Dated 15 December 2004 and as amended and restated on December 2005
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Dated
15 December 2004 and as amended
and
restated on
December
2005
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|
AL
MARROUNA INC., AL AREESH
INC.
and
AL DAAYEN INC. (1)
as
joint and several
Borrowers
CALYON (2)
as
Arranger
CALYON (3)
as
Facility
Agent
CALYON
as
Security
Trustee (4)
THE EXPORT-IMPORT BANK OF KOREA
(5)
as
loan
provider
THE
BANKS AND FINANCIAL
INSTITUTIONS (6)
whose
names are set out in
Schedule 1
as
Commercial Lenders
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relating
to a $468,108,023 loan to finance three LNG Tankers to be time
chartered
to Ras Laffan Liquefied Natural Gas Company Limited
II
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Contents
| Clause Page | |
| 1 Purpose and definitions |
1
|
| 2 The Commitments and the Ship Tranches |
26
|
| 3 Interest and interest periods |
28
|
| 4 Repayment and prepayment |
32
|
| 5 Commitment commission, fees and expenses |
38
|
| 6 Payments and taxes; accounts and calculations |
39
|
| 7 Representations and warranties |
42
|
| 8 Undertakings |
46
|
| 9 Conditions |
67
|
| 10 Events of Default |
68
|
| 11 Indemnities |
75
|
| 12 Unlawfulness and increased costs |
76
|
| 13 Security and set-off |
78
|
| 14 Accounts |
79
|
| 15 Assignment, transfer and lending office |
79
|
| 16 Facility Agent and Security Trustee |
83
|
| 17 Notices and other matters |
83
|
| 18 Governing law and jurisdiction |
88
|
| Schedule 1 The Lenders and their addresses |
90
|
| Shedule 2 The Ships |
94
|
| Schedule 3 Form of Drawdown Notice |
95
|
| Schedule 4 Documents and evidence required as conditions precedent |
98
|
| Schedule 5 Form of Substitution Certificate |
107
|
| Schedule 6 Repayment Schedules |
112
|
| Schedule 7 Indicative Schedule of Advances |
119
|
THIS
AGREEMENT is dated 15 December 2004 and is amended and restated on
December
2005 and made BETWEEN:
|
(1)
|
AL
MARROUNA INC. (formerly DSME HULL NO. 2238
INC.), AL AREESH INC. (formerly DSME
HULL NO. 2239 INC.) and AL DAAYEN INC.
(formerly DSME HULL NO. 2240 INC.) as
joint and several Borrowers;
|
|
(2)
|
CALYON
as Arranger;
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|
(3)
|
CALYON
as Facility Agent;
|
|
(4)
|
CALYON
as Security Trustee;
|
|
(5)
|
THE
EXPORT-IMPORT BANK OF KOREA;
and
|
|
(6)
|
THE
BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are
set out in Part 1 of
Schedule 1.
|
IT IS AGREED
as follows:
|
1.1
|
Purpose
|
This
Agreement sets out the terms and conditions upon and subject to which the
Lenders agree to make available to the Borrowers jointly and severally a
loan of
up to an aggregate amount of four hundred and sixty eight million, one hundred
and eight thousand and twenty three Dollars ($468,108,023), in two Loan
Tranches, three Ship Tranches and in multiple Advances, each to be used for
the
purpose of financing the Deposit Payments to be held with the Deposit Bank
in
connection with the letter of credit security to be procured by the Lessee
in
favour of the Lessor in respect of the acquisition and the leasing of the
Ships by the Lessor to the Lessee .
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1.2
|
Definitions
|
In
this
Agreement, unless the context otherwise requires:
“2238
Borrower” means Al Marrouna Inc. (formerly DSME Hull No. 2238 Inc.) of
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx
XX 00000 and includes its successors in title;
“2238
Deposit Agreement” means the deposit agreement and charge in respect of
the financing arrangements of the 2238 Ship executed or (as the context may
require) to be executed by the 2238 Borrower and the Deposit Bank;
“2238
Deposit Payment” means each deposit payment which is to be placed by
the 2238 Borrower with the Deposit Bank in connection with the financing
arrangements for the 2238 Ship in accordance with the provisions of the 2238
Deposit Agreement and “2238 Deposit Payments” means any or all
of them;
“2238
Lease” means the lease agreement in respect of the 2238 Ship executed
or (as the context may require) to be executed by the Lessor and the
Lessee;
“2238
Lessee Assignment” means the deed of assignment executed or (as the
context may require) to be executed by the Lessee in favour of the Security
Trustee containing, inter alia, an assignment of the Lessee’s right, interest
and benefit in and to the 2238 Time Charter, the 2238 Lease, the 2238 Lessor
Assignment and the Earnings, Insurances and Requisition Compensation in respect
of the 2238 Ship;
“2238
Lessor Assignment” means the deed of assignment executed or (as the
context may require) to be executed by the Lessor in favour of the Lessee
containing, inter alia, an assignment of the Lessor’s rights, interest and
benefit in and to the 2238 Shipbuilding Contract, the 2238 Refund Guarantee
and
the Insurances and Requisition Compensation in respect of the 2238 Ship and
a
charge over the Lessor’s rights, interest and benefit in and to the Lessor
Proceeds Account;
“2238
Lessor Parent Support Letter” means the letter of support executed or
(as the context may require) to be executed by the Lessor Parent in favour
of
the Security Trustee in respect of the Lessor’s obligations under the
Transaction Documents relating to the 2238 Ship;
“2238
Mortgage” means a first priority statutory mortgage of the 2238 Ship
executed or (as the context may require) to be executed by the Lessor in
favour
of the Lessee and as transferred in favour of the Security Trustee pursuant
to
the 2238 Mortgage Transfer;
“2238
Mortgage Transfer” means the mortgage transfer in respect of the 2238
Mortgage executed or (as the context may require) to be executed by the Lessee
in favour of the Security Trustee;
“2238
Novation Agreement” means the novation agreement in respect of the 2238
Ship executed or (as the context may require) to be executed by the Builder,
the
2238 Borrower, the Replacement Purchaser and the Lessor pursuant to which
the
Lessor is to acquire the rights and obligations of the 2238 Borrower under
the
2238 Original Shipbuilding Contract;
“2238Original
Shipbuilding Contract” means the contract dated 3 June 2004 between the
Builder and the 2238 Borrower pursuant to which the Builder is to construct
and
sell, and the 2238 Borrower is to purchase, the 2238 Ship (and as amended
by an
addendum dated 1 December 2004 between the Borrowers and the Builder and
as
amended by and incorporating the rights and obligations under a memorandum
of
agreement dated 18 August 2005 entered into between the Teekay Guarantor
and the
Builder (pursuant to which the Builder agreed to procure and sell to the
Teekay
Guarantor certain depot spare parts for the Ships) as the same has been novated
from the Teekay Guarantor in favour of the 2238 Borrower by a novation agreement
to be entered into on or about the date hereof between the Builder, the Teekay
Guarantor and the 2238 Borrower);
“2238
Original Time Charter” means the sub-time charter dated 1 July 2004 in
respect of the 2238 Ship executed by the Teekay Charterer
and the Time Charterer;
“2238
Proceeds Deed” means the proceeds deed in respect of the 2238 Ship
executed or (as the context may require) to be executed by the Lessor, the
Lessee, the Borrowers, the Replacement Purchaser, the Security Trustee, the
Proceeds Account Bank, the Operating Account Bank, the Debt Swap Providers,
the
Lease Swap Provider, KEXIM and the Commercial Lenders;
“2238
Refund Guarantee” means the letter of guarantee issued by the Refund
Guarantor in respect of the Builder’s obligations to refund instalments paid by
the Lessor under the 2238 Shipbuilding Contract and any replacement or
additional guarantee(s) issued or to be issued by the Refund Guarantor in
respect of such obligations that are acceptable to the Lenders and any extension
or renewals to such guarantee(s);
“2238
Share Pledge” means the pledge of all of the issued shares of the 2238
Borrower executed or (as the context may require) to be executed by the
Shareholder in favour of the Security Trustee;
“2238
Ship” means the vessel with Hull No. 2238 being constructed in Koje
Island, Korea by the Builder and to be registered in the ownership of the
Lessor
through the Registry under the laws and flag of the Flag State and as more
particularly described in the definition of “Ship” in the 2238 Proceeds
Deed;
“2238
Shipbuilding Contract” means the 2238 Original Shipbuilding Contract as
novated to the Lessor pursuant to the 2238 Novation Agreement and, where
the
context so requires, as further novated to the Replacement Purchaser pursuant
to
the 2238 Novation Agreement;
“2238
Time Charter” means the 2238 Original Time Charter as novated from the
Teekay Charterer to the Lessee and thereafter amended pursuant to the 2238
Time
Charter Novation Agreement together with its supplemental purchase option
side
letter dated on or about the date of the Supplemental Agreement from the
Lessee
to the Time Charterer;
“2238
Time Charter Novation Agreement” means the novation agreement in
respect of the 2238 Ship executed or (as the context may require) to be executed
by the Lessee, the Teekay Charterer and the Time Charterer pursuant to which
the
Lessee is to acquire the rights and the obligations of the Teekay Charterer
under the 2238 Original Time Charter;
“2239
Borrower” means Al Areesh Inc. (formerly DSME Hull No. 2239 Inc.) of
