EXHIBIT 10.13
THIS AGREEMENT is dated 21st December, 2001 between:
(1) NAVIERA TEEKAY GAS IV S.L., (formerly Naviera X. Xxxxxx Gas IV S.A.) a
company organised and existing under the laws of Spain, whose registered
office is at C/Musgo n degrees .5, 2 degrees Plta., XX XXXXXXX, 00000
Madrid (the "BORROWER");
(2) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the "BANKS");
(3) X.X. XXXXXX EUROPE LIMITED (formerly Chase Manhattan International
Limited) as agent (the "AGENT");
(4) X.X. XXXXXX BANK S.A., (formerly The Chase Manhattan Bank CMB S.A.) in its
capacity as Spanish Security Agent (the "SPANISH SECURITY AGENT");
(5) JPMORGAN CHASE BANK, N.A. and COMMERZBANK AKTIENGESELLSCHAFT and CALYON
(formerly Credit Agricole Indosuez) as swap banks (each in such capacity,
a "SWAP BANK"); and
(6) X. X. XXXXXX plc as lead arranger (the "ARRANGER").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"AFFILIATE"
means a Subsidiary or a Holding Company of a person or any other
Subsidiary of that Holding Company.
"AGENT'S SPOT RATE OF EXCHANGE"
means, in relation to any currency (other than euros) in which any payment
is made under this Agreement or any other Finance Document (the "RELEVANT
CURRENCY"), the Agent's spot rate of exchange for the purchase of euros in
the London foreign exchange market with the relevant currency on or about
11.00 a.m. on the day the payment is received or on the next Business Day.
"AIE"
means an economic grouping ("Agrupacion de Interes Economico") organised
and existing under the laws of Spain, which will step into the
Shipbuilding Contract in place of the SPC by way of novation at the
implementation of Stage Two.
"APPLICABLE LAW"
means, as the context may require, all or any laws, statutes,
proclamations, treaties, bylaws, directives, regulations, statutory
instruments, rules, orders, decisions, circulars, codes, decrees,
injunctions, resolutions, judgments, rules of court, delegated or
subordinate legislation, rules of common law or any European Union
legislation at any time or from time
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to time in force in the country in which any Party is incorporated or in
which the Vessel may be located and which are or may become applicable to
this Agreement, any Finance Document or document referred to in this
Agreement, and have force of law, as the same may be subjected to any
Change in Law from time to time.
"APPROVED VALUERS"
means each of Poten & Partners, H Clarkson & Company Limited, Braemar Ship
Brokers Limited, Seascope Shipping, X.X. Xxxxxx Shipbrokers a.s. and such
other independent reputable valuers agreed between the Agent (acting in
accordance with the instructions of the Majority Banks) and the Borrower
from time to time.
"BALLOON AMOUNT"
means euro 40,000,000.
"BAREBOAT CHARTER"
means the bareboat charter which the Borrower and the AIE will enter into
on the implementation of Stage Two in the form annexed to the Memorandum
of Agreement as Appendix 4 to that document.
"BAREBOAT CHARTER ASSIGNMENT"
means the assignment of the Bareboat Charter to be granted in favour of
the Agent by the Borrower upon implementation of Stage Two, together with
any and all notices and acknowledgements entered into in connection
therewith.
"BUILDER"
means Izar, Construcciones Xxxxxxx, X.X., a corporation organised and
existing under the laws of Spain with its registered office at Xxxxx xx xx
Xxxxxxxxxx, 00, 00000 Xxxxxx, Xxxxx.
"BUSINESS DAY"
means a day (other than a Saturday or a Sunday) on which banks are open
for business in London and Madrid and which is also a TARGET day.
"CAPITAL COSTS SIDE LETTER"
means the side letter to the Time Charter entered into on or about the
date of this Agreement between the Time Charterer and the Borrower
pursuant to which the parties agree to the charterhire under the Time
Charter being adjusted in accordance with the provisions of Exhibit F of
that document, subsequent to closing of the Swap Agreement.
"CHANGE IN LAW"
means the application to any person of any Applicable Law, which did not
apply to such person prior to the date of this Agreement, or, after the
date of this Agreement, any change (whether with immediate, prospective or
retrospective effect) in, or any change in the practice of application of
any Applicable Law (including, without limitation, any Applicable Law
ceasing to apply, being withdrawn or not being renewed, becoming effective
or being varied and any change in interpretation of any Applicable Law by
any competent authority).
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"CHARTER"
means any charter or other contract for the employment of the Vessel which
may be entered into by the Borrower with a Charterer in accordance with
the terms and conditions of this Agreement, including, but not limited to,
the Time Charter.
"CHARTERER"
means the Time Charterer or any charterer of the Vessel from time to time.
"COMMITMENT"
means:
(a) in relation to an Existing Bank (as defined in Clause 27.2
(Transfers by Banks)) which is a Bank on the date of this Agreement,
the amount in euros set opposite its name in Schedule 1 and the
amount of any other Bank's Commitment acquired by it under Clause 27
(Changes to the Parties); and
(b) in relation to a New Bank (as defined in Clause 27.2 (Transfers by
Banks)) which becomes a Bank after the date of this Agreement, the
amount of any other Bank's Commitment acquired by it under Clause 27
(Changes to the Parties),
to the extent not cancelled, reduced or transferred under this Agreement.
"COMMITMENT PERIOD"
means the period from the date of this Agreement up to and including the
Delivery Date.
"DATE OF TOTAL LOSS"means the date of Total Loss of the Vessel which date
shall be deemed to have occurred:
(a) in the case of an actual total loss, on the actual date and at the
time the Vessel was lost or, if such date is not known, on the date
on which the Vessel was last reported;
(b) in the case of a constructive total loss, upon the date and at the
time notice of abandonment is given to the insurers for the time
being (provided a claim for total loss is admitted by such insurers)
or, if such insurers do not forthwith admit such a claim, at the
date and at the time at which either a total loss is subsequently
admitted by the insurers or a total loss is subsequently adjudged by
a competent court of law or arbitration tribunal to have occurred;
(c) in the case of a compromised or arranged total loss, on the date
upon which a binding agreement as to such compromised or arranged
total loss has been entered into by the insurers;
(d) in the case of requisition for title or other compulsory
acquisition, on the date upon which the relevant requisition for
title or other compulsory acquisition occurs; and
(e) in the case of capture, seizure, arrest, detention, requisition for
hire or confiscation by any government or by persons acting or
purporting to act on behalf of any government which deprives the
Borrower or, as the case may be, any Charterer of the
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use of the Vessel for more than 60 days, upon the expiry of the
period of 60 days after the date upon which the relevant capture,
seizure, arrest, detention or confiscation occurred.
"DEED OF ACCESSION"
means a deed of accession substantially in the form of Schedule 11 (Form
of Deed of Accession).
"DEED OF MAINTENANCE GUARANTEE"
means a deed of maintenance guarantee to be issued by the Builder in
favour of the Borrower on the Delivery Date.
"DEED OF MAINTENANCE GUARANTEE ASSIGNMENT"
means the assignment of the Deed of Maintenance Guarantee to be granted in
favour of the Agent by the Borrower upon delivery of the Vessel, together
with any and all notices and acknowledgement entered into in connection
therewith.
"DEFAULT"
means an Event of Default or a Potential Event of Default.
"DELIVERY DATE"
means the date of actual delivery of the Vessel to the Borrower under the
terms of the Sales Contract and the Shipbuilding Contract (if Stage One is
then in effect) or, as the case may be, the terms of the Bareboat Charter
(if Stage Two is then in effect) or, as the case may be, the Shipbuilding
Contract (if neither Stage One nor Stage Two is then in effect).
"DELIVERY DATE INSTALMENT"
means the amount due and payable by the Borrower in accordance with the
Schedule of Payments to the Memorandum of Agreement three banking days
prior to the Delivery Date.
"DISBURSEMENT ACCOUNT"
means an account in the name of the Borrower opened and maintained with
JPMorgan Chase Bank, N.A. (formerly JPMorgan Chase Bank, London branch)
with the account number 00000000 into which payments will be made in
accordance with Clause 17.34 (Disbursement Account) and proceeds of
Tranches may be paid by the Agent from time to time in accordance with the
provisions of the Finance Agreement.
"DOLLARS" or "US$"
means the lawful currency for the time being of the United States of
America.
"DRAWDOWN DATE"
means the date of the advance of a Tranche.
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"EARNINGS"
means all present and future moneys and claims which are earned by or
become payable to or for the account of the Borrower in connection with
the operation or ownership of the Vessel and including but not limited to:
(a) freights, passage and hire moneys (whether earned under any Charter
or otherwise);
(b) remuneration for salvage and towage services;
(c) demurrage and detention moneys;
(d) all present and future moneys and claims payable to the Borrower in
respect of any breach or variation of a Charter in respect of the
Vessel (other than moneys, if any, which represent agreed
reimbursement by a Charterer of costs and expenses incurred by the
Borrower in connection with such Charter); and
(e) all moneys and claims in respect of the requisition for hire of the
Vessel.
"EARNINGS ACCOUNT"
means an account or accounts in the name of the Borrower opened and
maintained with JPMorgan Chase Bank, N.A. (formerly JPMorgan Chase Bank,
London Branch) with the account number 00000000.
"EARNINGS ACCOUNT ASSIGNMENT"
means the assignment of the Earnings Account granted or to be granted in
favour of the Agent by the Borrower together with any and all notices and
acknowledgments entered into in connection therewith.
"ENVIRONMENT"
means:
(a) any land including, without limitation, surface land and sub-surface
strata, sea bed or river bed under any water (as referred to below)
and any natural or man-made structures;
(b) water including, without limitation, coastal and inland waters,
surface waters, ground waters and water in drains and sewers; and
(c) air including, without limitation, air within buildings and other
natural or man-made structures above or below ground.
"ENVIRONMENTAL AFFILIATE"
means any Affiliate of either of the Borrower or any other Manager
together with their employees and sub-contractors.
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"ENVIRONMENTAL APPROVALS"
means any permit, licence, approval, ruling, variance, exemption or other
authorisation required under applicable Environmental Laws.
"ENVIRONMENTAL CLAIM"
means any claim by any person or persons or any governmental, judicial or
regulatory authority which arises out of any allegation of any breach,
contravention or violation of Environmental Law or of the existence of any
liability or potential liability arising from such breach, contravention
or violation or the presence of Hazardous Material. In this context
"claim" means a claim for damages, compensation, fines, penalties or any
other payment of any kind whether or not similar to the foregoing; an
order or direction to take, or not to take, certain action or to desist
from or suspend certain action; and any form of enforcement or regulatory
action.
"ENVIRONMENTAL LAWS"
means any or all applicable law (whether civil, criminal or
administrative), common law, statute, statutory instrument, treaty,
convention, regulation, directive, by-law, demand, decree, ordinance,
injunction, resolution, order, judgment, rule, permit, licence or
restriction (in each case having the force of law) and codes of practice
or conduct, circulars and guidance notes having legal or judicial import
or effect, in each case of any government, quasi-government,
supranational, federal, state or local government, statutory or regulatory
body, court, agency or association in any applicable jurisdiction relating
to or concerning:
(a) pollution or contamination of the Environment, any ecological system
or any living organisms which inhabit the Environment or any
ecological system;
(b) the generation, manufacture, processing, distribution, use
(including abuse), treatment, storage, disposal, transport or
handling of Hazardous Materials; and
(c) the emission, leak, release, spill or discharge into the Environment
of noise, vibration, dust, fumes, gas, odours, smoke, steam
effluvia, heat, light, radiation (of any kind), infection,
electricity or any Hazardous Material and any matter or thing
capable of constituting a nuisance or an actionable tort or breach
of statutory duty of any kind in respect of such matters,
including, without limitation, the following laws of the United States of
America: the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Hazardous Materials Transportation
Act, as amended, the Oil Pollution Act of 1990, as amended, the Resource
Conservation and Recovery Act, as amended, and the Toxic Substances
Control Act, as amended, together, in each case, with the regulations
promulgated and the guidance issued pursuant thereto.
"ENVIRONMENTAL PERMITS"
means all or any permits, licences, consents, approvals, certificates,
registrations, and other authorisations and the filing of all
notifications, reports and assessments required under any Environmental
Law for the operation of the Vessel or the carriage of cargo therein or
otherwise applicable to the Vessel.
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"EQUITY CONTRIBUTION"
means the amount of euro 7,000,000 cash equity contribution to the
Borrower by the Guarantor, the Shareholder or any other Affiliate of the
Borrower.
"EURIBOR"
means for an Interest Period:
(a) the applicable Screen Rate as of 11.00 a.m. (Brussels time) on the
Rate Fixing Day for the offering of deposits in euro for a period
comparable to that Interest Period;
(b) if no Screen Rate is available for that Interest Period, the
arithmetic mean (rounded upward to the nearest four decimal places)
of the rates, as supplied to the Agent at its request, quoted by the
Reference Banks to leading banks in the European interbank market as
of 11.00 a.m. (Brussels time) on the Rate Fixing Day for the
offering of deposits in euro for a period comparable to that
Interest Period; or
(c) if the rate cannot be determined under paragraph (a) or paragraph
(b) above, the rate supplied to the Agent at its request by the
British Bankers' Association for the offering of deposits in euros
for a period commencing on the Rate Fixing Day and comparable to the
Interest Period.
"EURO"
means the single currency of the Participating Member States.
"EVENT OF DEFAULT"
means an event specified as such in Clause 19.1 (Events of Default).
"EXCESS RISKS"
means:
(a) the proportion of claims for general average, salvage and salvage
charges which are not recoverable as a result of the value at which
the Vessel is assessed for the purpose of such claims exceeding her
hull and machinery insured value; and
(b) collision liabilities not recoverable in full under the hull and
machinery insurance by reason of those liabilities exceeding such
proportion of the insured value of the Vessel as is covered by the
hull and machinery insurance.
"EXPECTED DELIVERY DATE"
means 31st December, 2004.
"FACILITY"
means the facility referred to in Clause 2.1 (Term loan facility).
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"FACILITY OFFICE"
means the office(s) notified by a Bank to the Agent:
(a) on or before the date it becomes a Bank; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"FEE LETTERS"
means the letters between the Arranger and the Borrower and between the
Agent and the Borrower dated on or about the date of this Agreement and
relating to the payment of fees by the Borrower in consideration of the
granting of this Facility including but not limited to the Supplemental
Fee Letter.
"FINAL MATURITY DATE"
means 31st January, 2012.
"FINANCE DOCUMENT"
means this Agreement, the supplemental agreement dated 23rd December 2004,
the Supplemental Agreement, each Security Document, each Fee Letter
(including the Supplemental Fee Letter) each Swap Agreement, a Novation
Certificate, a Deed of Accession or any other document designated as such
by the Agent and the Borrower.
"FINANCE PARTY"
means the Arranger, any Bank, each Swap Bank, the Agent or the Spanish
Security Agent.
"FINANCIAL INDEBTEDNESS"
means any indebtedness in respect of:
(a) moneys borrowed and debit balances at banks and other financial
institutions;
(b) any debenture, bond, note, loan stock or other similar debt
instrument;
(c) any acceptance or documentary credit;
(d) receivables sold or discounted (otherwise than on a non-recourse
basis);
(e) the acquisition cost of any asset to the extent payable before or
after the time of acquisition or possession by the party liable
where the advance or deferred payment is arranged primarily as a
method of raising finance or financing the acquisition of that asset
(other than normal trade credit not exceeding 180 days);
(f) any leases (whether in respect of land, machinery, equipment or
otherwise) entered into primarily as a method of raising finance or
financing the acquisition of the asset leased;
9
(g) any currency swap or interest swap, cap or collar arrangements or
any other derivative instrument;
(h) any amounts raised under any other transaction having the commercial
effect of a borrowing or raising of money; or
(i) any guarantee, indemnity or similar assurance in respect of any of
the foregoing.
"GAAP"
means generally accepted accounting principles in Spain as in effect as of
the date of this Agreement pursuant to the pronouncements, statements,
rules and regulations of the Spanish Institute of Accountancy and Audit of
Accounts "Instituto de Contabilidad y Auditoria de Cuentas".
"GENERAL ASSIGNMENT"
means the general assignment of, inter alia, the Earnings, the
Disbursement Account, the SEPI Comfort Letter, the Time Charter, the Time
Charter Guarantee and each other Charter granted or to be granted in
favour of the Agent by the Borrower, together with any and all notices and
acknowledgements entered into in connection therewith.
"GROUP"
means the Guarantor and the Borrower and their respective Affiliates and
associated companies.
"GUARANTEE"
means the guarantee of the obligations of the Borrower to the Finance
Parties given by the Guarantor in favour of the Agent on or about the date
of this Agreement as amended, supplemented and confirmed by (i) a
confirmation and ratification agreement dated 26 November, 2004 and (ii)
the Guarantor Confirmation Agreement.
"GUARANTOR"
means Teekay Shipping Spain S.L. (formerly Naviera F Xxxxxx X.X.), a
company organised and existing under the laws of Spain and having its
registered office at C/Musgo n degrees 5, 2 degrees Plta., XX XXXXXXX,
00000 Madrid.
"GUARANTOR CONFIRMATION AGREEMENT"
means the agreement dated on or around the date of the Supplemental
Agreemententered into between the Guarantor and the Agent.
"HAZARDOUS MATERIAL"
means any element or substance, whether natural or artificial, and whether
consisting of gas, liquid, solid or vapour, whether on its own or in any
combination with any other element or substance, which is listed,
identified, defined or determined by any Environmental Law or other
applicable law to be, to have been, or to be capable of being or becoming
harmful to mankind or any living organism or damaging to the Environment,
including, without
10
limitation, oil (as defined in the United States Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended).
"HOLDING COMPANY"
means, in relation to a person, an entity of which that person is a
Subsidiary.
"INFORMATION MEMORANDUM"
means the Information Memorandum dated November, 2001 and prepared by the
Arranger on the basis of information provided to it by the Borrower in
connection with this Agreement.
"INSTALMENT"
means an amount due and payable by the Borrower under the terms of the
Sales Contract and the Shipbuilding Contract (if Stage One is then in
effect), the terms of the Bareboat Charter (if Stage Two is then in
effect) or, as the case may be, the Shipbuilding Contract (if neither
Stage One nor Stage Two is then in effect).
"INSURANCES ASSIGNMENT"
means the assignment of the Obligatory Insurances and the Permissible
Delays Insurances to be granted in favour of the Agent by the Borrower
together with any and all notices and acknowledgements entered into in
connection therewith
"INSURERS"
means the underwriters or insurance companies with whom any Obligatory
Insurance is effected and the managers of any protection and indemnity or
war risks association in which the Vessel may at any time be entered.
"INTEREST PERIOD"
means each period determined in accordance with Clause 8.2 (Duration).
"INTEREST RATE CLOSING DATE"
means the date agreed between the Agent and the Borrower falling on or
after the date of this Agreement but before the first Drawdown Date on
which the rate of Interest on the Loan is fixed by execution of the Swap
Agreements.
"ISM CODE"
means the International Safety Management Code (including the guidelines
on its implementation), adopted by the International Maritime Organization
Assembly as Resolutions A.741(18) and A.788(19), as the same may have been
or may be amended or supplemented from time to time. The terms "SAFETY
MANAGEMENT SYSTEM", "SAFETY MANAGEMENT CERTIFICATE", "DOCUMENT OF
COMPLIANCE" and "MAJOR NON-CONFORMITY" shall have the same meanings as are
given to them in the ISM Code.
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"ISSUER"
means the entity to whom the Borrower pays the Instalment whilst and for
as long as Stage Two is in effect.
"LOAN"
means up to one hundred and eighty million euros (euro 180,000,000) or the
principal amount thereof from time to time outstanding under this
Agreement.
"LOSSES"
means each and every liability, loss, charge, claim, demand, action,
proceeding, damage, judgment, order or other sanction, enforcement,
penalty, fine, fee, commission, interest, lien, salvage, general average,
cost and expense of whatsoever nature suffered or incurred by or imposed
on any Finance Party.
"MAJORITY BANKS"
means, at any time, Banks:
(a) whose participations in the Loan aggregate more than 66 2/3 per
cent. of the Loan;
(b) if no part of the Loan is then outstanding, whose Commitments then
aggregate more than 66 2/3 per cent. of the Total Commitments; or
(c) if no part of the Loan is then outstanding and the Total Commitments
have been reduced to nil, whose commitments aggregated more than
66 2/3 per cent. of the Total Commitments immediately before the
reduction.
"MANAGER"
means the Borrower, the Technical Manager or such other manager as the
Agent may approve or appoint in accordance with the terms of this
Agreement on terms acceptable to the Banks.
"MANDATORY COST"
means the cost imputed to the Banks of compliance with:
(a) the cash ratio and special deposit requirements of the Bank of
England or any other relevant central bank and/or any banking
supervision or other costs imposed by the Financial Services
Authority, as determined in accordance with Schedule 6 (Calculation
of the Mandatory Cost); and
(b) any other applicable regulatory or central bank requirement relating
to any Tranche made available by a Bank through a branch in a
jurisdiction of the currency of that Tranche including any reserve
asset requirements of the European Central Bank.
"MARGIN"
means 1.20 per cent. per annum.
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"MASTER AGREEMENT ASSIGNMENT"
means the assignment of the Master Agreement to be granted in favour of
the Agent by the Borrower at the same time as Stage Two comes into effect
together with any and all notices and acknowledgements entered into in
connection therewith.
"MASTER AGREEMENT"
means the master agreement to be entered into between, among others, the
Borrower, the Builder, the AIE and the Issuer at the same time as Stage
Two comes into effect, in the form annexed to the Memorandum of Agreement
as Appendix 6 to that document.
"MATERIAL ADVERSE EFFECT"
means a material adverse effect on the Borrower's or the Guarantor's
ability to meet their respective obligations to each Finance Party under
the Finance Documents.
"MATERIALS OF ENVIRONMENTAL CONCERN"
means and includes all pollutants, contaminants, toxic substances, oil as
defined in the United States Oil Pollution Act 1990 and hazardous
substances as defined in the United States Comprehensive Environmental
Response, Compensation and Liability Xxx 0000.
"MEMORANDUM OF AGREEMENT"
means the memorandum of agreement between the Builder and the Borrower
dated 19th November, 2001.
"MEMORANDUM OF AGREEMENT ASSIGNMENT"
means the assignment of the Memorandum of Agreement granted or to be
granted in favour of the Agent by the Borrower together with any and all
notices and acknowledgements entered into in connection therewith.
"MORTGAGE"
means a first priority Spanish law ship mortgage in respect of the Vessel
to be given in favour of each of the Banks (jointly and severally) on the
Delivery Date by:
(a) in the event that the Borrower receives title to the Vessel on the
Delivery Date, the Borrower; or
(b) in the event that the AIE receives title to the Vessel on the
Delivery Date, the AIE,
ranking pari passu with the Swap Bank Mortgage and substantially in the
form of, in the case of (a), Appendix A Part I or, in the case of (b),
Appendix A Part II, as amended by the Mortgage Amendment Deed.
"MORTGAGE AMENDMENT DEED"
means a Spanish Public Document of amendment entered into by the AIE, the
Spanish Security Agent, the Banks and the Agent and dated on or around the
date of the Supplemental Agreement.
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"NOVATION AGREEMENT"
means the novation agreement between the SPC, the AIE and the Builder, to
be entered into at the same time as Stage Two comes into effect, in the
form annexed to the Memorandum of Agreement as Appendix 3 to that
document.
"NOVATION CERTIFICATE"
has the meaning given to it in Clause 27.3 (Procedure for novations).
"OBLIGATORY INSURANCES"
means:
(a) all contracts and policies of insurance and all entries in clubs
and/or associations which are from time to time required to be
effected and maintained in accordance with this Agreement in respect
of the Vessel; and
(b) all benefits under the contracts, policies and entries under
paragraph (a) above and all claims in respect of them and the return
of premiums.
"PARTICIPATING MEMBER STATE"
means a member state of the European Communities that adopts or has
adopted the euro as its lawful currency under the legislation of the
European Union for European Monetary Union.
"PARTY"
means a party to this Agreement.
"PERMISSIBLE DELAYS INSURANCES"
means insurance in respect of a Permissible Delay (as that term is defined
in the Shipbuilding Contract).
"PERMITTED LIENS"
means:
(a) Security Interests created by the Security Documents;
(b) liens for unpaid crew's wages outstanding in the ordinary course of
trading for not more than one calendar month after the due date for
payment;
(c) liens for salvage;
(d) liens for classification or scheduled dry docking or for necessary
repairs to the Vessel whose aggregate cost does not exceed euro
2,500,000 at any one time; and
(e) liens for collision,
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and
(i) liens for master's disbursements incurred in the ordinary course of
trading; and
(ii) to the extent they are fully subordinate to the Security Interest
created by the Mortgage and the Swap Bank Mortgage on the Vessel any
other liens arising in the ordinary course of operation of the
Vessel,
in each case provided that such amounts are paid when due or, if not paid
when due are being disputed in good faith by appropriate proceedings (and
for the payment of which adequate reserves or security are at the relevant
time maintained or provided), provided further that such proceedings,
whether by payment of adequate security into Court or otherwise, do not
give rise to a material risk of the Vessel or any interest therein being
seized, sold, forfeited or otherwise lost or of criminal liability on the
Agent, the Spanish Security Agent or on any of the Banks.
"PLEDGE OF QUOTA SHARES"
means the pledge of the quota shares of the Borrower, given or to be given
by the Shareholder in favour of the Spanish Security Agent for each of the
Banks as amended by (i) a modification and ratification agreement dated 23
December, 2004 and (ii) the Pledge Amendment.
"PLEDGE AMENDMENT"
means a Spanish Public Document of amendment entered into between [the
Shareholder and the Agent] dated on or around the date of the Supplemental
Agreement.
"POTENTIAL EVENT OF DEFAULT"
means an event which, with the giving of notice, lapse of time,
determination of materiality or fulfilment of any other applicable
condition (or any combination of the foregoing), would constitute an Event
of Default.
"RATE FIXING DAY"
means the second TARGET Day before the first day of an Interest Period for
a Tranche, or such other day as the Agent determines is generally treated
as the rate fixing day by market practice in the relevant interbank
market.
"REFERENCE BANKS"
means, subject to Clause 27.4 (Reference Banks), the London branches of
JPMorgan Chase Bank, Credit Agricole Indosuez andCommerzbank
Aktiengesellschaft.
"REFUND GUARANTEES"
means together each of the refund guarantees issued or to be issued by the
Builder's bank in favour of the Borrower in respect of each of the
Instalments (other than the Delivery Instalment) pursuant to Article II.7
of the Shipbuilding Contract and Article III.2 of the Sales Contract in
the form annexed as Annex 1 to the Memorandum of Agreement or such other
refund guarantees as may replace the same from time to time (with the
approval of the Agent
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acting on the instructions of the Majority Banks), whether in connection
with the implementation of Stage Two or otherwise.
"REFUND GUARANTEES ASSIGNMENT"
means the assignment of the Refund Guarantees granted or to be granted in
favour of the Agent by the Borrower together with any and all notices and
acknowledgements entered into in connection therewith.
"RELATED CONTRACTS"
means any or all of the following (as the context requires):
(a) the Sales Contract;
(b) the Time Charter;
(c) any other Charter;
(d) the Refund Guarantees;
(e) the Shipbuilding Contract;
(f) any Vessel Management Contract;
(g) any Technical Management Agreement;
(h) the Time Charter Guarantee;
(i) the Obligatory Insurances;
(j) the Capital Costs Side Letter;
(k) the Master Agreement;
(l) the Memorandum of Agreement;
(m) the Bareboat Charter;
(n) the SEPI Comfort Letter;
(o) the Novation Agreement;
(p) the Termination Agreement;
(q) the Deed of Maintenance Guarantee; and
(r) any other document entered into in connection with the
implementation of Stage Two.
"RELEASE"
means an emission, spill, release or discharge into or upon the air,
surface water, groundwater, or soils of any Materials of Environmental
Concern for which the Borrower has
16
any liability under Environmental Law, except in accordance with a valid
Environmental Approval.
"REPAYMENT INSTALMENT"
means each instalment payable pursuant to Clause 6 (Repayment).
"REPLACEMENT SWAP AGREEMENT"
means any ISDA Master Agreement entered into by each Swap Bank with the
Borrower pursuant to Clause 27.8.
"REQUEST"
means a request made by the Borrower for a Tranche, substantially in the
form of Schedule 4 (Form of Request).
"REQUIRED AMOUNT"
means that amount which at the relevant time is 120 per cent. of the
higher of:
(a) the aggregate of the outstanding Loan and the xxxx to market value
of the swap transaction documented in the Swap Agreements, as
advised by the Agent from time to time, provided that the xxxx to
market adjustment may never be less than zero; and
(b) the value of the Vessel, as valued in accordance with Clause 18
(Valuation).
"SALES CONTRACT"
means the agreement dated 14th December, 2001 between the Builder, the SPC
and the Borrower under which the Borrower agrees to buy the Vessel from
the SPC and the SPC agrees to deliver the Vessel to the Buyer.
"SALES CONTRACT ASSIGNMENT"
means the assignment of the Sales Contract granted or to be granted in
favour of the Agent by the Borrower, together with any and all notices and
acknowledgements entered into in connection therewith.
"SCREEN RATE"
means, in respect of an Interest Period, the percentage rate per annum for
a period substantially the same as the relevant Interest Period displayed
on Telerate page 248 on the relevant Rate Fixing Day. If the relevant page
is replaced or the service ceases to be available, the Agent may specify
another page or service displaying the appropriate rate.
"SECURED LIABILITIES"
means all present and future obligations and liabilities (actual or
contingent) of the Borrower to the Finance Parties under or in connection
with any Finance Document.
17
"SECURITY ASSETS"
means any asset the subject of a Security Interest created by a Security
Document.
"SECURITY DOCUMENTS"
means:
(a) the Sales Contract Assignment;
(b) the Mortgage;
(c) each Swap Bank Mortgage;
(d) the General Assignment;
(e) the Pledge of Quota Shares;
(f) the Swap Agreement Assignment;
(g) the Vessel Management Assignment;
(h) the Guarantee;
(i) the Memorandum of Agreement Assignment;
(j) the Refund Guarantees Assignment;
(k) the Master Agreement Assignment;
(l) the Bareboat Charter Assignment;
(m) the Deed of Maintenance Guarantee Assignment;
(n) in the event that a direct shipbuilding contract is entered into, or
deemed pursuant to the terms of the Memorandum of Agreement to be
entered into, between the Builder and the Borrower, an assignment of
that shipbuilding contract;
(o) the Insurances Assignment;
(p) the Guarantor Confirmation Agreement;
(q) the Mortgage Amendment Deed;
(r) the Swap Bank Mortgage Amendment Deed;
(s) the Pledge Amendment;
(t) the Earnings Account Assignment; and
(u) any other document designated as such in writing by the Borrower and
the Agent.
18
"SECURITY INTEREST"
means any mortgage, pledge, lien, charge, assignment, hypothecation or
security interest or any other agreement or arrangement having the effect
of conferring security.
"SEPI"
means "Sociedad Estatal de Participaciones Industriales", ("Public Company
of Industrial Holding"), a state owned corporation incorporated in Spain
with registered office at 000, Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxx.
"SEPI COMFORT LETTER"
means the comfort letter addressed to the Borrower from SEPI and dated 21
January, 2002.
"SHAREHOLDER"
means the Guarantor.
"SHIPBUILDING CONTRACT"
means the agreement between the Builder and the SPC dated 23rd December,
2000 under which the Builder agreed to build the Vessel and deliver it to
the SPC as amended and restated by the Builder and the SPC by an agreement
dated 11th December, 2001 (in a form and substance satisfactory to the
Agent) or as the same may be deemed to be entered into directly between
the Builder and the Borrower pursuant to Clause 6 of the Memorandum of
Agreement.
"SPC"
means Ladoga Company Limited, a special purpose company organised and
existing under the laws of England and having its principal place of
business at 00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX.
"SPANISH PUBLIC DOCUMENT"
means an "escritura publica" or "poliza" granted before a Spanish Notary
Public.
"SPANISH SECURITY AGENT"
means X.X. Xxxxxx Bank S.A. when acting in its capacity as agent and
attorney for each of the Banks (appointed by each Bank under a power of
attorney in the form of Schedule 9 (Form of Bank's Power of Attorney) in
connection with the Pledge of Quota Shares and the Mortgage.
"STAGE ONE"
means the initial "warehousing" phase of the agreement for the supply of
the Vessel from the Builder to the Borrower under which:
(a) the Builder and the Borrower have entered into the Memorandum of
Agreement which governs the relationship between these parties and
sets out the circumstances in which Stage Two may be implemented;
19
(b) the SPC and the Builder have entered into the Shipbuilding Contract;
and
(c) the SPC, the Builder and the Borrower have entered into the Sales
Contract.
"STAGE ONE DOCUMENTS"
means the Shipbuilding Contract, the Sales Contract, the Memorandum of
Agreement and any other documents which may be entered into with the
approval of the Agent in connection with the implementation of Stage One.
"STAGE TWO"
means the tax lease phase of the agreement for the supply of the Vessel
from the Builder to the Borrower under which, providing the conditions in
Clause 3 of the Memorandum of Agreement have been satisfied:
(a) the Builder, the SPC and the AIE will enter into the Novation
Agreement under which the rights and obligations of the SPC under
the Shipbuilding Contract will be transferred to the AIE by way of
novation;
(b) the Builder, the Borrower and the SPC will enter into the
Termination Agreement under which the Sales Contract is terminated;
(c) the AIE and the Borrower will enter into the Bareboat Charter; and
(d) the various parties to the Master Agreement will enter into that
document.
"STAGE TWO DOCUMENTS"
means the Shipbuilding Contract, the Memorandum of Agreement, the Master
Agreement, the Bareboat Charter, the Novation Agreement, the Termination
Agreement and any other document which may be entered into with the
approval of the Agent in connection with the implementation of Stage Two.
"SUBSIDIARY"
means an entity from time to time of which a person has direct or indirect
control or owns directly or indirectly more than fifty per cent. of the
share capital or similar right of ownership.
"SUPPLEMENTAL AGREEMENT"
means the agreement entered into between, amongst others, the Borrower and
the Finance Parties dated [ ], 2005.
"SUPPLEMENTAL FEE LETTER"
means the letter between the Agent and the Borrower dated [ ], 2005.
"SWAP AGREEMENT"
means together each of the ISDA Master Agreements to be entered into by
each Swap Bank with the Borrower on or after the Interest Rate Closing
Date in order to fix:
20
(a) the rate of Interest on the Tranches from the Expected Drawdown Date
of each Tranche until the Expected Delivery Date (together with any
confirmation executed in connection therewith); and
(b) the rate of Interest on the Tranches from the Expected Delivery Date
until the Final Maturity Date (together with any confirmation
executed in connection therewith)
that have been approved by JPMorgan Chase Bank, N.A..
"SWAP AGREEMENT ASSIGNMENT"
means the assignment of each Swap Agreement granted or to be granted in
favour of the Agent by the Borrower, together with any and all notices and
acknowledgements entered into in connection therewith.
"SWAP BANK MORTGAGE"
means together, each first priority Spanish law ship mortgage in respect
of the Vessel to be given in favour of a Swap Bank on the Delivery Date
by:
(a) in the event that the Borrower receives title to the Vessel on the
Delivery Date, the Borrower; or
(b) in the event that the AIE receives title to the Vessel on the
Delivery Date, the AIE,
ranking pari passu with the Mortgage and substantially in the form of, in
the case of (a), Appendix B Part 1 or, in the case of (b), Appendix B Part
II or, any one or more of them, as the context requires as amended by the
Swap Bank Mortgage Amendment Deed.
"SWAP BANK MORTGAGE AMENDMENT DEED"
means a Spanish Public Document of amendment entered into by the AIE, the
Spanish Security Agent, the Banks and the Agent dated on or around the
date of the Supplemental Agreement.
"SWAP BANKS"
means JPMorgan Chase Bank, N.A., Commerzbank Aktiengesellschaft, Calyon
(formerly Credit Agricole Indosuez) and any other bank or financial
institution which becomes a party to this Agreement as a Swap Bank under
Clause 27.7 (Accession of Swap Banks) in each case in its capacity as
provider of interest rate or hedging facilities to the Borrower.
"SWAP DEBT"
means all present and future liabilities (actual or contingent) payable or
owing by the Borrower to the Swap Banks under or in connection with the
Swap Agreements, whether or not matured and whether or not liquidated.
"TARGET DAY"
means a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer payment system is open for the settlement of
payments in euro.
21
"TECHNICAL MANAGER"
means the Borrower or the Guarantor or such other technical manager as the
Agent, acting on the instructions of the Majority Banks may approve or
appoint in accordance with the terms of this Agreement.
"TECHNICAL MANAGEMENT AGREEMENT"
means the agreement entered into or to be entered into between the
Borrower and the Technical Manager for the technical management of the
Vessel, or as the case may be, such other agreement for the technical
management of the Vessel which may be entered into by the Borrower with a
Technical Manager in accordance with the terms and conditions of this
Agreement.
"TERMINATION AGREEMENT"
means the termination agreement between the Borrower, the Builder and the
SPC, to be entered into at the same time as Stage Two comes into effect,
in the form annexed to the Memorandum of Agreement as Appendix 5.
"TIME CHARTER"
means the agreement dated on or about the date of this Agreement between
the Borrower and the Time Charterer for the time charter of the Vessel,
together with:
(a) the Capital Costs Side Letter; and
(b) any other addendum thereto from time to time.
