Corporation, as agent for
Golden State Petro (IOM I-A) PLC and Golden State Petro (IOM I-B) PLC
____% Serial First Preferred Mortgage Notes Due [____]
This Mortgage Note is one of a duly authorized issue of debt
securities of Golden State Petroleum, as agent for the Owners, limited to the
aggregate principal amount of ________________ (except as otherwise provided in
the Indenture), issued or to be issued pursuant to the Indenture. Reference is
hereby made to the Indenture and all indentures supplemental thereto for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Indenture Trustee, Golden State Petroleum, the
Owners and the Holders of the Mortgage Notes.
This Mortgage Note is secured by the Collateral pursuant to
the Indenture and the other Security Documents. Each Holder of this Mortgage
Note, by its acceptance thereof, consents and agrees to the terms of the
Security Documents (including without limitation the provisions providing for
the release of the Collateral provided for herein and therein) as the same may
be in effect or may be amended from time to time in accordance with their terms
and authorizes and directs the Indenture Trustee to perform its obligations and
exercise its rights under the Indenture and the other Security Documents in
accordance therewith; PROVIDED that in the event the terms thereof limit,
qualify or conflict with the duties imposed by the incorporated provisions of
the Trust Indenture Act, the incorporated provisions of the Trust Indenture Act
shall control.
In case an Indenture Event of Default shall have occurred and
be continuing, the principal of all the Mortgage Notes may be declared due and
payable, in the manner and with the effect, and subject to the conditions,
provided in the Indenture. The Indenture provides that in certain events such
declaration and its consequences may be waived by the Majority Noteholders and
that, prior to any such declaration, such Holders may waive any past default
under the Indenture and its consequences except a default in the payment of
principal of or interest on any of the Mortgage Notes. Any such consent or
waiver by the Holder of this Mortgage Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
holders and owners of this Mortgage Note and any Mortgage Note which may be
issued in exchange or substitution herefor, whether or not any notation thereof
is made upon this Mortgage Note or such other Mortgage Notes.
The Indenture permits Golden State Petroleum, the Owners and
the Indenture Trustee, with the consent of the Majority Noteholders, evidenced
as provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the holders of the Mortgage Notes; PROVIDED that no such supplemental
indenture shall extend the final maturity or redemption dates of any Mortgage
Note, or reduce the principal amount thereof, or reduce the rate of interest
thereon or extend the time of payment of interest thereon, or reduce any amount
payable upon the redemption hereof, or impair or affect the right to institute
suit for the enforcement of any such payment,
A-1-5
or reduce the percentage of the Holders whose consent is required for any such
modification or amendment or modify any provision of the Indenture relating to
the amendment thereof or the creation of a supplemental indenture (unless the
change increases the rights of the Holders).
No reference herein to the Indenture and no provision of this
Mortgage Note or of the Indenture shall alter or impair the obligation of Golden
State Petroleum, as agent for the Owners, which is absolute and unconditional,
to pay the principal of and interest on this Mortgage Note at the place, times,
and rate, and in the currency, herein prescribed.
The Mortgage Notes are issuable only as registered Mortgage
Notes without coupons in denominations of $100,000 and any multiple of $1,000 in
excess thereof.
Mortgage Notes may be exchanged for a like aggregate principal
amount of Mortgage Notes of other authorized denominations at the office or
agency of the Indenture Trustee maintained for such purpose and in the manner
and subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this
Mortgage Note as provided in the Indenture, a new Mortgage Note or Mortgage
Notes of authorized denominations, for a like aggregate principal amount, will
be issued to the transferee as provided in the Indenture. No service charge
shall be made for any such transfer, but the Indenture Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto.
The Mortgage Notes are not subject to optional redemption
prior to the maturity date hereof.
In connection with the optional termination of a Charter by
the Charterer, under certain circumstances more fully set forth in the
Indenture, the Mortgage Notes are also subject to mandatory redemption, in part
on a pro rata basis, in an amount equal to 100% of the Allocated Principal
Amount of the Mortgage Notes for the related Vessel, together with accrued and
unpaid interest to the date fixed for redemption.
The Mortgage Notes are also subject to redemption in part on a
pro rata basis, in an amount equal to the Allocated Principal Amount of the
Mortgage Notes for the related Vessel, on notice as all as provided in the
Indenture if a Total Loss occurs or is declared with respect to such Vessel. The
aggregate principal amount of Mortgage Notes to be redeemed pursuant to this
paragraph shall equal the Allocated Principal Amount of Mortgage Notes for the
related Vessel. The redemption date for any redemption pursuant to this
paragraph shall be the date which is on or prior to 90 days after the occurrence
of the Total Loss. The Mortgage Notes are also subject to redemption in part if
a Vessel is not part of the Collateral in accordance with the Indenture on or
before the date which is 180 days after the date such Vessel was scheduled to be
delivered under the related Building Contract.
The Mortgage Notes are also subject to redemption in part on a
pro rata basis, in an amount equal to the Net Reduction in Construction Costs,
under certain circumstances more fully set forth in the Indenture, at a
redemption price equal to 100% of the Net Reduction
A-1-6
in Construction Costs, together with accrued and unpaid interest to the date
fixed for redemption.
Subject to payment by Golden State Petroleum, as agent for the
Owners, of a sum sufficient to pay the amount due on redemption, interest on
this Mortgage Note (or portion hereof if this Mortgage Note is redeemed in part)
shall cease to accrue upon the date duly fixed for redemption of this Mortgage
Note (or portion hereof if this Mortgage Note is redeemed in part).
Golden State Petroleum, the Indenture Trustee, the Owners, and
any authorized agent of Golden State Petroleum or the Indenture Trustee, may
deem and treat the registered holder hereof as the absolute owner of this
Mortgage Note (whether or not this Mortgage Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than Golden State Petroleum, as agent for the Owners, or the Indenture
Trustee or any authorized agent of Golden State Petroleum or the Indenture
Trustee), for the purpose of receiving payment of, or on account of, the
principal hereof and, subject to the provisions on the face hereof, interest
hereon and for all other purposes, and none of Golden State Petroleum, the
Owners or the Indenture Trustee nor any authorized agent of Golden State
Petroleum, the Owners or the Indenture Trustee shall be affected by any notice
to the contrary.
No recourse under or upon any obligation, covenant or
agreement contained in the Indenture or this Mortgage Note, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such
or against any past, present or future stockholder, officer or director, as
such, of Golden State Petroleum, the Owners or of any successor, either directly
or through Golden State Petroleum, the Owners, or any successor, under any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the Indenture Trustee and by
the acceptance of this Mortgage Note by the Holder hereof and as part of the
consideration for the issue of the Mortgage Notes.
A-1-7
SCHEDULE OF EXCHANGES FOR DEFINITIVE NOTES***
The following exchanges of a part of this Global Note for Definitive
Notes have been made:
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Global Note following authorized officer of
Principal Amount of this Principal Amount of this such decrease (or Indenture Trustee or
Date of Exchange Global Note Global Notes increase) Note Custodian
------------------------------------------------------------------------------------------------------------------------------------
----------
*** This should be included only if the Mortgage Note is issued in global form.
A-1-8
ASSIGNMENT FORM
To assign this Mortgage Note, fill in the form below:
(I) or (we) assign and transfer this Mortgage Note to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________ agent to transfer this Mortgage
Note on the books of Golden State Petroleum, as agent for the Owners. The agent
may substitute another to act for him.
Your Signature:_________________________________________________________________
(Sign exactly as your name appears on the other side of this Mortgage Note.)
Date:______________________________________
Signature Guarantee:______________
EXHIBIT A-2
FACE OF MORTGAGE NOTE
(Term Note)
[THIS MORTGAGE NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS MORTGAGE NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A MORTGAGE NOTE REGISTERED, AND NO TRANSFER OF THIS MORTGAGE NOTE IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR
A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR MORTGAGE NOTES IN
DEFINITIVE FORM, THIS MORTGAGE NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS AND UNTIL THIS MORTGAGE NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), TO GOLDEN STATE
PETROLEUM TRANSPORT CORPORATION, AS AGENT FOR GOLDEN STATE PETRO (IOM I-A) PLC
AND GOLDEN STATE PETRO (IOM I-B) PLC, OR ITS AGENTS FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY MORTGAGE NOTE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]****
No. ___ $________________
CUSIP ___________
Golden State Petroleum Transport Corporation, as agent for
Golden State Petro (IOM I-A) PLC and Golden State Petro (IOM I-B) PLC
____% First Preferred Mortgage Notes Due 2019
THE MORTGAGE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933 (THE "SECURITIES
----------
****These two paragraphs should be included only if this Mortgage Note is issued
in global form.
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ACT"), AND THE MORTGAGE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE MORTGAGE NOTE EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THE MORTGAGE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
GOLDEN STATE PETROLEUM AND THE OWNERS THAT, UNTIL THE LATER OF JANUARY 6, 2000
OR THREE YEARS SINCE THE DATE THIS MORTGAGE NOTE WAS LAST HELD BY AN AFFILIATE
OF GOLDEN STATE PETROLEUM (OR, IN EACH CASE, SUCH EARLIER DATE AS RESALES HEREOF
ARE PERMITTED PURSUANT TO RULE 144(K) OR THE SUCCESSOR RULE THERETO) (A) SUCH
MORTGAGE NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATE STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND (a) IN THE CASE OF CLAUSE (b), (c) OR
(d), BASED ON AN OPINION OF COUNSEL AND/OR CERTIFICATES TO THE EXTENT PROVIDED
IN THE INDENTURE), (2) TO THE OWNERS, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE MORTGAGE NOTE EVIDENCED HEREBY OR ANY MORTGAGE NOTE ISSUED IN
EXCHANGE FOR OR IN SUBSTITUTION HEREOF OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE.
Golden State Petroleum Transport Corporation, a Delaware
corporation ("Golden State Petroleum"), solely as agent for Golden State Petro
(IOM I-A) PLC (an "Owner") and Golden State Petro (IOM I-B) PLC (an "Owner" and,
together with Golden State Petro (IOM I-A) PLC, the "Owners"), for value
received hereby promises to pay to CEDE & CO. or registered assigns the
principal sum of One Hundred Sixty-Five Million, Seven Hundred Thousand Dollars
in sinking fund payments as provided in the Indenture, together with a final
payment of principal on February 1, 2019 at the office or agency of United
States Trust Company of New York (the "Indenture Trustee") or its paying agent
under the Indenture dated as of December 1, 1996 by and among Golden State
Petroleum, the Owners and the Indenture Trustee (the "Indenture"; terms defined
in the Indenture are used herein as so defined) maintained for such purpose in
New York, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, and to pay interest (computed on the basis of a 360-day year of twelve
30-day months), semi-annually on February 1 and August 1 of each year commencing
August 1, 1997 on said principal sum in like coin or currency at the rate per
annum set forth above at said office or agency from the February 1 or the August
1, as the case may be, next preceding the date of this
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Mortgage Note to which interest on the Mortgage Notes has been paid or duly
provided for, unless the date hereof is a date to which interest on the Mortgage
Notes has been paid or duly provided for, in which case from the date of this
Mortgage Note, or unless no interest has been paid or duly provided for on the
Mortgage Notes, in which case from December 24, 1996 until payment of said
principal sum has been made or duly provided for. Notwithstanding the foregoing,
if the date hereof is after any February 1 or August 1 and before the following
February 1 or August 1, as the case may be, this Mortgage Note shall bear
interest from such February 1 or August 1. The interest so payable on any
February 1 or August 1 will, except as otherwise provided in the Indenture, be
paid to the person in whose name this Mortgage Note is registered at the close
of business on the January 15 or July 15 preceding such February 1 or August 1,
whether or not such day is a Business Day.
If (i) the Exchange Offer is not consummated within 180 days
of the Closing Date, (ii) a Shelf Registration Statement required under the
Registration Rights Agreement is not declared effective within the time period
specified therein, (iii) the Shelf Registration Statement or the Exchange Offer
Registration Statement is declared effective but thereafter ceases to be
effective during the periods specified in the Registration Rights Agreement, or
(iv) the Commission determines that neither the consummation of the Exchange
Offer nor continued effectiveness of the Shelf Registration Statement will
permit the free resale of the Exchange Term Notes or the Term Notes, as the case
may be, without additional registration under the Securities Act then a
"Registration Event" event will be deemed to have occurred. During any time that
a Registration Event has occurred and is continuing, until the Exchange Term
Notes or the Term Notes may be freely resold pursuant to Rule 144(k) by a person
who is not an affiliate of the issuer (within the meaning of Rule 144(k)),
special interest ("Special Interest") will accrue on such Term Notes which
constitute Restricted Securities at a rate of 0.25% of the principal amount
thereof per annum payable semiannually in arrears on each Payment Date.
Interest is payable on demand at the Default Rate on any
overdue payment of principal of, interest or any other amount payable on this
Mortgage Note from the due date for such payment to the date such amount is paid
in full.
If any amount payable under this Mortgage Note or under the
Indenture falls due on a day that is not a Business Day, then such amount shall
be payable on the next succeeding Business Day without additional interest
thereon for the period of such extension (provided that payment is made on such
next succeeding Business Day).
Reference is made to the further provisions of this Mortgage
Note set forth on the reverse hereof. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Mortgage Note shall not be valid or obligatory until the
certificate of authentication hereon shall have been duly signed by the
Indenture Trustee acting under the Indenture.
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IN WITNESS WHEREOF, Golden State Petroleum, as agent on behalf
of the Owners, has caused this instrument to be duly executed under its
corporate seal.
Dated:
Golden State Petroleum Transport
Corporation, as agent on behalf of the
Owners
_______________________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Mortgage Notes described in the
within-mentioned Indenture.
UNITED STATES TRUST COMPANY OF
NEW YORK,
as Indenture Trustee
_______________________________________
Authorized Officer
A-2-4
REVERSE OF MORTGAGE NOTE
Golden State Petroleum Transport Corporation, as agent for
Golden State Petro (IOM I-A) PLC and Golden State Petro (IOM I-B) PLC
8.04% First Preferred Mortgage Notes Due 2019
This Mortgage Note is one of a duly authorized issue of debt
securities of Golden State Petroleum, as agent for the Owners, limited to the
aggregate principal amount of $________________ (except as otherwise provided in
the Indenture), issued or to be issued pursuant to the Indenture. Reference is
hereby made to the Indenture and all indentures supplemental thereto for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Indenture Trustee, Golden State Petroleum, the
Owners and the Holders of the Mortgage Notes.
This Mortgage Note is secured by the Collateral pursuant to
the Indenture and the other Security Documents. Each Holder of this Mortgage
Note, by its acceptance thereof, consents and agrees to the terms of the
Security Documents (including without limitation the provisions providing for
the release of the Collateral provided for herein and therein) as the same may
be in effect or may be amended from time to time in accordance with their terms
and authorizes and directs the Indenture Trustee to perform its obligations and
exercise its rights under the Indenture and the other Security Documents in
accordance therewith; PROVIDED that in the event the terms thereof limit,
qualify or conflict with the duties imposed by the incorporated provisions of
the Trust Indenture Act, the incorporated provisions of the Trust Indenture Act
shall control.
In case an Indenture Event of Default shall have occurred and
be continuing, the principal of all the Mortgage Notes may be declared due and
payable, in the manner and with the effect, and subject to the conditions,
provided in the Indenture. The Indenture provides that in certain events such
declaration and its consequences may be waived by the Majority Noteholders and
that, prior to any such declaration, such Holders may waive any past default
under the Indenture and its consequences except a default in the payment of
principal of or interest on any of the Mortgage Notes. Any such consent or
waiver by the Holder of this Mortgage Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
holders and owners of this Mortgage Note and any Mortgage Note which may be
issued in exchange or substitution herefor, whether or not any notation thereof
is made upon this Mortgage Note or such other Mortgage Notes.
The Indenture permits Golden State Petroleum, the Owners and
the Indenture Trustee, with the consent of the Majority Noteholders, evidenced
as provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the holders of the Mortgage Notes; PROVIDED that no such supplemental
indenture shall extend the final maturity or redemption dates of any Mortgage
Note, or reduce the principal amount thereof, or reduce the rate of interest
thereon or extend the time of payment of interest thereon, or reduce any amount
payable upon the redemption hereof, change the sinking fund redemption amount
hereof, or impair or affect the right to
A-2-5
institute suit for the enforcement of any such payment, or reduce the percentage
of the Holders whose consent is required for any such modification or amendment
or modify any provision of the Indenture relating to the amendment thereof or
the creation of a supplemental indenture (unless the change increases the rights
of the Holders).
No reference herein to the Indenture and no provision of this
Mortgage Note or of the Indenture shall alter or impair the obligation of Golden
State Petroleum, as agent for the Owners, which is absolute and unconditional,
to pay the principal of and interest on this Mortgage Note at the place, times,
and rate, and in the currency, herein prescribed.
The Mortgage Notes are issuable only as registered Mortgage
Notes without coupons in denominations of $100,000 and any multiple of $1,000 in
excess thereof.
Mortgage Notes may be exchanged for a like aggregate principal
amount of Mortgage Notes of other authorized denominations at the office or
agency of the Indenture Trustee maintained for such purpose and in the manner
and subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this
Mortgage Note as provided in the Indenture, a new Mortgage Note or Mortgage
Notes of authorized denominations, for a like aggregate principal amount, will
be issued to the transferee as provided in the Indenture. No service charge
shall be made for any such transfer, but the Indenture Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto.
The Mortgage Notes may be redeemed at the option of the
Owners, in whole and in part, on any Payment Date on or after the later to occur
of (a) August, 1999 and (b) the Delivery Date of the last Vessel to be delivered
upon mailing a notice of such redemption not less than 30 nor more than 60 days
prior to the date fixed for redemption to the holders of Mortgage Notes to be
redeemed, all as provided in the Indenture, at a redemption price equal to (a)
100% of the principal amount thereof plus accrued and unpaid interest to the
date fixed for redemption, plus in the event that (i) such redemption occurs
prior to February 1, 2018 and (ii) a Vessel is then subject to the related
Charter or to an Acceptable Replacement Charter pursuant to which the charterer
thereunder is required to pay charter hire equal to or greater than the Charter
Hire payable by the Charterer during the Fixed Period, then the Make-Whole
Premium shall be payable with respect to Mortgage Notes in an amount equal to
Allocated Principal Amount of the Mortgage Notes for such Vessel.
In connection with the optional termination of a Charter by
the Charterer, under certain circumstances more fully set forth in the
Indenture, the Mortgage Notes are also subject to mandatory redemption, in part
on a pro rata basis, in an amount equal to 100% of the Allocated Principal
Amount of the Mortgage Notes for the related Vessel, together with accrued and
unpaid interest to the date fixed for redemption.
The Mortgage Notes are also subject to redemption in part on a
pro rata basis, in an amount equal to the Allocated Principal Amount of the
Mortgage Notes for the related Vessel, on notice as all as provided in the
Indenture if a Total Loss occurs or is declared with
A-2-6
respect to such Vessel. The aggregate principal amount of Mortgage Notes to be
redeemed pursuant to this paragraph shall equal the Allocated Principal Amount
of Mortgage Notes for the related Vessel. The redemption date for any redemption
pursuant to this paragraph shall be the date which is on or prior to 90 days
after the occurrence of the Total Loss. The Mortgage Notes are also subject to
redemption in part if a Vessel is not part of the Collateral in accordance with
the Indenture on or before the date which is 180 days after the date such Vessel
was scheduled to be delivered under the related Building Contract.
The Mortgage Notes are also subject to redemption in part on a
pro rata basis, in an amount equal to the Net Reduction in Construction Costs,
under certain circumstances more fully set forth in the Indenture, at a
redemption price equal to 100% of the Net Reduction in Construction Costs,
together with accrued and unpaid interest to the date fixed for redemption.
The Mortgage Notes are also subject to redemption through the
operation of the sinking fund provided for in the Indenture, on August 1, 2007,
and on each August 1 and February 1 thereafter to and including August 1, 2018,
on notice as set forth above and at 100% of the principal amount thereof, the
sinking fund redemption price, together with accrued interest to the date fixed
for redemption. The aggregate principal amount of Mortgage Notes to be redeemed
on any such sinking fund redemption date shall be as set forth in the Indenture
and is subject to change if one or more of the Charters is terminated.
On August 1, 2014, (the "Optional Purchase Date") if neither
Charter has been terminated by the Charterer, each Holder of the Term Notes will
have a one-time option to cause the Owners to purchase all or a part of such
Holder's Term Notes at a purchase price equal to 100% of the principal amount
thereof plus accrued and unpaid interest through the date of purchase. The Term
Notes will be purchased in multiples of $1,000 principal amount, provided that
the principal amount of Term Notes not so purchased must be of an authorized
denomination.
Subject to payment by Golden State Petroleum, as agent for the
Owners, of a sum sufficient to pay the amount due on redemption, interest on
this Mortgage Note (or portion hereof if this Mortgage Note is redeemed in part)
shall cease to accrue upon the date duly fixed for redemption of this Mortgage
Note (or portion hereof if this Mortgage Note is redeemed in part).
Golden State Petroleum, the Indenture Trustee, the Owners, and
any authorized agent of Golden State Petroleum or the Indenture Trustee, may
deem and treat the registered holder hereof as the absolute owner of this
Mortgage Note (whether or not this Mortgage Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than Golden State Petroleum, as agent for the Owners, or the Indenture
Trustee or any authorized agent of Golden State Petroleum or the Indenture
Trustee), for the purpose of receiving payment of, or on account of, the
principal hereof and, subject to the provisions on the face hereof, interest
hereon and for all other purposes, and none of Golden State Petroleum, the
Owners or the Indenture Trustee nor any authorized agent of Golden State
Petroleum, the Owners or the Indenture Trustee shall be affected by any notice
to the contrary.
A-2-7
No recourse under or upon any obligation, covenant or
agreement contained in the Indenture or this Mortgage Note, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such
or against any past, present or future stockholder, officer or director, as
such, of Golden State Petroleum, the Owners or of any successor, either directly
or through Golden State Petroleum, the Owners, or any successor, under any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the Indenture Trustee and by
the acceptance of this Mortgage Note by the Holder hereof and as part of the
consideration for the issue of the Mortgage Notes.
A-2-8
SCHEDULE OF EXCHANGES FOR DEFINITIVE NOTES*****
The following exchanges of a part of this Global Note for Definitive
Notes have been made:
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Global Note following authorized officer of
Principal Amount of this Principal Amount of this such decrease (or Indenture Trustee or
Date of Exchange Global Note Global Note increase) Note Custodian
------------------------------------------------------------------------------------------------------------------------------------
--------
***** This should be included only if the Mortgage Note is issued in global
form.
A-2-9
ASSIGNMENT FORM
To assign this Mortgage Note, fill in the form below:
(I) or (we) assign and transfer this Mortgage Note to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________ agent to transfer this Mortgage
Note on the books of Golden State Petroleum, as agent for the Owners. The agent
may substitute another to act for him.
Your Signature:_________________________________________________________________
(Sign exactly as your name appears on the other side of this Mortgage Note.)
Date:______________________________________
Signature Guarantee:______________
EXHIBIT B
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER TO A QIB
United States Trust Company of New York,
as Indenture Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Department
Re: [Golden State Petroleum Transport Corporation ___% First
Preferred Notes Due _______] [Golden State Petroleum
Transport Corporation __% Senior First Preferred Notes
Due ___] (the "Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of ______
1, 1996 (the "Indenture") among Golden State Petro (IOM I-A) PLC (an "Owner"),
Golden State Petro (IOM I-B) PLC (an "Owner" and, collectively with Golden State
Petro (IOM I-A) PLC, the "Owners"), Golden State Petroleum Transport
Corporation, as agent for the Owners ("Golden State Petroleum") and United
States Trust Company of New York as trustee (the "Indenture Trustee").
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to $___ aggregate principal amount of
Transfer Restricted Notes which are held in the name of [name of transferor]
(the Transferor") to effect the transfer of such Transfer Restricted Notes in
exchange for an equivalent beneficial interest in the Global Note.
In connection with such request, and in respect to such
Transfer Restricted Notes, the transferor does hereby certify that such Transfer
Restricted Notes are being transferred in accordance with (i) the transfer
restrictions set forth in the Notes and (ii) Rule 144A under the United States
Securities Act of 1933, as amended ("Rule 144A"), to a transferee that the
Transferor reasonably believes is purchasing the Transfer Restricted Notes for
its own account or an account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
B-1
You, Golden State Petroleum and the Owners are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
__________________________________
[Name of Transferor]
By:_______________________________
Name:_____________________________
Title:____________________________
Date: _______________________
B-2
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER TO A NON-U.S. PERSON
United States Trust Company of New York,
as Indenture Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Department
Re: [Golden State Petroleum Transport Corporation ___% First
Preferred Notes Due _______] [Golden State Petroleum
Transport Corporation __% Senior First Preferred Notes
Due ___] (the "Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of ______
1, 1996 (the "Indenture") among Golden State Petro (IOM I-A) PLC (an "Owner"),
Golden State Petro (IOM I-B) PLC (an "Owner" and, collectively with Golden State
Petro (IOM I-A) PLC, the "Owners"), Golden State Petroleum Transport
Corporation, as agent for the Owners ("Golden State Petroleum") and United
States Trust Company of New York as trustee (the "Indenture Trustee").
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to $___ aggregate principal amount of
Transfer Restricted Notes which are held in the name of [name of transferor]
(the Transferor") to effect the transfer of such Transfer Restricted Notes in
exchange for an equivalent beneficial interest in the Global Note.
In connection with such request, the Transferor does hereby
certify that such Transfer Restricted Notes are being transferred in accordance
with (i) the transfer restrictions set forth in the Transfer Restricted Notes
and (ii) Regulation S ("Regulation S") under the United States Securities Act of
1933, as amended (the "Securities Act") and does hereby further certify that:
(1) the offer of the Transfer Restricted Notes was not made
to a person in the United States;
(2) the transaction was executed in, on or through the
facilities of a designated offshore securities market
and neither the Transferor nor any
B-3
person acting on its behalf knows that the transaction
was pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or
904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a Restricted Period
(as defined in Regulation S) and the provisions of Rule 903(c)(2) or (3) or Rule
904(c)(1) of Regulation S are applicable thereto, we confirm that such sale has
been made in accordance with the applicable provisions of Rule 903(c)(2) or (3)
or Rule 904(c)(l), as the case may be.
You, Golden State Petroleum and the Owners are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
__________________________________
[Name of Transferor]
By:____________________________
Name:__________________________
Title:_________________________
Date: ____________________________
B-4
FORM OF INVESTMENT LETTER FOR REGULATION S PURCHASERS
United States Trust Company of New York,
as Indenture Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Department
Re: [Golden State Petroleum Transport Corporation ___% First
Preferred Notes Due _______] [Golden State Petroleum
Transport Corporation __% Senior First Preferred Notes
Due ___] (the "Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of ______
1, 1996 (the "Indenture") among Golden State Petro (IOM I-A) PLC (an "Owner"),
Golden State Petro (IOM I-B) PLC (an "Owner" and, collectively with Golden State
Petro (IOM I-A) PLC, the "Owners"), Golden State Petroleum Transport
Corporation, as agent for the Owners ("Golden State Petroleum") and United
States Trust Company of New York as trustee (the "Indenture Trustee").
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
In connection with our proposed purchased of S aggregate principal
amount of the Transfer Restricted Notes which are held in certificated form in
the name of [name of transferor] (the "Transferor")] [through the beneficial
interest of [name of transferor] in the Global Note], we hereby certify that we
are (or we will hold such Transfer Restricted Notes on behalf of) a person
outside the United States to whom the Transfer Restricted Notes could be
transferred in accordance with Rule 904 of Regulation S promulgated under the
United States Securities Act of 1933, as amended.
B-5
You, Golden State Petroleum and the Owners are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
__________________________________
[Name of Purchaser]
By:_______________________________
Authorized Signature
Date:_____________________________
SCHEDULE I
SINKING FUND REDEMPTION AMOUNTS
AND FINAL PRINCIPAL PAYMENT
The table below provides the scheduled sinking fund redemption amounts and final
principal payments on the Term Notes assuming neither Vessel is a Total Loss and
neither of the Charters is terminated.
Sinking Fund Redemption Amounts and Final Principal Payment
(Dollars in Thousands)
--------------------------------------------------------------------------
Scheduled Scheduled
Payment Date Principal Payment Date Principal
------------ --------- ------------ ---------
EXHIBIT A
---------
[Name of Shipowner]
Shipowner
and
UNITED STATES TRUST COMPANY OF NEW YORK
Mortgagee
------------------
FIRST PREFERRED SHIP MORTGAGE
on the
m.t. "[Name of Vessel]"
------------------
[Date]
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS............................... 1
Section 1.01 Definitions.................................................... 1
ARTICLE II
MORTGAGE.................................. 1
Section 2.01 Grant of Mortgage.............................................. 1
Section 2.02 Obligations.................................................... 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES....................... 3
Section 3.01 Organization, Power and Status of the Shipowner................ 3
Section 3.02 Authorization; Enforceability; Execution and Delivery.......... 3
Section 3.03 No Conflicts; Laws and Consents; No Default.................... 4
Section 3.04 Governmental Approvals......................................... 4
Section 3.05 Litigation..................................................... 4
Section 3.06 Title to Vessel................................................ 4
Section 3.07 Priority of Mortgage........................................... 4
ARTICLE IV
COVENANTS................................. 4
Section 4.01 Performance of Agreements...................................... 5
Section 4.02 Insurance...................................................... 5
Section 4.03 Defense of Title............................................... 11
Section 4.04 Discharge of Liens............................................. 11
Section 4.05. Liens.......................................................... 11
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Page
----
Section 4.06 Use of Vessel.................................................. 11
Section 4.07 Notifications.................................................. 12
Section 4.08 Payment of Crew's Wages and Allotments......................... 13
Section 4.09 Charter of Vessel.............................................. 13
Section 4.10 Maintenance of Vessel.......................................... 13
Section 4.11 Statement of Classification Society............................ 14
Section 4.12 Surveys of Vessel.............................................. 14
Section 4.13 Access to Vessel............................................... 14
Section 4.14 Registration of Mortgage; Recordation of Mortgage.............. 14
Section 4.15 Notice of Mortgage............................................. 15
Section 4.16 Further Assurances............................................. 15
Section 4.17 Notice of Default.............................................. 16
ARTICLE V
EVENTS OF DEFAULT; REMEDIES................................... 16
Section 5.01 Events of Default.............................................. 16
Section 5.02 Remedies....................................................... 17
Section 5.03 Sale of the Vessel............................................. 19
Section 5.04 Mortgagee as Attorney-in Fact.................................. 19
Section 5.05 Appointment of Receiver........................................ 20
Section 5.06 Arrest or Detention of Vessel.................................. 20
Section 5.07 Defense of Suits............................................... 20
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Page
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Section 5.08 Cumulative Rights, Powers and Remedies......................... 20
Section 5.09 Application of Proceeds........................................ 21
Section 5.10 Mortgagee's Right to Remedy Defaults........................... 21
Section 5.11 Delegation of Powers........................................... 22
Section 5.12 Legal Actions.................................................. 22
Section 5.13 Mortgage Subject to Rights of Initial Charterer Under the
Initial Charter................................................ 22
ARTICLE VI
MISCELLANEOUS PROVISIONS............................... 22
Section 6.01 Performance by Initial Charterer or Charterer Under an
Acceptable Replacement Charter................................. 22
Section 6.02 Discharge of Mortgage.......................................... 23
Section 6.03 Governing Law.................................................. 23
Section 6.04 Severability................................................... 23
Section 6.05 Notices........................................................ 23
Section 6.06 Headings....................................................... 24
Section 6.07 General Interpretive Principles................................ 24
Section 6.08 Successors and Assigns......................................... 24
Section 6.09 Consent to Jurisdiction........................................ 24
Section 6.10 Payment........................................................ 25
Section 6.11 Recorded Amount................................................ 25
Section 6.12 No Waiver of Preferred Status.................................. 26
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Exhibit A BROKER'S LETTER OF UNDERTAKING
Schedule 1 Additional Defined Terms Used in the Mortgage
First Preferred Ship Mortgage, dated _____________ (as amended
or supplemented from time to time, the "Mortgage"), from [Name of Owner], a
public liability company organized under the laws of the Isle of Man whose
registered office is at 00-00 Xxxxx Xxxxxx, Xxxxxxx, Xxxx of Man (hereinafter
called "the Shipowner") to United States Trust Company of New York (the
"Mortgagee").
WHEREAS, the Shipowner is the owner of the whole of the motor
tanker "[Name of Vessel]" (the "Vessel") duly registered in the name of the
Shipowner under the laws and flag of Liberia on ______________, built in 199_,
having the following approximate dimensions and tonnages: length _____ meters,
breadth _____ meters, depth _____ meters, gross tonnage ______, net tonnage
_____, and more particularly described in the Certificate of Registration with
Official Number _____ and with International Code Signal _____ and home port of
Monrovia, Liberia;
WHEREAS, in order to secure the prompt and due payment to the
Mortgagee of the Obligations and any and all other sums which may be or become
due to the Mortgagee under or pursuant to the Indenture, this Mortgage and any
other Security Documents and also to secure the exact performance and observance
and compliance with all and any of the covenants and agreements and terms and
conditions contained in the Indenture, this Mortgage and in the other Security
Documents, the Shipowner has duly authorized the execution and delivery of this
Mortgage in favor of the Mortgagee under and pursuant to Chapter 3 of Title 22
of the Code of Laws of 1956, as at any time amended, of the laws of the Republic
of Liberia.
NOW, THEREFORE, in consideration of the premises and of the
covenants herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. Unless otherwise defined in Schedule
1 to this Mortgage, capitalized terms used in this Mortgage shall have the
meanings assigned to such terms in the Indenture.
ARTICLE II
MORTGAGE
Section 2.01 GRANT OF MORTGAGE. In consideration of the
premises and of other good and valuable consideration, the adequacy and receipt
whereof are hereby acknowledged, and in order to secure the payment of the
Obligations and the repayment of any costs of foreclosure or of retaking the
Vessel, and the payment of all such other amounts as may hereafter become
secured by this Mortgage in accordance with the terms hereof, and to secure the
performance and observance of and compliance with the covenants, terms and
conditions contained in this Mortgage, the Indenture, and the other Security
Documents to which the Shipowner is a party, the Shipowner has granted,
conveyed, pledged and mortgaged and does
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by these presents grant, convey, pledge and mortgage to and in favor of the
Mortgagee, its successors and assigns the whole of the Vessel, together with all
of the boilers, engines, machinery, masts, spars, rigging, boats, cables,
anchors, chains, tackle, apparel, furniture, fittings, freights and equipment
thereunto appertaining or belonging, whether now owned or hereafter acquired,
whether on board or not, and all additions, improvements and replacements
hereafter made in or to the Vessel (the term "Vessel", as used herein, shall
include the Vessel together with all of the foregoing and the Vessel's freights)
To Have And To Hold the same unto the Mortgagee, its successors and assigns,
forever upon the terms set forth in this Mortgage for the enforcement of the
payment of the Obligations, the payment of any costs of foreclosure or retaking
of the Vessel and all such other amounts as may hereafter become secured by this
Mortgage in accordance with the terms hereof and to secure the performance and
observance of and compliance with the covenants, terms and conditions contained
in this Mortgage and the Security Documents, it being agreed that if any amount
payable by the Shipowner under the Indenture is not paid on its due date
(whether formally demanded or not) the whole or the balance of the Obligations
and all other amounts payable under the Indenture and the Security Documents
shall forthwith on demand become payable; provided, however, and the conditions
of these presents are such that, if the Shipowner shall pay or cause to be paid
to the Mortgagee all of the Obligations as set forth in the Indenture and the
other Security Documents, and if the Shipowner shall pay all such other amounts
as may hereafter become secured by this Mortgage and all expenses which the
Mortgagee shall have paid or incurred to protect the security granted hereunder,
and if the Shipowner shall perform, observe and comply with all and singular of
the covenants, terms and conditions in this Mortgage, the Indenture and the
other Security Documents contained, expressed or implied, to be performed,
observed or complied with by and on the part of the Shipowner or its successors
or assigns, all without delay or fraud and according to the true intent and
meaning hereof and therefor, then these presents and the rights of the Mortgagee
under this Mortgage, the Indenture and the other Security Documents shall cease
and, in such event, the Mortgagee agrees by accepting this Mortgage to execute,
at the expense of the Shipowner, all such documents as the Shipowner may
reasonably require to discharge this Mortgage under the laws of the Republic of
Liberia; otherwise this Mortgage shall remain in full force and effect.
Section 2.02 OBLIGATIONS. (a) The Shipowner acknowledges that
pursuant to the Indenture it is jointly and severally liable with [Name of other
Owner] to the Mortgagee for the obligations of the Shipowner and [Name of other
Owner] under the Indenture and the Notes issued in the original principal amount
of __________________________ United States Dollars (US$___________). The
Shipowner further agrees to pay all other sums comprising the Obligations in
accordance with terms, conditions and provisions of the Indenture and in this
Mortgage and to perform, observe and comply with the covenants, terms and
obligations and conditions on its part to be performed, observed and complied
with contained or implied herein and in the Indenture and in the other Security
Documents.
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(b) The Shipowner shall also pay to the Mortgagee upon the
Mortgagee's first written demand all stamp duties, registration and/or recording
fees, charges for certificates, valuation fees, costs and expenses (including,
the reasonable fees and expenses of its attorneys) of any nature whatsoever
incurred by the Mortgagee in connection with the preparation, completion,
execution and registration of this Mortgage and all other claims, expenses,
costs, payments, disbursements, losses, damages or liabilities which may be
incurred by the Mortgagee by reason of the covenants and conditions contained
herein, in the Indenture or in the other Security Documents, together with
interest thereon as herein or therein provided, and confirms that such
obligations are secured by this Mortgage.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Shipowner hereby represents and warrants to the Mortgagee
as follows:
Section 3.01 ORGANIZATION, POWER AND STATUS OF THE SHIPOWNER.
The Shipowner (a) is a corporation duly formed, validly existing and in good
standing under the laws of the Isle of Man and (b) is duly authorized, to the
extent necessary, to do business in each jurisdiction where the character of its
properties or the nature of its activities makes such qualification necessary.
The Shipowner has all requisite corporate power and authority to own and operate
the property it purports to own and to carry on its business as now being
conducted and as proposed to be conducted in respect of the Vessel.
Section 3.02 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND
DELIVERY. (a) The Shipowner has all necessary corporate power and authority to
execute, deliver and perform under this Mortgage.
(b) All action on the part of the Shipowner that is required
for the authorization, execution, delivery and performance of this Mortgage has
been duly and effectively taken; and the execution, delivery and performance of
this Mortgage does not require the approval or consent of any Person except for
such consents and approvals as have been obtained on or prior to the date
hereof.
(c) This Mortgage has been duly executed and delivered by the
Shipowner. This Mortgage constitutes the legal, valid and binding obligation of
the Shipowner, enforceable against it in accordance with its terms, except as
such enforceability (i) may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights and remedies generally and (ii) is subject to general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
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Section 3.03 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT. (a)
Neither the execution, delivery and performance of this Mortgage nor the
consummation of any of the transactions contemplated hereby nor performance of
or compliance with the terms and conditions hereof (i) contravenes any
Requirement of Law applicable to the Shipowner or (ii) constitutes a default
under the Indenture or any Security Document.
(b) The Shipowner is in compliance with and not in default
under any and all Requirements of Law applicable to the Shipowner and all terms
and provisions of this Mortgage.
Section 3.04 GOVERNMENTAL APPROVALS. All Governmental
Approvals which are required to be obtained in the name of the Shipowner in
connection with the operation and maintenance of the Vessel and the execution,
delivery and performance by the Shipowner of this Mortgage have been obtained
and are in effect as of the date hereof.
Section 3.05 LITIGATION. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending against the Shipowner or, to the best of the Shipowner's knowledge,
threatened against the Shipowner or pending or threatened against any property
or other assets or rights of the Shipowner with respect to this Mortgage.
Section 3.06 TITLE TO VESSEL. The Shipowner is the sole and
lawful owner of the whole of the Vessel, free from all liens, security
interests, mortgages, charges or encumbrances (other than this Mortgage, the
Indenture and Permitted Liens). The Shipowner shall defend for the benefit of
the Mortgagee the title and possession of the Vessel and every part thereof
against the claims and demands of all Persons.
Section 3.07 PRIORITY OF MORTGAGE. The Shipowner is, by this
Mortgage and the recordation thereof, constituting in favor of the Mortgagee,
among other things, all the rights of a first preferred ship mortgage of the
Vessel to secure the due and punctual payment of all amounts due and to become
due to the Mortgagee pursuant to the terms and conditions of this Mortgage, the
Indenture, the other Security Documents and the documents contemplated hereby
and thereby and the payment of all commissions and fees, costs, charges,
expenses, expenditures and interest owing to the Mortgagee hereunder and
thereunder, and the performance and observance of and compliance with all the
covenants, terms, conditions and provisions of this Mortgage, the Indenture, the
other Security Documents and the documents contemplated hereby and thereby.