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx
XX 00000 and includes its successors in title;
“2239
Deposit Agreement” means the deposit agreement and charge in respect of
the financing arrangements of the 2239 Ship executed or (as the context may
require) to be executed by the 2239 Borrower and the Deposit Bank;
“2239
Deposit Payment” means each deposit payment which is to be placed by
the 2239 Borrower with the Deposit Bank in connection with the financing
arrangements for the 2239 Ship in accordance with the provisions of the 2239
Deposit Agreement and “2239 Deposit Payments” means any or all
of them;
“2239
Lease” means the lease agreement in respect of the 2239 Ship executed
or (as the context may require) to be executed by the Lessor and the
Lessee;
“2239
Lessee Assignment” means the deed of assignment executed or (as the
context may require) to be executed by the Lessee in favour of the Security
Trustee containing, inter alia, an assignment of the Lessee’s right, interest
and benefit in and to the 2239 Time Charter, the 2239 Lease, the 2239 Lessor
Assignment and the Earnings, Insurances and Requisition Compensation in respect
of the 2239 Ship;
“2239
Lessor Assignment” means the deed of assignment executed or (as the
context may require) to be executed by the Lessor in favour of the Lessee
containing, inter alia, an assignment of the Lessor’s rights, interest and
benefit in and to the 2239 Shipbuilding Contract, the 2239 Refund Guarantee
and
the Insurances and Requisition Compensation in respect of the 2239 Ship and
a
charge over the Lessor’s rights, interest and benefit in and to the Lessor
Proceeds Account;
“2239
Lessor Parent Support Letter” means the letter of support executed or
(as the context may require) to be executed by the Lessor Parent in favour
of
the Security Trustee in respect of the Lessor’s obligations under the
Transaction Documents relating to the 2239 Ship;
“2239
Mortgage” means a first priority statutory mortgage of the 2239 Ship
executed or (as the context may require) to be executed by the Lessor in
favour
of the Lessee and as transferred in favour of the Security Trustee pursuant
to
the 2239 Mortgage Transfer;
“2239
Mortgage Transfer” means the mortgage transfer in respect of the 2239
Mortgage executed or (as the context may require) to be executed by the Lessee
in favour of the Security Trustee;
“2239
Novation Agreement” means the novation agreement in respect of the 2239
Ship executed or (as the context may require) to be executed by the Builder,
the
2239 Borrower, the Replacement Purchaser and the Lessor pursuant to which
the
Lessor is to acquire the rights and obligations of the 2239 Borrower under
the
2239 Original Shipbuilding Contract;
“2239
Original Shipbuilding Contract” means the contract dated 3 June 2004
between the Builder and the 2239 Borrower pursuant to which the Builder is
to
construct and sell, and the 2239 Borrower is to purchase, the 2239 Ship (and
as
amended by an addendum dated 1 December 2004 between the Borrowers and the
Builder);
“2239
Original Time Charter” means the sub-time charter dated 1 July 2004 in
respect of the 2239 Ship executed by the Teekay Charterer and the Time
Charterer;
“2239
Proceeds Deed” means the proceeds deed in respect of the 2239 Ship
executed or (as the context may require) to be executed by the Lessor, the
Lessee, the Borrowers, the Replacement Purchaser, the Security Trustee, the
Proceeds Account Bank, the Operating Account Bank, the Debt Swap Providers,
the
Lease Swap Provider, KEXIM and the Commercial Lenders;
“2239
Refund Guarantee” means the letter of guarantee issued by the Refund
Guarantor in respect of the Builder’s obligations to refund instalments paid by
the Lessor under the 2239 Shipbuilding Contract and any replacement or
additional guarantee(s) issued or to be issued by the Refund Guarantor in
respect of such obligations that are acceptable to the Lenders and any extension
or renewals to such guarantee(s);
“2239
Share Pledge” means the pledge of all of the issued shares of the 2239
Borrower executed or (as the context may require) to be executed by the
Shareholder in favour of the Security Trustee;
“2239
Ship” means the vessel with Hull No. 2239 being constructed in Koje
Island, Korea by the Builder and to be registered in the ownership of the
Lessor
through the Registry under the laws and flag of the Flag State and as more
particularly described in the definition of “Ship” in the 2239 Proceeds
Deed;
“2239
Shipbuilding Contract” means the 2239 Original Shipbuilding Contract as
novated to the Lessor pursuant to the 2239 Novation Agreement and, where
the
context so requires, as further novated to the Replacement Purchaser pursuant
to
the 2239 Novation Agreement;
“2239
Time Charter” means the 2239 Original Time Charter as novated from the
Teekay Charterer to the Lessee and thereafter amended pursuant to the 2239
Time
Charter Novation Agreement together with its supplemental purchase option
side
letter dated on or about the date of the Supplemental Agreement from the
Lessee
to the Time Charterer;
“2239
Time Charter Novation Agreement” means the novation agreement in
respect of the 2239 Ship executed or (as the context may require) to be executed
by the Lessee, the Teekay Charterer and the Time Charterer pursuant to which
the
Lessee is to acquire the rights and the obligations of the Teekay Charterer
under the 2239 Original Time Charter;
“2240
Borrower” means Al Daayen Inc. (formerly DSME Hull No. 2240 Inc.) of
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx,
XX 00000 and includes its successors in title;
“2240
Deposit Agreement” means the deposit agreement and charge in respect of
the financing arrangements of the 2240 Ship executed or (as the context may
require) to be executed by the 2240 Borrower and the Deposit Bank;
“2240
Deposit Payment” means each deposit payment which is to be placed by
the 2240 Borrower with the Deposit Bank in connection with the financing
arrangements for the 2240 Ship in accordance with the provisions of the 2240
Deposit Agreement and “2240 Deposit Payments” means any or all
of them;
“2240
Lease” means the lease agreement in respect of the 2240 Ship executed
or (as the context may require) to be executed by the Lessor and the
Lessee;
“2240
Lessee Assignment” means the deed of assignment executed or (as the
context may require) to be executed by the Lessee in favour of the Security
Trustee containing, inter alia, an assignment of the Lessee’s right, interest
and benefit in and to the 2240 Time Charter, the 2240 Lease, the 2240 Lessor
Assignment and the Earnings, Insurances and Requisition Compensation in respect
of the 2240 Ship;
“2240
Lessor Assignment” means the deed of assignment executed or (as the
context may require) to be executed by the Lessor in favour of the Lessee
containing, inter alia, an assignment of the Lessor’s rights, interest and
benefit in and to the 2240 Shipbuilding Contract, the 2240 Refund Guarantee
and
the Insurances and Requisition Compensation in respect of the 2240 Ship and
a
charge over the Lessor’s rights, interest or benefit in and to the Lessor
Proceeds Account;
“2240
Lessor Parent Support Letter” means the letter of support executed or
(as the context may require) to be executed by the Lessor Parent in favour
of
the Security Trustee in respect of the Lessor’s obligations under the
Transaction Documents relating to the 2240 Ship;
“2240
Mortgage” means a first priority statutory mortgage of the 2240 Ship
executed or (as the context may require) to be executed by the Lessor in
favour
of the Lessee and as transferred in favour of the Security Trustee pursuant
to
the 2240 Mortgage Transfer;
“2240
Mortgage Transfer” means the mortgage transfer in respect of the 2240
Mortgage executed or (as the context may require) to be executed by the Lessee
in favour of the Security Trustee;
“2240
Novation Agreement” means the novation agreement in respect of the 2240
Ship executed or (as the context may require) to be executed by the Builder,
the
2240 Borrower, the Replacement Purchaser and the Lessor pursuant to which
the
Lessor is to acquire the rights and obligations of the 2240 Borrower under
the
2240 Original Shipbuilding Contract;
“2240
Original Shipbuilding Contract” means the contract dated 3 June 2004
between the Builder and the 2240 Borrower pursuant to which the Builder is
to
construct and sell, and the 2240 Borrower is to purchase, the 2240 Ship (and
as
amended by an addendum dated 1 December 2004 between the Borrowers and the
Builder);
“2240
Original Time Charter” means the sub-time charter dated 1 July 2004 in
respect of the 2240 Ship executed by the Teekay Charterer and the Time
Charterer;
“2240
Proceeds Deed” means the proceeds deed in respect of the 2240 Ship
executed or (as the context may require) to be executed by the Lessor, the
Lessee, the Borrowers, the Replacement Purchaser, the Security Trustee, the
Proceeds Account Bank, the Operating Account Bank, the Debt Swap Providers,
the
Lease Swap Provider, KEXIM and the Commercial Lenders;
“2240
Refund Guarantee” means the letter of guarantee issued by the Refund
Guarantor in respect of the Builder’s obligations to refund instalments paid by
the Lessor under the 2240 Shipbuilding Contract and any replacement or
additional guarantee(s) issued or to be issued by the Refund Guarantor in