"TIME CHARTERER"
means Repsol YPF Trading y Transporte S.A., a company incorporated under
the laws of Spain and having its registered office at 278 Xxxxx xx xx
Xxxxxxxxxx, 00000 Xxxxxx, Xxxxx, or any assignee of the Time Charter
pursuant to Clause 51 of the Time Charter.
"TIME CHARTER GUARANTEE"
means the time charter guarantee dated on or about the date of this
Agreement, issued by Repsol YPF S.A. in favour of the Borrower in
connection with the Time Charter.
"TOTAL COMMITMENTS"
means euro 180,000,000.
"TOTAL LOSS" includes:
(a) actual, constructive, compromised, agreed or arranged total loss of
the Vessel;
(b) requisition for title or other compulsory acquisition of the Vessel
otherwise than by requisition for hire;
(c) capture, seizure, arrest, detention, or confiscation of the Vessel
by any government or by persons acting or purporting to act on
behalf of any government which deprives
22
the Borrower or, as the case may be, any Charterer of the use of the
Vessel for more than 60 days after that occurrence; and
(d) requisition for hire of the Vessel by any government or by persons
acting or purporting to act on behalf of any government which
deprives the Borrower, or, as the case may be, any Charterer of the
use of the Vessel.
"TRANCHE"
means the amount of each advance of the Loan made by the Banks (or any of
them) under the Facility.
"VESSEL"
means the 138,000 cbm LNG carrying vessel under construction under the
Shipbuilding Contract as Hull Number 105.
"VESSEL MANAGEMENT ASSIGNMENT"
means the assignment of any Vessel Management Contract and any Technical
Management Agreement granted or to be granted in favour of the Agent by
the Borrower, together with any and all notices and acknowledgements
entered into in connection therewith.
"VESSEL MANAGEMENT CONTRACT"
means an agreement which will be entered into between the Borrower and a
Manager (in the event that the Borrower itself ceases to be the Manager)
for the management of the Vessel in form and substance satisfactory to the
Agent in its sole discretion, in accordance with the terms and conditions
of this Agreement.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) an "AMENDMENT" includes a supplement, novation, protocol or
re-enactment and "AMENDED" is to be construed accordingly;
(ii) "APPROVED" in Clause 17.36 (Scope of Obligatory Insurances) and
Clause 17.38 (Obligatory Insurances) means approved by the Agent in
writing;
"ASSETS" includes present and future properties, revenues and rights
of every description;
an "AUTHORISATION" includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration and
notarisation;
a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in
the next calendar month, except that:
(A) if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last
Business Day in that calendar month; or
23
(B) if an Interest Period commences on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which it is to end;
a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law, but
if not, in respect of which it is customary for banking and
financial institutions to comply with) of any governmental or
inter-governmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
(iii) a law or regulation, or to a provision of a law or regulation, is a
reference to that law, regulation or provision as amended or
re-enacted;
(iv) a Clause or a Schedule is a reference to a clause of or a schedule
to this Agreement;
(v) a person includes its successors and assigns;
(vi) a Finance Document or another document is a reference to that
Finance Document or that other document as amended;
(vii) a time of day is a reference to London time; and
(viii) a calendar day, week, month or year is a reference to such a period
of time as set out in the Gregorian calendar.
(b) Unless the contrary intention appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in
this Agreement.
(c) The index to and the headings in this Agreement are for convenience only
and are to be ignored in construing this Agreement.
(d) A document is "IN THE AGREED FORM" for the purposes of the Finance
Documents if it is initialled for the purposes of identification as such
by the Borrower and the Agent on or before the date of this Agreement.
(e) A person who is not a party to this Agreement may not enforce its terms
under the Contracts (Rights of Third Parties) Xxx 0000.
(f) If the Agent reasonably considers that an amount paid by the Borrower to
the Agent under a Finance Document is capable of being avoided or
otherwise set aside on the liquidation or administration of the Borrower
or otherwise, then that amount shall not be considered to have been
irrevocably paid for the purposes of the Finance Documents.
2. THE FACILITY
2.1 TERM LOAN FACILITY
Subject to the terms of this Agreement, the Banks agree to make a Loan
available in such number of Tranches as may be agreed between the Borrower
and the Agent during the Commitment Period to the Borrower up to an
aggregate principal amount not exceeding the Total Commitments. No Bank is
obliged to lend more than its Commitment.
24
2.2 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
(a) The obligations of a Finance Party under the Finance Documents are
several. Failure of a Finance Party to carry out those obligations does
not relieve any other Party of its obligations under the Finance
Documents. No Finance Party is responsible for the obligations of any
other Finance Party under the Finance Documents.
(b) The rights of a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
3. PURPOSE
3.1 The Borrower shall apply each Tranche:
(a) firstly, towards payment of Instalments due and payable as at the
Drawdown Date of the relevant Tranche and, in the case of the
Instalment due on the Delivery Date, additionally towards payment of
any liquidated damages payable to the Time Charterer under the Time
Charter as a result of any delay in delivery of, or the
underperformance of, the Vessel;
(b) secondly, towards payment of Interest and amounts due to the Agent
pursuant to the Fee Letters; and
(c) thirdly, subject to the Agent's prior approval in writing, the
balance, if any, towards payment or reimbursement of any other fees
and expenses directly related to this Facility and/or the
construction of the Vessel.
3.2 Without affecting the obligations of the Borrower in any way, no Finance
Party is bound to monitor or verify the application of any Tranche.
4. CONDITIONS PRECEDENT
4.1 INITIAL CONDITIONS PRECEDENT
The obligations of each Finance Party to the Borrower under this Agreement
are subject to the conditions precedent that the Agent has notified the
Borrower and the Banks that it has received all of the documents set out
in Schedule 2 Part I (Initial Conditions Precedent Documents) in form and
substance satisfactory to the Agent.
4.2 FURTHER CONDITIONS PRECEDENT AND CONDITION SUBSEQUENT
(a) The obligations of each Bank to participate in any Tranche under Clause
5.3 (Advance of Tranche) are subject to the further conditions precedent
that:
(i) on both the date of the Request and the Drawdown Date for that
Tranche:
(A) the representations and warranties in Clause 16
(Representations and Warranties) to be repeated on those dates
are true and accurate and will be true and accurate
immediately after the Tranche is advanced (and, in relation to
Clause 16.14 (Litigation), a certificate of compliance is
provided by the Borrower); and
25
(B) no Default is outstanding or would result from the advancing
of the Tranche;
(ii) the advancing of the Tranche would not cause Clause 2.1 (Term loan
facility) to be contravened;
(iii) each Existing Bank (as defined in Clause 27.2 (Transfers by Banks))
as at the Drawdown Date of the relevant Tranche has given to the
Spanish Security Agent power of attorney in the form of Schedule 9
(Form of Bank's Power of Attorney) which power of attorney has been
notarised and apostillised;
(iv) all other terms and conditions under this Agreement to the advancing
of a Tranche have been satisfied in full;
(v) in the event that Stage Two has been implemented on or before the
Drawdown Date in respect of a Tranche, the Agent has notified the
Borrower and the Banks that it has received all of the documents set
out in Schedule 2 Part II (Stage Two Conditions Precedent Documents)
in a form and substance satisfactory to the Agent;
(vi) on or before the Drawdown Date in respect of:
(A) the Tranche which relates to the Instalment referred to in
Clause 6.2(c) of the Memorandum of Agreement, a certified copy
of the letter from the Classification Society addressed to the
Borrower and the Builder confirming that the keel of the
Vessel has been laid; and
(B) the Tranche which relates to the Instalment referred to in
Clause 6.2(d) of the Memorandum of Agreement, a certified copy
of the letter from the Classification Society addressed to the
Borrower and the Builder confirming the date of floating of
the Vessel;
(vii) in respect of each of the second, third and fourth Tranches, an
amount equal to euro 2,333,333 (in respect of the second and third
Tranches) and euro 2,333,334 (in respect of the fourth Tranche) has
been paid into the Disbursement Account by the Guarantor or any
other shareholder or affiliate of the Borrower by way of equity
contribution for application in and towards the relevant Instalment
under the Shipbuilding Contract; and
(viii) on or before the Drawdown Date in respect of the second Tranche to
be drawn down, the Mortgage and the Swap Bank Mortgage have been
pre-approved by the Registrar of Ships in the Canary Islands.
(b) The Borrower undertakes that, within fifteen (15) days from the date of
drawdown of a Tranche, it will formalise a record of declarations in the
required form under Spanish law executed before a Notary Public or a
Commercial Stockbroker in Spain in which it acknowledges that it has
received that Tranche from the Banks. The costs of such formalisation
shall be for the account of the Borrower.
4.3 DELIVERY DATE CONDITIONS PRECEDENT
(a) The obligations of each Bank to participate in the Tranche to be applied
towards payment of the Delivery Date Instalment are subject to the
additional condition precedent that the Agent has notified the Borrower
and the Banks that it has received all of the documents set out in
26
Schedule 3 (Delivery Date Conditions Precedent Documents) in form and
substance satisfactory to the Agent.
(b) The Majority Banks shall be entitled, in their absolute discretion, to
waive or defer the fulfilment of any of the conditions precedent referred
to in paragraph (a) above (other than the condition precedent set out in
paragraph 4(b) of Schedule 3 (Delivery Date Conditions Precedent
Documents) that the Time Charterer has accepted the Vessel). If the
Majority Banks choose to defer delivery of any such document, the Borrower
agrees to supply such document by no later than 30 days after the Drawdown
Date of the Tranche applied towards payment of the Delivery Date
Instalment. In the event that, following such deferral, the relevant
document has not been supplied by the Borrower within 30 days, the
Majority Banks may, by notice from the Agent to the Borrower, demand that
all or part of the Facility, together with interest and all other accrued
amounts under the Finance Documents be payable on demand whereupon they
shall immediately become payable by the Borrower on demand by the Agent.
5. DRAWDOWN
5.1 RECEIPT OF REQUEST
The Borrower may borrow a Tranche during the Commitment Period if the
Agent receives, not later than 10.00 a.m. three Business Days before the
proposed Drawdown Date, a duly completed Request. Each Request is
irrevocable.
5.2 COMPLETION OF REQUEST
A Request will not be regarded as having been duly completed unless:
(a) the Drawdown Date is a Business Day falling during the Commitment
Period; and
(b) the payment instructions comply with Clause 10 (Payments).
Each Request must specify one Tranche only.
5.3 ADVANCE OF TRANCHE
(a) The Agent shall promptly notify each Bank of the details of the requested
Tranche and the amount of its participation in the Tranche.
(b) Subject to the terms of this Agreement, each Bank shall make its
participation in the Tranche available to the Agent for the Borrower on
the relevant Drawdown Date. The amount of each Bank's participation in the
Tranche will be the proportion of the Tranche which its Commitment bears
to the Total Commitments on the proposed Drawdown Date.
6. REPAYMENT
(a) The Borrower shall repay the Loan by 84 consecutive monthly instalments
commencing on the last day of the second full calendar month falling after
the Delivery Date in the amounts and on the dates set out in Schedule 7
(Repayment Schedule). The amount of each Repayment Instalment shall be
calculated by reference to a fixed rate annuity profile assuming
amortisation of the aggregate principle amount constituting the Loan minus
the Ballon Amount over 240 months. Such profile shall be generated by the
execution of the
27
Swap Agreement with JPMorgan Chase Bank, N.A. (formerly JPMorgan Chase
Bank, London branch).
(b) The Agent shall notify the Borrower of the amount of each Repayment
Instalment by provision of a repayment schedule in the form of Schedule 7
(which repayment schedule shall replace the then existing Schedule 7) as
soon as practicable after execution of the Swap Agreement with JPMorgan
Chase Bank, N.A. (formerly JPMorgan Chase Bank, London branch). In the
event the dates and/or the amounts recorded in any confirmation of the
Swap Agreement with JPMorgan Chase Bank, N.A. (formerly JPMorgan Chase
Bank, London branch) are amended, the Agent may provide to the Borrower a
replacement repayment schedule (which repayment schedule shall replace the
then existing Schedule 7). Any and all references to Schedule 7 to this
Agreement in the Finance Documents shall be read and construed as
references to the repayment schedule provided by the Agent in accordance
with this Clause 6. The balance of the Loan outstanding on the Final
Maturity Date shall be repaid in full on that date. Any amounts repaid
under this Clause 6 may not be re-borrowed.
7. PREPAYMENT AND CANCELLATION
7.1 AUTOMATIC CANCELLATION
The unutilised Commitment of each Bank shall be automatically cancelled at
close of business on the last day of the Commitment Period.
7.2 MANDATORY PREPAYMENT
(a) If the Delivery Date does not fall on or before 18th August, 2005, the
Borrower shall immediately prepay the whole of any Tranches then
outstanding.
(b) The Borrower shall be obliged to prepay the whole of any Tranches then
outstanding in the following circumstances and at the following times:
(i) if the Vessel is sold, on or before the date on which the sale is
completed by delivery of the Vessel to the buyer;
(ii) if there is a Total Loss, on the earlier of the date falling 60 days
after the Date of Total Loss and the date of receipt by the Agent of
the proceeds of insurance relating to such Total Loss;
(iii) if any of the Memorandum of Agreement, the Shipbuilding Contract,
the Master Agreement or the Bareboat Charter are terminated for any
reason, on the date of termination of the relevant agreement;
(iv) if the Time Charter is terminated for any reason, on the date of
termination.;
7.3 VOLUNTARY PREPAYMENT
Subject to Clause 17.29(a) (Proceeds from sale or Total Loss of the
Vessel), the Borrower may, on giving 30 days' prior written notice to the
Agent, prepay the whole or any part of the Loan but if in part in a
minimum amount or multiple of euro 3,000,000.
28
7.4 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment under this Agreement is irrevocable. The Agent
shall notify the Banks promptly of receipt of any such notice.
(b) All prepayments under this Agreement shall be made together with accrued
interest on the amount prepaid and together with any and all amounts then
due and payable to the Swap Banks under the Swap Agreements and subject to
Clause 24.3 (Other indemnities), without premium or penalty and shall be
applied against the Repayment Instalments in inverse order of maturity or
pro rata, at the discretion of the Agent.
(c) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
(d) In respect of any prepayment under this Agreement, the Borrower must
provide evidence satisfactory to the Agent that any consent required by
the Borrower or any Finance Party or other creditor of the Borrower in
connection with the prepayment has been obtained and remains in force, and
that any regulation relevant to this Agreement which affects the Borrower
or any Finance Party has been complied with.
(e) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
(f) No amount prepaid under this Agreement may subsequently be re-borrowed.
8. INTEREST PERIODS
8.1 GENERAL
The first Interest Period in respect of each Tranche shall commence on its
Drawdown Date and each subsequent Interest Period shall commence at the
end of the then current Interest Period.
8.2 DURATION
(a) Each Interest Period for each Tranche in respect of the period from (and
including) the relevant Drawdown Date, other than the Drawdown Date in
respect of the Tranche to be applied towards payment of the Delivery Date
Instalment, up to (but excluding) 31st January 2005 (the "CONSTRUCTION
PERIOD") shall be six months, provided that, if in respect of any Tranche,
the Construction Period is not divisible into equal six month periods, the
first Interest Period for that Tranche shall be reduced accordingly.
(b) The Interest Period in respect of the Tranche to be applied towards
payment of the Delivery Date Instalment shall begin on the Delivery Date
and end on 31 January, 2005.
(c) Each Interest Period falling after the Interest Period referred to in
subclause 8.2(b) above, shall commence on (and include) 31st January, 2005
(in the case of the first such Interest Period) or the last day of the
immediately preceding Interest Period (in the case of each other Interest
Period) and shall end on (but exclude) the corresponding day in the next
calendar month.
(d) Notwithstanding the provisions of subclause 8.2(a) above and without
prejudice to the provisions of subclause 8.2(b), the first Interest Period
in respect of each Tranche after the
29
first Tranche shall end on (but exclude) the day on which the then current
Interest Period in respect of the first Tranche ends.
8.3 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period shall instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
8.4 COINCIDENCE WITH THE FINAL MATURITY DATE
If an Interest Period would otherwise overrun the Final Maturity Date, it
shall be shortened so that it ends on the Final Maturity Date.
8.5 NOTIFICATION
The Agent shall notify the Borrower and the Banks of the duration of each
Interest Period promptly after ascertaining its duration.
9. INTEREST
9.1 INTEREST RATE
The rate of interest on each Tranche for each Interest Period is the rate
per annum determined by the Agent to be the aggregate of the applicable:
(a) Margin;
(b) EURIBOR; and
(c) Mandatory Cost.
9.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on each
Tranche is payable by the Borrower on the last day of each Interest
Period.
9.3 DEFAULT INTEREST
(a) If the Borrower fails to pay any amount payable by it under the Finance
Documents (other than interest), it shall forthwith on demand by the
Agent, pay interest on the overdue amount from the due date up to the date
of actual payment, both before and after judgment, at a rate (the "DEFAULT
RATE") determined by the Agent to be the aggregate of:
(i) two per cent. per annum;
(ii) the Margin; and
(iii) subject to paragraph (b) below, EURIBOR for deposits on call or for
successive Interest Periods of one month.
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(b) If any unpaid sum of principal of any Tranche is repayable during an
Interest Period, the EURIBOR applicable to that unpaid sum during the
unexpired portion of that Interest Period shall be the EURIBOR applicable
to it immediately before it fell due.
(c) If the Agent determines (after consultation with the Reference Banks) that
euro deposits are not being made available to the leading banks in the
London Interbank Market, the reference to EURIBOR in paragraph (a)(iii)
above shall be taken as a reference to a rate representing the cost of
funds to the Reference Banks from such other sources as they may from time
to time determine.
(d) Unpaid interest shall be capitalised so that it will increase the amount
of principal of each Tranche and the increased principal amount of each
Tranche will incur and accrue interest at the default rate.
9.4 NOTIFICATION
The Agent shall promptly notify each relevant Party of the determination
of a rate of interest under this Agreement.
10. PAYMENTS
10.1 PLACE
(a) All payments by the Borrower under the Finance Documents shall be made to
the Agent to its account at such office or bank as it may notify to the
Borrower for this purpose. In the event the Agent changes its account,
office or bank, it shall give the Borrower two Business Days' advance
notification of such change.
(b) All amounts to be made available by the Banks to the Agent under this
Agreement shall be made available in euros and in immediately available,
freely transferable, cleared funds at such account at such office or bank
as the Agent may designate.
(c) Subject to no Default having occurred and being continuing, and subject to
the Agent being satisfied that the relevant amount is due and payable
either to the SPC under the Sales Contract and the Memorandum of Agreement
during Stage One or to the Issuer under the Master Agreement during Stage
Two, the Agent shall forthwith transfer such amounts as are attributable
to Instalments into the account of:
(i) at any time whilst Stage One is in effect, the SPC (the Borrower
will supply the Agent in writing with the account details for the
SPC promptly at least two (2) Business Days before the Drawdown date
of the first Tranche; or
(ii) at any time whilst Stage Two is in effect, the Issuer (the Borrower
will supply the Agent in writing with the account details for the
Issuer promptly after the implementation of Stage Two and, in any
event, at lease five (5) Business Days before the Drawdown Date of
any Tranche to be drawndown after the implementation of Stage Two).
(d) On receipt of the funds in paragraph (b) above, and subject to Clause 3
(Purpose) the Agent shall forthwith transfer such amounts not transferred
pursuant to paragraph (c) above into the Disbursement Account.
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10.2 FUNDS
Subject to Clause 10.1(b), all payments under the Finance Documents to the
Agent shall be made for value on the due date at such times and in such
funds as the Agent may specify to the Party concerned as being customary
at the time for the settlement of transactions in euros.
10.3 DISTRIBUTION
(a) Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the Agent is not obliged to pay that sum to that Party
until it has established that it has actually received that sum. The Agent
may, however, assume that the sum has been paid to it in accordance with
the Finance Documents and, in reliance on that assumption, make available
to that Party a corresponding amount. If the sum has not been made
available but the Agent has paid a corresponding amount to another Party,
that Party shall forthwith on demand refund the corresponding amount to
the Agent together with interest on that amount from the date of payment
to the date of receipt, calculated at a rate determined by the Agent to
reflect its cost of funds, provided that no such interest shall be payable
in relation to such refund to the extent that such sum to be refunded
falls due to be refunded due to the Agent's wilful misconduct or reckless
disregard with knowledge of the probable consequences.
(b) Any and all amounts received by the Spanish Security Agent in its capacity
as Spanish Security Agent shall be paid to the Agent for application by
the Agent pursuant to the provisions of this Agreement.
10.4 CURRENCY
(a) Amounts payable in respect of costs, expenses, taxes and the like are
payable in the currency in which they are incurred.
(b) Any other amount payable under the Finance Documents is, except as
otherwise provided in the Finance Documents, payable in euros.
(c) If the Agent or any other Finance Party receives any payment required to
be paid by the Borrower under this Agreement in a currency other than
euro, the Agent may convert the currency received into euro at the Agent's
Spot Rate of Exchange and the Indebtedness shall not be deemed reduced by
the payment until and except to the extent that the proceeds of conversion
are applied towards the Secured Liabilities.
10.5 SET-OFF AND COUNTERCLAIM
All payments made by the Borrower under the Finance Documents shall be
made without set-off or counterclaim.
10.6 NON-BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
the Finance Documents interest is payable on the principal at the rate
payable on the original due date.
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10.7 PAYMENTS
(a) Subject to paragraph (c) below, if the Agent receives any payment from the
Borrower under the Finance Documents or a payment by the Spanish Security
Agent of a payment from the Borrower or the proceeds of any enforcement of
the security conferred by the Security Documents from the Spanish Security
Agent, and Swap Bank or any other Finance Party, the Agent shall apply
that payment towards the obligations of the Borrower under the Finance
Documents in the following order:
(i) FIRSTLY, in or towards payment pro rata of any unpaid fees, costs
and expenses of the Agent and/or any of the Banks under the Finance
Documents;
(ii) SECONDLY, in or towards payment pro rata of any principal or accrued
interest due but unpaid under this Agreement or any loss or
liability incurred by the Swap Banks as a consequence of a default
under or termination by the Borrower of, or any replacement or
amendment in relation to, the Swap Agreements;
(iii) THIRDLY, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents; and
(iv) FOURTHLY, the balance, if any, to the Borrower.
(b) In the event a Default has occurred and is continuing, the Agent shall, if
so directed by all the Banks and the Swap Banks, vary the order set out in
sub-paragraphs (a)(ii) to (iv) above.
(c) If the Agent receives any payment from the Borrower under the Swap
Agreement or a payment from the Spanish Security Agent (in its capacity as
a Swap Bank) of a payment from the Borrower under the Swap Agreements, the
Agent shall apply that payment towards the obligations of the Borrower
under the Swap Agreements in the following order:
(i) FIRSTLY, in or towards pro rata any unpaid fees, costs and expenses
of the Agent and or the Swap Banks under the Swap Agreements;
(ii) SECONDLY, in or towards pro rata of any amounts due but unpaid to
the Swap Banks under the Swap Agreements; and
(iii) THIRDLY, the balance, if any, to the Borrower.
(d) Paragraphs (a), (b) and (c) above shall override any appropriation made by
the Borrower.
11. TAXES
11.1 GROSS-UP
(a) All payments by the Borrower under the Finance Documents shall be made
without any deduction and free and clear of and without any deduction for
or on account of any taxes, except to the extent that the Borrower is
required by law to make payment subject to any taxes. If any tax or
amounts in respect of tax must be deducted, or any other deductions must
be made, from any amounts payable or paid by the Borrower, or paid or
payable by the Agent to a Bank, under the Finance Documents, the Borrower
shall pay such additional amounts as may be necessary to ensure (having
regard to any such deduction on any such additional amount) that the
relevant Party receives a net amount equal to the full amount which it
would have received had payment not been made subject to tax or any other
deduction.
33
(b) Without prejudice to paragraph (a) above, in relation to an exemption from
or application of a rate lower than that of general application in
relation to any Non-Residents Income Tax (Impuesto sobre la Renta de No
Residentes) pursuant to any double taxation treaty, or pursuant to any
other cause relating to residence status, any Bank which is not
incorporated in Spain shall supply the Agent (which shall deliver a copy
thereof to the Borrower), with a certificate of residence issued by the
pertinent fiscal administration, evidencing that such Bank is resident for
tax purposes in a country which is a member of the European Union or, as
the case may be, is resident for tax purposes in the relevant state which
has signed and ratified a treaty for the avoidance of double taxation with
Spain, within the meaning of such treaty, prior to the last day of the
first Interest Period. As such certificates are, at the date hereof, only
valid for a period of one year, each such Bank will be required to so
supply a further such certificate upon expiry of the previous certificate
in relation to any further payment of interest.
11.2 TAX RECEIPTS
All taxes required by law to be deducted or withheld by the Borrower from
any amounts paid or payable under the Finance Documents shall be paid by
the Borrower when due and the Borrower shall, within 15 days of the
payment being made or, if later, forthwith following receipt of the same,
deliver to the Agent for the relevant Bank evidence satisfactory to that
Bank (including all relevant tax receipts) that the payment has been duly
remitted to the appropriate authority.
11.3 TAX CREDITS
(a) If:
(i) the Borrower makes a payment or increases the amount of any payment,
pursuant to Clause 11.1 (Gross-Up) (a "TAX RELATED PAYMENT"); and
(ii) the Agent, the relevant Bank or the other relevant Party obtains a
refund of tax or obtains a credit against or relief for any tax paid
or otherwise payable by it, in respect of or calculated with
reference to the deduction, withholding or payment of tax giving
rise to the Tax Related Payment (a "TAX CREDIT"),
then, if and to the extent that the Agent, the relevant Bank or the other
relevant Party (as appropriate), in its reasonable opinion, can do so
without any adverse consequences for it (other than the mere payment of
monies under this provision), it shall reimburse the Borrower such
proportion of that Tax Credit as is attributable to the deduction,
withholding or payment as will leave the Agent, the relevant Bank or, as
the case may be, the other relevant Party (after that reimbursement) in no
better or worse position in respect of its relevant tax liabilities than
it would have been in if no Tax Related Payment had been required.
(b) The Agent, the relevant Bank and the other relevant Party shall have
absolute discretion as to whether to claim any Tax Credit as well as all
other reliefs and credits available to it and, if it does claim, the
extent, order and manner in which it does so. The Agent, the relevant Bank
and the other relevant Party shall not be obliged to disclose any
information regarding its tax affairs and computations to the Borrower.
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12. MARKET DISRUPTION
12.1 ABSENCE OF QUOTATIONS
If EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply an offered rate by 11.30 a.m. on a Rate
Fixing Day, the applicable EURIBOR shall, subject to Clause 12.2 (Market
disruption), be determined on the basis of the quotations of the remaining
Reference Bank(s).
12.2 MARKET DISRUPTION
If, in relation to any proposed Tranche:
(a) EURIBOR is to be determined by reference to the Reference Banks but
no, or only one, Reference Bank supplies a rate by 11.30 a.m. on the
Rate Fixing Day or EURIBOR is to be determined by reference to the
rate supplied to the Agent by the British Bankers' Association and
no such rate is supplied by 11.30 a.m. on the Rate Fixing Day or the
Agent otherwise determines that adequate and fair means do not exist
for ascertaining EURIBOR; or
(b) the Agent receives notification from Banks whose participations in a
Tranche exceed 30 per cent. of that Tranche that, in their opinion:
(i) matching deposits may not be available to them in the London
interbank market in the ordinary course of business to fund
their participations in that Tranche for the relevant Interest
Period; or
(ii) the cost to them of obtaining matching deposits in the London
interbank market would be in excess of EURIBOR for the
relevant Interest Period,
the Agent shall promptly notify the Borrower and the Banks of the fact and
that this Clause 12 is in operation.
12.3 SUSPENSION OF DRAWDOWNS
If a notification under Clause 12.2 (Market disruption) applies to a
Tranche which has not been advanced, that Tranche shall not be advanced.
However, within five Business Days of receipt of the notification, the
Borrower and the Agent shall enter into negotiations for a period of not
more than 30 days with a view to agreeing an alternative basis for
determining the rate of interest and/or funding applicable to that and (to
the extent required) any future Tranche. Any alternative basis agreed
shall be, with the prior consent of all the Banks, binding on all the
Parties.
12.4 ALTERNATIVE BASIS
If a notification under Clause 12.2 (Market disruption) applies to a
Tranche which is outstanding, then, for the purpose of calculating the
rate of interest on that Tranche pursuant to Clause 9.1 (Interest rate):
(a) within five Business Days of receipt of the notification, the
Borrower and the Agent shall enter into negotiations for a period of
not more than 30 days with a view to agreeing an alternative basis
for determining the rate of interest and/or funding applicable to
that Tranche and/or any other Tranches;
35
(b) any alternative basis agreed under paragraph (a) above, or certified
under paragraph (c) below, shall be, with the prior consent of all
the Banks, binding on all the Parties and treated as part of this
Agreement;
(c) if no alternative basis is agreed, each Bank shall (through the
Agent) certify on or before the last day of the Interest Period to
which the notification relates an alternative basis for maintaining
its participation in that Tranche; and
(d) any such alternative basis may include an alternative method of
fixing the interest rate, alternative Interest Periods or
alternative currencies but it must reflect the cost to the Bank of
funding its participation in the Tranche from whatever sources it
may select plus the Margin plus any applicable Mandatory Cost.
13. INCREASED COSTS
13.1 INCREASED COSTS
(a) Subject to Clause 13.2 (Exceptions), the Borrower shall forthwith on
demand by a Finance Party pay to that Finance Party the amount of any
increased cost incurred by it or any of its Affiliates as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation; or
(ii) compliance with any regulation made after the date of this
Agreement,
(including any law or regulation relating to taxation, change in currency
of a country or reserve asset, special deposit, cash ratio, liquidity or
capital adequacy requirements or any other form of banking or monetary
control).
(b) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by a Finance Party or any of its
Affiliates as a result of it having entered into, or performing,
maintaining or funding its obligations under, any Finance Document;
or
(ii) that portion of an additional cost incurred by a Finance Party or
any of its Affiliates in making, funding or maintaining all or any
advances comprised in a class of advances formed by or including
that Finance Party's participations in the Loan made or to be made
under this Agreement as is attributable to that Finance Party
making, funding or maintaining those participations; or
(iii) a reduction in any amount payable to a Finance Party or any of its
Affiliates or in the effective return to a Finance Party or any of
its Affiliates under this Agreement or (to the extent that it is
attributable to this Agreement) on its capital; or
(iv) the amount of any payment made by a Finance Party or any of its
Affiliates, or the amount of any interest or other return foregone
by a Finance Party or any of its Affiliates, calculated by reference
to any amount received or receivable by that Finance Party or any of
its Affiliates from any other Party under this Agreement.
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13.2 EXCEPTIONS
Clause 13.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the payment of the Mandatory Cost;
(b) compensated for by the operation of Clause 11 (Taxes); or
(c) attributable to any change in the rate of, or change in the basis of
calculating, tax on the overall net income of a Bank or any of its
Affiliates (or the overall net income of a division or branch of the
Bank or any of its Affiliates) imposed in the jurisdiction in which
its principal office or Facility Office is for the time being
situate.
14. ILLEGALITY
If by a change in law it becomes unlawful in any jurisdiction for a Bank
to give effect to any of its obligations as contemplated by this Agreement
or to fund or maintain its participation in any Tranche, then:
(a) that Bank may notify the Borrower through the Agent accordingly; and
(b) (i) the Borrower shall within 30 days of receipt of such notice
prepay that Bank's participations in all Tranches together
with all other amounts payable by it to that Bank under this
Agreement; and
(ii) that Bank's Commitment shall be cancelled.
15. MITIGATION
15.1 MITIGATION
If circumstances arise such that:
(a) the Borrower is required to make an additional payment under Clause
11 (Taxes); or
(b) the Borrower is or would be required under Clause 13.1 (Increased
costs) to increase the amount of any payment to a Bank; or
(c) Clause 14 (Illegality) applies in relation to a Bank,
then, without in any way limiting, reducing or otherwise qualifying the
Borrower's obligations under those clauses but subject to Clause 15.2
(Exceptions), the relevant Bank shall for a reasonable period of time (not
exceeding 30 days) endeavour to take such reasonable steps as may be open
to it to mitigate the effects of those circumstances and enter into
discussions with the Borrower with a view to determining what other
mitigating action might be taken by the Bank, including a potential change
in the Bank's lending office or transfer of its Commitment to another bank
or financial institution.
15.2 EXCEPTIONS
Nothing in Clause 15.1 (Mitigation) shall oblige a Bank to incur any costs
or expenses or to take any action or refrain from taking any action where,
in the reasonable opinion of such
37
Bank, to take or refrain from taking that action (as the case may be)
might be prejudicial to its interests.
15.3 COSTS AND EXPENSES
Any costs and expenses incurred by a Bank pursuant to Clause 15.1
(Mitigation) shall be paid by the Borrower within five Business Days after
receipt of a demand from the Agent on behalf of the Bank specifying the
same. Any such demands shall be accompanied by copies of all supporting
documentation which is reasonably and practically available to the Bank.
16. REPRESENTATIONS AND WARRANTIES
16.1 REPRESENTATIONS AND WARRANTIES
The Borrower makes the representations and warranties set out in this
Clause 16 to each Finance Party.
16.2 STATUS
(a) It is a single purpose company, duly incorporated and validly existing
under the laws of Spain; and
(b) it has the power to own its assets and carry on its business as it is
being conducted.
16.3 SHARE CAPITAL AND OWNERSHIP
The whole of the issued share capital of the Borrower is legally and
beneficially owned by the Shareholder free of any Security Interest other
than the Pledge of Quota Shares.
16.4 POWERS AND AUTHORITY
(a) It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into, performance and delivery of, the
Finance Documents and the Related Contracts to which it is or will be a
party and the transactions contemplated by those Finance Documents and the
Related Contracts.
(b) All of the consents referred to in paragraph (a) above remain in force and
nothing has occurred which makes any of them liable to revocation.
16.5 LEGAL VALIDITY
(a) Each Finance Document and Related Contract to which it is or will be a
party constitutes, or when executed in accordance with its terms will
constitute, its legal, valid and binding obligations enforceable in
accordance with its terms, subject to any applicable insolvency laws;
(b) in entering into this Agreement and borrowing the Loan, the Borrower is
acting on its own account; and
(c) each Security Document creates, or will when it is entered into, create
the Security Interests it purports to create with the priority as stated
under each Security Document and enforceable against the trustee in
bankruptcy, liquidator and creditors of the Borrower and any other third
parties, subject to any applicable insolvency laws.
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16.6 NON-CONFLICT
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents and the Related Contracts do not and will not
conflict with:
(a) any law or regulation or judicial or official order in force as at
the date of this Agreement;
(b) the constitutional documents of any member of the Group; or
(c) any document which is binding upon any member of the Group or any
asset of any member of the Group.
16.7 PARI PASSU RANKING
Its obligations under the Finance Documents rank and will rank at least
pari passu with all its other present and future unsecured obligations
(other than any rights in rem against the Vessel arising after the date of
this Agreement and subject to any and all applicable insolvency laws).
16.8 TAXES ON PAYMENTS
All amounts payable by the Borrower under the Finance Documents and the
Related Contracts may be made free and clear of and without deduction or
withholding for or on account of any tax payable under any relevant law.
16.9 STAMP DUTIES
Except as notified in writing to and accepted by the Agent, no stamp or
registration duty or similar taxes or charges are payable in Spain in
respect of any Finance Document or Related Contract.
16.10 NO DEFAULT
(a) No Default is outstanding or might result from the making of any Tranche;
and
(b) neither the Borrower nor the Guarantor or any Subsidiary of the Guarantor
is in default (howsoever described) or breach of any material liability or
obligation under any:
(i) Charter or other contract for the employment of; and/or
(ii) agreement relating to any Financial Indebtedness in relation to,
a vessel under the management of the Borrower, the Guarantor or any
Subsidiary of the Guarantor.
16.11 AUTHORISATIONS
All authorisations, consents, registrations, filings, notarisations and
the like required or desirable in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, the Finance Documents and the Related Contracts have been
obtained or effected (as appropriate) and are in full force and effect
(or, in the case of registrations, filings, notarisations and the like,
will be effected within any time limits
39
required by any applicable law or, if there is no such requirement under
applicable law, within such time limits as the Agent may reasonably
require).
16.12 INFORMATION
All information provided by or on behalf of the Borrower to any Finance
Party in connection with any Finance Document or any Related Contract
satisfies the requirement of Clause 17.4 (Information provided to be
accurate).
16.13 ACCOUNTS
The consolidated audited accounts, in English, of the Guarantor most
recently delivered to the Agent:
(a) have been prepared by a reputable accounting firm in accordance with
all applicable laws and GAAP principles and practices consistently
applied;
(b) fairly represent the financial condition of the Guarantor and the
Borrower as at the date of those accounts and of its profit for the
period for which those accounts relate; and
(c) fully disclose or reserve against all of the Guarantor's and the
Borrower's significant liabilities,
and there has been no material adverse change in the financial condition
of the Borrower or the Guarantor since the date to which those accounts
were drawn up.
16.14 LITIGATION
Except as notified in writing to and accepted by the Agent, no litigation,
arbitration or administrative proceedings are current or, to its
knowledge, pending or threatened against the Borrower or the Guarantor.