ARTICLE IV
COVENANTS
So long as any of the Obligations are outstanding, the
Shipowner covenants and agrees, subject to Section 6.01, with the Mortgagee as
follows:
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Section 4.01 PERFORMANCE OF AGREEMENTS. The Shipowner shall
keep, perform and observe the covenants, conditions and agreements in this
Mortgage and the other Security Documents contained, expressed or implied on its
part to be kept, performed and observed.
Section 4.02 INSURANCE. (a) The Shipowner, at its expense
(including payment of all premiums, costs and club calls, if any) shall effect
or cause to be effected the following insurances and keep the following in full
force and effect:
(i) hull and machinery insurance equal to the Total Loss
Payment. Such Hull and Machinery insurance shall include the "Institute
Pollution Hazard Clause" and the "Institute Liner Negligence and
Additional Perils Clause". If the Vessel is laid up in port for an
extended period, then, with the prior written consent of the Mortgagee,
the Shipowner may obtain in lieu of the hull and machinery insurance
referred to in this Section 4.02(a)(i) port risk insurance equal to the
Total Loss Payment. Such Port Risk insurance shall be effected on
Institute of London Underwriters "Institute Port Risk Clauses" or
American Institute "Port Risk Endorsement";
(ii) war risk hull and machinery insurance (including risks of
mines) equal to the Total Loss Payment. Such war risk insurance shall
be effected with a War Risks Association approved by the Mortgagee or
on the full Institute of London Underwriters "Institute War and Strikes
Clauses" or American Institute "Hull War Risks and Strikes Clauses";
and
(iii) protection and indemnity insurance in the name of the
Shipowner on a full entry basis with an International Group P&I Club,
which shall include freight, demurrage and defense coverage in an
unlimited amount and coverage in respect of pollution risks for a limit
of five hundred million dollars ($500,000,000) coverage for protection
and indemnity insurance on a full entry basis with an International
Group P&I Club. Such insurance shall include, but not be limited to,
coverage for injuries to or death of masters, mates and crew; full
(4/4ths) collision liabilities and pollution liabilities imposed by any
applicable Governmental Authority. Such insurance shall be unlimited as
per International Group P&I Club rules except for pollution
liabilities, which shall be limited to $500 million or, if less, the
maximum pollution limit offered by and through the P&I Clubs of the
International Group;
provided, however, that if the Vessel is subject to the Initial Charter or an
Acceptable Replacement Charter, the insurance requirements of the related
Initial Charter or Acceptable Replacement Charter will supersede the above
insurance requirements.
(b) All insurance taken out or effected in connection with the
Vessel pursuant to the provisions of Section 4.02(a) hereof shall be in a form
and upon terms acceptable to the Mortgagee and shall, without limitation, be
subject to the following:
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(i) all such insurance shall be taken out in the name of
the Shipowner with the Mortgagee's interest noted on the policies and
cover notes;
(ii) all such insurance shall be placed in the English or
American markets through first-class brokers and with first-class
underwriters, insurance companies, protection and indemnity
associations or protection and indemnity clubs. All insurance policies
or entries shall provide that they are payable in Dollars. All
insurance policies shall be valued policies and none shall provide for
a deductible amount in excess of Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx
Dollars (US$100,000) or such other amount as prudent shipowners of
vessels similar to the Vessel shall maintain. No insurance shall
exclude liability for negligence of the master, officers, crew or
pilots. Each policy or entry shall contain or be accompanied by a
waiver, as against the Mortgagee, of any and all premiums and calls for
which the Mortgagee might otherwise be or become liable as a loss payee
or otherwise;
(iii) each policy shall provide that it may not lapse, be
terminated, cancelled or materially modified without fourteen (14)
days' prior telex or telegraphic notice to the Mortgagee and any
assignee, except only such notice as war risk underwriters shall be
required to give pursuant to the automatic termination clause of
current war risk policies; and
(iv) each policy shall include a provision agreeing that no
breach of warranty or condition or want of due diligence on the part of
the Shipowner or any agent of the Shipowner shall defeat recovery of
any claim by the Mortgagee unless such provision shall conflict with
the available reinsurance arrangements of the issuers of such policy.
(c) Each insurance policy taken out pursuant to Sections
4.02(a)(i) and (ii) shall contain the following notice of assignment and loss
payable clause:
Notice of Assignment/Loss Payable Clause
United States Trust Company of New York, not in its
individual capacity but solely as Indenture Trustee, as
mortgagee (the "Mortgagee"), under an Indenture (the
"Indenture"), dated as of December __, 1996, among the
Mortgagee, [Name of Other Owner] ("___________"), [Name of
Owner] (the "Shipowner") and Golden State Petroleum Transport
Corporation ("Golden State Petroleum"), as agent for the
Shipowner and [Name of the Other Owner], and the Shipowner,
owner of the m.t. "_____________" (the "Vessel"), hereby give
notice that by an assignment contained in an Assignment of
Earnings and Insurances, dated as of __________, between the
Shipowner and the Mortgagee, the
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Shipowner assigned to the Mortgagee as mortgagee of the
Vessel, INTER ALIA, all of its right, title and interest
under, to and in all policies and contracts of insurance of
whatsoever nature and all entries with protection and
indemnity clubs or societies now or hereafter taken out in
respect of the Vessel, its rights, disbursements, profits or
otherwise.
All claims payable shall be subject to the following
conditions:
(i) Any claim payable up to an amount equal to the
Total Loss Payment of the Vessel in respect of an actual or
constructive or arranged or agreed or compromised total loss,
or loss in the event of the confiscation, compulsory
acquisition or requisition of the Vessel, for title or use, by
any Governmental Authority, pursuant to any present or future
law, proclamation, order, decree or otherwise, shall be
payable to the Mortgagee as mortgagee of the Vessel, provided
always that the written consent of the Mortgagee shall be
obtained prior to the arranged or agreed or compromised total
loss being agreed with the underwriters (insurers);
(ii) The Mortgagee shall be advised if any Hull War
Risks insurer cancels or gives notice of cancellation of any
insurance or entry at least fourteen (14) days before such
cancellation is to take effect; and
(iii) The Mortgagee shall be advised if any default
occurs in the payment of any Hull and Machinery premium or
call or failure to renew any such insurance or entry fourteen
(14) days prior to the date of renewal thereof.
Notwithstanding the foregoing, if there exists an Event of
Default under the First Preferred Ship Mortgage, dated
___________, on the Vessel given by the Shipowner in favor of
the Mortgagee and the brokers and/or underwriters (insurers)
have been so notified by the Mortgagee, all claims shall be
payable to the Mortgagee as mortgagee of the Vessel.
The underwriters (insurers) agree that the Mortgagee
shall be advised immediately of the variation or termination
of this policy (entry), and in the event of any failure by the
Shipowner to
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pay premiums (dues or Club calls) as and when due the
Mortgagee shall be given at least fourteen (14) days' prior
telegraphic or telex notice of the cancellation or material
alteration of this policy (entry).
The Mortgagee shall have no obligations whatsoever to
pay any premiums or costs (dues or Club calls), but shall have
the right to do so in the event of non-payment by the
Shipowner. The underwriters (insurers) shall promptly advise
the Mortgagee of any act of omission of which the Underwriters
(insurers) are aware that might void this policy (entry) or
make the same invalid or unenforceable in whole or in part.
(d) Each entry or insurance policy taken out pursuant to
Section 4.02(a)(iii) shall bear the following Endorsement:
Endorsement
United States Trust Company of New York, not in its
individual capacity but solely as Indenture Trustee, as
mortgagee (the "Mortgagee"), under an Indenture (the
"Indenture"), dated as of December __, 1996, among the
Mortgagee, [Name of Other Owner] ("___________"), [Name of
Owner] (the "Shipowner") and Golden State Petroleum Transport
Corporation ("Golden State Petroleum"), as agent for the
Shipowner and [Name of the Other Owner], and the Shipowner,
owner of the m.t. "_____________" (the "Vessel"), hereby give
notice that by an assignment contained in an Assignment of
Earnings and Insurances, dated as of _________, between the
Shipowner and the Mortgagee, the Shipowner assigned to the
Mortgagee as mortgagee of the Vessel all of its right, title
and interest under, to and in all policies and contracts of
insurance of whatsoever nature and all entries with protection
and indemnity clubs or societies now or hereafter taken out in
respect of the Vessel, its rights, disbursements, profits or
otherwise.
It is hereby noted that all claims shall be paid to the
Shipowner unless and until the Mortgagee shall have given
notice in writing that the Shipowner is in default under the
First Preferred Ship Mortgage, _____________, on the Vessel
given by the Shipowner in favor of the Mortgagee in which
event such claims shall be payable to the Mortgagee as
mortgagee of the Vessel. Any
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modification of the terms of this insurance or cancellation or
termination by reason of nonpayment of premiums, dues,
assessments, contributions or other amounts which may become
due shall not become effective against the interests of the
Mortgagee, its successors or assigns unless and until fourteen
(14) days' prior telegraphic or telex notice is given to the
Mortgagee, its successors or assigns of such modification,
cancellation or termination.
(e) Certified copies of all binders and cover notes or other
satisfactory written evidence showing that the required insurance of each type
has been placed, maintained or renewed and that the premiums thereon have been
paid shall be submitted to the Mortgagee on or before the date of this Mortgage
and subsequently pro forma policies shall be submitted for approval at least
seven (7) days before liability under any current or renewed insurance expires.
No change shall be made in any insurance without the prior written approval of
the Mortgagee. Certified copies of all policies, certificates of entry,
contracts of insurance, cover notes and renewals thereof shall be delivered to
and held by the Mortgagee, and the Shipowner shall furnish the Mortgagee with
the original of the policies, when and if requested by the Mortgagee. On the
Closing Date, on each date the Insurances are renewed as required by the terms
hereof and each time there is a significant change in the insurance coverage
carried on the Vessel, the Shipowner shall arrange for a detailed report signed
by independent marine insurance brokers acceptable to the Mortgagee, describing
the insurance coverage then carried and maintained on the Vessel (including the
types of risk covered by such policies, the amount insured thereunder and the
expiration date thereof) and stating that in the opinion of said insurance
brokers such insurance is adequate and reasonable for the protection of the
Mortgagee and that the Shipowner is in compliance with the insurance terms
hereof.
(f) The Mortgagee is hereby authorized, but not required, in
its own name and/or the Shipowner's name to demand, collect, give receipt for
and prosecute all necessary actions in the courts to recover any and all
insurance monies which may become due and payable to the Shipowner under any
insurance required or permitted hereunder.
(g) If the Shipowner shall at any time fail to pay or to cause
to be paid when due any insurance premiums, club calls or other costs related to
obtaining or maintaining the insurance required hereunder, or to obtain any
required insurance or to deliver to the Mortgagee all policies, certificates of
entry, contracts of insurance, binders and cover notes and all renewals thereof
as required by the provisions of this Mortgage, the Mortgagee may, but shall not
be required to, procure such insurances and/or pay unpaid premiums and other
costs, and the cost and expense thereof, with interest at the Default Rate,
shall be an indebtedness due from the Shipowner to the Mortgagee secured by this
Mortgage and shall be paid by the Shipowner promptly on demand.
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(h) The Shipowner shall cause each of its insurance brokers to
deliver to the Mortgagee its undertaking substantially in the form of the letter
attached hereto as Exhibit A and made a part hereof.
(i) The Shipowner shall not do any act or cause or permit
any act to be done whereby any insurance shall be or may be suspended, impaired
or defeated.
(j) The Shipowner agrees to do all such things whatsoever and
prepare, execute and deliver all such documents whatsoever to enable the
Mortgagee to collect and recover any monies which may become due in respect of
the policies of insurance and entries and for that purpose (but without
limitation) to permit the Mortgagee if necessary to xxx in the name of the
Shipowner.
(k) The Shipowner agrees not to employ the Vessel or suffer
the Vessel to be employed otherwise than in conformity with the terms of the
instruments of insurance aforesaid (including any warranties express or implied
therein) without first obtaining the consent to such employment of the insurers
and complying with such requirements as to extra premium or otherwise as the
insurers may prescribe.
(l) The proceeds of any Insurances or entries shall be
applied as follows:
(i) Until the occurrence of an Event of Default:
(A) Any claim under any such insurances (other
than in respect of a Total Loss) whether or
not such claim is under the terms of the
relevant loss payable clause payable
directly to the Shipowner, will be applied
by the Shipowner in making good the loss or
damage in respect of which it has been paid
to the Shipowner in reimbursement of money
expended by it for such purpose; and
(B) Any claim in respect of protection and
indemnity insurance shall be paid directly
to the person, firm or company to which the
liability covered by such insurance was
incurred or the Shipowner in reimbursement
of moneys expended by it in satisfaction of
such liability;
provided always that for as long as the Initial Charter in
respect of the Vessel remains in force, all payments other
than in respect of a Total Loss (which shall be made to the
Mortgagee) shall be made to the Initial Charterer.
(ii) Upon the occurrence of an Event of Default, subject as
provided above, any claim under any such insurance and entry shall be paid to
the Mortgagee, and will be
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applied by the Mortgagee pursuant to the terms of the Initial Charter unless the
Initial Charterer is in default thereunder in which event the Mortgagee shall
apply such proceeds against payment of the Obligations.
Section 4.03 DEFENSE OF TITLE. The Shipowner lawfully owns and
is lawfully possessed of the Vessel free from any Lien whatsoever except this
Mortgage and Permitted Liens and shall warrant and defend the title and
possession thereto and to every part thereof for the benefit of the Mortgagee
against the claims and demands of all persons whomsoever.
Section 4.04 DISCHARGE OF LIENS. The Shipowner shall pay and
discharge or cause to be paid and discharged when due and payable unless
contested in good faith from time to time all debts, damages and liabilities
whatsoever which may have given or may give rise to maritime or possessory Liens
on or claims enforceable against the Vessel and all taxes, assessments,
governmental charges, fines and penalties legally imposed on the Vessel or any
income or proceeds therefrom or on the Shipowner, the Earnings and in event of
arrest of the Vessel pursuant to legal process or in event of her detention in
exercise or purported exercise of any such Lien as aforesaid to procure the
release of the Vessel from such arrest or detention as soon as possible upon
receiving notice thereof but in any event within fifteen (15) days of receiving
such notice by providing bail or otherwise as the circumstances may require.
Section 4.05. LIENS. (a) Neither the Shipowner nor its agent
nor the master of the Vessel nor any charterer of the Vessel has or shall have
any right, power or authority to create, incur or permit to be placed or imposed
upon the property or any part thereof subject or intended to be subject to this
Mortgage, any Liens whatsoever without the prior written consent of the
Mortgagee, other than Permitted Liens. A properly certified copy of this
Mortgage shall be carried with the ship's papers on board the Vessel, shall be
exhibited to any person having business with the Vessel which might give rise to
any Lien other than Permitted Liens and shall be exhibited to any representative
of the Mortgagee on demand during normal business hours.
Section 4.06 USE OF VESSEL. The Shipowner shall not cause or
permit the Vessel to be operated in such a way as to jeopardize the safety of
the Vessel, its Insurances or in any manner contrary to law, shall not engage in
any unlawful trade or violate any applicable law, rule or regulation of any
Governmental Authority or any other jurisdiction in which the Vessel may operate
from time to time or which may otherwise be applicable to the Vessel or the
Shipowner or carry any cargo that shall expose the Vessel to penalty,
confiscation, forfeiture, capture or condemnation, shall not do or suffer or
permit to be done anything which can or may injuriously affect the registration
or enrollment of the Vessel under the laws and regulations of the Republic of
Liberia and shall at all times keep the Vessel duly documented thereunder.
(b) The Shipowner shall not employ the Vessel or suffer her
employment in any trade or business which is forbidden by international law or
is otherwise illicit or in carrying illicit or prohibited goods or otherwise use
the Vessel in any manner whatsoever which renders
-12-
her liable to condemnation or to destruction, seizure or confiscation and in
event of hostilities in any part of the world (whether war is declared or not)
not allow the Vessel to enter any zone which is declared a war zone unless the
Mortgagee shall have first given its consent thereto in writing and there shall
have been effected by the Shipowner and at its expense such special insurance
cover as the Mortgagee may require.
(c) The Shipowner shall not, during hostilities (whether or
not a state of war shall have been formally declared) between any two or more
nations or in which the United Nations Organization may be involved, or during
any civil war, employ or permit the Vessel to be employed in any manner in
carrying any goods that shall or may be declared to be contraband of war or that
shall or may render her liable to confiscation, seizure, detention or
destruction unless prior to such employment special war risks policies effected
with such underwriters as the Mortgagee may approve and in all respects to the
satisfaction of the Mortgagee shall have been effected, assigned and delivered
to the Mortgagee.
(d) Upon request, the Shipowner shall give to the Mortgagee
all information regarding the Vessel, her position and engagements in the
possession of or available to the Shipowner.
(e) The Shipowner shall comply with and satisfy all of the
material provisions of any applicable law, regulation, proclamation or order
concerning financial responsibility for liabilities imposed on the Shipowner or
the Vessel with respect to pollution by any state or nation or political
subdivision thereof, including, if applicable, the United States Federal Water
Pollution Control Act, OPA and the United States Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), as any of the foregoing may
at any time be amended, and shall maintain all certificates or other evidence of
financial responsibility as may be required by any such law, regulation,
proclamation or order with respect to the trade in which the Vessel is from time
to time engaged and the cargo carried by it and shall upon request, furnish the
Mortgagee with evidence that the Shipowner has acted in compliance with OPA and
CERCLA.
Section 4.07 NOTIFICATIONS. The Shipowner shall
immediately notify the Mortgagee of:
(a) any marine disaster involving the Vessel that has
occurred, or any serious damage suffered by the Vessel (such notice by
the Shipowner to be given within twenty-four (24) hours after the event
shall have come to its knowledge and shall furnish the Mortgagee with
full information regarding any loss of life, other accidents or damage
to the Vessel), and in such event the Mortgagee shall have the right to
have an independent survey of the damage to the Vessel at the
Shipowner's expense provided that the same shall not cause any undue
delay in respect of the operation of the Vessel, and if such survey be
requested, the Shipowner shall lend all needed assistance;
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(b) any occurrence in consequence whereof the Vessel has
become or is likely to become a Total Loss;
(c) any requirement or recommendation made by any insurer or
classification society or by any competent authority that is not
complied with accordingly and/or within the state time limit; and
(d) any complaint or libel filed against the Vessel, or any
levy against the Vessel, or the fact that the Vessel has been taken
into custody or detained by any proceedings in any court or tribunal or
by any government of any country or other authority, any arrest of the
Vessel or the exercise or purported exercise of any lien on the Vessel.
Section 4.08 PAYMENT OF CREW'S WAGES AND ALLOTMENTS. The
Shipowner shall promptly pay all tolls, dues and other outgoings whatsoever in
respect of the Vessel and, as and when the Mortgagee may so require, furnish
satisfactory evidence that the wages and allotment and insurance and pension
contributions of the Master and crew are being regularly paid and that all
deductions from crew's wages in respect of any tax liability are being properly
accounted for.
Section 4.09 CHARTER OF VESSEL. The Shipowner shall not,
without the prior written consent of the Mortgagee, charter the Vessel by demise
charter or by period, time or voyage charter for any period other than to the
Initial Charterer under the Initial Charter or any other charterer under an
Acceptable Replacement Charter. The Shipowner shall not modify, amend or
supplement the terms of the Initial Charter without the prior written consent of
the Mortgagee.
Section 4.10 MAINTENANCE OF VESSEL. The Shipowner shall at all
times and without cost or expense to the Mortgagee maintain and preserve, or
cause to be maintained and preserved, the Vessel, her equipment and machinery in
good running order and repair so that the Vessel shall be, in so far as due
diligence can make her so, tight, staunch, strong and well and sufficiently
tackled, apparelled, furnished, equipped and in every respect seaworthy and in
good operating condition as will entitle her to the highest classification of
The American Bureau of Shipping or such other classification society of like
standing agreeable to the Mortgagee. The Vessel shall, and the Shipowner
covenants that it shall, at all times comply strictly with all applicable laws,
treaties and conventions of the Republic of Liberia and rules and regulations
issued thereunder and shall have on board as and when required by such rules and
regulations valid certificates showing compliance therewith. The Shipowner shall
not make or permit to be made any substantial change in the structure, type or
speed of the Vessel or change in any of her rigs without first obtaining the
written approval of the Mortgagee. The Shipowner shall cause all repairs to
and/or replacements of any damaged worn or lost parts or equipment of the Vessel
be effected in such manner both as regards workmanship and quality of materials
so as not to diminish the value or class of the Vessel. The Shipowner shall
submit the Vessel to such
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periodical or other surveys as may be required for classification purposes and
shall if so required by the Mortgagee supply to the Mortgagee on request copies
of all surveys or reports issued in respect thereof.
Section 4.11 STATEMENT OF CLASSIFICATION SOCIETY. The
Shipowner shall furnish to the Mortgagee annually from the date hereof a
certificate by The American Bureau of Shipping or such other classification
society acceptable to the Mortgagee that such classification is maintained in
the highest category for ships of the same type as the Vessel free of
recommendations and notations which have not been complied with in accordance
with their terms and to furnish the Mortgagee from time to time and at any time
upon demand with all such information and copies of all such documents as the
Mortgagee may require concerning the classification of the Vessel.
Section 4.12 SURVEYS OF VESSEL. The Shipowner shall submit the
Vessel or cause the Vessel to be submitted regularly to such periodical or other
surveys as may be required for classification purposes and if so required supply
and cause to be supplied to the Mortgagee copies of all survey reports issued in
respect thereof.
Section 4.13 ACCESS TO VESSEL. The Shipowner shall use all
reasonable endeavors to afford the Mortgagee and such Persons as the Mortgagee
shall from time to time appoint for that purpose full and complete access to the
Vessel at any time, on reasonable notice and in a manner which shall not
interfere with the Vessel's trading requirements to view the state and condition
thereof and her cargo and papers and to ascertain whether the Vessel is being
properly repaired and maintained, and if default shall be made in keeping her in
such good state of repair and in such working order and condition as herein
mentioned (without prejudice however to any of the Mortgagee's rights under this
Mortgage) the Mortgagee may (but shall not be obligated to) effect such repairs
as shall in its opinion be necessary, and the Shipowner shall on demand repay to
the Mortgagee every sum of money expended for the above purpose with interest at
the Default Rate.
Section 4.14 REGISTRATION OF MORTGAGE; RECORDATION OF
MORTGAGE. (a) Unless required to do so by the Initial Charter, the Shipowner
shall not change the flag or port of documentation of the Vessel or through any
action or inaction cause the registration of the Vessel under the laws of the
Republic of Liberia to be void or voidable or to lapse;
(b) The Shipowner shall cause this Mortgage to be recorded
with the Deputy Commissioner for Maritime Affairs of the Republic of Liberia as
prescribed by Chapter 3 of Title 22 of the Liberian Code of Laws of 1956 as
amended and otherwise comply with and satisfy all the requirements and
formalities established by the said Liberian Code of Laws and any other
pertinent legislation of the Republic of Liberia to perfect this Mortgage as a
valid and enforceable first and preferred Lien upon the Vessel, subject only to
Permitted Liens, and shall
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furnish to the Mortgagee from time to time such evidence to the Mortgagee's
satisfaction with respect to the Shipowner's compliance with the provisions of
this Section.
Section 4.15 NOTICE OF MORTGAGE. (a) The Shipowner shall at
all times carry on board the Vessel a duly certified copy of this Mortgage and
any assignment thereof (which shall form a part of the Vessel's papers) and
cause the same to be shown to any person having business with the Vessel which
might create or imply any commitment or encumbrance whatsoever on the Vessel and
place and maintain in a frame in a conspicuous place in the navigation room and
in the cabin of the Master of the Vessel a printed notice such that the printed
area covers a space not less than six inches wide by nine inches high in the
following form:
"NOTICE OF FIRST MORTGAGE"
"This Vessel is owned by [Name of Owner] and is
subject to a First Preferred Mortgage in favor of
United States Trust Company of New York, as
mortgagee. Under the terms of the Mortgage, neither
the Shipowner nor any charterer nor the master of
this Vessel nor any other person has any power,
right or authority whatever to create, incur or
permit to be imposed on this Vessel any lien or
encumbrance except for Master's and crew's wages for
not more than three (3) months and salvage."
(b) Notwithstanding the requirement for the Shipowner to
maintain the Notice of Mortgage described in Section 4.15(a), so long as the
Initial Charter or Acceptable Replacement Charter is in effect, the Shipowner
shall maintain the Notice of First Mortgage described in Clause 14 of the
Initial Charter or the Notice of First Preferred Mortgage described in the
Acceptable Replacement Charter, as the case may be.
Section 4.16 FURTHER ASSURANCES. (a) The Shipowner shall pay
to the Mortgagee on demand on a full indemnity basis all moneys whatsoever which
the Mortgagee shall or may expend, be put to or become liable for in or about
the protection maintenance or enforcement of the security created by this
Mortgage and the other Security Documents or in or about the exercise by the
Mortgagee of any of the powers vested in the Mortgagee hereunder or thereunder
including any and all reasonable costs, charges, legal fees and expenses of the
Mortgagee and shall pay interest thereon at the Default Rate until the date of
repayment by the Shipowner both before and after judgment.
(b) The Shipowner shall do and permit to be done each and
every act or thing whatsoever which the Mortgagee may require to be done for the
purpose of enforcing the Mortgagee's rights hereunder and to allow the Mortgagee
to use the Shipowner's name as may be required for that purpose.
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Section 4.17 NOTICE OF DEFAULT. Promptly after learning of the
occurrence or existence of an Event of Default or an event which but for notice
or lapse of time or both would constitute an Event of Default, the Shipowner
shall so notify the Mortgagee, which notice shall set forth in reasonable detail
the circumstances surrounding such Event of Default or event and shall specify
what actions the Shipowner intends to take to cure such Event of Default or such
event.
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
Section 5.01 EVENTS OF DEFAULT. The following shall
constitute Events of Default hereunder:
(a) Default in the payment of any sums payable under the Mortgage
or the Indenture within two (2) Business Days after such
amount is due;
(b) Default by the Shipowner in the due observance or performance
of any covenant described in Sections 4.02, 4.03, 4.09 and
4.14;
(c) Default by the Shipowner in the due observance or performance
of any covenant other than those described in (b) above which
default shall continue for a period thirty (30) days after
written notice has been given to the Shipowner;
(d) The Vessel is deemed a Total Loss and the insurance proceeds
thereof have not been received by the Mortgagee within
ninety (90) days after the date on which the Vessel was
deemed a Total Loss; provided, however, if the Vessel is
under charter to the Initial Charterer pursuant to the
Initial Charter or to a charterer under an Acceptable
Replacement Charter, such an event shall be an Event of
Default under this Mortgage if the Mortgagee has not
received the amounts payable by the Initial Charterer or
charterer, as the case may be, in the event of a Total Loss
pursuant to the Initial Charter or an Acceptable Replacement
Charter within five (5) business days of the date on which
such amounts are due pursuant to the Initial Charter or
Acceptable Replacement Charter, as the case may be;
(e) The Shipowner shall abandon the Vessel;
(f) This Mortgage or any material provision hereof shall be deemed
invalidated in whole or in part by any present or future law
of the Republic of Liberia or decision of any competent court;
(g) The occurrence of an Indenture Event of Default.
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Section 5.02 REMEDIES. In the event any one or more Events of
Default shall have occurred and be continuing, then, in each and every such case
the Mortgagee, subject to the rights of the Initial Charterer or the charterer
under an Acceptable Replacement Charter, shall have the right to:
(a) declare immediately due and payable all of the Obligations (in
which case all of the same shall be immediately due), and
bring suit at law, in equity or in admiralty, as it may be
advised, to recover judgment for the Obligations and collect
the same out of any and all property of the Shipowner whether
covered by the Mortgage or otherwise;
(b) exercise all of the rights and remedies in foreclosure and
otherwise given to mortgagees by the provisions of applicable
law;
(c) take and enter into possession of the Vessel, at any time,
wherever the same may be, without court decision or other
legal process and without being responsible for loss or damage
and the Mortgagee may, without being responsible for loss or
damage, hold, lay-up, lease, charter, operate or otherwise use
such Vessel for such time and upon such terms as it may deem
to be for its best advantage, and demand, collect and retain
all hire, freights, earnings, issues, revenues, income,
profits, return premiums, salvage awards or recoveries,
recoveries in general average, and all other sums due or to
become due in respect of such Vessel or in respect of any
insurance thereon from any person whomsoever, accounting only
for the net profits, if any, arising from such use of the
Vessel and charging upon all receipts from use of the Vessel
or from the sale thereof by court proceedings or by private
sale all costs, expenses, charges, damages or losses by reason
of such use, and if at any time the Mortgagee avails itself of
the right given to it to take the Vessel: (i) the Mortgagee
shall have the right to dock the Vessel for a reasonable time
at any dock, pier or other premises of the Shipowner without
charge, or to dock her at any other place at the cost and
expense of the Shipowner; and (ii) the Mortgagee shall have
the right to require the Shipowner to deliver, and the
Shipowner shall on demand, at its own cost and expense,
deliver to the Mortgagee the Vessel as demanded; and (iii) the
Shipowner shall irrevocably instruct the master of the Vessel
so long as the Mortgage is outstanding to deliver the Vessel
to the Mortgagee as demanded;
(d) sell the Vessel or any share therein with or without the
benefit of any charter party or other engagement by public
auction or private contract without legal process at any place
in the world and upon such terms as the Mortgagee in its
absolute discretion may determine with power to postpone any
such sale and without being answerable for any loss occasioned
by such sale or resulting from the postponement thereof and at
any such public auction the Mortgagee may
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become the purchaser and shall have the right to set off the
purchase price against the Obligations;
(e) to require that all policies, contracts and other records
relating to the Insurance (including details of and
correspondence concerning outstanding claims) be forthwith
delivered to such brokers as the Mortgagee may nominate;
(f) to collect, recover, compromise and give a good discharge for
all claims then outstanding or thereafter arising under any of
the Insurance and to take over or institute (if necessary
using the name of the Shipowner) all such proceedings in
connection therewith as the Mortgagee in its absolute
discretion thinks fit and to permit the brokers through whom
collection or recovery is effected to charge and retain the
usual brokerage therefor;
(g) to discharge, compound, release or compromise claims in
respect of the Vessel which have given or may give rise to any
charge or Lien on the Vessel or which are or may be
enforceable by proceedings against the Vessel under the laws
of all countries to whose jurisdiction the Vessel may from
time to time become subject;
(h) pending sale of the Vessel to remove the Vessel or to require
the Vessel to be removed from any place where she may be or be
lying to any port, harbor, dock or other location for the
purposes of the Vessel docking, laying up, repair, management,
employment, maintenance, or sale or to preserve or maintain
the Mortgagee's security in the Vessel in such manner as the
Mortgagee may in its complete discretion deem necessary;
(i) to discharge, store, load, tranship and otherwise handle any
cargo for the time being on board the Vessel without liability
to any third party with regard thereto;
(j) pending sale of the Vessel to manage, insure, maintain and
repair the Vessel and to hold, lease, charter, operate,
employ, lay up or otherwise use the Vessel in such manner and
for such period as the Mortgagee in its absolute discretion
deems expedient accounting only for the net profits (if any)
of such use and for the purposes aforesaid the Mortgagee shall
be entitled to do all acts and things incidental or conducive
thereto and in particular to enter into such arrangements
respecting the Vessel, her insurance, management, maintenance,
repair, classification and employment and generally to do and
cause to be done all such acts and things whatsoever and to
make all such arrangements whatsoever in respect of the Vessel
or the working of the same in all respects as if the Mortgagee
were the absolute and sole owner of the Vessel and without
being responsible for any loss and damage thereby incurred;
and
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(k) to recover from the Shipowner on demand all reasonable
expenses, payments, disbursements, costs, losses and damages
as may be incurred by the Mortgagee whether the Mortgagee be
in possession of the Vessel or not or in exercise by the
Mortgagee of any of the powers herein contained together with
interest thereon at the Default Rate and such expenses,
payments, disbursements, costs, losses and damages together
with the said interest thereon shall, until paid by the
Shipowner to the Mortgagee, be secured on the Vessel by this
Mortgage.
Section 5.03 SALE OF THE VESSEL. (a) A sale of the Vessel made
in pursuance of this Mortgage whether under the power of sale hereby granted or
any judicial proceedings shall operate to divest all right, title and interest
of any nature whatsoever of the Shipowner herein and thereto and shall bar the
Shipowner, its successors and assigns and all persons claiming by, through or
under them (subject, however, to the rights of the Initial Charterer or
charterer under an Acceptable Replacement Charterer) provided such sale is by
auction and that nothing herein shall be deemed to derogate from the Shipowner's
duty to the Mortgagee. Upon any such sale, the purchaser shall not be bound to
see or inquire whether the Mortgagee's power of sale has risen in the manner
provided by the Mortgage and the sale shall be within the power of the Mortgagee
and the receipt of the Mortgagee for the purchase money shall effectively
discharge the purchaser who shall not be concerned with the manner of
application of the proceeds of sale or be in any way answerable or otherwise
liable therefor. The Mortgagee may bid for and purchase the Vessel and upon
compliance with the terms of sale may hold, retain and dispose of the Vessel
without further accountability therefor.
(b) The Shipowner hereby irrevocably appoints the Mortgagee
and its assigns as its true and lawful attorney with full power to act alone and
with full power of substitution until the due discharge of this Mortgage in
accordance with the laws of the Republic of Liberia to make all necessary
transfers of the Vessel sold pursuant to Section 5.02, including, without
limitation, executing and delivering all instruments of assignment and transfer
or quitclaim as the Mortgagee may require and the Shipowner hereby does ratify
and confirm all that its said attorneys shall lawfully do by virtue hereof.
Nevertheless, the Shipowner shall if so requested by the Mortgagee ratify and
confirm any such sale by executing and delivering to the purchaser or purchasers
of the Vessel such proper bills of sale, conveyances, instruments of assignment
and transfer or quitclaim and releases as may be designated in such request.
Section 5.04 MORTGAGEE AS ATTORNEY-IN FACT. The Mortgagee is
hereby appointed attorney-in-fact of the Shipowner and upon the Obligations
becoming due and payable in the name of the Shipowner to demand, collect,
receive, compromise and xxx for so far as may be permitted by law all freights,
hire, earnings, issues, revenues, income and profits of the Vessel and all
amounts due from underwriters under any insurance thereon as payment of losses
or as return premiums or otherwise salvage awards and recoveries in general
average or otherwise and all other sums due or to become due upon the
Obligations becoming due and payable in respect of the Vessel or in respect of
any insurance thereon from any person whomsoever and to make
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and give and execute in the name of the Shipowner acquittance, receipts,
releases or other discharges for the same whether under seal or otherwise and to
endorse and accept in the name of the Shipowner all checks, notes, drafts,
warrants, agreements and all other instruments in writing with respect to the
foregoing.
Section 5.05 APPOINTMENT OF RECEIVER. Whenever any right to
enter and take possession of the Vessel accrues to the Mortgagee, the Mortgagee
may require the Shipowner to deliver and the Shipowner shall on demand at its
own cost and expense deliver to the Mortgagee the Vessel as demanded. If any
legal proceedings shall be taken to enforce any right under this Mortgage, the
Mortgagee shall be entitled as a matter of right to the appointment of a
receiver of the Vessel and the freights, hire, earnings, issues, revenues,
income and profits due or to become due and arising from the operation thereof.
Section 5.06 ARREST OR DETENTION OF VESSEL. In the event that
the Vessel shall be arrested or detained by any marshal or other officer of any
court of law, equity or admiralty jurisdiction in any country or nation of the
world or by any government or other authority and shall not be released from
arrest or detention within fifteen (15) days from the date of arrest or
detention, the Shipowner hereby authorizes and empowers the Mortgagee, its
successors or assigns, to apply for and receive possession of or to take
possession of the Vessel with all the rights and powers that the Shipowner or
its successors or assigns may have, possess and exercise in any such event, and
this power of attorney shall be irrevocable and may be exercised not only by the
Mortgagee but also by an assignee or appointee of the Mortgagee with full power
of substitution to the same extent and effect as if such assignee or appointee
has been named by express designation.
Section 5.07 DEFENSE OF SUITS. The Shipowner also authorizes
and empowers the Mortgagee, and its successors, assigns and appointees, to
appear in the name of the Shipowner, and its successors and assigns, in any
court of any country or nation of the world where a suit is pending against the
Vessel because of or on account of any alleged Lien against the Vessel from
which the Vessel has not been released and to take such proceedings and do such
things as to them or any of them may seem proper toward the defense of such suit
and the discharge of such Lien, and all monies expended by them or any of them
for the purpose of such defense and/or discharge shall be a debt due from the
Shipowner, and its successors and assigns, to the Mortgagee, and its successors
and assigns, and payment thereof together with interest thereon at the Default
Rate (to the extent permitted by law) from time to time in effect shall be
secured by the Lien of this Mortgage in like manner and extent as if the amount
and description thereof were written herein.
Section 5.08 CUMULATIVE RIGHTS, POWERS AND REMEDIES. (a) Each
and every right, power and remedy herein given to the Mortgagee shall be
cumulative and shall be in addition to every other right, power and remedy
herein given or now or hereafter existing at law, in equity, admiralty or by
statute and each and every power and remedy whether herein
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given or otherwise existing may be exercised from time to time and as often and
in such order as may be deemed expedient by the Mortgagee, and the exercise or
the beginning of the exercise of any right, power or remedy shall not be
construed to be a waiver of the right to exercise at the same time or thereafter
any other power or remedy.
(b) No delay or omission of the Mortgagee to exercise any
right or power vested in it under the Security Documents or any of them shall
impair such right or power or be construed as a waiver of or as acquiescence in
any default by the Shipowner, nor shall the acceptance by the Mortgagee of any
security or any payment on account of the Obligations, although made after
default, be deemed a waiver of any right arising out of any future default or of
any past default, and in the event of the Mortgagee at any time agreeing to
waive any such right or power such waiver shall be revocable by the Mortgagee at
any time and the right or power shall henceforth be again exercisable as though
there had been no such waiver.
(c) In the event the Mortgagee shall have proceeded to enforce
any right or pursue any power under this Mortgage by foreclosure, entry or
otherwise and such proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Mortgagee, then and in
every such case the Shipowner and the Mortgagee shall be restored to their
former positions and rights hereunder with respect to the property subject or
intended to be subject to this Mortgage and all rights, remedies and powers of
the Mortgagee shall continue as if no such proceedings had been taken.
Section 5.09 APPLICATION OF PROCEEDS. The proceeds of any sale
made either under the power of sale hereby granted to the Mortgagee or under a
judgment or decree in any judicial proceeding for the foreclosure of this
Mortgage or for the enforcement of any remedy granted to the Mortgagee
hereunder, or any net earnings arising from the management, charter or other use
of the Vessel by the Mortgagee under any of the powers herein reserved, any
amounts on deposit to the credit of the Shipowner or the Mortgagee from earnings
of the Vessel as provided herein and any other moneys received by the Mortgagee
pursuant to the terms of this Mortgage, the application of which is not
elsewhere herein specifically provided for, shall be applied pursuant to the
terms of the Indenture.
Section 5.10 MORTGAGEE'S RIGHT TO REMEDY DEFAULTS. If the
Shipowner shall default in the performance or observance of any of the covenants
in this Mortgage on its part to be performed or observed, the Mortgagee may in
its discretion do any act or make any expenditures necessary to remedy such
default, and the Shipowner shall promptly reimburse the Mortgagee, with interest
at the Default Rate from time to time in effect, for any and all expenditures so
made or incurred and until the Shipowner has so reimbursed the Mortgagee for
such expenditures, the amount thereof shall be a debt due from the Shipowner to
the Mortgagee and payment thereof shall be secured by the Lien of this Mortgage
in like manner and extent as if the amount and description thereof were written
herein, but the Mortgagee, although privileged to do so, shall be under no
obligation to the Shipowner to make any such expenditures
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and the making thereof shall not relieve the Shipowner of any default in that or
any other respect. The Shipowner also shall reimburse the Mortgagee promptly
with interest at the rates referred to above for any and all advances and
expenses made or incurred by the Mortgagee at any time in taking the Vessel or
otherwise protecting its rights hereunder and for any and all damages sustained
by the Mortgagee from or by reason of any default or defaults of the Shipowner.
Section 5.11 DELEGATION OF POWERS. The Mortgagee may delegate
to any person or persons all or any of the trusts, powers or discretions vested
in it pursuant to this Mortgage and any such delegations may be made upon such
terms and conditions and subject to such regulations (including power to
sub-delegate) as the Mortgagee may in its absolute discretion deem appropriate.
Section 5.12 LEGAL ACTIONS. In addition to the other
provisions hereof for enforcement of the rights of the Mortgagee under this
Mortgage, the Mortgagee may, at its option, in the event of any default by the
Shipowner, bring an action, suit or other proceeding IN REM against the Vessel
to foreclose this Mortgage and sell the Vessel in any court in the Republic of
Liberia or any other country in which the Vessel may be found; or an action,
suit or other proceeding IN PERSONAM against the Shipowner or any other person
obligated under the Security Documents to recover payment of any amount owing by
the Shipowner or such other person and/or to foreclose this Mortgage and sell
the Vessel in any country in which the Vessel or the Shipowner or any person so
obligated may be found.