respect of such obligations that are acceptable to the Lenders and any extension
or renewals to such guarantee(s);
“2240
Share Pledge” means the pledge of all of the issued shares of the 2240
Borrower executed or (as the context may require) to be executed by the
Shareholder in favour of the Security Trustee;
“2240
Ship” means the vessel with Hull No. 2240 being constructed in Koje
Island, Korea by the Builder and to be registered in the ownership of the
Lessor
through the Registry under the laws and flag of the Flag State and as more
particularly described in the definition of “Ship” in the 2240 Proceeds
Deed;
“2240
Shipbuilding Contract” means the 2240 Original Shipbuilding Contract as
novated to the Lessor pursuant to the 2240 Novation Agreement and, where
the
context so requires, as further novated to the Replacement Purchaser pursuant
to
the 2240 Novation Agreement;
“2240
Time Charter” means the 2240 Original Time Charter as novated from the
Teekay Charterer to the Lessee and thereafter amended pursuant to the 2240
Time
Charter Novation Agreement together with its supplemental purchase option
side
letter dated on or about the date of the Supplemental Agreement from the
Lessee
to the Time Charterer;
“2240
Time Charter Novation Agreement” means the novation agreement in
respect of the 2240 Ship executed or (as the context may require) to be executed
by the Lessee, the Teekay Charterer and the Time Charterer pursuant to which
the
Lessee is to acquire the rights and the obligations of the Teekay Charterer
under the 2240 Original Time Charter;
“Account
Pledge” means the account pledge (acte de nantissement de compte
bancaire) in respect of the Operating Account and the Collection Account
executed or (as the context may require) to be executed by the Lessee in
favour
of the Security Trustee;
“Advance”
means each borrowing or, as the context may require, proposed borrowing of
a
proportion of the Total Commitments by the Borrowers or (as the context may
require) the principal amount of such borrowing and “Advances”
means any or all of them;
“Agency
Agreement” means the agency agreement dated 15 December 2004 between
the Facility Agent, the other Finance Parties and the Borrowers as amended
and
restated pursuant to the Supplemental Agreement;
“Agreement”
means this loan agreement as originally executed on 15 December 2004 and
as
amended and restated pursuant to the Supplemental Agreement;
“Approved
Brokers” means Xxxxx & XxXxxxxx Companies or such other firm of
insurance brokers, appointed by the Borrowers or the Lessee, as may from
time to
time be approved in writing by the Facility Agent;
“Approved
Management Agreement” means a management agreement on terms previously
approved in writing by the Facility Agent pursuant to clause 8.6.18
providing, inter alia, for the technical management of a Mortgaged Ship by
a
person other than any of the Borrowers or any member of the Teekay Guarantor
Group;
“Approved
Shipbrokers” means collectively, Poten & Partners, Clarkson/LNG
Solutions, Fearnleys, Platou and Bassoe or any other independent firm of
shipbrokers nominated by the Borrowers and approved by the Facility Agent
(acting on the instructions of the Majority Lenders) and “Approved
Shipbroker” means any of them;
“Arranger”
means Calyon acting through its offices at 0 xxxx xx Xxxxxxxxx Xxxx Xxxxxx,
00000 Xxxxx La Defense Cedex, France and includes its successors in
title;
“Available
Commitment” in relation to a Lender at any time, means the amount of
its Commitment less the amount of its Contribution at that time;
“Banking
Day” means a day (other than Saturday or Sunday) on which dealings in
deposits in Dollars are carried on in the London Interbank Eurocurrency Market
and on which banks are open for business in London, New York City, Paris,
Doha
and Seoul;
“Borrowed
Money” means Indebtedness in respect of (a) money borrowed or raised
and debit balances at banks, (b) any bond, note, loan stock, debenture or
similar debt instrument, (c) acceptance or documentary credit facilities,
(d) receivables sold or discounted (otherwise than on a non-recourse
basis), (e) deferred payments for assets or services acquired, (f) finance
leases and hire purchase contracts, (g) swaps, forward exchange contracts,
futures and other derivatives (each calculated on a xxxx to market basis),
(h)
any other transaction (including without limitation forward sale or purchase
agreements) having the commercial effect of a borrowing or raising of money
and
(i) guarantees in respect of Indebtedness of any person falling within any
of
(a) to (h) above;
“Borrowers”
means the 2238 Borrower, the 2239 Borrower and the 2240
Borrower and “Borrower” means any of them;
“Builder”
means Daewoo Shipbuilding & Marine Engineering Co., Ltd of 000 Xx-Xxxx,
Xxxx-xx, Xxxxx, 000-000 Xxxxx;
“Cancellation
Fee” means, in respect of any Time Charter, the fee payable by the Time
Charterer to the Lessee under such Time Charter following the exercise by
the
Time Charterer of its cancellation rights under clause 2d of that Time
Charter;
“Casualty
Amount” means for any Mortgaged Ship, five million Dollars ($5,000,000)
(or the equivalent in any other currency);
“Classification”
means, in relation to each Ship, the classification required by the terms
of the
relevant Shipbuilding Contract and after the Delivery Date for each Ship,
such
classification or the highest classification available for such Ship with
the
Classification Society;
“Classification
Society” means, in respect of each of the Ships, Lloyds Register of
Shipping, American Bureau of Shipping, Det norske Veritas or such other
classification society which the Majority Lenders shall, at the request of
the
relevant Borrower or the Lessee, have agreed in writing shall be treated
as the
Classification Society in relation to a Ship for the purposes of the Security
Documents;
“Collection
Account” means the Dollar account of the Lessee opened or (as the
context may require) to be opened by the Lessee with the Operating Account
Bank
designated “Teekay Nakilat Limited - Collection Account” and with account number
00 224 913 318 and into which all Earnings in respect of the 2238 Ship, the
2239
Ship and the 2240 Ship are to be paid after an Event of Default has occurred
which is continuing and unwaived and includes any sub-account thereof or
time
deposit account constituted by moneys originally held on the Collection Account
and any other account designated by the Facility Agent to be the Collection
Account for the purposes of this Agreement and the Security
Documents;
“Commercial
Interest Reference Rate” means four point eight nine per cent. (4.89%)
per annum, being the commercial interest reference rate announced by the
Organisation for Economic Co-operation and Development for the period between
15
May 2004 and 14 June 2004 for Dollar loans of over eight and a half (8.5)
years
duration;
“Commercial
Lenders” means collectively the banks and financial institutions (other
than KEXIM) whose names and addresses are listed in Schedule 1 and includes
their respective successors in title and New Lenders and “Commercial
Lender” means any one of them individually;
“Commercial
Lenders Tranche” means the aggregate of the Commitments of the
Commercial Lenders or, if any part of such Commitments has been advanced,
the
aggregate of the remaining Commitments (if any) and the Contributions of
the
Commercial Lenders at any time;
“Commercial
Tranche Margin” means zero point nine per cent. (0.90%) per
annum;
“Commitment”
means, in relation to a Lender at any relevant time, the amount set opposite
its
name in Part 2 of Schedule 1 and/or, in the case of a New Lender, the
amount specified in the relevant Substitution Certificate, as reduced, in
each
case, by any relevant term of this Agreement and so that, if at such time
the
Total Commitments have been reduced to zero, references to a Lender’s Commitment
shall be construed as a reference to that Lender’s Commitment immediately prior
to such reduction to zero and “Commitments” means any or all of
them;
“Compulsory
Acquisition” in relation to a Ship, means the requisition for title or
other compulsory acquisition, requisition, appropriation, expropriation,
deprivation, forfeiture or confiscation for any reason of a Ship by any
Government Entity or other competent authority, whether de jure or de facto,
but
shall exclude requisition for use or hire not involving a requisition of
title;
“Consent
and Agreement” means, in respect of each Ship, the consent and
agreement executed or (as the context may require) to be executed between
the
Security Trustee, the Lessor, the Lessee and the Time Charterer pursuant
to the
terms of the relevant Time Charter and “Consent and Agreements”
means any or all of them;
“Contract
Price” means in relation to each Ship, the price payable by the Lessor
to the Builder for the purchase of such Ship in accordance with the relevant
Shipbuilding Contract;
“Contribution”
means, in relation to a Lender, the principal amount of the Loan owing to
such
Lender at any relevant time;
“Debt
Swap Providers” means Calyon, Fortis Bank N.V./S.A. and DnB NOR Bank
ASA;
“Default”
means any Event of Default or any event or circumstance which with the giving
of
notice by the Facility Agent or lapse of time or the satisfaction of any
other
condition (or any combination thereof) would constitute an Event of
Default;
“Delivery”
means, in relation to a Ship:
|
(a)
|
the
delivery of that Ship to, and the acceptance of such Ship by, the
Lessor
from the Builder pursuant to the relevant Shipbuilding
Contract;
|
|
(b)
|
the
delivery of that Ship to, and the acceptance of such Ship by, the
Lessee
from the Lessor pursuant to the relevant Lease;
and
|
|
(c)
|
the
delivery of that Ship to, and the acceptance of such Ship by, the
Time
Charterer from the Lessee pursuant to the relevant Time
Charter;
|
“Delivery
Advance” means, in relation to each Ship and each Ship Tranche, the
Advance requested by the Borrowers in connection with the relevant Deposit
Payment required to be made at or around the time of payment of the Delivery
Instalment for such Ship;
“Delivery
Date” means, in relation to each Ship, the date on which the Delivery
of such Ship to the Lessor pursuant to the Shipbuilding Contract for such
Ship,
to the Lessee pursuant to the Lease for such Ship and to the Time Charterer
pursuant to the Time Charter for such Ship, takes place and “Delivery
Dates” means any or all of them;
“Delivery
Instalment” means, in relation to each Shipbuilding Contract, the fifth
instalment of the relevant Contract Price payable by the Lessor to the Builder
on the delivery of the relevant Ship under Article 2.3 of such Shipbuilding
Contract and described therein as the “Fifth (Final) Instalment”;
“Deposit
Agreement” means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Deposit Agreement;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Deposit Agreement;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240 Deposit
Agreement,
|
and
“Deposit Agreements” means any or all of them;
“Deposit
Bank” means Calyon, London branch acting through its office at
Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
“Deposit
Payments” means any or all of the 2238 Deposit Payments, the 2239
Deposit Payments and the 2240 Deposit Payments;
“Disposal
Reduction Date” has the meaning given to it in
clause 4.4.3;
“DOC”
means a document of compliance issued to an Operator in accordance with rule
13
of the ISM Code;
“Dollars”
and “$” mean the lawful currency of the United States of
America and in respect of all payments to be made under any of the Security
Documents mean funds which are for same day settlement in the New York Clearing
House Interbank Payments System (or such other U.S. dollar funds as may at
the
relevant time be customary for the same day settlement of international banking
transactions denominated in U.S. dollars);
“Drawdown
Date” means, in relation to each Advance, the Banking Day falling
within the Drawdown Period for the Ship Tranche to which such Advance relates,
on which such Advance is, or is to be, drawn down;
“Drawdown
Notice” means, in relation to each Advance, a notice substantially in
the form set out in Schedule 3 in respect of such Advance;
“Drawdown
Period” means, in relation to each Ship Tranche, the period from the
date of this Agreement and ending on whichever is the earliest of (a) the
Termination Date for that Ship Tranche or (b) the date on which the aggregate
amount of the Advances in respect of such Ship Tranche is equal to the
Commitments of all the Lenders in respect of such Ship Tranche or (c) the
date
on which the Borrowers cancel the whole of the undrawn Commitments in respect
of
such Ship Tranche pursuant to clause 4.8;
“Earnings”
means, in relation to any Mortgaged Ship, all moneys whatsoever from time
to
time due or payable to the Lessee during the Security Period arising out
of the
use or operation of such Mortgaged Ship including (but without limiting the
generality of the foregoing) all freight, hire and passage moneys, income
arising out of pooling arrangements, compensation payable to the Lessee in
the
event of requisition of such Mortgaged Ship for hire, remuneration for salvage
or towage services, demurrage and detention moneys and damages for breach
(or
payments for variation or termination) of any charterparty or other contract
for
the employment of such Mortgaged Ship and any sums recoverable under any
loss of
earnings insurance;
“Encumbrance”
means any mortgage, charge (whether fixed or floating), pledge, lien,
hypothecation, assignment, trust arrangement or security interest or other
encumbrance of any kind securing any obligation of any person or any type
of
preferential arrangement (including without limitation title transfer and/or
retention arrangements having a similar effect);
“End
of Funding Date” means, in the case of each Ship, the following
dates:
2238
Ship: 28
June 2007;
2239
Ship: 7
September 2007; and
2240
Ship: 26
December 2007;
“Environmental
Affiliate” in respect of any Borrower or the Lessee, means any agent or
employee or any Related Company of that Borrower or the Lessee (as the case
may
be) and, in respect of any Relevant Ship, means the Security Party (or the
Related Company of a Security Party) which is the owner or charterer of,
or
person responsible for crewing, that Relevant Ship and the manager (if any)
of
that Relevant Ship and any agent or employee of each such person;
“Environmental
Approval” means any consent, authorisation, licence or approval of any
governmental or public body or authorities or courts applicable to any Relevant
Ship or its operation or the carriage of cargo and/or passengers thereon
and/or
the provision of goods and/or services on or from such Relevant Ship required
under any Environmental Laws;
“Environmental
Claim” means any and all enforcement, clean-up, removal or other
governmental or regulatory actions or orders instituted or completed pursuant
to
any Environmental Laws or any Environmental Approval together with claims
made
by any third party relating to damage, contribution, loss or injury, resulting
from any actual emission, spill, release or discharge of a Pollutant from
any
Relevant Ship;
“Environmental
Laws” means all national, international and state laws, rules,
regulations, treaties and conventions applicable to any Relevant Ship pertaining
to the pollution or protection of human health or the environment including,
without limitation, the carriage of Pollutants and actual or threatened
emissions, spills, releases or discharges of Pollutants;
“Event
of Default” means any of the events or circumstances described in
clause 10.1;
“Existing
Lender” has the meaning ascribed to it in
clause 15.3.1;
“Facility
Agent” means Calyon acting through its offices at 0 xxxx xx Xxxxxxxxx
Xxxx Xxxxxx, 00000 Xxxxx La Defense Cedex, France (or of such other address
as
may last have been notified to the other parties to this Agreement pursuant
to
clause 17.1.3) and its successor in title or such other person as may be
appointed facility agent for the Finance Parties pursuant to the Agency
Agreement;
“Fee
Letters” means collectively the letters addressed to each of KEXIM and
each of the Commercial Lenders by the Facility Agent dated on or about the
date
of this Agreement and the letters addressed to the Facility Agent or the
Arranger by the Borrowers dated on or about the date of this Agreement, and
which set out fees that are payable by the Borrowers in connection with the
facilities provided pursuant to this Agreement and the services provided
or to
be provided by any of the Finance Parties;
“Final
Maturity Date” means, in respect of each Ship (and subject to
clause 6.3), the date which is the
twelfth anniversary of the Delivery Date for that
Ship;
“Finance
Parties” means each of the Commercial Lenders, KEXIM, the Facility
Agent, the Security Trustee, the Arranger, the Proceeds Account Bank and
the
Operating Account Bank;
“First
Advance” means, in respect of each Ship Tranche, the first Advance in
respect of that Ship Tranche made available under this Agreement;
“First
Instalment” means, in relation to each Shipbuilding Contract (and
ignoring for this purpose the payment arrangements in respect of the Initial
Instalment under the Novation Agreement for that Shipbuilding Contract),
the
first instalment of the relevant Contract Price payable by the Lessor to
the
Builder under Article 2.3 of such Shipbuilding Contract and described
therein as the “First Instalment”;
“First
Ship” means the Ship which is first in time to be
delivered;
“Flag
State” means the Bahamas or such other state or territory designated in
writing by the Lenders, at the request of the Borrowers, as being the
“Flag State” of a Ship for the purposes of the Security
Documents;
“Fourth
Instalment” means, in relation to each Shipbuilding Contract, the
fourth instalment of the relevant Contract Price payable by the Lessor to
the
Builder under Article 2.3 of such Shipbuilding Contract and described
therein as the “Fourth Instalment”;
“Government
Entity” means and includes (whether having a distinct legal personality
or not) any national or local government authority, board, commission,
department, division, organ, instrumentality, court or agency and any
association, organisation or institution of which any of the foregoing is
a
member or to whose jurisdiction any of the foregoing is subject or in whose
activities any of the foregoing is a participant;
“Guarantees”
means (a) the Teekay Guarantee and (b) the QGTC Guarantee and
“Guarantee” means either of them;
“Guarantors” means
(a) the Teekay Guarantor and (b) QGTC and “Guarantor” means
either of them;
“Guarantors’
Groups” means both of the Teekay Guarantor Group and the QGTC Group and