16.15 INFORMATION MEMORANDUM
(a) The factual information provided by the Borrower contained in the
Information Memorandum was true, accurate and not misleading in any
material respect as at its date;
(b) all opinions, predictions or intentions expressed in the Information
Memorandum to be the Borrower's opinions, predictions or intentions are
honestly held or made and the Borrower does not believe them to be
misleading in any material respect;
(c) the financial projections contained in the Information Memorandum which
have been prepared by the Borrower have been prepared on the basis of
recent historical information and on the basis of reasonable assumptions;
(d) as at the date of this Agreement, nothing has occurred since the date of
the Information Memorandum or been omitted from the Information Memorandum
in connection with any information provided by the Borrower and no
information has been given or withheld by the Borrower that results in the
information contained in the Information Memorandum and provided by the
Borrower being untrue or misleading in any material respect; and
(e) all proper enquiries have been made to ascertain and to verify the
foregoing.
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16.16 TAXES PAID
The Borrower has paid all taxes applicable to, or imposed on or in
relation to, the Borrower or its business which have fallen due for
payment.
16.17 STATUS OF CHARTERS AND RELATED CONTRACTS
(a) Neither the Borrower nor any Charterer is in default under any Charter of
the Vessel, which default has not been notified to the Agent;
(b) there are no pending or, so far as the Borrower is aware, threatened
actions, suits or proceedings in connection with any Charter of the
Vessel;
(c) neither the Borrower nor, to the best of the knowledge and belief of the
Borrower, any other party to any Related Contract is in default under any
Related Contract; and
(d) there are no pending or, so far as the Borrower is aware, threatened
actions, suits or proceedings in connection with any Related Contract.
16.18 ENVIRONMENT
Except as may already have been disclosed by the Borrower in writing to,
and acknowledged in writing by, the Agent:
(a) the Borrower and its Environmental Affiliates have without
limitation complied with the provisions of all applicable
Environmental Laws in relation to the Vessel;
(b) the Borrower and its Environmental Affiliates have obtained all
requisite Environmental Approvals in relation to the Vessel and are
in compliance with such Environmental Approvals;
(c) neither the Borrower nor any of its Environmental Affiliates has
received notice of any Environmental Claim in relation to the Vessel
which alleges that the Borrower is not in compliance with applicable
Environmental Laws in relation to the Vessel or Environmental
Approvals in relation to the Vessel;
(d) there is no Environmental Claim in relation to the Vessel pending or
threatened; and
(e) there has been no Release of Materials of Environmental Concern.
16.19 SECURITY INTERESTS
No Security Interest exists over its or any of its Subsidiary's assets
which would cause a breach of Clause 17.13 (Security Interests).
16.20 SECURITY ASSETS
Subject only to the terms of the Stage One Documents and the Stage Two
Documents, it is solely and absolutely entitled to the Security Assets to
which it is, or will be, a party and there is no agreement or arrangement
under which it is obliged to share any proceeds of or derived from such
Security Assets with any third party.
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16.21 SALES CONTRACT/BAREBOAT CHARTER
All amounts due and payable by the Borrower under the Sales Contract or,
as the case may be, the Master Agreement have been unconditionally and
irrevocably paid in full to the SPC or the Issuer respectively when due in
accordance with the terms of the Sales Contract or, as the case may be,
the Master Agreement as appropriate.
16.22 ISM CODE COMPLIANCE
On and after the Delivery Date, the Borrower is in full compliance with
the ISM Code.
16.23 IMMUNITY
(a) The execution by the Borrower of each Finance Document and Related
Contract to which it is a party constitutes, and its exercise of its
rights and performance of its obligations under each Finance Document and
each Related Contract will constitute, private and commercial acts done
and performed for private and commercial purposes; and
(b) the Borrower will not be entitled to claim immunity from suit, execution,
attachment or other legal process in any proceedings taken in Spain in
relation to any Finance Document and each Related Contract.
16.24 JURISDICTION/GOVERNING LAW
(a) The Borrower's:
(i) irrevocable submission under Clause 35 (Jurisdiction) to the
jurisdiction of the courts of England;
(ii) agreement that this Agreement is governed by English law; and
(iii) agreement not to claim any immunity to which it or its assets may be
entitled,
are legal, valid and binding under the laws of Spain; and
(b) any judgment obtained in England will be recognised and be enforceable by
the courts of Spain.
16.25 NO AMENDMENTS TO RELATED CONTRACTS
Other than as notified to and agreed by the Agent in writing, there have
been no amendments to any of the Related Contracts (excluding any Vessel
Management Contract until such time as it has been executed).
16.26 MONEY LAUNDERING
Any borrowing by the Borrower and the performance of its obligations
hereunder and under the other Finance Documents will be for its own
account and will not involve any breach by it of any law or regulatory
measure relating to "money laundering" as defined in Article 1 of the
Directive (91/308/EEC) of the Council of the European Communities.
42
16.27 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Clause 16:
(a) are made by the Borrower on the date of this Agreement; and
(b) (with the exception of Clause 16.15 (Information Memorandum)) are
deemed to be repeated by the Borrower on the date of each Request
and each Drawdown Date and on the first day of each Interest Period
with reference to the facts and circumstances then existing (but
subject, in respect of Clause 16.5 (Legal Validity), Clause 16.8
(Taxes on payments), Clause 16.10 (No Default), Clause 16.11
(Authorisations), Clause 16.14 (Litigation), Clause 16.17 (Status of
Charters), Clause 16.18 (Environment) and Clause 16.25 (No
amendments to Related Contracts), to any matters notified to, and
agreed by, the Agent in writing) and, in relation to Clause 16.12
(Information), with reference to the most recently delivered
Guarantor Accounts.
17. UNDERTAKINGS
17.1 DURATION
The undertakings in this Clause 17 remain in force from the date of this
Agreement for so long as any amount is or may be outstanding under the
Finance Documents or any Commitment is in force.
17.2 MAINTENANCE OF STATUS
The Borrower will maintain its separate corporate existence and remain in
good standing under the laws of Spain.
17.3 FINANCIAL INFORMATION
(a) The Borrower shall supply to the Agent in English, in sufficient copies
for all the Banks:
(i) its opening balance sheet;
(ii) as soon as the same are available (and in any event within 180 days
of the end of each of its financial years) the consolidated audited
financial statements of the Guarantor for that financial year; and
(iii) as soon as the same are available (and in any event within 90 days
of the end of each of its financial half-years) the consolidated
unaudited financial statements of the Guarantor for that financial
half-year.
(b) The Borrower shall supply to the Agent in sufficient copies for all the
Banks:
(i) as soon as the same are available (and in any event within 180 days
of the end of each of its financial years) its audited financial
statements for that financial year; and
(ii) as soon as the same are available (and in any event within 90 days
of the end of each of its financial half-years) its unaudited
financial statements for that financial half-year.
43
(c) All accounts (audited and unaudited) delivered under Clause 17.3(a) and
(b) (Financial information) will:
(i) be prepared by a reputable accounting firm in accordance with all
applicable laws and GAAP principles and practices consistently
applied;
(ii) fairly represent the financial condition of the Guarantor and the
Borrower at the date of those accounts and of its profit for the
period for which those accounts relate; and
(iii) fully disclose or reserve against all significant liabilities of the
Guarantor and the Borrower.
17.4 INFORMATION PROVIDED TO BE ACCURATE
All financial and other information provided by or on behalf of the
Borrower under or in connection with any Finance Document will be true and
not misleading in any material respect and will not omit any material
fact.
17.5 INFORMATION - MISCELLANEOUS
The Borrower shall supply to the Agent:
(a) promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending;
(b) promptly upon receipt thereof, a copy of any notice received by the
Borrower from the Time Charterer or any other Charterer of any
failure of the Borrower or any other Charterer to exercise due
diligence under the Time Charter or any other Charter, together with
details from time to time of any and all action being taken to
remedy the same;
(c) promptly upon receipt thereof, a copy of any notice received by the
Borrower from any party to any Stage One Document or Stage Two
Document in relation to any Stage One Document or any Stage Two
Document; and
(d) promptly, such further information in its possession or control
regarding its business, affairs or financial condition as any
Finance Party may through the Agent from time to time reasonably
request,
in sufficient copies for all of the Banks, if the Agent so requests.
17.6 NOTIFICATION OF DEFAULT
The Borrower shall notify the Agent of any Default or any default by any
other party to any of the Stage One Documents and the Stage Two Documents
(the latter a "THIRD PARTY DEFAULT") (and the steps, if any, being taken
to remedy it) promptly upon becoming aware of the same.
44
17.7 COMPLIANCE CERTIFICATES
(a) The Borrower shall supply to the Agent:
(i) together with the accounts specified in Clause 17.3(a) and (b)
(Financial information); and
(ii) promptly at any other time, if the Agent so requests,
a certificate, in the form of Schedule 8 (Form of Compliance Certificate),
signed by the chief executive officer or two of its senior officers on its
behalf certifying that no Default nor Third Party Default has occurred and
is continuing, is outstanding or, if a Default or a Third Party Default is
outstanding, specifying the Default or the Third Party Default and the
steps, if any, being taken to remedy it.
(b) The Borrower shall procure that the Guarantor provides, promptly at the
end of each of its financial quarters, a certificate in the agreed form,
signed by its chief executive officer or two of its senior officers on its
behalf certifying that no Default in respect of Clause 19 has occurred and
is continuing.
(c) The Borrower shall procure that the Guarantor provides, promptly at the
end of each of its financial quarters, a certificate in the agreed form,
signed by its chief executive officer or two of its senior officers on its
behalf certifying that it has complied with the provisions of Clause 19.7
(Cross Default).
17.8 AUTHORISATIONS
The Borrower shall promptly:
(a) obtain, maintain and comply with the terms of; and
(b) supply certified copies to the Agent of,
any authorisation, consent, registration, filing, notarisation and the
like required under any Applicable Law or regulation to enable it to
perform its obligations under, or for the validity or enforceability of,
any Finance Document or any Related Contract.
17.9 PARI PASSU RANKING
The Borrower shall procure that its obligations under the Finance
Documents rank and will rank at least pari passu with all its other
present and future unsecured obligations, except for obligations which are
mandatorily preferred by law.
17.10 DISPOSALS
The Borrower shall not, either in a single transaction or in a series of
transactions, whether related or not or whether voluntary or involuntary,
sell, transfer, grant or lease or otherwise dispose of all or a material
part of its assets.
45
17.11 BUSINESS
(a) The Borrower shall not carry on any business other than the ownership,
operation and employment of the Vessel and other activities connected with
or reasonably incidental to that business.
(b) The Borrower will maintain its place of business, and keep its corporate
documents and records, at the address stated at the commencement of this
Agreement, and the Borrower will not establish, or do anything as a result
of which it would be deemed to have, a place of business in any country
other than Spain.
17.12 LIABILITIES
The Borrower will not:
(a) make any loans or grant any credit other than any such loan or
credit granted to any member of the Group; or
(b) make or hold any investments otherwise than in the ordinary course
of its business referred to in Clause 17.11 (Business).
17.13 SECURITY INTERESTS
The Borrower shall not create or permit to subsist any Security Interest
over the Vessel or the Earnings or Obligatory Insurances or any other
Security Assets or any Related Contract other than:
(a) Permitted Liens; or
(b) with the prior written consent of all of the Banks.
17.14 LIMITATION ON FINANCIAL INDEBTEDNESS
The Borrower will not incur any Financial Indebtedness other than
Financial Indebtedness:
(a) under the Finance Documents; or
(b) arising in the ordinary course of operation of the Vessel in an
aggregate amount not exceeding euro 250,000, provided that such
amounts are paid when due or, if not paid when due are being
disputed in good faith by appropriate proceedings (and for the
payment of which adequate reserves or security are at the relevant
time maintained or provided), provided further that such
proceedings, whether by payment of adequate security into Court or
otherwise, do not give rise to a material risk of the Vessel or any
interest therein being seized, sold, forfeited or otherwise lost or
of criminal liability on the Agent or any of the Banks; or
(c) consisting of any guarantee or indemnity required by any protection
and indemnity or war risks club or association to be given by the
Borrower; or
(d) under any loan or credit facility granted to the Borrower by any
member of the Group, which is unsecured and fully subordinated to
the Facility, the principal terms of which are notified to the Agent
by the Borrower in writing prior to the granting of the relevant
Facility.
46
The Borrower shall, upon a request being made by the Agent, provide the
Agent with such further information as the Agent may reasonably require in
connection with any loan or credit facility granted or to be granted to
the Borrower pursuant to Clause 17.14(d) above.
17.15 MERGERS
The Borrower shall not enter into any amalgamation, demerger, merger or
reconstruction.
17.16 SECURITY
The Borrower:
(a) will procure that the Mortgage and the Swap Bank Mortgage are, on
execution, and continue to be, registered under Spanish law as a
first priority mortgage;
(b) will procure that any other security conferred by it under any
Security Document is maintained and perfected and registered with
the relevant authorities;
(c) at its own cost, do all that it can to ensure that any Finance
Document validly creates the obligations and Security Interests
which it purports to create; and
(d) without limiting the generality of paragraph (a) above, at its own
cost, promptly register, file, record or enrol any Finance Document
with any court or authority, pay any stamp, registration or similar
tax payable in respect of any Finance Document, give any notice or
take any other step which, in the reasonable opinion of the Agent,
is or has become necessary or desirable for any Finance Document to
be valid, enforceable or admissible in evidence or to ensure or
protect the priority of any Security Interest which it creates.
17.17 CHARTERS WITH AFFILIATED COMPANIES
The Borrower will not subject the Vessel to any Charter in favour of any
company affiliated with it unless that company has previously agreed in
writing to subordinate its interests under such Charter in a form
satisfactory to the Majority Banks.
17.18 DELIVERY OF VESSEL
The Borrower shall not accept delivery of the Vessel from the Builder, the
SPC or the AIE, as the case may be, unless and until either:
(a) the Time Charterer has accepted the Vessel pursuant to the terms of
the Time Charter; or
(b) it is required to do so by a ruling resulting from an arbitration
pursuant to:
(i) the terms of Article XIV (Law and Arbitration) of the Sales
Contract (if Stage One is in effect at the relevant time); or
(ii) the terms of Article XIII (Arbitration) of the Shipbuilding
Contract (which rights are assigned to the Borrower by Article
IV of the Master Agreement) (if either Stage Two or neither
Stage One nor Stage Two is in effect at the relevant time).
47
17.19 REGISTRATION OF THE VESSEL
The Borrower will:
(a) procure and maintain with effect from the Delivery Date the valid
and effective registration of the Vessel in the Canary Islands under
the laws of Spain and flag of Spain (or such other laws and flag of
like standing and acceptable to the Majority Banks as the Agent
(acting in accordance with the instructions of the Majority Banks)
may permit (such permission not to be unreasonably withheld)) and
ensure nothing is done or omitted by which the registration of the
Vessel would or might be defeated or imperilled; and
(b) not change the name or port of registration of the Vessel without
the consent of the Agent (acting in accordance with the instructions
of the Majority Banks) (such consent not to be unreasonably
withheld).
17.20 CLASSIFICATION AND REPAIR
The Borrower will at all times after the Delivery Date:
(a) ensure that the Vessel is surveyed from time to time as required by
the classification society in which the Vessel is for the time being
entered and maintain and preserve the Vessel in good working order
and repair, ordinary wear and tear excepted, and in any event in
such condition as will entitle her to the classification of LR, +100
A1 Liquefied gas carrier/LNG, Ship type 2G (methane in membrane
tanks, 0.25 bar, -163 degrees C + LMC, UMS, PORT, SDA, IWS, SCM, LI,
FDA, NAVI, IBS, ES, TCM, CCS or, if such classification is not
available with the highest equivalent classification available, with
Lloyd's Register of Shipping or Bureau Veritas (or to the equivalent
classification in another internationally recognised classification
society of like standing acceptable to the Majority Banks), free of
all overdue requirements and recommendations of that classification
society;
(b) procure that all repairs to or replacement of any damaged, worn or
lost parts or equipment shall be effected in such manner (both as
regards workmanship and quality of materials) as not to diminish the
value of the Vessel;
(c) not remove any material part of the Vessel, or any item of equipment
installed on the Vessel unless the part or item so removed is
forthwith replaced by a suitable part or item which is in the same
condition as or better condition than the part or item removed, is
free from any Security Interest or any right in favour of any person
other than the Agent and becomes on installation on the Vessel the
property of the Borrower and subject to the security constituted by
the relevant Security Document(s) provided that the Borrower may
install and remove equipment owned by a third party if the equipment
can be removed without any risk of damage to the Vessel;
(d) ensure that the Vessel complies with all laws, regulations and
requirements (statutory or otherwise) from time to time applicable
to vessels registered under the laws and flag of Spain; and
(e) not without the prior written consent of the Agent (acting on the
instructions of the Majority Banks) (such consent not to be
unreasonably withheld) cause or permit to
48
be made any substantial change in the structure, type or performance
characteristics of the Vessel.
17.21 LAWFUL AND SAFE OPERATION
The Borrower will at all times after the Delivery Date:
(a) not cause or permit the Vessel to be operated in any manner contrary
to the laws, regulations, treaties and conventions (and all rules
and regulations issued thereunder) from time to time applicable to
the Vessel;
(b) subject to compliance by the Borrower with the terms of the Time
Charter, not cause or permit the Vessel to trade with or within the
territorial waters of any country in which her safety may be
imperilled;
(c) subject to compliance by the Borrower with the terms of the Time
Charter, not cause or permit the Vessel to be employed in any manner
which will or may render her liable to requisition, confiscation,
forfeiture, seizure, destruction or condemnation as prize;
(d) ensure that the Vessel is not employed in any trade or business
which is forbidden by international law or is illicit or is carrying
illicit or prohibited goods;
(e) subject to compliance by the Borrower with the terms of the Time
Charter, in the event of hostilities in any part of the world
(whether war be declared or not) ensure that the Vessel is not
employed in carrying any contraband goods and that she does not
trade in any zone after it has been declared a war zone by any
authority or by the Vessel's war risks insurers unless the Vessel's
insurers shall have confirmed to the Borrower that the Vessel is
held covered under the Obligatory Insurances for the voyage(s) in
question; and
(f) not charter the Vessel to or permit the Vessel to serve under any
contract of affreightment with any foreign country or national of
any foreign country which is specified by legislation or regulations
of the United States of America or any other jurisdiction in which a
Bank's Facility Office is located and such that, if the Earnings or
any part of Earnings were derived from such charter or
affreightment, that fact would render any Finance Document or the
security conferred by the Security Documents unlawful.
17.22 REPAIR OF THE VESSEL
The Borrower will not at any time after the Delivery Date put the Vessel
into the possession of any person for the purpose of work being done upon
her beyond the amount of euro 2,500,000 (or equivalent), other than for
classification or scheduled dry docking unless such person shall have
given an undertaking to the Agent not to exercise any lien on the Vessel
or her Earnings or Obligatory Insurances for the cost of that work or
otherwise.
17.23 ARRESTS AND LIABILITIES
The Borrower will at all times after the Delivery Date:
(a) pay and discharge all obligations and liabilities whatsoever which
have given or may give rise to liens (other than liens arising in
the ordinary course of operation of the
49
Vessel in each case for amounts the payment of which is not yet due
or, if due and payable, is being disputed in good faith by
appropriate proceeding (and for the payment of which adequate
reserves have been provided or are and continue to be available)) on
or claims enforceable against the Vessel and take all other steps
necessary to prevent a threatened arrest of the Vessel;
(b) notify the Agent promptly in writing of the levy of any distress on
the Vessel or her arrest, detention, seizure, condemnation as prize,
compulsory acquisition or requisition for title or use and (save in
the case of compulsory acquisition or requisition for title or use)
obtain her release within 14 days;
(c) pay and discharge when due all dues, taxes, assessments,
governmental charges, fines and penalties lawfully imposed on or in
respect of the Vessel or the Borrower; and
(d) pay and discharge all other obligations and liabilities whatsoever
in respect of the Vessel, the Earnings, the Obligatory Insurances
and any Charter.
17.24 RELATED CONTRACTS
The Borrower shall not take any action, enter into any document or
agreement or omit to take any action or to enter into any document or
agreement which would, or could reasonably be expected to, cause any
Related Contract to cease to remain in full force and effect and shall use
all reasonable endeavours to procure that each other party to any Related
Contract does not take any action, enter into any document or agreement or
omit to take any action or to enter into any document or agreement which
would, or could reasonably be expected to, cause any Related Contract to
cease to remain in full force and effect.
17.25 ENVIRONMENT
The Borrower shall at all times after the Delivery Date:
(a) comply with all applicable Environmental Laws including, without
limitation, requirements relating to the establishment of financial
responsibility (and shall require that all Environmental Affiliates
of the Borrower comply with all applicable Environmental Laws and
obtain and comply with all required Environmental Approvals, which
Environmental Laws and Environmental Approvals relate to any of the
Vessel or her operation or her carriage of cargo); and
(b) promptly upon the occurrence of any of the following events, provide
to the Agent a certificate of an officer of the Borrower or of the
Borrower's agents specifying in detail the nature of the event
concerned:
(i) the receipt by the Borrower or any Environmental Affiliate
(where the Borrower has knowledge of the receipt) of any
Environmental Claim; or
(ii) any (or any potential) Release of Materials of Environmental
Concern.
50
17.26 INFORMATION REGARDING THE VESSEL
The Borrower will at all times after the Delivery Date:
(a) promptly notify the Agent of the occurrence of any accident,
casualty or other event which has caused or resulted in or may cause
or result in the Vessel being or becoming a Total Loss;
(b) promptly notify the Agent of any requirement or recommendation made
by any Insurer or classification society or by any competent
authority which is not complied with in a timely manner;
(c) promptly notify the Agent of any intended dry docking of the Vessel;
(d) promptly notify the Agent of any Environmental Claim being made in
connection with the Vessel or its operation;
(e) promptly notify the Agent of any claim for breach of the ISM Code
being made in connection with the Vessel or its operation;
(f) give to the Agent from time to time on request such information as
the Agent may require regarding the Vessel, her employment, position
and engagements;
(g) provide the Agent on request with copies of the classification
certificate of the Vessel and of all periodic damage or survey
reports on the Vessel;
(h) promptly furnish the Agent with full information of any casualty or
other accident or damage to the Vessel involving an amount in excess
of euro 2,500,000 (or equivalent);
(i) give to the Agent and its duly authorised representatives reasonable
access to the Vessel for the purpose of conducting on board
inspections and/or surveys of the Vessel and pay the reasonable
expenses incurred by the Agent in connection with the inspections
and/or surveys provided that, unless a Default has occurred and is
continuing, such inspections and/or surveys shall not take place at
the expense of the Borrower other than at dry docking and the Agent
shall co-operate with the Borrower in respect of the timing for and
the place where such surveys take place in order to minimise
disruption to the activities of the Vessel; and
(j) if the Agent reasonably believes an Event of Default may have
occurred, furnish to the Agent from time to time upon reasonable
request certified copies of the ship's log in respect of the Vessel.
17.27 PROVISION OF FURTHER INFORMATION
The Borrower will, as soon as practicable following receipt of a request
by the Agent, provide the Agent with any additional or further financial
or other information relating to the Borrower, the Vessel, the Earnings,
the Obligatory Insurances, any Charter or to any other matter relevant to,
or to any provision of, a Finance Document.
17.28 MANAGEMENT
(a) The Borrower will ensure that at all times after the Delivery Date the
Vessel is managed by:
51
(i) the Borrower on terms approved by the Agent; or
(ii) a substitute Manager, pursuant to a Vessel Management Contract and
subject to provision of the Vessel Management Assignment.
(b) The Borrower will not terminate, amend or agree to any amendment to a
Vessel Management Contract, and will procure that a Manager does not
terminate, amend or agree to any amendment to a Technical Management
Agreement, without the prior written consent of the Agent (acting on the
instructions of the Majority Banks).
(c) The Borrower agrees that the Agent (acting on the instructions of the
Majority Banks) shall be entitled to require the Borrower to terminate any
existing Vessel Management Contract and/or procure that a Manager
terminates any existing Technical Management Agreement and to enter into a
replacement Vessel Management Contract with a replacement Manager and/or
procure that a Manager enters into a replacement Technical Management
Agreement with a replacement Technical Manager, in each case selected or
approved by the Agent (acting on the instructions of the Majority Banks)
in the event of:
(i) any of the circumstances set out in Clause 3(d) (Duty to maintain)
of the Time Charter arising;
(ii) an occurrence which has a Material Adverse Effect in relation to the
Borrower or the Guarantor; or
(iii) the occurrence of an Event of Default.
For the purposes of this paragraph (c), the Majority Banks agree that
Naviera X. Xxxxxx S.A is pre-approved as replacement Manager unless and to
the extent that it is the Manager under the existing Vessel Management
Contract which the Agent requires the Borrower to terminate.
(d) The Borrower shall not sub-contract its responsibilities for the
maintenance and/or operation of the Vessel and shall procure that no other
Manager shall subcontract its responsibilities under a Vessel Management
Contract (other than to a Technical Manager under a Technical Management
Agreement) unless:
(i) the Agent (acting on the instructions of the Majority Banks and
taking into account the economics of the Time Charter and the
duration of successful operation of the Vessel by the Manager) gives
its prior written consent to such subcontracting; and
(ii) the Borrower or, as the case may be, the existing Manager remains
solely responsible for its obligations in connection with the
maintenance and/or operation of the Vessel (in the case of the
Borrower) or under the existing Vessel Management Contract (in the
case of the existing Manager).
(e) In the event of the termination for any reason or the expiration or an
event of default (howsoever described) of or under either or both of a
Vessel Management Contract or a Technical Management Agreement, the
Borrower will enter into an agreement to replace such agreement with a
counterparty approved by the Agent (acting on the instructions of the
Majority Banks) and in a form and content approved by the Agent (acting on
the instructions of the Majority Banks) within thirty days of such
termination or event of default and will procure that the replacement
Manager enters into an agreement to replace a Technical Manager with a
counterparty approved by the Agent (acting on the instructions of the
52
Majority Banks) and in a form and content approved by the Agent (acting on
the instructions of the Majority Banks) within such thirty day period. In
the event the Borrower does not enter into any such replacement agreement
within such thirty day period, the Agent (acting on the instructions of
the Majority Banks) shall be entitled, but not obliged, to enter into any
such replacement agreement on the Borrower's behalf.
17.29 PROCEEDS FROM SALE OR TOTAL LOSS OF THE VESSEL
(a) The Borrower will ensure that the proceeds from the sale or Total Loss of
the Vessel are immediately upon receipt by the Borrower applied in
prepayment of the Loan in accordance with Clause 7 (Prepayment and
cancellation).
(b) The Finance Parties agree that the Agent shall release the Vessel from the
Mortgage and the Swap Bank Mortgage if the Agent is reasonably satisfied
that the proceeds of sale of the Vessel are immediately to be applied in
accordance with paragraph (a) above and that such proceeds will be
sufficient to discharge all of the Borrower's payment obligations under
this Agreement.
17.30 CHARTERS
(a) The Borrower will not let the Vessel:
(i) on demise charter for any period;
(ii) on any time or consecutive voyage charter for a term which exceeds
or which could by virtue of any optional extensions exceed 12
months' duration (unless the Borrower provides evidence to the
satisfaction of the Majority Banks that it will be able to meet all
its payment obligations under the Finance Documents during that
term);
(iii) on terms whereby more than six months' hire is payable in advance;
or
(iv) otherwise than on arm's-length terms,
in each case without the consent of the Agent (acting on the instructions
of the Majority Banks). For the avoidance of any doubt, this Clause
17.30(a) shall not apply to the Time Charter or in respect of any joint
service agreements or pooling arrangements which may (with the consent of
the Majority Banks, such consent not to be unreasonably withheld or
delayed) be entered into by the Borrower in respect of the Vessel.
(b) Notwithstanding anything contained in this Clause 17.30:
(i) the Borrower shall remain liable under any Charter to perform all
the obligations assumed by it under that Charter;
(ii) the Finance Parties shall not be under any obligations or liability
under any Charter or liable to make any payment under that Charter;
and
(iii) the Finance Parties shall not be obliged to enforce against any
charterer or shipper any term of any Charter, or to make any
enquiries as to the nature or sufficiency of any payment received by
a Finance Party.
53
(c) The Borrower will not agree to any amendment or supplement to, or waive or
fail to enforce any right under, any Charter or any of its provisions
without the prior written consent of the Agent (acting on the instructions
of the Majority Banks).
17.31 LEFT INTENTIONALLY BLANK
17.32 EARNINGS ACCOUNT
The Borrower:
(i) prior to or on the Delivery Date will open, deposit euro 1 in and
thereafter maintain an Earnings Account with JPMorgan Chase Bank,
N.A. for the purpose of receiving the Earnings of the Vessel;
(ii) will procure that any and all Earnings of the Vessel are paid
directly into the Earnings Account or as the Agent may from time to
time direct;
(iii) upon the occurrence of an Event of Default, gives to the Agent
authority to withdraw amounts from the Earnings Account for
application from time to time in or towards the outstanding amounts
under the Finance Documents in accordance with the terms of the
Finance Documents;
(v) at any time and from time to time upon the written request of the
Agent, will execute and deliver any and all such further instruments
and documents as the Agent may reasonably require for the purpose of
obtaining the full benefit of the assignment of the Earnings and the
Earnings Account to be effected by the Earnings Account Assignment
and of the rights and powers granted under the Earnings Account
Assignment; and
(vi) subject to (iii) above, will otherwise be entitled to freely dispose
of the amounts standing to the credit of the Earnings Account.
17.33 SHARING OF EARNINGS
The Borrower shall not:
(a) enter into any agreement or arrangement for the sharing of any
Earnings;
(b) enter into any agreement or arrangement for the postponement of any
date on which Earnings are due; the reduction of the amount of any
Earnings or otherwise for the release or adverse alteration of any
right of the Borrower to the Earnings; or
(c) enter into any agreement or arrangement for the release of, or
adverse alteration to, any guarantee or Security Interest relating
to any Earnings.
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17.34 LEFT DELIBERATELY BLANK
17.35 DISBURSEMENT ACCOUNT
The Borrower:
(a) prior to or on the date of this Agreement will open, deposit euro 1
therein and thereafter maintain a Disbursement Account with JPMorgan
Chase Bank, N.A. for the purpose of crediting to it proceeds of
Tranches pursuant to the terms and conditions of this Agreement;
(b) will procure that either the Guarantor, the Shareholder or any
Affiliate of the Borrower will, at least 5 Business Days before the
due date for the relevant Instalment, deposit in the Disbursement
Account an amount equal to:
(i) in the case of the instalment referred to in Clause 6.2(c) of
the Memorandum of Agreement, euro 2,333,333;
(ii) in the case of the instalment referred to in Clause 6.2(d) of
the Memorandum of Agreement, euro 2,333,333; and
(iii) in the case of the instalment referred to in Clause 6.2(e) of
the Memorandum of Agreement, euro 2,333,334; and
(c) will be permitted, subject to the Loan having been drawn down
during the Commitment Period and all payments made to the
Disbursement Account pursuant to Clause 17.35(b), to close the
Disbursement Account.
17.36 LEFT DELIBERATELY BLANK
17.37 SCOPE OF OBLIGATORY INSURANCES
The Borrower will:
(a) at all times up to and including the Delivery Date maintain in full
force and effect Permissible Delays Insurances in an amount equal to
at least euro 102,500 per day and procure that the Agent's name is
endorsed on the policies relating to any such insurance as
additional insured and loss payee;
(b) at all times after the Delivery Date keep the Vessel insured in the
Required Amount, in euros or another approved currency (as approved
by the Majority Banks) in the name of the Borrower or (if the Agent
so requires) in the joint names of the Borrower and the Agent,
without the Agent being liable but having the right to pay premiums,
through brokers approved by the Agent against fire and usual marine
risks (including hull and machinery and Excess Risks) with approved
underwriters or insurance companies approved by the Agent and by
policies in form and content approved by the Agent;
55
(c) at all times after the Delivery Date keep the Vessel insured in the
Required Amount in the same manner as above against war risks
(including risks of mines and all risks, whether or not regarded as
war risks, London Blocking and Trapping Addendum and Lost Vessel
Clause, excepted by the free of capture and seizure clauses in the
standard form of Lloyds marine policy) either:
(i) with underwriters or insurance companies approved by the Agent
and by policies in form and content approved by the Agent; or
(ii) by entering the Vessel in an approved war risks association,
and for the avoidance of doubt, such war risks insurance will
include protection and indemnity liability up to at least the
Required Amount, excluding any liability in respect of death, injury
or damage to crew
(d) at all times after the Delivery Date keep the Vessel entered in
respect of her full value and tonnage in an approved protection and
indemnity association against all risks as are normally covered by
such protection and indemnity association (including pollution risks
and the proportion not recoverable in case of collision under the
running down clause inserted in the ordinary Lloyds policies), such
cover for pollution risks to be for:
(i) a minimum amount of US$1,000,000,000 or such other amount of
cover against pollution risks as shall at any time be
comprised in the basic entry of the Vessel with either a
protection and indemnity association which is an acceptable
member of either the "International Group" of protection and
indemnity associations (or any successor organisation
designated by the Agent for this purpose) or the International
Group (or such successor organisation) itself; or
(ii) if the International Group or any such successor ceases to
exist or ceases to provide or arrange any cover for pollution
risks (or any supplemental cover for pollution risks over and
above that afforded by the basic entry of the Vessel with its
protection and indemnity association), such aggregate amount
of cover against pollution risks as shall be available on the
open market and by basic entry with a protection and indemnity
association for ships of the same type, size, age and flag as
the Vessel,
provided that, if the Vessel has ceased trading or is in lay up and
in either case has unloaded all cargo, the level of pollution risks
cover afforded by ordinary protection and indemnity cover available
through a member of the International Group or such successor
organisation or, as the case may be, on the open market in such
circumstances shall be sufficient for such purposes;
(e) at all times after the Delivery Date maintain in full force and
effect off-hire insurance in respect of the Vessel with underwriters
or insurance companies approved by the Agent and by policies in form
and content approved by the Agent and, at a minimum, insuring for
off-hire periods of between 60 and 300 days per incident. The
Borrower undertakes to procure (in consultation with the Arranger) a
cover level of 130 per cent. of hire payable under the then current
Charter; and
(f) at all times after the Delivery Date, whenever the Vessel is engaged
in trade connected with Japan and when so required by the Banks,
maintain in full force and
56
effect social responsibility insurance in respect of the Vessel with
underwriters or insurance companies approved by the Agent and by
policies in form and content approved by the Agent.
17.38 MORTGAGEE'S INTEREST AND ADDITIONAL PERILS INSURANCES
The Agent shall if so authorised by the Majority Banks be entitled from
time to time to effect, maintain and renew all or any of the following
insurances in such amounts, on such terms, through such insurers and
generally in such manner as the Majority Banks may from time to time
consider appropriate (such insurances not to be placed by the Borrower or
its brokers (in their capacity as brokers to the Borrower)):
(a) a mortgagee's interest marine insurance providing for the
indemnification of the Finance Parties for any losses under or in
connection with any Finance Document which directly or indirectly
result from loss of or damage to the Vessel or a liability of the
Vessel or the Borrower, being a loss or damage which is prima facie
covered by an Obligatory Insurance but in respect of which there is
a non-payment (or reduced payment) by the underwriters by reason of,
or on the basis of any allegation concerning:
(i) any act or omission on the part of the Borrower, of any
operator, Charterer, Manager or sub-manager of the Vessel or
of any officer, employee or agent of the Borrower or of any
such person, including any breach of warranty or condition or
any non-disclosure relating to such Obligatory Insurance;
(ii) any act or omission, whether deliberate, negligent or
accidental, or any knowledge or privity of the Borrower any
other person referred to in paragraph (i) above, or of any
officer, employee or agent of the Borrower or of such a
person, including the casting away or damaging of the Vessel
and/or the Vessel being unseaworthy; and/or
(iii) any other matter capable of being insured against under a
mortgagee's interest marine insurance policy whether or not
similar to the foregoing;
(b) where the Vessel is trading into the waters of the United States of
America or any other jurisdiction which in the future introduces
unlimited liability regimes, a mortgagee's interest additional
perils policy providing for the indemnification of the Agent
against, amongst other things, any possible losses or other
consequences of any Environmental Claim, including the risk of
expropriation, arrest or any form of detention of the Vessel, or the
imposition of any Security Interest over the Vessel and/or any other
matter capable of being insured against under a mortgagee's interest
additional perils (pollution) policy whether or not similar to the
foregoing;
(c) charter indemnity insurance,
and the Borrower shall upon demand fully indemnify the Agent in respect of
all premiums which are incurred in connection with or with a view to
effecting, maintaining or renewing any such insurance or dealing with, or
considering, any matter arising out of any such insurance.