Section 5.13 MORTGAGE SUBJECT TO RIGHTS OF INITIAL CHARTERER
UNDER THE INITIAL CHARTER. So long as the Initial Charter is in effect, the
rights of the Mortgagee set forth in this Article V are and shall be subject to
the rights of the Initial Charterer under the Initial Charter. So long as the
Initial Charterer or a replacement charterer under an Acceptable Replacement
Charter shall not be in default under and pursuant to the terms of the Initial
Charter or the terms of the Acceptable Replacement Charter, as the case may be,
the Initial Charterer or replacement charterer shall be entitled to quiet
enjoyment of the Vessel.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 PERFORMANCE BY INITIAL CHARTERER OR CHARTERER
UNDER AN ACCEPTABLE REPLACEMENT CHARTER. (a) It is hereby agreed by the parties
hereto that, for the duration of the Initial Charter, when the Initial
Charterer, or any charterer under an Acceptable Replacement Charter, performs
and discharges its obligations under the Initial Charter respecting the Vessel,
such performance of the said obligations by the Initial Charterer or by such
charterer shall be deemed to be proper and due performance of the same
obligations of the Shipowner under this Mortgage, the Assignment of Earnings and
Insurances and other Security Documents, notwithstanding that the extent or
manner of performance of the Shipowner's obligations may
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differ from that of the Initial Charterer under the Initial Charter or of the
charterer under an Acceptable Replacement Charter.
(b) So long as the Initial Charter is in effect, to the extent
the Shipowner's approval under the Initial Charter is not to be unreasonably
withheld, the approval by the Mortgagee under the corresponding provisions of
this Mortgage also shall not be unreasonably withheld.
(c) So long as the Initial Charter is in effect, where any
obligation with respect to the Vessel is undertaken by the Shipowner under this
Mortgage or any other of the Security Documents but such obligation is not
undertaken by the Initial Charterer under the Initial Charter, then the
Shipowner shall not be treated as in default under this Mortgage if such
obligation cannot be performed by virtue of the Initial Charter.
(d) The insurance coverage required under an Acceptable
Replacement Charter or maintained by the Shipowner or charterer in connection
with any other charter entered into after the termination of the related Initial
Charter must be sufficient to maintain the credit rating of the Mortgage Notes
by the Rating Agencies at least at the rating applicable to the Mortgage Notes
immediately prior to the effectiveness of such Acceptable Replacement Charter or
other charter.
Section 6.02 DISCHARGE OF MORTGAGE. The Mortgagee agrees that
upon payment of the Obligations it shall at the expense of the Shipowner
discharge this Mortgage and transfer or release to the Shipowner all insurance
policies and certificates of entry relating to the Vessel freed and discharged
from the provisions herein contained.
Section 6.03 GOVERNING LAW. THIS MORTGAGE SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE REPUBLIC OF LIBERIA AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 6.04 SEVERABILITY. If any provision of this Mortgage
is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. The invalidity of any one or more phrases, sentences,
clauses or Sections of this Mortgage, shall not affect the remaining portions of
this Mortgage, or any part thereof.
Section 6.05 NOTICES. All demands, notices and
communications hereunder shall be in writing, personally delivered or mailed by
certified mail-return receipt requested, and shall
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be deemed to have been duly given upon receipt (a) in the case of the Mortgagee,
at the following address: 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (b) in
the case of the Shipowner, at the following address: 00-00 Xxxxx Xxxxxx,
Xxxxxxx, Xxxx xx Xxx, Xxxxxxx Isles, or at other such address as shall be
designated by such party in a written notice to the other parties.
Section 6.06 HEADINGS. The captions or headings in this
Mortgage are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Mortgage.
Section 6.07 GENERAL INTERPRETIVE PRINCIPLES. For purposes of
this Mortgage except as otherwise expressly provided or unless the context
otherwise requires:
(a) the defined terms in this Mortgage shall include the
plural as well as the singular, and the use of any gender herein shall be deemed
to include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Mortgage;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other
words of similar import refer to this Mortgage as a whole and not to any
particular provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 6.08 SUCCESSORS AND ASSIGNS. This Mortgage shall inure
to the benefit of and be binding upon the Shipowner and the Mortgagee and their
respective successors and assigns.
Section 6.09 CONSENT TO JURISDICTION. Any legal suit, action
or proceeding against the Shipowner arising out of or relating to this Mortgage,
the Indenture or any other Security Document, or any transaction contemplated
hereby or thereby, may be instituted in any federal or state court in The City
of New York, State of New York and the Shipowner hereby waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
-25-
action or proceeding, and the Shipowner hereby irrevocably submits to the
jurisdiction of any such court in any such suit, action or proceeding. The
Shipowner hereby waives, to the fullest extent permitted by applicable law, any
defense which it now or hereafter have based upon lack of personal jurisdiction
or venue or FORUM NON CONVENIENS. The Shipowner hereby irrevocably appoints and
designates CT Corporation System, having an address at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx, its true and lawful attorney-in-fact and duly authorized agent for the
limited purpose of accepting service of legal process and the Shipowner agrees
that service of process upon such party shall constitute personal service of
such process on the Shipowner. The Shipowner shall maintain the designation and
appointment of such authorized agent until all amounts payable under this
Mortgage, the Indenture and the other Security Documents shall have been paid in
full. If such agent shall cease to so act, the Shipowner shall immediately
designate and appoint another such agent satisfactory to the Mortgagee and shall
promptly deliver to the Mortgagee evidence in writing of such other agent's
acceptance of such appointment.
Section 6.10 PAYMENT. All monies payable by the Shipowner to
the Mortgagee shall be paid in Dollars without deduction for or on account of
any present or future taxes or imposts whatsoever levied or assessed by or
within any state or nation or any political subdivision or taxing authority
thereof or therein and the Shipowner shall indemnify the Mortgagee against all
such taxes or imposts. The Shipowner shall, subject to the prior written
approval of the Mortgagee (such approval not to be unreasonably withheld), be
entitled to take action in the name of the Mortgagee at the Shipowner's expense
against any taxing authority in respect of any withholding or other taxes for
which the Shipowner have indemnified the Mortgagee, and the Mortgagee agrees to
reasonably cooperate with the Shipowner in taking such action. If as a result of
any such action any moneys are received that are attributable to such
indemnified taxes (including any interest thereon paid by such taxing authority)
the same shall be recovered by the Shipowner.
Section 6.11 RECORDED AMOUNT. For the purposes of the
recording of this First Preferred Ship Mortgage as required by Chapter 3 of
Title 22 (Maritime Law) of the Liberian Code of Laws of 1956, as amended, the
total amount of this Mortgage is __________________________ United States
Dollars (US$__________), and interest and the performance of the Mortgage
covenants; the maturity date is the ___________, and the discharge amount is the
same as the total amount. It is not intended that this Mortgage shall include
property other than the Vessel, and it shall not include property other than the
Vessel as the term "vessel" is used in Subsection (2) of Section 106 of the
Title 22 of the Liberian Code of Laws of 1956, as amended. Notwithstanding the
foregoing, for property other than the Vessel, if any should be determined to be
covered by this Mortgage, the discharge amount is zero point zero one percent
(0.01%) of the total amount.
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Section 6.12 NO WAIVER OF PREFERRED STATUS. No provision of
this Mortgage shall be deemed to be a stipulation that the Mortgagee waives the
preferred status of this Mortgage given by Title 22 (Maritime Law) of the
Liberian Code of Laws of 1956, as amended. Any provision of this Mortgage which
would otherwise constitute such a stipulation, to such extent, shall have no
force or effect.
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IN WITNESS WHEREOF the Shipowner has signed this Mortgage on
the day and year first before written.
[NAME OF OWNER]
By:_______________________________________
Name:_____________________________________
Title:____________________________________
ACKNOWLEDGEMENT
---------------
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On this ____ day of ___________, before me personally came
_____________ to me known, and known to me to be the person who executed the
foregoing instrument, who being by me duly sworn, did depose and say that he
resides at
that he is the _______________ of _____________ the corporation described
in, and which executed the foregoing instrument; that it was so affixed by order
of the Board of Directors of said corporation and that he signed his name
thereto by like order.
EXHIBIT A
BROKER'S LETTER OF UNDERTAKING
(date)
Re: [Name of Owner], Owner of m.t. _____________ (the
"Vessel")
We confirm that we have effected insurances for the account of
the above Owner as set out in Appendix "A" attached hereto.
Pursuant to instructions received from the Owner, and in
consideration of your approving our appointment as Brokers in connection with
the insurances covered by this letter, we hereby undertake:
1. to hold the Insurance Slips or Contracts, the
Policies when issued, and any renewals of such
Policies or new Policies or any Policies substituted
(with your consent) therefor and the benefit of the
insurance thereunder to your order in accordance with
the terms of the Notice of Assignment and Loss
Payable Clause set out in Appendix "B" attached
hereto; and
2. to have endorsed on each and every Policy as and when
the same is issued a copy of the Notice of Assignment
and Loss Payable Clause in the form of Appendix "B"
attached hereto dated and signed by the Shipowner and
acknowledged by Underwriters in accordance with
market practice; and
3. to advise you immediately of any material changes
which may be made to the terms of the insurances or
if we cease to be Brokers for purposes of said
insurances; and
4. to advise you, not later than one month before expiry
of said insurances, in the event of our not having
received notice of renewal instructions from the
Shipowner and/or its agents, and in the event of our
receiving instructions to renew said insurances to
advise you promptly of the details thereof.
Our above undertakings are given subject to our lien on the
Policies for premiums for the Vessel and subject to our right of cancellation on
default in payment of such premiums. We undertake to advise you immediately if
any premiums are not paid to us by the applicable due date and not to exercise
such rights of cancellation without giving you (i) fourteen (14) days' prior
notice in writing, either by letter to the above address or by telex or cable to
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, respectively, and (ii) a reasonable opportunity of paying any
premiums outstanding except it is understood that in the case of War Risks the
terms of the Automatic Termination of Cover Clause contained in the War Risks
Policies shall override any undertakings given by us as Brokers. We further
undertake and agree that in the event of a total loss of the Vessel, or an
arranged, compromised or constructive total loss, our lien on the Policies and
the proceeds thereof shall be limited to any other premiums or other amounts due
in respect of Vessel or interest insured under the Policies.
Notwithstanding the terms of the said Loss Payable clause and
the said Notice of Assignment, unless and until we receive notice from you to
the contrary, we shall be empowered to arrange for a collision and/or salvage
guaranty to be given in the event of bail being required in order to prevent the
arrest of the Vessel or to secure the release of the Vessel from arrest
following a casualty. We undertake to advise you immediately in the event of our
having arranged for a collision and/or salvage guaranty. Where a guaranty has
been given as aforesaid and the guarantor has paid an amount under the guaranty
in respect of such claim, there shall be payable directly to the guarantor out
of the proceeds of the said Policies an amount equal to the amount so paid.
Finally, it is understood that all claims shall be collected
through us, as Brokers, and that in collecting such claims we are acting on your
behalf as assignee of the insurances covered by this letter.
Yours faithfully,
[insert name of Broker]
By:______________________________________
Director
SCHEDULE 1
ADDITIONAL DEFINED TERMS USED IN THE MORTGAGE
"CLASSIFICATION SOCIETY" means The American Bureau of Shipping or any
other private organization which has as its purpose the supervision of vessels
during their construction and afterward, in respect to their seaworthiness and
upkeep, and the placing of vessels in grades or "classes" according to the
society's rules for each particular type of vessel.
"EARNINGS" includes all monies whatsoever due or to become due to the
Shipowner at any time arising out of the use or operation of the Vessel or
otherwise including (but without prejudice to the generality of the foregoing)
all sums due and payable to the Shipowner under and pursuant to the Initial
Charter and all freight, hire and passage monies and compensation payable to the
Shipowner in the event of requisition of the Vessel for hire, remuneration for
salvage and towage, services, demurrage and detention moneys and any other
damages for breach (or payments for variation or termination) of any
charterparty or any contract of employment of the Vessel and all earnings of the
Vessel due or to become due to the Shipowner.
"OBLIGATIONS" means the payment, performance or other obligations of
any kind whatsoever of the Shipowner under and pursuant to the Indenture, the
Security Documents, and any instrument, agreement or document referred to
therein.
"INSURANCE" means any policies and contracts of insurance and entries
in any protection and indemnity or war risks association which are effected by
or on behalf of the Shipowner in respect of the Vessel or otherwise in
connection with the Vessel, including but not limited to any insurance monies
received by the Shipowner pursuant to clauses 12 and 13 of the Initial Charter
and including all claims and returns of premiums thereunder and including any
compensation payable by whomsoever to the Shipowner by virtue of requisition of
the Vessel for title or confiscation or seizure of the Vessel by any government
or person or agency purporting to act on behalf of any government.
"PERMITTED LIENS" means the Charter, any Acceptable Replacement Charter
or other charter for the Vessel, liens for crew's wages accrued for not more
than three months or for collision or salvage, liens in favor of suppliers of
necessaries or other similar liens arising in the ordinary course of its
business (accrued for not more than three months) or liens for loss, damage or
expense, which are fully covered by insurance or, in respect of which, a bond or
other security has been posted by the Shipowner with the appropriate court or
other tribunal to prevent the arrest or secure the release of the Vessel from
arrest on account of such claim or lien; provided, however, that so long as the
Initial Charter is in effect "Permitted Liens" shall mean those liens, claims
and encumbrances permitted under the Initial Charter.
"REQUIREMENT OF LAW" means, as to any Person, the certificate of
incorporation and by-laws or partnership agreement or other organizational or
governing documents of such Person, and, any Law applicable to or binding upon
such Person or any of its properties or to which such Person or any of its
properties is subject.
EXHIBIT B
---------
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK,
AS INDENTURE TRUSTEE
and
GOLDEN STATE PETRO (IOM I-A) PLC
-----------------------------------
ASSIGNMENT OF CHARTER
Dated as of December 1, 1996
-----------------------------------
================================================================================
Assignment of Charter, dated as of December 1, 1996 (the
"Assignment"), between Golden State Petro (IOM I-A) PLC (the "Owner") and United
States Trust Company of New York (the "Indenture Trustee"), not in its
individual capacity but solely as trustee under the Indenture (the "Indenture"),
dated as of the date hereof, among the Owner, the Indenture Trustee, Golden
State Petro (IOM I-B) PLC ("Golden State Petro B") and Golden State Petroleum
Transport Corporation ("Golden State Petroleum"), as agent for the Owner and
Golden State Petro B.
PRELIMINARY STATEMENT
On the Closing Date, Golden State Petroleum, as agent for the
Owner and Golden State Petro B, will issue Notes in connection with the
financing of the construction of the Vessel. The net proceeds of such issuance
will be deposited into the Pre-Funding Account. Pursuant to the Indenture, the
Allocated Principal Amount of the Mortgage Notes for the Vessel will be used,
INTER ALIA, to make the installments due under the Shipbuilding Contract for the
Vessel. As of the date of this Assignment, the Owner agreed to bareboat charter
the Vessel to Chevron Transport Corporation (the "Initial Charterer") pursuant
to the Initial Charter. The obligations of the Initial Charterer under the
Initial Charter are guaranteed by Chevron Corporation (the "Guarantor") pursuant
to the Chevron Guarantee. The Vessel will be managed by Cambridge Fund
Management L.L.C. (the "Manager") pursuant to the Management Agreement, dated as
of the date hereof, between the Owner and the Manager. As collateral security
for its obligations under the Indenture, the Owner has and will assign, pledge,
mortgage and grant the Indenture Trustee a security interest in, INTER ALIA, the
Vessel, the Initial Charter and the Chevron Guarantee.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and of other valuable consideration, receipt of
which is hereby acknowledged, the Owner and the Indenture Trustee hereby agree
as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined in Schedule 1 to this Assignment,
capitalized terms used in this Assignment shall have the meanings assigned to
such terms in the Indenture.
ARTICLE II
ASSIGNMENT
Section 2.01 SECURITY INTEREST. This Assignment is made and
delivered as security for the Obligations.
Section 2.02 ASSIGNMENT. In order to provide for the payment
of and as security for the Obligations, the Owner has granted, bargained,
assigned, transferred, conveyed, mortgaged, pledged and granted a security
interest in and confirmed, and does hereby grant, bargain, assign, transfer,
convey, mortgage, pledge and grant a security interest in and confirm, to the
Indenture Trustee, its successors and assigns, for its and their respective
successors' and assigns' own proper use and benefit, all of the Owner's right,
title and interest in and to the
-2-
Initial Charter, including without limitation any moneys whatsoever payable to
the Owner under the Initial Charter, together with the income and proceeds
thereof and all other rights and benefits whatsoever accruing to the Owner under
the Initial Charter; PROVIDED, HOWEVER, that the Owner shall keep the Indenture
Trustee fully and effectively indemnified from and against all actions, losses,
claims, proceedings, costs, demands and liabilities which may be suffered by the
Indenture Trustee under or by virtue of the Initial Charter or this Assignment.
Section 2.03 OWNER TO REMAIN LIABLE. Anything in this
Assignment contained to the contrary notwithstanding, the Owner shall remain
liable under the Initial Charter, and shall observe, perform and fulfill all of
the conditions and obligations to be observed, performed and fulfilled by it
thereunder, and the Indenture Trustee shall have no obligation or liability of
any kind whatsoever thereunder or by reason of or arising out of this
Assignment, nor shall the Indenture Trustee be under any liability whatsoever in
the event of any failure by the Owner to perform its obligations thereunder or
be required or obligated in any manner to observe, perform or fulfill any of the
conditions or obligations of the Owner thereunder or pursuant thereto, or to
make any payment or to make any inquiry as to the nature or sufficiency of any
payment received by it or the Owner thereunder, or to present or file any claim,
or to take any other action to collect or enforce the payment of any amounts
which may have been assigned to the Indenture Trustee or to which the Indenture
Trustee may be entitled hereunder at any time or times.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER
The Owner hereby represents and warrants to the Indenture
Trustee as follows:
Section 3.01 ORGANIZATION, POWER AND STATUS OF THE OWNER. The
Owner (a) is a corporation duly formed, validly existing and in good standing
under the laws of the Isle of Man and (b) is duly authorized, to the extent
necessary, to do business in each jurisdiction where the character of its
properties or the nature of its activities makes such qualification necessary.
The Owner has all requisite corporate power and authority to own and operate the
property it purports to own and to carry on its business as now being conducted
and as proposed to be conducted in respect of the Vessel.
Section 3.02 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND
DELIVERY. (a) The Owner has all necessary corporate power and authority to
execute, deliver and perform under this Assignment.
(b) All action on the part of the Owner that is required for
the authorization, execution, delivery and performance of this Assignment has
been duly and effectively taken; and the execution, delivery and performance of
this Assignment does not require the approval or consent of any Person except
for such consents and approvals as have been obtained on or prior to the Closing
Date.
-3-
(c) This Assignment has been duly executed and delivered by
the Owner. This Assignment constitutes the legal, valid and binding obligation
of the Owner, enforceable against it in accordance with the terms thereof.
Section 3.03 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT. (a)
Neither the execution, delivery and performance of this Assignment nor the
consummation of any of the transactions contemplated hereby nor performance of
or compliance with the terms and conditions hereof (i) contravenes any
Requirement of Law applicable to the Owner or (ii) constitutes a default under
the Indenture or any Security Document.
(b) The Owner is in compliance with and not in default under
any and all Requirements of Law applicable to the Owner and all terms and
provisions of this Assignment.
Section 3.04 GOVERNMENTAL APPROVALS. All Governmental
Approvals which are required to be obtained in the name of the Owner in
connection with the execution, delivery and performance by the Owner of this
Assignment have been obtained and are in effect on the Closing Date.
Section 3.05 LITIGATION. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending against the Owner or, to the best of the Owner's knowledge, threatened
against the Owner or pending or threatened against any property or other assets
or rights of the Owner with respect to this Assignment.
Section 3.06 NO PRIOR ASSIGNMENT. The Owner has not assigned
or pledged, and hereby covenants that it will not assign or pledge, so long as
this Assignment shall remain in effect, the Initial Charter or any part of the
rights, titles and interests hereby assigned, to anyone other than the Indenture
Trustee, or its successors or assigns.
Section 3.07 THE INITIAL CHARTER. The Initial Charter
constitutes the legal, valid and binding obligation of the Owner as "Owner"
thereunder and is in full force and effect in the form of Exhibit "A" attached
hereto; there are no amendments, additions, addenda or modifications thereto and
neither of the parties thereto is in default thereunder.
ARTICLE IV
COVENANTS OF THE OWNER
The Owner hereby covenants and agrees that so long as any of
the Obligations remains outstanding:
Section 4.01 CONSENT OF INITIAL CHARTERER. On the Closing
Date, the Owner shall deliver to the Initial Charterer a copy of this Assignment
and shall procure the execution by the Initial Charterer of the Consent and
Acknowledgment set out in Exhibit A hereto and deliver said Consent and
Acknowledgment to the Indenture Trustee on the Closing Date.
-4-
Section 4.02 ENFORCEMENT OF INITIAL CHARTER. (a) The Owner
will do or permit to be done each and every act or thing which the Indenture
Trustee may from time to time require to be done for the purpose of enforcing
the Indenture Trustee's rights under the Initial Charter and this Assignment.
(b) The Owner shall cause all moneys hereby assigned or agreed
to be assigned or arising from or in connection with any of the rights, title,
interest and benefits of the Owner under the Initial Charter shall be paid to
the credit of Chase Manhattan Bank NYC, ABA #000000000, A/C #000-0-000000,
credit U.S. Trust Co NY, further credit to A/C #04692300, Golden State Petroleum
Transport Revenue Account, Attention: Xxxxx Xxxxxxx or to such other account as
the Indenture Trustee may from time to time direct.
(c) The Owner will not exercise any right or powers conferred
on it by the Initial Charter in connection with any default or alleged default
by the Initial Charterer thereunder (including without limitation the right of
termination and substitution) unless and until requested so to do by the
Indenture Trustee whereupon the Owner agrees that it will do so provided always
that the Indenture Trustee shall not be responsible in any way whatsoever in the
event that the exercise of any right or power (including the right of
termination and substitution) be thereafter adjudged improper or to constitute a
repudiation of the Initial Charter by the Owner.
Section 4.03 AMENDMENT OF INITIAL CHARTER; ASSIGNMENT OF
INITIAL CHARTER. (a) The Owner will not, except with the previous written
consent of the Indenture Trustee, agree to any variation of the Initial Charter
or release the Initial Charterer from any of its obligations thereunder or waive
any breach of the Initial Charterer's obligations thereunder or consent to any
such act or omission of the Initial Charterer as would otherwise constitute such
breach.
(b) The Owner will not, except with the previous written
consent of the Indenture Trustee, assign the Initial Charter to any other
Person.
Section 4.04 PERFORMANCE OF OBLIGATIONS. The Owner will
perform its obligations under the Initial Charter and will use its best efforts
to cause the Initial Charterer to perform its obligations under the Initial
Charter.
Section 4.05 NOTICES. The Owner will send a copy of all
notices received or given by it under the Initial Charter forthwith to the
Indenture Trustee.
Section 4.06 FURTHER ASSURANCES. The Owner will at any time
and from time to time, upon the written request of the Indenture Trustee,
promptly and duly execute and deliver any and all such further instruments and
documents and take such action as the Indenture Trustee may deem desirable in
order to obtain the full benefits of this Assignment and of the rights and
powers herein granted.
Section 4.07 INDENTURE TRUSTEE AS ATTORNEY-IN-FACT OF
OWNER. The Owner hereby constitutes the Indenture Trustee, and its successors
and assigns, its true and lawful
-5-
attorney-in-fact, irrevocably, with full power in its own name, in the name of
its agents or nominees or in the name of the Owner or otherwise, to ask,
require, demand, receive, enforce and give acquittance for, any and all moneys
and claims for moneys due and to become due and payable under or arising out of
the Initial Charter, to endorse any checks or other instruments or orders in
connection therewith and to file any claims or take any action or institute any
proceedings which to the Indenture Trustee may seem to be necessary or advisable
under this Assignment. Any action or proceeding brought by the Indenture Trustee
pursuant to any of the provisions of this Assignment or otherwise and any claim
made by the Indenture Trustee hereunder may be compromised, withdrawn or
otherwise dealt with by the Indenture Trustee without any notice to or approval
of the Owner.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 AMENDMENT. This Assignment may be amended from
time to time by written agreement signed by the parties hereto.
Section 5.02 SEVERABILITY. If any provision of this Assignment
is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. The invalidity of any one or more phrases, sentences,
clauses or Sections of this Assignment contained, shall not affect the remaining
portions of this Assignment, or any part thereof.
Section 5.03 NOTICES. All demands, notices and communications
hereunder shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Indenture Trustee, at the following address: 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Department, (b) in the case of the Owner, at the following address: 00-00 Xxxxx
Xxxxxx, Xxxxxxx, Xxxx of Man, or at other such address as shall be designated by
such party in a written notice to the other parties.
Section 5.04 CONSENT TO JURISDICTION. Any legal suit, action
or proceeding against the Owner arising out of or relating to this Assignment,
or any transaction contemplated hereby, may be instituted in any federal or
state court in The City of New York, State of New York, and the Owner hereby
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding. The Owner hereby waives, to the fullest extent permitted
by applicable law, any defense which it may now or hereafter have based upon
lack of personal jurisdiction or venue or FORUM NON CONVENIENS. The Owner hereby
irrevocably appoints and designates CT Corporation System, having an address at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, its true and lawful attorney-in-fact and duly
authorized agent for the limited purpose of accepting servicing of legal process
and the Owner agrees that service of process upon such party shall constitute
personal service of such process on such Person. The Owner shall
-6-
maintain the designation and appointment of such authorized agent until all
amounts payable under this Assignment shall have been paid in full. If such
agent shall cease to so act, the Owner shall immediately designate and appoint
another such agent satisfactory to the Indenture Trustee and shall promptly
deliver to the Indenture Trustee evidence in writing of such other agent's
acceptance of such appointment.
Section 5.05 CAPTIONS. The captions or headings in this
Assignment are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Assignment.
Section 5.06 GOVERNING LAW. This Assignment shall be governed
by and interpreted in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
Section 5.07 NO PARTNERSHIP. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the parties
hereto, and the services of each party shall be rendered as an independent
contractor and not as agent for any other party.
Section 5.08 COUNTERPARTS. This Assignment may be executed in
any number of counterparts and by different parties hereto on separate
counterpart, each of which shall be deemed to be an original. Such counterparts
shall constitute one and the same agreement.
Section 5.09 SURVIVAL. The representations, covenants and
agreements contained in or made pursuant to this Assignment in respect of either
party hereto shall survive the execution and delivery of this Assignment and
shall continue in effect so long as such party's obligations hereunder remain
outstanding.
Section 5.10 INTEGRATION. This Assignment and the Schedule and
Exhibits hereto constitute the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements, understandings or representations pertaining to the subject matter
hereof, whether oral or written. There are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as specifically set forth or incorporated herein.
Section 5.11 REPRODUCTION OF DOCUMENTS. This Assignment and
all documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements, certificates
and other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
-7-
Section 5.12 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This
Assignment shall be binding upon and inure to the benefit of the Owner and the
Indenture Trustee and their respective successors and assigns. The Owner shall
not have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Indenture Trustee. The Indenture Trustee, at
its sole option, shall have the right to assign this Assignment, the Indenture,
the Security Documents and any of its rights and interest hereunder in
accordance with the terms and provisions of the Indenture and the Security
Documents.
Section 5.13 GENERAL INTERPRETIVE PRINCIPLES. For
purposes of this Assignment except as otherwise expressly provided or unless the
context otherwise requires:
(a) the defined terms in this Assignment shall include the
plural as well as the singular, and the use of any gender herein shall be deemed
to include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Assignment;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Assignment as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 5.14 EFFECTIVE DATE OF TRANSACTION. Notwithstanding
the fact that this Assignment is dated as of December 24, 1996, the transactions
set forth herein shall not be effective until the Closing Date.
IN WITNESS WHEREOF, the Owner and the Indenture Trustee have
caused this Assignment to be duly executed and delivered by their respective
officers thereunto duly authorized all as of the day and year first above
written.
United States Trust Company of New York,
as Indenture Trustee
By:/s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Golden State Petro (IOM I-A) PLC, as Owner
By:/s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
Exhibit A
LETTER OF ACKNOWLEDGMENT
TO ASSIGNMENT OF CHARTER
[Date]
United States Trust Company of New York,
as Indenture Trustee
Dear Sirs:
The undersigned hereby consents to and acknowledges receipt of
a signed copy of the Assignment of Charter (the "Assignment"), dated as of
December 1, 1996, between Golden State Petro (IOM I-A) PLC (the "Owner") and
United States Trust Company of New York, not in its individual capacity but
solely as trustee (the "Indenture Trustee") as adequate notice of such
assignment to the Indenture Trustee of the Initial Charter (as defined in the
Assignment) and of all the right, title and interest of the Owner in, to and
under the Initial Charter.
So long as the Assignment remains effective, we hereby agree
that (a) we shall pay any and all sums which we are legally obligated to pay to
the Owner or otherwise as stated in and according to the Initial Charter
directly to _______________________ Golden State Petroleum Revenue Account,
Attention: ___________________, or otherwise to such other account as you may at
any time or from time to time, designate by notice to us in writing, (b) with
respect to each of the insurances obtained pursuant to Clause 11 of the Initial
Charter, the Indenture Trustee shall be named as an additional assured and the
provisions of Clause 11(b) shall be equally applicable to the Indenture Trustee
as if it were named in addition to the Owner in each case where the Owner is so
named, (c) the Indenture Trustee, as assignee of the Owner, is the loss payee to
the extent that the Owner is the loss payee under such insurances and (d) the
Indenture Trustee and each of the Noteholders shall be entitled to the
indemnifications by the Initial Charterer set forth in the Initial Charter to
the same extent as if they were named indemnified parties therein.
Payments of moneys under the Initial Charter may be adjusted,
reduced or withheld only as expressly provided therein. Payments to the
Indenture Trustee shall not be subject to any right of set-off or defense by way
of counterclaim or otherwise which the undersigned may have against the Owner or
any entity substituted for it other than under the Initial Charter, and all
payments once made to you will be final, and once paid the undersigned will not,
for any reason whatsoever, seek to recover from the Indenture Trustee any such
payment made to the Indenture Trustee by virtue of the Assignment or this Letter
of Consent.
We confirm that the terms of the Initial Charter remain in
full force and effect that the Owner is not presently to our knowledge in breach
of the terms of the Initial Charter. We further confirm that the terms of the
Initial Charter have not been varied or modified and that
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the terms of the Initial Charter will not after the date hereof be varied or
modified without the prior written consent of the Indenture Trustee.
We confirm that we have received no prior notice of any
assignment by the Owner of any interest in the Initial Charter.
The undersigned will not permit any amendment, modification,
cancellation or other alteration in the Initial Charter, nor will it consent to
or accept the substitution thereunder of any party for the Owner without your
prior written consent.
CHEVRON TRANSPORT CORPORATION, as Initial
Charterer
By:________________________________
Name:______________________________
Title:_____________________________
SCHEDULE 1
ADDITIONAL DEFINED TERMS USED IN THE ASSIGNMENT
"AGREEMENT ON CONTRACT FOR TECHNICAL MATTERS" means, the Agreement
Regarding Technical Matters, dated as of the Closing Date, between the Owner,
Samsung Heavy Industries Co., LTD and Chevron Shipping Company, San Francisco,
U.S.A. (as Agent for the Initial Charterer).
"ASSIGNMENT" or "ASSIGNMENT OF CHARTER" means the assignment between
the Owner and the Indenture Trustee, as amended from time to time in accordance
with the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Initial Charter to secure its obligations under the Indenture.
"ASSIGNMENT OF BUILDING CONTRACT" means, for each Vessel, the Building
Contract Assignment, dated as of the Closing Date, between the related Owner and
the Indenture Trustee, pursuant to which such Owner collaterally assigns its
rights, title and interests in the related Building Contract and the Agreement
on Contract for Technical Matters to the Indenture Trustee.
"ASSIGNMENT OF BUILDING CONTRACT GUARANTEE" means, for each Building
Contract Guarantee, the Assignment of Building Contract Guarantee, dated as of
the Closing Date, between the related Owner and the Indenture Trustee, as the
same may be amended from time to time, pursuant to which such Owner collaterally
assigns its rights, title and interest in the related Building Contract
Guarantee therein to the Indenture Trustee.
"ASSIGNMENT OF CHARTER SUPPLEMENT" means, for each Charter Supplement,
the Assignment of Charter Supplement, dated the date of the Supplemental
Indenture, between the Owner of the Vessel and the Indenture Trustee, as the
same may be amended from time to time pursuant to which the Owner collaterally
assigns all of the Owner's right, title and interest therein to the Indenture
Trustee.
"ASSIGNMENT OF CHEVRON GUARANTEE" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Chevron Guarantee to secure its obligations under the Indenture.
"ASSIGNMENT OF EARNINGS AND INSURANCES" means the assignment between
the Owner and the Indenture Trustee, as amended from time to time in accordance
with the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the freights and hires (as well as any charters entered into after the Delivery
Date) with respect to the Vessel to secure its obligations under the Indenture.
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"ASSIGNMENT OF MANAGEMENT AGREEMENT" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Management Agreement to secure its obligations under the Indenture.
"BUILDER" means, collectively, Samsung Corporation and Samsung Heavy
Industries, Ltd.
"BUILDING CONTRACT" means the Shipbuilding Contract, dated December 24,
1996, between the Builder and the Owner.
"BUILDING CONTRACT GUARANTEE" means the Irrevocable Installment Payment
Letter of Guarantee, dated December 24, 1996, given by the Building Contract
Guarantor to the Owner in connection with the Vessel.
"BUILDING CONTRACT GUARANTOR" means Korea Development Bank.
"CHEVRON" means Chevron Corporation, a Delaware corporation, and its
successors and assigns.
"CHEVRON GUARANTEE" means the Guarantee, dated the Closing Date, given
by Chevron to the Owner in connection with the Initial Charter and the Charter
Supplement.
"CLOSING DATE" means December 24, 1996.
"COLLATERAL" means the collateral assigned, pledged or granted to the
Indenture Trustee pursuant to (i) this Assignment of Charter, (ii) the
Assignment of Earnings and Insurances, (iii) the Assignment of Charter
Supplement, (iv) the Mortgage, (v) the Assignment of Chevron Guarantee, (vi) the
Assignment of Management Agreement, (vii) the Assignment of Building Contract,
(viii) the Assignment of Building Contract Guarantee, (ix) the Issue of One
Debenture and (x) the Stock Pledge, together with all income and proceeds
thereof.
"DELIVERY DATE" means the date the Vessel is accepted by the Owner from
the Builder under the Building Contract, which is the date of this Assignment.
"INDENTURE" means the Indenture, dated as of December 1, 1996 among the
Indenture Trustee, the Owner, Golden State Petro B and Golden State Petroleum,
pursuant to which the Notes were issued.
"INDENTURE TRUSTEE" means United States Trust Company of New York.
"INITIAL CHARTER" means with respect to each Vessel, the bareboat
charter, dated as of December 24, 1996, between the Initial Charterer and the
Owner.
"INITIAL CHARTERER" means Chevron Transport Corporation, a Liberian
corporation.
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"ISSUE OF ONE DEBENTURE" means each Issue of One Debenture between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner grants to the Indenture Trustee a
security interest in all of its assets.
"MANAGEMENT AGREEMENT" means the agreement, dated the Closing Date,
between the Owner and the Manager pursuant to which the Manager agrees to
provide certain services to the Owner.
"MANAGER" means the Person performing the duties of the Manager under
the Management Agreement, initially Cambridge Fund Management L.L.C.
"MORTGAGE" means, with respect to the Vessel, the first preferred ship
mortgage on the Vessel granted by the Owner to the Indenture Trustee, as amended
from time to time in accordance with the terms of such Mortgage.
"OBLIGATIONS" means the payment, performance or obligations of any kind
or nature whatsoever of the Owner under and pursuant to the Indenture, any
Security Document and any instrument, agreement or document referred to therein.
"OWNER" means Golden State Petro (IOM I-A) PLC, a company organized
under the laws of the Isle of Man.
"SECURITY DOCUMENTS" means the Indenture, the Mortgage, this Assignment
of Charter, the Assignments of Charter Supplements, the Assignment of Earnings
and Insurances, the Assignment of Chevron Guarantee, the Assignment of
Management Agreement, the Assignment of Building Contract, the Issue of One
Debenture, the Stock Pledge and the Assignment of Building Contract Guarantee,
collectively.
"VESSEL" means Hull No. 1228.
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
ARTICLE II
ASSIGNMENT
Section 2.01 SECURITY INTEREST.......................................... 1
-----------------
Section 2.02 ASSIGNMENT................................................. 1
----------
Section 2.03 OWNER TO REMAIN LIABLE..................................... 2
----------------------
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER
Section 3.01 ORGANIZATION, POWER AND STATUS OF THE OWNER................ 2
-------------------------------------------
Section 3.02 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND DELIVERY...... 2
-----------------------------------------------------
Section 3.03 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT................ 3
-------------------------------------------
Section 3.04 GOVERNMENTAL APPROVALS..................................... 3
----------------------
Section 3.05 LITIGATION................................................. 3
----------
Section 3.06 NO PRIOR ASSIGNMENT........................................ 3
-------------------
Section 3.07 THE INITIAL CHARTER........................................ 3
-------------------
ARTICLE IV
COVENANTS OF THE OWNER........................ 3
Section 4.01 CONSENT OF INITIAL CHARTERER............................... 3
----------------------------
Section 4.02 ENFORCEMENT OF INITIAL CHARTER............................. 4
------------------------------
Section 4.03 AMENDMENT OF INITIAL CHARTER; ASSIGNMENT OF INITIAL
----------------------------------------------------
CHARTER.................................................... 4
-------
Section 4.04 PERFORMANCE OF OBLIGATIONS................................. 4
--------------------------
Section 4.05 NOTICES.................................................... 4
-------
Section 4.06 FURTHER ASSURANCES......................................... 4
------------------
Section 4.07 INDENTURE TRUSTEE AS ATTORNEY-IN-FACT OF OWNER............. 4
----------------------------------------------
ARTICLE V
MISCELLANEOUS PROVISIONS................................. 5
Section 5.01 AMENDMENT.................................................. 5
---------
Section 5.02 SEVERABILITY............................................... 5
------------
Section 5.03 NOTICES.................................................... 5
-------
Section 5.04 CONSENT TO JURISDICTION.................................... 5
-----------------------
Section 5.05 CAPTIONS................................................... 6
--------
Section 5.06 GOVERNING LAW.............................................. 6
-------------
Section 5.07 NO PARTNERSHIP............................................. 6
--------------
Section 5.08 COUNTERPARTS............................................... 6
------------
Section 5.09 SURVIVAL................................................... 6
--------
Section 5.10 INTEGRATION................................................ 6
-----------
Section 5.11 REPRODUCTION OF DOCUMENTS.................................. 6
-------------------------
Section 5.12 SUCCESSORS AND ASSIGNS; ASSIGNMENT......................... 6
----------------------------------
Section 5.13 GENERAL INTERPRETIVE PRINCIPLES............................ 7
-------------------------------
Section 5.14 EFFECTIVE DATE OF TRANSACTION.............................. 7
-----------------------------
EXHIBIT C
---------
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK,
AS INDENTURE TRUSTEE
and
[Name of Owner]
-----------------------------------
FORM OF
ASSIGNMENT OF CHARTER SUPPLEMENT
Dated as of ______________
-----------------------------------
================================================================================
Assignment of Charter Supplement, dated as of __________ (the
"Assignment"), between [Name of Owner] (the "Owner") and United States Trust
Company of New York (the "Indenture Trustee"), not in its individual capacity
but solely as trustee under the Indenture (the "Indenture"), dated as of
December 1, 1996, among the Owner, the Indenture Trustee, [Name of Other Owner]
("[Name of Other Owner]") and Golden State Petroleum Transport Corporation
("Golden State Petroleum"), as agent for the Owner and [Name of Other Owner].
PRELIMINARY STATEMENT
On the Closing Date, Golden State Petroleum, as agent for the
Owner and [Name of Other Owner], issued Notes in connection with the financing
of the construction of the Vessel. The net proceeds of such issuance was
deposited into the Pre-Funding Account. Pursuant to the Indenture, the Allocated
Principal Amount of the Mortgage Notes for the Vessel has been used, INTER ALIA,
to make the installments due under the Shipbuilding Contract for the Vessel. As
of the date of this Assignment, the Owner has bareboat charted the Vessel to
Chevron Transport Corporation (the "Initial Charterer") pursuant to the Initial
Charter and the related Charter Supplement. The obligations of the Initial
Charterer under the Initial Charter and Charter Supplement are guaranteed by
Chevron Corporation (the "Guarantor") pursuant to the Chevron Guarantee. The
Vessel will be managed by Cambridge Fund Management L.L.C. (the "Manager")
pursuant to the Management Agreement, dated as of December 1, 1996, between the
Owner and the Manager. As collateral security for its obligations under the
Indenture, the Owner has and will assign, pledge, mortgage and grant the
Indenture Trustee a security interest in, INTER ALIA, the Vessel, the Initial
Charter, the Charter Supplement and the Chevron Guarantee.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and of other valuable consideration, receipt of
which is hereby acknowledged, the Owner and the Indenture Trustee hereby agree
as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined in Schedule 1 to this Assignment,
capitalized terms used in this Assignment shall have the meanings assigned to
such terms in the Indenture.