“Guarantor Group” means either of them;
“Indebtedness”
means any obligation for the payment or repayment of money, whether as principal
or as surety and whether present or future, actual or contingent;
“Initial
Instalment” means in relation to each Ship, the instalment of the
Contract Price for that Ship payable by the Lessor to the Builder under clause
4
of the Novation Agreement for that Ship;
“Insurances”
in relation to any Mortgaged Ship, means all policies and contracts of insurance
(which expression includes all entries of such Mortgaged Ship in a protection
and indemnity or war risks association) which are from time to time during
the
Security Period in place or taken out or entered into (or, as the context
may
permit, which are required to be in place or taken out or entered into) in
respect of such Mortgaged Ship or otherwise howsoever in connection with
such
Mortgaged Ship and all benefits thereof (including claims of whatsoever nature
and return of premiums);
“Interest
Payment Date” means, in relation to each Interest Period, the last day
of that Interest Period save in respect of any Interest Period of six (6)
months, in which case, there shall also be an Interest Payment Date on the
date
falling three (3) months after the first day of such Interest
Period;
“Interest
Period” means each period for the calculation of interest in respect of
an Advance, a Ship Tranche or the Loan determined in accordance with
clause 3.2;
“Interim
Disposition” has the meaning given to that expression in the Proceeds
Deeds;
“Intra-Group
Transactions” means transactions and dealings between two or more
Security Parties who are members of the Teekay Guarantor Group and, for the
purposes of the use of this defined term in clauses 8.3.7 and 8.3.10 only,
Teekay LNG Partners L.P. shall be regarded as a Security Party who is a member
of the Teekay Guarantor Group;
“ISM
Code” means the International Management Code for the Safe Operation of
Ships and for Pollution Prevention constituted pursuant to Resolution A.
741
(18) of the International Maritime Organisation and incorporated into the
Safety
of Life at Sea Convention and includes any amendments or extensions thereto
and
any regulation issued pursuant thereto;
“ISPS
Code” means the International Ship and Port Facility Security Code of
the International Maritime Organisation and includes any amendments or
extensions thereto and any regulation issued pursuant thereto;
“KEXIM”
means The Export-Import Bank of Korea whose registered office is at 00-0,
Xxxxx-xxxx, Xxxxxxxxxxxx-xx, Xxxxx, Xxxxx;
“KEXIM
Post-Delivery Tranche Margin” means zero point five per cent. (0.50%)
per annum;
“KEXIM
Pre-Delivery Tranche Margin” means one point zero five per cent.
(1.05%) per annum;
“KEXIM
Rate” means:
|
(a)
|
in
respect of each Interest Period for each Ship Tranche for each
Ship during
the Security Period up to the Delivery Date for such Ship (but
subject to
clause 3.2.3(d)), the rate per annum that is the aggregate of (i) the
KEXIM Pre-Delivery Tranche Margin and (ii) LIBOR for each such
Interest
Period; and
|
|
(b)
|
in
respect of each Interest Period for each Ship Tranche for each
Ship during
the Security Period on and from the Delivery Date of the relevant
Ship,
five point three nine per cent. (5.39%) per annum (being the aggregate
of
the Commercial Interest Reference Rate and the KEXIM Post-Delivery
Tranche
Margin);
|
“KEXIM
Tranche” means the aggregate of the Commitments of KEXIM or, if any
part of its Commitments have been made, the aggregate of its remaining
Commitments (if any) and the Contributions made by KEXIM at any
time;
“Lease”
means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Lease;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Lease;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240
Lease,
|
and
“Leases” means any or all of them;
“Lease
Event of Default” has the meaning given to the expression “Termination
Event” in any of the Leases;
“Lease
Protocol of Delivery and Acceptance” means, in respect of each Ship,
each protocol of delivery and acceptance to be signed by or on behalf of
the
Lessor and the Lessee evidencing the delivery and acceptance of that Ship
pursuant to the relevant Lease, such protocol to be in a form satisfactory
to
the Facility Agent, acting reasonably;
“Lease
Swap Provider” means Calyon, in its capacity as lease swap provider,
acting through its office at 0 xxxx xx Xxxxxxxxx Xxxx Xxxxxx, 00000 Xxxxx, La
Defense Cedex, France;
“Lenders”
means KEXIM and the Commercial Lenders and “Lender” means any
of them;
“Lending
Office” has the meaning given to it in clause 15.8;
“Lessee”
means Teekay Nakilat (II) Limited, a company incorporated in England and
Wales
whose registered office is at 00 Xx. Xxxxx’x Xxxxxx, Xxxxxx XX0X
0XX;
“Lessee
Assignment” means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Lessee Assignment;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Lessee Assignment;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240 Lessee
Assignment,
|
and
“Lessee Assignments” means any or all of them;
“Lessee
Share Charge” means the charge over all of the issues shares of the
Lessee executed by the Shareholder in favour of the Security
Trustee;
“Lessor”
means SeaSpirit Leasing Limited, a company incorporated in England and Wales
whose registered office is at XX Xxx 00000, Xxxxxxxxxxx Xxxxxxxx, 000
Xxxxxxxxxxx, Xxxxxx XX0X 0XX;
“Lessor
Assignment” means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Lessor Assignment;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Lessor Assignment;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240 Lessor
Assignment,
|
and
“Lessor Assignments” means any or all of them;
“Lessor
Parent” means Halifax plc of Xxxxxxx Xxxx, Xxxxxxx XX0
0XX;
“Lessor
Parent Support Letter” means:
|
(a)
|
in
relation to the 2238 Lease, the 2238 Lessor Parent Support Letter;
or
|
|
(b)
|
in
relation to the 2239 Lease, the 2239 Lessor Parent Support Letter;
or
|
|
(c)
|
in
relation to the 2240 Lease, the 2240 Lessor Parent Support
Letter,
|
and
“Lessor Parent Support Letters” means any or all of
them;
“Lessor
Proceeds Account” means the Dollar account of the Lessor opened by the
Lessor with the Proceeds Account Bank designated “SeaSpirit Leasing Limited -
Lessor Proceeds Account” and with account number 01 034247 001 02 0 and includes
any sub-account thereof or time deposit account constituted by moneys originally
held on the Lessor Proceeds Account and any other account designated by the
Facility Agent to be the Lessor Proceeds Account for the purposes of this
Agreement and the Security Documents;
“LIBOR”
means in relation to any amount and for any period the offered rate (if any)
for
deposits in Dollars for such amount and for such period which is:
|
(a)
|
the
rate, for such period, appearing on Reuters screen page “LIBOR01” or such
other page as may replace such page “LIBOR01” on such system or on any
other system of the information vendor for the time being designated
by
the British Bankers’ Association to calculate the BBA Interest Settlement
Rate (as defined in the British Bankers’ Association’s Recommended Terms
and Conditions (“BBAIRS” terms) dated August 1995)), at or
about 11:00 a.m. (London time) on the Quotation Date for such period;
or
|
|
(b)
|
if
for any reason Reuters screen or other designated system is not
operating
at the relevant time, the rate per annum determined by the Facility
Agent
to be equal to the arithmetic mean (rounded upwards, if not already
such a
multiple, to the nearest whole multiple of one sixteenth of one
percent)
of the rates offered by no less than three (3) leading banks in
the London
interbank market selected by the Facility Agent to other prime
banks in
the London interbank market for deposits in Dollars in an amount
approximately equal to such amount for a period equivalent to such
period
at or about 11:00 a.m. (London time) on the relevant Interest Payment
Date;
|
“Loan”
means the aggregate principal amount owing to the Lenders under this Agreement
at any relevant time;
“Loan
Tranches” means collectively the KEXIM Tranche and the Commercial
Lenders Tranche and individually means either of them;
“Majority
Lenders” means, at any relevant time, either (a) if there are only two
Lenders, both Lenders or (b) if there are more than two Lenders, KEXIM and
Calyon (provided in each case that it is still a Lender) together with the
other
Commercial Lenders (i) the aggregate of whose Contributions (when added to
the
Contributions of KEXIM and Calyon, provided in each case that it is still
a
Lender) exceeds seventy-five per cent. (75%) of the Loan or (ii) if no principal
amounts are outstanding under this Agreement, the aggregate of whose Commitments
(when added to the Commitments of KEXIM and Calyon, provided in each case
that
it is still a Lender) exceeds seventy-five per cent. (75%) of the Total
Commitments;
“Manager’s
Undertaking” in relation to a Mortgaged Ship, means an undertaking
executed or, as the context may require, to be executed by the manager (other
than any manager which is a Subsidiary of the Teekay Guarantor) of such
Mortgaged Ship under an Approved Management Agreement in favour of the Security
Trustee in respect of the subordination of such manager’s rights over such
Mortgaged Ship in favour of the rights of the Finance Parties over such
Mortgaged Ship in a form to be agreed between the Facility Agent (acting