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17.39 OBLIGATORY INSURANCES
Without prejudice to its obligations under Clause 17.37 (Scope of
Obligatory Insurances), the Borrower will:
(a) not without the prior consent of the Agent alter any Obligatory
Insurance nor make, do, consent or agree to any act or omission
which would or might render any Obligatory Insurance invalid, void,
voidable or unenforceable or render any sum paid out under any
Obligatory Insurance repayable in whole or in part;
(b) not cause or permit the Vessel to be operated in any way
inconsistent with the provisions or warranties of, or implied in, or
outside the cover provided by, any Obligatory Insurance or to be
engaged in any voyage or to carry any cargo not permitted by the
Obligatory Insurance without first covering the Vessel in the
Required Amount and her freights for an amount approved by the Agent
in euros or another approved currency with approved insurers;
(c) duly and punctually pay all premiums, calls, contributions or other
sums of money from time to time payable in respect of any Obligatory
Insurance;
(d) renew all Obligatory Insurances at least 14 days before the relevant
policies or contracts expire and procure that the approved brokers
and/or war risks and protection and indemnity clubs and associations
shall promptly confirm in writing to the Agent as and when each
renewal is effected;
(e) forthwith upon the effecting of any Obligatory Insurance, give
written notice of the insurance to the Agent stating the full
particulars (including the dates and amounts) of the insurance, and
on request produce the receipts for each sum paid by it pursuant to
paragraph (c) above;
(f) not settle, compromise or abandon any claim in respect of any Total
Loss unless the Agent is satisfied that such release, compromise or
abandonment will not prejudice any of the Banks' interests under or
in relation to any Finance Document;
(g) arrange for the execution and delivery of such guarantees as may
from time to time be required by any protection and indemnity or war
risks club or association;
(h) procure that the interest of the Agent and the Banks is noted on all
policies of insurance;
(i) procure that a loss payee provision in the form scheduled to the
Insurances Assignment and reflecting the provisions of Clause 17.40
(Application of Insurance Proceeds) is endorsed on all policies of
insurance;
(j) obtain from the relevant insurance brokers P&I Club letters and
undertakings in the forms scheduled to the General Assignment; and
(k) in the event that the Borrower receives payment of any moneys under
the General Assignment, save as provided in the loss payable clauses
scheduled to the General Assignment, forthwith pay over the same to
the Agent and until paid over such moneys shall be held in trust for
the Agent by the Borrower.
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17.40 APPLICATION OF INSURANCE PROCEEDS
(a) All sums receivable in respect of the Obligatory Insurances after the
occurrence of an Event of Default shall be paid to the Agent and the Agent
shall, unless otherwise instructed by the Majority Banks, apply them in
accordance with Clause 10.7 (Payments).
(b) Subject to paragraph (a) above:
(i) each sum receivable in respect of a major casualty (being any
casualty in respect of which the claim or the aggregate of the
claims exceeds euro 2,500,000 (or its equivalent)), other than in
respect of protection and indemnity risk insurances, shall be paid
to the Agent; and
(ii) the insurance moneys received by the Agent in respect of any such
major casualty shall be paid:
(A) to the person to whom the relevant liability shall have been
incurred; or
(B) upon the Borrower furnishing evidence satisfactory to the
Agent that all loss and damage resulting from the casualty has
been properly made good and repaired, to the Borrower or, at
the option of the Agent, to the person by whom any repairs
have been or are to be effected.
The receipt of any such person shall be a full and sufficient discharge of
the same to the Agent.
(c) Subject to paragraph (a) above, each sum receivable in respect of the
Obligatory Insurances (insofar as the same are hull and machinery or war
risks insurances) which does not exceed E2,500,000 or its equivalent
shall be paid in full to the Borrower or to its order and shall be applied
by it for the purpose of making good the loss and fully repairing all
damage in respect of which the receivable shall have been collected.
(d) Subject to paragraph (a) above, each sum receivable in respect of the
Permissible Delays Insurances shall be paid to the Borrower and shall be
applied by it in satisfaction of its obligation to pay liquidated damages
for delay to the Time Charterer under the Time Charter. In the event that
the sum received in respect of the Permissible Delays Insurances is
greater than the amount which the Borrower is required to pay to the Time
Charterer in settlement of its obligation to pay liquidated damages for
delay under the Time Charter, the Borrower shall pay the surplus into the
Earnings Account immediately following the payment to the Time Charterer.
(e) Subject to paragraph (a) above, each sum receivable in respect of
protection and indemnity risk Obligatory Insurances shall be paid direct
to the person to whom the liability, to which that sum relates, was
incurred, or to the Borrower in reimbursement to it of moneys expended in
satisfaction of such liability.
(f) Notwithstanding any other provision in this Clause 17.40, all sums
receivable in respect of Obligatory Insurances relating to a Total Loss
shall be applied in accordance with Clause 17.29(a) (Proceeds from sale or
Total Loss of the Vessel).
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17.41 POWER OF AGENT TO INSURE
If the Borrower fails to effect and keep in force Obligatory Insurances in
accordance with this Agreement, it shall be permissible, but not
obligatory, for the Agent to effect and keep in force insurance or
insurances in the amounts required under this Agreement and entries in a
protection and indemnity association or club and, if it deems necessary or
expedient to it, to insure the war risks upon the Vessel, and the Borrower
will reimburse the Agent for the costs of so doing.
17.42 ISM CODE
The Borrower shall:
(a) at all times after the Delivery Date comply, and be responsible for
compliance by itself and by the Vessel, with the ISM Code;
(b) at all times after the Delivery Date ensure that:
(i) the Vessel has a valid Safety Management Certificate;
(ii) the Vessel is subject to a safety management system which
complies with the ISM Code; and
(iii) it, or the Manager from time to time, has a valid Document of
Compliance for the Vessel, which it holds on board the Vessel,
and shall deliver to the Agent, on or before the Delivery Date, a
copy for each Bank of a valid Safety Management Certificate and a
valid Document of Compliance in respect of the Vessel, in each case
duly certified by an officer of the Borrower or of the Manager from
time to time;
(c) promptly notify the Agent of any actual or, upon becoming aware of
the same, threatened withdrawal of an applicable Safety Management
Certificate or Document of Compliance;
(d) promptly notify the Agent of the identity of the person ashore
designated for the purposes of paragraph 4 of the ISM Code and of
any change in the identity of that person; and
(e) promptly upon becoming aware of the same notify the Agent of the
occurrence of any accident or major non-conformity requiring action
under the ISM Code.
17.43 NO AMENDMENT TO RELATED CONTRACTS
(a) The Borrower shall not amend or agree to any amendment to the Related
Contracts without the prior written consent of:
(i) in respect of the Obligatory Insurances, the Agent;
(ii) whilst and for so long as Stage One is in effect, in respect of any
material amendment to any of the Stage One Documents or, as the case
may be, after Stage Two has been implemented, any of the Stage Two
Documents (including, without limitation, any amendment to any of
the Stage One Documents or, as the case may be, any of the
60
Stage Two Documents which has the effect of extending the date of
delivery of the Vessel under the Shipbuilding Contract beyond two
hundred and thirty (230) days after the Expected Delivery Date), the
Agent (acting on the instructions of all of the Banks);
(iii) at any time whilst Stage Two is not in effect, in respect of any
amendment to any of the Stage Two Documents from the form of those
documents as annexed to the Memorandum of Agreement, the Agent
(acting on the instruction of all of the Banks); and
(iv) in respect of any Related Contracts (other than those referred to in
sub-paragraphs (i) and (ii) above), the Agent (acting on the
instructions of the Majority Banks).
(b) In the event the date of delivery of the Vessel is delayed for two hundred
and thirty (230) days beyond the Expected Delivery Date, the Borrower
shall, if required in writing to do so by the Agent exercise, or procure
the exercise of the right of rescission of the Shipbuilding Contract
pursuant to Articles VIII.4 and IX BIS thereof.
17.44 STAGE TWO DOCUMENTS
(a) If the Builder proposes Stage Two Documents which contain changes or
amendments from the form of the Stage Two Documents annexed to the
Memorandum of Agreement, the Borrower shall:
(i) not approve the changes and amendments to those Stage Two Documents
without the prior written consent of the Agent (acting on the
instructions of all of the Banks);
(ii) exercise (or refrain from exercising) its right to object to the
changes or amendments to those Stage Two Documents under the terms
of Clause 3.2 of the Memorandum of Agreement only in accordance with
the directions of the Agent (acting on the instructions of the
Majority Banks); and
(iii) not enter the Stage Two Documents unless and until the Agent has
confirmed that all of the conditions precedent set out in Schedule 2
Part II have been satisfied in full.
(b) whilst and for so long as Stage Two is in effect, if the Borrower receives
title to the Vessel (whether by exercise of the purchase option or the put
option in Clauses 31 and 30 respectively of the Bareboat Charter or
otherwise), the Borrower shall simultaneously with taking title, execute
in favour of the Agent a mortgage of the Vessel in the form of Appendix A,
Part I.
17.45 PRE-APPROVAL OF MORTGAGE AND SWAP BANK MORTGAGE
In the event the Registrar of Ships in the Canary Islands requires any
amendment to be made to the form of Mortgage set out in Appendix A or to
the form of Swap Bank Mortgage set out in Appendix B for the purpose of
pre-approval of the same, the Borrower authorises the Agent to agree such
amendments as are required to obtain such pre-approval.
17.46 UNDERTAKINGS IN RELATION TO THE SWAP AGREEMENT
(a) Undertakings relating to Swap Debt:
61
(i) So long as any amount under this Agreement is or may become
outstanding, no Swap Bank will (except as the Agent (acting on the
instructions of all Banks) has previously agreed in writing):
(A) demand (except to terminate or close out any swap transaction
as permitted under paragraph (B) below) or receive payment,
prepayment or repayment of, and the Borrower will not pay or
make any distribution in respect of, or on account of, any of
the Swap Debt in cash or in kind, or apply any money or
property in or towards the payment or discharge of any Swap
Debt except:
(x) for scheduled payments arising under the original terms
of the Swap Agreement or the terms of the Swap Agreement
as amended in accordance with the terms of this
Agreement; and/or
(y) for the proceeds of enforcement of the Security
Documents received and applied accordance with Clause
10.7 of this Agreement;
(B) exercise any right to terminate or close out any swap
transaction under the Swap Agreement prior to its originally
stated maturity or the terms of the Swap Agreement as amended
in accordance with the terms of this Agreement unless any
action has been taken by the Agent under Clause 19.20
(Acceleration); or
(C) discharge by set-off, any right of combination of accounts or
otherwise any of the Swap Debt except to the extent such Swap
Debt is permitted to be paid under paragraph (A) above; or
(D) take any steps to enforce its rights under the Swap Bank
Mortgage;
(ii) subject to sub-paragraph (iii) below, so long as any amount under
this Agreement is or may become outstanding, no Swap Bank may agree
any amendment to the Swap Agreement to which it is a party without
the prior written consent of all of the other Swap Banks;
(iii) so long as any amount under this Agreement is or may become
outstanding, if XX Xxxxxx Xxxxx Bank, N.A. (in its capacity as a
Swap Bank) agrees any amendment to the Swap Agreement to which it is
a party, and such amendment(s) result from a Tranche being drawn
down or the Vessel being delivered on a date other than the relevant
expected date, each other Swap Bank hereby undertakes to amend the
Swap Agreement to which it is a party on the same terms; and
(iv) so long as any amount under this Agreement is or may become
outstanding, the Borrower will not (except as the Agent (acting on
the instructions of the Majority Banks) has previously agreed in
writing) create or permit to subsist any Security Interest over any
of its assets or give any financial support to any person for, in
respect of or in connection with, any of the Swap Debt other than
under the original terms of the Swap Agreements or the Security
Documents.
(b) Two Way Payments:
The Borrower and the Swap Banks agree that:
62
(i) each Swap Agreement will provide for "two way payments" or payments
under the "Second Method" in the event of a termination of a swap
transaction whether upon a Termination Event or an Event of Default
(in each case as defined in the Swap Agreement);
(ii) on or following the occurrence of an enforcement of an Event of
Default if an amount falls due from any Swap Bank to the Borrower,
that amount shall be paid by the relevant Swap Bank to the Agent for
application in accordance with Clause 10.7 of this Agreement; and
(iii) promptly upon the taking by the Agent of any action under Clause
19.20 (Acceleration), if instructed to do so by the Agent (acting on
the instructions of the Majority Banks), the Swap Banks will
exercise any rights they may have to terminate the swap transactions
under the Swap Agreements.
(c) Swap Agreement:
The Swap Banks will provide to the Agent copies of all agreements and
documents constituting or evidencing any swap facilities provided to the
Borrower.
17.47 TIME CHARTER
The Borrower may not exercise any termination rights under the Time
Charter without the prior written consent of the Agent (acting on the
instruction of all of the Banks).
18. VALUATION
18.1 VALUATION
For the purposes of this Clause 18:
(a) the value of the Vessel shall be the mean average of two valuations
each certified in euro and carried out by two of the Approved
Valuers, one selected by the Agent and one selected by the Borrower
(or by the Agent if the Borrower does not make a selection within
five (5) Business Days of being requested to do so by the Agent) and
both reporting to the Agent on the basis of sale for prompt delivery
of the Vessel for cash (free of Security Interests) at arm's-length
on normal commercial terms as between willing seller and buyer;
(b) any valuation shall be on a without Charter basis; and
(c) there shall be deducted from any value or valuation the amount which
is owing and might become owing and which is secured on the asset
concerned by any prior or equal ranking Security Interest (other
than in favour of the Finance Parties to secure the Secured
Liabilities).
18.2 DELIVERY OF VALUATIONS
(a) The Borrower will from the Delivery Date procure one valuation of the
Vessel per annum from two of the Approved Valuers prepared in accordance
with Clause 18.1 (Valuation).
(b) The Borrower will procure in favour of the Agent on behalf of the Finance
Parties and the Approved Valuers all such information, facilities and
rights of inspection as they may
63
reasonably (having regard to the use and operation of the Vessel under
charter) require in order to effect such valuations.
(c) All valuations shall be at the expense of the Borrower.
(d) If an Event of Default has occurred and is continuing, the Borrower shall
be liable to pay for up to five valuations of the Vessel (one from each of
the Approved Valuers) under Clause 18.2(a) in any one calendar year.
(e) Any valuation under this Clause 18 shall be binding and conclusive as
regards the Borrower.
19. DEFAULT
19.1 EVENTS OF DEFAULT
Each of the events set out in Clauses 19.2 (Non-Payment) to 19.18
(Litigation) (inclusive) is an Event of Default (whether or not caused by
any reason whatsoever outside the control of the Borrower or any other
person).
19.2 NON-PAYMENT
The Borrower does not pay on the due date any amount of principal or
interest payable by it under the Finance Documents or any payment due
under Section 2 of any Swap Agreement at the place at and in the currency
in which it is expressed to be payable, or (where no grace period is
specified in this Agreement) any other amount payable by it under the
Finance Document is not paid within two Business Days of the due date (in
the case of an amount due on demand, the due date is the date of the
demand) at the place and in the currency in which it is expressed to be
payable.
19.3 BREACH OF SPECIFIC OBLIGATIONS
The Borrower does not comply with any of its obligations under Clause 17.37
(Scope of Obligatory Insurances) or Clause 17.39 (Obligatory Insurances).
19.4 BREACH OF OTHER OBLIGATIONS
The Borrower or the Guarantor does not comply with any provision of the
Finance Documents (other than those referred to in Clause 19.2
(Non-Payment) or Clause 19.3 (Breach of specific obligations)) and that
failure to comply is, if capable of remedy within 15 days, not remedied
within 15 days of the earlier of:
(a) the Agent notifying the Borrower or the Guarantor of that failure;
and
(b) the Borrower or the Guarantor becoming aware of the same;
or, if the default is capable of remedy but not within the said period of
15 days, in the opinion of the Agent, the Borrower or, as the case may be,
the Guarantor, fails within the said period of 15 days to exercise due
diligence in taking steps to remedy the default in question at the
earliest practicable opportunity.
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19.5 MISREPRESENTATION
(a) A representation, warranty or statement made or repeated in or in
connection with any Finance Document or in any document delivered by or on
behalf of the Borrower or the Guarantor under or in connection with any
Finance Document is incorrect in any material respect when made or deemed
to be made or repeated.
(b) If the failure or omission giving rise to the misrepresentation under
paragraph (a) above is capable of remedy, that failure or omission is not
remedied within 14 days of the earlier of:
(i) the Agent notifying the Borrower or the Guarantor of the failure or
omission; and
(ii) the Borrower or the Guarantor becoming aware of the same.
19.6 REGISTRATION OF MORTGAGE AND SWAP BANK MORTGAGE
The Mortgage and the Swap Bank Mortgage are not approved by the Registrar
of Ships in the Canary Islands and fully and effectively registered in
accordance with the laws of Spain within sixty (60) days of the Delivery
Date.
19.7 CROSS-DEFAULT
(a) Any Financial Indebtedness of the Borrower or the Guarantor is not paid
when due (or within any applicable grace period) or if it falls within
Clause 17.14(c) (Limitation on Financial Indebtedness), is not being
disputed in accordance with Clause 17.14(c) (Limitation on Financial
Indebtedness);
(b) an event of default howsoever described occurs under any document relating
to any Financial Indebtedness of the Borrower or the Guarantor;
(c) any guarantee of Financial Indebtedness given by the Borrower or the
Guarantor is not honoured when due and called upon or within five Business
Days thereafter;
(d) any Security Interest securing Financial Indebtedness over any asset of
the Borrower or the Guarantor is enforced;
(e) any breach or default under any Swap Agreement or any Swap Agreement is
terminated for any reason;
(f) the Borrower or the Guarantor is in default or breach under any of the
Related Contracts (other than a default or breach of the Sales Contract
whilst and for so long as Stage One is in effect or the Master Agreement
whilst and for so long as Stage Two is in effect or the Time Charter which
arises solely as a result of a suspension of advances pursuant to Clause
12.3 (Suspension of drawdowns)) or any of the Related Contracts is
otherwise terminated or ceases to be in full force and effect (unless such
termination or cessation is contemplated as part of the implementation of
Stage Two and the provisions of Clause 17.45 (Stage Two Documents) are
complied with) or becomes illegal or unenforceable, and in the case of a
Technical Management Agreement or a Vessel Management Contract, is not
replaced in accordance with the provisions of Clause 17.28(e)
(Management); or
(g) the Guarantor or any Affiliate of the Guarantor is in default (howsoever
described) or breach of any material liability or obligation under any:
65
(i) Charter or other contract for the employment of; and/or
(ii) agreement relating to any Financial Indebtedness in relation to,
a vessel under the management of the Guarantor or any Affiliate of the
Guarantor, and for the avoidance of doubt if any material litigation has
been commenced against the Guarantor or any Affiliate of the Guarantor
under any such agreement and in the opinion of the Agent such material
litigation is reasonably likely to have a Material Adverse Effect if
adversely determined against the Guarantor or the relevant Affiliate, this
shall amount to a breach or default under such agreement; or
(h) the Borrower enters into the Stage Two Documents in circumstances where
the provisions of Clause 17.45 (Stage Two Documents) have not been fully
complied with and/or the conditions precedent set out in Schedule 2 Part
II have not been satisfied in full.
19.8 INSOLVENCY
(a) The Borrower or the Guarantor is, or is deemed for the purposes of any law
to be, unable to pay its debts as they fall due or to be insolvent, or
admits inability to pay its debts as they fall due;
(b) the Borrower or the Guarantor makes a general assignment for the benefit
of its creditors; or
(c) the Borrower or the Guarantor, other than by reason of a voluntary
restructuring approved in advance by the Agent (acting on the instructions
of the Majority Banks), begins negotiations with one or more of its
creditors for readjustment or rescheduling of any of its Financial
Indebtedness.
19.9 INSOLVENCY PROCEEDINGS
(a) The Borrower or the Guarantor applies for the declaration of insolvency
("concurso") or consents to the appointment of a receiver, administrator,
trustee, liquidator or similar officer of itself or of all or a material
part of its assets, or if a third party applies for the insolvency of the
Borrower or the Guarantor.
(b) Any petition, application, proposal or order is made or resolution passed
or proposed for the liquidation, administration, winding-up, insolvency or
dissolution of the Borrower or the Guarantor or for a moratorium on any of
its debts.
19.10 APPOINTMENT OF RECEIVERS AND MANAGERS
(a) Any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the like is
appointed in respect of the Borrower or the Guarantor or any substantial
part of its assets; or
(b) any other steps are taken to enforce any Security Interest over any
substantial part of the assets of the Borrower or the Guarantor which
steps are not discontinued within 30 days or, if not so discontinued, the
Agent is satisfied and continues to be satisfied that the claim is being
adequately contested and pursued with due diligence.
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19.11 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affects any asset of
the Borrower or the Guarantor and is not discharged within 14 days of the
same being so levied or sued out.
19.12 ANALOGOUS PROCEEDINGS
There occurs, in relation to the Borrower or the Guarantor any event
analogous to or having a substantially similar effect to any of the events
specified in Clauses 19.8 to 19.11 inclusive under the laws of any
applicable jurisdiction.
19.13 CESSATION OF BUSINESS
The Borrower or the Guarantor ceases to carry on all or a substantial part
of its business.
19.14 CHANGE OF CONTROL
Any single person, or group of persons acting in concert, acquires direct
or indirect control of the Borrower or the Guarantor. For the purposes of
this Clause 19.14 "control" means ownership of more than fifty per cent.
of the voting share capital of the Borrower or the Guarantor or such
direct or indirect ownership so as to be able to direct its policies or
management by contract.
19.15 UNLAWFULNESS
It is or becomes unlawful for:
(a) the Borrower or the Guarantor to perform any of the material terms
of the Finance Documents; or
(b) a Finance Party to exercise any material right or power vested in it
under any Finance Document.
19.16 MATERIAL ADVERSE CHANGE
Any event or series of events occurs after the date of this Agreement
which could reasonably be expected to have a Material Adverse Effect
unless that event or series of events is remediable and is remedied within
14 days of its occurrence provided that, without prejudice to any action
already taken by the Finance Parties in accordance with this Agreement,
the Event of Default shall cease if, during that 14 days' period, the
event or series of events ceases to have or ceases to be reasonably likely
to have a Material Adverse Effect.
19.17 IMPERILMENT
Any circumstances occur or are threatened in relation to the state of the
flag of the Vessel or the jurisdiction or incorporation of the Borrower or
the Guarantor which would reasonably be expected to imperil the interests
of the Finance Parties under any Finance Document unless other
arrangements satisfactory to the Majority Banks are made to remove such
peril.
19.18 LITIGATION
Any litigation, arbitration or administrative procedures are commenced
against the Borrower or the Guarantor, unless the Borrower or, as the case
may be, the Guarantor demonstrates to
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the Agent within 14 days of that commencement that the litigation,
arbitration or administrative procedures are not reasonably likely to be
adversely determined or, if so adversely determined, could not reasonably
be expected to have a Material Adverse Effect.
19.19 PRE-APPROVAL OF MORTGAGE
The Borrower has not, by the date falling 90 days from the first Drawdown
Date, obtained pre-approval of the Mortgage and the Swap Bank Mortgage
from the Registrar of Ships in the Canary Islands.
19.20 ACCELERATION
On and at any time after the occurrence of an Event of Default and while
the Event of Default is continuing the Agent (acting on the instructions
of the Majority Banks) may by notice to the Borrower:
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Loan, together with accrued interest,
and all other amounts accrued under this Agreement, be immediately
due and payable, whereupon they shall become immediately due and
payable; and/or
(c) demand that all or part of the Loan be payable on demand whereupon
it shall immediately become payable on demand by the Agent.
20. THE AGENT AND THE FINANCE PARTIES
20.1 APPOINTMENT AND DUTIES OF THE AGENT
(a) Each Finance Party (other than the Agent) irrevocably appoints the Agent
to act as its agent under and in connection with the Finance Documents.
(b) Each Party appointing the Agent, irrevocably authorises the Agent on its
behalf to perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in connection
with the Finance Documents, together with any other reasonably incidental
or desirable rights, powers and discretions.
(c) The Agent has only those duties which are expressly specified in the
Finance Documents. Those duties are solely of a mechanical and
administrative nature.
(d) Each Bank (in the case of each existing Bank at the date of this
Agreement, on or before the date of this Agreement, and in the case of any
New Bank, on or before the date the novation referred to in Clause 27.3
(Procedure for novations) becomes effective) will enter into a power of
attorney in favour of the Spanish Security Agent in the form of Schedule 9
(Form of Bank's Power of Attorney) in all substantive respects.
20.2 APPOINTMENT AND DUTIES OF THE SPANISH SECURITY AGENT
(a) Each Finance Party (other than the Agent and the Spanish Security Agent)
irrevocably appoints the Spanish Security Agent to act as its agent and
attorney under and in connection with the Mortgage, the Swap Bank Mortgage
and the Pledge of Shares for the purposes specified in this Clause 20.2.
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(b) Each Party appointing the Spanish Security Agent irrevocably authorises
the Spanish Security Agent on its behalf to perform the duties and to
exercise the rights, powers and discretions that are necessary to
administer and, upon the instructions of the Majority Banks (through the
Agent) enforce (and collect the proceeds of such enforcement) the
Mortgage, the Swap Bank Mortgage and the Pledge of Quota Shares.
(c) The Spanish Security Agent's duties, rights, powers and discretions are
limited to those referred to in paragraph (b) above.
(d) Any and all monies received by the Spanish Security Agent or any Swap Bank
as a result of the enforcement of the Mortgage, the Swap Bank Mortgage
and/or the Pledge of Quota Shares shall be paid forthwith to the Agent for
application in accordance with this Agreement.
20.3 ROLE OF THE ARRANGER
Except as otherwise provided in this Agreement, the Arranger has no
obligations of any kind to any other Party under or in connection with any
Finance Document.
20.4 RELATIONSHIP
The relationship between each of the Agent and the Spanish Security Agent
with the other Finance Parties is that of agent and principal only. Except
as contemplated by the Security Documents, nothing in this Agreement
constitutes either of the Agent or the Spanish Security Agent as trustee
or fiduciary for any other Party or any other person and the Agent need
not hold in trust any moneys paid to it for a Party or be liable to
account for interest on those moneys.
20.5 MAJORITY BANKS' INSTRUCTIONS
Each of the Agent and the Spanish Security Agent will be fully protected
if it acts in accordance with the instructions of the Majority Banks in
connection with the exercise of any right, power or discretion or any
matter not expressly provided for in the relevant Finance Documents and
will promptly notify the Banks of any such event. Any such instructions
given by the Majority Banks will be binding on all the Banks. In the
absence of such instructions the Agent and the Spanish Security Agent may
act as they reasonably consider to be in the best interests of all the
Banks.
20.6 DELEGATION
Each of the Agent and the Spanish Security Agent may act under the
relevant Finance Documents through their personnel and agents.
20.7 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent, the Spanish Security Agent nor the Arranger is
responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or sufficiency
of any Finance Document or any other document (save in respect of
the execution thereof by the Agent or Arranger, as the case may be);
(b) the collectability of amounts payable under any Finance Document; or
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(c) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document (including the Information
Memorandum).
20.8 DEFAULT
(a) Neither the Agent nor the Spanish Security Agent is obliged to monitor or
enquire as to whether or not a Default has occurred. Neither the Agent nor
the Spanish Security Agent will be deemed to have knowledge of the
occurrence of a Default. However, if the Agent or the Spanish Security
Agent receives notice from a Party referring to this Agreement, describing
the Default and stating that the event is a Default, it shall promptly
notify the Banks.
(b) The Agent and/or the Spanish Security Agent may require the receipt of
security satisfactory to it whether by way of payment in advance or
otherwise, against any liability or loss which it will or may incur in
taking any proceedings or action arising out of or in connection with any
Finance Document before it commences these proceedings or takes that
action.
20.9 EXONERATION
(a) Without limiting paragraph (b) below, neither the Agent nor the Spanish
Security Agent will be liable to any other Party for any action taken or
not taken by it under or in connection with any Finance Document, unless
directly caused by the Agent's reckless disregard with knowledge of the
probable consequences or wilful misconduct or by the wilful misconduct of
any agent of the Agent or the Spanish Security Agent.
(b) No Party may take any proceedings against any officer, employee or agent
of the Agent or the Spanish Security Agent in respect of any claim it
might have against the Agent or the Spanish Security Agent or in respect
of any act or omission of any kind (including reckless disregard with
knowledge of the probable consequences or wilful misconduct) by that
officer, employee or agent in relation to any Finance Document.
20.10 RELIANCE
Each of the Agent and the Spanish Security Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by a director or employee of any person
regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional advisers
selected by it (including those in the Agent's or, as the case may
be, the Spanish Security Agent's employment and those representing a
Party other than the Agent).
20.11 CREDIT APPROVAL AND APPRAISAL
Without affecting the responsibility of the Borrower for information
supplied by it or on its behalf in connection with any Finance Document,
each Finance Party confirms that it:
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(a) has made its own independent investigation and assessment of the
financial condition and affairs of the Borrower and its related
entities in connection with its participation in this Agreement and
has not relied exclusively on any information provided to it by the
Agent, the Spanish Security Agent or the Arranger in connection with
any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities while any
amount is or may be outstanding under the Finance Documents or any
Commitment is in force.
For the avoidance of doubt, the Borrower shall not be liable to pay for
the costs and expenses of any Finance Party in relation to steps taken in
connection with the matters referred to in paragraphs (a) and (b) above.
20.12 INFORMATION
(a) Each of the Agent and the Spanish Security Agent shall promptly forward to
the person concerned the original or a copy of any document which is
delivered to the Agent or, as the case may be, the Spanish Security Agent
by a Party for that person.
(b) The Agent and the Spanish Security Agent shall promptly supply a Bank with
a copy of each document received by the Agent and the Spanish Agent
respectively under Clause 4 (Conditions Precedent), Clause 17
(Undertakings) and Clause 18 (Valuation) upon the request and at the
reasonable expense of that Bank except that bank shall not be liable for
any expense in relation to information supplied by the Borrower to the
Agent in accordance with Clause 17.3 (Financial information), Clause 17.37
(Scope of Obligatory Insurances) and Clause 18.2 (Delivery of Valuations).
(c) Except where this Agreement specifically provides otherwise, neither the
Agent nor the Spanish Security Agent is obliged to review or check the
accuracy or completeness of any document it forwards to another Party.
(d) Except as provided above, neither the Agent nor the Spanish Security Agent
has any duty:
(i) either initially or on a continuing basis to provide any Bank with
any credit or other information concerning the financial condition
or affairs of the Borrower or any related entity of the Borrower
whether coming into its possession or that of any of its related
entities before, on or after the date of this Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance with
a Finance Document, to request any certificates or other documents
from the Borrower.
20.13 THE AGENT, THE SPANISH SECURITY AGENT AND THE ARRANGER INDIVIDUALLY
(a) If it is also a Bank, each of the Agent, the Spanish Security Agent and
the Arranger has the same rights and powers under this Agreement as any
other Bank and may exercise those rights and powers as though it were not
the Agent, the Spanish Security Agent or the Arranger.
(b) Each of the Agent, the Spanish Security Agent and Arranger may:
(i) carry on any business with the Borrower or its related entities;
71
(ii) act as agent or trustee for, or in relation to any financing
involving, the Borrower or its related entities; and
(iii) retain any profits or remuneration in connection with its activities
under this Agreement or in relation to any of the foregoing.
(c) In acting as the Agent or, as the case may be, the Spanish Security Agent,
the agency division of the Agent or, as the case may be, the Spanish
Security Agent will be treated as a separate entity from its other
divisions and departments. Any information acquired by the Agent or, as
the case may be, the Spanish Security Agent which, in its opinion, is
acquired by it otherwise than in its capacity as the Agent or, as the case
may be, the Spanish Security Agent may be treated as confidential by the
Agent or, as the case may be, the Spanish Security Agent and will not be
deemed to be information possessed by the Agent in its capacity as such.
(d) The Borrower irrevocably authorises the Agent and the Spanish Security
Agent to disclose to the other Finance Parties any information which, in
its opinion, is received by it in its capacity as the Agent or, as the
case may be, the Spanish Security Agent.
(e) Each of the Agent and the Spanish Agent may deduct from any amount
received by it for the Banks pro rata any unpaid fees, costs and expenses
of the Agent or, as the case may be, the Spanish Security Agent incurred
by it in connection with the relevant Finance Documents.
20.14 INDEMNITIES
(a) Without limiting the liability of the Borrower under the Finance
Documents, each Finance Party shall forthwith on demand indemnify each of
the Agent and the Spanish Security Agent for that Finance Party's
proportion of any liability or loss incurred by the Agent or, as the case
may be, the Spanish Security Agent in any way relating to or arising out
of its acting as the Agent or, as the case may be, the Spanish Security
Agent, except to the extent that the liability or loss arises directly
from:
(i) the Agent's or, as the case may be, the Spanish Security Agent's
wilful misconduct or reckless disregard with knowledge of the
probable consequences; or
(ii) the Borrower's failure to make any payment to the Agent or the
Spanish Security Agent in respect of the management time of the
Agent or the Spanish Security Agent pursuant to Clause 20.19
(Extraordinary management time and resources).
(b) A Bank's proportion of the liability or loss set out in paragraph (a)
above is the proportion of its participation in the relevant Tranche (if
any) on the date of the demand. If, however, the relevant Tranche is not
outstanding on the date of demand, then the proportion will be the
proportion which its Commitment bears to the Total Commitments at the date
of demand or, if the Total Commitments have been cancelled, bore to the
Total Commitments immediately before being cancelled.
(c) The Borrower shall forthwith on demand reimburse each Bank for any payment
made by it under paragraph (a) above.
20.15 COMPLIANCE
(a) Each of Agent and the Spanish Security Agent may refrain from doing
anything which might, in its opinion, constitute a breach of any law or
regulation binding or applicable to it or be
72
otherwise actionable at the suit of any person, and may do anything which,
in its opinion, is necessary or desirable to comply with any law or
regulation of any jurisdiction.
(b) Without limiting paragraph (a) above, neither the Agent nor the Spanish
Security Agent need disclose any information relating to the Borrower or
any of its related entities if the disclosure might, in the opinion of the
Agent, or, as the case may be, the Spanish Security Agent constitute a
breach of any law or regulation or any duty of secrecy or confidentiality
or be otherwise actionable at the suit of any person.
20.16 RESIGNATION OF AGENT AND SPANISH SECURITY AGENT
(a) Notwithstanding its irrevocable appointment, and subject to sub-paragraph
(g) below either or both of the Agent and the Spanish Security Agent may
resign by giving notice to the Finance Parties and the Borrower, in which
case the Agent may forthwith appoint one of its Affiliates as successor
Agent with the approval of the Borrower (such approval not to be
unreasonably withheld or delayed) or, failing that, the Majority Banks may
appoint a successor Agent. The Spanish Security Agent may appoint one of
the other Banks as successor Spanish Security Agent with the approval of
the Borrower (such approval not to be unreasonably withheld or delayed)
or, failing that, the Majority Banks may appoint one of the Banks as a
successor Spanish Security Agent.
(b) If the appointment of a successor Agent or, as the case may be, the
Spanish Security Agent is to be made by the Majority Banks but they have
not, within 30 days after notice of resignation, appointed a successor
Agent which accepts the appointment, the retiring Agent or, as the case
may be, the retiring Spanish Security Agent may appoint a successor Agent
or, as the case may be, a successor Spanish Security Agent (in the case of
the latter being one of the Banks) with the approval of the Borrower (such
approval not to be unreasonably withheld).
(c) The resignation of the retiring Agent or, as the case may be, the Spanish
Security Agent and the appointment of any successor Agent or, as the case
may be, any successor Spanish Security Agent will both become effective
only upon the successor Agent or, as the case may be, the successor
Spanish Security Agent notifying all the Parties that it accepts the
appointment. On giving the notification, the successor Agent or, as the
case may be, the successor Spanish Security Agent will succeed to the
position of the retiring Agent or, as the case may be, the successor
Spanish Security Agent and the terms "AGENT" and "SPANISH SECURITY AGENT"
respectively will mean the successor Agent or, as the case may be, the
successor Spanish Security Agent.
(d) The retiring Agent or, as the case may be, the retiring Spanish Security
Agent shall, at its own cost, make available to the successor Agent or, as
the case may be, the successor Spanish Security Agent such documents and
records and provide such assistance as the successor Agent or, as the case
may be, the Spanish Security Agent may reasonably request for the purposes
of performing its functions as the Agent or, as the case may be, the
successor Spanish Security Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 20 (The Agent and the
Finance Parties) shall continue to benefit the retiring Agent or, as the
case may be, the retiring Spanish Security Agent in respect of any action
taken or not taken by it under or in connection with the Finance Documents
while it was the Agent or, as the case may be, the Spanish Security Agent,
and, subject to paragraph (d) above, it shall have no further obligation
under any Finance Document other than any previously incurred and
continuing liabilities not
73
transferred to the successor Agent or, as the case may be, the successor
Spanish Security Agent.
(f) The Majority Banks may, by notice to the Agent or, as the case may be, the
Spanish Security Agent, require it to resign in accordance with paragraph
(a) above. In this event the Agent or, as the case may be, the Spanish
Security Agent shall resign in accordance with paragraph (a) above but it
shall not be entitled to appoint one of its Affiliates as successor Agent
or, as the case may be, the successor Spanish Security Agent.
(g) (i) Notwithstanding the foregoing provisions of this Clause 20.16, the
Spanish Security Agent may not resign, nor may the Majority Banks
require it to resign, unless the successor Spanish Security Agent is
for the time being a Bank.
(ii) If and for so long as any Bank is also the Spanish Security Agent,
it shall not be entitled to assign, transfer or novate the whole of
its Commitment pursuant to Clause 27.2 (Transfers by Banks) unless
at the same time it resigns as Spanish Security Agent and a
successor Spanish Security Agent is appointed pursuant to this
Clause 20.16.
(iii) In the event any Bank becomes a successor Spanish Security Agent in
accordance with the terms of this Clause 20.16, each of the Banks
shall give to such successor Spanish Security Agent power of
attorney in the form of Schedule 9 (Form of Bank's Power of
Attorney).
20.17 BANKS
(a) Each of the Agent and the Spanish Security Agent may treat each Bank as a
Bank, entitled to payments under this Agreement and as acting through its
Facility Office(s) until it has received notice from the Bank to the
contrary by not less than five Business Days prior to the relevant
payment.
(b) Unless a Bank notifies the Agent to the contrary, each Bank confirms to
the Agent, on the date that it becomes a Bank, that it is beneficially
entitled to its share in each Tranche and its accrued interest and is
either:
(i) not resident for tax purposes in the United Kingdom; or
(ii) a bank for the purposes of section 349 of the Income and Corporation
Taxes Xxx 0000.