ARTICLE II
ASSIGNMENT
Section 2.01 SECURITY INTEREST. This Assignment is made and
delivered as security for the Obligations.
Section 2.02 ASSIGNMENT. In order to provide for the payment
of and as security for the Obligations, the Owner has granted, bargained,
assigned, transferred, conveyed, mortgaged, pledged and granted a security
interest in and confirmed, and does hereby grant, bargain, assign, transfer,
convey, mortgage, pledge and grant a security interest in and confirm, to the
Indenture Trustee, its successors and assigns, for its and their respective
successors' and assigns' own proper use and benefit, all of the Owner's right,
title and interest in and to the
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Charter Supplement, including without limitation any moneys whatsoever payable
to the Owner under the Charter Supplement, together with the income and proceeds
thereof and all other rights and benefits whatsoever accruing to the Owner under
the Charter Supplement; PROVIDED, HOWEVER, that the Owner shall keep the
Indenture Trustee fully and effectively indemnified from and against all
actions, losses, claims, proceedings, costs, demands and liabilities which may
be suffered by the Indenture Trustee under or by virtue of the Charter
Supplement or this Assignment.
Section 2.03 OWNER TO REMAIN LIABLE. Anything in this
Assignment contained to the contrary notwithstanding, the Owner shall remain
liable under the Charter Supplement, and shall observe, perform and fulfill all
of the conditions and obligations to be observed, performed and fulfilled by it
thereunder, and the Indenture Trustee shall have no obligation or liability of
any kind whatsoever thereunder or by reason of or arising out of this
Assignment, nor shall the Indenture Trustee be under any liability whatsoever in
the event of any failure by the Owner to perform its obligations thereunder or
be required or obligated in any manner to observe, perform or fulfill any of the
conditions or obligations of the Owner thereunder or pursuant thereto, or to
make any payment or to make any inquiry as to the nature or sufficiency of any
payment received by it or the Owner thereunder, or to present or file any claim,
or to take any other action to collect or enforce the payment of any amounts
which may have been assigned to the Indenture Trustee or to which the Indenture
Trustee may be entitled hereunder at any time or times.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER
The Owner hereby represents and warrants to the Indenture
Trustee as follows:
Section 3.01 ORGANIZATION, POWER AND STATUS OF THE OWNER. The
Owner (a) is a corporation duly formed, validly existing and in good standing
under the laws of the Isle of Man and (b) is duly authorized, to the extent
necessary, to do business in each jurisdiction where the character of its
properties or the nature of its activities makes such qualification necessary.
The Owner has all requisite corporate power and authority to own and operate the
property it purports to own and to carry on its business as now being conducted
and as proposed to be conducted in respect of the Vessel.
Section 3.02 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND
DELIVERY. (a) The Owner has all necessary corporate power and authority to
execute, deliver and perform under this Assignment.
(b) All action on the part of the Owner that is required for
the authorization, execution, delivery and performance of this Assignment has
been duly and effectively taken; and the execution, delivery and performance of
this Assignment does not require the approval or consent of any Person except
for such consents and approvals as have been obtained on or prior to the
Delivery Date.
-3-
(c) This Assignment has been duly executed and delivered by
the Owner. This Assignment constitutes the legal, valid and binding obligation
of the Owner, enforceable against it in accordance with the terms thereof.
Section 3.03 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT. (a)
Neither the execution, delivery and performance of this Assignment nor the
consummation of any of the transactions contemplated hereby nor performance of
or compliance with the terms and conditions hereof (i) contravenes any
Requirement of Law applicable to the Owner or (ii) constitutes a default under
the Indenture or any Security Document.
(b) The Owner is in compliance with and not in default under
any and all Requirements of Law applicable to the Owner and all terms and
provisions of this Assignment.
Section 3.04 GOVERNMENTAL APPROVALS. All Governmental
Approvals which are required to be obtained in the name of the Owner in
connection with the execution, delivery and performance by the Owner of this
Assignment have been obtained and are in effect on the Delivery Date.
Section 3.05 LITIGATION. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending against the Owner or, to the best of the Owner's knowledge, threatened
against the Owner or pending or threatened against any property or other assets
or rights of the Owner with respect to this Assignment.
Section 3.06 NO PRIOR ASSIGNMENT. The Owner has not assigned
or pledged, and hereby covenants that it will not assign or pledge, so long as
this Assignment shall remain in effect, the Charter Supplement or any part of
the rights, titles and interests hereby assigned, to anyone other than the
Indenture Trustee, or its successors or assigns.
Section 3.07 THE CHARTER SUPPLEMENT. The Charter Supplement
constitutes the legal, valid and binding obligation of the Owner as "Owner"
thereunder and is in full force and effect in the form of Exhibit "A" attached
hereto; there are no amendments, additions, addenda or modifications thereto and
neither of the parties thereto is in default thereunder.
ARTICLE IV
COVENANTS OF THE OWNER
The Owner hereby covenants and agrees that so long as any of
the Obligations remains outstanding:
Section 4.01 CONSENT OF INITIAL CHARTERER. On the Delivery
Date, the Owner shall deliver to the Initial Charterer a copy of this Assignment
and shall procure the execution by the Initial Charterer of the Consent and
Acknowledgment set out in Exhibit A hereto and deliver said Consent and
Acknowledgment to the Indenture Trustee on the Delivery Date.
-4-
Section 4.02 ENFORCEMENT OF CHARTER SUPPLEMENT. (a) The Owner
will do or permit to be done each and every act or thing which the Indenture
Trustee may from time to time require to be done for the purpose of enforcing
the Indenture Trustee's rights under the Charter Supplement and this Assignment.
(b) The Owner shall cause all moneys hereby assigned or agreed
to be assigned or arising from or in connection with any of the rights, title,
interest and benefits of the Owner under the Charter Supplement shall be paid to
the credit of Chase Manhattan Bank, NYC, ABA #000000000, A/C #000-0-000000,
credit U.S. Trust Co. New York, further credit to A/C #04692300, Golden State
Petroleum Transp. Corp. Rev., Attention: Xxxxx Xxxxxxx or to such other account
as the Indenture Trustee may from time to time direct.
(c) The Owner will not exercise any right or powers conferred
on it by the Charter Supplement in connection with any default or alleged
default by the Initial Charterer thereunder (including without limitation the
right of termination and substitution) unless and until requested so to do by
the Indenture Trustee whereupon the Owner agrees that it will do so provided
always that the Indenture Trustee shall not be responsible in any way whatsoever
in the event that the exercise of any right or power (including the right of
termination and substitution) be thereafter adjudged improper or to constitute a
repudiation of the Charter Supplement by the Owner.
Section 4.03 AMENDMENT OF INITIAL CHARTER; ASSIGNMENT OF
INITIAL CHARTER. (a) The Owner will not, except with the previous written
consent of the Indenture Trustee, agree to any variation of the Charter
Supplement or release the Initial Charterer from any of its obligations
thereunder or waive any breach of the Initial Charterer's obligations thereunder
or consent to any such act or omission of the Initial Charterer as would
otherwise constitute such breach.
(b) The Owner will not, except with the previous written
consent of the Indenture Trustee, assign the Charter Supplement to any other
Person.
Section 4.04 PERFORMANCE OF OBLIGATIONS. The Owner will
perform its obligations under the Charter Supplement and will use its best
efforts to cause the Initial Charterer to perform its obligations under the
Charter Supplement.
Section 4.05 NOTICES. The Owner will send a copy of all
notices received or given by it under the Charter Supplement forthwith to the
Indenture Trustee.
Section 4.06 FURTHER ASSURANCES. The Owner will at any time
and from time to time, upon the written request of the Indenture Trustee,
promptly and duly execute and deliver any and all such further instruments and
documents and take such action as the Indenture Trustee may deem desirable in
order to obtain the full benefits of this Assignment and of the rights and
powers herein granted.
-5-
Section 4.07 INDENTURE TRUSTEE AS ATTORNEY-IN-FACT OF OWNER.
The Owner hereby constitutes the Indenture Trustee, and its successors and
assigns, its true and lawful attorney-in-fact, irrevocably, with full power in
its own name, in the name of its agents or nominees or in the name of the Owner
or otherwise, to ask, require, demand, receive, enforce and give acquittance
for, any and all moneys and claims for moneys due and to become due and payable
under or arising out of the Charter Supplement, to endorse any checks or other
instruments or orders in connection therewith and to file any claims or take any
action or institute any proceedings which to the Indenture Trustee may seem to
be necessary or advisable under this Assignment. Any action or proceeding
brought by the Indenture Trustee pursuant to any of the provisions of this
Assignment or otherwise and any claim made by the Indenture Trustee hereunder
may be compromised, withdrawn or otherwise dealt with by the Indenture Trustee
without any notice to or approval of the Owner.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 AMENDMENT. This Assignment may be amended from
time to time by written agreement signed by the parties hereto.
Section 5.02 SEVERABILITY. If any provision of this Assignment
is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. The invalidity of any one or more phrases, sentences,
clauses or Sections of this Assignment contained, shall not affect the remaining
portions of this Assignment, or any part thereof.
Section 5.03 NOTICES. All demands, notices and communications
hereunder shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Indenture Trustee, at the following address: 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Corporate Trust Department, (b)
in the case of the Owner, at the following address: 00-00 Xxxxx Xxxxxx, Xxxxxxx,
Xxxx of Man, or at other such address as shall be designated by such party in a
written notice to the other parties.
Section 5.04 CONSENT TO JURISDICTION. Any legal suit, action
or proceeding against the Owner arising out of or relating to this Assignment,
or any transaction contemplated hereby, may be instituted in any federal or
state court in The City of New York, State of New York, and the Owner hereby
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding. The Owner hereby waives, to the fullest extent permitted
by applicable law, any defense which it may now or hereafter have based upon
lack of personal jurisdiction or venue or FORUM NON CONVENIENS. The Owner hereby
irrevocably appoints and designates CT Corporation System, having an address at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, its true and lawful attorney-in-fact and duly
authorized agent for the limited purpose of
-6-
accepting servicing of legal process and the Owner agrees that service of
process upon such party shall constitute personal service of such process on
such Person. The Owner shall maintain the designation and appointment of such
authorized agent until all amounts payable under this Assignment shall have been
paid in full. If such agent shall cease to so act, the Owner shall immediately
designate and appoint another such agent satisfactory to the Indenture Trustee
and shall promptly deliver to the Indenture Trustee evidence in writing of such
other agent's acceptance of such appointment.
Section 5.05 CAPTIONS. The captions or headings in this
Assignment are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Assignment.
Section 5.06 GOVERNING LAW. This Assignment shall be governed
by and interpreted in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
Section 5.07 NO PARTNERSHIP. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the parties
hereto, and the services of each party shall be rendered as an independent
contractor and not as agent for any other party.
Section 5.08 COUNTERPARTS. This Assignment may be executed in
any number of counterparts and by different parties hereto on separate
counterpart, each of which shall be deemed to be an original. Such counterparts
shall constitute one and the same agreement.
Section 5.09 SURVIVAL. The representations, covenants and
agreements contained in or made pursuant to this Assignment in respect of either
party hereto shall survive the execution and delivery of this Assignment and
shall continue in effect so long as such party's obligations hereunder remain
outstanding.
Section 5.10 INTEGRATION. This Assignment and the Schedule and
Exhibits hereto constitute the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements, understandings or representations pertaining to the subject matter
hereof, whether oral or written. There are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as specifically set forth or incorporated herein.
Section 5.11 REPRODUCTION OF DOCUMENTS. This Assignment and
all documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements, certificates
and other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of
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business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
Section 5.12 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This
Assignment shall be binding upon and inure to the benefit of the Owner and the
Indenture Trustee and their respective successors and assigns. The Owner shall
not have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Indenture Trustee. The Indenture Trustee, at
its sole option, shall have the right to assign this Assignment, the Indenture,
the Security Documents and any of its rights and interest hereunder in
accordance with the terms and provisions of the Indenture and the Security
Documents.
Section 5.13 GENERAL INTERPRETIVE PRINCIPLES. For purposes of
this Assignment except as otherwise expressly provided or unless the context
otherwise requires:
(a) the defined terms in this Assignment shall include the
plural as well as the singular, and the use of any gender herein shall be deemed
to include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Assignment;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Assignment as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 5.14 EFFECTIVE DATE OF TRANSACTION. Notwithstanding
the fact that this Assignment is dated as of _____________, the transactions set
forth herein shall not be effective until the Delivery Date.
IN WITNESS WHEREOF, the Owner and the Indenture Trustee have
caused this Assignment to be duly executed and delivered by their respective
officers thereunto duly authorized all as of the day and year first above
written.
United States Trust Company of New York, as
Indenture Trustee
By:____________________________________
Name:__________________________________
Title:_________________________________
[Name of Owner], as Owner
By:____________________________________
Name:__________________________________
Title:_________________________________
Exhibit A
LETTER OF ACKNOWLEDGMENT
TO ASSIGNMENT OF CHARTER SUPPLEMENT
[Date]
United States Trust Company of New York,
as Indenture Trustee
Dear Sirs:
The undersigned hereby consents to and acknowledges receipt of
a signed copy of the Assignment of Charter Supplement (the "Assignment"), dated
as of _________, between [Name of Owner] (the "Owner") and United States Trust
Company of New York, not in its individual capacity but solely as trustee (the
"Indenture Trustee") as adequate notice of such assignment to the Indenture
Trustee of the Charter Supplement (as defined in the Assignment) and of all the
right, title and interest of the Owner in, to and under the Charter Supplement.
So long as the Assignment remains effective, we hereby agree
that we shall pay any and all sums which we are legally obligated to pay to the
Owner or otherwise as stated in and according to the Charter Supplement directly
to Chase Manhattan Bank, NYC, ABA #000000000, A/C #000-0-000000, credit U.S.
Trust Co. New York, further credit to A/C #04692300, Golden State Petroleum
Transp. Corp. Rev., Attention: Xxxxx Xxxxxxx or otherwise to such accounts as
you may at any time or from time to time, designate by notice to us in writing.
Payments of moneys under the Charter Supplement may be
adjusted, reduced or withheld only as expressly provided therein. Payments to
the Indenture Trustee shall not be subject to any right of set-off or defense by
way of counterclaim or otherwise which the undersigned may have against the
Owner or any entity substituted for it other than under the Charter Supplement,
and all payments once made to you will be final, and once paid the undersigned
will not, for any reason whatsoever, seek to recover from the Indenture Trustee
any such payment made to the Indenture Trustee by virtue of the Assignment or
this Letter of Consent.
We confirm that the terms of the Charter Supplement remain in
full force and effect that the Owner is not presently to our knowledge in breach
of the terms of the Charter Supplement. We further confirm that the terms of the
Charter Supplement have not been varied or modified and that the terms of the
Charter Supplement will not after the date hereof be varied or modified without
the prior written consent of the Indenture Trustee.
We confirm that we have received no prior notice of any
assignment by the Owner of any interest in the Charter Supplement.
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The undersigned will not permit any amendment, modification,
cancellation or other alteration in the Charter Supplement, nor will it consent
to or accept the substitution thereunder of any party for the Owner without your
prior written consent.
CHEVRON TRANSPORT CORPORATION, as Initial
Charterer
By:____________________________________
Name:__________________________________
Title:_________________________________
SCHEDULE 1
ADDITIONAL DEFINED TERMS USED IN THE ASSIGNMENT
"AGREEMENT ON CONTRACT FOR TECHNICAL MATTERS" means, the Agreement
Regarding Technical Matters, dated as of December 24, 1996, between the Owner,
Samsung Heavy Industries Co., LTD and Chevron Shipping Company, San Francisco,
U.S.A. (as Agent for the Initial Charterer).
"ASSIGNMENT" or "ASSIGNMENT OF CHARTER SUPPLEMENT" means the assignment
between the Owner and the Indenture Trustee, as amended from time to time in
accordance with the terms thereof, pursuant to which the Owner collaterally
assigns to the Indenture Trustee all of the Owner's right, title and interest
in, to and under the Charter Supplement to secure its obligations under the
Indenture.
"ASSIGNMENT OF BUILDING CONTRACT" means, for each Vessel, the Building
Contract Assignment, dated as of December 1, 1996, between the related Owner and
the Indenture Trustee, pursuant to which such Owner collaterally assigns its
rights, title and interests in the related Building Contract and the Agreement
on Contract for Technical Matters to the Indenture Trustee.
"ASSIGNMENT OF BUILDING CONTRACT GUARANTEE" means, for each Building
Contract Guarantee, the Assignment of Building Contract Guarantee, dated as of
December 1, 1996, between the related Owner and the Indenture Trustee, as the
same may be amended from time to time, pursuant to which such Owner collaterally
assigns its rights, title and interest in the related Building Contract
Guarantee therein to the Indenture Trustee.
"ASSIGNMENT OF CHARTER" means the assignment between the Owner and the
Indenture Trustee, as amended from time to time in accordance with the terms
thereof, pursuant to which the Owner collaterally assigns to the Indenture
Trustee all of the Owner's right, title and interest in, to and under the
Initial Charter to secure its obligations under the Indenture.
"ASSIGNMENT OF CHEVRON GUARANTEE" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Chevron Guarantee to secure its obligations under the Indenture.
"ASSIGNMENT OF EARNINGS AND INSURANCES" means the assignment between
the Owner and the Indenture Trustee, as amended from time to time in accordance
with the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the freights and hires (as well as any charters entered into after the Delivery
Date) with respect to the Vessel to secure its obligations under the Indenture.
"ASSIGNMENT OF MANAGEMENT AGREEMENT" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof,
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pursuant to which the Owner collaterally assigns to the Indenture Trustee all of
the Owner's right, title and interest in, to and under the Management Agreement
to secure its obligations under the Indenture.
"BUILDER" means, collectively, Samsung Corporation and Samsung Heavy
Industries, Ltd.
"BUILDING CONTRACT" means the Shipbuilding Contract, dated December 24,
1996, between the Builder and the Owner.
"BUILDING CONTRACT GUARANTEE" means the Irrevocable Installment Payment
Letter of Guarantee, dated December 24, 1996, given by the Building Contract
Guarantor to the Owner in connection with the Vessel.
"BUILDING CONTRACT GUARANTOR" means Korea Development Bank.
"CHEVRON" means Chevron Corporation, a Delaware corporation, and its
successors and assigns.
"CHEVRON GUARANTEE" means the Guarantee, dated the Closing Date, given
by Chevron to the Owner in connection with the Initial Charter and the Charter
Supplement.
"CLOSING DATE" means December 24, 1996.
"COLLATERAL" means the collateral assigned, pledged or granted to the
Indenture Trustee pursuant to (i) this Assignment of Charter Supplement, (ii)
the Assignment of Earnings and Insurances, (iii) the Assignment of Charter, (iv)
the Mortgage, (v) the Assignment of Chevron Guarantee, (vi) the Assignment of
Management Agreement, (vii) the Assignment of Building Contract, (viii) the
Assignment of Building Contract Guarantee, (ix) the Issue of One Debenture and
(x) the Stock Pledge, together with all income and proceeds thereof.
"DELIVERY DATE" means the date the Vessel is accepted by the Owner from
the Builder under the Building Contract, which is the date of this Assignment.
"INDENTURE" means the Indenture, dated as of December 1, 1996, among
the Indenture Trustee, the Owner, [Name of Other Owner] and Golden State
Petroleum, pursuant to which the Notes were issued.
"INDENTURE TRUSTEE" means United States Trust Company of New York.
"INITIAL CHARTER" means with respect to each Vessel, the bareboat
charter, dated as of December 24, 1996, between the Initial Charterer and the
Owner.
"INITIAL CHARTERER" means Chevron Transport Corporation, a Liberian
corporation.
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"ISSUE OF ONE DEBENTURE" means each Issue of One Debenture between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner grants to the Indenture Trustee a
security interest in all of its assets.
"MANAGEMENT AGREEMENT" means the agreement, dated as of December 1,
1996, between the Owner and the Manager pursuant to which the Manager agrees to
provide certain services to the Owner.
"MANAGER" means the Person performing the duties of the Manager under
the Management Agreement, initially Cambridge Fund Management L.L.C.
"MORTGAGE" means, with respect to the Vessel, the first preferred ship
mortgage on the Vessel granted by the Owner to the Indenture Trustee, as amended
from time to time in accordance with the terms of such Mortgage.
"OBLIGATIONS" means the payment, performance or obligations of any kind
or nature whatsoever of the Owner under and pursuant to the Indenture, any
Security Document and any instrument, agreement or document referred to therein.
"OWNER" means [Name of Owner], a company organized under the laws of
the Isle of Man.
"SECURITY DOCUMENTS" means the Indenture, the Mortgage, the Assignment
of Charter, this Assignment of Charter Supplement, the Assignment of Earnings
and Insurances, the Assignment of Chevron Guarantee, the Assignment of
Management Agreement, the Assignment of Building Contract, the Issue of One
Debenture, the Stock Pledge and the Assignment of Building Contract Guarantee,
collectively.
"VESSEL" means _________________.
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS............................... 1
ARTICLE II
ASSIGNMENT................................ 1
Section 2.01 Security Interest.......................................... 1
Section 2.02 Assignment................................................. 1
Section 2.03 Owner to Remain Liable..................................... 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER................ 2
Section 3.01 Organization, Power and Status of the Owner................ 2
Section 3.02 Authorization; Enforceability; Execution and Delivery...... 2
Section 3.03 No Conflicts; Laws and Consents; No Default................ 3
Section 3.04 Governmental Approvals..................................... 3
Section 3.05 Litigation................................................. 3
Section 3.06 No Prior Assignment........................................ 3
Section 3.07 The Charter Supplement..................................... 3
ARTICLE IV
COVENANTS OF THE OWNER........................... 3
Section 4.01 Consent of Initial Charterer............................... 3
Section 4.02 Enforcement of Charter Supplement.......................... 4
Section 4.03 Amendment of Initial Charter; Assignment of Initial
Charter.................................................... 4
Section 4.04 Performance of Obligations................................. 4
Section 4.05 Notices.................................................... 4
Section 4.06 Further Assurances......................................... 4
Page
----
Section 4.07 Indenture Trustee as Attorney-in-Fact of Owner............. 4
ARTICLE V
MISCELLANEOUS PROVISIONS......................... 5
Section 5.01 Amendment.................................................. 5
Section 5.02 Severability............................................... 5
Section 5.03 Notices.................................................... 5
Section 5.04 Consent to Jurisdiction.................................... 5
Section 5.05 Captions................................................... 6
Section 5.06 Governing Law.............................................. 6
Section 5.07 No Partnership............................................. 6
Section 5.08 Counterparts............................................... 6
Section 5.09 Survival................................................... 6
Section 5.10 Integration................................................ 6
Section 5.11 Reproduction of Documents.................................. 6
Section 5.12 Successors and Assigns; Assignment......................... 7
Section 5.13 General Interpretive Principles............................ 7
Section 5.14 Effective Date of Transaction.............................. 7
EXHIBIT D
---------
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK,
as INDENTURE TRUSTEE
and
[Name of Owner]
-----------------------------------
FORM OF
ASSIGNMENT OF EARNINGS AND INSURANCES
Dated as of ___________
-----------------------------------
==============================================================================
Assignment of Earnings and Insurances, dated as of the
Delivery Date (the "Assignment"), between [Name of Owner] (the "Owner") and
United States Trust Company of New York (the "Indenture Trustee"), not in its
individual capacity but solely as trustee under the Indenture (the "Indenture"),
dated as of December 1, 1996, among the Owner, the Indenture Trustee, [Name of
Other Owner] ("[Name of Other Owner]") and Golden State Petroleum Transport
Corporation ("Golden State Petroleum"), as agent for the Owner and [Name of
Other Owner].
PRELIMINARY STATEMENT
On the Closing Date, Golden State Petroleum, as agent for the
Owner and [Name of Other Owner], issued Notes in connection with the financing
of the construction of the Vessel. The net proceeds of such issuance were
deposited into the Pre-Funding Account. Pursuant to the Indenture, the Allocated
Principal Amount of the Mortgage Notes for the Vessel was used, INTER ALIA, to
make the installments due under the Shipbuilding Contract for the Vessel. As of
the date of this Assignment, the Owner has bareboat charted the Vessel to
Chevron Transport Corporation (the "Initial Charterer") pursuant to the Initial
Charter. The obligations of the Initial Charterer under the Initial Charter will
be guaranteed by Chevron Corporation (the "Guarantor") pursuant to the Chevron
Guarantee. The Vessel will be managed by Cambridge Fund Management L.L.C. (the
"Manager") pursuant to the Management Agreement, dated as of December 1, 1996,
between the Owner and the Manager. As collateral security for its obligations
under the Indenture, the Owner has and will assign, pledge, mortgage and grant
the Indenture Trustee a security interest in, INTER ALIA, the Vessel, the
Initial Charter, the Chevron Guarantee and the earnings and insurances of the
Vessel.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and of other valuable consideration, receipt of
which is hereby acknowledged, the Owner and the Indenture Trustee hereby agree
as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined in Schedule 1 to this Assignment,
capitalized terms used in this Assignment shall have the meanings assigned to
such terms in the Indenture.
ARTICLE II
ASSIGNMENT
Section 2.01 SECURITY INTEREST. This Assignment is made and
delivered as security for the Obligations.
Section 2.02 ASSIGNMENT OF EARNINGS. In order to provide for
the payment of and as security for the Obligations, the Owner has granted,
bargained, assigned, transferred, conveyed, mortgaged, pledged and granted a
security interest in and confirmed, and does hereby grant, bargain, assign,
transfer, convey, mortgage, pledge and grant a security interest in and confirm,
to the Indenture Trustee, its successors and assigns, for its and their
respective successors' and assigns' own proper use and benefit, all of the
Owner's right, title and interest
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in and to (a) any and all moneys due and to become due to the Owner under any
and all present and future charter parties, bills of lading, contracts and other
engagements of affreightment or for the carriage or transportation of cargo,
salvage and other operations of every kind whatsoever of the Vessel; and (b) any
and all claims and causes of action for money, loss or damages that may accrue
arising out of or in any way connected with the present or future use, operation
or management of the Vessel (including proceeds of insurance against requisition
for or other loss of hire or use of the Vessel) or arising out of or in any way
connected with any and all such present and future charter parties, bills of
lading, contracts and other engagements of affreightment or for the carriage or
transportation of cargo, salvage and other operations of the Vessel and any and
all guaranties with respect to any of the foregoing, together with the income
and proceeds of any and all of the foregoing (all such right, title and interest
herein called the "Freights").
Section 2.03 ASSIGNMENT OF INSURANCES. In addition to the
foregoing, in order to provide for the payment of and as security for the
Obligations, the Owner has granted, bargained, assigned, transferred, conveyed,
mortgaged, pledged and granted a security interest in and confirmed, and does
hereby grant, bargain, assign, transfer, convey, mortgage, pledge and grant a
security interest in and confirm, to Indenture Trustee, its successors and
assigns, for its and their respective successors' and assigns' own proper use
and benefit, all of the Owner's right, title and interest in and to (a) all
moneys and claims for moneys due and to become due to the Owner with respect to
the actual, constructive, agreed, arranged or compromised total loss, or
requisition for title, seizure, condemnation, confiscation, sequestration or
compulsory acquisition or otherwise of ownership (but not including proceeds of
insurance against requisition for or other loss of hire or use of the Vessel) by
act of any country or any governmental authority or otherwise, of the Vessel,
and all claims for damages or compensation with respect thereto, and (b) all
policies and contracts of insurance of whatsoever nature and all entries with
protection and indemnity clubs or societies (to the extent that the rules of the
relevant club or society allow such assignment) that have been or may hereafter
during the subsistence of this Assignment be taken out in respect of the Owner's
interests in the Vessel, including all machinery, materials, equipment,
appurtenances and outfits thereon, including without being limited to hull and
machinery, off hire, war risks, protection and indemnity and title requisition
or otherwise howsoever and all the benefits thereof, including all claims of
whatsoever nature and return of premiums, together with the income and proceeds
of any and all of the foregoing (all such right, title and interest herein
called the "Insurances"). The foregoing assignment is in addition to, and not in
substitution for, the provisions with respect to insurance on the Vessel
contained in the Mortgage.
Section 2.04 ASSIGNMENT OF PROCEEDS OF REQUISITION OF USE. In
addition to the foregoing, in order to provide for the payment of and as
security for the Obligations, the Owner has granted, bargained, assigned,
transferred, conveyed, mortgaged, pledged and granted a security interest in and
confirmed, and does hereby grant, bargain, assign, transfer, convey, mortgage,
pledge and grant a security interest in and confirm, to Indenture Trustee, its
successors and assigns, for its and their respective successors' and assigns'
own proper use and benefit, all of the Owner's right, title and interest in and
to all charter hire and compensation resulting from a requisition of use arising
during the continuance of this security, together with
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the income and proceeds of any and all of the foregoing. If, as a result of such
requisition, the requisitioner shall pay or become liable to pay any amount by
reason of the loss of or injury to or depreciation of the Vessel, any such
amount is hereby made payable to the Indenture Trustee.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER
The Owner hereby represents and warrants to the Indenture
Trustee as follows:
Section 3.01 ORGANIZATION, POWER AND STATUS OF THE OWNER. The
Owner (a) is a corporation duly formed, validly existing and in good standing
under the laws of the Isle of Man and (b) is duly authorized, to the extent
necessary, to do business in each jurisdiction where the character of its
properties or the nature of its activities makes such qualification necessary.
The Owner has all requisite corporate power and authority to own and operate the
property it purports to own and to carry on its business as now being conducted
and as proposed to be conducted in respect of the Vessel.
Section 3.02 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND
DELIVERY. (a) The Owner has all necessary corporate power and authority to
execute, deliver and perform under this Assignment.
(b) All action on the part of the Owner that is required for
the authorization, execution, delivery and performance of this Assignment has
been duly and effectively taken; and the execution, delivery and performance of
this Assignment does not require the approval or consent of any Person except
for such consents and approvals as have been obtained on or prior to the
Delivery Date.
(c) This Assignment has been duly executed and delivered by
the Owner. This Assignment constitutes the legal, valid and binding obligation
of the Owner, enforceable against it in accordance with the terms thereof.
Section 3.03 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT. (a)
Neither the execution, delivery and performance of this Assignment nor the
consummation of any of the transactions contemplated hereby nor performance of
or compliance with the terms and conditions hereof (i) contravenes any
Requirement of Law applicable to the Owner or (ii) constitutes a default under
the Indenture or any Security Document.
(b) The Owner is in compliance with and not in default under
any and all Requirements of Law applicable to the Owner and all terms and
provisions of this Assignment.
Section 3.04 GOVERNMENTAL APPROVALS. All Governmental
Approvals which are required to be obtained in the name of the Owner in
connection with the execution, delivery and performance by the Owner of this
Assignment have been obtained and are in effect on the Delivery Date.
-4-
Section 3.05 LITIGATION. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending against the Owner or, to the best of the Owner's knowledge, threatened
against the Owner or pending or threatened against any property or other assets
or rights of the Owner with respect to this Assignment.
Section 3.06 NO PRIOR ASSIGNMENT. The Owner has not assigned
or pledged, and hereby covenants that it will not assign or pledge, so long as
this Assignment shall remain in effect, the earnings or insurances or any part
of the rights, titles and interests hereby assigned, to anyone other than the
Indenture Trustee, or its successors or assigns.
ARTICLE IV
COVENANTS OF THE OWNER
The Owner hereby covenants and agrees that so long as any of
the Obligations remains outstanding:
Section 4.01 COVENANTS OF OWNER. (a) The Owner covenants (i)
that it shall forthwith give, or cause its broker to give, in the form attached
as Appendix I hereto, notice of this Assignment to all insurers, underwriters,
clubs and associations, with respect to all that is assigned pursuant to the
terms hereof and it shall cause its interest in all Insurances and moneys hereby
assigned to be paid over promptly to the Indenture Trustee or as it may direct
and that it shall cause its interest in all policies of insurance on the Vessel
to be assigned to the Indenture Trustee or as it may direct; provided, however,
that so long as the Initial Charter is in effect, the notices may be in the form
set forth in the Initial Charter, (ii) that it shall cause all moneys and
Freights hereby assigned to be paid over promptly to the Indenture Trustee or as
it may direct unless otherwise provided in the Initial Charter and that it shall
(A) deliver to any charterer (other than the Initial Charterer) a Notice in the
form annexed hereto as Appendix II and (B) cause any charterer (other than the
Initial Charterer) to execute and deliver to the Indenture Trustee a Consent in
the form annexed hereto as Appendix III or in such other form as agreed to by
the Indenture Trustee and (iii) that it shall promptly execute and deliver to
the Indenture Trustee such documents, if any, and shall do and perform such
acts, if any, as in the opinion of counsel for the Indenture Trustee may be
necessary or useful to facilitate or expedite the collection by the Indenture
Trustee of such claims arising out of any requisition of use.
(b) All moneys and Freights and Insurances received by the
Indenture Trustee under this Assignment shall be treated and applied as provided
in the Indenture.
Section 4.02 OWNER TO REMAIN LIABLE. Anything in this
Assignment contained to the contrary notwithstanding, the Owner shall remain
liable under any existing charters, and any future charter parties, bills of
lading, contracts and other engagements of affreightment or other carriage or
transportation of cargo and other operations of every kind whatsoever of the
Vessel and any such policies of insurance, and shall observe, perform and
fulfill all of the conditions and obligations to be observed, performed and
fulfilled by them thereunder, and the Indenture Trustee shall have no obligation
or liability thereunder or by reason of or arising out of this Assignment, nor
shall the Indenture Trustee be required or obligated in any manner to
-5-
observe, perform or fulfill any of the conditions or obligations of the Owner
thereunder or pursuant thereto, or to make any payment or to make any inquiry as
to the nature or sufficiency of any payment or to make any inquiry as to the
nature or sufficiency of any payment received by the Owner, or to present or
file any claim, or to take any other action to collect or enforce the payment of
any amounts which may have been assigned to the Indenture Trustee or to which
the Indenture Trustee may be entitled hereunder at any time or times. The
obligations of the Owner under any policies of insurance may (at the sole
election of the Indenture Trustee) be performed by the Indenture Trustee or its
nominee, without releasing the Owner therefrom, but the Indenture Trustee or its
nominee shall be under no duty whatsoever to perform or incur any such
obligations.
Section 4.03 FURTHER ASSURANCES. The Owner will at any time
and from time to time, upon the written request of the Indenture Trustee,
promptly and duly execute and deliver any and all such further instruments and
documents and take such action as the Indenture Trustee may deem desirable in
order to obtain the full benefits of this Assignment and of the rights and
powers herein granted.
Section 4.04 INDENTURE TRUSTEE AS ATTORNEY-IN-FACT OF OWNER.
The Owner hereby constitutes the Indenture Trustee, and its successors and
assigns, its true and lawful attorney-in-fact, irrevocably, with full power in
its own name, in the name of its agents or nominees or in the name of the Owner
or otherwise, to ask, require, demand, receive, enforce and give acquittance
for, any and all moneys and claims for moneys due and to become due and payable
under or arising out of any Freights, Insurances or requisition of the Vessel,
to endorse any checks or other instruments or orders in connection therewith and
to file any claims or take any action or institute any proceedings which to the
Indenture Trustee may seem to be necessary or advisable under this Assignment.
Any action or proceeding brought by the Indenture Trustee pursuant to any of the
provisions of this Assignment or otherwise and any claim made by the Indenture
Trustee hereunder may be compromised, withdrawn or otherwise dealt with by the
Indenture Trustee without any notice to or approval of the Owner.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 AMENDMENT. This Assignment may be amended from
time to time by written agreement signed by the parties hereto.
Section 5.02 SEVERABILITY. If any provision of this Assignment
is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. The invalidity of any one or more phrases, sentences,
clauses or Sections of this Assignment contained, shall not affect the remaining
portions of this Assignment, or any part thereof.
-6-
Section 5.03 NOTICES. All demands, notices and communications
hereunder shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Indenture Trustee, at the following address: 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Department, (b) in the case of the Owner, at the following address: 00-00 Xxxxx
Xxxxxx, Xxxxxxx, Xxxx of Man, or at other such address as shall be designated by
such party in a written notice to the other parties.
Section 5.04 CONSENT TO JURISDICTION. Any legal suit, action
or proceeding against the Owner arising out of or relating to this Assignment,
or any transaction contemplated hereby, may be instituted in any federal or
state court in The City of New York, State of New York, and the Owner hereby
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding. The Owner hereby waives, to the fullest extent permitted
by applicable law, any defense which it may now or hereafter have based upon
lack of personal jurisdiction or venue or FORUM NON CONVENIENS. The Owner hereby
irrevocably appoints and designates CT Corporation System, having an address at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, its true and lawful attorney-in-fact and duly
authorized agent for the limited purpose of accepting servicing of legal process
and the Owner agrees that service of process upon such party shall constitute
personal service of such process on such Person. The Owner shall maintain the
designation and appointment of such authorized agent until all amounts payable
under this Assignment shall have been paid in full. If such agent shall cease to
so act, the Owner shall immediately designate and appoint another such agent
satisfactory to the Indenture Trustee and shall promptly deliver to the
Indenture Trustee evidence in writing of such other agent's acceptance of such
appointment.
Section 5.05 CAPTIONS. The captions or headings in this
Assignment are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Assignment.
Section 5.06 GOVERNING LAW. This Assignment shall be governed
by and interpreted in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
Section 5.07 NO PARTNERSHIP. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the parties
hereto, and the services of each party shall be rendered as an independent
contractor and not as agent for any other party.
Section 5.08 COUNTERPARTS. This Assignment may be executed in
any number of counterparts and by different parties hereto on separate
counterpart, each of which shall be deemed to be an original. Such counterparts
shall constitute one and the same agreement.
Section 5.09 SURVIVAL. The representations, covenants and
agreements contained in or made pursuant to this Assignment in respect of either
party hereto shall survive the execution and delivery of this Assignment and
shall continue in effect so long as such party's obligations hereunder remain
outstanding.
-7-
Section 5.10 INTEGRATION. This Assignment and the Schedule and
Exhibits hereto constitute the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements, understandings or representations pertaining to the subject matter
hereof, whether oral or written. There are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as specifically set forth or incorporated herein.
Section 5.11 REPRODUCTION OF DOCUMENTS. This Assignment and
all documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements, certificates
and other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section 5.12 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This
Assignment shall be binding upon and inure to the benefit of the Owner and the
Indenture Trustee and their respective successors and assigns. The Owner shall
not have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Indenture Trustee. The Indenture Trustee, at
its sole option, shall have the right to assign this Assignment, the Indenture,
the Security Documents and any of its rights and interest hereunder in
accordance with the terms and provisions of the Indenture and the Security
Documents.
Section 5.13 GENERAL INTERPRETIVE PRINCIPLES. For purposes
of this Assignment except as otherwise expressly provided or unless the context
otherwise requires:
(a) the defined terms in this Assignment shall include the
plural as well as the singular, and the use of any gender herein shall be deemed
to include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Assignment;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
-8-
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Assignment as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 5.14 EFFECTIVE DATE OF TRANSACTION. Notwithstanding
the fact that this Assignment is dated as of _____________________, the
transactions set forth herein shall not be effective until the Delivery Date.
-9-
IN WITNESS WHEREOF, the Owner and the Indenture Trustee have
caused this Assignment to be duly executed and delivered by their respective
officers thereunto duly authorized all as of the day and year first above
written.
United States Trust Company of New York,
as Indenture Trustee
By:________________________________
Name:______________________________
Title:_____________________________
[Name of Owner], as Owner
By:________________________________
Name:______________________________
Title:_____________________________
Appendix I
NOTICE OF ASSIGNMENT
United States Trust Company of New York, as indenture trustee
(the "Indenture Trustee") and [Name of Owner] (the "Owner"), owner of the m.v.
"______________" (the "Vessel"), hereby give notice that by an assignment
contained in an Assignment of Earnings and Insurances, dated as of
______________, between the Owner and the Indenture Trustee, the Owner assigned
to the Indenture Trustee all of its right, title and interest under, to and in
all policies and contracts of insurance of whatsoever nature and all entries
with protection and indemnity clubs or societies now or hereafter taken out in
respect of the Vessel, its rights, disbursements, profits, including all claims
of whatsoever nature thereunder or otherwise. This Notice is to be endorsed on
all policies and certificates of entry evidencing such insurances.
All claims payable shall be subject to the following
conditions:
(i) Any claim payable in respect of an actual or
constructive or arranged or agreed or compromised total loss,
or loss in the event of the confiscation, compulsory
acquisition or requisition of the Vessel, for title or use, by
any government of any country or any department, agency or
representative thereof, pursuant to any present or future law,
proclamation, order, decree or otherwise, shall be payable to
the Owner, provided always that the written consent of the
Owner shall be obtained prior to the arranged or agreed or
compromised total loss being agreed with the underwriters
(insurers);
(ii) All other claims shall be released to the
repairer or salvor for the repair, salvage or other charges
involved or to the Owner as reimbursement if it has fully
repaired the damages and paid all of the salvage and other
charges;
Notwithstanding the foregoing, if there exists an Event of Default
under the Mortgage, dated _________, on the Vessel given by the Owner in favor
of the Indenture Trustee and the brokers and/or Underwriters (insurers) have
been so notified by the Indenture Trustee in writing, all claims shall be
payable to the Indenture Trustee.