on the
instructions of the Majority Lenders) and the Borrowers at the applicable
time
and “Manager’s Undertakings” means any or all of
them;
“Material
Adverse Effect” means a material adverse effect, as determined by the
Facility Agent (acting on the instructions of the Majority Lenders) on any
or
all of the following:
|
(a)
|
the
ability of any of the Security Parties to meet their respective
obligations to the Finance Parties under the Security Documents
to which
they are a party;
|
|
(b)
|
the
value and effectiveness of the security provided to the Security
Trustee
under the Security Documents (including, without limitation, the
Mortgages); and/or
|
|
(c)
|
the
business, assets, operations, property or financial condition of
any of
the Borrowers or the Guarantors;
|
“Maximum
Ship Tranche Amount” means:
|
(a)
|
in
relation to the 2238 Ship, one hundred and fifty-five million,
seven
hundred and one thousand, eight hundred and sixty-five Dollars
($155,701,865); or
|
|
(b)
|
in
relation to the 2239 Ship, one hundred and fifty-six million, thirty
three
thousand, five hundred and fifty-three Dollars ($156,033,553);
or
|
|
(c)
|
in
relation to the 2240 Ship, one hundred and fifty-six million, three
hundred and seventy-two thousand, six hundred and six Dollars
($156,372,606);
|
“Mortgage”
means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Mortgage;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Mortgage;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240
Mortgage,
|
and
“Mortgages” means any or all of them;
“Mortgaged
Ship” means, at any relevant time, any Ship which is at such time
subject to a Mortgage and a Ship shall for the purposes of this Agreement
be
deemed to be a Mortgaged Ship as from the date that the Mortgage of that
Ship
shall have been executed and registered in accordance with this Agreement
until
whichever shall be the earlier of (a) the payment in full of the amount required
to be paid pursuant to clause 4.4 following the sale or Total Loss of such
Ship and (b) the date on which all moneys owing under the Security Documents
have been repaid in full;
“Mortgage
Transfer” means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Mortgage Transfer;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Mortgage Transfer;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240 Mortgage
Transfer,
|
and
“Mortgage Transfers” means any or all of them;
“New
Lender” has the meaning ascribed to it in
clause 15.3;
“Novation
Agreement” means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Novation Agreement;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Novation Agreement;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240 Novation
Agreement,
|
and
“Novation Agreements” means any or all of them.
“Operator”
means any person who is from time to time during the Security Period concerned
in the operation of a Ship and falls within the definition of
“Company” set out in rule 1.1.2 of the ISM Code;
“Operating
Account” means the Dollar account of the Lessee opened or (as the
context may require) to be opened by the Lessee with the Operating Account
Bank
designated “Teekay Nakilat Limited - Operating Account” and with account number
00 000 000 000 and into which all Earnings in respect of the 2238 Ship, the
2239
Ship and the 2240 Ship are to be paid and includes any sub-account thereof
or
time deposit account constituted by moneys originally held on the Operating
Account and any other account designated by the Facility Agent to be the
Operating Account for the purposes of this Agreement and the Security Documents;
“OperatingAccount
Bank” means Calyon acting through its offices at 0 xxxx xx Xxxxxxxxx
Xxxx Xxxxxx, 00000 Xxxxx La Defense Cedex, France and includes any other
bank
designated in writing by the Facility Agent (at the request of the Borrowers
and
acting on the instructions of the Majority Lenders) to be an “Operating Account
Bank” for the purposes of the Security Documents;
“Original
Date” means 15 December 2004;
“Original
Time Charter” means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Original Time Charter;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Original Time Charter;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240 Original Time
Charter,
|
and
“Original Time Charters” means any or all of them;
“Permitted
Encumbrances” means (a) any Encumbrance created pursuant to the
Security Documents and (b) Permitted Liens;
“Permitted
Liens” means any lien:
|
(a)
|
on
a Ship (including, without limitation, for master’s, officer’s or crew’s
wages) outstanding in the ordinary course of trading for a period
not
exceeding forty five (45) days or, in the case of master’s, officer’s or
crew’s wages, thirty (30) days and the aggregate of any such liens are
not
to exceed at any time the Casualty Amount;
or
|
|
(b)
|
for
salvage and any ship repairer’s or outfitter’s possessory lien for a sum
not (except with the prior written consent of the Facility Agent,
acting
on the instructions of the Majority Lenders) exceeding the Casualty
Amount,
|
and
which
liens do not, in each such case in the reasonable opinion of the Facility
Agent,
involve the imminent likelihood of any arrest, forfeiture, seizure, sale
or loss
of the relevant Ship;
“Pollutant”
means and includes pollutants, contaminants, toxic substances, oil as defined
in
the United States Oil Pollution Act of 1990 and all hazardous substances
as
defined in the United States Comprehensive Environmental Response, Compensation
and Liability Xxx 0000;
“Proceeds
Account Bank” means Calyon, London branch acting through its office at
Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
“Proceeds
Deed” means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Proceeds Deed;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Proceeds Deed;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240 Proceeds
Deed,
|
and
“Proceeds Deeds” means any or all of them;
“QGTC”
means Qatar Gas Transport Company Limited (Nakilat) of the State of
Qatar;
“QGTC
Group” means QGTC and all its Subsidiaries;
“QGTC
Guarantee” means the guarantee executed by QGTC in favour of the
Security Trustee in respect of all of the obligations of the Borrowers to
the
Finance Parties under this Agreement and the Security Documents;
“Quotation
Date” means, in relation to any period for which LIBOR is to be
determined, the date which is two (2) Banking Days (in London) prior to the
first day of the relevant period;
“Refund
Guarantee Notice and Acknowledgement” means, in relation to each Ship,
the notice of assignment in respect of the Refund Guarantee(s) for that Ship
to
be given by the Lessor, the Lessee and the Replacement Purchaser and the
acknowledgement of and consent to such notice of assignment to be given by
the
Refund Guarantor in the form scheduled to the relevant Lessee Assignment
and the
Replacement Purchaser Assignment for that Ship;
“Refund
Guarantee” means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Refund Guarantee;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Refund Guarantee;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240 Refund
Guarantee,
|
and
“Refund Guarantees” means any or all of them;
“Refund
Guarantor” means KEXIM and shall include its successors in
title;
“Registry”
means, in relation to a Ship, such registrar, commissioner or representative
of
the Flag State who is duly authorised and empowered to register the relevant
Ship, the relevant Borrower’s title to such Ship and the relevant Mortgage under
the laws and the flag of the relevant Flag State;
“Regulatory
Agency” means the Government Entity or other organisation in the Flag
State which has been designated by the Government of the Flag State to implement
and/or administer and/or enforce the provisions of the ISM Code or the ISPS
Code;
“Related
Company” of a person means any Subsidiary of such person, any company
or other entity of which such person is a Subsidiary and any Subsidiary of
any
such company or entity;
“Relevant
Jurisdiction” means, any jurisdiction in which or where any Security
Party is incorporated, resident, domiciled, has a permanent establishment,
carries on, or has a place of business or where any Mortgaged Ship is
registered;
“Relevant
Insured Amount” means, in relation to a Mortgaged Ship as at any
relevant date, an amount in Dollars equal to the outstanding amount of the
Ship
Tranche associated with such Mortgaged Ship as at that date;
“Relevant
Ship” means all or any of the Mortgaged Ships and any other vessel from
time to time (whether before or after the date of this Agreement) owned,
managed
or crewed by, or chartered to, any Related Company of the Security
Parties;
“Repayment
Date” means, in respect of each Ship Tranche, subject to
clause 6.3, each of the forty-eight (48) dates during the Security Period
falling at three (3) monthly intervals after the Delivery Date for the Ship
associated with that Ship Tranche;
“Replacement
Purchaser” means Teekay Nakilat Replacement Purchaser L.L.C., a limited
liability company formed in the Xxxxxxxx Islands whose registered office
is at
Trust Company Complex, Ajeltake Road, Ajeltake Islands, Majuro, Xxxxxxxx
Xxxxxxx
XX 00000;
“Replacement
Purchaser Assignment” means in respect of each Ship, the deed of
assignment executed or (as the context may require) to be executed by the