Each Bank must promptly notify the Agent if there is a change in its
position from that set out in sub-paragraph (i) or (ii) above.
(c) Each Bank undertakes to the Agent that it is in a position to and will
provide to the Borrower on or before the first interest payment date and
annually thereafter a certificate of its tax residency in a European Union
Member country.
(d) The Agent may at any time, and shall if requested to do so by the Majority
Banks, convene a meeting of the Banks.
20.18 SECURITY DOCUMENTS
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(a) Each of the Agent and the Spanish Security Agent in each case in its
capacity as trustee or otherwise under the Security Documents:
(i) is, other than arising directly from the Agent's or, as the case may
be, the Spanish Security Agent's wilful misconduct or reckless
disregard with knowledge of the consequences, not liable for any:
(A) failure, omission or defect in perfecting or registering the
security constituted or created by any Finance Document;
(B) failure to obtain any licence, consent or other authority for
the execution of any Security Document, including, without
limitation, the consent of any person required under the terms
of any Security Document;
(ii) may accept without enquiry such title as the Borrower may have to
any asset secured by any Security Document; and
(iii) is not under any obligation to hold any Finance Document or any
other document in connection with the Finance Documents or the
assets secured by any Finance Document (including title deeds) in
its own possession or to take any steps to protect or preserve the
same other than as directed by the Majority Banks.
(b) Except as otherwise provided in the Finance Documents, all moneys which
under the trusts contained in the Finance Documents are received by the
Agent or, as the case may be, the Spanish Security Agent in its capacity
as trustee or otherwise may be invested in the name of or under the
control of the Agent or, as the case may be, the Spanish Security Agent
for and on behalf of the Banks in any investment authorised by English law
for the investment by trustees of trust money or in any other investments
which may be selected by the Agent. Additionally, the same may be placed
on deposit in the name of or under control of the Agent for and on behalf
of the Banks at such bank or institution (including the Agent) and upon
such terms as the Agent may think fit.
20.19 EXTRAORDINARY MANAGEMENT TIME AND RESOURCES
The Borrower shall forthwith on demand pay the Agent and the Spanish
Security Agent for the cost of utilising its management time or other
resources in connection with:
(a) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf of the
Borrower and relating to a Finance Document, a Related Contract or
any other document referred to in any Finance Document; or
(b) the occurrence of a Default; or
(c) the enforcement of, or the preservation of or any attempt to enforce
or preserve any rights under, any Finance Document.
Any amount payable to the Agent and/or the Spanish Security Agent under
this clause will be calculated on the basis of such reasonable daily or
hourly rates as the Agent or, as the case may be, the Spanish Security
Agent may notify to the Borrower, and is in addition to any fee paid or
payable to the Agent or, as the case may be, the Spanish Security Agent
under Clause 21 (Fees).
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20.20 SET-OFF BETWEEN SWAP BANKS
A Swap Bank may set off any matured obligation owed to it by any other
Swap Bank pursuant to any swap arrangements entered into between them
pursuant to this transaction against any matured obligation owed by it to
that other Swap Bank, regardless of the place of payment or currency of
either obligation. If the obligations are in different currencies, the
Swap Bank setting-off may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the set off.
If either obligation is unliquidated or unascertained, the Swap Bank
setting-off may set off in an amount estimated by it in good faith to be
the amount of that obligation.
21. FEES
21.1 ARRANGEMENT FEE
The Borrower shall pay to the Arranger for its own account an arrangement
fee in the amount and at the time(s) agreed in the relevant Fee Letter.
21.2 AGENT'S FEE
The Borrower shall pay to the Agent for its own account an agency fee in
the amount and at the times agreed in the relevant Fee Letter.
21.3 COMMITMENT FEE
The Borrower shall pay to the Agent for each Bank a commitment fee
calculated at the rate of 0.40 per cent. per annum on the undrawn,
uncancelled amount of that Bank's Commitment during the Commitment Period.
The commitment fee is payable quarterly in arrear (but in any event the
last payment shall be made on the Delivery Date) during the Commitment
Period, for so long as any Commitments remain undrawn and have not been
cancelled. Accrued commitment fee shall also be payable to the Agent for
the relevant Bank(s) on the cancelled amount of its Commitment at the time
the cancellation comes into effect.
21.4 VAT
Any fee referred to in this Clause 21 (Fees) is exclusive of any value
added tax or any other tax which might be chargeable in connection with
that fee. If any value added tax or other tax is so chargeable, it shall
be paid by the Borrower at the same time as it pays the relevant fee.
22. EXPENSES
22.1 INITIAL AND SPECIAL COSTS
The Borrower shall forthwith on demand pay the Agent, the Spanish Security
Agent, the Banks and the Arranger the amount of all reasonable (or
otherwise capped) costs and expenses (including legal fees) incurred by
any of them in connection with:
(a) the negotiation, preparation, translation, printing and execution
of:
(i) this Agreement and any other documents (including Stage One
Documents and Stage Two Documents but excluding a Novation
Certificate) referred to in this Agreement; and
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(ii) any other Finance Document, Stage One Document or Stage Two
Document (other than a Novation Certificate) executed after
the date of this Agreement;
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf of the
Borrower and relating to a Finance Document, a Stage One Document, a
Stage Two Document or a document referred to in any Finance
Document; and
(c) any other matter, not of an ordinary administrative nature, arising
out of or in connection with a Finance Document, a Stage One
Document, a Stage Two Document or any other document referred to in
any Finance Document and not solely out of the general business of
the Agent, the Banks or the Arranger.
22.2 ENFORCEMENT COSTS
The Borrower shall forthwith on demand pay to each Finance Party the
amount of all costs and expenses (including legal fees) incurred by it:
(a) in connection with the enforcement of, or the preservation of (or
attempt to enforce or preserve) any rights under, any Finance
Document, any Stage One Document or any Stage Two Document; or
(b) in undertaking any reasonable investigation of any possible Default.
23. STAMP DUTIES
The Borrower shall pay and forthwith on demand indemnify each Finance
Party against any liability it incurs in respect of any stamp,
registration and similar tax which is or becomes payable in connection
with the entry into, performance or enforcement of any Finance Document.
24. INDEMNITIES
24.1 GENERAL INDEMNITY
(a) The Borrower hereby agrees that it shall promptly pay and discharge, or
cause to be paid or discharged, upon the same becoming payable (and shall,
if requested by a Finance Party, produce to that Finance Party evidence of
the payment and discharge thereof) and indemnify on demand and keep
indemnified each Finance Party on a full indemnity basis against, whether
directly or indirectly, a claim against it by, or a liability to, a third
party including, without limitation, in relation to any taxes (other than
any taxes levied or assessed on net income, profits or gains) or any other
Losses which relate to or arise directly or indirectly out of or are in
any way connected to:
(i) the condition, testing, delivery, design, leasing, chartering,
sub-chartering, construction, manufacture, purchase acquisition,
bailment, fitting out, sale importation to or exportation from any
country, registration, ownership, possession, management, control,
inspection, surveying, engineering, contracting, installation,
xxxxxxx, provisioning, the provision of bunkers and lubricating
oils, dry-docking, use, operation, maintenance, repair, service,
modification, overhaul, replacement, removal, performance,
transportation, flag, navigation, certification, classification,
nature, description, acceptance, insurance, refurbishment,
conversion, change, alteration, or laying-up of the Vessel or any
part thereof or otherwise in connection
77
with the Vessel including, without prejudice to the generality of
the foregoing, any Losses arising from any pollution or other
environmental damage caused by or emanating from the Vessel or
caused by the Vessel becoming a wreck or an obstruction to
navigation;
(ii) any repossession, return, redelivery, storage, maintenance,
protection, attempted sale, sale or other disposition of the Vessel
following the termination of the chartering of the Vessel which, if
carried out by the Agent or the Banks, is carried out in accordance
with the terms of the Finance Documents;
(iii) the complete or partial removal, decommissioning disposal, making
Vessel safe, destruction or abandonment or loss of the Vessel
including any matter which the Vessel contains or has at any time
contained;
(iv) any damage or loss to the Vessel irrespective of how caused;
(v) the operation or use of the Vessel or any design, article or
material of the Vessel or relating thereto giving rise to any
infringement (or alleged infringement) of any patent or other
intellectual property rights or any other rights whatsoever;
(vi) the occupation, arrest, confiscation, requisition, theft,
registration, compulsory acquisition, restraint of the Vessel or
the prevention thereof, seizure, taking in execution, impounding,
forfeiture or detention of the Vessel, or in securing the release
of the Vessel (including, without limitation by the provision of or
by procuring a guarantee, bond, cash deposit or other like
security);
(vii) any Environmental Claim relating to the Vessel or any Finance Party
arising from the transactions contemplated by the Finance
Documents, the Stage One Documents or the Stage Two Documents;
(viii) any premiums, calls, supplementary calls and contributions in
relation to any of the Obligatory Insurances and any of the
insurances which the Agent maintains in accordance with Clause
17.38 (Mortgagee's interest and additional perils insurance)
(including without limitation any such premiums referred to in
Clause 7 (Owners to provide) of the Time Charter; or
(ix) Losses suffered by a Finance Party whether directly or indirectly
by way of claims against a Finance Party or any of them, by any
person who has incurred expenditure in taking response or
preventative measures against loss or damage or injury, or who has
suffered or alleged that it has suffered loss, damage or injury in
connection with anything done or omitted to be done by any person
in relation to, or in respect of or in connection with, the Vessel,
including in connection with any Hazardous Material emanating or
threatening to emanate from the Vessel or from operations being
carried on by the Vessel and any claims for removal and response
cost and/or for loss, damage or injury to the environment resulting
from the release or discharge or threatened release or discharge of
any Hazardous Material from the Vessel.
(b) In circumstances where the Borrower makes a payment to a Finance Party or
to any third party pursuant to paragraph (a) above, the relevant Finance
Party in respect of which such payment has been made agrees that the
Borrower may be subrogated to the rights of that relevant Finance Party
against the relevant third party. In such circumstances the relevant
Finance Party agrees to co-operate with the Borrower in exercising such
rights of subrogation, provided that:
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(i) the relevant Finance Party receives a full indemnity from the
Borrower in terms satisfactory to such Finance Party as to the costs
and expenses of such co-operation; and
(ii) the relevant Finance Party's name may not be used in any action
without that Finance Party's prior written consent (which consent
the relevant Finance Party shall have full discretion to withhold).
24.2 CURRENCY INDEMNITY
(a) If a Finance Party receives an amount in respect of the Borrower's
liability under the Finance Documents or if that liability is converted
into a claim, proof, judgment or order in a currency other than the
currency (the "CONTRACTUAL CURRENCY") in which the amount is expressed to
be payable under the relevant Finance Document:
(i) the Borrower shall indemnify that Finance Party as an independent
obligation against any loss or liability arising out of or as a
result of the conversion;
(ii) if the amount received by that Finance Party, when converted into
the contractual currency at the Agent's Spot Rate of Exchange on the
relevant date, is less than the amount owed in the contractual
currency, the Borrower shall forthwith on demand pay to that Finance
Party an amount in the contractual currency equal to the deficit;
and
(iii) the Borrower shall pay to the Finance Party concerned on demand any
exchange costs and taxes payable in connection with any such
conversion.
(b) The Borrower waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency other than that in which
it is expressed to be payable.
24.3 OTHER INDEMNITIES
The Borrower shall forthwith on demand indemnify each Finance Party
against any loss or liability which that Finance Party incurs as a
consequence of:
(a) the occurrence of any Default;
(b) the operation of Clause 19.19 (Acceleration) or Clause 30 (Pro Rata
Sharing) (except to the extent such loss or liability is due solely
to the reckless disregard with knowledge of the probable
consequences or wilful misconduct of the Agent or any Bank);
(c) any payment of principal or an overdue amount being received from
any source otherwise than on the last day of a relevant Interest
Period or any interest period determined by the Agent under Clause
9.3 (Default interest);
(d) the default or termination by the Borrower, or any replacement or
amendment in relation to, any Swap Agreement; or
(e) the payment of any additional amount by any Swap Bank under any Swap
Agreement as a result of such Swap Bank being obliged to deduct tax
or an amount in respect of tax, or otherwise make any other
deduction, from any amounts payable or paid by that Swap Bank under
the relevant Swap Agreement; or
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(f) (other than by reason of the wilful misconduct or reckless disregard
with knowledge of the probable consequences of, or default by, a
Finance Party) a Tranche not being advanced after the Borrower has
delivered the Request for a Tranche or a prepayment not being
effected in accordance with a prepayment notice.
The Borrower's liability in each case includes any loss of margin or other
loss or expense on account of funds borrowed, contracted for or utilised
to fund any amount payable under any Finance Document, any amount repaid
or prepaid or any Tranche.
24.4 EXCLUSIONS FROM INDEMNITIES
The indemnities contained in this Clause 24 shall not extend to any claim
or liability of a Finance Party to the extent that such claim or
liability:
(a) arises from an act or omission on the part of that Finance Party
which constitutes wilful misconduct or recklessness with knowledge
of the probable consequences on the part of such Finance Party;
(b) is caused by any failure on the part of that Finance Party to comply
with any of its express obligations under any of the Finance
Documents to which that Finance Party is a party (but excluding any
such breach or failure that arises as a result of the failure of a
party to such Finance Document (other than that Finance Party) duly
and punctually to perform its obligations);
(c) represents any loss of the right to receive future income or
profits;
(d) is part of the normal administrative or overhead expenses of that
Finance Party except to the extent the same arise on or following an
Event of Default which is continuing; or
(e) is one in respect of which that Finance Party is expressly and
specifically indemnified and has received and is entitled to retain
such indemnity under any other provision of the Finance Documents.
24.5 PRESERVATION OF INDEMNITIES
(a) Without prejudice to any right to damages or other claim which any Party
may, at any time, have against another under this Agreement or under any
of the Finance Documents it is hereby agreed and declared that the
indemnities in favour of the Finance Parties by the Borrower contained in
this Agreement or any of the Finance Documents shall continue in full
force and effect notwithstanding any sale or other disposition of the
Vessel, Total Loss or any breach of the terms hereof or thereof by the
Borrower (including fundamental breach), the lawful repudiation by a
Finance Party or the Borrower of this Agreement or any of the Finance
Documents or the expiration of the Time Charter or any other Charter (or
any renewal of such Time Charter or any other Charter) through effluxion
of time or otherwise or the termination of the hire or sale of the Vessel
hereunder or any other circumstances whatsoever.
(b) If any payment received by a Finance Party in respect of moneys owing or
due and payable by the Borrower hereunder shall on the subsequent
liquidation or other insolvency of the Borrower be avoided under any laws
relating to insolvency or liquidation, such payment shall not be
considered as discharging or diminishing the liability of the Borrower
under this
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Agreement and this Agreement shall continue to apply as if such payment
had at all times remained owing by the Borrower.
25. EVIDENCE AND CALCULATIONS
25.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this Agreement
are prima facie evidence of the matters to which they relate.
25.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under the Finance Documents is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
25.3 CALCULATIONS
Interest (including any applicable Mandatory Cost) and the fee payable
under Clause 21.3 (Commitment Fee) accrue from day to day and are
calculated on the basis of the actual number of days elapsed and a year of
360 days.
26. AMENDMENTS AND WAIVERS
26.1 PROCEDURE
(a) Subject to Clause 26.2 (Exceptions) and to sub-paragraph (b) below, any
term of the Finance Documents may be amended or waived with the agreement
of the Borrower, the Majority Banks and (to the extent that the amendment
or waiver might reasonably be expected to prejudice the Agent) the Agent.
The Agent may effect, on behalf of the Finance Parties, an amendment or
waiver to which the Majority Banks have agreed.
(b) The Agent shall promptly notify the other Parties of any amendment or
waiver effected under paragraph (a) above, and any such amendment or
waiver shall be binding on all the Parties.
26.2 EXCEPTIONS
An amendment or waiver which relates to:
(a) the Final Maturity Date;
(b) the definition of "MAJORITY BANKS" in Clause 1.1;
(c) an extension of the date for, or a decrease in an amount or a change
in the currency of, any payment under the Finance Documents;
(d) any reduction in the Margin (other than in accordance with the terms
of this Agreement);
(e) an increase in a Bank's Commitment;
(f) a term of a Finance Document which expressly requires the consent of
each Bank;
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(g) Clause 2.2 (Nature of a Finance Party's rights and obligations),
Clause 30 (Pro Rata Sharing) or this Clause 26 (Amendments and
Waivers); or
(h) any release of any Security Interest in favour of the Finance
Parties generally unless permitted by this Agreement,
may not be effected without the consent of the Borrower and each Bank.
26.3 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
27. CHANGES TO THE PARTIES
27.1 TRANSFERS BY BORROWER
The Borrower may not assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under the Finance Documents.
27.2 TRANSFERS BY BANKS
(a) A Bank (the "EXISTING BANK") may, subject to paragraph (b) below at any
time assign, transfer or novate any of its Commitment, in whole or in
part, and/or any rights and/or any obligations under this Agreement to
another bank or financial institution (the "NEW BANK"). The prior consent
of the Borrower is required for any such assignment, transfer or novation,
unless:
(i) the New Bank is another Bank or an Affiliate of a Bank; or
(ii) a Default has occurred, is continuing and has not been waived.
However, the prior consent of the Borrower must not be unreasonably
withheld or delayed and will be deemed to have been given if, within 14
days of receipt by the Borrower of an application for consent, it has not
been expressly refused.
(b) A transfer of obligations will be effective only if:
(i) the obligations are novated in accordance with Clause 27.3
(Procedure for novations);
(ii) the New Bank confirms to the Agent and the Borrower that it
undertakes to be bound by the terms of this Agreement as a Bank in
form and substance satisfactory to the Agent and the Borrower. On
the transfer becoming effective in this manner the Existing Bank
shall be relieved of its obligations under this Agreement to the
extent that they are transferred to the New Bank;
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(iii) the New Bank accedes to the Mortgage, the Swap Bank Mortgage and the
Pledge of Quota Shares by execution of a deed of assignment of
interest in the form of Schedule 10 (Form of Deed of Assignment of
Interest); and
(iv) the New Bank grants a power of attorney in favour of the Spanish
Security Agent in the form of Schedule 9 (Form of Bank's Power of
Attorney) in all substantial respects.
(c) Nothing in this Agreement restricts the ability of a Bank to sub-contract
an obligation if that Bank remains liable under this Agreement for that
obligation.
(d) On each occasion an Existing Bank assigns, transfers or novates any of its
rights and/or obligations under this Agreement, the New Bank shall, on the
date the assignment, transfer and/or novation takes effect, pay to the
Agent for its own account a fee of L1,000.
(e) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or sufficiency
of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document; or
(iii) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document.
(f) Each New Bank confirms to the Existing Bank and the other Finance Parties
that it:
(i) has made its own independent investigation and assessment of the
financial condition and affairs of the Borrower and its related
entities in connection with its participation in this Agreement and
has not relied exclusively on any information provided to it by the
Existing Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities while any
amount is or may be outstanding under the Finance Documents or any
Commitment is in force.
(g) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights and/or
obligations assigned, transferred or novated under this clause; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by the Borrower of its obligations under the Finance
Documents or otherwise.
(h) Any reference in this Agreement to a Bank includes a New Bank, but
excludes a Bank if no amount is or may be owed to or by that Bank under
this Agreement and its Commitment has been cancelled or reduced to nil.
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27.3 PROCEDURE FOR NOVATIONS
(a) A novation is effected if:
(i) the Existing Bank and the New Bank deliver to the Agent a duly
completed certificate, substantially in the form of Schedule 5 (a
"NOVATION CERTIFICATE"); and
(ii) the Agent executes it;
(iii) the New Bank, the Existing Bank and the Spanish Security Agent
execute the Spanish public documents required to formalise the
Novation Certificate and the Spanish Security Documents, and the New
Bank issues a notarised power of attorney substantially in the form
of Schedule 9 (Form of Bank's Power of Attorney); and
(iv) in the event that the Mortgage and the Swap Bank Mortgages have
already been executed and registered at the Special Register of
Ships in the Canary Islands, the New Bank executes, notarises and
apostilles a deed of assignment in favour of the Spanish Security
Agent substantially in the form of Schedule 10 (Form of Deed of
Assignment of Interest).
(b) Each Party (other than the Existing Bank and the New Bank) irrevocably
authorises the Agent to execute any duly completed Novation Certificate on
its behalf.
(c) To the extent that they are expressed to be the subject of the novation in
the Novation Certificate:
(i) the Existing Bank and the other Parties (the "EXISTING PARTIES")
will be released from their obligations to each other (the
"DISCHARGED OBLIGATIONS");
(ii) the New Bank and the existing Parties will assume obligations
towards each other which differ from the discharged obligations only
insofar as they are owed to or assumed by the New Bank instead of
the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties and
vice versa (the "DISCHARGED RIGHTS") will be cancelled; and
(iv) the New Bank and the existing Parties will acquire rights against
each other which differ from the discharged rights only insofar as
they are exercisable by or against the New Bank instead of the
Existing Bank,
all on the date of execution of the Novation Certificate by the Agent or,
if later, the date specified in the Novation Certificate.
27.4 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be one of the Banks, the Agent shall
(in consultation with the Borrower) appoint another Bank or an Affiliate
of a Bank to replace that Reference Bank.
27.5 REGISTER
The Agent shall keep a register of all the Parties and shall supply any
other Party (at that Party's expense) with a copy of the register on
request.
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27.6 FACILITY OFFICE
Any Bank may from time to time change its Facility Office for the purposes
of this Agreement. In the event of any such change the relevant Bank shall
promptly notify the Agent and on receipt by the Agent from the relevant
Bank of notice of such change, the Agent shall promptly notify the
Borrower.
27.7 ACCESSION OF SWAP BANKS
No person providing interest rate or hedging facilities to the Borrower
will be entitled to share in any of the security constituted by the
Security Documents in respect of any of the liabilities or debt arising
under such swap or hedging facilities or benefit from the undertakings or
the parties to this Agreement unless and until the Agent has agreed in
writing to the identity of such person (such agreement not to be
unreasonably withheld where such person is a Senior Creditor (or its
Affiliate)) and to the swap or hedging facilities being provided by such
person and such person has agreed to become a Swap Bank by executing and
delivering to the Agent a duly completed Deed of Accession. Upon delivery
of such a Deed of Accession to the Agent such person will acquire all its
rights and assume all its obligations as a Swap Bank under this Agreement
in relation to such swap or hedging facilities.
27.8 REPLACEMENT SWAP AGREEMENTS
The Borrower may, at any time, request that the Swap Agreement be
substituted for a Replacement Swap Agreement. The Agent and the Swap Banks
may, in their absolute discretion, approve the termination of the Swap
Agreement and the entry by the Borrower into a Replacement Swap Agreement
where they are satisfied that:
(a) the Replacement Swap Agreements are on substantially the same terms as the
existing Swap Agreements and the Agent has received in writing confirming
from each of the Swap Banks consenting to the termination of the existing
Swap Agreements and the entry into Replacement Swap Agreements;
(b) the termination of the existing Swap Agreements and the entry into the
Replacement Swap Agreements will not affect the existing security
arrangements in respect of the Swap Agreements, or, to the extent that
such security arrangements will be affected, the Agent is satisfied that
replacement security will be effected on or prior to the termination of
the existing Swap Agreements, including but not limited to an assignment
by the Borrower in favour of the Agent of the Replacement Swap Agreement
and either a deed of amendment of the Swap Mortgage or the execution of a
new mortgage in connection with the Replacement Swap Agreement;
(c) the Borrower has paid or undertaken to pay all costs and expenses in
connection with the termination of the existing Swap Agreement and the
execution of the Replacement Swap Agreements, including any documents,
side letters and notices in connection therewith and including but not
limited to any Break Costs;
(d) the Agent has received a legal opinion from Xxxxx & Overy, Madrid, Spanish
legal advisers to the Finance Parties, in all respects satisfactory to the
Agent; and
(e) there are no adverse tax, credit or other relevant implications which it
is possible, in the opinion of the Agent, may arise as a result of the
Replacement Swap Agreements.
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28. DISCLOSURE OF INFORMATION
(a) Subject to paragraph (b) below, a Bank may disclose to one of its
Affiliates or any person with whom it is proposing to enter, or has
entered into, any kind of transfer, participation or other agreement in
relation to this Agreement:
(i) a copy of any Finance Document; and
(ii) any information which that Bank has acquired under or in connection
with any Finance Document.
(b) The rights of disclosure set out in paragraph (a) above are subject to:
(i) the relevant information only being disclosed for the purposes of
the relevant transfer, participation or other agreement;
(ii) the relevant Bank considering it necessary to disclose the relevant
information in order for the recipient of the information properly
to determine (on a fully informed basis) whether or not it wishes to
participate in the relevant transfer, participation or other
agreement; and
(iii) the recipient of the relevant information undertaking to the
Borrower or to the Agent or relevant Bank (but for the benefit of
the Borrower) to be bound by an obligation equivalent to this Clause
28(b).
29. SET-OFF
A Finance Party may upon notice to the Borrower, following the occurrence
of an Event of Default and whilst it continues, set off any matured
obligation owed by the Borrower under the Finance Documents (to the extent
beneficially owned by that Finance Party) against any obligation (whether
or not matured) owed by that Finance Party to the Borrower, regardless of
the place of payment, booking branch or currency of either obligation. If
the obligations are in different currencies, the Finance Party may convert
either obligation at the Agent's Spot Rate of Exchange on the relevant
date for the purpose of the set-off. If either obligation is unliquidated
or unascertained, the Finance Party may set off in an amount estimated by
it in good faith to be the amount of that obligation.
30. PRO RATA SHARING
30.1 REDISTRIBUTION
If any amount owing by the Borrower under this Agreement to a Finance
Party (the "RECOVERING FINANCE PARTY") is discharged by payment, set-off
or any other manner other than through the Agent in accordance with Clause
10 (Payments) (a "RECOVERY"), then:
(a) the recovering Finance Party shall, within three Business Days,
notify details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of the
amount which the recovering Finance Party would have received had
the recovery been received by the Agent and distributed in
accordance with Clause 10 (Payments);
86
(c) subject to Clause 30.3 (Exceptions), the recovering Finance Party
shall, within three Business Days of demand by the Agent, pay to the
Agent an amount (the "REDISTRIBUTION") equal to the excess;
(d) the Agent shall treat the redistribution as if it were a payment by
the Borrower under Clause 10 (Payments) and shall pay the
redistribution to the Finance Parties (other than the recovering
Finance Party) in accordance with Clause 10.7 (Payments); and
(e) after payment of the full redistribution, the recovering Finance
Party will be subrogated to the portion of the claims paid under
paragraph (d) above, and the Borrower will owe the recovering
Finance Party a debt which is equal to the redistribution,
immediately payable and of the type originally discharged.
30.2 REVERSAL OF REDISTRIBUTION
If under Clause 30.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a recovery, or
an amount measured by reference to a recovery, to the Borrower; and
(b) the recovering Finance Party has paid a redistribution in relation
to that recovery,
each Finance Party shall, within three Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution paid to
that Finance Party together with interest on the amount to be returned to
the recovering Finance Party for the period whilst it held the
redistribution. Thereupon the subrogation in Clause 30.1(e)
(Redistribution) will operate in reverse to the extent of the
reimbursement.
30.3 EXCEPTIONS
(a) A recovering Finance Party need not pay a redistribution to the
extent that it would not, after the payment, have a valid claim
against the Borrower in the amount of the redistribution pursuant to
Clause 30.1(e) (Redistribution).
(b) A recovering Finance Party is not obliged to share with any other
Finance Party any amount which the recovering Finance Party has
received or recovered as a result of taking legal proceedings, if
the other Finance Party had an opportunity to participate in those
legal proceedings but did not do so or did not take separate legal
proceedings.
31. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction of any
other provision of the Finance Documents; or
(b) the legality, validity or enforceability in other jurisdictions of
that or any other provision of the Finance Documents.
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32. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Documents.
33. NOTICES
33.1 GIVING OF NOTICES
All notices or other communications under or in connection with the
Finance Documents shall be given in writing and unless otherwise stated,
may be by letter or facsimile. Any such notice will be deemed to be given
as follows:
(a) if by letter, when delivered personally or on actual receipt; and
(b) if by facsimile, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place.
33.2 ADDRESSES FOR NOTICES
(a) The address and facsimile number of each Party (other than the Borrower,
and Agent) for all notices under or in connection with the Finance
Documents are:
(i) those notified by that Party for this purpose to the Agent on or
before it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent by
not less than five Business Days' notice.
(b) The address and facsimile number of the Borrower are:
C/Musgo n degrees 5, 2 degrees Plta.,
XX XXXXXXX, 00000
Madrid
Facsimile: 00 34 91 307 7043
Attention: Xxxxxx Xxxx
or such other as the Borrower may notify to the other Parties by not less
than five Business Days' notice.
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(c) The address and facsimile number of the Agent are:
000 Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
Facsimile: x00 (0) 000 000 0000/2360
Attention: Loans Agency
With a copy to:
JPMorgan Chase Bank, N.A.
000 Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
Facsimile: x00 (0) 000 000 0000
Attention: Corporate Banking
or such other as the Agent may notify to the other Parties by not less
than five Business Days' notice.
(d) The address and facsimile number of the Spanish Security Agent are:
X.X. Xxxxxx Bank S.A.
Xxxxx xx xx Xxxxxxxxxx, 00
00000 Xxxxxx,
Xxxxx
Facsimile: x00 00 000 0000
Attention: Xxxxxxx Xxxxxx
or such other as the Spanish Security Agent may notify to the other
Parties by not less than five Business Day's notice.
(e) All notices from or to the Borrower or a Bank shall be sent through the
Agent.
(f) The Agent shall, promptly upon request from any Party, give to that Party
the address or facsimile number of any other Party applicable at the time
for the purposes of this clause.
34. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall be
in English.
(b) All other documents provided under or in connection with any Finance
Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English translation
and, in this case, the English translation shall prevail unless the
document is a statutory or other official document.
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35. JURISDICTION
35.1 SUBMISSION
For the benefit of each Finance Party, the Borrower agrees that the courts
of England have jurisdiction to settle any disputes in connection with any
Finance Document and accordingly submits to the jurisdiction of the
English courts.
35.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, the Borrower:
(a) irrevocably appoints WFW Legal Services Limited at its offices, for
the time being at 00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX as its agent for
service of process relating to any proceedings before the English
courts in connection with any Finance Document;
(b) agrees that failure by a process agent to notify the Borrower of the
process will not invalidate the proceedings concerned;
(c) consents to the service of process relating to any such proceedings
by prepaid posting of a copy of the process to its address for the
time being applying under Clause 33.2 (Addresses for notices); and
(d) agrees that if the appointment of any person mentioned in paragraph
(a) above ceases to be effective, the Borrower shall immediately
appoint a further person in England to accept service of process on
its behalf in England, and failing such appointment within 15 days
the Agent is entitled to appoint such a person by notice to the
Borrower.
35.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
The Borrower:
(a) waives objection to the English courts on grounds of inconvenient
forum or otherwise as regards proceedings in connection with a
Finance Document; and
(b) agrees that a judgment or order of an English court in connection
with a Finance Document is conclusive and binding on it and may be
enforced against it in the courts of any other jurisdiction.
35.4 NON-EXCLUSIVITY
Nothing in this Clause 35 limits the right of a Finance Party to bring
proceedings against the Borrower in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
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35.5 WAIVER OF IMMUNITY
The Borrower irrevocably and unconditionally:
(a) agrees that its exercise of its rights and the performance of its
obligations under the Finance Documents will constitute private and
commercial acts done and performed for private and commercial
purposes and, if any Finance Party brings legal proceedings against
it or its assets in relation to the Finance Documents, no immunity
from those proceedings shall be claimed by or on behalf of itself or
for its assets;
(b) waives any such right of immunity which it or its assets now has or
may acquire after the date of this Agreement; and
(c) consents generally to the giving of any relief or the issue of any
process under those proceedings.
35.6 EXECUTIVE PROCEEDINGS AND SET-OFF
(a) (i) This Agreement, as well as any amendments hereto, will be formalised
in a Spanish notarial document ("escritura publica" or "poliza"), so
that it may have the status of a notarial document of loan for all
purposes contemplated in Article 517, number 4 and 5 of the new
Civil Procedural Law (Law 1/2000 of 7th January) ("Ley de
Enjuiciamiento Civil").
(ii) The sum payable by the Borrower shall be the total aggregate sum
resulting from the balance shown in the account(s) maintained by the
Agent (or the relevant Bank, as the case may be) in accordance with
this Agreement. For the purposes of Articles 571 et seq. of the new
Civil Procedural Law (Law 1/2000 of 7th January) ("Ley de
Enjuiciamiento Civil"), the parties expressly agree that such
balance shall be considered as an acknowledgement of debt and may be
claimed pursuant to the same provisions of such law.
(iii) For the purpose of the provisions of Art. 571 et seq. of the new
Civil Procedural Law (Law 1/2000 of 7th January) ("Ley de
Enjuiciamiento Civil"), it is expressly agreed by the contracting
parties that the determination of the debt to be claimed through the
executive proceedings shall be effected by the Agent (or the
relevant Bank, as the case may be) by means of the appropriate
certificate evidencing the balance shown in the account or accounts
of the Borrower. By virtue of the foregoing, to exercise executive
action it will be sufficient to present an original notarial first
copy of this Agreement and the notarial document ("acta notarial")
that incorporates the certificate issued by the Agent (or the
relevant Bank, as the case may be) evidencing that the determination
of the amounts due and payable by the Borrower have been calculated
as agreed in this Agreement and that such amounts coincide with the
balance shown in the account or accounts of the Borrower.
(b) The covenants in sub-paragraphs (a)(ii) and (iii) above are also
applicable with respect to any Bank with regard to its respective
Commitment. Such Bank may issue the appropriate certification of the
balance of the account or accounts of the Borrower and the certification
of the account balance may be legalised by a notary.
(c) The amount of the balance so established shall be notified to the Borrower
in an attestable manner at least one (1) day in advance of exercising the
action.
91
(d) The Borrower hereby expressly authorises the Agent (and any Bank, as
appropriate), to request and obtain, by itself, certificates issued by the
notary which has formalised this Agreement in order to evidence its
accordance with the entries of his registry-book and the date of them for
the purpose of number 5 of Article 517, of the new Civil Procedural Law
(Law 1/2000 of 7th January) ("Ley de Enjuiciamiento Civil"), the amount of
such certificate being for the account of the Borrower in the manner
provided with respect to other expenses.
36. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
92
SCHEDULE 1
BANKS AND COMMITMENTS
BANKS COMMITMENTS
Commerzbank Aktiengesellschaft, Sucursal en Espana euro 24,166,666.70
Calyon euro 24,166,666.70
JPMorgan Chase Bank, N. A. euro 24,166,666.70
HSH Nordbank Aktiengesellschaft. euro 24,166,666.70
The Governor and Company of the Bank of Scotland euro 24,166,666.70
DVB Bank NV euro 24,166,666.70
Caixa de Aforros de Vigo Ourense e Pontevedra - Caixanova euro 10,000,000.00
Caja de Ahorros provincial San Xxxxxxxx xx Xxxxxxx y Xxxxx euro 5,000,000.00
Kreditanstalt fur Wiederaufbau euro 20,000,000.00
------------------
Total Commitments euro 180,000,000
------------------
93
SCHEDULE 2
PART I
INITIAL CONDITIONS PRECEDENT DOCUMENTS
1. BORROWER
(a) A certified copy* of the constitutional documents of the Borrower.
(b) A certified copy* of a notarised resolution of the board of directors of
the Borrower:
(i) approving the terms of, and the transactions contemplated by, each
Finance Document and each Related Contract and resolving that it
execute each Finance Document and each Related Contract then to be
executed;
(ii) authorising a specified person or persons to execute each Finance
Document and each Related Contract on its behalf; and
(iii) empowering individuals of Xxxxx & Xxxxx, Madrid as its attorney to
effect notarisation of each of the relevant Finance Documents and
Related Contracts on its behalf; and
(iv) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices to be signed and/or
despatched by it under or in connection with each Finance Document
and each Related Contract.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A copy of the reporting form PE-1 assigning a NOF number to this
Agreement, duly sealed by the Bank of Spain.
(e) A certified copy* of all other resolutions, consents, licences, exemptions
and filings, corporate, official or otherwise which the Agent may
reasonably require in connection with this Agreement or any other Finance
Document.
2. GUARANTOR
(a) A certified copy* of the constitutional documents of the Guarantor.
(b) A certified copy* of a notarised resolution of the board of directors of
the Guarantor:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents and Related Contracts to which it is a party and
resolving that it execute the Finance Documents and Related
Contracts to which it is a party;
(ii) authorising a specified person or persons to execute the Finance
Documents and Related Contracts to which it is a party on its
behalf; and
94
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices to be signed and/or
despatched by it under or in connection with the Finance Documents
and Related Contracts to which it is a party.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A certified copy* of a notarised resolution of the shareholder(s) of the
Guarantor approving the resolutions referred to in paragraph 3(b) above.
3. FINANCE DOCUMENTS AND RELATED CONTRACTS
(a) A duly executed original of this Agreement.
(b) A Spanish Public Document of the executed original of this Agreement.
(c) In the event the repayment schedule is not completed at the time this
Agreement is notarised, evidence satisfactory to the Agent that the
completed repayment schedule has been separately notarised by means of an
additional Spanish Public Document.
(d) A duly executed original of the Sales Contract Assignment.
(e) A Spanish Public Document of the executed original of the Sales Contract
Assignment.