The underwriters (insurers) agree that the Indenture Trustee shall be
advised immediately of the termination of this policy (entry), and in the event
of any failure by the Owner to pay premiums (dues or Club calls) as and when due
the Indenture Trustee shall be given at least fourteen (14) days' prior
telegraphic or telex notice of the cancellation or material alteration of this
policy (entry).
The Indenture Trustee shall have no obligations whatsoever to pay any
premiums or costs (dues or Club calls), but shall have the right to do so in the
event of non-payment by the Owner. The underwriters (insurers) shall promptly
advise the Indenture Trustee of any act of omission of which the Underwriters
(insurers) are aware that might void this policy (entry) or make the same
invalid or unenforceable in whole or in part.
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Endorsement
United States Trust Company of New York, as indenture trustee (the
"Indenture Trustee") and [Name of Owner] (the "Owner"), owner of the m.v.
"______________" (the "Vessel"), hereby give notice that by an assignment
contained in an Assignment of Earnings and Insurances, dated as of the Delivery
Date, between the Owner and the Indenture Trustee, the Owner assigned to the
Indenture Trustee all of its right, title and interest under, to and in all
policies and contracts of insurance of whatsoever nature and all entries with
protection and indemnity clubs or societies now or hereafter taken out in
respect of the Vessel, its rights, disbursements, profits or otherwise.
It is hereby noted that all claims shall be paid to the Owner
unless and until the Indenture Trustee, as mortgagee, shall have given notice in
writing that the Owner is in default under the First Preferred Ship Mortgage,
dated _____________ on the Vessel given by the Owner in favor of the Indenture
Trustee, as mortgagee, in which event such claims shall be payable to the
Indenture Trustee, as mortgagee. Any modification of the terms of this insurance
or cancellation or termination by reason of nonpayment of premiums, dues,
assessments, contributions or other amounts which may become due shall not
become effective against the interests of the Indenture Trustee, as mortgagee
its successors or assigns unless and until fourteen (14) days' prior telegraphic
or telex notice is given to the Indenture Trustee, as mortgagee its successors
or assigns of such modification, cancellation or termination.
[Name of Owner], as Owner
By:________________________________
Name:______________________________
Title:_____________________________
APPENDIX II
NOTICE OF ASSIGNMENT
United State Trust Company of New York, as indenture trustee (the
"Indenture Trustee") and [Name of Owner] (the "Owner"), owner of the m.v.
"_____________" (the "Vessel"), hereby give notice that by an assignment
contained in an Assignment of Earnings and Insurances, dated as of _________,
between the Owner and the Indenture Trustee,the Owner assigned to the Indenture
Trustee all of its right, title and interest under, to and in (a) any and all
moneys due and to become due to the Owner under any and all present and future
charter parties, bills of lading, contracts and other engagements of
affreightment or for the carriage or transportation of cargo, salvage and other
operations of every kind whatsoever of the Vessel; and (b) any and all claims
and causes of action for money, loss or damages that may accrue arising out of
or in any way connected with the present or future use, operation or management
of the Vessel (including proceeds of insurance against requisition for or other
loss of hire or use of the Vessel) or arising out of or in any way connected
with any and all such present and future charter parties, bills of lading,
contracts and other engagements of affreightment or for the carriage or
transportation of cargo, salvage and other operations of the Vessel and any and
all guaranties with respect to any of the foregoing, together with the income
and proceeds of any and all of the foregoing (all such right, title and interest
herein called the "Freights").
So long as the Assignment remains effective, upon your receipt of notice
of the occurrence of an Indenture Event of Default under the Indenture referred
to in the Assignment, pay any and all sums under your charter with the Owner
directly to or Chase Manhattan Bank, NYC, ABA #000000000, A/C #000-0-000000,
credit U.S. Trust Co. New York, further credit to A/C #04692300, Golden State
Petroleum Transp. Corp. Rev., Attention: Xxxxx Xxxxxxx otherwise to such other
account as you may be notified in writing at any time or from time to time.
Please execute the attached Letter of Consent and Acknowledgement of
Assignment and return it to the undersigned.
[Name of Owner], as Owner
By:________________________________
Name:______________________________
Title:_____________________________
Appendix III
LETTER OF CONSENT AND ACKNOWLEDGEMENT OF ASSIGNMENT
United States Trust Company of New York, indenture trustee
Dear Sirs:
The undersigned hereby consents to and acknowledges receipt of a signed
copy of the Assignment of Earnings and Insurances (the "Assignment"), dated as
of ___________, between [Name of Owner] (the "Owner") and yourselves as adequate
notice of such assignment to you of the Charter (the "Charter"), dated as of
December __, 1996, between us and the Owner and of all the right, title and
interest of the Owner in, to and under the Charter.
So long as the Assignment remains effective, we hereby agree that, upon
your notification to us in writing of the occurrence of an Indenture Event of
Default under the Indenture referred to in the Assignment, we shall pay any and
all sums which we are legally obligated to pay to the Owner or otherwise as
stated in and according to the Charter directly to ______________________ Golden
State Petroleum Revenue Account, Attention: _____________, or otherwise to such
other account as you may at any time or from time to time, designate by notice
to us in writing.
Payments of moneys under the Charter may be adjusted, reduced or
withheld only as expressly provided therein. Payments to you shall not be
subject to any right of set-off or defense by way of counterclaim or otherwise
which the undersigned may have against the Owner or any entity substituted for
it other than under the Charter and all payments once made to you will be final,
and once paid we will not, for any reason whatsoever, seek to recover from you
any such payment made to you by virtue of the Assignment or this Letter of
Consent.
We confirm that the terms of the Charter remain in full force and
effect and that the Owner is not presently in breach of the terms of the
Charter. We further confirm that the terms of the Charter have not been varied
or modified and that the terms of the Charter will not after the date hereof be
varied or modified without your prior written consent.
We confirm that we have received no prior notice of any assignment by
the Owner of any interest in the Charter.
The undersigned will not permit any amendment, modification,
cancellation or other alteration in the Charter, nor will it consent to or
accept the substitution thereunder of any party for the Owner without your prior
written consent.
Date: ______________ [Name of Charterer], as Charterer
By:________________________________
Name:______________________________
Title:_____________________________
SCHEDULE 1
ADDITIONAL DEFINED TERMS USED IN THE ASSIGNMENT
"AGREEMENT ON CONTRACT FOR TECHNICAL MATTERS" means, the Agreement
Regarding Technical Matters, dated as of the December 24, 1996 between the
Owner, Samsung Heavy Industries Co., LTD and Chevron Shipping Company, San
Francisco, U.S.A. (as Agent for the Initial Charterer).
"ASSIGNMENT" or "ASSIGNMENT OF EARNINGS AND INSURANCES" means the
assignment between the Owner and the Indenture Trustee, as amended from time to
time in accordance with the terms thereof, pursuant to which the Owner
collaterally assigns to the Indenture Trustee all of the Owner's right, title
and interest in, to and under the freights and hires (as well as any charters
entered into after the Delivery Date) with respect to the Vessel to secure its
obligations under the Indenture.
"ASSIGNMENT OF BUILDING CONTRACT" means, for each Vessel, the Building
Contract Assignment, dated as of December 1, 1996, between the related Owner and
the Indenture Trustee, pursuant to which such Owner collaterally assigns its
rights, title and interests in the related Building Contract and the Agreement
on Contract for Technical Matters to the Indenture Trustee.
"ASSIGNMENT OF BUILDING CONTRACT GUARANTEE" means, for each Building
Contract Guarantee, the Assignment of Building Contract Guarantee, dated as of
December 1, 1996, between the related Owner and the Indenture Trustee, as the
same may be amended from time to time, pursuant to which such Owner collaterally
assigns its rights, title and interest in the related Building Contract
Guarantee therein to the Indenture Trustee.
"ASSIGNMENT OF CHARTER" means the assignment between the Owner and the
Indenture Trustee, as amended from time to time in accordance with the terms
thereof, pursuant to which the Owner collaterally assigns to the Indenture
Trustee all of the Owner's right, title and interest in, to and under the
Initial Charter to secure its obligations under the Indenture.
"ASSIGNMENT OF CHARTER SUPPLEMENT" means, for each Charter Supplement,
the Assignment of Charter Supplement, dated the date of the Supplemental
Indenture, between the Owner of the Vessel and the Indenture Trustee, as the
same may be amended from time to time pursuant to which the Owner collaterally
assigns all of the Owner's right, title and interest therein to the Indenture
Trustee.
"ASSIGNMENT OF CHEVRON GUARANTEE" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Chevron Guarantee to secure its obligations under the Indenture.
"ASSIGNMENT OF MANAGEMENT AGREEMENT" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's
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right, title and interest in, to and under the Management Agreement to secure
its obligations under the Indenture.
"BUILDER" means, collectively, Samsung Corporation and Samsung Heavy
Industries, Ltd.
"BUILDING CONTRACT" means the Shipbuilding Contract, dated December 24,
1996, between the Builder and the Owner.
"BUILDING CONTRACT GUARANTEE" means the Irrevocable Installment Payment
Letter of Guarantee, dated December 24, 1996, given by the Building Contract
Guarantor to the Owner in connection with the Vessel.
"BUILDING CONTRACT GUARANTOR" means Korea Development Bank.
"CHEVRON" means Chevron Corporation, a Delaware corporation, and its
successors and assigns.
"CHEVRON GUARANTEE" means the Guarantee, dated December 24, 1996, given
by Chevron to the Owner in connection with the Initial Charter and the Charter
Supplement.
"CLOSING DATE" means December 24, 1996.
"COLLATERAL" means the collateral assigned, pledged or granted to the
Indenture Trustee pursuant to (i) this Assignment of Earnings and Insurances,
(ii) the Assignment of Charter, (iii) the Assignment of Charter Supplement, (iv)
the Mortgage, (v) the Assignment of Chevron Guarantee, (vi) the Assignment of
Management Agreement, (vii) the Assignment of Building Contract, (viii) the
Assignment of Building Contract Guarantee, (ix) the Issue of One Debenture and
(x) the Stock Pledge, together with all income and proceeds thereof.
"DELIVERY DATE" means the date the Vessel is accepted by the Owner from
the Builder under the Building Contract, which is the date of this Assignment.
"INDENTURE" means the Indenture, dated as of December 1, 1996 among the
Indenture Trustee, the Owner, [Name of Other Owner] and Golden State Petroleum,
pursuant to which the Notes were issued.
"INDENTURE TRUSTEE" means United States Trust Company of New York.
"INITIAL CHARTER" means with respect to each Vessel, the bareboat
charter, dated as of December 1, 1996, between the Initial Charterer and the
Owner.
"INITIAL CHARTERER" means Chevron Transport Corporation, a Liberian
corporation.
"ISSUE OF ONE DEBENTURE" means each Issue of One Debenture between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof,
-3-
pursuant to which the Owner grants to the Indenture Trustee a security interest
in all of its assets.
"MANAGEMENT AGREEMENT" means the agreement, dated as of December 1,
1996, between the Owner and the Manager pursuant to which the Manager agrees to
provide certain services to the Owner.
"MANAGER" means the Person performing the duties of the Manager under
the Management Agreement, initially Cambridge Fund Management L.L.C.
"MORTGAGE" means, with respect to the Vessel, the first preferred ship
mortgage on the Vessel granted by the Owner to the Indenture Trustee, as amended
from time to time in accordance with the terms of such Mortgage.
"OBLIGATIONS" means the payment, performance or obligations of any kind
or nature whatsoever of the Owner under and pursuant to the Indenture, any
Security Document and any instrument, agreement or document referred to therein.
"OWNER" means [Name of Owner], a company organized under the laws of
the Isle of Man.
"SECURITY DOCUMENTS" means the Indenture, the Mortgage, the Assignment
of Charter, the Assignments of Charter Supplements, this Assignment of Earnings
and Insurances, the Assignment of Chevron Guarantee, the Assignment of
Management Agreement, the Assignment of Building Contract, the Issue of One
Debenture, the Stock Pledge and the Assignment of Building Contract Guarantee,
collectively.
"VESSEL" means _________________.
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS............................... 1
ARTICLE II
ASSIGNMENT................................. 1
Section 2.01 Security Interest.......................................... 1
Section 2.02 Assignment of Earnings..................................... 1
Section 2.03 Assignment of Insurances................................... 2
Section 2.04 Assignment of Proceeds of Requisition of Use............... 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER................ 3
Section 3.01 Organization, Power and Status of the Owner................ 3
Section 3.02 Authorization; Enforceability; Execution and Delivery...... 3
Section 3.03 No Conflicts; Laws and Consents; No Default................ 3
Section 3.04 Governmental Approvals..................................... 3
Section 3.05 Litigation................................................. 4
Section 3.06 No Prior Assignment........................................ 4
ARTICLE IV
COVENANTS OF THE OWNER........................... 4
Section 4.01 Covenants of Owner......................................... 4
Section 4.02 Owner to Remain Liable..................................... 4
Section 4.03 Further Assurances......................................... 5
Section 4.04 Indenture Trustee as Attorney-in-Fact of Owner............. 5
Page
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ARTICLE V
MISCELLANEOUS PROVISIONS........................... 5
Section 5.01 Amendment.................................................. 5
Section 5.02 Severability............................................... 5
Section 5.03 Notices.................................................... 6
Section 5.04 Consent to Jurisdiction.................................... 6
Section 5.05 Captions................................................... 6
Section 5.06 Governing Law.............................................. 6
Section 5.07 No Partnership............................................. 6
Section 5.08 Counterparts............................................... 6
Section 5.09 Survival................................................... 6
Section 5.10 Integration................................................ 7
Section 5.11 Reproduction of Documents.................................. 7
Section 5.12 Successors and Assigns; Assignment......................... 7
Section 5.13 General Interpretive Principles............................ 7
Section 5.14 Effective Date of Transaction.............................. 8
EXHIBIT E
---------
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK,
AS INDENTURE TRUSTEE
and
Golden State Petro (IOM I-A) PLC
-----------------------------------
ASSIGNMENT OF GUARANTEE
Dated as of December 1, 1996
-----------------------------------
===============================================================================
Assignment of Guarantee, dated as of December 1, 1996 (the
"Assignment"), between Golden State Petro (IOM I-A) PLC (the "Owner") and United
States Trust Company of New York (the "Indenture Trustee"), not in its
individual capacity but solely as trustee under the Indenture (the "Indenture"),
dated as of the date hereof, among the Owner, the Indenture Trustee, Golden
State Petro (IOM I-B) PLC ("Golden State Petro B") and Golden State Petroleum
Transport Corporation ("Golden State Petroleum"), as agent for the Owner and
Golden State Petro B.
PRELIMINARY STATEMENT
On the Closing Date, Golden State Petroleum, as agent for the
Owner and Golden State Petro B, will issue Notes in connection with the
financing of the construction of the Vessel. The net proceeds of such issuance
will be deposited into the Pre-Funding Account. Pursuant to the Indenture, the
Allocated Principal Amount of the Mortgage Notes for the Vessel will be used,
INTER ALIA, to make the installments due under the Shipbuilding Contract for the
Vessel. As of the date of this Assignment, the Owner has agreed to bareboat
charter the Vessel to Chevron Transport Corporation (the "Initial Charterer")
pursuant to the Initial Charter. The obligations of the Initial Charterer under
the Initial Charter are guaranteed by Chevron Corporation (the "Guarantor")
pursuant to the Chevron Guarantee. The Vessel will be managed by Cambridge Fund
Management L.L.C. (the "Manager") pursuant to the Management Agreement, dated as
of the date hereof, between the Owner and the Manager. As collateral security
for its obligations under the Indenture, the Owner has and will assign, pledge,
mortgage and grant the Indenture Trustee a security interest in, INTER ALIA, the
Vessel, the Initial Charter and the Chevron Guarantee.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and of other valuable consideration, receipt of
which is hereby acknowledged, the Owner and the Indenture Trustee hereby agree
as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined in Schedule 1 to this Assignment,
capitalized terms used in this Assignment shall have the meanings assigned to
such terms in the Indenture.
ARTICLE II
ASSIGNMENT
Section 2.01 SECURITY INTEREST. This Assignment is made and
delivered as security for the Obligations.
Section 2.02 ASSIGNMENT. In order to provide for the payment
of and as security for the Obligations, the Owner has granted, bargained,
assigned, transferred, conveyed, mortgaged, pledged and granted a security
interest in and confirmed, and does hereby grant, bargain, assign, transfer,
convey, mortgage, pledge and grant a security interest in and confirm, to the
Indenture Trustee, its successors and assigns, for its and their respective
successors' and assigns' own proper use and benefit, all of the Owner's right,
title and interest in and to the
-2-
Chevron Guarantee, including without limitation any moneys whatsoever payable to
the Owner under the Chevron Guarantee, together with the income and proceeds
thereof and all other rights and benefits whatsoever accruing to the Owner under
the Chevron Guarantee; PROVIDED, HOWEVER, that the Owner shall keep the
Indenture Trustee fully and effectively indemnified from and against all
actions, losses, claims, proceedings, costs, demands and liabilities which may
be suffered by the Indenture Trustee under or by virtue of the Chevron Guarantee
or this Assignment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER
The Owner hereby represents and warrants to the Indenture
Trustee as follows:
Section 3.01 ORGANIZATION, POWER AND STATUS OF THE OWNER. The
Owner (a) is a corporation duly formed, validly existing and in good standing
under the laws of the Isle of Man and (b) is duly authorized, to the extent
necessary, to do business in each jurisdiction where the character of its
properties or the nature of its activities makes such qualification necessary.
The Owner has all requisite corporate power and authority to own and operate the
property it purports to own and to carry on its business as now being conducted
and as proposed to be conducted in respect of the Vessel.
Section 3.02 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND
DELIVERY. (a) The Owner has all necessary corporate power and authority to
execute, deliver and perform under this Assignment.
(b) All action on the part of the Owner that is required for
the authorization, execution, delivery and performance of this Assignment has
been duly and effectively taken; and the execution, delivery and performance of
this Assignment does not require the approval or consent of any Person except
for such consents and approvals as have been obtained on or prior to the Closing
Date.
(c) This Assignment has been duly executed and delivered by
the Owner. This Assignment constitutes the legal, valid and binding obligation
of the Owner, enforceable against it in accordance with the terms thereof.
Section 3.03 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT. (a)
Neither the execution, delivery and performance of this Assignment nor the
consummation of any of the transactions contemplated hereby nor performance of
or compliance with the terms and conditions hereof (i) contravenes any
Requirement of Law applicable to the Owner or (ii) constitutes a default under
the Indenture or any Security Document.
(b) The Owner is in compliance with and not in default under
any and all Requirements of Law applicable to the Owner and all terms and
provisions of this Assignment.
-3-
Section 3.04 GOVERNMENTAL APPROVALS. All Governmental
Approvals which are required to be obtained in the name of the Owner in
connection with the execution, delivery and performance by the Owner of this
Assignment have been obtained and are in effect on the Closing Date.
Section 3.05 LITIGATION. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending against the Owner or, to the best of the Owner's knowledge, threatened
against the Owner or pending or threatened against any property or other assets
or rights of the Owner with respect to this Assignment.
Section 3.06 NO PRIOR ASSIGNMENT. The Owner has not assigned
or pledged, and hereby covenants that it will not assign or pledge, so long as
this Assignment shall remain in effect, the Chevron Guarantee or any part of the
rights, titles and interests hereby assigned, to anyone other than the Indenture
Trustee, or its successors or assigns.
ARTICLE IV
COVENANTS OF THE OWNER
The Owner hereby covenants and agrees that so long as any of
the Obligations remains outstanding:
Section 4.01 CONSENT OF GUARANTOR. On the Closing Date, the
Owner shall deliver to the Guarantor a copy of this Assignment and shall procure
the execution by the Guarantor of the Consent and Acknowledgment set out in
Exhibit A hereto and deliver said Consent and Acknowledgment to the Indenture
Trustee on the Closing Date.
Section 4.02 ENFORCEMENT OF CHEVRON GUARANTEE. (a) The Owner
will do or permit to be done each and every act or thing which the Indenture
Trustee may from time to time require to be done for the purpose of enforcing
the Indenture Trustee's rights under the Chevron Guarantee and this Assignment.
(b) The Owner shall cause all moneys hereby assigned or agreed
to be assigned or arising from or in connection with any of the rights, title,
interest and benefits of the Owner under the Chevron Guarantee shall be paid to
the credit of Chase Manhattan Bank NYC, ABA #000000000, A/C #000-0-000000,
credit U.S. Trust Co NY, further credit to A/C #04692300, Golden State Petroleum
Transport Revenue Account, Attention: Xxxxx Xxxxxxx or to such other account as
the Indenture Trustee may from time to time direct.
(c) The Owner will not exercise any right or powers conferred
on it by the Chevron Guarantee in connection with any default or alleged default
by the Guarantor thereunder (including without limitation the right of
termination and substitution) unless and until requested so to do by the
Indenture Trustee whereupon the Owner agrees that it will do so provided always
that the Indenture Trustee shall not be responsible in any way whatsoever in the
event that the exercise of any right or power (including the right of
termination and substitution) be thereafter adjudged improper or to constitute a
repudiation of the Chevron Guarantee by the Owner.
-4-
Section 4.03 AMENDMENT OF CHEVRON GUARANTEE; ASSIGNMENT OF
CHEVRON GUARANTEE. (a) The Owner will not, except with the previous written
consent of the Indenture Trustee, agree to any variation of the Chevron
Guarantee or release the Guarantor from any of its obligations thereunder or
waive any breach of the Guarantor's obligations thereunder or consent to any
such act or omission of the Guarantor as would otherwise constitute such breach.
(b) The Owner will not, except with the previous written
consent of the Indenture Trustee, assign the Chevron Guarantee to any other
Person.
Section 4.04 FURTHER ASSURANCES. The Owner will at any time
and from time to time, upon the written request of the Indenture Trustee,
promptly and duly execute and deliver any and all such further instruments and
documents and take such action as the Indenture Trustee may deem desirable in
order to obtain the full benefits of this Assignment and of the rights and
powers herein granted.
Section 4.05 INDENTURE TRUSTEE AS ATTORNEY-IN-FACT OF OWNER.
The Owner hereby constitutes the Indenture Trustee, and its successors and
assigns, its true and lawful attorney-in-fact, irrevocably, with full power in
its own name, in the name of its agents or nominees or in the name of the Owner
or otherwise, to ask, require, demand, receive, enforce and give acquittance
for, any and all moneys and claims for moneys due and to become due and payable
under or arising out of the Chevron Guarantee, to endorse any checks or other
instruments or orders in connection therewith and to file any claims or take any
action or institute any proceedings which to the Indenture Trustee may seem to
be necessary or advisable under this Assignment. Any action or proceeding
brought by the Indenture Trustee pursuant to any of the provisions of this
Assignment or otherwise and any claim made by the Indenture Trustee hereunder
may be compromised, withdrawn or otherwise dealt with by the Indenture Trustee
without any notice to or approval of the Owner.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 AMENDMENT. This Assignment may be amended from
time to time by written agreement signed by the parties hereto.
Section 5.02 SEVERABILITY. If any provision of this Assignment
is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. The invalidity of any one or more phrases, sentences,
clauses or Sections of this Assignment contained, shall not affect the remaining
portions of this Assignment, or any part thereof.
Section 5.03 NOTICES. All demands, notices and communications
hereunder shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall
-5-
be deemed to have been duly given upon receipt (a) in the case of the Indenture
Trustee, at the following address: 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust Department, (b) in the case of the Owner, at
the following address: 00-00 Xxxxx Xxxxxx, Xxxxxxx, Xxxx of Man, or at other
such address as shall be designated by such party in a written notice to the
other parties.
Section 5.04 CONSENT TO JURISDICTION. Any legal suit, action
or proceeding against the Owner arising out of or relating to this Assignment,
or any transaction contemplated hereby, may be instituted in any federal or
state court in The City of New York, State of New York, and the Owner hereby
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding. The Owner hereby waives, to the fullest extent permitted
by applicable law, any defense which it may now or hereafter have based upon
lack of personal jurisdiction or venue or FORUM NON CONVENIENS. The Owner hereby
irrevocably appoints and designates CT Corporation System, having an address at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, its true and lawful attorney-in-fact and duly
authorized agent for the limited purpose of accepting servicing of legal process
and the Owner agrees that service of process upon such party shall constitute
personal service of such process on such Person. The Owner shall maintain the
designation and appointment of such authorized agent until all amounts payable
under this Assignment shall have been paid in full. If such agent shall cease to
so act, the Owner shall immediately designate and appoint another such agent
satisfactory to the Indenture Trustee and shall promptly deliver to the
Indenture Trustee evidence in writing of such other agent's acceptance of such
appointment.
Section 5.05 CAPTIONS. The captions or headings in this
Assignment are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Assignment.
Section 5.06 GOVERNING LAW. This Assignment shall be governed
by and interpreted in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
Section 5.07 NO PARTNERSHIP. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the parties
hereto, and the services of each party shall be rendered as an independent
contractor and not as agent for any other party.
Section 5.08 COUNTERPARTS. This Assignment may be executed in
any number of counterparts and by different parties hereto on separate
counterpart, each of which shall be deemed to be an original. Such counterparts
shall constitute one and the same agreement.
Section 5.09 SURVIVAL. The representations, covenants and
agreements contained in or made pursuant to this Assignment in respect of either
party hereto shall survive the execution and delivery of this Assignment and
shall continue in effect so long as such party's obligations hereunder remain
outstanding.
-6-
Section 5.10 INTEGRATION. This Assignment and the Schedule and
Exhibits hereto constitute the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, understandings or representations pertaining to the subject
matter hereof, whether oral or written. There are no warranties, representations
or other agreements between the parties in connection with the subject matter
hereof except as specifically set forth or incorporated herein.
Section 5.11 REPRODUCTION OF DOCUMENTS. This Assignment and
all documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements, certificates
and other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section 5.12 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This
Assignment shall be binding upon and inure to the benefit of the Owner and the
Indenture Trustee and their respective successors and assigns. The Owner shall
not have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Indenture Trustee. The Indenture Trustee, at
its sole option, shall have the right to assign this Assignment, the Indenture,
the Security Documents and any of its rights and interest hereunder in
accordance with the terms and provisions of the Indenture and the Security
Documents.
Section 5.13 GENERAL INTERPRETIVE PRINCIPLES. For purposes of
this Assignment except as otherwise expressly provided or unless the context
otherwise requires:
(a) the defined terms in this Assignment shall include the
plural as well as the singular, and the use of any gender herein shall be deemed
to include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Assignment;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
-7-
(e) the words "herein", "hereof", "hereunder" and other
words of similar import refer to this Assignment as a whole and not to any
particular provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 5.14 EFFECTIVE DATE OF TRANSACTION. Notwithstanding
the fact that this Assignment is dated as of December 24, 1996, the transactions
set forth herein shall not be effective until the Closing Date.
IN WITNESS WHEREOF, the Owner and the Indenture Trustee have
caused this Assignment to be duly executed and delivered by their respective
officers thereunto duly authorized all as of the day and year first above
written.
United States Trust Company of New York,
as Indenture Trustee
By:/s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Golden State Petro (IOM I-A) PLC, as Owner
By:/s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
Exhibit A
LETTER OF ACKNOWLEDGMENT
TO ASSIGNMENT OF GUARANTEE
[Date]
United States Trust Company of New York,
as Indenture Trustee
Dear Sirs:
Chevron Corporation (the "Guarantor") hereby consents to and
acknowledges receipt of a signed copy of the Assignment of Guarantee (the
"Assignment"), dated as of December 1, 1996, between Golden State Petro (IOM
I-A) PLC (the "Owner") and United States Trust Company of New York, not in its
individual capacity but solely as trustee (the "Indenture Trustee") as adequate
notice of such assignment to the Indenture Trustee of the Chevron Guarantee (as
defined in the Assignment) and of all the right, title and interest of the Owner
in, to and under the Chevron Guarantee. Any capitalized term not otherwise
defined herein shall have the meaning assigned to such term in the Assignment.
The Guarantor confirms that it (a) has reviewed the terms of
the Initial Charter and (b) understands the rights and obligations of Chevron
Transport Corporation (the "Charterer") pursuant to the terms and conditions
thereof.
Notwithstanding anything to the contrary contained in the
Chevron Guarantee including without limitation the Guarantor's right to
terminate the Chevron Guarantee as provided therein, so long as the Initial
Charter and the Assignment are each in effect, the Guarantor hereby agrees that
the Chevron Guarantee will continue in full force and effect and that, upon
notification to the Guarantor of the occurrence of an Event of Default under the
Initial Charter, the Guarantor shall (i) perform any and all obligations which
the Guarantor is obligated to perform according to the Chevron Guarantee and
(ii) pay any and all sums which the Guarantor is legally obligated to pay to the
Owner or otherwise as stated in and according to the Chevron Guarantee directly
to _______________________ Golden State Petroleum Revenue Account, Attention:
___________________, or otherwise to such other account as you may at any time
or from time to time, designate by notice to the Guarantor in writing. Payments
to the Indenture Trustee shall not be subject to any right of set-off or defense
by way of counterclaim or otherwise which the Guarantor may have against the
Owner or any entity substituted for it and all payments once made to the
Indenture Trustee will be final, and once paid the Guarantor will not, for any
reason whatsoever, seek to recover from the Indenture Trustee any such payment
made to the Indenture Trustee by virtue of the Assignment or this Letter of
Consent.
The Guarantor confirms to the Indenture Trustee that (a) the
Guarantor is a corporation duly organized and existing in good standing under
the laws of the State of Delaware, (b) the making and performance of this Letter
of Consent in accordance with its terms
-2-
have been duly authorized by all necessary corporate action on the part of the
Guarantor, do not contravene the Guarantor's Certificate of Incorporation or any
indenture, credit agreement or other contractual agreement to which the
Guarantor is a party or by which it is bound or any law binding on the
Guarantor, (c) the making and performance of the Chevron Guarantee in accordance
with its terms have been duly authorized by all necessary corporate action on
the part of the Guarantor, do not require any stockholder approval, do not
contravene the Guarantor's Certificate of Incorporation or any indenture, credit
agreement or other contractual agreement to which the Guarantor is a party or by
which it is bound, and do not, as to the making thereof, contravene any law
binding on the Guarantor and, to the best knowledge of the Guarantor do not, as
to the performance thereof, contravene any law binding on the Guarantor, (d) the
Chevron Guarantee constituted as of the date thereof and at all times
thereafter, to and including the date of this Letter of Consent, a binding
obligation of the Guarantor enforceable against the Guarantor in accordance with
its terms, and this Letter of Consent is a binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, (e) the terms of
the Chevron Guarantee remain in full force and effect and it constitutes, as
modified by this Letter of Consent, the entire agreement between the parties
thereto, (f) the terms of the Chevron Guarantee have not been varied or
modified, other than pursuant to the terms of this Letter of Consent, and the
terms of the Chevron Guarantee will not after the date hereof be varied or
modified without the prior written consent of the Indenture Trustee and (g) the
Guarantor has received no prior notice of any assignment by the Owner of any
interest in the Chevron Guarantee.
The Guarantor covenants, so long as any Initial Charter is in effect:
(a) to file with the Indenture Trustee, within 15 days after
the Guarantor is required to file the same with the Commission, copies
of the annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which the Guarantor may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, or, if the
Guarantor is not required to file information, documents, or reports
pursuant to either of such Sections of the Exchange Act, then to file
with the Indenture Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents, and reports
which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities
exchange, as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Indenture Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time
by the Commission, such additional information, documents and reports
with respect to compliance by the Guarantor with the conditions and
covenants provided for in the Serial Indenture as may be required from
time to time by such rules and regulations;
-3-
(c) to transmit to the holders of the Serial Notes in the
manner and to the extent required by Section 313(c) of the Trust
Indenture Act, within 30 days after the filing thereof with the
Indenture Trustee, such summaries of any information, documents and
reports required to be filed by the Guarantor pursuant to subsections
(a) and (b) of this Letter of Consent as may be required by rules and
regulations prescribed from time to time by the Commission; and
(d) furnish to the Indenture Trustee, on or before each August
1, commencing in 1997, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer of
the Guarantor as to his or her knowledge of the Guarantor's compliance
with all conditions and covenants under the Serial Indenture. For
purposes of this subsection (d), such compliance shall be determined
without regard to any period of grace or requirement of notice provided
under the Serial Indenture.
CHEVRON CORPORATION, as Guarantor
By: _____________________________________
Name: ___________________________________
Title: __________________________________
SCHEDULE 1
ADDITIONAL DEFINED TERMS USED IN THE ASSIGNMENT
"AGREEMENT ON CONTRACT FOR TECHNICAL MATTERS" means, the Agreement
Regarding Technical Matters, dated as of the Closing Date, between the Owner,
Samsung Heavy Industries Co., LTD and Chevron Shipping Company, San Francisco,
U.S.A. (as Agent for the Initial Charterer).
"ASSIGNMENT" or "ASSIGNMENT OF CHARTER" means the assignment between
the Owner and the Indenture Trustee, as amended from time to time in accordance
with the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Initial Charter to secure its obligations under the Indenture.
"ASSIGNMENT OF BUILDING CONTRACT" means, for each Vessel, the Building
Contract Assignment, dated as of the Closing Date, between the related Owner and
the Indenture Trustee, pursuant to which such Owner collaterally assigns its
rights, title and interests in the related Building Contract and the Agreement
on Contract for Technical Matters to the Indenture Trustee.
"ASSIGNMENT OF BUILDING CONTRACT GUARANTEE" means, for each Building
Contract Guarantee, the Assignment of Building Contract Guarantee, dated as of
the Closing Date, between the related Owner and the Indenture Trustee, as the
same may be amended from time to time, pursuant to which such Owner collaterally
assigns its rights, title and interest in the related Building Contract
Guarantee therein to the Indenture Trustee.
"ASSIGNMENT OF CHARTER SUPPLEMENT" means, for each Charter Supplement,
the Assignment of Charter Supplement, dated the date of the Supplemental
Indenture, between the Owner of the Vessel and the Indenture Trustee, as the
same may be amended from time to time pursuant to which the Owner collaterally
assigns all of the Owner's right, title and interest therein to the Indenture
Trustee.
"ASSIGNMENT OF CHEVRON GUARANTEE" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Chevron Guarantee to secure its obligations under the Indenture.
"ASSIGNMENT OF EARNINGS AND INSURANCES" means the assignment between
the Owner and the Indenture Trustee, as amended from time to time in accordance
with the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the freights and hires (as well as any charters entered into after the Delivery
Date) with respect to the Vessel to secure its obligations under the Indenture.
-2-
"ASSIGNMENT OF MANAGEMENT AGREEMENT" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Management Agreement to secure its obligations under the Indenture.
"BUILDER" means, collectively, Samsung Corporation and Samsung Heavy
Industries, Ltd.
"BUILDING CONTRACT" means the Shipbuilding Contract, dated December 24,
1996, between the Builder and the Owner.
"BUILDING CONTRACT GUARANTEE" means the Irrevocable Installment Payment
Letter of Guarantee, dated December 24, 1996, given by the Building Contract
Guarantor to the Owner in connection with the Vessel.
"BUILDING CONTRACT GUARANTOR" means Korea Development Bank.
"CHEVRON" means Chevron Corporation, a Delaware corporation, and its
successors and assigns.
"CHEVRON GUARANTEE" means the Guarantee, dated the Closing Date, given
by Chevron to the Owner in connection with the Initial Charter and the Charter
Supplement.
"CLOSING DATE" means December 24, 1996.
"COLLATERAL" means the collateral assigned, pledged or granted to the
Indenture Trustee pursuant to (i) this Assignment of Charter, (ii) the
Assignment of Earnings and Insurances, (iii) the Assignment of Charter
Supplement, (iv) the Mortgage, (v) the Assignment of Chevron Guarantee, (vi) the
Assignment of Management Agreement, (vii) the Assignment of Building Contract,
(viii) the Assignment of Building Contract Guarantee, (ix) the Issue of One
Debenture and (x) the Stock Pledge, together with all income and proceeds
thereof.
"DELIVERY DATE" means the date the Vessel is accepted by the Owner from
the Builder under the Building Contract, which is the date of this Assignment.
"INDENTURE" means the Indenture, dated as of December 1, 1996 among the
Indenture Trustee, the Owner, Golden State Petro B and Golden State Petroleum,
pursuant to which the Notes were issued.
"INDENTURE TRUSTEE" means United States Trust Company of New York.
"INITIAL CHARTER" means with respect to each Vessel, the bareboat
charter, dated as of December 24, 1996, between the Initial Charterer and the
Owner.
"INITIAL CHARTERER" means Chevron Transport Corporation, a Liberian
corporation.
-3-
"ISSUE OF ONE DEBENTURE" means each Issue of One Debenture between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner grants to the Indenture Trustee a
security interest in all of its assets.
"MANAGEMENT AGREEMENT" means the agreement, dated the Closing Date,
between the Owner and the Manager pursuant to which the Manager agrees to
provide certain services to the Owner.
"MANAGER" means the Person performing the duties of the Manager under
the Management Agreement, initially Cambridge Fund Management L.L.C.
"MORTGAGE" means, with respect to the Vessel, the first preferred ship
mortgage on the Vessel granted by the Owner to the Indenture Trustee, as amended
from time to time in accordance with the terms of such Mortgage.
"OBLIGATIONS" means the payment, performance or obligations of any kind
or nature whatsoever of the Owner under and pursuant to the Indenture, any
Security Document and any instrument, agreement or document referred to therein.
"OWNER" means Golden State Petro (IOM I-A) PLC, a company organized
under the laws of the Isle of Man.
"SECURITY DOCUMENTS" means the Indenture, the Mortgage, this Assignment
of Charter, the Assignments of Charter Supplements, the Assignment of Earnings
and Insurances, the Assignment of Chevron Guarantee, the Assignment of
Management Agreement, the Assignment of Building Contract, the Issue of One
Debenture, the Stock Pledge and the Assignment of Building Contract Guarantee,
collectively.
"VESSEL" means Hull 1228.
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
............................................................................. 1
ARTICLE II
ASSIGNMENT
............................................................................. 1
Section 2.01 SECURITY INTEREST.......................................... 1
-----------------
Section 2.02 ASSIGNMENT................................................. 1
----------
ARTICLE III
............................................................................. 2
REPRESENTATIONS AND WARRANTIES OF THE OWNER
............................................................................. 2
Section 3.01 ORGANIZATION, POWER AND STATUS OF THE OWNER................ 2
-------------------------------------------
Section 3.02 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND DELIVERY...... 2
-----------------------------------------------------
Section 3.03 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT................ 2
-------------------------------------------
Section 3.04 GOVERNMENTAL APPROVALS..................................... 2
----------------------
Section 3.05 LITIGATION................................................. 3
----------
Section 3.06 NO PRIOR ASSIGNMENT........................................ 3
-------------------
ARTICLE IV
COVENANTS OF THE OWNER............................... 3
Section 4.01 CONSENT OF GUARANTOR....................................... 3
--------------------
Section 4.02 ENFORCEMENT OF CHEVRON GUARANTEE........................... 3
--------------------------------
Section 4.03 AMENDMENT OF CHEVRON GUARANTEE; ASSIGNMENT OF
----------------------------------------------
CHEVRON GUARANTEE.......................................... 3
-----------------
Section 4.04 FURTHER ASSURANCES......................................... 4
------------------
Section 4.05 INDENTURE TRUSTEE AS ATTORNEY-IN-FACT OF OWNER............. 4
----------------------------------------------
ARTICLE V
MISCELLANEOUS PROVISIONS................................. 4
Section 5.01 AMENDMENT.................................................. 4
---------
Section 5.02 SEVERABILITY............................................... 4
------------
Section 5.03 NOTICES.................................................... 4
-------
Section 5.04 CONSENT TO JURISDICTION.................................... 5
-----------------------
Section 5.05 CAPTIONS................................................... 5
--------
Section 5.06 GOVERNING LAW.............................................. 5
-------------
Section 5.07 NO PARTNERSHIP............................................. 5
--------------
Section 5.08 COUNTERPARTS............................................... 5
------------
Section 5.09 SURVIVAL................................................... 5
--------
Section 5.10 INTEGRATION................................................ 6
-----------
Section 5.11 REPRODUCTION OF DOCUMENTS.................................. 6
-------------------------
Section 5.12 SUCCESSORS AND ASSIGNS; ASSIGNMENT......................... 6
----------------------------------
Section 5.13 GENERAL INTERPRETIVE PRINCIPLES............................ 6
-------------------------------
Section 5.14 EFFECTIVE DATE OF TRANSACTION.............................. 7
-----------------------------
EXHIBIT F
---------
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK,
as INDENTURE TRUSTEE
and
GOLDEN STATE PETRO (IOM I-A) PLC
-----------------------------------
ASSIGNMENT OF MANAGEMENT AGREEMENT
Dated as of December 1, 1996
-----------------------------------
================================================================================
Assignment of Management Agreement, dated as of December 1,
1996 (the "Assignment"), between Golden State Petro (IOM I-A) PLC (the "Owner")
and United States Trust Company of New York (the "Indenture Trustee"), not in
its individual capacity but solely as trustee under the Indenture (the
"Indenture"), dated as of the date hereof, among the Owner, the Indenture
Trustee, Golden State Petro (IOM I-B) PLC ("Golden State Petro (IOM I-B) PLC")
and Golden State Petroleum Transport Corporation ("Golden State Petroleum"), as
agent for the Owner and Golden State Petro (IOM I-B) PLC.