Replacement Purchaser in favour of the Security Trustee in respect of the
Shipbuilding Contract for that Ship as the same may be further novated by
the
Lessor in favour of the Replacement Purchaser pursuant to the Novation Agreement
for that Ship and “Replacement Purchaser Assignments” means any
or all of them;
“Requisition
Compensation” means, in relation to a Mortgaged Ship, all sums of money
or other compensation from time to time payable during the Security Period
by
reason of the Compulsory Acquisition of such Ship;
“Retention
Account” means the Dollar account of the member of the Teekay Guarantor
Group providing the cash collateral security referred to in clause 8.6.24
opened or, as the context may require, to be opened with the Operating Account
Bank and with such account number and designation as the Operating Account
Bank
shall advise at the time such account is opened and includes any sub-account
thereof or time deposit account constituted by moneys originally held on
the
Retention Account and any other account designated by the Facility Agent
to be
the Retention Account for the purposes of this Agreement;
“Retention
Account Pledge” means the account pledge (acte de nantissement de
compte bancaire) in respect of the Retention Account to be executed by the
account holder of the Retention Account in favour of the Security Trustee
in
substantially the same form as the Account Pledge but having regard to the
provisions of clause 8.6.24 dealing with the minimum cash balance that is
required to be retained on the Retention Account;
“RG
Security Requirement” means, in respect of all the Mortgaged Ships, the
aggregate amount in Dollars (as certified by the Facility Agent whose
certificate shall, in the absence of manifest error, be conclusive and binding
on the Borrowers and the Finance Parties) which is:
|
(a)
|
during
the period commencing on and from the Delivery Date of the First
Ship and
ending on the date falling immediately before the twenty-fourth
(24th)
Repayment Date after the Delivery Date of the First Ship, one hundred
and
ten per cent (110%) of either the aggregate amount of the outstanding
Ship
Tranches in respect of all the Mortgaged Ships or, following delivery
of
all of the Ships, the Loan; and
|
|
(b)
|
during
the period commencing on and from the twenty-fourth (24th) Repayment
Date
after the Delivery Date of the First Ship and ending on the date
falling
on the last day of the Security Period, one hundred and twenty
per cent
(120%) of the Loan;
|
“RG
Security Value” means, in respect of the Mortgaged Ships, the amount in
Dollars (as certified by the Facility Agent whose certificate shall, in the
absence of manifest error, be conclusive and binding on the Borrowers and
the
Finance Parties) which, at any relevant time, is the aggregate of (a) the
aggregate market value of each of the Mortgaged Ships, (taking into account
the
value of the relevant Time Charter for each of the Mortgaged Ships) as most
recently determined in accordance with clause 8.2.2 and (b) the market
value of any additional security for the time being actually provided to
the
Lenders pursuant to clause 8.2, as most recently determined in accordance
with clause 8.2.5;
“RG
Value Principles” has the meaning given to it in
clause 8.2.2;
“Second
Instalment” means, in relation to each Shipbuilding Contract (and
ignoring for this purpose the payment arrangements in respect of the Initial
Instalment under the Novation Agreement for that Shipbuilding Contract),
the
second instalment of the relevant Contract Price payable by the Lessor to
the
Builder under Article 2.3 of such Shipbuilding Contract and described
therein as the “Second Instalment”;
“Security
Documents” means this Agreement, the Supplemental Agreement, the
Mortgages (including the Mortgage Transfers), the Lessor Assignments, the
Lessee
Assignments, the Account Pledge, the Retention Account Pledge, the Share
Pledges, the Agency Agreement, the Guarantees, the Fee Letters, the Lessor
Parent Support Letters, the Proceeds Deeds, each Refund Guarantee Notice
and
Acknowledgement, each Shipbuilding Contract Notice and Acknowledgement, the
Consent and Agreements, any Manager’s Undertakings, the Replacement Purchaser
Assignments, any Standby Security Documents and any other documents as may
have
been or shall from time to time after the date of this Agreement be executed
to
guarantee and/or secure all or any part of the Loan, interest thereon and
other
moneys from time to time owing by the Borrowers pursuant to this Agreement
(whether or not any such document also secures moneys from time to time owing
pursuant to any other document or agreement);
“Security
Party” means the Borrowers, the Guarantors, the Lessee, the Supervisor,
the Shareholder, the Replacement Purchaser and any other person who may at
any
time be a party to any of the Security Documents (other than the Finance
Parties, the Lessor, the Time Charterer, the Builder, the Refund Guarantor
and
any manager of a Mortgaged Ship who is not a member of the Teekay Guarantor
Group);
“Security
Period” means the period commencing on the date of this Agreement and
terminating upon payment of all moneys payable under the Security
Documents;
“Security
Requirement” means, in respect of all the Mortgaged Ships, the
aggregate amount in Dollars (as certified by the Facility Agent whose
certificate shall, in the absence of manifest error, be conclusive and binding
on the Borrowers and the Finance Parties) which is:
|
(a)
|
during
the period commencing on and from the Delivery Date of the First
Ship and
ending on the date falling immediately before the twenty-fourth
(24th)
Repayment Date after the Delivery Date of the First Ship, one hundred
and
five per cent (105%) of either the aggregate amount of the outstanding
Ship Tranches in respect of all the Mortgaged Ships or, following
delivery
of all of the Ships, the Loan; and
|
|
(b)
|
during
the period commencing on and from the twenty-fourth (24th) Repayment
Date
after the Delivery Date of the First Ship and ending on the date
falling
on the last day of the Security Period, one hundred and ten per
cent
(110%) of the Loan;
|
“Security
Trustee” means Calyon acting through its offices at 0 xxxx xx Xxxxxxxxx
Xxxx Xxxxxx, 00000 Xxxxx La Defense Cedex, France (or of such other address
as
may last have been notified to the other parties in this Agreement pursuant
to
clause 17.1.3) and its successor in title or such other person as may be
appointed security agent and trustee for the Finance Parties pursuant to
the
Proceeds Deeds;
“Security
Value” means, in respect of the Mortgaged Ships, the amount in Dollars
(as certified by the Facility Agent whose certificate shall, in the absence
of
manifest error, be conclusive and binding on the Borrowers and the Finance
Parties) which, at any relevant time, is the aggregate of (a) the aggregate
market value of the Mortgaged Ships (but shall not take into account the
value
of the relevant Time Charter for each of the Mortgaged Ships) as most recently
determined in accordance with clause 8.2.2 and (b) the market value of any
additional security for the time being actually provided to the Lenders pursuant
to clause 8.2, as most recently determined in accordance with
clause 8.2.5;
“Share
Pledge” means:
|
(a)
|
in
relation to the 2238 Borrower, the 2238 Share Pledge;
or
|
|
(b)
|
in
relation to the 2239 Borrower, the 2239 Share Pledge;
or
|
|
(c)
|
in
relation to the 2240 Borrower, the 2240 Share Pledge;
or
|
|
(d)
|
in
relation to the Lessee, the Lessee Share
Charge,
|
and
“Share Pledges” means any or all of them;
“Shareholder”
means Teekay Nakilat Corporation of Trust Company Complex, Ajeltake Island,
Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx Xxxxxxx XX 00000 and includes its successors
in
title;
“Shipbuilding
Contract” means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Shipbuilding Contract;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Shipbuilding Contract;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240 Shipbuilding
Contract,
|
and
“Shipbuilding Contracts” mean all or any of them;
“Shipbuilding
Contract Notice and Acknowledgement” means, in relation to each Ship,
the notice of assignment in respect of the Shipbuilding Contract for that
Ship
to be given by the Lessor, the Lessee and the Replacement Purchaser and the
acknowledgement of and consent to such notice of assignment to be given by
the
Builder in the form scheduled to the relevant Lessee Assignment and Replacement
Purchaser Assignment for that Ship;
“Shipbuilding
ContractProtocol of Delivery and Acceptance” means, in
respect of each Ship, the protocol of delivery and acceptance to be signed
by or
on behalf of the Builder and the Lessor evidencing the delivery and acceptance
of that Ship pursuant to the relevant Shipbuilding Contract, such protocol
to be
substantially in the form of Appendix B to that Shipbuilding
Contract;
“Ships”
means each of the ships listed in Schedule 2 and “Ship”
means any of them;
“Ship
Tranche” means, in relation to each Ship, the aggregate of the
Commitments of the Lenders in respect of such Ship or, if any part of such
Commitments have been advanced, the
aggregate
of the remaining Commitments (if any) and the Contributions made by the Lenders
in respect of such Ship, being a maximum amount of the lower of: (a) the
relevant Maximum Ship Tranche Amount for that Ship and (b) eighty per cent.