(f) A duly executed original of the Memorandum of Agreement Assignment.
(g) A Spanish Public Document of the executed original of the Memorandum of
Agreement Assignment.
(h) A duly executed original of the Refund Guarantees Assignment.
(i) A Spanish Public Document of the executed original of Refund Guarantees
Assignment.
(j) A duly executed original of the General Assignment.
(k) Executed original of the General Assignment with its signatures legalised
by a Spanish Notary Public.
(l) A duly executed original of the Earnings Account Assignment.
(m) A Spanish Public Document of the executed original of the Earnings Account
Assignment.
(n) A duly executed original of the Vessel Management Assignment.
(o) Executed original of the Vessel Management Assignment with its signatures
legalised by a Spanish Notary Public.
(p) A duly executed original of the Insurances Assignment.
(q) A Spanish Public Document of the executed original of the Insurances
Assignment.
(r) A duly executed original of the Swap Agreement, together with evidence
satisfactory to the Agent of satisfaction of any conditions precedent
therein.
95
(s) A Spanish Public Document of the executed original Swap Agreement.
(t) A duly executed original of the Swap Agreement Assignment.
(u) A Spanish Public Document of the executed Swap Agreement Assignment.
(v) A Spanish Public Document of the executed Pledge of Quota Shares.
(w) A duly executed original of the Guarantee.
(x) Executed original of the Guarantee with its signatures legalised by a
Spanish Notary Public.
(y) All share certificates and other documents of title or evidence of
ownership in relation to the Shares together with all share transfers and
other documents which may be requested by the Agent.
(z) A certified copy* of each Related Contract, duly executed (other than
those agreements which relate to Stage Two Only).
(aa) A duly executed original of each Fee Letter together with confirmation
from the Agent of payment by the Borrower of amounts due thereunder.
(bb) Duly executed originals of all notices of assignment required to be served
under each Security Document referred to above and the acknowledgements
thereof, duly executed by each relevant counterparty.
4. OTHER DOCUMENTS
(a) A copy of any other authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of, and the transactions contemplated by,
any Finance Document or any Related Contract or for the validity and
enforceability of any Finance Document or any Related Contract.
(b) A letter from WFW Legal Services Limited agreeing to its appointment as
process agent for the Borrower and the Guarantor under the Finance
Documents.
(c) Confirmation from JPMorgan Chase Bank N.A. (formerly JPMorgan Chase Bank,
London branch) to the Agent confirming that the Earnings Account and the
Disbursement Account have been duly opened and funded.
(d) A copy of a power of attorney given by the Borrower to the Spanish
Security Agent for the purposes of notarising this Agreement and the other
relevant Finance Documents, duly executed, notarised and apostilled.
(e) A copy of each Power of Attorney given by each Bank in the form of
Schedule 9 (Form of Bank's Power of Attorney) duly executed, notarised and
apostilled.
5. PERMISSIBLE DELAYS INSURANCE
(a) A certified copy of all current Permissible Delays Insurances policies in
respect of the Vessel.
96
(b) Evidence that the name of the Agent has been endorsed on the Permissible
Delays Insurances policies as additional insured and loss payee.
(c) A duly executed and notarised notice of assignment (and acknowledgement of
the same) of the Permissible Delays Insurances in respect of the Vessel
duly executed by the Borrower substantially in the form provided for in
the Insurances Assignment.
(d) Fax confirmation from each broker, insurer and club concerned with
Permissible Delays Insurances of the Vessel that:
(i) the relevant cover is in effect;
(ii) they will accept notice of assignment of the Permissible Delays
Insurances in favour of the Agent;
(iii) they will restrict their lien for unpaid premiums under any fleet
policy to unpaid premiums in respect of that Vessel only;
(iv) they will issue a letter of undertaking in the current LIBA form (in
the case of Lloyds brokers), substantially in the form provided for
in the Insurances Assignment (in the case of non-Lloyds brokers and
insurers other than clubs) or in their current standard form (in the
case of clubs);
(v) they will accept endorsement of a loss payable clause on the
policies in the form provided for in the Insurances Assignment (in
the case of brokers and insurers other than clubs) or will note the
interest of the Agent in the entry for the Vessel by way of a loss
payable clause in their current standard form (in the case of
clubs); and
(vi) they are not aware of any mortgage, charge, assignment or other
encumbrance affecting the Permissible Delays Insurances with which
they are concerned (other than any previously disclosed by the
Borrower to the Agent in writing).
(e) Confirmation from the Agent of the Banks' satisfaction with a final
insurance report prepared by The Xxxxxx Insurance Group.
6. LEGAL OPINIONS
(a) A legal opinion of Xxxxx & Overy, London office, English legal advisers to
the Agent, addressed to the Finance Parties.
(b) A legal opinion of Xxxxx & Xxxxx, Madrid office, Spanish legal advisers to
the Agent, addressed to the Finance Parties.
(c) Legal opinions (in-house) in relation to execution by the issuers of the
Refund Guarantees.
* Each certified copy document must be certified by a director, officer or
duly authorised attorney of the Borrower as being true and complete as at
a date no earlier than the date of this Agreement.
97
SCHEDULE 2
PART II
STAGE TWO CONDITIONS PRECEDENT DOCUMENTS
1. BORROWER
(a) A certified copy* of the constitutional documents of the Borrower.
(b) A certified copy* of a notarised resolution of the board of directors of
the Borrower:
(i) approving the terms of, and the transactions contemplated by, each
Stage Two Document and each Security Document then to be entered
into and resolving that it execute each Stage Two Document and each
Security Document then to be executed;
(ii) authorising a specified person or persons to execute each Stage Two
Document and each Security Document then to be entered into on its
behalf; and
(iii) empowering individuals of Xxxxx & Overy, Madrid as its attorney to
effect notarisation of each of the relevant Stage Two Documents and
each Security Document then to be entered into on its behalf; and
(iv) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices to be signed and/or
despatched by it under or in connection with each Stage Two Document
and each Security Document then to be entered into.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A certified copy* of all other resolutions, consents, licences, exemptions
and filings, corporate, official or otherwise which the Agent may
reasonably require in connection with any Stage Two Document and each
Security Document then to be entered into.
2. GUARANTOR
(a) A certified copy* of the constitutional documents of the Guarantor.
(b) A certified copy* of a notarised resolution of the board of directors of
the Guarantor approving the terms of, and the transactions contemplated
by, the Stage Two Documents and each Security Document then to be entered
into and confirming that the Guarantee is continuing and remains in full
force and effect.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A certified copy* of a notarised resolution of the shareholder(s) of the
Guarantor approving the resolutions referred to in paragraph 2(b) above.
98
3. STAGE TWO DOCUMENTS AND RELEVANT SECURITY DOCUMENTS
(a) A certified copy* of the Novation Agreement.
(b) A certified copy* of the Termination Agreement.
(c) A certified copy* of the Bareboat Charter.
(d) A certified copy* of the Master Agreement.
(f) A certified copy* of any other Stage Two Document entered into by the
Borrower.
(e) A duly executed original of the Bareboat Charter Assignment.
(f) A Spanish Public Document of the executed original of the Bareboat Charter
Assignment.
(g) A duly executed original of the Master Agreement Assignment.
(h) A Spanish Public Document of the executed Master Agreement Assignment.
(i) A duly executed original of any other Security Document which the Agent
may require in connection with the implementation of Stage Two and the
giving by the Agent of its consent to the Borrower entering into the Stage
Two Documents.
(j) A Spanish Public Document in respect of each Security Document referred to
in paragraph (i) above.
(j) Duly executed originals of all notices of assignment required to be served
under the Bareboat Charter Assignment, the Master Agreement Assignment,
and each other Security Document referred to in paragraph (i) and the
acknowledgements thereof, duly executed by each relevant counterparty.
4. OTHER DOCUMENTS
(a) A copy of any other authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of, and the transactions contemplated by,
any Stage Two Document or any other Security Document then to be entered
into or for the validity and enforceability of any Stage Two Document.
(b) A copy of a power of attorney given by the Borrower to the Spanish
Security Agent for the purposes of notarising the Stage Two Documents and
any Security Document then to be entered into, duly executed, notarised
and apostilled.
5. PERMISSIBLE DELAYS INSURANCE
Such documents, evidence, confirmation and re-confirmation as may be
required by the Agent in connection with the Permissible Delays Insurances
in order to ensure that the Agent and the Banks have, following the
implementation of Stage Two, all of the rights and protections to which
they are entitled under the terms of this Agreement.
99
6. LEGAL OPINIONS
(a) A legal opinion of Xxxxx & Xxxxx, London office, English legal advisers to
the Agent, addressed to the Finance Parties.
(b) A legal opinion of Xxxxx & Overy, Madrid office, Spanish legal advisers to
the Agent, addressed to the Finance Parties.
* Each certified copy document must be certified by a director, officer or
duly authorised attorney of the Borrower as being true and complete as at
a date no earlier than the date of this Agreement.
100
SCHEDULE 3
DELIVERY DATE CONDITIONS PRECEDENT DOCUMENTS
1. BORROWER
(a) A certified copy of the constitutional documents of the Borrower.
(b) In the event that the Borrower takes title to and delivery of the Vessel,
a certified copy of a notarised resolution of the board of directors of
the Borrower (unless such a resolution in relation to the issues below is
still in force):
(i) approving the delivery of the Vessel and the terms of, and the
transactions contemplated by, the Mortgage and the Swap Bank
Mortgage and resolving that it execute the Mortgage and the Swap
Bank Mortgage;
(ii) authorising a specified person or persons to execute the Mortgage
and the Swap Bank Mortgage on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign or
despatch all other documents and notices to be signed or despatched
by it under or in connection with the Mortgage and the Swap Bank
Mortgage.
(c) In the event that the Borrower does not take title to the Vessel, a
certified copy of a notarised resolution of the board of directors of the
Borrower:
(i) approving the Borrower taking physical possession of the Vessel
under the terms of the Bareboat Charter;
(ii) authorising a specified person or persons to execute such necessary
documentation as is required to permit the Borrower to take physical
possession of the Vessel under the terms of the Bareboat Charter;
and
(iii) authorising a specified person or persons, on its behalf, to sign or
despatch all other documents and notices to be signed or despatched
as necessary to take physical possession of the Vessel under the
terms of the Bareboat Charter.
(d) A specimen of the signature of each person authorised by the resolution
referred to in paragraphs (b) and (c) above.
(e) A certified copy of all other resolutions, consents, licences, exemptions
and filings, corporate, official or otherwise which the Agent may
reasonably require in connection with the Mortgage and the Swap Bank
Mortgage.
2. GUARANTOR
(a) A certified copy* of the constitutional documents of the Guarantor.
(b) A certified copy* of a notarised resolution of the board of directors of
the Guarantor (unless such a resolution in relation to the issues below is
still in force):
101
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents and Related Contracts to which it is a party and
resolving that it execute the Finance Documents and Related
Contracts to which it is a party;
(ii) authorising a specified person or persons to execute the Finance
Documents and Related Contracts to which it is a party on its
behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices to be signed and/or
despatched by it under or in connection with the Finance Documents
and Related Contracts to which it is a party.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A certified copy* of a notarised resolution of the shareholder(s) of the
Guarantor approving the resolutions referred to in paragraph 3(b) above.
3. AIE
In the event that the AIE takes title to and delivery of the Vessel in
accordance with the Stage Two Documents:
(a) A certified copy of the constitutional documents of the AIE.
(b) A certified copy of a notarised resolution of the board of directors
of the AIE.
(i) approving the delivery of the Vessel and the terms of, and the
transactions contemplated by, the Mortgage and the Swap Bank
Mortgage and resolving that it execute the Mortgage and the
Swap Bank Mortgage;
(ii) authorising a specified person or persons to execute the
Mortgage and the Swap Bank Mortgage on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign or despatch all other documents and notices to be signed
or despatched by it under or in connection with the Mortgage
and the Swap Bank Mortgage.
(c) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
(d) A certified copy of all other resolutions, consents, licences,
exemptions and filings, corporate, official or otherwise which the
Agent may reasonably require in connection with the Mortgage and the
Swap Bank Mortgage.
4. DOCUMENTS
(a) A duly executed and notarised original of the Mortgage.
(b) A duly executed and notarised original of each Swap Bank Mortgage.
(c) A duly executed original of the Deed of Maintenance Guarantee Assignment.
102
(d) A Spanish Public Document of the executed original of the Deed of the
Maintenance Guarantee Assignment.
(e) A copy of any other authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of, and the transactions contemplated by,
the Security Documents or for the validity and enforceability of either of
those documents.
5. THE VESSEL
(a) Evidence that:
(i) the title to the Vessel is held by the Borrower or the AIE, as
appropriate, free of all Security Interests other than Permitted
Liens;
(ii) the Vessel is registered in the name of the Borrower or the AIE, as
appropriate, as a Canary Islands flag ship at the port of Santa Xxxx
de Tenerife in the Canary Islands;
(iii) there is no Security Interest whatsoever of any kind upon the Vessel
or the Obligatory Insurances or Earnings of the Vessel other than
Permitted Liens;
(iv) the Mortgage and each Swap Bank Mortgage in respect of the Vessel
has been duly recorded in the Special Registry of Ships of the
Canary Islands in accordance with Spanish law and each constitutes a
first priority security interest over the Vessel and that all taxes
and fees payable to the Special Registry of Ships of the Canary
Islands in respect of the Vessel have been paid in full; and
(v) evidence that the Vessel is subject to a safety management system
which complies with the ISM Code.
(b) A certified copy* of:
(i) a classification certificate in respect of the Vessel showing the
Vessel to be in class without recommendation, condition or
qualification;
(ii) a valid Interim Safety Management Certificate for the Vessel; and
(iii) a valid Document of Compliance.
(c) Confirmation acceptable to the Agent that:
(i) the Time Charterer has accepted the Vessel pursuant to the terms of
the Time Charter; and
(ii) the Borrower has accepted the Vessel pursuant to the terms of the
Shipbuilding Contract or, as the case may be, the Sales Contract and
the Memorandum of Agreement, or, as the case may be, that the AIE
has accepted the Vessel pursuant to the terms of the Shipbuilding
Contract and entered into the Bareboat Charter with the Borrower and
the Borrower has accepted the Vessel under the Bareboat Charter.
6. INSURANCE
(a) A certified copy of all current insurance policies in respect of the
Vessel.
103
(b) A duly executed and notarised notice of assignment (and acknowledgement of
the same) of the Obligatory Insurances in respect of the Vessel duly
executed by the Borrower substantially in the form provided for in the
Insurances Assignment.
(c) Fax confirmation from each broker, insurer and club concerned with the
Obligatory Insurances of the Vessel that:
(i) the relevant cover is in effect and will remain in effect
notwithstanding any delay in the registration of the Vessel as a
Canary Islands flag ship at the port of Santa Xxxx de Tenerife in
the Canary Islands following the Delivery Date;
(ii) they will accept notice of assignment of the Obligatory Insurances
in favour of the Agent;
(iii) they will restrict their lien for unpaid premiums under any fleet
policy to unpaid premiums in respect of that Vessel only;
(iv) they will issue a letter of undertaking in the current LIBA form (in
the case of Lloyds brokers), in the form provided for in the
Insurances Assignment (in the case of non-Lloyds brokers and
insurers other than clubs) or in their current standard form (in the
case of clubs);
(v) they will accept endorsement of a loss payable clause on the
policies in the form provided for in the Insurances Assignment (in
the case of brokers and insurers other than clubs) or will note the
interest of the Agent in the entry for the Vessel by way of a loss
payable clause in their current standard form (in the case of
clubs); and
(vi) they are not aware of any mortgage, charge, assignment or other
encumbrance affecting the Obligatory Insurances with which they are
concerned (other than any previously disclosed by the Borrower to
the Agent in writing).
(d) Confirmation from the Agent of the Banks' satisfaction with a final
insurance report prepared by The Xxxxxx Insurance Group.
7. LEGAL OPINIONS
(a) A legal opinion of Xxxxx & Overy, London office, English legal advisers to
the Agent, addressed to the Finance Parties.
(b) A legal opinion of Xxxxx & Xxxxx, Madrid office, Spanish legal advisers to
the Agent, addressed to the Finance Parties.
* Each certified copy document must be certified by a director, officer or
duly authorised attorney of the Borrower as being true and complete as at
a date no earlier than the date of this Agreement.
104
SCHEDULE 4
FORM OF REQUEST
To: X. X. Xxxxxx Europe Limited as Agent
From: Naviera Teekay Gas IV S.L.
Date:[ ]
NAVIERA TEEKAY GAS I.V. S.L.
EURO 180,000,000 CREDIT AGREEMENT DATED 21ST DECEMBER, 2001 ( AS AMENDED,
SUPPLEMENTED OR NOVATED FROM TIME TO TIME)
HULL NO. 105
1. We wish to borrow a Tranche from the Banks as follows:
(a) Drawdown Date: [ ]
(b) Amount: [ ]
(c) Interest Period: [ ]
(d) Payment Instructions: [ ].
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Request.
By:
NAVIERA TEEKAY GAS IV S.L.
Authorised Signatory
105
SCHEDULE 5
FORM OF NOVATION CERTIFICATE
To: X. X. Xxxxxx Europe Limited as Agent
From: [THE EXISTING BANK] and [THE NEW BANK]
Date: [ ]
NAVIERA TEEKAY GAS IV S.L.
EURO 180,000,000 CREDIT AGREEMENT DATED 21ST DECEMBER, 2001 (AS AMENDED,
SUPPLEMENTED OR NOVATED FROM TIME TO TIME)
HULL NO. 105
We refer to Clause 27.3 (Procedure for novations).
1. We [ ] (the "EXISTING BANK") and [ ] (the "NEW BANK") agree to
the Existing Bank and the New Bank novating all the Existing Bank's rights
and obligations referred to in the Schedule in accordance with Clause 27.3
(Procedure for novations).
2. The specified date for the purposes of Clause 27.3(c) is [date of
novation].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 33.2 (Addresses for notices) are set out in the
Schedule.
4. This Novation Certificate is governed by English law.
THE SCHEDULE
RIGHTS AND OBLIGATIONS TO BE NOVATED
[Details of the rights and obligations of the Existing Bank to be novated].
[NEW BANK]
[Facility Office Address for notices]
[Existing Bank] [New Bank] X. X. Xxxxxx Europe Limited
By: By: By:
Date: Date: Date:
106
SCHEDULE 6
CALCULATION OF THE MANDATORY COST
(a) For the purpose of paragraph (a) of the definition of Mandatory Cost, the
Mandatory Cost for a Tranche for its Interest Period is the rate
determined by the Agent to be equal to the arithmetic mean (rounded
upward, if necessary, to four decimal places) of the respective rates
notified by each of the Reference Banks to the Agent and calculated in
accordance with the following formula:
F x 0.01
-------- % per annum
300
where on the day of application of the formula F is the charge payable by
the relevant Bank to the Financial Services Authority ("FSA") under the
Fees Rules (but for this purpose, ignoring any minimum fee under the Fees
Rules) and expressed in pounds per (pound)1 million of the tariff base of
the Reference Bank.
(b) For the purposes of this Schedule 6:
(i) "TARIFF BASE" has the meaning given to it in the Fees Rules;
(ii) "FEES RULES" means the then current rules on periodic fees in the
Supervision manual in the FSA Handbook.
(c) If a Reference Bank does not supply a rate to the Agent, the applicable
Mandatory Cost will be determined on the basis of the rate(s) supplied by
the remaining Reference Banks.
(d) (i) The formula is applied on the first day of the Interest Period of
the Tranche.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(e) If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation with
the Banks) shall notify the Company of the manner in which the Mandatory
Cost will subsequently be calculated. The manner of calculation so
notified by the Agent shall, in the absence of manifest error, be binding
on all the Parties.
107
SCHEDULE 7
REPAYMENT SCHEDULE
REPAYMENT DUE DATE PRINCIPAL PAYMENT LOAN OUTSTANDINGS
------------------ ----------------- -----------------
31/01/2005 -177,600,921.74 177,600,921.74
28/02/2005 269,888.70 177,331,033.04
31/03/2005 271,423.12 177,059,609.92
28/04/2005 272,966.28 176,786,643.64
31/05/2005 274,518.21 176,512,125.43
30/06/2005 276,078.96 176,236,046.48
29/07/2005 277,648.58 175,958,397.90
31/08/2005 279,227.13 175,679,170.77
30/09/2005 280,814.65 175,398,356.12
31/10/2005 282,411.20 175,115,944.92
30/11/2005 284,016.82 174,831,928.10
30/12/2005 285,631.58 174,546,296.52
31/01/2006 287,255.51 174,259,041.01
28/02/2006 288,888.68 173,970,152.33
31/03/2006 290,531.13 173,679,621.20
28/04/2006 292,182.92 173,387,438.28
31/05/2006 293,844.10 173,093,594.17
30/06/2006 295,514.73 172,798,079.44
31/07/2006 297,194.85 172,500,884.59
30/08/2006 298,884.53 172,202,000.06
29/09/2006 300,583.81 171,901,416.24
31/10/2006 302,292.76 171,599,123.48
30/11/2006 304,011.42 171,295,112.06
29/12/2006 305,739.85 170,989,372.21
31/01/2007 307,478.11 170,681,894.10
28/02/2007 309,226.25 170,372,667.85
30/03/2007 310,984.33 170,061,683.52
30/04/2007 312,752.41 169,748,931.12
31/05/2007 314,530.53 169,434,400.59
29/06/2007 316,318.77 169,118,081.82
31/07/2007 318,117.17 168,799,964.64
31/08/2007 319,925.80 168,480,038.84
28/09/2007 321,744.71 168,158,294.12
31/10/2007 323,573.97 167,834,720.16
30/11/2007 325,413.62 167,509,306.53
31/12/2007 327,263.73 167,182,042.80
31/01/2008 329,124.36 166,852,918.44
29/02/2008 330,995.57 166,521,922.87
31/03/2008 332,877.42 166,189,045.45
30/04/2008 334,769.97 165,854,275.48
30/05/2008 336,673.27 165,517,602.21
30/06/2008 338,587.40 165,179,014.81
31/07/2008 340,512.41 164,838,502.39
108
29/08/2008 342,448.37 164,496,054.03
30/09/2008 344,395.33 164,151,658.70
31/10/2008 346,353.36 163,805,305.34
28/11/2008 348,322.52 163,456,982.82
31/12/2008 350,302.88 163,106,679.94
30/01/2009 352,294.50 162,754,385.44
27/02/2009 354,297.44 162,400,088.00
31/03/2009 356,311.77 162,043,776.23
28/04/2009 358,337.55 161,685,438.68
29/05/2009 360,374.85 161,325,063.83
30/06/2009 362,423.73 160,962,640.10
31/07/2009 364,484.26 160,598,155.84
28/08/2009 366,556.50 160,231,599.34
30/09/2009 368,640.53 159,862,958.81
30/10/2009 370,736.41 159,492,222.41
30/11/2009 372,844.20 159,119,378.21
31/12/2009 374,963.97 158,744,414.24
29/01/2010 377,095.80 158,367,318.44
26/02/2010 379,239.74 157,988,078.70
31/03/2010 381,395.88 157,606,682.82
28/04/2010 383,564.27 157,223,118.54
28/05/2010 385,745.00 156,837,373.55
30/06/2010 387,938.12 156,449,435.43
30/07/2010 390,143.71 156,059,291.72
31/08/2010 392,361.84 155,666,929.88
30/09/2010 394,592.58 155,272,337.31
29/10/2010 396,836.00 154,875,501.31
30/11/2010 399,092.18 154,476,409.13
31/12/2010 401,361.18 154,075,047.94
31/01/2011 403,643.09 153,671,404.85
28/02/2011 405,937.97 153,265,466.88
31/03/2011 408,245.90 152,857,220.99
28/04/2011 410,566.94 152,446,654.04
31/05/2011 412,901.19 152,033,752.86
30/06/2011 415,248.70 151,618,504.15
29/07/2011 417,609.57 151,200,894.59
31/08/2011 419,983.85 150,780,910.74
30/09/2011 422,371.63 150,358,539.10
31/10/2011 424,772.99 149,933,766.11
30/11/2011 427,188.00 149,506,578.11
30/12/2011 429,616.74 149,076,961.37
31/01/2012 432,059.29 148,644,902.07
109
SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: X. X. Xxxxxx Europe Limited (as Agent)
From: Naviera Teekay Gas IV X.X.
XXXXXXX TEEKAY GAS IV S.L. - EURO 180,000,000 CREDIT AGREEMENT DATED 21ST
DECEMBER, 2001 (AS AMENDED, SUPPLEMENTED OR NOVATED FROM TIME TO TIME)
(THE "CREDIT AGREEMENT") HULL NO. 105
1. Terms defined in the Credit Agreement have the same meaning in this
Certificate.
2. I/We hereby certify that [no Default has occurred and is continuing or is
outstanding] [a Default under Clause [ ] is outstanding and the following
steps are being taken to remedy it [ ](1)](1).
3. The information in this certificate is based on information which has been
properly extracted from the audited consolidated accounts of the Parent
for the year ended [ ], is clerically accurate and has been calculated in
accordance with the Credit Agreement.
Yours faithfully,
[......................](1)
Chief Executive Officer
[or]
..........................
[Senior Officer]
110
and
..........................
[Senior Officer]
111
SCHEDULE 9
FORM OF BANK'S POWER OF ATTORNEY
POWER OF ATTORNEY
On this ... day of .........., 2001.
Before me, ..................., Notary Public of ............., [Country].
Appears Mr. ............, of legal age, [profession], with address at .........,
with passport no. ............., issued in ..........., on ............... and I
have identified him.
Mr. .............................. acts on behalf of [NAME OF THE BANK]
corporate address at [..............] and with company registration number
[..................]. [NAME OF THE BANK] is a company validly incorporated and
duly existing under the Laws of [.............].
I have checked the personal identity of the appearer and the appearer has, in my
opinion, the legal authority necessary to validly execute this document on
behalf of [NAME OF THE BANK] [pursuant to a power of attorney granted to him in
a deed executed before a Notary Public of................, Mr.................
the ............ with number ........ of his notarial file] or [in conformity
with a resolution of its board of directors of.............dated ..........] or
[as director of the company duly appointed on ................].
By these presents [NAME OF BANK] GRANTS FULL POWERS OF ATTORNEY to:
1. [Xx. Xxxxxxx XXXXXXXXX DE XXXXX x XXXX XX XXXXXX, lawyer, married, born on
19th June 1967, of Spanish nationality, domiciled at Xxxxx xx Xxxxxxxx 00,
Xxxxxx, holder of Spanish Identity Card number 51388757, to Xx. Xxxxx
XXXXXXX XXXXX-IBOR, lawyer, married, born on 21st October 1974, of Spanish
nationality, domiciled at Xxxxxxx Xxxxx 7, Madrid, holder of Spanish
Identity Card number 2907552, to Xx. Xxxxx Xxxxxx XXXXXXX XXXXXX, lawyer,
single, born on 23rd August, 1974, of Spanish nationality, domiciled at
Xxxxx xx XxxxxxXx 00, Xxxxxx, holder of Spanish Identity Card number
44900981 to Ms. Beartriz SAINZ STUYCK, lawyer, single, born on 20th April,
1977 of Spanish nationality, domiciled at Xxxxx xx Xxxxxxxx 00, Xxxxxx,
holder of Spanish Identity Card number 2541666-M and to Xx. Xxxxxxx XXXXX
PENAS, lawyer, single, born on 13th July, 1976, of Spanish nationality,
domiciled at Xxxxx xx Xxxxxxxxx 00, Xxxxxx, holder of Spanish Identity
Card number 23261045H] or [ANY AUTHORISED SIGNATORY OF THE BANK WHICH THE
BANK WISHES TO EXECUTE THE DOCUMENTATION] (each, an "ATTORNEY"), so that
any of them, severally, may exercise, in the name and stead of [NAME OF
THE BANK], the following faculties:
(a) to appear before a Notary Public and sign and/or intervene as
"poliza" the Facility Agreement entered into between Naviera Teekay
Gas IV S.L. as Borrower (the "BORROWER"), X. X. Xxxxxx Europe
Limited as Agent (the "AGENT"), JPMorgan Chase Bank, N.A. as a Swap
Bank, X. X. Xxxxxx plc as arranger, X.X. Xxxxxx Bank S.A. (in this
capacity, the "SPANISH SECURITY AGENT") and the several banks and
financial institutions referred to therein as the banks (the
"BANKS") and the several banks and financial institutions referred
to as Swap Banks (as supplemented and amended from time to time, the
"FACILITY AGREEMENT");
112
b) to ratify, if necessary or convenient any such "poliza" executed by
an orally appointed representative in the name or on behalf of [NAME
OF THE BANK];
(c) to execute (under hand or personal seal) and/or do any and all
deeds, documents, acts and things, including the signing of
approvals or forms required before the Spanish Tax Authorities,
and/or the execution of any further notarial deed of amendment
("escritura publica de rectificacion o subsanacion") that may be
required for the purpose of sub-paragraphs (a) or (b) above; and
(d) to execute (under hand or personal seal) and/or do any and all
deeds, documents, acts and things which the Attorney may consider
necessary or expedient for the purpose or in connection with
sub-paragraphs (a), (b), or (c) above;
2. X.X. Xxxxxx Bank S.A. with registered address at Xxxx Xxx, 00 Xxxxxx,
Xxxxx and registered at the Mercantile Registry of Vizcaya at Volume 869,
Book 163 and Sheet B1-13139 and with Tax Identity Number A-48726350 acting
as joint and several creditor and in its capacity as Spanish Security
Agent as its attorney (an "ATTORNEY"), so that it may exercise, in the
name and stead of [NAME OF THE BANK], the following faculties:
(a) to execute, accept, administer and/or enforce any pledge over the
shares in the Borrower and any vessel mortgage created for the
benefit of [NAME OF THE BANK] in its capacity as a Bank;
(b) to ratify, if necessary or convenient any such "poliza" executed by
an orally appointed representative in the name or on behalf of [NAME
OF THE BANK]; and
(c) to execute (under hand or personal seal), administer and enforce
and/or do any and all deeds, documents, acts and things which it may
consider necessary or expedient for the purpose or in connection
with sub-paragraphs (a) and (b) above; and
3. X.X. Xxxxxx Europe Limited with registered address at 000 Xxxxxx Xxxx,
Xxxxxx, XX0X 0XX and with company registration number 938937 in its
capacity as Agent for the Finance Parties (as defined in the Senior
Facility Agreement) as its attorney (an "ATTORNEY"), so that it may
exercise, in the name and stead of [NAME OF THE BANK], the following
faculties:
(a) to execute, accept, administer and enforce any of the guarantees or
assignments granted by third parties of the Borrower in favour of
the Agent and for the benefit, among others, of [NAME OF THE BANK]
in its capacity as a Bank;
(b) to ratify, if necessary or convenient any such "poliza" executed by
an orally appointed representative in the name or on behalf of [NAME
OF THE BANK]; and
(c) to execute (under hand or personal seal), administer and enforce
and/or do any and all deeds, documents, acts and things which it may
consider necessary or expedient for the purpose or in connection
with sub-paragraphs (a) and (b) above.
I certify and attest that all the formalities requested by the laws of ........
for the validity of this instrument have been duly complied with and that under
the laws of ......... this Power of Attorney is not required to be registered in
any public registry.
In witness whereof the undersigned has caused these powers of attorney to be
executed as a deed in ............, this ....... day of ............... 2001.
113
Executed as a deed by
[NAME OF THE BANK]
Acting by Mr............. Signature of the Notary Public
(Signature of the Notary public legalised in accordance with the apostille
procedure provided for under The Hague Convention of 5th October, 1961).
114
SCHEDULE 10
FORM OF DEED OF ASSIGNMENT OF INTEREST
In Madrid, my residence, on the ___________________, 2001
Before me, ..........................., Notary Public of MadriD and of its Bar.
APPEAR
OF ONE PART, Mr. .................., [details of the appearer to be filled in by
the Spanish notary public]
ON THE SECOND PART, Mr. ........................, [details of the appearer to be
filled in by the Spanish notary public]
AND Mr. ..........................., [details of the appearer to be filled in by
the Spanish notary public]
WHO ACT
Mr. ............................., on behalf of [EXISTING BANK], [details of the
Existing Bank and of the appearer's notarised and apostilled powers of attorney
to be filled in by the Spanish notary public].
Mr. ............................. acts on behalf of [NEW BANK], [details of the
New Bank and of the appearer's notarised and apostilled powers of attorney to be
filled in by the Spanish notary public].
Mr. ............................. acts on behalf of X.X. Xxxxxx Bank S.A.
(formerly The Chase Manhattan Bank CMB, S.A.) a as Spanish Security Agent,
[details of the Agent and of the appearer's notarised and apostilled powers of
attorney to be filled in by the Spanish notary public].
WHEREAS
I. [EXISTING BANK] is party to a euro 180,000,000 Facility Agreement dated
..........., 2001 (the "FACILITY AGREEMENT") between, inter alia, the
Spanish company Naviera Teekay Gas IV S.L. (formerly Naviera X. Xxxxxx Gas
IV S.A.) as Borrower (the "BORROWER"), the Existing Bank, X.X. Xxxxxx Bank
S.A. (formerly The Chase Manhattan Bank CMB, S.A.) as Spanish Security
Agent and X.X. Xxxxxx Europe Limited (formerly Chase Manhattan
International Limited) as Agent and the other parties named therein.
II. The Facility Agreement is secured, inter alia, with the following Spanish
law security documents (hereinafter together the "SPANISH SECURITY
DOCUMENTS"):
(i) Mortgage over a 138,000 cmb LNG carrying vessel with Hull Number 105
dated ................ (the "MORTGAGE") relating to the Facility
Agreement granted by the Borrower under a notarial deed authorised
by the Notary Public of [Madrid] Mr. ..................... under
number ...... of his notarial file, and recorded in the [Mercantile
Registry of the Canary Islands] under Book ....., Folio ....., on
the ...............
115
(ii) Pledge over the shares in the Borrower, dated ........... (the
"PLEDGE") relating to the Facility Agreement granted by [insert
details of current shareholder/pledgors] in a notarial deed
authorised by the Notary Public of [Madrid] Mr. ..................
under number ..... of his notarial file.
III. Under a Novation Agreement dated .......... (the "NOVATION AGREEMENT")
between [EXISTING BANK] and [NEW BANK] and the Agent, the [EXISTING BANK]
has assigned to [NEW BANK] [part/all] its rights, obligations and
commitments under the Facility Agreement with effect as of
[...............], including, but not limited, all its rights under the
Spanish Security Documents.
IV. [EXISTING BANK] and [NEW BANK] have agreed to formalise the Novation
Agreement for purposes of Spanish law, and in particular, to validly
assign its rights under the Mortgage and to permit the registration of the
assignment of the Mortgage in the [Mercantile Registry of the Canary
Islands].
CLAUSES
FIRST: The [EXISTING BANK] and [NEW BANK], with the assistance of the Spanish
Security Agent, hereby formalise the Novation Agreement in this notarial deed
delivering to me, the Notary, an original executed copy of the Novation
Certificate, which the parties ratify in its entirety, together with its
certified translation into Spanish, and are hereby incorporated unto this
notarial deed.
The New Bank hereby declares that he knows the terms and conditions of the
Facility Agreement and of the Spanish Security Documents, which it ratifies in
its entirety.
SECOND: For the purposes of Spanish law, the Existing Bank has assigned
[part/all] of its commitments, rights and obligations under the Facility
Agreement as follows:
[details of the portion assigned]
THIRD: The assignment described in the foregoing clauses implies the assignment
of all documents granted as security thereof, including the Spanish Security
Agreements. For such purposes, the portion that the Existing Bank and the New
Bank will have under the Spanish Security Documents will be as follows:
[details of the portion of the Existing Bank and of the portion of the New Bank]
Specifically, for the purposes of clause ...... of the Mortgage, the parties
hereby establish that the share of each the Existing Bank and the New Bank is
fixed as follows:
[details of the portion of the Existing Bank and of the portion of the New Bank
for the purposes of the Mortgage]
FOURTH: [NEW BANK] hereby requests the registration of the Novation Agreement
and of the assignment under the Mortgage in the [Mercantile Registry of the
Canary Islands], and hereby appoints Mr. [..............] and/or Mr.
[..............], so that any of them may file this notarial deed with the
relevant public registry in order to register the assignment of the Mortgage
with the registry, and if applicable to give notice to the Borrower so that the
Novation Agreement and the assignment of the Pledge is duly recorded in the
Registry Book of Share of the Borrower.
For the above purposes, if in the examination of this notarial deed, the
Registrar considers that any clause, provision, paragraph, sub-paragraph line or
mention of this deed is not recordable, the parties
116
hereby expressly accept his opinion and hereby renounce to the registration of
such clause, provision, paragraph, sub-paragraph line or mention, and
specifically requests the partial registration of this deed, so that the
assignment of the Mortgage is duly recorded.
The parties agree, through their attorneys, to execute any and all deeds,
documents, acts and things that they may consider necessary or expedient to duly
register the assignment of the Mortgage to [NEW BANK].
FIFTH: All the costs and expenses derived from the execution of this deed will
be borne by [NEW BANK].
SIXTH: This notarial deed of assignment is governed by Spanish law. [EXISTING
BANK] and [NEW BANK] submit for any litigation which may derive from this deed
to the non-exclusive jurisdiction and competence of the Courts of the city
[Madrid].
So it is said and accepted by the appearers in their capacity as they act, whom
I orally admonish about the legal implications.
After reading this notarial deed, the appearers agree to it, approve it, ratify
it and sign with me, the Notary.