PRELIMINARY STATEMENT
On the Closing Date, Golden State Petroleum, as agent for the
Owner and Golden State Petro (IOM I-B) PLC, will issue Notes in connection with
the financing of the construction of the Vessel. The net proceeds of such
issuance will be deposited into the Pre-Funding Account. Pursuant to the
Indenture, the Allocated Principal Amount of the Mortgage Notes for the Vessel
will be used, INTER ALIA, to make the installments due under the Shipbuilding
Contract for the Vessel. As of the date of this Assignment, the Owner has agreed
to bareboat charter the Vessel to Chevron Transport Corporation (the "Initial
Charterer") pursuant to the Initial Charter. The obligations of the Initial
Charterer under the Initial Charter will be guaranteed by Chevron Corporation
(the "Guarantor") pursuant to the Chevron Guarantee. The Vessel will be managed
by Cambridge Fund Management L.L.C. (the "Manager") pursuant to the Management
Agreement, dated as of the date hereof, between the Owner and the Manager. As
collateral security for its obligations under the Indenture, the Owner has and
will assign, pledge, mortgage and grant the Indenture Trustee a security
interest in, INTER ALIA, the Vessel, the Initial Charter, the Chevron Guarantee
and the Management Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and of other valuable consideration, receipt of
which is hereby acknowledged, the Owner and the Indenture Trustee hereby agree
as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined in Schedule 1 to this Assignment,
capitalized terms used in this Assignment shall have the meanings assigned to
such terms in the Indenture.
ARTICLE II
ASSIGNMENT
Section 2.01 SECURITY INTEREST. This Assignment is made and
delivered as security for the Obligations.
Section 2.02 ASSIGNMENT. In order to provide for the payment
of and as security for the Obligations, the Owner has granted, bargained,
assigned, transferred, conveyed, mortgaged, pledged and granted a security
interest in and confirmed, and does hereby grant, bargain, assign, transfer,
convey, mortgage, pledge and grant a security interest in and confirm, to the
Indenture Trustee, its successors and assigns, for its and their respective
successors' and assigns' own proper use and benefit, all of the Owner's right,
title and interest in and to the
-2-
Management Agreement, including without limitation any moneys whatsoever payable
to the Owner under the Management Agreement, together with the income and
proceeds thereof and all other rights and benefits whatsoever accruing to the
Owner under the Management Agreement; PROVIDED, HOWEVER, that the Owner shall
keep the Indenture Trustee fully and effectively indemnified from and against
all actions, losses, claims, proceedings, costs, demands and liabilities which
may be suffered by the Indenture Trustee under or by virtue of the Management
Agreement or this Assignment.
Section 2.03 OWNER TO REMAIN LIABLE. Anything in this
Assignment contained to the contrary notwithstanding, the Owner shall remain
liable under the Management Agreement, and shall observe, perform and fulfill
all of the conditions and obligations to be observed, performed and fulfilled by
it thereunder, and the Indenture Trustee shall have no obligation or liability
of any kind whatsoever thereunder or by reason of or arising out of this
Assignment, nor shall the Indenture Trustee be under any liability whatsoever in
the event of any failure by the Owner to perform its obligations thereunder or
be required or obligated in any manner to observe, perform or fulfill any of the
conditions or obligations of the Owner thereunder or pursuant thereto, or to
make any payment or to make any inquiry as to the nature or sufficiency of any
payment received by it or the Owner thereunder, or to present or file any claim,
or to take any other action to collect or enforce the payment of any amounts
which may have been assigned to the Indenture Trustee or to which the Indenture
Trustee may be entitled hereunder at any time or times.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER
The Owner hereby represents and warrants to the Indenture
Trustee as follows:
Section 3.01 ORGANIZATION, POWER AND STATUS OF THE OWNER. The
Owner (a) is a corporation duly formed, validly existing and in good standing
under the laws of the Isle of Man and (b) is duly authorized, to the extent
necessary, to do business in each jurisdiction where the character of its
properties or the nature of its activities makes such qualification necessary.
The Owner has all requisite corporate power and authority to own and operate the
property it purports to own and to carry on its business as now being conducted
and as proposed to be conducted in respect of the Vessel.
Section 3.02 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND
DELIVERY. (a) The Owner has all necessary corporate power and authority to
execute, deliver and perform under this Assignment.
(b) All action on the part of the Owner that is required for
the authorization, execution, delivery and performance of this Assignment has
been duly and effectively taken; and the execution, delivery and performance of
this Assignment does not require the approval or consent of any Person except
for such consents and approvals as have been obtained on or prior to the Closing
Date.
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(c) This Assignment has been duly executed and delivered by
the Owner. This Assignment constitutes the legal, valid and binding obligation
of the Owner, enforceable against it in accordance with the terms thereof.
Section 3.03 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT. (a)
Neither the execution, delivery and performance of this Assignment nor the
consummation of any of the transactions contemplated hereby nor performance of
or compliance with the terms and conditions hereof (i) contravenes any
Requirement of Law applicable to the Owner or (ii) constitutes a default under
the Indenture or any Security Document.
(b) The Owner is in compliance with and not in default under
any and all Requirements of Law applicable to the Owner and all terms and
provisions of this Assignment.
Section 3.04 GOVERNMENTAL APPROVALS. All Governmental
Approvals which are required to be obtained in the name of the Owner in
connection with the execution, delivery and performance by the Owner of this
Assignment have been obtained and are in effect on the Closing Date.
Section 3.05 LITIGATION. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending against the Owner or, to the best of the Owner's knowledge, threatened
against the Owner or pending or threatened against any property or other assets
or rights of the Owner with respect to this Assignment.
Section 3.06 NO PRIOR ASSIGNMENT. The Owner has not assigned
or pledged, and hereby covenants that it will not assign or pledge, so long as
this Assignment shall remain in effect, the Management Agreement or any part of
the rights, titles and interests hereby assigned, to anyone other than the
Indenture Trustee, or its successors or assigns.
Section 3.07 THE MANAGEMENT AGREEMENT. The Management
Agreement constitutes the legal, valid and binding obligation of the Owner as
"Owner" thereunder and is in full force and effect in the form of Exhibit "A"
attached hereto; there are no amendments, additions, addenda or modifications
thereto; said Exhibit "A" represents the entirety of the management arrangements
referred to therein; and neither of the parties thereto is in default
thereunder.
ARTICLE IV
COVENANTS OF THE OWNER
The Owner hereby covenants and agrees that so long as any of
the Obligations remains outstanding:
Section 4.01 CONSENT OF MANAGER. On the Closing Date, the
Owner shall deliver to the Manager a copy of this Assignment and shall procure
the execution by the Manager of the Letter of Consent and Acknowledgment set out
in Exhibit A hereto and deliver said Letter of Consent and Acknowledgment to the
Indenture Trustee on the [Closing/Delivery] Date.
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Section 4.02 ENFORCEMENT OF MANAGEMENT AGREEMENT. (a) The
Owner will do or permit to be done each and every act or thing which the
Indenture Trustee may from time to time require to be done for the purpose of
enforcing the Indenture Trustee's rights under the Management Agreement and this
Assignment.
(b) The Owner shall cause all moneys hereby assigned or agreed
to be assigned or arising from or in connection with any of the rights, title,
interest and benefits of the Owner under the Management Agreement shall be paid
to the credit of Chase Manhattan Bank NYC, ABA # 00000000, A/C # 000-0-000000,
credit U.S. Trust Co. NY, further credit to A/C # 04692300, Golden State
Petroleum Transp. Corp. Rev., Attention: Xxxxx Xxxxxxx or to such other account
as the Indenture Trustee may from time to time direct.
(c) The Owner will not exercise any right or powers conferred
on it by the Management Agreement in connection with any default or alleged
default by the Manager thereunder (including without limitation the right of
termination and substitution) unless and until requested so to do by the
Indenture Trustee whereupon the Owner agrees that it will do so provided always
that the Indenture Trustee shall not be responsible in any way whatsoever in the
event that the exercise of any right or power (including the right of
termination and substitution) be thereafter adjudged improper or to constitute a
repudiation of the Management Agreement by the Owner.
Section 4.03 AMENDMENT OF MANAGEMENT AGREEMENT; ASSIGNMENT OF
MANAGEMENT AGREEMENT. (a) The Owner will not, except with the previous written
consent of the Indenture Trustee, agree to any variation of the Management
Agreement or release the Manager from any of its obligations thereunder or waive
any breach of the Manager's obligations thereunder or consent to any such act or
omission of the Manager as would otherwise constitute such breach.
(b) The Owner will not, except with the previous written
consent of the Indenture Trustee, assign the Management Agreement to any other
Person.
Section 4.04 PERFORMANCE OF OBLIGATIONS. The Owner will
perform its obligations under the Management Agreement and will use its best
efforts to cause the Manager to perform its obligations under the Management
Agreement.
Section 4.05 NOTICES. The Owner will send a copy of all
notices received or given by it under the Management Agreement forthwith to the
Indenture Trustee.
Section 4.06 FURTHER ASSURANCES. The Owner will at any time
and from time to time, upon the written request of the Indenture Trustee,
promptly and duly execute and deliver any and all such further instruments and
documents and take such action as the Indenture Trustee may deem desirable in
order to obtain the full benefits of this Assignment and of the rights and
powers herein granted.
-5-
Section 4.07 INDENTURE TRUSTEE AS ATTORNEY-IN-FACT OF OWNER.
The Owner hereby constitutes the Indenture Trustee, and its successors and
assigns, its true and lawful attorney-in-fact, irrevocably, with full power in
its own name, in the name of its agents or nominees or in the name of the Owner
or otherwise, to ask, require, demand, receive, enforce and give acquittance
for, any and all moneys and claims for moneys due and to become due and payable
under or arising out of the Management Agreement, to endorse any checks or other
instruments or orders in connection therewith and to file any claims or take any
action or institute any proceedings which to the Indenture Trustee may seem to
be necessary or advisable under this Assignment. Any action or proceeding
brought by the Indenture Trustee pursuant to any of the provisions of this
Assignment or otherwise and any claim made by the Indenture Trustee hereunder
may be compromised, withdrawn or otherwise dealt with by the Indenture Trustee
without any notice to or approval of the Owner.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 AMENDMENT. This Assignment may be amended from
time to time by written agreement signed by the parties hereto.
Section 5.02 SEVERABILITY. If any provision of this Assignment
is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. The invalidity of any one or more phrases, sentences,
clauses or Sections of this Assignment contained, shall not affect the remaining
portions of this Assignment, or any part thereof.
Section 5.03 NOTICES. All demands, notices and communications
hereunder shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Indenture Trustee, at the following address: 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Department, (b) in the case of the Owner, at the following address: 00-00 Xxxxx
Xxxxxx, Xxxxxxx, Xxxx of Man, or at other such address as shall be designated by
such party in a written notice to the other parties.
Section 5.04 CONSENT TO JURISDICTION. Any legal suit, action
or proceeding against the Owner arising out of or relating to this Assignment,
or any transaction contemplated hereby, may be instituted in any federal or
state court in The City of New York, State of New York, and the Owner hereby
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding. The Owner hereby waives, to the fullest extent permitted
by applicable law, any defense which it may now or hereafter have based upon
lack of personal jurisdiction or venue or FORUM NON CONVENIENS. The Owner hereby
irrevocably appoints and designates CT Corporation System, having an address at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, its true and lawful attorney-in-fact and duly
authorized agent for the limited purpose of
-6-
accepting servicing of legal process and the Owner agrees that service of
process upon such party shall constitute personal service of such process on
such Person. The Owner shall maintain the designation and appointment of such
authorized agent until all amounts payable under this Assignment shall have been
paid in full. If such agent shall cease to so act, the Owner shall immediately
designate and appoint another such agent satisfactory to the Indenture Trustee
and shall promptly deliver to the Indenture Trustee evidence in writing of such
other agent's acceptance of such appointment.
Section 5.05 CAPTIONS. The captions or headings in this
Assignment are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Assignment.
Section 5.06 GOVERNING LAW. This Assignment shall be governed
by and interpreted in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
Section 5.07 NO PARTNERSHIP. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the parties
hereto, and the services of each party shall be rendered as an independent
contractor and not as agent for any other party.
Section 5.08 COUNTERPARTS. This Assignment may be executed in
any number of counterparts and by different parties hereto on separate
counterpart, each of which shall be deemed to be an original. Such counterparts
shall constitute one and the same agreement.
Section 5.09 SURVIVAL. The representations, covenants and
agreements contained in or made pursuant to this Assignment in respect of either
party hereto shall survive the execution and delivery of this Assignment and
shall continue in effect so long as such party's obligations hereunder remain
outstanding.
Section 5.10 INTEGRATION. This Assignment and the Schedule and
Exhibits hereto constitute the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements, understandings or representations pertaining to the subject matter
hereof, whether oral or written. There are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as specifically set forth or incorporated herein.
Section 5.11 REPRODUCTION OF DOCUMENTS. This Assignment and
all documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements, certificates
and other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of
-7-
business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
Section 5.12 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This
Assignment shall be binding upon and inure to the benefit of the Owner and the
Indenture Trustee and their respective successors and assigns. The Owner shall
not have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Indenture Trustee. The Indenture Trustee, at
its sole option, shall have the right to assign this Assignment, the Indenture,
the Security Documents and any of its rights and interest hereunder in
accordance with the terms and provisions of the Indenture and the Security
Documents.
Section 5.13 GENERAL INTERPRETIVE PRINCIPLES. For purposes of
this Assignment except as otherwise expressly provided or unless the context
otherwise requires:
(a) the defined terms in this Assignment shall include the
plural as well as the singular, and the use of any gender herein shall be deemed
to include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Assignment;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Assignment as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 5.14 EFFECTIVE DATE OF TRANSACTION. Notwithstanding
the fact that this Assignment is dated as of December 1, 1996, the transactions
set forth herein shall not be effective until the Closing Date.
IN WITNESS WHEREOF, the Owner and the Indenture Trustee have
caused this Assignment to be duly executed and delivered by their respective
officers thereunto duly authorized all as of the day and year first above
written.
United States Trust Company of New York, as
Indenture Trustee
By:/s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Golden State Petro (IOM I-A) PLC, as Owner
By:/s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
Exhibit A
LETTER OF ACKNOWLEDGMENT
TO ASSIGNMENT OF MANAGEMENT AGREEMENT
__________ __, 0000
Xxxxxx Xxxxxx Trust Company of New York, as Indenture Trustee
Dear Sirs:
The undersigned hereby consents to and acknowledges receipt of a signed
copy of the Assignment of Management Agreement (the "Assignment"), dated as of
December 1, 1996, between Golden State Petro (IOM I-A) PLC (the "Owner") and
United States Trust Company of New York, not in its individual capacity but
solely as trustee (the "Indenture Trustee") as adequate notice of such
assignment to the Indenture Trustee of the Management Agreement (as defined in
the Assignment) and of all the right, title and interest of the Owner in, to and
under the Management Agreement.
We confirm that the terms of the Management Agreement remain in full
force and effect and that the Owner is not presently to our knowledge in breach
of the terms of the Management Agreement. We further confirm that the terms of
the Management Agreement have not been varied or modified and that the terms of
the Management Agreement will not after the date hereof be varied or modified
without the prior written consent of the Indenture Trustee.
We confirm that we have received no prior notice of any assignment by
the Owner of any interest in the Management Agreement.
The undersigned will not permit any amendment, modification,
cancellation or other alteration in the Management Agreement, nor will it
consent to or accept the substitution thereunder of any party for the Owner
without your prior written consent.
Cambridge Fund Management L.L.C., as Manager
By:____________________________________
Name:__________________________________
Title:_________________________________
SCHEDULE 1
ADDITIONAL DEFINED TERMS USED IN THE ASSIGNMENT
"AGREEMENT ON CONTRACT FOR TECHNICAL MATTERS" means, the Agreement
Regarding Technical Matters, dated as of December 24, 1996, between the Owner,
Samsung Heavy Industries Co., LTD and Chevron Shipping Company, San Francisco,
U.S.A. (as Agent for the Initial Charterer).
"ASSIGNMENT" or "ASSIGNMENT OF MANAGEMENT AGREEMENT" means the
assignment between the Owner and the Indenture Trustee, as amended from time to
time in accordance with the terms thereof, pursuant to which the Owner
collaterally assigns to the Indenture Trustee all of the Owner's right, title
and interest in, to and under the Management Agreement to secure its obligations
under the Indenture.
"ASSIGNMENT OF BUILDING CONTRACT" means, for each Vessel, the Building
Contract Assignment, dated as of December 1, 1996, between the related Owner and
the Indenture Trustee, pursuant to which such Owner collaterally assigns its
rights, title and interests in the related Building Contract and the Agreement
on Contract for Technical Matters to the Indenture Trustee.
"ASSIGNMENT OF BUILDING CONTRACT GUARANTEE" means, for each Building
Contract Guarantee, the Assignment of Building Contract Guarantee, dated as of
December 1, 1996, between the related Owner and the Indenture Trustee, as the
same may be amended from time to time, pursuant to which such Owner collaterally
assigns its rights, title and interest in the related Building Contract
Guarantee therein to the Indenture Trustee.
"ASSIGNMENT OF CHARTER" means the assignment between the Owner and the
Indenture Trustee, as amended from time to time in accordance with the terms
thereof, pursuant to which the Owner collaterally assigns to the Indenture
Trustee all of the Owner's right, title and interest in, to and under the
Initial Charter to secure its obligations under the Indenture.
"ASSIGNMENT OF CHARTER SUPPLEMENT" means, for each Charter Supplement,
the Assignment of Charter Supplement, dated the date of the Supplemental
Indenture, between the Owner of the Vessel and the Indenture Trustee, as the
same may be amended from time to time pursuant to which the Owner collaterally
assigns all of the Owner's right, title and interest therein to the Indenture
Trustee.
"ASSIGNMENT OF CHEVRON GUARANTEE" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Chevron Guarantee to secure its obligations under the Indenture.
"ASSIGNMENT OF EARNINGS AND INSURANCES" means the assignment between
the Owner and the Indenture Trustee, as amended from time to time in accordance
with the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the freights and hires (as well as any charters entered
-2-
into after the Delivery Date) with respect to the Vessel to secure its
obligations under the Indenture.
"BUILDER" means, collectively, Samsung Corporation and Samsung Heavy
Industries, Ltd.
"BUILDING CONTRACT" means the Shipbuilding Contract, dated December 24,
1996, between the Builder and the Owner.
"BUILDING CONTRACT GUARANTEE" means the Irrevocable Installment Payment
Letter of Guarantee, dated December 24, 1996, given by the Building Contract
Guarantor to the Owner in connection with the Vessel.
"BUILDING CONTRACT GUARANTOR" means Korea Development Bank.
"CHEVRON" means Chevron Corporation, a Delaware corporation, and its
successors and assigns.
"CHEVRON GUARANTEE" means the Guarantee, dated the Closing Date, given
by Chevron to the Owner in connection with the Initial Charter and the Charter
Supplement.
"CLOSING DATE" means December 24, 1996.
"COLLATERAL" means the collateral assigned, pledged or granted to the
Indenture Trustee pursuant to (i) this Assignment of Management Agreement, (ii)
the Assignment of Charter, (iii) the Assignment of Charter Supplement, (iv) the
Mortgage, (v) the Assignment of Chevron Guarantee, (vi) the Assignment of
Earnings and Insurances, (vii) the Assignment of Building Contract, (viii) the
Assignment of Building Contract Guarantee, (ix) the Issue of One Debenture and
(x) the Stock Pledge, together with all income and proceeds thereof.
"DELIVERY DATE" means the date the Vessel is accepted by the Owner from
the Builder under the Building Contract, which is the date of this Assignment.
"INDENTURE" means the Indenture, dated as of December 1, 1996 among the
Indenture Trustee, the Owner, Golden State Petro (IOM I-B) PLC and Golden State
Petroleum, pursuant to which the Notes were issued.
"INDENTURE TRUSTEE" means United States Trust Company of New York.
"INITIAL CHARTER" means with respect to each Vessel, the bareboat
charter, dated as of December 24, 1996, between the Initial Charterer and the
Owner.
"INITIAL CHARTERER" means Chevron Transport Corporation, a Liberian
corporation.
"ISSUE OF ONE DEBENTURE" means each Issue of One Debenture between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof,
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pursuant to which the Owner grants to the Indenture Trustee a security interest
in all of its assets.
"MANAGEMENT AGREEMENT" means the agreement, dated the Closing Date,
between the Owner and the Manager pursuant to which the Manager agrees to
provide certain services to the Owner.
"MANAGER" means the Person performing the duties of the Manager under
the Management Agreement, initially Cambridge Fund Management L.L.C.
"MORTGAGE" means, with respect to the Vessel, the first preferred ship
mortgage on the Vessel granted by the Owner to the Indenture Trustee, as amended
from time to time in accordance with the terms of such Mortgage.
"OBLIGATIONS" means the payment, performance or obligations of any kind
or nature whatsoever of the Owner under and pursuant to the Indenture, any
Security Document and any instrument, agreement or document referred to therein.
"OBLIGATIONS" means the payment, performance or obligations of any kind
or nature whatsoever of the Owner under and pursuant to the Indenture, any
Security Document and any instrument, agreement or document referred to therein.
"OWNER" means Golden State Petro (IOM I-A) PLC, a company organized
under the laws of the Isle of Man.
"SECURITY DOCUMENTS" means the Indenture, the Mortgage, the Assignment
of Charter, the Assignments of Charter Supplements, the Assignment of Earnings
and Insurances, the Assignment of Chevron Guarantee, this Assignment of
Management Agreement, the Assignment of Building Contract, the Issue of One
Debenture, the Stock Pledge and the Assignment of Building Contract Guarantee,
collectively.
"VESSEL" means Hull No. 1228.
TABLE OF CONTENTS
Page No.
ARTICLE I
DEFINITIONS............................... 1
ARTICLE II
ASSIGNMENT................................ 1
Section 2.01 Security Interest............................................. 1
Section 2.02 Assignment.................................................... 1
Section 2.03 Owner to Remain Liable........................................ 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER................ 2
Section 3.01 Organization, Power and Status of the Owner................... 2
Section 3.02 Authorization; Enforceability; Execution and Delivery......... 2
Section 3.03 No Conflicts; Laws and Consents; No Default................... 3
Section 3.04 Governmental Approvals........................................ 3
Section 3.05 Litigation.................................................... 3
Section 3.06 No Prior Assignment........................................... 3
Section 3.07 The Management Agreement...................................... 3
ARTICLE IV
COVENANTS OF THE OWNER.......................... 3
Section 4.01 Consent of Manager............................................ 3
Section 4.02 Enforcement of Management Agreement........................... 4
Section 4.03 Amendment of Management Agreement; Assignment of
Management Agreement.......................................... 4
Section 4.04 Performance of Obligations.................................... 4
Section 4.05 Notices....................................................... 4
i
Page No.
Section 4.06 Further Assurances............................................ 4
Section 4.07 Indenture Trustee as Attorney-in-Fact of Owner................ 5
ARTICLE V
MISCELLANEOUS PROVISIONS......................... 5
Section 5.01 Amendment..................................................... 5
Section 5.02 Severability.................................................. 5
Section 5.03 Notices....................................................... 5
Section 5.04 Consent to Jurisdiction....................................... 5
Section 5.05 Captions...................................................... 6
Section 5.06 Governing Law................................................. 6
Section 5.07 No Partnership................................................ 6
Section 5.08 Counterparts.................................................. 6
Section 5.09 Survival...................................................... 6
Section 5.10 Integration................................................... 6
Section 5.11 Reproduction of Documents..................................... 6
Section 5.12 Successors and Assigns; Assignment............................ 7
Section 5.13 General Interpretive Principles............................... 7
Section 5.14 Effective Date of Transaction................................. 7
ii
EXHIBIT G
---------
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK,
as INDENTURE TRUSTEE
and
GOLDEN STATE PETRO (IOM I-A) PLC
-----------------------------------
ISSUE OF ONE DEBENTURE
Dated as of December 1, 1996
-----------------------------------
================================================================================
This Issue of One Debenture, dated as of December 1, 1996 (the
"Debenture"), from Golden State Petro (IOM I-A) PLC, a company organized under
the laws of the Isle of Man (the "Owner") to United States Trust Company of New
York, as indenture trustee, a bank and trust company organized under the New
York Banking Law (the "Indenture Trustee").
PRELIMINARY STATEMENT
On the Closing Date, Golden State Petroleum, as agent for the
Owner and Golden State Petro (IOM I-B) PLC, will issue Notes in connection with
the financing of the construction of the Vessel. The net proceeds of such
issuance will be deposited into the Pre-Funding Account. Pursuant to the
Indenture, the Allocated Principal Amount of the Mortgage Notes for the Vessel
will be used, INTER ALIA, to make the installments due under the Shipbuilding
Contract for the Vessel. As of the date of this Assignment, the Owner has agreed
to bareboat charter the Vessel to Chevron Transport Corporation (the "Initial
Charterer") pursuant to the Initial Charter. The obligations of the Initial
Charterer under the Initial Charter are guaranteed by Chevron Corporation (the
"Guarantor") pursuant to the Chevron Guarantee. The Vessel will be managed by
Cambridge Fund Management L.L.C. (the "Manager") pursuant to the Management
Agreement, dated as of the date hereof, between the Owner and the Manager. As
collateral security for its obligations under the Indenture, the Owner has and
will assign, pledge, mortgage and grant the Indenture Trustee a security
interest in, INTER ALIA, the Vessel, the Initial Charter, the Chevron Guarantee
and the earnings and insurances of the Vessel and will grant this debenture in
favor of the Indenture Trustee.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and of other valuable consideration, receipt of
which is hereby acknowledged, the Owner and the Indenture Trustee hereby agree
as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Debenture shall have the
meanings assigned to such terms in Schedule 1 to this Debenture, and the
definitions of such terms shall be equally applicable to both the singular and
plural forms of such terms.
ARTICLE II
COVENANT TO PAY
Section 2.1. COVENANT TO PAY. The Owner hereby covenants and
agrees to pay and discharge each sum owing under the Obligations as and when the
same shall fall due, whether at maturity, by acceleration or otherwise.
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ARTICLE III
MORTGAGE, CHARGE AND ASSIGNMENT
Section 3.1. CHARGE. As continuing security for the
Obligations, the Owner hereby:
(a) conveys, transfers and assigns absolutely to and unto the
Indenture Trustee all rights of the Owner in and to the
Current Receivables by way of fixed charge;
(b) mortgages, charges and assigns, and agrees to mortgage, charge
and assign to the Indenture Trustee all present and future
rights of the Owner in and to all freehold or leasehold
property of the Owner and all other estates or interests
therein together with all trade fixtures and fixed plant and
machinery now and for the time being thereon, by way of a
fixed charge;
(c) mortgages, charges and assigns, and agrees to mortgage, charge
and assign, to the Indenture Trustee all rights now owned or
hereafter acquired in and to the goodwill, franchises, patent
rights, copyrights, trademarks and other intangible Assets of
the Owner by way of fixed charge;
(d) mortgages, charges and assigns, and agrees to mortgage, charge
and assign, to the Indenture Trustee all rights relating to
the aforesaid property specified in Sections 3.1(a), (b) and
(c) including, INTER ALIA, negotiable instruments, legal and
equitable charges, reservations of property rights, rights of
action, collection, recovery or security, rights of tracing
and unpaid vendor's liens and similar and associated rights,
by way of fixed legal mortgage and charge; and
(e) mortgages and charges in favor of the Indenture Trustee all
rights of the Owner now owned or hereafter acquired in and to
all other Security Assets for the time being of the Owner not
subject to the fixed securities created by Sections 3.1(a),
(b), (c) and (d) wheresoever situate (including, INTER ALIA,
all undertakings and businesses of the Owner) by way of a
floating charge and the Owner shall not be at liberty to
create any mortgage or charge on any of the securities created
by this Section 3.1(e) and no Encumbrance shall in any case or
in any manner arise on or affect any part of the said
securities in priority to or PARI PASSU with all charges
hereby created, it being the intention that the Owner shall
have no power, without the written consent of the Indenture
Trustee, to part with or dispose of any part of the said
securities except by way of sale in the ordinary course of its
business;
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PROVIDED, HOWEVER, that upon the unconditional payment and satisfaction
of the Obligations the rights of the Indenture Trustee hereunder will
terminate and the Indenture Trustee will at the direction, cost and
expense of the Owner release or reassign to the Owner all remaining
rights of the Indenture Trustee in and to the balance of the Security
Assets.
Section 3.2. LEGAL SECURITIES. The Owner will forthwith at the
request of the Indenture Trustee execute a legal mortgage, charge or assignment
over all or any of the Security Assets subject to or intended to be subject to
any fixed security hereby created in favor of the Indenture Trustee in such form
as the Indenture Trustee may reasonably require.
Section 3.3. CONVERSION OF FLOATING CHARGE. The Indenture
Trustee may at any time by notice to the Owner convert the floating charge
hereby created into a fixed charge as regards any Assets specified in the notice
which the Indenture Trustee shall consider to be in danger of being seized or
sold under any form of distress, attachment, execution or other legal process or
to be otherwise in jeopardy and (whether or not this security has become
enforceable) may at any time appoint a Receiver (as defined in Section 7.1
hereof) thereof.
Section 3.4. NEGATIVE PLEDGE. Except as otherwise provided in
the Mortgage or the Indenture, the Owner shall not, without the prior written
consent of the Indenture Trustee, permit the sale, transfer, assignment lease or
other disposition of any Security Asset, or any Encumbrance or other right in or
over any Security Asset to subsist, arise or be created, other than such
Encumbrance as is created by this Debenture.
Section 3.5. NEW ACCOUNTS. If the Indenture Trustee receives
or is deemed to be affected by notice whether actual or constructive of any
subsequent Encumbrance or other interest affecting any Security Asset or the
proceeds of sale thereof, the Indenture Trustee may open a new account or
accounts for the Owner. If the Indenture Trustee does not open a new account it
shall nevertheless be treated as if it had done so at the time when it received
or was deemed to have received notice and as from that time all payments made to
the Indenture Trustee shall be credited or be treated as having been credited to
the new account and shall not operate to reduce the amount for which this
Debenture is security.
ARTICLE IV
PRESERVATION OF SECURITY
Section 4.1. CONTINUING SECURITY. The security constituted by
this Debenture shall be a continuing security and shall not be satisfied by any
intermediate payment or satisfaction of the Obligations but shall secure the
ultimate balance of the Obligations. The security hereby given shall be in
addition to and shall not be discharged, released, prejudiced or otherwise
affected by any other security or Encumbrance now or hereafter held by the
Indenture Trustee for the Obligations.
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Section 4.2. WAIVER OF DEFENSES. The obligations of the Owner
under this Debenture and this security shall not be discharged, released,
prejudiced or otherwise affected by any act, omission or circumstance which but
for this provision might so operate or otherwise release or discharge the Owner
from the Obligations, or the security created under this Debenture including
without limitation and whether or not known to or discoverable by the Owner or
the Indenture Trustee:
(a) any time, indulgence, waiver, consent or other relief granted
to or composition with the Owner or any other Person;
(b) the taking, variation, extension, compromise, renewal or
release of, or refusal or neglect to perfect or enforce, any
rights under the Indenture, this Debenture, any Security
Document or any other guarantee, agreement or obligation or
any right against, or any security granted by, the Owner or
any other Person;
(c) any irregularity, invalidity or unenforceability of any
obligation of the Owner under the Indenture, any Security
Document, this Debenture or any other guarantee, of any
government or authority (whether of right or in fact)
purporting to reduce or otherwise affect any such obligation
to the extent that such obligation and this security shall
remain in full force and this Debenture shall be construed
accordingly as if there were no such irregularity,
unenforceability, invalidity, law or order;
(d) any legal limitation, disability, incapacity or other
circumstance relating to the Owner, any guarantor or any other
Person;
(e) any defect in or invalidity or inadequacy of the constitution
or incorporation or borrowing powers of the Owner or of its
board of directors, executive committee or other equivalent or
analogous body or in the authorization, execution or delivery
of the Indenture, any Security Document, this Debenture or any
other guarantee, agreement or obligation; or
(f) any supplement, amendment or modification to the terms of the
Indenture, this Debenture, any other Security Document or any
other guarantee, agreement or obligation.
Section 4.3. IMMEDIATE RECOURSE. The Owner waives any right it
may have of first requiring the Indenture Trustee to proceed against or claim
payment from the Owner or enforce the Indenture, any Security Documents or other
guarantee, agreement or obligation before enforcing this Debenture.
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Section 4.4. PRESERVATION OF RIGHTS. Until the Obligations
have been irrevocably paid and discharged in full, the Indenture Trustee may:
(a) refrain from applying or enforcing any other security, money
or right held or received by the Indenture Trustee in respect
of the Obligations or apply and enforce the same in such
manner and order as the Indenture Trustee sees fit; and
(b) hold in a suspense account (without liability to pay interest
thereon) any moneys received or on account of this Debenture
by way of a partial payment.
Section 4.5. ADDITIONAL SECURITY. This Debenture shall be in
addition to and shall not in any way be prejudiced by any other security now or
hereafter held by the Indenture Trustee.
Section 4.6. CERTIFICATE. A certificate of the Indenture
Trustee setting forth the amount due from the Owner in respect of the
Obligations shall, in the absence of manifest error, be PRIMA FACIE evidence of
such amount.
Section 4.7. DISCHARGE. Where any discharge (whether in
respect of the Indenture, the Obligations, this Debenture, or any other
guarantee, agreement, obligation or security or otherwise) is made in whole or
in part or any arrangement is made on the faith of any payment, security or
other disposition which is avoided or must be repaid on bankruptcy, liquidation,
winding-up, dissolution or otherwise, this security and the obligations of the
Owner under this Debenture shall continue as if there had been no such discharge
or arrangement.
Section 4.8. REGISTRATION. The Owner hereby agrees to arrange
for this Debenture, any Security Asset or any agreement, document or instrument
relating thereto to be registered with or notified to any Person to preserve or
perfect the Indenture Trustee's security in any Security Asset.
Section 4.9. INDENTURE TRUSTEE'S POWER'S WITH RESPECT TO
SECURITY ASSETS. The Indenture Trustee may without demand or notice to the Owner
being required at any time after this security becomes enforceable exercise at
its discretion (in the name of the Owner or otherwise) and without any further
consent or authority by the Owner, any right which may be exercised by the
Person in whose name any Security Asset is registered or who is the holder
thereof under the terms thereof or otherwise including, but without limitation,
all the powers given to trustees by statute in respect of securities or property
subject to a trust; PROVIDED, HOWEVER, that until the security hereby
constituted becomes enforceable, the Indenture Trustee shall procure that the
rights attached to each such Security Asset are exercised in such manner as the
Owner shall direct so long as the same is not inconsistent with any term of the
Indenture or this Debenture and account to the Owner for any sum or other
distribution paid in respect of such Security Asset.
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Section 4.10. CALLS. The Owner will for so long as the
Obligations remain outstanding pay all sums which may become due in respect of
the Security Assets and in the event of default the Indenture Trustee may if it
thinks fit make such payments on behalf of the Owner. Any sums so paid by the
Indenture Trustee shall be immediately due and payable by the Owner to the
Indenture Trustee without demand or notice being required.
Section 4.11. DELEGATION BY INDENTURE TRUSTEE. The Indenture
Trustee may at any time and from time to time delegate by power of attorney or
in any other manner to any Person or Persons all or any of the rights and
discretions which are for the time being exercisable by the Indenture Trustee
under this Debenture in relation to any Security Asset. Any such delegation may
be made upon such terms (including power to sub-delegate) and subject to such
regulations as the Indenture Trustee may think fit. The Indenture Trustee shall
not be in any way liable or responsible to the Owner for any loss or damage
arising from any act, default, omission or misconduct on the part of any such
delegate or sub-delegate.
Section 4.12. FURTHER ASSURANCES. The Owner shall at its own
expense execute and deliver all such agreements, documents and instruments and
do all such assurances, acts and things as the Indenture Trustee may require for
perfecting or protecting this security over any Security Asset or for
facilitating the realization of such property and in the exercise of all rights
vested in the Indenture Trustee or in any sub-delegate as aforesaid. The Owner
shall in particular execute all transfers, conveyances, assignments and
assurances of such property whether to the Indenture Trustee or its nominees and
give all notices, orders and directions which the Indenture Trustee may think
expedient and, for the purposes of this Section, a certificate in writing by the
Indenture Trustee to the effect that any particular assurance, act or thing
required by it is reasonably required shall be conclusive evidence of such fact
in favor of all third parties.
Section 4.13. REDEMPTION OF PRIOR MORTGAGES. The Indenture
Trustee may at any time after the security hereby constituted has become
enforceable redeem any prior Encumbrances against any Security Asset or procure
the transfer thereof to itself and may settle and pass the accounts of the prior
Encumbrances. Any accounts so settled and passed shall be conclusive and binding
on the Owner. All principal moneys, interest, costs, charges and expenses of and
incidental to such redemption and transfer shall be immediately due by the Owner
to the Indenture Trustee without notice or demand being required.
Section 4.14. POWER OF ATTORNEY. (a) The Owner hereby by way
of security irrevocably nominates, constitutes and appoints the Indenture
Trustee and every Receiver of any Security Asset appointed hereunder and every
such delegate or sub-delegate as aforesaid, each of them acting alone or jointly
with any other of them, to be its attorney (the "Attorney") and on its behalf
and in its name or otherwise to sign under seal or otherwise and deliver all
such agreements, documents and instruments and do all such assurances, acts and
things which the Owner ought to do but fails to do under the covenants and
provisions contained in the Indenture or this Debenture (including without
prejudice to the generality of the foregoing to make any
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demand upon or give any notice or receipt to any Person owing moneys to the
Owner and to execute and deliver any charges, legal and equitable generally in
its name and on its behalf to exercise all or any of the rights conferred by or
pursuant to this Debenture or by statute on the Attorney and (without prejudice
to the generality of the foregoing) to sign under seal or otherwise and deliver
and otherwise perfect any assurance, agreement, instrument or act which the
Attorney may deem proper in or for the purpose of exercising any of such rights.
(b) The Owner hereby ratifies and confirms and agrees to
ratify and confirm any such Attorney described in Section 4.14(a).
Section 4.15. AVOIDANCE OF PAYMENTS. No assurance, security or
payment which may be avoided under any enactment relating to bankruptcy, and no
release, settlement or discharge given or made by the Indenture Trustee on the
faith of any such assurance, security or payment, shall prejudice or affect the
right of the Indenture Trustee to enforce the security created by or pursuant to
this Debenture in respect of the full extent of the moneys thereby secured. The
Indenture Trustee shall be at liberty at its absolute discretion to retain the
security so created as security for the Obligations for a period of seven months
in the case of fixed security and thirteen months in the case of floating
security after the Obligations shall have been paid in full, notwithstanding any
release, settlement, discharge or arrangement given or made by the Indenture
Trustee on or as a consequence of, such termination of liability. If at any time
within the period of six months in the case of fixed security and twelve months
in the case of floating security after such termination a petition shall be
presented to a competent court for an order for the winding up of the Owner or
the Owner shall commence to be wound up voluntarily, the Indenture Trustee shall
be at liberty, notwithstanding as aforementioned, to continue to retain such
security or any part thereof for and during such further period as the Indenture
Trustee in its absolute discretion shall determine. The Owner agrees that such
security shall be deemed to have been and to have remained held by the Indenture
Trustee as and by way of security for the payment to the Indenture Trustee of
all or any sums which are now or may become due and owing to the Indenture
Trustee under the Indenture and the rest of the Security Documents.
Section 4.16. POWERS TO LEND. The Indenture Trustee may
advance money on the security of any Security Asset for the purpose of defraying
any costs, charges, losses and expenses which shall be paid or incurred by it in
relation to this Debenture (including the remuneration of any Receiver) or which
the Indenture Trustee anticipates may be paid or incurred in the exercise of the
rights vested in it or for all other purposes of this Debenture or any of them
and the Indenture Trustee may advance such moneys at such rates of interest and
generally on such terms and conditions as it shall think fit.
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ARTICLE V
DEALINGS WITH SECURITY ASSETS
Section 5.1. CHARGED ACCOUNTS. The Owner shall cause all sums
hereafter received or recovered by or for it in respect of any Current
Receivable to be directly credited to a separate and distinct account as the
Indenture Trustee may from time to time designate and, if called upon to do so
by notice in writing from the Indenture Trustee, shall execute an absolute
assignment of any such Current Receivable in favor of the Indenture Trustee, all
at the cost of the Owner. Until the security hereby constituted is fully
discharged in accordance with the terms hereof, the Owner shall not be entitled
to withdraw any sum standing to the credit of any such account established as
aforesaid without the prior written consent of the Indenture Trustee.