117
SCHEDULE 11
FORM OF DEED OF ACCESSION OF SWAP BANK
THIS DEED dated [ ], [ ] is supplemental to a credit agreement (the "CREDIT
AGREEMENT") dated [ ], [ ] between, inter alia, Naviera Teekay Gas IV S.L. as
the Borrower, the Banks, X.X. Xxxxxx Europe Limited (formerly Chase Manhattan
International Limited) as Agent and X.X. Xxxxxx Bank S.A. (formerly The Chase
Manhattan Bank CMB, S.A.) as Spanish Security Agent.
Words and expressions defined in the Credit Agreement have the same meaning when
used in this Deed.
[Name of new Swap Bank] hereby agrees with each other person who is or who
becomes a party to the Credit Agreement that with effect on and from the date
hereof it will be bound by the Credit Agreement as a Swap Bank as if it had been
party originally to the Credit Agreement in that capacity and that it shall
perform all of the undertakings and agreements set out in the Credit Agreement
and given by a Swap Bank.
The details of Swap Debt covered by this Deed is as follows [ ].
The address for notices of the Swap Bank for the purposes of Clause 33 (Notices)
of the Credit Agreement is:
000 Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
This document takes effect as a deed notwithstanding that the Agent only
executes it under hand.
This Deed is governed by English law.
[Insert appropriate execution language]
Acknowledged.
[Agent]
By:
118
SIGNATORIES
BORROWER
NAVIERA TEEKAY GAS IV S.L.
By:
BANKS
COMMERZBANK AKTIENGESELLSCHAFT, SUCURSAL EN ESPANA
By:
CALYON
By:
JPMORGAN CHASE BANK, N.A.
By:
HSH NORDBANK AKTIENGESELLSCHAFT
By:
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By:
DVB BANK N.V.
By:
CAIXA DE AFORROS DE VIGO OURENSE E PONTEVENDRA - CAIXANOVA
By:
000
XXXX XX XXXXXXX XXXXXXXXXX XXX XXXXXXXX XX XXXXXXX Y XXXXX
By:
KREDITANSTALT FUR WIEDERAUFBAU
By:
SWAP BANKS
JPMORGAN CHASE BANK, N.A.
By:
COMMERZBANK AKTIENGESELLSCHAFT
By:
CALYON
By:
AGENT
X.X. XXXXXX EUROPE LIMITED
By:
SPANISH SECURITY AGENT
X.X. XXXXXX BANK S.A.
By:
120
ARRANGER
X. X. XXXXXX plc
By:
121
NUMBER [___]
APPENDIX A
PART I
NOTARIAL DEED OF MORTGAGE OVER VESSEL
In Madrid, my residence, on the ______________________, 200[ ]
Before me, ____________________________, Notary Public of Madrid and of its Bar.
APPEAR
OF ONE PART,
Mr_________, of legal age, [single/married], [profession], nationality with
domicile in _______________, holder of [Spanish identity card/passport] number
________
ON THE SECOND PART,
Mr__________, of legal age, [single/married], [profession], nationality, with
domicile in _______________, holder of [Spanish identity card/passport] number
________
WHO ACT
The first one, on behalf of NAVIERA TEEKAY GAS IV S.L., (hereinafter the
"MORTGAGOR"), with registered address at C/Musgo n degrees 5, 2 degrees
Plta., XX XXXXXXX 00000, Madrid, and registered in the Mercantile Registry of
Madrid at Volume 16.879, Book 0, Sheet M-288591 and with Tax Identity Number
C.I.F. A-83090605 [in conformity with a resolution of its Board of Directors of
_________________ ] or [as director of the company duly appointed on
______________] or [pursuant to the powers of attorney granted to him in a deed
executed before the Notary Public of ______________, Mr._____________________].
And the second one, on behalf of each of:
1. X X XXXXXX BANK S.A. with registered address at Xxxx Xxx, 00, Xxxxxx,
Xxxxx and registered in the Mercantile Registry of Vizcaya at Book 163 and
Sheet B1-13139 and with Tax Identity Number C.I.F. [ ] in its capacity
as Spanish Security Agent (hereinafter the "SPANISH SECURITY AGENT"),
pursuant to a power of attorney granted to him in a deed executed before
the Notary Public of ______________, Mr._____________________];
2. COMMERZBANK AKTIENGESELLSCHAFT, with company registration
number_______________________________________COMMERZBANK
AKTIENGESELLSCHAFT is a company validly incorporated and duly existing
under the laws of [___________], pursuant to a
122
power of attorney granted to him in a deed executed before the Notary
Public of ______________, Mr._____________________];
3. CALYON, with company registration number SIREN 304 187 701 at the Registre
du Commerce et des Societes of Nanterre [ ] is a company validly
incorporated and duly existing under the laws of France, pursuant to a
power of attorney granted to him in a deed executed before the Notary
Public of ______________, Mr._____________________];
4. JPMORGAN CHASE BANK, N.A., with company registration number [ ] and
registered office at [ ] is a company validly incorporated and duly
existing under the laws of England and Wales, pursuant to a power of
attorney granted to him in a deed executed before the Notary Public of
______________, Mr._____________________];
5. HSH NORDBANK AKTIENGESELLSCHAFT, with company registration
number________________________________________HSH NORDBANK
AKTIENGESELLSCHAFT is a company validly incorporated and duly existing
under the laws of [____________], pursuant to a power of attorney granted
to him in a deed executed before the Notary Public of ______________,
Mr._____________________];
6. THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, a company incorporated
by an Act of Scots Parliament and duly existing under the laws of Scotland
, pursuant to a power of attorney granted to him in a deed executed before
the Notary Public of ______________, Mr._____________________];
(together hereinafter the "BANKS").
The appearers have, in my opinion, as they act full legal authority to execute
this notarial deed of vessel mortgage.
WHEREAS
I. The Banks and the Mortgagor are, inter alia, party to a syndicated credit
facility agreement dated [INSERT DATE] (the "FACILITY AGREEMENT")
evidenced in a notarial deed dated [INSERT DATE] granted before [INSERT
DETAILS] number of this notarial file, under which the Mortgagor has
received a Loan of up to euro180,000,000 from the Banks (hereinafter, the
"LOAN").
The commitment and percentage (%) of participations of the Banks under the
Facility Agreement are as follows:
NAME OF THE BANK COMMITMENTS %
---------------- ----------- -
Commerzbank
Aktiengesellschaft,
Sucursal en Espana
Calyon
JPMorgan Chase Bank, N.A.
123
HSH Nordbank
Aktiengesellschaft
The Governor and Company
of Bank of Scotland
Each interest period is determined in accordance with the Facility
Agreement (an "INTEREST PERIOD").
The rate of interest on the Loan for each Interest Period (the "INTEREST
RATE") shall be the rate per annum determined by X.X. Xxxxxx Europe
Limited as agent under the Facility Agreement (the "AGENT") to be the
aggregate of the applicable:
(a) Margin of 1.20% per annum;
(b) EURIBOR; and
(c) the Mandatory Cost (as defined in the Facility Agreement).
"EURIBOR"
means for an Interest Period
(a) the applicable Screen Rate (as defined in the Facility Agreement) as
of 11.00 a.m. (Brussels time) on the Rate Fixing Day (as defined in
the Facility Agreement) for the offering of deposits in euro for a
period comparable to that Interest Period;
(b) if no Screen Rate is available for that Interest Period, the
arithmetic mean (rounded upwards to the nearest four decimal places)
of the rates, as supplied to the Agent at its request, quoted by the
Reference Banks (as defined in the Facility Agreement) to leading
banks in the European interbank market as of 11.00 a.m. (Brussels
time) on the Rate Fixing Day for the offering of deposits in euro
for a period comparable to that Interest Period; or
(c) if the rate cannot be determined under paragraph (a) or paragraph
(b) above, the rate supplied to the Agent at its request by the
British Bankers' Association for the offering of deposits in euro
for a period commencing on the Rate Fixing Day and comparable to the
Interest Period.
The repayment schedule of the Loan follows: [INSERT REPAYMENT SCHEDULE]
II. That the Mortgagor is the registered owner of the vessel described in
Clause 3.
III. In consideration of the foregoing, the appearers agree to grant this
notarial deed of Vessel Mortgage as security for the full satisfaction and
repayment of all present and future obligations and liabilities of the
Mortgagor under the Facility Agreement described in Recital I which shall
be governed by the following:
124
CLAUSES
FIRST .- MORTGAGE.- Without prejudice to its unlimited liability pursuant to the
provisions of Article 1911 of the Spanish Civil Code and pursuant to the
provisions set out in the last paragraph of Art. 1857 of the Civil Code, the
Mortgagor secures all its present and future obligations and liabilities under
the Facility Agreement described in Recital I and the other Finance Documents
defined in the Facility Agreement (hereinafter the "SECURED LIABILITIES").
To such effect, the Mortgagor CREATES A MORTGAGE in favour of all the Banks as
joint and several creditors under the Facility Agreement as stated in Recital I
above in a proportionate manner to their respective commitments under the
Facility Agreement, which accept it, over the vessel described in Clause 3
(hereinafter, the "VESSEL") as security for the payment of the Secured
Liabilities for an amount of principal euro 185,000,000, for any interest,
accrued at the Interest Rate during the term of 24 months up to a maximum amount
pursuant to Article 10 of the Ship Mortgage Law of euro 18,500,000, for any
default interest, accrued at the Default Rate (as defined in the Facility
Agreement) during the term of 24 months for a maximum pursuant to Article 10 of
the Ship Mortgage Law of euro 37,000,000, for the repayment of the legal costs
and expenses from the eventual judicial or extrajudicial enforcement of the
mortgage up to a maximum of euro 9,250,000 and any costs in relation to the
effectiveness of the guarantee and conservation of the Vessel such as, inter
alia, the payment of taxes over the Vessel and the costs of ownership,
maintenance, fees and insurance premiums for the Vessel up to a maximum of euro
9,250,000.
For the purpose of the provisions of Articles 571 and seq. of Law 1/2000 of 7th
January, 2000, it is expressly agreed by the parties that the determination of
the debt able to be claimed in executive proceedings shall be carried out by a
certificate issued by the Spanish Security Agent as agent for the Banks which
evidences the balance of the account or accounts of the Mortgagor. By virtue of
the foregoing, the presentation of this deed duly notarised and of the notarial
record which incorporates the certificate, as issued by the Spanish Security
Agent as agent for the Banks, of the balance shown in the account of the
Mortgagor, evidencing that the determination of the debt has been carried out in
the manner stipulated in this deed by the parties and that the balance coincides
with the one which appears in the account or accounts of the Mortgagor, shall be
sufficient in order to exercise the executive proceedings.
It is hereby expressly agreed that the balance of each such account shall be
considered as an acknowledgement of debt due by the Mortgagor to the Banks, and
may be claimed pursuant to Clause Fifth.
Consequently, it is hereby expressly agreed that the Secured Liabilities amount
to euro 259,000,000.
The mortgage granted in this deed shall remain in full force and effect until
the Banks are satisfied that any and all Secured Liabilities have been
unconditionally and irrevocably paid and discharged in full.
SECOND.- The mortgage will extend to all chattels, rents, issues, profits,
indemnities, time charters and other ancillary elements expressed in article 7
of the Ship Mortgage Law, including any improvements or new equipment that may
be incorporated.
The extension of the mortgage to the aforesaid goods may be waived by the Banks
when requesting the public auction of the Vessel before the Court which deals
with the proceedings.
The mortgage shall be expressly extended to the indemnities raised from
insurance from time to time which belongs to the Vessel as well as to the
premiums which may be paid by the Agent, the Spanish Security Agent or any of
the Banks pursuant to Clause Fourth paragraph (c) below.
125
The parties instruct the notary public to notify to the relevant insurance
company [INSERT DETAILS IF KNOWN] of the existence of this mortgage over the
Vessel through a Notary conduct ("conducto notarial") in accordance with Article
40 of the Spanish law on Insurance Contract.
THIRD.-
[DESCRIPTION OF THE MORTGAGED VESSEL]
[TITLE]
[REGISTERED]
[CHARGES]
[DETAILS ON INSURANCE POLICIES]
The Vessel has been valued at euro [INSERT AMOUNT - TO BE PROVIDED BY APPROVED
VALUER (AS DEFINED IN THE FACILITY AGREEMENT) AT THE TIME OF DELIVERY].
If the above valuation of the Vessel would be disproportionate to its market
value at the time of enforcement of this notarial deed, the Majority Banks (as
defined in the Facility Agreement) will be entitled to request a second
valuation of an independent expert who will be appointed by the Directorate
General of the Merchant Marine or such equivalent administrative body which
replaced it.
The parties agree that the higher of both valuations of the Vessel shall be used
as the rate for enforcement purposes.
FOURTH.- From the date hereof and whilst any obligations arising from this deed
have not been completely settled, the Mortgagor undertakes, in addition and
without prejudice to the covenants contained in the Facility Agreement:
(a) to maintain the Vessel in good repair and working condition and to effect
in the Vessel, any ordinary and extraordinary repairs that would be
necessary to maintain its value and operation, notifying the Spanish
Security Agent of any damage or loss suffered by the Vessel;
(b) to pay contributions, taxes, wages, salaries and social contributions of
the crew, local taxes and other legitimate expenses that it should pay
levied on the Vessel or on this mortgage, providing to the Spanish
Security Agent any receipt issued for such payments if it so requires;
(c) to insure and maintain insured the Vessel against the risk of fire,
damages and loss, lightening, explosion and other similar risks for the
duration of the security, in an insurance company of notorious solvency
and to pay promptly all the insurance premiums. The Mortgagor undertakes
from time to time at the request of the Spanish Security Agent to forward
to the Spanish Security Agent evidence that the relevant premiums have
been duly paid;
126
Neither the insured amount nor any insurance policy can be modified
without the prior written consent of the Majority Banks. The Agent or any
of the Banks are expressly authorised to pay the insurance premiums on
behalf of the Mortgagor if any insurance policy is terminated for any
cause and has not been replaced by another insurance policy on
substantially the same terms;
(d) to keep the certificate of ownership of the Vessel on board pursuant to
Article 14 of the Ship Mortgage Law;
(e) generally, to comply with the terms and conditions established in the
Facility Agreement;
(f) not to sell or mortgage the Vessel without the prior written consent of
all of the Banks); and
(g) not to execute or enter into any type of transaction which implies any
type of financial facilities or credit rights (the so called "prestamo a
la gruesa") or credit with rights of retention of title which charge the
Vessel and which are preferred to this mortgage in accordance with Article
32 and seq. of the Ship Mortgage Law or by the Convention of Brussels on
Unification of Rules Related to Ship Mortgages dated 27th May, 1967
without the prior written consent of the Majority Banks.
FIFTH.- The mortgage may be enforced by the Spanish Security Agent, at the
election of the Majority Banks , following any of the proceedings available
under the Spanish Civil Procedural Law (Law 1/2/2000 of 7th January) and under
mortgage regulations and their related provisions subject to compliance, in each
case, with the provisions of Articles 41 to 44 of the Ship Mortgage Law, upon
the occurrence of any of the events of default listed below:
(a) in any of the events of default set out in Clause 19 of the Facility
Agreement, and in particular, default in the payment obligations of the
Mortgagor;
(b) the judicial request by the Mortgagor of suspension of payments or
bankruptcy or the request of bankruptcy by a third party, or the inability
of the Mortgagor to honour its obligations when due, or the proposal of
any agreement in benefit of one or more of its creditors.
(c) default by the Mortgagor of any of its obligations under this deed of
first ranking mortgage, in particular of the payment of the insurance
premiums;
(d) if the Vessel is wrecked for sailing;
(e) if the Vessel is disposed of without the prior written consent of the
Majority Banks, provided the Mortgagor has not made a deposit for an
amount equal to the Secured Liabilities in the manner provided under
articles 1177 and 1180 of the Spanish Civil code. Any amounts due by the
Mortgagor to the Banks will be claimed through a notary public prior to
the enforcement of this Mortgage.
Pursuant to Article 48 of the Ship Mortgage Law this Deed may be enforced at the
election of the Spanish Security Agent (acting on the instructions of the
Majority Banks) in any jurisdiction where the Vessel may be located, in the
jurisdiction where this Deed is executed, in the jurisdiction where this Deed is
registered or, if different, in the jurisdiction of the address of the
Mortgagor.
From now on the Mortgagor expressly authorises the Banks to request, on their
own, the issue of a second and further copies of this notarial deed to the
effect of the provisions set out in paragraph 4 of
127
Article 517 of the new Civil Procedural Law (Law 1/2000 of 7th January). The
Mortgagor provides its consent so that any second or further copies of this
notarial deed shall have executive character and that this circumstance is
mentioned in the expedition note.
SIXTH.- If the Vessel is abandoned by the Mortgagor, the Spanish Security Agent,
as agent for the Banks, will be entitled to take "interim" possession to
maintain the Vessel, adopting to such effect the required actions to avoid the
loss or damage of the Vessel, including its displacement to any seaport or other
place where the integrity of the Vessel is guaranteed. The certificate of the
relevant Marine authority informing the abandonment, unjustified inactivity or
other similar circumstances will be sufficient to evidence the abandonment of
the Vessel.
All the costs and expenses generated shall be borne by the Mortgagor.
SEVENTH .- The Mortgagor shall pay any expenses arising from the execution,
registration, cancellation and amendment of the mortgage created under this deed
(except the costs of amendments requested at the sole discretion of the Banks),
and those arising from the issue of a First Copy for the Spanish Security Agent
or for any of the Banks, and those arising from its registration in the Special
Registry of Ships of the Canary Islands, the release of the mortgage, and all
taxes (including those that are levied today or in the future). However, the
costs of transferring the interest of any Bank in this Mortgage in accordance
with Clause 11 below shall be borne by the new bank.
The Mortgagor will also pay all costs, expenses and damages due to the
non-compliance of this deed, including the fees of the lawyer and the court
agent, if the Banks or any of them have used their services, even if these were
not legally necessary.
EIGHTH .- The Mortgagor undertakes to execute bearing all costs, at the request
of the Spanish Security Agent, any further notarial deed of amendment
("Escritura de Rectificacion o Subsanacion") that may be required in order to
record this mortgage in the Special Registry of Ships of the Canary Islands and
to amend and complete any defect indicated by the written or oral comments of
the Registrar who examines this deed.
For this purpose, the Mortgagor hereby appoints Mr. [INSERT CONTACT] and Mr.
[Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx] and Mr. [XXXXXXX XXXXX PEOAS], so
that any of them may grant as many notarial deeds of amendment as may be
required to record this mortgage in the Special Registry of Ships of the Canary
Islands and determine the content of such subsanation or rectification deed to
complete or correct any defect indicated by the Registrar which may prevent the
recording of the mortgage.
NINTH .- If in the examination of this deed, the Registrar opines that any
clause, provision, paragraph, subparagraph, line or mention in this deed is not
recordable, the parties expressly accept its opinion and hereby renounce to the
registration of such a clause, provision, paragraph, subparagraph, line or
mention, and specifically request the partial registration of this deed, so that
this deed is recorded and the mortgage is created.
TENTH.- The parties declare that the operation hereby formalised is not subject
to VAT and is subject to Stamp Duty Tax but exempted to it pursuant to article
74 of Law 19/1994 of 6th July on Special Tax Regime in the Canary Islands.
128
ELEVENTH.-: Any of the Banks shall have the right to assign or novate its
interest in this Mortgage in accordance with the provisions of Clause 27
(Changes to the Parties) of the Facility Agreement without the consent of the
Mortgagor.
The Mortgagor is not allowed to assign this mortgage without the prior written
consent of the Majority Banks.
TWELFTH.-: Any notification required in any enforcement procedure shall be
delivered to the following addresses:
- The Spanish Security Agent
Xxxxx xx xx Xxxxxxxxxx, 00
00000, Xxxxxx
Xxxxx
Facsimile: x00 00 000 0000
Attention: Xxxxxxx Xxxxxx
- The Mortgagor
c/o Musgo n degrees 5
2 degrees Plta
XX XXXXXXX
00000, Madrid
Facsimile: x00 00 000 0000
Attention: Xxxxxx Xxxx
THIRTEENTH: This Mortgage shall be governed by Spanish law and by the relevant
international treaties under which Spain is a party, specially by the Convention
of Brussels on Unification of Rules Related to Ship Mortgages dated 27th May,
1967.
So it is said and accepted by the appearers in their capacity as they act, whom
I orally admonish about the legal implications.
After reading this notarial deed, the appearers agree to it, approve it, ratify
it and sign with me, the Notary.
[EXECUTION PROVISIONS TO BE COMPLETED BY THE MADRID NOTARY]
129
NUMBER [___]
APPENDIX A
PART II
AIE NOTARIAL DEED OF MORTGAGE OVER VESSEL
[TO BE AMENDED BY A & O MADRID FOLLOWING AGREEMENT OF MORTGAGE AMENDMENT DEED]
In Madrid, my residence, on the ______________________, 200[ ]
Before me, ____________________________ Notary Public of Madrid and of its Bar.
APPEAR
OF ONE PART,
Mr_________, of legal age, [single/married], [profession], nationality with
domicile in _______________, holder of [Spanish identity card/passport] number
________
ON THE SECOND PART,
Mr_________, of legal age, [single/married], [profession], nationality, with
domicile in _______________, holder of [Spanish identity card/passport] number
___________
WHO ACT
The first one, on behalf of [A.I.E. INSERT FULL NAME]., (hereinafter the
"MORTGAGOR"), with registered address at [INSERT ADDRESS], and registered in the
Mercantile Registry of [_________] at Volume [______], Book [________], Sheet
[________] and with Tax Identity Number (C.I.F.) [______], [in conformity with a
resolution of its Board of Directors of _________________ ] or [as director of
the company duly appointed on ______________] or [pursuant to the powers of
attorney granted to him in a deed executed before the Notary Public of
______________, Mr._____________________].
And the second one, on behalf of each of:
1. X.X. XXXXXX BANK S.A. with registered address at Xxxx Xxx, 00, Xxxxxx,
Xxxxx and registered in the Mercantile Registry of at Volume 869 Book 163
and Sheet BI-13139 and with Tax Identity Number C.I.F. [ ] in its
capacity as Spanish Security Agent (hereinafter the "SPANISH SECURITY
AGENT"), pursuant to a power of attorney granted to him in a deed executed
before the Notary Public of ______________, Mr._____________________];
2. COMMERZBANK AKTIENGESELLSCHAFT, with company registration
number____________________________________________COMMERZBANK
AKTIENGESELLSCHAFT is a company validly incorporated and duly existing
under the laws of [____________], pursuant to a
130
power of attorney granted to him in a deed executed before the Notary
Public of ______________, Mr._____________________];
3. CALYON, with company registration number SIREN 304 187 701 at the Registre
du Commerce et des Societes of Nanterre [ ] is a company validly
incorporated and duly existing under the laws of France, pursuant to a
power of attorney granted to him in a deed executed before the Notary
Public of ______________, Mr._____________________];
4. JPMORGAN CHASE BANK, N.A., with company registration number [ ] and
registered office at [ ] is a company validly incorporated and duly
existing under the laws of England and Wales, pursuant to a power of
attorney granted to him in a deed executed before the Notary Public of
______________, Mr._____________________];
5. HSH NORDBANK AKTIENGESELLSCHAFT, with company registration
number_______________________________________HSH NORDBANK
AKTIENGESELLSCHAFT is a company validly incorporated and duly existing
under the laws of [____________], pursuant to a power of attorney granted
to him in a deed executed before the Notary Public of ______________,
Mr._____________________],
6. THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, a company incorporated
by an Act of Scots Parliament and duly existing under the laws of Scotland
, pursuant to a power of attorney granted to him in a deed executed before
the Notary Public of ______________, Mr._____________________];
(together hereinafter the "BANKS").
The appearers have, in my opinion, as they act full legal authority to execute
this notarial deed of vessel mortgage.
WHEREAS
I. The Mortgagor has agreed with NAVIERA TEEKAY GAS IV S.L., (hereinafter the
"BUYER"), with registered address at C/Musgo n degrees 5, 2 degrees Plta.,
XX XXXXXXX 00000, Madrid to supply a liquid natural gas carrier more
particularly described in Clause 3 below to the Buyer under the document
described below.
II. The Vessel has been constructed by IZAR CONSTRUCCIONES XXXXXXX, X.X.
(hereinafter the "BUILDER") in accordance with a shipbuilding contract
dated 23rd December, 2000 as amended and restated on , December, 2001
between SUPERAPPLY LIMITED (hereinafter "SUPERAPPLY") and the Builder and
as novated in favour of the Mortgagor pursuant to a novation agreement
dated [INSERT DATE] between the Builder, Superapply and the Mortgagor (the
"SHIPBUILDING CONTRACT").
III. The Mortgagor will supply the Vessel to the Buyer pursuant to a bareboat
charter between the Mortgagor and the Buyer dated [INSERT DATE] (the
"BAREBOAT CHARTER").
IV. The Buyer has made instalment payments to the Mortgagor in accordance with
a schedule of payments annexed to the Bareboat Charter which total euro
160,000,000.
131
V. In order to make the instalment payments to the Mortgagor, the Buyer has
entered into, inter alia, a syndicated credit facility agreement dated
December, 2001, (the "FACILITY AGREEMENT") evidenced in a notarial deed
dated [INSERT DATE] granted before [INSERT DETAILS] number of this
notarial file. Under the Facility Agreement, the Mortgagor has received a
loan of up to euro 185,000,000 from the Banks (hereinafter, the "LOAN").
The commitments and percentage (%) of participations of the Banks under
the Facility Agreement are as follows:
Name of the Bank Commitments %
---------------- ----------- -
Commerzbank
Aktiengesellschaft,
Sucursal en Espana
Calyon
JPMorgan Chase Bank,
N.A.
HSH Nordbank
Aktiengesellschaft
The Governor and
Company of the
Bank of Scotland
Each interest period is determined in accordance with the Facility
Agreement (an "INTEREST PERIOD").
The rate of interest on the Loan for each Interest Period (the "INTEREST
RATE") shall be the rate per annum determined by X.X. Xxxxxx Europe
Limited as agent under the Facility Agreement (the "AGENT") to be the
aggregate of the applicable:
(a) Margin of 1.20% per annum;
(b) EURIBOR; and
(c) the Mandatory Cost (as defined in the Facility Agreement).
"EURIBOR"
means:
(a) the applicable Screen Rate (as defined in the Facility Agreement) as
of 11.00 a.m. (Brussels time) on the Rate Fixing Day (as defined in
the Facility Agreement) for the offering of deposits in euro for a
period comparable to that Interest Period;
(b) if no Screen Rate is available for that Interest period, the
arithmetic mean (rounded upward to the nearest four decimal place) of
the rate, as supplied to the Agent at its request, quoted by the
Reference Banks (as defined in the Facility Agreement) to leading
banks in the European interbank market as of 11.00 a.m. (Brussels
time) on
132
the Rate Fixing Day for the offering of deposits in euro for a period
comparable to that Interest Period; and
(c) if the rate cannot be determined under paragraph (a) or paragraph (b)
above, the rate supplied to the Agent at its request by the British
Bankers' Association for the offering of deposits in euro for a period
commencing on the Rate fixing Date and comparable to the Interest
Period.
The repayment schedule of the Loan is as follows:
[INSERT REPAYMENT SCHEDULE]
VI. That the Mortgagor is the registered owner of the vessel described in
Clause 3.
VII. In consideration of the foregoing, the appearers agree to grant this
notarial deed of Vessel Mortgage as security for the full satisfaction and
repayment of all present and future obligations and liabilities of the
Buyer under the Facility Agreement described in Recital V which shall be
governed by the following:
CLAUSES
FIRST .- MORTGAGE.- The Mortgagor CREATES A MORTGAGE in favour of all the Banks
as joint and several creditors under the Facility Agreement in a proportionate
manner to their respective commitments under the Facility Agreement as stated in
Recital V above, which accept it, over the vessel described in Clause 3
(hereinafter, the "VESSEL") as security for the payment by the Buyer of all of
the Buyer's present and future obligations and liabilities under the Facility
Agreement (hereinafter the "SECURED LIABILITIES") for an amount of principal
euro 180,000,000, for any interest,], accrued at the Interest Rate during the
term of 24 months up to a maximum amount pursuant to Art. 10 of the Ship
Mortgage Law of euro 18,500,000, for any default interest, accrued at the
Default Rate (as defined in the Facility Agreement) during the term of 24 months
for a maximum pursuant to Article 10 of the Ship Mortgage Law of euro
37,000,000, for the repayment of the legal costs and expenses from the eventual
judicial or extrajudicial enforcement of the mortgage up to a maximum of euro
9,250,000 and any costs in relation to the effectiveness of the guarantee and
conservation of the Vessel such as, inter alia, the payment of taxes over the
Vessel and the costs of ownership, maintenance fees and insurance premiums for
the Vessel up to a maximum of euro 9,250,000.
This mortgage is created without prejudice to the unlimited liability of the
Buyer pursuant to the provisions of Article 1911 of the Spanish Civil Code and
pursuant to the provisions set out in the last paragraph of Article 1857 of the
Spanish Civil Code.
For the purpose of the provisions of Articles 571 and seq. of Law 1/2000 of 7th
January, 2000, it is expressly agreed by the parties that the determination of
the debt able to be claimed in executive proceedings shall be carried out by a
certificate issued by the Spanish Security Agent as agent for the Banks which
evidences the balance of the account or accounts of the Buyer. By virtue of the
foregoing, the presentation of this deed duly notarised and of the notarial
record which incorporates the certificate, as issued by the Spanish Security
Agent as agent for the Banks, of the balance shown in the account of the Buyer,
evidencing that the determination of the debt has been carried out in the manner
stipulated in this deed by the parties and that the balance coincides with the
one which
133
appears in the account or accounts of the Buyer, shall be sufficient in order to
exercise the executive proceedings.
It is hereby expressly agreed that the balance of each such account shall be
considered as an acknowledgement of debt due by the Buyer to the Banks, and may
be claimed pursuant to Clause Fifth.
Consequently, it is hereby expressly agreed that the Secured Liabilities amount
to euro 259,000,000.
The mortgage granted in this deed shall remain in full force and effect until
the Banks are satisfied that any and all Secured Liabilities have been
unconditionally and irrevocably paid and discharged in full.
SECOND.- The mortgage will extend to all chattels, rents, issues, profits,
indemnities, and other ancillary elements expressed in Article 7 of the Ship
Mortgage Law, including any improvements or new equipment that may be
incorporated.
The extension of the mortgage to the aforesaid goods may be waived by the Banks
when requesting the public auction of the Vessel before the Court which deals
with the proceedings.
The mortgage shall be expressly extended to the indemnities raised from
insurance from time to time which belongs to the Vessel as well as to the
premiums which may be paid by the Agent, the Spanish Security Agent or any of
the Banks pursuant to the Facility Agreement.
The parties instruct the notary public to notify to the [relevant insurance
company][INSERT DETAILS IF KNOWN] of the existence of this mortgage over the
Vessel through a Notary conduct ("conducto notarial") in accordance with Article
40 of the Spanish law on Insurance Contract.
THIRD.-
[DESCRIPTION OF THE MORTGAGED VESSEL]
[TITLE]
[REGISTERED]
[CHARGES]
[DETAILS ON INSURANCE POLICIES]
The Vessel has been valued at euro [INSERT AMOUNT - TO BE PROVIDED BY APPROVED
VALUER (AS DEFINED IN THE FACILITY AGREEMENT) AT THE TIME OF DELIVERY OF THE
VESSEL].
If the above valuation of the Vessel would be disproportionate to its market
value at the time of enforcement of this notarial deed, the Majority Banks (as
defined in the Facility Agreement) will be entitled to request a second
valuation of an independent expert who will be appointed by the Directorate
General of the Merchant Marine or such equivalent administrative body which
replaced it.
The parties agree that the higher of both valuations of the Vessel shall be used
as the rate for enforcement purposes.
134
FOURTH.- From the date hereof and whilst any obligations arising from this deed
have not been completely settled, the Mortgagor undertakes:
- to keep the certificate of ownership of the Vessel on board pursuant to
Article 14 of the Ship Mortgage Law;
- not to sell or mortgage the Vessel without the prior written consent of
all of the Banks; and
- not to execute or enter into any type of transaction which implies any
type of financial facilities or credit rights (the so called "prestamo a
la gruesa") or credit with rights of retention of title which charge the
Vessel and which are preferred to this mortgage in accordance with Article
32 and seq. of the Ship Mortgage Law or by the Convention of Brussels on
Unification of Rules Related to Ship Mortgages dated 27th May, 1967
without the prior written consent of the Majority Banks.
FIFTH.- The mortgage may be enforced by the Spanish Security Agent, at the
election of the Majority Banks, following any of the proceedings available under
the Spanish Civil Procedural Law (Law 1/2/2000 of 7th January) and under
mortgage regulations and their related provisions subject to compliance, in each
case, with the provisions of Articles 41 to 44 of the Ship Mortgage Law, upon
the occurrence of any of the events of default listed below:
(a) in any of the events of default set out in Clause 19 of the Facility
Agreement, and in particular, default in the payment obligations of the
Buyer;
(b) the judicial request by the Buyer or the Mortgagor of suspension of
payments or bankruptcy or the request of bankruptcy by a third party, or
the inability of the Buyer or the Mortgagor to honour its obligations when
due, or the proposal of any agreement in benefit of one or more of its
creditors.
(c) default by the Mortgagor of any of its obligations under this deed of
mortgage;
(d) if the Vessel is wrecked for sailing;
(e) if the Vessel is disposed of without the prior written consent of the
Majority Banks, provided the Mortgagor has not made a deposit for an
amount equal to the Secured Liabilities in the manner provided under
articles 1177 and 1180 of the Spanish Civil code. Any amounts due by the
Mortgagor to the Banks will be claimed through a notary public prior to
the enforcement of this Mortgage.
Pursuant to Article 48 of the Ship Mortgage Law this Deed may be enforced at the
election of the Spanish Security Agent (acting on the instructions of the
Majority Banks) in any jurisdiction where the Vessel may be located, in the
jurisdiction where this Deed is executed, in the jurisdiction where this Deed is
registered or, if different, in the jurisdiction of the address of the Buyer or
the Mortgagor.
From now on the Mortgagor expressly authorises the Banks to request, on their
own, the issue of a second and further copies of this notarial deed to the
effect of the provisions set out in paragraph 4 of Article 517 of the new Civil
Procedural Law (Law 1/2000 of 7th January). The Mortgagor provides
135
its consent so that any second or further copies of this notarial deed shall
have executive character and that this circumstance is mentioned in the
expedition note.
SIXTH.- If the Vessel is abandoned by the Mortgagor, the Spanish Security Agent,
as agent for the Banks, will be entitled to take "interim" possession to
maintain the Vessel, adopting to such effect the required actions to avoid the
loss or damage of the Vessel, including its displacement to any seaport or other
place where the integrity of the Vessel is guaranteed. The certificate of the
relevant Marine authority informing the abandonment, unjustified inactivity or
other similar circumstances will be sufficient to evidence the abandonment of
the Vessel.
All the costs and expenses generated shall be borne by the Mortgagor.
SEVENTH .-
Any expenses arising from the execution, registration, cancellation and
amendment of the mortgage created under this deed and those arising from the
issue of a First Copy for the Spanish Security Agent or for any Banks, and those
arising from its registration in the Special Registry of Ship of the Canary
Islands, the release of this deed of mortgage and all taxes (including those
that are levied today or in the future) shall be paid by the Buyer in accordance
with Clause 10.7 (Payments) of the Facility Agreement.
The Mortgagor will also pay all costs, expenses and damages due to its
non-compliance with this deed, including the fees of the lawyer and the court
agent, if the Banks or any of them have used their services, even if these were
not legally necessary.
EIGHTH .- If any further notarial deed of amendment ("Escritura de Rectificacion
o Subsanacion") is required in order to record this mortgage in the Special
Registry of Ships of the Canary Islands and to amend and complete any defect
indicated by the written or oral comments of the Registrar who examines this
deed, the Mortgagor undertakes to enter such further notarial deed of amendment.
For this purpose, the Mortgagor hereby appoints Mr. [INSERT CONTACT] and Mr.
[Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx] and Mr. [INSERT CONTACT], so that
any of them may grant as many notarial deeds of amendment as may be required to
record this mortgage in the Special Registry of Ships of [the Canary Islands]
and determine the content of such subsanation or rectification deed to complete
or correct any defect indicated by the Registrar which may prevent the recording
of the mortgage.
NINTH .- If in the examination of this deed, the Registrar opines that any
clause, provision, paragraph, subparagraph, line or mention in this deed is not
recordable, the parties expressly accept its opinion and hereby renounce to the
registration of such a clause, provision, paragraph, subparagraph, line or
mention, and specifically request the partial registration of this deed, so that
this deed is recorded and the mortgage is created.
TENTH.- The parties declare that the operation hereby formalised is not subject
to VAT and is subject to Stamp Duty Tax but exempted to it pursuant to article
74 of Law 19/1994 of 6th July on Special Tax Regime in the Canary Islands.
136
ELEVENTH.-: Any of the Banks shall have the right to assign or novate its
interest in this Mortgage in accordance with the provisions of Clause 27
(Changes to the Parties) of the Facility Agreement without the consent of the
Mortgagor.
The Mortgagor is not allowed to assign this mortgage without the prior written
consent of the Majority Banks.