Section 5.2. DEPOSIT OF PROPRIETARY RIGHTS. The Owner shall,
if the Indenture Trustee so requires, deposit with the Indenture Trustee all
certificates and other documents of title or evidence of ownership in relation
to the patents and rights referred to in Section 3.1(c).
Section 5.3. LIABILITY TO PERFORM. Notwithstanding any other
provision herein contained to the contrary, the Owner shall remain liable to
observe and perform all of the respective conditions and obligations assumed by
it in respect of each Security Asset and the Indenture Trustee shall be under no
obligation by reason of this Debenture, nor shall the Indenture Trustee be
required in any manner, to perform or fulfil any obligation of the Owner in
respect of any Security Asset or to make any payment or make any enquiry as to
the maturity, amount, nature or sufficiency of any rental, interest, proceeds,
payments or receipts received by it or them or the Owner or to present or file
any claim or take any other action or give any notice to collect, exercise or
enforce the payment of any amount or the taking up of any rights or property to
which the Owner may have been or to which it may be now or hereafter entitled
thereunder at any time.
ARTICLE VI
ENFORCEMENT
Section 6.1. WHEN SECURITY BECOMES ENFORCEABLE. The security
hereby conferred shall become immediately enforceable and the floating charge
created by this Debenture shall be deemed to have crystallized and the power of
sale and other powers conferred by statute as varied or amended or granted by
this Debenture shall be immediately exercisable (i) if the Owner fails to meet
the Obligations in the manner specified in Section 2.1 or (ii) upon and after
the occurrence of any Indenture Event of Default as defined in the Indenture.
After this security has become enforceable, the Indenture Trustee may in its
discretion enforce all or any part of this security, and exercise all or any
rights of enforcement hereby granted, in such manner as the Indenture Trustee
sees fit.
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Section 6.2. ENFORCEMENT OF SECURITY. For the purposes of all
powers implied by statute the Obligations shall be deemed to have become due and
payable on the date hereof and any statutory restrictions on the power of sale
and restrictions on the right of consolidation shall not apply to this security.
Section 6.3. REMEDIES, WAIVERS AND CONSENTS. No delay or
omission of the Indenture Trustee in exercising any right under this Debenture
shall impair or be construed as a waiver of such right nor shall any single or
partial exercise of any such right preclude any further exercise thereof or the
exercise of any other right. The rights provided in this Debenture are
cumulative and not exclusive of any rights provided by law, agreement or
otherwise. Any waiver and any consent by the Indenture Trustee under this
Debenture must be in writing and may be given subject to any conditions thought
fit by the Indenture Trustee. Any waiver or consent shall be effective only in
the instance and for the purpose for which it is given.
ARTICLE VII
RECEIVER
Section 7.1. APPOINTMENT AND POWERS OF RECEIVER. At any time
after this security becomes enforceable the Indenture Trustee may without
further notice appoint in writing under the hand of its duly authorized officer
any one or more Person(s) to be a receiver or receiver and manager (hereinafter
each called "a Receiver") as the Indenture Trustee at its sole discretion may
see fit of any Security Asset in like manner in every respect as if the
Indenture Trustee had become entitled under statute to exercise the power of
sale thereby conferred. Every Receiver so appointed shall, in addition to any
powers conferred by statute or common law, have and be entitled to exercise all
rights to do any or all of the following things:
(a) TAKE POSSESSION. Enter upon and take immediate possession of,
get in and collect any Security Asset and undertake any works
of demolition, building, reconstruction, repair or decoration
thereon;
(b) SELL ASSETS. Subject to any necessary consent or approval of
any judicial, administrative, governmental or other regulatory
body, office or agency, sell, convert into money and realize
any Security Asset by public auction or private contract,
dispose of, grant options and other rights in respect of and
exercise all other rights conferred on an owner under any
statute, at common law or otherwise, in respect of any
Security Asset and generally in such manner and on such terms
(which may consist wholly or partly of shares or securities of
any company or body corporate) as the Receiver shall think fit
and transfer, convey, assign or grant an assurance of the same
in the name and on behalf of the Owner. Without prejudice to
the generality of the foregoing, the Receiver may do any of
these things for a consideration consisting of cash,
debentures or other obligations, shares or other valuable
consideration in cash or in any other form
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whatsoever and any such consideration may be payable in a lump
sum or by installments spread over such period as the Receiver
may think fit;
(c) COMPROMISE. Settle, adjust, refer to arbitration, compromise
and arrange any claims, accounts, disputes, questions and
demands with or by any Person who is or claims to be a
creditor of the Owner or relating in any way to any Security
Asset;
(d) BORROW AND CREATE SECURITY. Borrow or raise money and secure
the repayment thereof and interest thereon by mortgaging,
sub-mortgaging or otherwise charging any Security Asset or
this Debenture (whether or not in priority to the sums and
obligations secured by this Debenture) in such manner and on
such terms as the Receiver shall think fit; PROVIDED, HOWEVER,
that:
(i) no Receiver shall exercise such right without first
obtaining the written consent of the Person
appointing him and the Indenture Trustee shall not
incur any responsibility to the Owner or any other
Person by reason of giving or refusing its consent,
whether directly or subject to any limitation or
condition; and
(ii) no Person lending such money shall be concerned to
enquire as to the existence of such consent or the
terms thereof or as to the propriety or purpose of
the exercise thereof or to see to the application of
any money so borrowed or raised;
(e) EMPLOY AGENTS. Employ solicitors, managers, agents and others
as the Receiver shall deem necessary;
(f) RECEIPTS. Give valid receipts and discharges for all moneys
and claims and execute all assurances and things which may be
proper or desirable for realizing any Security Assets;
(g) CONSIDERATION. Receive or pay any consideration in cash or
other valuable consideration and so that the same may be
receivable or payable either immediately or at a later time
and in a lump sum or by installments spread over such period
as the Receiver shall think fit;
(h) DEALINGS. Generally to deal with and effect any transaction or
arrangement of any kind whatsoever in respect of any Security
Asset;
(i) LEGAL PROCEEDINGS. Settle, arrange, compromise and submit to
arbitration any accounts, claims, questions or disputes
whatsoever which may arise in connection
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with any Security Asset or in any way relating to the security
constituted by this Debenture, to bring, take, defend,
compromise, submit to and discontinue any actions, suits,
arbitration or proceedings whatsoever whether civil or
criminal in relation to the matters aforesaid, to enter into,
complete, disclaim, abandon or disregard, determine or rectify
all or any of the outstanding agreements or arrangements of
the Owner in any way relating to or affecting the Security
Assets or any part thereof and to allow time for payment of
any debts either with or without security as the Receiver
shall think expedient;
(j) IN OWNER'S NAME. Generally at his option to use the name of
the Owner in the exercise of all or any of the rights hereby
conferred;
(k) EXERCISE OF RIGHTS. Exercise, or permit the Owner or any
nominee of the Owner to exercise, any rights incident to the
ownership of any Security Asset in such manner as the Receiver
may think fit and in particular (as regards shares, stock and
securities) any voting rights conferred by the same and (as
regards securities) any rights of enforcing the same by
foreclosure, sale or otherwise;
(l) CORPORATE TRANSFERS. Transfer any Security Asset to any other
company or body corporate, whether or not formed or acquired
for the purpose;
(m) CARRY ON BUSINESS. Generally manage and carry on and conduct
any of the undertakings and businesses of the Owner;
(n) CALLS. Make calls, conditionally or unconditionally, on the
members of the Owner in respect of all or any part of its
uncalled capital with such and the same rights of enforcement
as are conferred by the Memorandum of Association and Articles
of Association of the Owner upon its directors in this
respect;
(o) GENERAL POWERS. Sign under seal or otherwise and deliver all
such agreements, documents and instruments and do all such
other acts and things as the Receiver may consider desirable
or necessary for realizing any Security Asset or incidental or
conducive to any of the matters or rights conferred on a
Receiver under or by virtue of this Debenture and to exercise
in relation to any Security Asset all such rights as the
Receiver should be capable of exercising if the Receiver were
the beneficial owner of the same; and
(p) MONEYS RECEIVED BY RECEIVER. All moneys received by a Receiver
shall after providing for the matters specified by any law be
applied by him in or towards satisfaction of this Debenture
and thereafter of any other Encumbrance of which he shall have
notice and thereafter the Receiver shall pay the residue of
the moneys received by him to the Owner.
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Section 7.2. COMPLY WITH INSTRUCTIONS. Any Receiver shall in
the exercise of the Receiver's rights conform to any regulations and directions
from time to time made and given by the Indenture Trustee as appointer but so
that no Person dealing with the Indenture Trustee or any Receiver shall be
concerned to enquire whether the Receiver has so conformed to any such
regulations or directions.
Section 7.3. REMOVAL AND REMUNERATION. The Indenture Trustee
may from time to time by writing under its hand remove any Receiver appointed by
it and may whenever it may deem it expedient appoint a new Receiver in the place
of any Receiver whose appointment may for any reason have terminated and may
from time to time fix the remuneration of any Receiver appointed by it.
Section 7.4. INDENTURE TRUSTEE MAY EXERCISE RECEIVER'S POWERS.
All or any of the rights which are conferred by this Debenture (either expressly
or impliedly) upon a Receiver of any Security Asset may be exercised after the
security hereby created becomes enforceable by the Indenture Trustee in relation
to any Security Asset without first appointing a Receiver of the same or
notwithstanding the appointment of a Receiver of the same.
Section 7.5. NO LIABILITY AS MORTGAGEE IN POSSESSION. The
Indenture Trustee shall not nor shall any Receiver appointed as aforesaid by
reason of the Indenture Trustee or the Receiver entering into possession of any
Security Asset be liable to account as mortgagee in possession or be liable for
any loss or realization or for any default or omission for which a mortgagee in
possession might be liable. Every Receiver duly appointed by the Indenture
Trustee shall be deemed to be the agent of the Owner for all purposes and shall
as such agent be deemed to be in the same position as a Receiver duly appointed
by a mortgagee under statute. The Owner alone shall be responsible for its
agreements, obligations, acts, omissions, defaults and losses and the Indenture
Trustee shall not incur any responsibility therefor (either to the Owner or to
any other Person whatsoever) by reason of appointing such Receiver or for any
other reason whatsoever. Every such Receiver and the Indenture Trustee shall be
entitled to all the rights, privileges and immunities by statute conferred on
mortgagees and receivers when such receivers have been duly appointed.
Section 7.6. PROTECTION OF THIRD PARTIES. No purchaser,
mortgagee or other Person dealing with the Indenture Trustee or the Receiver or
the agents of the Indenture Trustee or the Receiver shall be concerned to
enquire whether any of the Obligations are due or owing, the right which the
Indenture Trustee or the Receiver is purporting to exercise has become
exercisable or any money remains due under this Debenture, as to the propriety
or regularity of the actions of the Indenture Trustee or such Receiver, or to
see to the application of any money paid to the Indenture Trustee or to such
Receiver.
Section 7.7. EXPENSES. All costs, charges and expenses
incurred and all payments made by the Indenture Trustee or any Receiver
appointed hereunder in the exercise
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in good faith of any right hereby conferred whether or not occasioned by any
act, neglect or default of the Indenture Trustee or such Receiver shall bear
interest from the date of the same being incurred or becoming due at the Default
Rate. The amount of all such costs, charges, expenses and payments and all
interest thereon and all remuneration payable hereunder shall be payable by the
Owner on demand. All such costs, charges, expenses and payments shall be paid
and charged as between the Indenture Trustee and the Owner on the basis of a
full indemnity and not on the basis of party and party or any other kind of
taxation.
Section 7.8. INDEMNITY. Each of the Indenture Trustee and
every Receiver, attorney, manager, agent or other Person appointed by the
Indenture Trustee hereunder shall be entitled to be indemnified out of the
Security Assets in respect of all obligations, costs, charges and expenses
incurred and payments made by such Person in good faith in the execution or
purported execution of any right vested in such Person pursuant hereto and
against all actions, proceedings, obligations, costs, claims and demands in
respect of any matter or thing done or omitted in anyway relating to any
Security Asset and the Indenture Trustee and any such Receiver may retain and
pay all sums in respect of the same out of any moneys received under the rights
hereby conferred.
ARTICLE VIII
APPLICATION OF PROCEEDS
Section 8.1. ORDER OF APPLICATION. Any moneys received by the
Indenture Trustee pursuant to this Debenture or under the powers hereby
conferred shall after the security hereby constituted shall have become
enforceable but subject to the payment of any claims having priority to this
security be applied for the following purposes and in the following order of
priority (but without prejudice to the right of the Indenture Trustee to recover
any shortfall from the Owner):
(a) in satisfaction of or provision for all costs, charges and
expenses incurred and payments made by the Indenture Trustee
or any Receiver appointed hereunder and of all remuneration
due hereunder with interest on such costs, charges, expenses
and payments at the Default Rate;
(b) in or towards payment of interest on the Obligations;
(c) in or towards payment of principal on the Obligations; and
(d) in payment of the surplus (if any) to the Owner or other
Person entitled thereto.
Section 8.2. SUSPENSE ACCOUNTS. Any moneys received under the
rights hereby conferred may, at the discretion of the Indenture Trustee, be
placed in a suspense account and kept there for so long as the Indenture Trustee
thinks fit.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. AMENDMENT. This Debenture may be amended from
time to time by written agreement signed by the parties hereto.
Section 9.2. SEVERABILITY. If any provision of this Debenture
is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. The invalidity of any one or more phrases, sentences,
clauses or Sections of this Debenture contained, shall not affect the remaining
portions of this Debenture, or any part thereof.
Section 9.3. NOTICES. All demands, notices and communications
hereunder shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Indenture Trustee, at the following address: 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Department, (b) in the case of the Owner, at the following address: 00-00 Xxxxx
Xxxxxx, Xxxxxxx, Xxxx of Man, or at other such address as shall be designated by
such party in a written notice to the other parties.
Section 9.4. CONSENT TO JURISDICTION. Any legal suit, action
or proceeding against the Owner arising out of or relating to this Debenture, or
any transaction contemplated hereby, may be instituted in any federal or state
court in The City of New York, State of New York and the Owner hereby waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding, and the Owner hereby irrevocably submits to the
jurisdiction of any such court in any such suit, action or proceeding. The Owner
hereby irrevocably appoints and designates CT Corporation System, having an
address at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, its true and lawful
attorney-in-fact and duly authorized agent for the limited purpose of accepting
servicing of legal process and the Owner agrees that service of process upon
such party shall constitute personal service of such process on the Owner. The
Owner shall maintain the designation and appointment of such authorized agent
until all amounts payable under this Debenture shall have been paid in full. If
such agent shall cease to so act, the Owner shall immediately designate and
appoint another such agent satisfactory to the Indenture Trustee and shall
promptly deliver to the Indenture Trustee evidence in writing of such other
agent's acceptance of such appointment.
Section 9.5. CAPTIONS. The captions or headings in this
Debenture are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Debenture.
-15-
Section 9.6. GOVERNING LAW. This Debenture shall be governed
by and interpreted in accordance with the laws of the Isle of Man, without
giving effect to the principles of conflicts of law.
Section 9.7. NO PARTNERSHIP. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the parties
hereto and the services of each party shall be rendered as an independent
contractor and not as agent for any other party.
Section 9.8. COUNTERPARTS. This Debenture may be executed in
any number of counterparts and by different parties hereto on separate
counterpart, each of which shall be deemed to be an original. Such counterparts
shall constitute one and the same agreement.
Section 9.9. SURVIVAL. The representations, covenants and
agreements contained in or made pursuant to this Debenture in respect of either
party hereto shall survive the execution and delivery of this Debenture and
shall continue in effect so long as such party's obligations hereunder remain
outstanding.
Section 9.10. INTEGRATION. This Debenture and the Schedule and
Exhibits hereto, the Indenture and the Security Documents constitute the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements, understandings or
representations pertaining to the subject matter hereof, whether oral or
written. There are no warranties, representations or other agreements between
the parties in connection with the subject matter hereof except as specifically
set forth or incorporated herein.
Section 9.11. REPRODUCTION OF DOCUMENTS. This Debenture and
all documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements, certificates
and other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section 9.12. SUCCESSORS AND ASSIGNS; ASSIGNMENT. This
Debenture shall be binding upon and inure to the benefit of the Owner and the
Indenture Trustee and their respective successors and assigns. The Owner shall
not have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Indenture Trustee. The Indenture Trustee, at
its sole option, shall have the right to assign this Debenture, Indenture, the
Security Documents and any of its rights and interest hereunder and thereunder.
-16-
Section 9.13. GENERAL INTERPRETIVE PRINCIPLES. For purposes of
this Debenture except as otherwise expressly provided or unless the context
otherwise requires:
(a) the defined terms in this Debenture shall include the
plural as well as the singular, and the use of any gender herein shall be deemed
to include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Debenture;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Debenture as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
IN WITNESS WHEREOF this Debenture has been executed by the
Owner the day and year first above written.
SIGNED, SEALED and DELIVERED )
as a Deed and Debenture ) /s/ Xxxxxx Xxxxxxxxx
by )
for and on behalf of )
Golden State Petro (IOM I-A) PLC ) /s/ Xxxx XxXxxxxx
in the presence:- )
SIGNED by )
for and on behalf of )
United States Trust Company of New York /s/ Xxxxxxxxx X. Xxxxxxx
as Indenture Trustee )
in the presence of:- ) /s/ Xxxx Xxxxxx
SCHEDULE 1
DEFINED TERMS USED IN THE DEBENTURE
"ADDITIONAL NOTE" means each first preferred mortgage note issued
pursuant to a Supplemental Indenture to finance the Additional Construction
Costs of a Vessel.
"ADDITIONAL CONSTRUCTION COSTS" means any net increases in construction
costs for the Vessel which (i) result from actions by the Initial Charterer or
the Technical Supervisor; (ii) are approved by the Owner, such approval not to
be unreasonably withheld; and (iii) occur after execution of the Building
Contract but prior to the Delivery Date.
"ALLOCATED PRINCIPAL AMOUNT OF THE ADDITIONAL NOTES" means, when used
with reference to the Additional Notes and the Vessel at any date of
determination, the product of (a) the aggregate outstanding principal amount of
Additional Notes as of such date and (b) a fraction (i) the numerator of which
is the aggregate outstanding principal amount of Additional Notes for the Vessel
as specified with respect to the Vessel in the related Supplemental Indenture
and (ii) the denominator of which is the aggregate initial principal amount of
all Additional Notes.
"ALLOCATED PRINCIPAL AMOUNT OF THE MORTGAGE NOTES" means, when used
with reference to the Mortgage Notes and the Vessel at any date of
determination, the sum of (a) the Allocated Principal Amount of the Notes for
the Vessel and (b) the Allocated Principal Amount of the Additional Notes for
the Vessel.
"ALLOCATED PRINCIPAL AMOUNT OF THE NOTES" means, when used with
reference to the Notes and either Vessel, amounts indicated on Schedule 1
attached to the Indenture.
"AGREEMENT ON CONTRACT FOR TECHNICAL MATTERS" means, the Agreement
Regarding Technical Matters, dated as of the Closing Date, between the Owner,
Samsung Heavy Industries Co., LTD and Chevron Shipping Company, San Francisco,
California (as Agent for the Initial Charterer).
"ASSETS" means, in relation to any person, the whole or any part of its
business, undertaking, property and assets and includes, without limitation, any
right to receive revenues.
"ASSIGNMENT OF BUILDING CONTRACT" means, for each Vessel, the Building
Contract Assignment, dated as of the Closing Date, between the related Owner and
the Indenture Trustee, pursuant to which such Owner collaterally assigns its
rights, title and interests in the related Building Contract and the Agreement
on Contract for Technical Matters to the Indenture Trustee.
"ASSIGNMENT OF BUILDING CONTRACT GUARANTEE" means, for each Building
Contract Guarantee, the Assignment of Building Contract Guarantee, dated as of
the Closing Date, between the related Owner and the Indenture Trustee, as the
same may be amended from time
-2-
to time, pursuant to which such Owner collaterally assigns its rights, title and
interest in the related Building Contract Guarantee therein to the Indenture
Trustee.
"ASSIGNMENT OF CHARTER" means the assignment between the Owner and the
Indenture Trustee, as amended from time to time in accordance with the terms
thereof, pursuant to which the Owner collaterally assigns to the Indenture
Trustee all of the Owner's right, title and interest in, to and under the
Initial Charter to secure its obligations under the Indenture.
"ASSIGNMENT OF CHARTER SUPPLEMENT" means, for each Charter Supplement,
the Assignment of Charter Supplement, dated the date of the Supplemental
Indenture, between the Owner of the Vessel and the Indenture Trustee, as the
same may be amended from time to time pursuant to which the Owner collaterally
assigns all of the Owner's right, title and interest therein to the Indenture
Trustee.
"ASSIGNMENT OF CHEVRON GUARANTEE" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Chevron Guarantee to secure its obligations under the Indenture.
"ASSIGNMENT OF EARNINGS AND INSURANCES" means the assignment between
the Owner and the Indenture Trustee, as amended from time to time in accordance
with the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the freights and hires (as well as any charters entered into after the Delivery
Date) with respect to the Vessel to secure its obligations under the Indenture.
"ASSIGNMENT OF MANAGEMENT AGREEMENT" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Management Agreement to secure its obligations under the Indenture.
"BUILDER" means, collectively, Samsung Corporation and Samsung Heavy
Industries, Ltd.
"BUILDING CONTRACT" means the Shipbuilding Contract, dated December 19,
1996, between the Builder and the Owner.
"BUILDING CONTRACT GUARANTEE" means the Irrevocable Installment Payment
Letter of Guarantee, dated December 19, 1996, given by the Building Contract
Guarantor to the Owner in connection with the Vessel.
"BUILDING CONTRACT GUARANTOR" means Korea Development Bank.
-3-
"CHEVRON" means Chevron Corporation, a Delaware corporation, and its
successors and assigns.
"CHEVRON GUARANTEE" means the Guarantee, dated the Closing Date, given
by Chevron to the Owner in connection with the Initial Charter and the Charter
Supplement.
"CLOSING DATE" means December 24, 1996.
"CURRENT RECEIVABLES" means (a) all obligations of the trade debtors of
the Owner due or owing to the Owner on account of the prevailing debit balances
of the present book debts of the Owner and (b) all rights relating to the
aforesaid property specified in clause (a), including, INTER ALIA, negotiable
instruments, legal and equitable charges, reservations of property rights,
rights of action, collection, recovery or security, rights of tracing an unpaid
vendor's liens and similar and associated rights (and each reference to a
"Current Receivable" shall be construed as a reference to the whole or any part
of any one or more of them).
"DEFAULT RATE" means, with respect to a Mortgage Note, a rate per annum
for each day from the date of a default in any payment hereunder until such
payment shall be paid in full equal to the lesser of (a) 1.0% above the interest
rate indicated in such Mortgage Note and (b) the sum of 1.5% and LIBOR.
"DELIVERY DATE" means the date the Vessel is accepted by the Owner from
the Builder under the Building Contract.
"ENCUMBRANCE" means any encumbrance and includes any mortgage, charge
(whether fixed or floating, pledge, lien, hypothecation, title retention or
other security agreement or security interest of any kind whatsoever and
howsoever arising and any equivalent or analogous interest to any of the
foregoing.
"INDENTURE" means the Indenture, dated as of December 1, 1996 among the
Indenture Trustee, the Owner, Golden State Petro (IOM I-B) and Golden State
Petroleum, pursuant to which the Notes were issued.
"INDENTURE TRUSTEE" means United States Trust Company of New York.
"INITIAL CHARTER" means with respect to each Vessel, the bareboat
charter, dated as of December 1, 1996, between the Initial Charterer and the
Owner.
"INITIAL CHARTERER" means Chevron Transport Corporation, a Liberian
corporation.
"ISSUE OF ONE DEBENTURE" means each Issue of One Debenture between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof,
-4-
pursuant to which the Owner grants to the Indenture Trustee a security interest
in all of its assets.
"LIBOR" means the rate calculated on the basis of the offered rates for
deposits in dollars for a one-month period which appear on the Reuters Screen
LIBO Page as of 11:00 A.M., London time, on the date that is two London Banking
Days preceding the date of calculation. If at least two such offered rates
appear on the Reuters Screen LIBO Page, LIBOR will be the arithmetic mean of
such offered rates (rounded to the nearest .0001 percentage point). If, at any
time of determination, the Reuters Screen LIBO Page is not available, LIBOR will
be calculated as the average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective ratio per annum at which deposits in dollars for a
one month period are offered to each of three reference banks in the London
interbank market at approximately 11:00 A.M., London time, on the date that is
two London Banking Days preceding the date of calculation. Each of the Initial
Charterer and the Owners (or the Owners' assignee) will select a reference bank
and the third reference bank will be selected by the Initial Charterer and the
Owners (or Owners' assignee) together or, failing agreement, by the previously
selected reference banks together.
"LONDON BANKING DAY" means any day on which dealings in deposits in
United States dollars are carried on in the London interbank market and on which
commercial banks are open for domestic and international business (including
dealings in United States dollar deposits) in London and New York.
"MANAGEMENT AGREEMENT" means the agreement, dated the Closing Date,
between the Owner and the Manager pursuant to which the Manager agrees to
provide certain services to the Owner.
"MANAGER" means the Person performing the duties of the Manager under
the Management Agreement, initially Cambridge Fund Management L.L.C.
"MORTGAGE" means, with respect to the Vessel, the first preferred ship
mortgage on the Vessel granted by the Owner to the Indenture Trustee, as amended
from time to time in accordance with the terms of such Mortgage.
"MORTGAGE NOTES" means, collectively, the Serial First Preferred
Mortgage Notes maturing serially from 2000 to 2006 (the "Serial Notes") and the
8.04% First Preferred Mortgage Notes due 2019 (the "Term Notes") issued in the
initial aggregate principal amount of $178,800,000 and any other notes issued
pursuant to a supplement to the Indenture or pursuant to the Registration Rights
Agreement.
"NOTES" means, collectively, the Serial Notes and Term Notes.
-5-
"OBLIGATIONS" means the payment, performance or obligations of any kind
or nature whatsoever of the Owner under and pursuant to the Indenture, any
Security Document and any instrument, agreement or document referred to therein.
"OWNER" means Golden State Petro (IOM I-A) PLC, a company organized
under the laws of the Isle of Man.
"PERSON" means an individual, a partnership, a corporation, a joint
venture, unincorporated association, a joint stock company, a trust or any other
entity or a Governmental Authority.
"REGISTRATION JURISDICTION" means the jurisdiction in which the Vessel
is or will be registered.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated the Closing Date, among the Owners and Cambridge Partners,
L.L.C., Salomon Brothers Inc and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, as initial purchaser of the Initial Notes.
"SECURITY ASSETS" means all of the present and future Assets of the
Owner, including, INTER ALIA, the Current Receivables (and each reference to a
"Security Asset" shall be construed as a reference to the whole or any part of
any one or more of them).
"SECURITY DOCUMENTS" means the Indenture, the Mortgage, the Assignment
of Charter, the Assignments of Charter Supplements, the Assignment of Earnings
and Insurances, the Assignment of Chevron Guarantee, the Assignment of
Management Agreement, the Assignment of Building Contract, the Issue of One
Debenture, the Stock Pledge and the Assignment of Building Contract Guarantee,
collectively.
"VESSEL" means Hull No. 1228.
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS............................... 1
ARTICLE II
COVENANT TO PAY.............................. 1
Section 2.1. Covenant to Pay............................................... 1
ARTICLE III
MORTGAGE, CHARGE AND ASSIGNMENT..................... 2
Section 3.1. Charge........................................................ 2
Section 3.2. Legal Securities.............................................. 3
Section 3.3. Conversion of Floating Charge................................. 3
Section 3.4. Negative Pledge............................................... 3
Section 3.5. New Accounts.................................................. 3
ARTICLE IV
PRESERVATION OF SECURITY......................... 3
Section 4.1. Continuing Security........................................... 3
Section 4.2. Waiver of Defenses............................................ 4
Section 4.3. Immediate Recourse............................................ 4
Section 4.4. Preservation of Rights........................................ 5
Section 4.5. Additional Security........................................... 5
Section 4.6. Certificate................................................... 5
Section 4.7. Discharge..................................................... 5
Section 4.8. Registration.................................................. 5
Page
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Section 4.9. Indenture Trustee's Power's With Respect to Security Assets... 5
Section 4.10. Calls......................................................... 6
Section 4.11. Delegation By Indenture Trustee............................... 6
Section 4.12. Further Assurances............................................ 6
Section 4.13. Redemption of Prior Mortgages................................. 6
Section 4.14. Power of Attorney............................................. 6
Section 4.15. Avoidance of Payments......................................... 7
Section 4.16. Powers to Lend................................................ 7
ARTICLE V
DEALINGS WITH SECURITY ASSETS...................... 8
Section 5.1. Charged Accounts.............................................. 8
Section 5.2. Deposit of Proprietary Rights................................. 8
Section 5.3. Liability to Perform.......................................... 8
ARTICLE VI
ENFORCEMENT............................... 8
Section 6.1. When Security Becomes Enforceable............................. 8
Section 6.2. Enforcement of Security....................................... 9
Section 6.3. Remedies, Waivers and Consents................................ 9
ARTICLE VII
RECEIVER................................. 9
Section 7.1. Appointment and Powers of Receiver............................ 9
Section 7.2. Comply with Instructions...................................... 12
Page
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Section 7.3. Removal and Remuneration...................................... 12
Section 7.4. Indenture Trustee May Exercise Receiver's Powers.............. 12
Section 7.5. No Liability As Mortgagee In Possession....................... 12
Section 7.6. Protection Of Third Parties................................... 12
Section 7.7. Expenses...................................................... 12
Section 7.8. Indemnity..................................................... 13
ARTICLE VIII
APPLICATION OF PROCEEDS.......................... 13
Section 8.1. Order of Application.......................................... 13
Section 8.2. Suspense Accounts............................................. 13
ARTICLE IX
MISCELLANEOUS PROVISIONS......................... 14
Section 9.1. Amendment..................................................... 14
Section 9.2. Severability.................................................. 14
Section 9.3. Notices....................................................... 14
Section 9.4. Consent to Jurisdiction....................................... 14
Section 9.5. Captions...................................................... 14
Section 9.6. Governing Law................................................. 15
Section 9.7. No Partnership................................................ 15
Section 9.8. Counterparts.................................................. 15
Section 9.9. Survival...................................................... 15
Section 9.10. Integration................................................... 15
Page
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Section 9.11. Reproduction of Documents..................................... 15
Section 9.12. Successors and Assigns; Assignment............................ 15
Section 9.13. General Interpretive Principles............................... 16
EXHIBIT H
---------
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK,
AS INDENTURE TRUSTEE
and
Golden State Petro (IOM I-A) PLC
-----------------------------------
ASSIGNMENT OF BUILDING CONTRACT
Dated as of December 1, 1996
-----------------------------------
===============================================================================
Assignment of Building Contract, dated as of December 1, 1996
(the "Assignment"), between Golden State Petro (IOM I-A) PLC (the "Owner") and
United States Trust Company of New York (the "Indenture Trustee"), not in its
individual capacity but solely as trustee under the Indenture (the "Indenture"),
dated as of the date hereof, among the Owner, the Indenture Trustee, Golden
State Petro (IOM I-B) PLC ("Golden State Petro B") and Golden State Petroleum
Transport Corporation ("Golden State Petroleum"), as agent for the Owner and
Golden State Petro B.
PRELIMINARY STATEMENT
On the Closing Date, Golden State Petroleum, as agent for the
Owner and Golden State Petro B, will issue Notes in connection with the
financing of the construction of the Vessel. The Vessel will be constructed
pursuant to the terms and conditions of the Building Contract. Pursuant to the
Agreement on Contract for Technical Matters, Chevron Shipping Company (the
"Technical Supervisor") will supervise the construction of the Vessel. Pursuant
to the Building Contract Guarantee, the Building Contract Guarantor is
guaranteeing the obligations of the Builder under the Building Contract. The
Allocated Principal Amount of the Mortgage Notes for the Vessel will be used,
INTER ALIA, to make the installments due under the Building Contract for the
Vessel. As collateral security for its obligations under the Indenture, the
Owner has and will assign, pledge, mortgage and grant the Indenture Trustee a
security interest in, INTER ALIA, the Building Contract, the Agreement on
Contract for Technical Matters and the Building Contract Guarantee.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and of other valuable consideration, receipt of
which is hereby acknowledged, the Owner and the Indenture Trustee hereby agree
as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined in Schedule 1 to this Assignment,
capitalized terms used in this Assignment shall have the meanings assigned to
such terms in the Indenture.
ARTICLE II
ASSIGNMENT
Section 2.01 SECURITY INTEREST. This Assignment is made and
delivered as security for the Obligations.
Section 2.02 ASSIGNMENT. In order to provide for the payment
of and as security for the Obligations, the Owner has granted, bargained,
assigned, transferred, conveyed, mortgaged, pledged and granted a security
interest in and confirmed, and does hereby grant, bargain, assign, transfer,
convey, mortgage, pledge and grant a security interest in and confirm, to the
Indenture Trustee, its successors and assigns, for its and their respective
successors' and assigns' own proper use and benefit, all of the Owner's right,
title and interest in and to the Building Contract and the Agreement on Contract
for Technical Matters, including without limitation any moneys whatsoever
payable to the Owner thereunder, together with the income
-2-
and proceeds thereof and all other rights and benefits whatsoever accruing to
the Owner thereunder; PROVIDED, HOWEVER, that the Owner shall keep the Indenture
Trustee fully and effectively indemnified from and against all actions, losses,
claims, proceedings, costs, demands and liabilities which may be suffered by the
Indenture Trustee under or by virtue of the Building Contract, the Agreement on
Contract for Technical Matters or this Assignment.
Section 2.03 OWNER TO REMAIN LIABLE. Anything in this
Assignment contained to the contrary notwithstanding, the Owner shall remain
liable under the Building Contract and the Agreement on Contract for Technical
Matters, and shall observe, perform and fulfill all of the conditions and
obligations to be observed, performed and fulfilled by it thereunder, and the
Indenture Trustee shall have no obligation or liability of any kind whatsoever
thereunder or by reason of or arising out of this Assignment, nor shall the
Indenture Trustee be under any liability whatsoever in the event of any failure
by the Owner to perform its obligations thereunder or be required or obligated
in any manner to observe, perform or fulfill any of the conditions or
obligations of the Owner thereunder or pursuant thereto, or to make any payment
or to make any inquiry as to the nature or sufficiency of any payment received
by it or the Owner thereunder, or to present or file any claim, or to take any
other action to collect or enforce the payment of any amounts which may have
been assigned to the Indenture Trustee or to which the Indenture Trustee may be
entitled hereunder at any time or times.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER
The Owner hereby represents and warrants to the Indenture
Trustee as follows:
Section 3.01 ORGANIZATION, POWER AND STATUS OF THE OWNER. The
Owner (a) is a corporation duly formed, validly existing and in good standing
under the laws of the Isle of Man and (b) is duly authorized, to the extent
necessary, to do business in each jurisdiction where the character of its
properties or the nature of its activities makes such qualification necessary.
The Owner has all requisite corporate power and authority to own and operate the
property it purports to own and to carry on its business as now being conducted
and as proposed to be conducted in respect of the Vessel.
Section 3.02 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND
DELIVERY. (a) The Owner has all necessary corporate power and authority to
execute, deliver and perform under this Assignment.
(b) All action on the part of the Owner that is required for
the authorization, execution, delivery and performance of this Assignment has
been duly and effectively taken; and the execution, delivery and performance of
this Assignment does not require the approval or consent of any Person except
for such consents and approvals as have been obtained on or prior to the Closing
Date.
-3-
(c) This Assignment has been duly executed and delivered by
the Owner. This Assignment constitutes the legal, valid and binding obligation
of the Owner, enforceable against it in accordance with the terms thereof.
Section 3.03 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT. (a)
Neither the execution, delivery and performance of this Assignment nor the
consummation of any of the transactions contemplated hereby nor performance of
or compliance with the terms and conditions hereof (i) contravenes any
Requirement of Law applicable to the Owner or (ii) constitutes a default under
the Indenture or any Security Document.
(b) The Owner is in compliance with and not in default under
any and all Requirements of Law applicable to the Owner and all terms and
provisions of this Assignment.
Section 3.04 GOVERNMENTAL APPROVALS. All Governmental
Approvals which are required to be obtained in the name of the Owner in
connection with the execution, delivery and performance by the Owner of this
Assignment have been obtained and are in effect on the Closing Date.
Section 3.05 LITIGATION. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending against the Owner or, to the best of the Owner's knowledge, threatened
against the Owner or pending or threatened against any property or other assets
or rights of the Owner with respect to this Assignment.
Section 3.06 NO PRIOR ASSIGNMENT. The Owner has not assigned
or pledged, and hereby covenants that it will not assign or pledge, so long as
this Assignment shall remain in effect, the Building Contract or the Agreement
on Contract for Technical Matters or any part of the rights, titles and
interests hereby assigned, to anyone other than the Indenture Trustee, or its
successors or assigns.
Section 3.07 THE AGREEMENTS. Each of the Building Contract and
the Agreement on Contract for Technical Matters constitutes the legal, valid and
binding obligation of the Owner as "Owner" thereunder and is in full force and
effect in the form of Exhibit "A" attached hereto; there are no amendments,
additions, addenda or modifications thereto and neither of the parties thereto
is in default thereunder.
ARTICLE IV
COVENANTS OF THE OWNER
The Owner hereby covenants and agrees that so long as any of
the Obligations remains outstanding:
Section 4.01 CONSENT OF PARTIES TO ASSIGNMENT. On the Closing
Date, the Owner shall deliver to the Builder and the Technical Supervisor a copy
of this Assignment and shall procure the execution by each of the Builder and
the Technical Supervisor of the Consent and
-4-
Acknowledgment set out in Exhibits A-1 and A-2 hereto and deliver said Consent
and Acknowledgment to the Indenture Trustee on the Closing Date.
Section 4.02 ENFORCEMENT OF AGREEMENT. (a) The Owner will do
or permit to be done each and every act or thing which the Indenture Trustee may
from time to time require to be done for the purpose of enforcing the Indenture
Trustee's rights under the Building Contract, the Agreement on Contract for
Technical Matters and this Assignment.
(b) The Owner shall cause all moneys hereby assigned or agreed
to be assigned or arising from or in connection with any of the rights, title,
interest and benefits of the Owner under the Building Contract and the Agreement
on Contract for Technical Matters shall be paid to the credit of Chase Manhattan
Bank NYC, ABA #000000000, A/C #920-1- 073195, credit U.S. Trust Co NY, further
credit to A/C #04692300, Golden State Petroleum Transport Revenue Account,
Attention: Xxxxx Xxxxxxx or to such other account as the Indenture Trustee may
from time to time direct.
(c) The Owner will not exercise any right or powers conferred
on it by the Building Contract and the Agreement on Contract for Technical
Matters in connection with any default or alleged default by the Builder or
Technical Supervisor, respectively, thereunder (including without limitation the
right of termination and substitution) unless and until requested so to do by
the Indenture Trustee whereupon the Owner agrees that it will do so provided
always that the Indenture Trustee shall not be responsible in any way whatsoever
in the event that the exercise of any right or power (including the right of
termination and substitution) be thereafter adjudged improper or to constitute a
repudiation of the Building Contract and the Agreement on Contract for Technical
Matters, as the case may be, by the Owner.
Section 4.03 AMENDMENT OF AGREEMENTS; ASSIGNMENT OF
AGREEMENTS. (a) The Owner will not, except with the previous written consent of
the Indenture Trustee, agree to any variation of the Building Contract or the
Agreement on Contract for Technical Matters or release any party thereto from
any of its obligations thereunder or waive any breach of any party thereto's
obligations thereunder or consent to any such act or omission of such party as
would otherwise constitute such breach.
(b) The Owner will not, except with the previous written
consent of the Indenture Trustee, assign the Building Contract or the Agreement
on Contract for Technical Matters to any other Person.
Section 4.04 PERFORMANCE OF OBLIGATIONS. The Owner will
perform its obligations under the Building Contract and the Agreement on
Contract for Technical Matters and will use its best efforts to cause the other
parties thereto to perform their respective obligations thereunder.
Section 4.05 NOTICES. The Owner will send a copy of all
notices received or given by it under the Building Contract or the Agreement on
Contract for Technical Matters forthwith to the Indenture Trustee.
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Section 4.06 FURTHER ASSURANCES. The Owner will at any time
and from time to time, upon the written request of the Indenture Trustee,
promptly and duly execute and deliver any and all such further instruments and
documents and take such action as the Indenture Trustee may deem desirable in
order to obtain the full benefits of this Assignment and of the rights and
powers herein granted.
Section 4.07 INDENTURE TRUSTEE AS ATTORNEY-IN-FACT OF OWNER.
The Owner hereby constitutes the Indenture Trustee, and its successors and
assigns, its true and lawful attorney-in-fact, irrevocably, with full power in
its own name, in the name of its agents or nominees or in the name of the Owner
or otherwise, to ask, require, demand, receive, enforce and give acquittance
for, any and all moneys and claims for moneys due and to become due and payable
under or arising out of the Building Contract and the Agreement on Contract for
Technical Matters, to endorse any checks or other instruments or orders in
connection therewith and to file any claims or take any action or institute any
proceedings which to the Indenture Trustee may seem to be necessary or advisable
under this Assignment. Any action or proceeding brought by the Indenture Trustee
pursuant to any of the provisions of this Assignment or otherwise and any claim
made by the Indenture Trustee hereunder may be compromised, withdrawn or
otherwise dealt with by the Indenture Trustee without any notice to or approval
of the Owner.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 AMENDMENT. This Assignment may be amended from
time to time by written agreement signed by the parties hereto.
Section 5.02 SEVERABILITY. If any provision of this Assignment
is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. The invalidity of any one or more phrases, sentences,
clauses or Sections of this Assignment contained, shall not affect the remaining
portions of this Assignment, or any part thereof.
Section 5.03 NOTICES. All demands, notices and communications
hereunder shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Indenture Trustee, at the following address: 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Department, (b) in the case of the Owner, at the following address: 00-00 Xxxxx
Xxxxxx, Xxxxxxx, Xxxx of Man, or at other such address as shall be designated by
such party in a written notice to the other parties.
Section 5.04 CONSENT TO JURISDICTION. Any legal suit, action
or proceeding against the Owner arising out of or relating to this Assignment,
or any transaction contemplated
-6-
hereby, may be instituted in any federal or state court in The City of New York,
State of New York, and the Owner hereby irrevocably submits to the jurisdiction
of any such court in any such suit, action or proceeding. The Owner hereby
waives, to the fullest extent permitted by applicable law, any defense which it
may now or hereafter have based upon lack of personal jurisdiction or venue or
FORUM NON CONVENIENS. The Owner hereby irrevocably appoints and designates CT
Corporation System, having an address at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, its
true and lawful attorney-in-fact and duly authorized agent for the limited
purpose of accepting servicing of legal process and the Owner agrees that
service of process upon such party shall constitute personal service of such
process on such Person. The Owner shall maintain the designation and appointment
of such authorized agent until all amounts payable under this Assignment shall
have been paid in full. If such agent shall cease to so act, the Owner shall
immediately designate and appoint another such agent satisfactory to the
Indenture Trustee and shall promptly deliver to the Indenture Trustee evidence
in writing of such other agent's acceptance of such appointment.
Section 5.05 CAPTIONS. The captions or headings in this
Assignment are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Assignment.
Section 5.06 GOVERNING LAW. This Assignment shall be governed
by and interpreted in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
Section 5.07 NO PARTNERSHIP. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the parties
hereto, and the services of each party shall be rendered as an independent
contractor and not as agent for any other party.
Section 5.08 COUNTERPARTS. This Assignment may be executed in
any number of counterparts and by different parties hereto on separate
counterpart, each of which shall be deemed to be an original. Such counterparts
shall constitute one and the same agreement.
Section 5.09 SURVIVAL. The representations, covenants and
agreements contained in or made pursuant to this Assignment in respect of either
party hereto shall survive the execution and delivery of this Assignment and
shall continue in effect so long as such party's obligations hereunder remain
outstanding.
Section 5.10 INTEGRATION. This Assignment and the Schedule and
Exhibits hereto constitute the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements, understandings or representations pertaining to the subject matter
hereof, whether oral or written. There are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as specifically set forth or incorporated herein.
-7-
Section 5.11 REPRODUCTION OF DOCUMENTS. This Assignment and
all documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements, certificates
and other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section 5.12 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This
Assignment shall be binding upon and inure to the benefit of the Owner and the
Indenture Trustee and their respective successors and assigns. The Owner shall
not have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Indenture Trustee. The Indenture Trustee, at
its sole option, shall have the right to assign this Assignment, the Indenture,
the Security Documents and any of its rights and interest hereunder in
accordance with the terms and provisions of the Indenture and the Security
Documents.
Section 5.13 GENERAL INTERPRETIVE PRINCIPLES. For purposes of
this Assignment except as otherwise expressly provided or unless the context
otherwise requires:
(a) the defined terms in this Assignment shall include the
plural as well as the singular, and the use of any gender herein shall be deemed
to include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Assignment;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Assignment as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
-8-
Section 5.14 EFFECTIVE DATE OF TRANSACTION. Notwithstanding
the fact that this Assignment is dated as of December 24, 1996, the transactions
set forth herein shall not be effective until the Closing Date.
IN WITNESS WHEREOF, the Owner and the Indenture Trustee have
caused this Assignment to be duly executed and delivered by their respective
officers thereunto duly authorized all as of the day and year first above
written.
United States Trust Company of New York,
as Indenture Trustee
By:/s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Golden State Petro (IOM I-A) PLC, as Owner
By:/s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
Exhibit A-1
LETTER OF ACKNOWLEDGMENT
TO ASSIGNMENT OF BUILDING CONTRACT
[Date]
United States Trust Company of New York,
as Indenture Trustee
Dear Sirs:
The undersigned hereby consents to and acknowledges receipt of
a signed copy of the Assignment of Building Contract (the "Assignment"), dated
as of _________, between Golden State Petro (IOM I-A) PLC (the "Owner") and
United States Trust Company of New York, not in its individual capacity but
solely as trustee (the "Indenture Trustee") as adequate notice of such
assignment to the Indenture Trustee of the Building Contract (as defined in the
Assignment) and of all the right, title and interest of the Owner in, to and
under the Building Contract.
So long as the Assignment remains effective, we hereby agree
that we shall pay any and all sums which we are legally obligated to pay to the
Owner or otherwise as stated in and according to the Building Contract directly
to _______________________ Golden State Petroleum Revenue Account, Attention:
___________________, or otherwise to such other account as you may at any time
or from time to time, designate by notice to us in writing.
We confirm that the terms of the Building Contract remain in
full force and effect that the Owner is not presently to our knowledge in breach
of the terms of the Building Contract. We further confirm that the terms of the
Building Contract have not been varied or modified and that the terms of the
Building Contract will not after the date hereof be varied or modified without
the prior written consent of the Indenture Trustee.
We confirm that we have received no prior notice of any
assignment by the Owner of any interest in the Building Contract.
The undersigned will not permit any amendment, modification,
cancellation or other alteration in the Building Contract, nor will it consent
to or accept the substitution thereunder of any party for the Owner without your
prior written consent.
SAMSUNG CORPORATION
By: ______________________________________
Name:_____________________________________
Title:____________________________________
SAMSUNG HEAVY INDUSTRIES, LTD.
By: ______________________________________
Name:_____________________________________
Title:____________________________________
Exhibit A-2
LETTER OF ACKNOWLEDGMENT
TO ASSIGNMENT OF AGREEMENT ON CONTRACT FOR TECHNICAL MATTERS
[Date]
United States Trust Company of New York,
as Indenture Trustee
Dear Sirs:
The undersigned hereby consents to and acknowledges receipt of
a signed copy of the Assignment of Building Contract (the "Assignment"), dated
as of _________, between Golden State Petro (IOM I-A) PLC (the "Owner") and
United States Trust Company of New York, not in its individual capacity but
solely as trustee (the "Indenture Trustee") as adequate notice of such
assignment to the Indenture Trustee of the Agreement on Contract for Technical
Matters (as defined in the Assignment) and of all the right, title and interest
of the Owner in, to and under the Agreement on Contract for Technical Matters.
So long as the Assignment remains effective, we hereby agree
that (a) we shall pay any and all sums which we are legally obligated to pay to
the Owner or otherwise as stated in and according to the Agreement on Contract
for Technical Matters directly to _______________________ Golden State Petroleum
Revenue Account, Attention: ___________________, or otherwise to such other
account as you may at any time or from time to time, designate by notice to us
in writing.
We confirm that the terms of the Agreement on Contract for
Technical Matters remain in full force and effect that the Owner is not
presently to our knowledge in breach of the terms of the Agreement on Contract
for Technical Matters. We further confirm that the terms of the Agreement on
Contract for Technical Matters have not been varied or modified and that the
terms of the Agreement on Contract for Technical Matters will not after the date
hereof be varied or modified without the prior written consent of the Indenture
Trustee.
We confirm that we have received no prior notice of any
assignment by the Owner of any interest in the Agreement on Contract for
Technical Matters.
The undersigned will not permit any amendment, modification,
cancellation or
-2-
other alteration in the Agreement on Contract for Technical Matters, nor will it
consent to or accept the substitution thereunder of any party for the Owner
without your prior written consent.
SAMSUNG CORPORATION
By: ______________________________________
Name:_____________________________________
Title:____________________________________
SAMSUNG HEAVY INDUSTRIES, LTD.
By: ______________________________________
Name:_____________________________________
Title:____________________________________
CHEVRON SHIPPING COMPANY
By: ______________________________________
Name:_____________________________________
Title:____________________________________
SCHEDULE 1
ADDITIONAL DEFINED TERMS USED IN THE ASSIGNMENT
"AGREEMENT ON CONTRACT FOR TECHNICAL MATTERS" means, the Agreement
Regarding Technical Matters, dated as of the Closing Date, between the Owner,
Samsung Heavy Industries Co., LTD and the Technical Supervisor.
"ASSIGNMENT" or "ASSIGNMENT OF BUILDING CONTRACT" means, for each
Vessel, the Building Contract Assignment, dated as of the Closing Date, between
the related Owner and the Indenture Trustee, pursuant to which such Owner
collaterally assigns its rights, title and interests in the related Building
Contract and the Agreement on Contract for Technical Matters to the Indenture
Trustee.
"ASSIGNMENT OF BUILDING CONTRACT GUARANTEE" means, for each Building
Contract Guarantee, the Assignment of Building Contract Guarantee, dated as of
the Closing Date, between the related Owner and the Indenture Trustee, as the
same may be amended from time to time, pursuant to which such Owner collaterally
assigns its rights, title and interest in the related Building Contract
Guarantee therein to the Indenture Trustee.
"ASSIGNMENT OF CHARTER" means the assignment between the Owner and the
Indenture Trustee, as amended from time to time in accordance with the terms
thereof, pursuant to which the Owner collaterally assigns to the Indenture
Trustee all of the Owner's right, title and interest in, to and under the
Initial Charter to secure its obligations under the Indenture.
"ASSIGNMENT OF CHARTER SUPPLEMENT" means, for each Charter Supplement,
the Assignment of Charter Supplement, dated the date of the Supplemental
Indenture, between the Owner of the Vessel and the Indenture Trustee, as the
same may be amended from time to time pursuant to which the Owner collaterally
assigns all of the Owner's right, title and interest therein to the Indenture
Trustee.
"ASSIGNMENT OF CHEVRON GUARANTEE" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Chevron Guarantee to secure its obligations under the Indenture.
"ASSIGNMENT OF EARNINGS AND INSURANCES" means the assignment between
the Owner and the Indenture Trustee, as amended from time to time in accordance
with the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the freights and hires (as well as any charters entered into after the Delivery
Date) with respect to the Vessel to secure its obligations under the Indenture.
"ASSIGNMENT OF MANAGEMENT AGREEMENT" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's
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right, title and interest in, to and under the Management Agreement to secure
its obligations under the Indenture.
"BUILDER" means, collectively, Samsung Corporation and Samsung Heavy
Industries, Ltd.
"BUILDING CONTRACT" means the Shipbuilding Contract, dated December 24,
1996, between the Builder and the Owner.
"BUILDING CONTRACT GUARANTEE" means the Irrevocable Installment Payment
Letter of Guarantee, dated December 24, 1996, given by the Building Contract
Guarantor to the Owner in connection with the Vessel.
"BUILDING CONTRACT GUARANTOR" means Korea Development Bank.
"CHEVRON" means Chevron Corporation, a Delaware corporation, and its
successors and assigns.
"CHEVRON GUARANTEE" means the Guarantee, dated the Closing Date, given
by Chevron to the Owner in connection with the Initial Charter.
"CLOSING DATE" means December 24, 1996.
"COLLATERAL" means the collateral assigned, pledged or granted to the
Indenture Trustee pursuant to (i) the Assignment of Charter, (ii) the Assignment
of Earnings and Insurances, (iii) the Assignment of Charter Supplement, (iv) the
Mortgage, (v) the Assignment of Chevron Guarantee, (vi) the Assignment of
Management Agreement, (vii) this Assignment of Building Contract, (viii) the
Assignment of Building Contract Guarantee, (ix) the Issue of One Debenture and
(x) the Stock Pledge, together with all income and proceeds thereof.
"DELIVERY DATE" means the date the Vessel is accepted by the Owner from
the Builder under the Building Contract.
"INDENTURE" means the Indenture, dated as of December 1, 1996 among the
Indenture Trustee, the Owner, Golden State Petro B and Golden State Petroleum,
pursuant to which the Notes were issued.
"INDENTURE TRUSTEE" means United States Trust Company of New York.
"INITIAL CHARTER" means with respect to each Vessel, the bareboat
charter, dated as of December 24, 1996, between the Initial Charterer and the
Owner.
"INITIAL CHARTERER" means Chevron Transport Corporation, a Liberian
corporation.
"ISSUE OF ONE DEBENTURE" means each Issue of One Debenture between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof,
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pursuant to which the Owner grants to the Indenture Trustee a security interest
in all of its assets.
"MANAGEMENT AGREEMENT" means the agreement, dated the Closing Date,
between the Owner and the Manager pursuant to which the Manager agrees to
provide certain services to the Owner.
"MANAGER" means the Person performing the duties of the Manager under
the Management Agreement, initially Cambridge Fund Management L.L.C.
"MORTGAGE" means, with respect to the Vessel, the first preferred ship
mortgage on the Vessel granted by the Owner to the Indenture Trustee, as amended
from time to time in accordance with the terms of such Mortgage.
"OBLIGATIONS" means the payment, performance or obligations of any kind
or nature whatsoever of the Owner under and pursuant to the Indenture, any
Security Document and any instrument, agreement or document referred to therein.
"OWNER" means Golden State Petro (IOM I-A) PLC, a company organized
under the laws of the Isle of Man.
"SECURITY DOCUMENTS" means the Indenture, the Mortgage, the Assignment
of Charter, the Assignments of Charter Supplements, the Assignment of Earnings
and Insurances, the Assignment of Chevron Guarantee, the Assignment of
Management Agreement, this Assignment of Building Contract, the Issue of One
Debenture, the Stock Pledge and the Assignment of Building Contract Guarantee,
collectively.
"TECHNICAL SUPERVISOR" means Chevron Shipping Company, San Francisco,
California (as Agent for the Initial Charterer).
"VESSEL" means Hull No. 1228.
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS............................... 1
ARTICLE II
ASSIGNMENT................................. 1
Section 2.01 Security Interest.......................................... 1
Section 2.02 Assignment................................................. 1
Section 2.03 Owner to Remain Liable..................................... 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER....................... 2
Section 3.01 Organization, Power and Status of the Owner................ 2
Section 3.02 Authorization; Enforceability; Execution and Delivery...... 2
Section 3.03 No Conflicts; Laws and Consents; No Default................ 3
Section 3.04 Governmental Approvals..................................... 3
Section 3.05 Litigation................................................. 3
Section 3.06 No Prior Assignment........................................ 3
Section 3.07 The Agreements............................................. 3
ARTICLE IV
COVENANTS OF THE OWNER........................... 3
Section 4.01 Consent of Parties to Assignment........................... 3
Section 4.02 Enforcement of Agreement................................... 3
Section 4.03 Amendment of Agreements; Assignment of Agreements.......... 4
Section 4.04 Performance of Obligations................................. 4
Section 4.05 Notices.................................................... 4
Section 4.06 Further Assurances......................................... 4
PAGE
Section 4.07 Indenture Trustee as Attorney-in-Fact of Owner............. 5
ARTICLE V
MISCELLANEOUS PROVISIONS....................... 5
Section 5.01 Amendment.................................................. 5
Section 5.02 Severability............................................... 5
Section 5.03 Notices.................................................... 5
Section 5.04 Consent to Jurisdiction.................................... 5
Section 5.05 Captions................................................... 6
Section 5.06 Governing Law.............................................. 6
Section 5.07 No Partnership............................................. 6
Section 5.08 Counterparts............................................... 6
Section 5.09 Survival................................................... 6
Section 5.10 Integration................................................ 6
Section 5.11 Reproduction of Documents.................................. 6
Section 5.12 Successors and Assigns; Assignment......................... 7
Section 5.13 General Interpretive Principles............................ 7
Section 5.14 Effective Date of Transaction.............................. 7
EXHIBIT I
---------
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK,
AS INDENTURE TRUSTEE
and
GOLDEN STATE PETRO (IOM I-A) PLC
-----------------------------------
ASSIGNMENT OF BUILDING CONTRACT GUARANTEE
Dated as of December 1, 1996
-----------------------------------
================================================================================
Assignment of Building Contract Guarantee, dated as of
December 1, 1996 (the "Assignment"), between Golden State Petro (IOM I-A) PLC
(the "Owner") and United States Trust Company of New York (the "Indenture
Trustee"), not in its individual capacity but solely as trustee under the
Indenture (the "Indenture"), dated as of the date hereof, among the Owner, the
Indenture Trustee, Golden State Petro (IOM I-B) PLC ("Golden State Petro B") and
Golden State Petroleum Transport Corporation ("Golden State Petroleum"), as
agent for the Owner and Golden State Petro B.
PRELIMINARY STATEMENT
On the Closing Date, Golden State Petroleum, as agent for the
Owner and Golden State Petro B, will issue Notes in connection with the
financing of the construction of the Vessel. The Vessel will be constructed
pursuant to the terms and conditions of the Building Contract. Pursuant to the
Agreement on Contract for Technical Matters, the Technical Supervisor will
supervise the construction of the Vessel. Pursuant to the Building Contract
Guarantee, Korea Development Bank (the "Building Contract Guarantor") will
guarantee the obligations of the Builder under the Building Contract. The
Allocated Principal Amount of the Mortgage Notes for the Vessel will be used,
INTER ALIA, to make the installments due under the Building Contract for the
Vessel. As collateral security for its obligations under the Indenture, the
Owner has and will assign, pledge, mortgage and grant the Indenture Trustee a
security interest in, INTER ALIA, the Building Contract, the Agreement on
Contract for Technical Matters and the Building Contract Guarantee.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and of other valuable consideration, receipt of
which is hereby acknowledged, the Owner and the Indenture Trustee hereby agree
as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined in Schedule 1 to this Assignment,
capitalized terms used in this Assignment shall have the meanings assigned to
such terms in the Indenture.
ARTICLE II
ASSIGNMENT
Section 2.01 SECURITY INTEREST. This Assignment is made and
delivered as security for the Obligations.
Section 2.02 ASSIGNMENT. In order to provide for the payment
of and as security for the Obligations, the Owner has granted, bargained,
assigned, transferred, conveyed, mortgaged, pledged and granted a security
interest in and confirmed, and does hereby grant, bargain, assign, transfer,
convey, mortgage, pledge and grant a security interest in and confirm, to the
Indenture Trustee, its successors and assigns, for its and their respective
successors' and assigns' own proper use and benefit, all of the Owner's right,
title and interest in and to the Building Contract Guarantee, including without
limitation any moneys whatsoever payable to the Owner thereunder, together with
the income and proceeds thereof and all other rights and
-2-
benefits whatsoever accruing to the Owner thereunder; PROVIDED, HOWEVER, that
the Owner shall keep the Indenture Trustee fully and effectively indemnified
from and against all actions, losses, claims, proceedings, costs, demands and
liabilities which may be suffered by the Indenture Trustee under or by virtue of
the Building Contract Guarantee or this Assignment.
Section 2.03 OWNER TO REMAIN LIABLE. Anything in this
Assignment contained to the contrary notwithstanding, the Owner shall remain
liable under the Building Contract Guarantee, and shall observe, perform and
fulfill all of the conditions and obligations to be observed, performed and
fulfilled by it thereunder, and the Indenture Trustee shall have no obligation
or liability of any kind whatsoever thereunder or by reason of or arising out of
this Assignment, nor shall the Indenture Trustee be under any liability
whatsoever in the event of any failure by the Owner to perform its obligations
thereunder or be required or obligated in any manner to observe, perform or
fulfill any of the conditions or obligations of the Owner thereunder or pursuant
thereto, or to make any payment or to make any inquiry as to the nature or
sufficiency of any payment received by it or the Owner thereunder, or to present
or file any claim, or to take any other action to collect or enforce the payment
of any amounts which may have been assigned to the Indenture Trustee or to which
the Indenture Trustee may be entitled hereunder at any time or times.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER
The Owner hereby represents and warrants to the Indenture
Trustee as follows:
Section 3.01 ORGANIZATION, POWER AND STATUS OF THE OWNER. The
Owner (a) is a corporation duly formed, validly existing and in good standing
under the laws of the Isle of Man and (b) is duly authorized, to the extent
necessary, to do business in each jurisdiction where the character of its
properties or the nature of its activities makes such qualification necessary.
The Owner has all requisite corporate power and authority to own and operate the
property it purports to own and to carry on its business as now being conducted
and as proposed to be conducted in respect of the Vessel.
Section 3.02 AUTHORIZATION; ENFORCEABILITY; EXECUTION AND
DELIVERY. (a) The Owner has all necessary corporate power and authority to
execute, deliver and perform under this Assignment.
(b) All action on the part of the Owner that is required for
the authorization, execution, delivery and performance of this Assignment has
been duly and effectively taken; and the execution, delivery and performance of
this Assignment does not require the approval or consent of any Person except
for such consents and approvals as have been obtained on or prior to the Closing
Date.
(c) This Assignment has been duly executed and delivered by
the Owner. This Assignment constitutes the legal, valid and binding obligation
of the Owner, enforceable against it in accordance with the terms thereof.
-3-
Section 3.03 NO CONFLICTS; LAWS AND CONSENTS; NO DEFAULT. (a)
Neither the execution, delivery and performance of this Assignment nor the
consummation of any of the transactions contemplated hereby nor performance of
or compliance with the terms and conditions hereof (i) contravenes any
Requirement of Law applicable to the Owner or (ii) constitutes a default under
the Indenture or any Security Document.
(b) The Owner is in compliance with and not in default under
any and all Requirements of Law applicable to the Owner and all terms and
provisions of this Assignment.
Section 3.04 GOVERNMENTAL APPROVALS. All Governmental
Approvals which are required to be obtained in the name of the Owner in
connection with the execution, delivery and performance by the Owner of this
Assignment have been obtained and are in effect on the Closing Date.
Section 3.05 LITIGATION. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending against the Owner or, to the best of the Owner's knowledge, threatened
against the Owner or pending or threatened against any property or other assets
or rights of the Owner with respect to this Assignment.
Section 3.06 NO PRIOR ASSIGNMENT. The Owner has not assigned
or pledged, and hereby covenants that it will not assign or pledge, so long as
this Assignment shall remain in effect, the Building Contract Guarantee or any
part of the rights, titles and interests hereby assigned, to anyone other than
the Indenture Trustee, or its successors or assigns.
Section 3.07 THE BUILDING CONTRACT GUARANTEE. The Building
Contract Guarantee constitutes the legal, valid and binding obligation of the
Owner as "Owner" thereunder and is in full force and effect in the form of
Exhibit "A" attached hereto; there are no amendments, additions, addenda or
modifications thereto and neither of the parties thereto is in default
thereunder.
ARTICLE IV
COVENANTS OF THE OWNER
The Owner hereby covenants and agrees that so long as any of
the Obligations remains outstanding:
Section 4.01 CONSENT OF PARTIES TO ASSIGNMENT. On the Closing
Date, the Owner shall deliver to the Building Contract Guarantor a copy of this
Assignment and shall procure the execution by the Building Contract Guarantor of
the Consent and Acknowledgment set out in Exhibit A hereto and deliver said
Consent and Acknowledgment to the Indenture Trustee on the Closing Date.
Section 4.02 ENFORCEMENT OF BUILDING CONTRACT GUARANTEE. (a)
The Owner will do or permit to be done each and every act or thing which the
Indenture Trustee may from time
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to time require to be done for the purpose of enforcing the Indenture Trustee's
rights under the Building Contract Guarantee and this Assignment.
(b) The Owner shall cause all moneys hereby assigned or agreed
to be assigned or arising from or in connection with any of the rights, title,
interest and benefits of the Owner under the Building Contract Guarantee shall
be paid to the credit of Chase Manhattan Bank NYC, ABA #000000000, A/C
#000-0-000000, credit U.S. Trust Co NY, further credit to A/C #04692300, Golden
State Petroleum Transport Revenue Account, Attention: Xxxxx Xxxxxxx or to such
other account as the Indenture Trustee may from time to time direct.
(c) The Owner will not exercise any right or powers conferred
on it by the Building Contract Guarantee in connection with any default or
alleged default by the Building Contract Guarantor thereunder (including without
limitation the right of termination and substitution) unless and until requested
so to do by the Indenture Trustee whereupon the Owner agrees that it will do so
provided always that the Indenture Trustee shall not be responsible in any way
whatsoever in the event that the exercise of any right or power (including the
right of termination and substitution) be thereafter adjudged improper or to
constitute a repudiation of the Building Contract Guarantee by the Owner.
Section 4.03 AMENDMENT OF BUILDING CONTRACT GUARANTEE;
ASSIGNMENT OF BUILDING CONTRACT GUARANTEE. (a) The Owner will not, except with
the previous written consent of the Indenture Trustee, agree to any variation of
the Building Contract Guarantee or release the Building Contract Guarantor
thereto from any of its obligations thereunder or waive any breach of the
Building Contract Guarantor's obligations thereunder or consent to any such act
or omission of such party as would otherwise constitute such breach.
(b) The Owner will not, except with the previous written
consent of the Indenture Trustee, assign the Building Contract Guarantee to any
other Person.
Section 4.04 PERFORMANCE OF OBLIGATIONS. The Owner will
perform its obligations under the Building Contract Guarantee and will use its
best efforts to cause the Building Contract Guarantor to perform its obligations
thereunder.
Section 4.05 NOTICES. The Owner will send a copy of all
notices received or given by it under the Building Contract Guarantee forthwith
to the Indenture Trustee.
Section 4.06 FURTHER ASSURANCES. The Owner will at any time
and from time to time, upon the written request of the Indenture Trustee,
promptly and duly execute and deliver any and all such further instruments and
documents and take such action as the Indenture Trustee may deem desirable in
order to obtain the full benefits of this Assignment and of the rights and
powers herein granted.
Section 4.07 INDENTURE TRUSTEE AS ATTORNEY-IN-FACT OF OWNER.
The Owner hereby constitutes the Indenture Trustee, and its successors and
assigns, its true and lawful attorney-in-fact, irrevocably, with full power in
its own name, in the name of its agents or
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nominees or in the name of the Owner or otherwise, to ask, require, demand,
receive, enforce and give acquittance for, any and all moneys and claims for
moneys due and to become due and payable under or arising out of the Building
Contract Guarantee, to endorse any checks or other instruments or orders in
connection therewith and to file any claims or take any action or institute any
proceedings which to the Indenture Trustee may seem to be necessary or advisable
under this Assignment. Any action or proceeding brought by the Indenture Trustee
pursuant to any of the provisions of this Assignment or otherwise and any claim
made by the Indenture Trustee hereunder may be compromised, withdrawn or
otherwise dealt with by the Indenture Trustee without any notice to or approval
of the Owner.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 AMENDMENT. This Assignment may be amended from
time to time by written agreement signed by the parties hereto.
Section 5.02 SEVERABILITY. If any provision of this Assignment
is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. The invalidity of any one or more phrases, sentences,
clauses or Sections of this Assignment contained, shall not affect the remaining
portions of this Assignment, or any part thereof.
Section 5.03 NOTICES. All demands, notices and communications
hereunder shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Indenture Trustee, at the following address: 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Department, (b) in the case of the Owner, at the following address: 00-00 Xxxxx
Xxxxxx, Xxxxxxx, Xxxx of Man, or at other such address as shall be designated by
such party in a written notice to the other parties.
Section 5.04 CONSENT TO JURISDICTION. Any legal suit, action
or proceeding against the Owner arising out of or relating to this Assignment,
or any transaction contemplated hereby, may be instituted in any federal or
state court in The City of New York, State of New York, and the Owner hereby
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding. The Owner hereby waives, to the fullest extent permitted
by applicable law, any defense which it may now or hereafter have based upon
lack of personal jurisdiction or venue or FORUM NON CONVENIENS. The Owner hereby
irrevocably appoints and designates CT Corporation System, having an address at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, its true and lawful attorney-in-fact and duly
authorized agent for the limited purpose of accepting servicing of legal process
and the Owner agrees that service of process upon such party shall constitute
personal service of such process on such Person. The Owner shall maintain the
designation and appointment of such authorized agent until all amounts payable
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under this Assignment shall have been paid in full. If such agent shall cease to
so act, the Owner shall immediately designate and appoint another such agent
satisfactory to the Indenture Trustee and shall promptly deliver to the
Indenture Trustee evidence in writing of such other agent's acceptance of such
appointment.
Section 5.05 CAPTIONS. The captions or headings in this
Assignment are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Assignment.
Section 5.06 GOVERNING LAW. This Assignment shall be governed
by and interpreted in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
Section 5.07 NO PARTNERSHIP. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the parties
hereto, and the services of each party shall be rendered as an independent
contractor and not as agent for any other party.
Section 5.08 COUNTERPARTS. This Assignment may be executed in
any number of counterparts and by different parties hereto on separate
counterpart, each of which shall be deemed to be an original. Such counterparts
shall constitute one and the same agreement.
Section 5.09 SURVIVAL. The representations, covenants and
agreements contained in or made pursuant to this Assignment in respect of either
party hereto shall survive the execution and delivery of this Assignment and
shall continue in effect so long as such party's obligations hereunder remain
outstanding.
Section 5.10 INTEGRATION. This Assignment and the Schedule and
Exhibits hereto constitute the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements, understandings or representations pertaining to the subject matter
hereof, whether oral or written. There are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as specifically set forth or incorporated herein.
Section 5.11 REPRODUCTION OF DOCUMENTS. This Assignment and
all documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements, certificates
and other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
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Section 5.12 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This
Assignment shall be binding upon and inure to the benefit of the Owner and the
Indenture Trustee and their respective successors and assigns. The Owner shall
not have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Indenture Trustee. The Indenture Trustee, at
its sole option, shall have the right to assign this Assignment, the Indenture,
the Security Documents and any of its rights and interest hereunder in
accordance with the terms and provisions of the Indenture and the Security
Documents.
Section 5.13 GENERAL INTERPRETIVE PRINCIPLES. For purposes of
this Assignment except as otherwise expressly provided or unless the context
otherwise requires:
(a) the defined terms in this Assignment shall include the
plural as well as the singular, and the use of any gender herein shall be deemed
to include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Assignment;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Assignment as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 5.14 EFFECTIVE DATE OF TRANSACTION. Notwithstanding
the fact that this Assignment is dated as of December 24, 1996, the transactions
set forth herein shall not be effective until the Closing Date.
IN WITNESS WHEREOF, the Owner and the Indenture Trustee have
caused this Assignment to be duly executed and delivered by their respective
officers thereunto duly authorized all as of the day and year first above
written.
United States Trust Company of New York, as
Indenture Trustee
By:/s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Golden State Petro (IOM I-A) PLC, as Owner
By:/s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
Exhibit A
LETTER OF ACKNOWLEDGMENT
TO ASSIGNMENT OF BUILDING CONTRACT GUARANTEE
[Date]
United States Trust Company of New York,
as Indenture Trustee
Dear Sirs:
The undersigned hereby consents to and acknowledges receipt of
a signed copy of the Assignment of Building Contract Guarantee (the
"Assignment"), dated as of December 1, 1996, between Golden State Petro (IOM
I-A) PLC (the "Owner") and United States Trust Company of New York, not in its
individual capacity but solely as trustee (the "Indenture Trustee") as adequate
notice of such assignment to the Indenture Trustee of the Building Contract
Guarantee (as defined in the Assignment) and of all the right, title and
interest of the Owner in, to and under the Building Contract Guarantee.
So long as the Assignment remains effective, we hereby agree
that we shall pay any and all sums which we are legally obligated to pay to the
Owner or otherwise as stated in and according to the Building Contract Guarantee
directly to _______________________ Golden State Petroleum Revenue Account,
Attention: ___________________, or otherwise to such other account as you may at
any time or from time to time, designate by notice to us in writing.
We confirm that the terms of the Building Contract Guarantee
remain in full force and effect that the Owner is not presently to our knowledge
in breach of the terms of the Building Contract Guarantee. We further confirm
that the terms of the Building Contract Guarantee have not been varied or
modified and that the terms of the Building Contract Guarantee will not after
the date hereof be varied or modified without the prior written consent of the
Indenture Trustee.
We confirm that we have received no prior notice of any
assignment by the Owner of any interest in the Building Contract Guarantee.
The undersigned will not permit any amendment, modification,
cancellation or other alteration in the Building Contract Guarantee, nor will it
consent to or accept the substitution thereunder of any party for the Owner
without your prior written consent.
Korea Development Bank
By:_______________________________
Name:_____________________________
Title:____________________________
SCHEDULE 1
ADDITIONAL DEFINED TERMS USED IN THE ASSIGNMENT
"AGREEMENT ON CONTRACT FOR TECHNICAL MATTERS" means, the Agreement
Regarding Technical Matters, dated as of the Closing Date, between the Owner,
Samsung Heavy Industries Co., LTD and the Technical Supervisor.
"ASSIGNMENT" or "ASSIGNMENT OF BUILDING CONTRACT GUARANTEE" means, for
each Building Contract Guarantee, the Assignment of Building Contract Guarantee,
dated as of the Closing Date, between the related Owner and the Indenture
Trustee, as the same may be amended from time to time, pursuant to which such
Owner collaterally assigns its rights, title and interest in the related
Building Contract Guarantee therein to the Indenture Trustee.
"ASSIGNMENT OF BUILDING CONTRACT" means, for each Vessel, the Building
Contract Assignment, dated as of the Closing Date, between the related Owner and
the Indenture Trustee, pursuant to which such Owner collaterally assigns its
rights, title and interests in the related Building Contract and the Agreement
on Contract for Technical Matters to the Indenture Trustee.
"ASSIGNMENT OF CHARTER" means the assignment between the Owner and the
Indenture Trustee, as amended from time to time in accordance with the terms
thereof, pursuant to which the Owner collaterally assigns to the Indenture
Trustee all of the Owner's right, title and interest in, to and under the
Initial Charter to secure its obligations under the Indenture.
"ASSIGNMENT OF CHARTER SUPPLEMENT" means, for each Charter Supplement,
the Assignment of Charter Supplement, dated the date of the Supplemental
Indenture, between the Owner of the Vessel and the Indenture Trustee, as the
same may be amended from time to time pursuant to which the Owner collaterally
assigns all of the Owner's right, title and interest therein to the Indenture
Trustee.
"ASSIGNMENT OF CHEVRON GUARANTEE" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the Chevron Guarantee to secure its obligations under the Indenture.
"ASSIGNMENT OF EARNINGS AND INSURANCES" means the assignment between
the Owner and the Indenture Trustee, as amended from time to time in accordance
with the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's right, title and interest in, to and under
the freights and hires (as well as any charters entered into after the Delivery
Date) with respect to the Vessel to secure its obligations under the Indenture.
"ASSIGNMENT OF MANAGEMENT AGREEMENT" means the assignment between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof, pursuant to which the Owner collaterally assigns to the
Indenture Trustee all of the Owner's
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right, title and interest in, to and under the Management Agreement to secure
its obligations under the Indenture.
"BUILDER" means, collectively, Samsung Corporation and Samsung Heavy
Industries, Ltd.
"BUILDING CONTRACT" means the Shipbuilding Contract, dated December 24,
1996, between the Builder and the Owner.
"BUILDING CONTRACT GUARANTEE" means the Irrevocable Installment Payment
Letter of Guarantee, dated December 24, 1996, given by the Building Contract
Guarantor to the Owner in connection with the Vessel.
"BUILDING CONTRACT GUARANTOR" means Korea Development Bank.
"CHEVRON" means Chevron Corporation, a Delaware corporation, and its
successors and assigns.
"CHEVRON GUARANTEE" means the Guarantee, dated the Closing Date, given
by Chevron to the Owner in connection with the Initial Charter.
"CLOSING DATE" means December 24, 1996.
"COLLATERAL" means the collateral assigned, pledged or granted to the
Indenture Trustee pursuant to (i) the Assignment of Charter, (ii) the Assignment
of Earnings and Insurances, (iii) the Assignment of Charter Supplement, (iv) the
Mortgage, (v) the Assignment of Chevron Guarantee, (vi) the Assignment of
Management Agreement, (vii) the Assignment of Building Contract, (viii) this
Assignment of Building Contract Guarantee, (ix) the Issue of One Debenture and
(x) the Stock Pledge, together with all income and proceeds thereof.
"DELIVERY DATE" means the date the Vessel is accepted by the Owner from
the Builder under the Building Contract.
"INDENTURE" means the Indenture, dated as of December 1, 1996, among
the Indenture Trustee, the Owner, Golden State Petro B and Golden State
Petroleum, pursuant to which the Notes were issued.
"INDENTURE TRUSTEE" means United States Trust Company of New York.
"INITIAL CHARTER" means with respect to each Vessel, the bareboat
charter, dated as of December 24, 1996, between the Initial Charterer and the
Owner.
"INITIAL CHARTERER" means Chevron Transport Corporation, a Liberian
corporation.
"ISSUE OF ONE DEBENTURE" means each Issue of One Debenture between the
Owner and the Indenture Trustee, as amended from time to time in accordance with
the terms thereof,
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pursuant to which the Owner grants to the Indenture Trustee a security interest
in all of its assets.
"MANAGEMENT AGREEMENT" means the agreement, dated the Closing Date,
between the Owner and the Manager pursuant to which the Manager agrees to
provide certain services to the Owner.
"MANAGER" means the Person performing the duties of the Manager under
the Management Agreement, initially Cambridge Fund Management L.L.C.
"MORTGAGE" means, with respect to the Vessel, the first preferred ship
mortgage on the Vessel granted by the Owner to the Indenture Trustee, as amended
from time to time in accordance with the terms of such Mortgage.
"OBLIGATIONS" means the payment, performance or obligations of any kind
or nature whatsoever of the Owner under and pursuant to the Indenture, any
Security Document and any instrument, agreement or document referred to therein.
"OWNER" means Golden State Petro (IOM I-A) PLC, a company organized
under the laws of the Isle of Man.
"SECURITY DOCUMENTS" means the Indenture, the Mortgage, the Assignment
of Charter, the Assignments of Charter Supplements, the Assignment of Earnings
and Insurances, the Assignment of Chevron Guarantee, the Assignment of
Management Agreement, the Assignment of Building Contract, the Issue of One
Debenture, the Stock Pledge and this Assignment of Building Contract Guarantee,
collectively.
"TECHNICAL SUPERVISOR" means Chevron Shipping Company, San Francisco,
California (as Agent for the Initial Charterer).
"VESSEL" means Hull No. 1228.
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS............................... 1
ARTICLE II
ASSIGNMENT................................ 1
Section 2.01 Security Interest............................................. 1
Section 2.02 Assignment.................................................... 1
Section 2.03 Owner to Remain Liable........................................ 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OWNER................ 2
Section 3.01 Organization, Power and Status of the Owner................... 2
Section 3.02 Authorization; Enforceability; Execution and Delivery......... 2
Section 3.03 No Conflicts; Laws and Consents; No Default................... 3
Section 3.04 Governmental Approvals........................................ 3
Section 3.05 Litigation.................................................... 3
Section 3.06 No Prior Assignment........................................... 3
Section 3.07 The Building Contract Guarantee............................... 3
ARTICLE IV
COVENANTS OF THE OWNER.......................... 3
Section 4.01 Consent of Parties to Assignment.............................. 3
Section 4.02 Enforcement of Building Contract Guarantee.................... 3
Section 4.03 Amendment of Building Contract Guarantee; Assignment of
Building Contract Guarantee................................... 4
Section 4.04 Performance of Obligations.................................... 4
Section 4.05 Notices....................................................... 4
Page
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Section 4.06 Further Assurances............................................ 4
Section 4.07 Indenture Trustee as Attorney-in-Fact of Owner................ 4
ARTICLE V
MISCELLANEOUS PROVISIONS........................ 5
Section 5.01 Amendment..................................................... 5
Section 5.02 Severability.................................................. 5
Section 5.03 Notices....................................................... 5
Section 5.04 Consent to Jurisdiction....................................... 5
Section 5.05 Captions...................................................... 6
Section 5.06 Governing Law................................................. 6
Section 5.07 No Partnership................................................ 6
Section 5.08 Counterparts.................................................. 6
Section 5.09 Survival...................................................... 6
Section 5.10 Integration................................................... 6
Section 5.11 Reproduction of Documents..................................... 6
Section 5.12 Successors and Assigns; Assignment............................ 6
Section 5.13 General Interpretive Principles............................... 7
Section 5.14 Effective Date of Transaction................................. 7