TWELFTH.-: Any notification required in any enforcement procedure shall be
delivered to the following addresses:
- The Spanish Security Agent
Xxxxx xx xx Xxxxxxxxxx, 00
00000 Xxxxxx
Xxxxx
Facsimile: x00 00 000 0000
Attention: Xxxxxxx Xxxxxx
- The Mortgagor
Xxxxx xx xx Xxxxxxxxxx, 00
00000Xxxxxx
Xxxxx
Facsimile: [INSERT NUMBER]
Attention: [INSERT CONTACT]
THIRTEENTH: This Mortgage shall be governed by Spanish law and by the relevant
international treaties under which Spain is a party, specially by the Convention
of Brussels on Unification of Rules Related to Ship Mortgages dated 27th May,
1967.
So it is said and accepted by the appearers in their capacity as they act, whom
I orally admonish about the legal implications.
After reading this notarial deed, the appearers agree to it, approve it, ratify
it and sign with me, the Notary.
[EXECUTION PROVISIONS TO BE COMPLETED BY THE MADRID NOTARY]
137
NUMBER [___]
APPENDIX B
PART I
NOTARIAL DEED OF MORTGAGE OVER VESSEL
[SWAP BANK MORTGAGE]
In Madrid, my residence, on the ______________________, 200[ ]
Before me, ____________________________, Notary Public of Madrid and of its Bar.
APPEAR
OF ONE PART,
Mr_________, of legal age, [single/married], [profession], nationality with
domicile in _______________, holder of [Spanish identity card/passport] number
________
ON THE SECOND PART,
Mr_________, of legal age, [single/married], [profession], nationality, with
domicile in________________, holder of [Spanish identity card/passport] number
________
WHO ACT
The first one, on behalf of NAVIERA TEEKAY GAS IV S.L., (hereinafter the
"MORTGAGOR"), with registered address at C/Musgo n degrees 5, 2 degrees
Plta., XX XXXXXXX 00000, Madrid, and registered in the Mercantile Registry of
Madrid at Volume 16.879, Book 0, Sheet M-288591 and with Tax Identity Number
C.I.F. A-83090605 [in conformity with a resolution of its Board of Directors of
_________________ ] or [as director of the company duly appointed on
______________] or [pursuant to the powers of attorney granted to him in a deed
executed before the Notary Public of ______________, Mr._____________________].
And the second one, on behalf of each of:
1. X.X. XXXXXX BANK S.A. with registered address at Xxxx Xxx, 00, Xxxxxx,
Xxxxx and registered in the Mercantile Registry of Vizcaya at Volume 869
Book 163 and Sheet B1-13139 and with Tax Identity Number C.I.F.[INSERT
NO.] in its capacity as Spanish Security Agent (hereinafter the "SPANISH
SECURITY AGENT"), pursuant to a power of attorney granted to him in a deed
executed before the Notary Public of ______________,
Mr._____________________];
2. [INSERT DETAILS OF APPROPRIATE SWAP BANK], in its capacity as a Swap Bank
(hereinafter, the "BANK"), with [company registration][corporate] number
[INSERT NUMBER]. The Bank is a
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company validly incorporated and duly existing under the laws of [England
and Wales], pursuant to a power of attorney granted to him in a deed
executed before the Notary Public of ________ , Mr.
________________________.
The appearers have, in my opinion, as they act full legal authority to execute
this notarial deed of vessel mortgage.
WHEREAS
I. The Mortgagor and the Bank have entered into an interest rate swap
transaction dated [INSERT DATE] (the "TRANSACTION") which is governed by,
supplements and forms part of an ISDA Master Agreement between the
Mortgagor and the Bank dated as of [INSERT DATE] (the "ISDA" and, together
with the Transaction, the "SWAP AGREEMENT").
II. That the Mortgagor is the registered owner of the vessel described in
Clause 3.
III. In consideration of the foregoing, the appearers agree to grant this
notarial deed of Vessel Mortgage as security for the full satisfaction and
repayment of all present and future obligations and liabilities of the
Mortgagor under the Swap Agreement described in Recital I which shall be
governed by the following:
CLAUSES
FIRST .- MORTGAGE.- Without prejudice to its unlimited liability pursuant to the
provisions of Article 1911 of the Spanish Civil Code and pursuant to the
provisions set out in the last paragraph of Art. 1857 of the Civil Code, the
Mortgagor secures all its present and future obligations and liabilities under
the Swap Agreement described in Recital I (hereinafter the "SECURED
LIABILITIES").
To such effect, the Mortgagor CREATES A MORTGAGE with equal ranking to:
1. the vessel mortgage granted before me [INSERT DETAILS OF THE SPANISH
NOTARY PUBLIC] at the date hereof in favour of the Banks (as defined in
the credit facility agreement dated [INSERT DATE], between, inter alia,
the Mortgagor and the Spanish Security Agent the ("FACILITY AGREEMENT") to
secure the payment obligations of the Mortgagor under the Facility
Agreement;
2. the vessel mortgage granted before me [INSERT DETAILS OF THE SPANISH
NOTARY PUBLIC] at the date hereof in favour of [INSERT NAME OF APPROPRIATE
SWAP BANK] to secure the payment obligations of the Mortgagor under a swap
agreement with [INSERT NAME OF APPROPRIATE SWAP BANK];
3. the vessel mortgage granted before me [INSERT DETAILS OF THE SPANISH
NOTARY PUBLIC] at the date hereof in favour of [INSERT NAME OF APPROPRIATE
SWAP BANK] to secure the payment obligations of the Mortgagor under a swap
agreement with [INSERT NAME OF APPROPRIATE SWAP BANK];
in favour of the Bank as creditor under the Swap Agreement, which accepts
it, over the vessel described in clause 3 (hereinafter, the "VESSEL") as
security for the payment of the Secured Liabilities for an amount of
principal euro [COMPLETE WHEN DETAILS OF RELEVANT SWAP BANK'S SWAP
COMMITMENT IS ASCERTAINED - I.E. THE PROPORTION OF TOTAL AMOUNT OF THE
SWAP (E185 MILLION) TAKEN BY SWAP BANK (THE "MORTGAGE VALUE")], for
any interest accrued at the
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Interest Rate (as defined in the Facility Agreement) during the term of 24
months up to a maximum amount pursuant to Art. 10 of the Ship Mortgage Law
of euro [INSERT 10% OF THE MORTGAGE VALUE], for any default interest
accrued at the Default Rate (as defined in the Facility Agreement) during
the term of 24 months for a maximum pursuant to Art. 10 of the Ship
Mortgage Law of euro [INSERT 20% OF THE MORTGAGE VALUE], for the repayment
of the legal costs and expenses from the eventual judicial or
extrajudicial enforcement of the mortgage up to a maximum of euro [INSERT
5% OF THE MORTGAGE VALUE] and any costs in relation to the effectiveness
of the guarantee and conservation of the Vessel such as, inter alia, the
payment of taxes over the Vessel and the ownership maintenance fees and
insurance premium for the Vessel up to a maximum of euro [INSERT 5% OF
MORTGAGE VALUE].
For the purpose of the provisions of Articles 571 and seq. of Law 1/2000 of 7th
January, 2000, it is expressly agreed by the parties that the determination of
the debt able to be claimed in executive proceedings shall be carried out by a
certificate issued by the Bank which evidences the balance of the account or
accounts of the Mortgagor. By virtue of the foregoing, the presentation of this
deed duly notarised and of the notarial record which incorporates the
certificate, as issued by the Bank, of the balance shown in the account of the
Mortgagor, evidencing that the determination of the debt has been carried out in
the manner stipulated in this deed by the parties and that the balance coincides
with the one which appears in the account or accounts of the Mortgagor, shall be
sufficient in order to exercise the executive proceedings.
It is hereby expressly agreed that the balance of each such account shall be
considered as an acknowledgement of debt due by the Mortgagor to the Bank, and
may be claimed pursuant to Clause Fifth.
Consequently, it is hereby expressly agreed that the Secured Liabilities amount
to euro [INSERT 140% OF MORTGAGE VALUE].
The mortgage granted in this deed shall remain in full force and effect until
the Bank is satisfied that any and all Secured Liabilities have been
unconditionally and irrevocably paid and discharged in full.
SECOND.- The mortgage will extend to all chattels, rents, issues, profits,
indemnities, time charters and other ancillary elements expressed in article 7
of the Ship Mortgage Law, including any improvements or new equipment that may
be incorporated.
The extension of the mortgage to the aforesaid goods may be waived by the Bank
when requesting the public auction of the Vessel before the Court which deals
with the proceedings.
The mortgage shall be expressly extended to the indemnities raised from
insurance from time to time which belongs to the Vessel as well as to the
premiums which may be paid by the Bank pursuant to Clause Fourth paragraph (c)
below.
The parties instruct the notary public to notify to the relevant insurance
company [INSERT DETAILS IF KNOWN] of the existence of this mortgage over the
Vessel through a Notary conduct ("conducto notarial") in accordance with Article
40 of the Spanish law on Insurance Contract.
THIRD.-
[DESCRIPTION OF THE MORTGAGED VESSEL]
140
[TITLE]
[REGISTERED]
[CHARGES]
[DETAILS ON INSURANCE POLICIES]
The Vessel has been valued at euro [INSERT AMOUNT - TO BE PROVIDED BY APPROVED
VALUER (AS DEFINED IN THE FACILITY AGREEMENT) AT THE TIME OF DELIVERY OF THE
VESSEL].
If the above valuation of the Vessel would be disproportionate to its market
value at the time of enforcement of this notarial deed, the Bank will be
entitled to request a second valuation of an independent expert who will be
appointed by the Directorate General of the Merchant Marine or such equivalent
administrative body which replaced it.
The parties agree that the higher of both valuations of the Vessel shall be used
as the rate for enforcement purposes.
FOURTH.- From the date hereof and whilst any obligations arising from this deed
have not been completely settled, the Mortgagor undertakes, in addition and
without prejudice to the covenants contained in the Swap Agreement:
(a) to maintain the Vessel in good repair and working condition and to effect
in the Vessel, any ordinary and extraordinary repairs that would be
necessary to maintain its value and operation, notifying the Bank of any
damage or loss suffered by the Vessel;
(b) to pay contributions, taxes, wages, salaries and social contributions of
the crew, local taxes and other legitimate expenses that it should pay
levied on the Vessel or on this mortgage, providing to the Bank any
receipt issued for such payments if it so requires;
(c) to insure and maintain insured the Vessel against the risk of fire,
damages and loss, lightening, explosion and other similar risks for the
duration of the security, in an insurance company of notorious solvency
and to pay promptly all the insurance premiums. The Mortgagor undertakes
from time to time at the request of the Bank to forward to the Bank
evidence that the relevant premiums have been duly paid;
Neither the insured amount nor any insurance policy can be modified
without the prior written consent of the Bank. The Bank is expressly
authorised to pay the insurance premiums on behalf of the Mortgagor if any
insurance policy is terminated for any cause and has not been replaced by
another insurance policy on substantially the same terms;
(d) to keep the certificate of ownership of the Vessel on board pursuant to
Article 14 of the Ship Mortgage Law;
(e) generally, to comply with the terms and conditions established in the
Facility Agreement;
(f) not to sell or mortgage the Vessel without the prior written consent of
all of the Banks (as defined in the Facility Agreement); and
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(g) not to execute or enter into any type of transaction which implies any
type of financial facilities or credit rights (the so called "prestamo a
la gruesa") or credit with rights of retention of title which charge the
Vessel and which are preferred to this mortgage in accordance with Article
32 and seq. of the Ship Mortgage Law or by the Convention of Brussels on
Unification of Rules Related to Ship Mortgages dated 27th May, 1967
without the prior written consent of the Bank.
FIFTH.- The mortgage may be enforced by the Spanish Security Agent, at the
election of the Bank , following any of the proceedings available under the
Spanish Civil Procedural Law (Law 1/2/2000 of 7th January) and under mortgage
regulations and their related provisions subject to compliance, in each case,
with the provisions of Articles 41 to 44 of the Ship Mortgage Law, upon the
occurrence of any of the events of default listed below:
(a) in any of the events of default set out in Swap Agreement, and in
particular, default in the payment obligations of the Mortgagor;
(b) the judicial request by the Mortgagor of suspension of payments or
bankruptcy or the request of bankruptcy by a third party, or the inability
of the Mortgagor to honour its obligations when due, or the proposal of
any agreement in benefit of one or more of its creditors.
(c) default by the Mortgagor of any of its obligations under this deed of
first ranking mortgage, in particular of the payment of the insurance
premiums;
(d) if the Vessel is wrecked for sailing;
(e) if the Vessel is disposed of without the prior written consent of the
Bank, provided the Mortgagor has not made a deposit for an amount equal to
the Secured Liabilities in the manner provided under articles 1177 and
1180 of the Spanish Civil code. Any amounts due by the Mortgagor to the
Bank will be claimed through a notary public prior to the enforcement of
this Mortgage.
Pursuant to Article 48 of the Ship Mortgage Law this Deed may be enforced at the
election of the Spanish Security Agent (acting on the instructions of the Bank)
in any jurisdiction where the Vessel may be located, in the jurisdiction where
this Deed is executed, in the jurisdiction where this Deed is registered or, if
different, in the jurisdiction of the address of the Mortgagor.
From now on the Mortgagor expressly authorises the Bank to request, on their
own, the issue of a second and further copies of this notarial deed to the
effect of the provisions set out in paragraph 4 of Article 517 of the new Civil
Procedural Law (Law 1/2000 of 7th January). The Mortgagor provides its consent
so that any second or further copies of this notarial deed shall have executive
character and that this circumstance is mentioned in the expedition note.
SIXTH.- If the Vessel is abandoned by the Mortgagor, the Bank will be entitled
to take "interim" possession to maintain the Vessel, adopting to such effect the
required actions to avoid the loss or damage of the Vessel, including its
displacement to any seaport or other place where the integrity of the Vessel is
guaranteed. The certificate of the relevant Marine authority informing the
abandonment, unjustified inactivity or other similar circumstances will be
sufficient to evidence the abandonment of the Vessel.
All the costs and expenses generated shall be borne by the Mortgagor.
142
SEVENTH .- The Mortgagor shall pay any expenses arising from the execution,
registration, cancellation and amendment of the mortgage created under this deed
(except the costs of amendments requested at the sole discretion of the Bank),
and those arising from the issue of a First Copy for the Bank, and those arising
from its registration in the Special Registry of Ships of the Canary Islands,
the release of the mortgage, and all taxes (including those that are levied
today or in the future). However, the costs of transferring the interest of the
Mortgagee in this Mortgage in accordance with Clause 11 below shall be borne by
the new mortgagee.
The Mortgagor will also pay all costs, expenses and damages due to the
non-compliance of this deed, including the fees of the lawyer and the court
agent, if the Bank has used its services, even if these were not legally
necessary.
EIGHTH .- The Mortgagor undertakes to execute bearing all costs, at the request
of the Bank, any further notarial deed of amendment ("Escritura de Rectificacion
o Subsanacion") that may be required in order to record this mortgage in the
Special Registry of Ships of the Canary Islands and to amend and complete any
defect indicated by the written or oral comments of the Registrar who examines
this deed.
For this purpose, the Mortgagor hereby appoints Mr. [INSERT CONTACT] and Mr.
[Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx] and Mr. [XXXXXXX XXXXX PEOAS], so
that any of them may grant as many notarial deeds of amendment as may be
required to record this mortgage in the Special Registry of Ships of the Canary
Islands and determine the content of such subsanation or rectification deed to
complete or correct any defect indicated by the Registrar which may prevent the
recording of the mortgage.
NINTH .- If in the examination of this deed, the Registrar opines that any
clause, provision, paragraph, subparagraph, line or mention in this deed is not
recordable, the parties expressly accept its opinion and hereby renounce to the
registration of such a clause, provision, paragraph, subparagraph, line or
mention, and specifically request the partial registration of this deed, so that
this deed is recorded and the mortgage is created.
TENTH.- The parties declare that the operation hereby formalised is not subject
to VAT and is subject to Stamp Duty Tax but exempted to it pursuant to article
74 of Law 19/1994 of 6th July on Special Tax Regime in the Canary Islands.
ELEVENTH.-: The Bank shall have the right to assign or novate its interest in
this Mortgage in accordance with the provisions of Clause 27 (Changes to the
Parties) of the Facility Agreement without the consent of the Mortgagor.
The Mortgagor is not allowed to assign this mortgage without the prior written
consent of the Bank.
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TWELFTH.-: Any notification required in any enforcement procedure shall be
delivered to the following addresses:
- The Bank
Xxxxx xx xx Xxxxxxxxxx, 00
00000, Xxxxxx
Xxxxx
Facsimile: x00 00 000 0000
Attention: Xxxxxxx Xxxxxx
- The Mortgagor
c/o Musgo n degrees 5
2 degrees Plta
XX XXXXXXX
00000, Madrid
Facsimile: x00 00 000 0000
Attention: Xxxxxx Xxxx
THIRTEENTH: This Mortgage shall be governed by Spanish law and by the relevant
international treaties under which Spain is a party, specially by the Convention
of Brussels on Unification of Rules Related to Ship Mortgages dated 27th May,
1967.
So it is said and accepted by the appearers in their capacity as they act, whom
I orally admonish about the legal implications.
After reading this notarial deed, the appearers agree to it, approve it, ratify
it and sign with me, the Notary.
[EXECUTION PROVISIONS TO BE COMPLETED BY THE MADRID NOTARY]
144
NUMBER [...]
APPENDIX B
PART II
NOTARIAL DEED OF MORTGAGE OVER VESSEL
[AIE SWAP MORTGAGE]
[TO BE AMENDED BY A & O MADRID FOLLOWING AGREEMENT OF SWAP BANK
MORTGAGE AMENDMENT DEED]
In Madrid, my residence, on the ______________________, 200[ ]
Before me, ............................, Notary Public of Madrid and of its Bar.
APPEAR
OF ONE PART,
Mr........., of legal age, [single/married], [profession], nationality with
domicile in ..............., holder of [Spanish identity card/passport] number
.........
ON THE SECOND PART,
Mr........., of legal age, [single/married], [profession], nationality, with
domicile in ..............., holder of [Spanish identity card/passport] number
.........
WHO ACT
The first one, on behalf of [A.I.E. INSERT FULL NAME], (hereinafter the
"MORTGAGOR"), with registered address at [INSERT ADDRESS], and registered in the
Mercantile Registry of [.........] at Volume [......], Book, Sheet [........]
and with Tax Identity Number C.I.F. [INSERT NUMBER] [in conformity with a
resolution of its Board of Directors of _________________ ] or [as director of
the company duly appointed on ______________] or [pursuant to the powers of
attorney granted to him in a deed executed before the Notary Public of
______________, Mr._____________________].
And the second one, on behalf of each of:
1. X.X. XXXXXX BANK S.A. with registered address at Xxxx Xxx, 00, Xxxxxx,
Xxxxx and registered in the Mercantile Registry of Vizcaya at Volume 869
Book 163 and Sheet B1-13139 and with Tax Identity Number C.I.F. [INSERT
NO.] in its capacity as Spanish Security Agent (hereinafter the "SPANISH
SECURITY AGENT"), pursuant to a power of attorney granted to him in a deed
executed before the Notary Public of ______________,
Mr._____________________];
145
2. [INSERT DETAILS OF APPROPRIATE SWAP BANK], in its capacity as a Swap Bank
(hereinafter, the "BANK"), with [company registration][corporate] number
[INSERT NUMBER]. The Bank is a company validly incorporated and duly
existing under the laws of [INSERT LAW], pursuant to a power of attorney
granted to him in a deed executed before the Notary Public of ________ ,
Mr.______________________.
The appearers have, in my opinion, as they act full legal authority to execute
this notarial deed of vessel mortgage.
WHEREAS
I. The Mortgagor has agreed with NAVIERA TEEKAY GAS IV S.L., (hereinafter the
"BUYER"), with registered address at C/Musgo n degrees 5, 2 degrees
Plta., XX XXXXXXX 00000, Madrid to supply a liquid natural gas carrier
more particularly described in Clause 3 below to the Buyer under the
document described below.
II. The Vessel has been constructed by IZAR CONSTRUCCIONES XXXXXXX, X.X.
(hereinafter the "BUILDER") in accordance with a shipbuilding contract
dated [INSERT DATE], 2000 as amended and restated on [INSERT DATE],
December, 2001 between Superapply Limited (the "SPC") and the Builder and
as novated in favour of the Mortgagor pursuant to a novation agreement
dated [INSERT DATE] between the Builder, the SPC and the Mortgagor (the
"SHIPBUILDING CONTRACT").
III. The Mortgagor will supply the Vessel to the Buyer pursuant to a bareboat
charter between the Mortgagor and the Buyer dated [INSERT DATE] (the
"BAREBOAT CHARTER").
IV. The Buyer has made instalment payments to the Mortgagor in accordance with
a schedule of payments annexed to the Bareboat Charter which total euro
160,000,000.
V. The Buyer and the Bank have entered into a an interest rate swap
transaction dated [INSERT DATE] the "TRANSACTION") which is governed by,
supplements and forms part of an ISDA Master Agreement between the
Mortgagor and the Bank dated as of [INSERT DATE] (the "ISDA" and together
with the Transaction, the "SWAP AGREEMENT").
VI. The Mortgagor is the registered owner of the vessel described in Clause 3.
VII. In consideration of the foregoing, the appearers agree to grant this
notarial deed of Vessel Mortgage as security for the full satisfaction and
repayment of all present and future obligations and liabilities of the
Buyer under the Swap Agreement described in Recital V which shall be
governed by the following:
CLAUSES
FIRST .- MORTGAGE.- The Mortgagor CREATES A MORTGAGE with equal ranking to:
1. the vessel mortgage granted before me [INSERT DETAILS OF THE SPANISH
NOTARY PUBLIC] at the date hereof in favour of the Banks (as defined in
the credit facility agreement dated [INSERT DATE], between, inter alia,
the Buyer and the Spanish Security Agent (the "FACILITY AGREEMENT") to
secure the payment obligations of the Buyer under the Facility Agreement;
146
2. the vessel mortgage granted before me [INSERT DETAILS OF THE SPANISH
NOTARY PUBLIC] at the date hereof in favour of [INSERT NAME OF APPROPRIATE
SWAP BANK] to secure the payment obligations of the Mortgagor under a swap
agreement with [INSERT NAME OF APPROPRIATE SWAP BANK];
3. the vessel mortgage granted before me [INSERT DETAILS OF THE SPANISH
NOTARY PUBLIC] at the date hereof in favour of [INSERT NAME OF APPROPRIATE
SWAP BANK] to secure the payment obligations of the Mortgagor under a swap
agreement with [INSERT NAME OF APPROPRIATE SWAP BANK];]
in favour of the Bank as creditor under the Swap Agreement, which accepts it,
over the vessel described in clause 3 (hereinafter, the "VESSEL") as security
for the payment of the Secured Liabilities for an amount of principal euro
[COMPLETE WHEN DETAILS OF RELEVANT SWAP BANK'S SWAP COMMITMENT IS ASCERTAINED -
I.E. THE PROPORTION OF TOTAL AMOUNT OF THE SWAP (E185MILLION) TAKEN BY SWAP
BANK (THE "MORTGAGE VALUE")], for any interest accrued at the Interest Rate (as
defined in the Facility Agreement) during the term of 24 months up to a maximum
amount pursuant to Art. 10 of the Ship Mortgage Law of euro [INSERT 10% OF
MORTGAGE VALUE], for any default interest accrued at the Default Rate (as
defined in the Facility Agreement) during the term of 24 months for a maximum
pursuant to Art. 10 of the Ship Mortgage Law of euro [INSERT 20% OF MORTGAGE
VALUE], for the repayment of the legal costs and expenses from the eventual
judicial or extrajudicial enforcement of the mortgage up to a maximum of euro
[INSERT 5% OF MORTGAGE VALUE] and any costs in relation to the effectiveness of
the guarantee and conservation of the Vessel such as, inter alia, the payment of
taxes over the Vessel and the ownership maintenance fees and insurance premium
for the Vessel up to a maximum of euro [INSERT 5% OF MORTGAGE VALUE].
For the purpose of the provisions of Articles 571 and seq. of Law 1/2000 of 7th
January, 2000, it is expressly agreed by the parties that the determination of
the debt able to be claimed in executive proceedings shall be carried out by a
certificate issued by the Bank which evidences the balance of the account or
accounts of the Mortgagor. By virtue of the foregoing, the presentation of this
deed duly notarised and of the notarial record which incorporates the
certificate, as issued by the Bank, of the balance shown in the account of the
Mortgagor, evidencing that the determination of the debt has been carried out in
the manner stipulated in this deed by the parties and that the balance coincides
with the one which appears in the account or accounts of the Mortgagor, shall be
sufficient in order to exercise the executive proceedings.
It is hereby expressly agreed that the balance of each such account shall be
considered as an acknowledgement of debt due by the Mortgagor to the Bank, and
may be claimed pursuant to Clause Fifth.
Consequently, it is hereby expressly agreed that the Secured Liabilities amount
to euro [INSERT 140% OF MORTGAGE VALUE].
The mortgage granted in this deed shall remain in full force and effect until
the Bank is satisfied that any and all Secured Liabilities have been
unconditionally and irrevocably paid and discharged in full.
SECOND.- The mortgage will extend to all chattels, rents, issues, profits,
indemnities, time charters and other ancillary elements expressed in article 7
of the Ship Mortgage Law, including any improvements or new equipment that may
be incorporated.
The extension of the mortgage to the aforesaid goods may be waived by the Bank
when requesting the public auction of the Vessel before the Court which deals
with the proceedings.
147
The mortgage shall be expressly extended to the indemnities raised from
insurance from time to time which belongs to the Vessel as well as to the
premiums which may be paid by the Bank pursuant to Clause Fourth paragraph (c)
below.
The parties instruct the notary public to notify to the relevant insurance
company [INSERT DETAILS IF KNOWN] of the existence of this mortgage over the
Vessel through a Notary conduct ("conducto notarial") in accordance with Article
40 of the Spanish law on Insurance Contract.
THIRD.-
[DESCRIPTION OF THE MORTGAGED VESSEL]
[TITLE]
[REGISTERED]
[CHARGES]
[DETAILS ON INSURANCE POLICIES]
The Vessel has been valued at euro [INSERT AMOUNT - TO BE PROVIDED BY APPROVED
VALUER (AS DEFINED IN THE FACILITY AGREEMENT) AT THE TIME OF DELIVERY OF THE
VESSEL].
If the above valuation of the Vessel would be disproportionate to its market
value at the time of enforcement of this notarial deed, the Bank will be
entitled to request a second valuation of an independent expert who will be
appointed by the Directorate General of the Merchant Marine or such equivalent
administrative body which replaced it.
The parties agree that the higher of both valuations of the Vessel shall be used
as the rate for enforcement purposes.
FOURTH.- From the date hereof and whilst any obligations arising from this deed
have not been completely settled, the Mortgagor undertakes, in addition and
without prejudice to the covenants contained in the Swap Agreement:
(a) to maintain the Vessel in good repair and working condition and to effect
in the Vessel, any ordinary and extraordinary repairs that would be
necessary to maintain its value and operation, notifying the Bank of any
damage or loss suffered by the Vessel;
(b) to pay contributions, taxes, wages, salaries and social contributions of
the crew, local taxes and other legitimate expenses that it should pay
levied on the Vessel or on this mortgage, providing to the Bank any
receipt issued for such payments if it so requires;
(c) to insure and maintain insured the Vessel against the risk of fire,
damages and loss, lightening, explosion and other similar risks for the
duration of the security, in an insurance company of notorious solvency
and to pay promptly all the insurance premiums. The Mortgagor undertakes
from time to time at the request of the Bank to forward to the Bank
evidence that the relevant premiums have been duly paid;
148
Neither the insured amount nor any insurance policy can be modified
without the prior written consent of the Bank. The Bank is expressly
authorised to pay the insurance premiums on behalf of the Mortgagor if any
insurance policy is terminated for any cause and has not been replaced by
another insurance policy on substantially the same terms;
(d) to keep the certificate of ownership of the Vessel on board pursuant to
Article 14 of the Ship Mortgage Law;
(e) generally, to comply with the terms and conditions established in the
Facility Agreement;
(f) not to sell or mortgage the Vessel without the prior written consent of
the Bank); and
(g) not to execute or enter into any type of transaction which implies any
type of financial facilities or credit rights (the so called "prestamo a
la gruesa") or credit with rights of retention of title which charge the
Vessel and which are preferred to this mortgage in accordance with Article
32 and seq. of the Ship Mortgage Law or by the Convention of Brussels on
Unification of Rules Related to Ship Mortgages dated 27th May, 1967
without the prior written consent of the Bank.
FIFTH.- The mortgage may be enforced by the Spanish Security Agent, at the
election of the Bank , following any of the proceedings available under the
Spanish Civil Procedural Law (Law 1/2/2000 of 7th January) and under mortgage
regulations and their related provisions subject to compliance, in each case,
with the provisions of Articles 41 to 44 of the Ship Mortgage Law, upon the
occurrence of any of the events of default listed below:
(a) in any of the events of default set out in Swap Agreement, and in
particular, default in the payment obligations of the Mortgagor;
(b) the judicial request by the Mortgagor of suspension of payments or
bankruptcy or the request of bankruptcy by a third party, or the inability
of the Mortgagor to honour its obligations when due, or the proposal of
any agreement in benefit of one or more of its creditors.
(c) default by the Mortgagor of any of its obligations under this deed of
first ranking mortgage, in particular of the payment of the insurance
premiums;
(d) if the Vessel is wrecked for sailing;
(e) if the Vessel is disposed of without the prior written consent of the
Bank, provided the Mortgagor has not made a deposit for an amount equal to
the Secured Liabilities in the manner provided under articles 1177 and
1180 of the Spanish Civil code. Any amounts due by the Mortgagor to the
Bank will be claimed through a notary public prior to the enforcement of
this Mortgage.
Pursuant to Article 48 of the Ship Mortgage Law this Deed may be enforced at the
election of the Spanish Security Agent (acting on the instructions of the Bank)
in any jurisdiction where the Vessel may be located, in the jurisdiction where
this Deed is executed, in the jurisdiction where this Deed is registered or, if
different, in the jurisdiction of the address of the Mortgagor.
From now on the Mortgagor expressly authorises the Bank to request, on their
own, the issue of a second and further copies of this notarial deed to the
effect of the provisions set out in paragraph 4 of Article 517 of the new Civil
Procedural Law (Law 1/2000 of 7th January). The Mortgagor provides
149
its consent so that any second or further copies of this notarial deed shall
have executive character and that this circumstance is mentioned in the
expedition note.
SIXTH.- If the Vessel is abandoned by the Mortgagor, the Bank will be entitled
to take "interim" possession to maintain the Vessel, adopting to such effect the
required actions to avoid the loss or damage of the Vessel, including its
displacement to any seaport or other place where the integrity of the Vessel is
guaranteed. The certificate of the relevant Marine authority informing the
abandonment, unjustified inactivity or other similar circumstances will be
sufficient to evidence the abandonment of the Vessel.
All the costs and expenses generated shall be borne by the Mortgagor.
SEVENTH .- The Mortgagor shall pay any expenses arising from the execution,
registration, cancellation and amendment of the mortgage created under this deed
(except the costs of amendments requested at the sole discretion of the Bank),
and those arising from the issue of a First Copy for the Bank, and those arising
from its registration in the Special Registry of Ships of the Canary Islands,
the release of the mortgage, and all taxes (including those that are levied
today or in the future). However, the costs of transferring the interest of the
Mortgagee in this Mortgage in accordance with Clause 11 below shall be borne by
the new mortgagee.
The Mortgagor will also pay all costs, expenses and damages due to the
non-compliance of this deed, including the fees of the lawyer and the court
agent, if the Bank has used its services, even if these were not legally
necessary.
EIGHTH .- The Mortgagor undertakes to execute bearing all costs, at the request
of the Bank, any further notarial deed of amendment ("Escritura de Rectificacion
o Subsanacion") that may be required in order to record this mortgage in the
Special Registry of Ships of the Canary Islands and to amend and complete any
defect indicated by the written or oral comments of the Registrar who examines
this deed.
For this purpose, the Mortgagor hereby appoints Mr. [INSERT CONTACT] and Mr.
[Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx] and Mr. [XXXXXXX XXXXX PEOAS], so
that any of them may grant as many notarial deeds of amendment as may be
required to record this mortgage in the Special Registry of Ships of the Canary
Islands and determine the content of such subsanation or rectification deed to
complete or correct any defect indicated by the Registrar which may prevent the
recording of the mortgage.
NINTH .- If in the examination of this deed, the Registrar opines that any
clause, provision, paragraph, subparagraph, line or mention in this deed is not
recordable, the parties expressly accept its opinion and hereby renounce to the
registration of such a clause, provision, paragraph, subparagraph, line or
mention, and specifically request the partial registration of this deed, so that
this deed is recorded and the mortgage is created.
TENTH.- The parties declare that the operation hereby formalised is not subject
to VAT and is subject to Stamp Duty Tax but exempted to it pursuant to article
74 of Law 19/1994 of 6th July on Special Tax Regime in the Canary Islands.
150
ELEVENTH.-: The Bank shall have the right to assign or novate its interest in
this Mortgage in accordance with the provisions of Clause 27 (Changes to the
Parties) of the Facility Agreement without the consent of the Mortgagor.
The Mortgagor is not allowed to assign this mortgage without the prior written
consent of the Bank.
TWELFTH.-: Any notification required in any enforcement procedure shall be
delivered to the following addresses:
- The Bank
Xxxxx xx xx Xxxxxxxxxx, 00
00000, Xxxxxx
Xxxxx
Facsimile: x00 00 000 0000
Attention: Xxxxxxx Xxxxxx
- The Mortgagor
c/o Musgo n degrees 5
2 degrees Plta
XX XXXXXXX
00000, Madrid
Facsimile: x00 00 000 0000
Attention: Xxxxxx Xxxx
THIRTEENTH: This Mortgage shall be governed by Spanish law and by the relevant
international treaties under which Spain is a party, specially by the Convention
of Brussels on Unification of Rules Related to Ship Mortgages dated 27th May,
1967.
So it is said and accepted by the appearers in their capacity as they act, whom
I orally admonish about the legal implications.
After reading this notarial deed, the appearers agree to it, approve it, ratify
it and sign with me, the Notary.
[EXECUTION PROVISIONS TO BE COMPLETED BY THE MADRID NOTARY]
AGREEMENT
DATED 21 December, 2001
E180,000,000
CREDIT FACILITY
NAVIERA TEEKAY GAS IV S.L.
as Borrower
THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS
as Banks
X.X. XXXXXX EUROPE LIMITED
as Agent
X.X. XXXXXX BANK S.A.
as Spanish Security Agent
and
JPMORGAN CHASE BANK, N.A.
COMMERZBANK AKTIENGESELLSCHAFT, and
CALYON
as Swap Banks
as arranged by
X. X. XXXXXX plc
XXXXX & XXXXX
XXXXX & XXXXX LLP
LONDON
INDEX
CLAUSE PAGE
1. Interpretation...................................................................................... 1
2. The Facility........................................................................................ 23
3. Purpose............................................................................................. 24
4. Conditions Precedent................................................................................ 24
5. Drawdown............................................................................................ 26
6. Repayment........................................................................................... 26
7. Prepayment and Cancellation......................................................................... 27
8. Interest Periods.................................................................................... 28
9. Interest............................................................................................ 29
10. Payments............................................................................................ 30
11. Taxes............................................................................................... 32
12. Market Disruption................................................................................... 34
13. Increased Costs..................................................................................... 35
14. Illegality.......................................................................................... 36
15. Mitigation.......................................................................................... 36
16. Representations and Warranties...................................................................... 37
17. Undertakings........................................................................................ 42
18. Valuation........................................................................................... 62
19. Default............................................................................................. 63
20. The Agent and the Finance Parties................................................................... 67
21. Fees................................................................................................ 75
22. Expenses............................................................................................ 75
23. Stamp Duties........................................................................................ 76
24. Indemnities......................................................................................... 76
25. Evidence and Calculations........................................................................... 80
26. Amendments and Waivers.............................................................................. 80
27. Changes to the Parties.............................................................................. 81
28. Disclosure of Information........................................................................... 85
29. Set-off............................................................................................. 85
30. Pro Rata Sharing.................................................................................... 85
31. Severability........................................................................................ 86
32. Counterparts........................................................................................ 87
33. Notices............................................................................................. 87
34. Language............................................................................................ 88
35. Jurisdiction........................................................................................ 89
36. Governing Law....................................................................................... 91
SCHEDULE
1. Banks and Commitments............................................................................... 92
2. Part I - Stage One Initial Conditions Precedent Documents........................................... 93
Part II - Stage Two Initial Conditions Precedent Documents 97
3. Delivery Date Conditions Precedent Documents........................................................ 100
4. Form of Request..................................................................................... 104
5. Form of Novation Certificate........................................................................ 105
6. Calculation of the Mandatory Cost................................................................... 106
7. Repayment Schedule.................................................................................. 107
8. Form of Compliance Certificate...................................................................... 109
9. Form of Bank's Power of Attorney.................................................................... 111
10. Form of Deed of Assignment of Interest.............................................................. 114
11. Form of Deed of Accession of Swap Bank.............................................................. 117
SIGNATORIES.................................................................................................. 118
NUMBER [...]................................................................................................. 121
Appendix A Part I - Notarial Deed of Mortgage Over Vessel............................................. 121
Appendix A Part II - Notarial Deed of Mortgage Over Vessel............................................ 129
NUMBER [...]................................................................................................. 000
Xxxxxxxx X Part I - Notarial Deed of Mortgage Over Vessel.................................................... 137
NUMBER [...]................................................................................................. 000
Xxxxxxxx X Part II - Notarial Deed of Mortgage Over Vessel................................................... 144