(80%) of the Vessel Cost of that Ship (after having taken into account any
agreed variations therein and any deductions from any Delivery Instalment
for
that Ship) or, as the context may require, the principal amount owing to
the
Lenders constituted by the Contributions made by the Lenders in respect of
such
Ship at any relevant time and “Ship Tranches” means all of such
Ship Tranches collectively;
“Ship
Tranche Commitment” means, in relation to a Ship Tranche, the aggregate
of each Lender’s Commitment for such Ship Tranche, in each case, as cancelled or
reduced pursuant to any relevant term of this Agreement;
“Ship
Tranche Contribution” means, in relation to a Ship Tranche, the
aggregate of each Lender’s Contribution to such Ship Tranche;
“SMC”
means a safety management certificate issued in respect of a Ship in accordance
with rule 13 of the ISM Code;
“Standby
Documents” in relation to the Ships has the meaning given to it in the
Proceeds Deeds;
“Standby
Mortgage” in relation to the Ships has the meaning given to it in the
Proceeds Deeds;
“Standby
Purchaser” has the meaning given to that expression in the Proceeds
Deeds;
“Standby
Security Documents” in relation to the Ships has the
meaning given to it in the Proceeds Deeds;
“Subsequent
Instalments” means, in relation to each Shipbuilding Contract, the
Second Instalment, the Third Instalment, the Fourth Instalment and the Delivery
Instalment in respect of that Shipbuilding Contract and “Subsequent
Instalment” means any of them;
“Subsidiary”
of a person means any company or entity directly or indirectly controlled
by
such person, and for this purpose “control” means either the
ownership of more than fifty per cent. (50%) of the voting share capital
(or
equivalent rights of ownership) of such company or entity or the power to
direct
its policies and management, whether by contract or otherwise but for the
purposes of clause 10.1.5 only, Teekay LNG Partners
L.P. shall not be considered a “Subsidiary” until it becomes a Security
Party;
“Substitution
Certificate” means a certificate substantially in the terms of
Schedule 5 (or in such other form as the Lenders may approve or
require);
“Supervision
Agreement” means, in respect of each Ship, the supervision agreement in
respect of the construction of that Ship executed or (as the context may
require) to be executed by the Lessor and the Supervisor and
“Supervision Agreements” means any or all of them;
“Supervisor”
means Teekay Shipping Limited, a company incorporated in the Bahamas whose
registered office is at TK House, Bayside Executive Park, West Bay Street
and
Xxxxx Xxxx, XX Xxx XX-00000, Xxxxxx, The Bahamas;
“Supplemental
Agreement” means the supplemental agreement dated [●] December 2005 and
entered into between the Borrowers, the Arrangers, the Facility Agent, the
Security Trustee, KEXIM and the Commercial Lenders;
“Taxes”
includes all present and future taxes, levies, imposts, duties, fees or charges
of whatever nature together with interest thereon and penalties in respect
thereof and “Taxation” and “Tax” shall be
construed accordingly;
“Teekay
Charterer” means the Shareholder in its capacity as the original
bareboat charterer in respect of the Ships;
“Teekay
Guarantee” means the guarantee executed by the Teekay Guarantor in
favour of the Security Trustee in respect of all of the obligations of the
Borrowers to the Finance Parties under this Agreement and the Security
Documents;
“Teekay
Guarantor” means Teekay Shipping Corporation of Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx XX 00000;
“Teekay
Guarantor Group” means the Teekay Guarantor and all its
Subsidiaries;
“Termination
Date” means, in respect of each Ship Tranche, the earliest of (a) the
date on which the Ship Tranche Commitments for such Ship Tranche are reduced
to
zero by any of the terms of this Agreement, (b) the date on which the Delivery
Instalment under the relevant Shipbuilding Contract associated with such
Ship
Tranche is paid to the Builder, (c) the date on which the Shipbuilding Contract
associated with such Ship Tranche is cancelled, rescinded or terminated by
either party in accordance with its terms and (d) the relevant End of Funding
Date for the Ship in respect of that Ship Tranche;
“Third
Instalment” means, in relation to each Shipbuilding Contract, the third
instalment of the relevant Contract Price payable by the Lessor to the Builder
under Article 2.3 of such Shipbuilding Contract and described therein as
the “Third Instalment”;
“Time
Charter” means:
(a) in
relation to the 2238 Ship, the 2238 Time Charter; or
(b) in
relation to the 2239 Ship, the 2239 Time Charter; or
(c) in
relation to the 2240 Ship, the 2240 Time Charter,
and
“Time Charters” means any or all of them;
“Time
Charterer” means Ras Laffan Liquefied Natural Gas Company Limited (II)
of XX Xxx 00000, Xx-Xxx Xxxxxx, Xxxx Xx. 00, Xxxx Xxx, Xxxx, Xxxxx xx
Xxxxx;
“Time
Charter Novation Agreement” means:
|
(a)
|
in
relation to the 2238 Ship, the 2238 Time Charter Novation Agreement;
or
|
|
(b)
|
in
relation to the 2239 Ship, the 2239 Time Charter Novation Agreement;
or
|
|
(c)
|
in
relation to the 2240 Ship, the 2240 Time Charter Novation
Agreement,
|
and
“Time Charter Novation Agreements” means any or all of
them;
“Time
CharterProtocol of Delivery and Acceptance” means, in
respect of each Ship, each protocol of delivery and acceptance to be signed
by
or on behalf of the Lessee and the Time Charterer evidencing the delivery
and
acceptance of that Ship pursuant to the relevant Time Charter, such protocol
to
be substantially in the form of Schedule II to that Time
Charter;
“Total
Commitments” means, at any relevant time, the total of the Commitments
of all the Lenders at such time;
“Total
Loss” in relation to a Ship, means:
|
(a)
|
an
actual, constructive, compromised or arranged total loss of such
Ship;
or
|
|
(b)
|
the
Compulsory Acquisition of such Ship;
or
|
|
(c)
|
the
hijacking, theft, condemnation, capture, seizure, arrest, detention
or
confiscation of such Ship (other than where the same amounts to
the
Compulsory Acquisition of such Ship) by any Government Entity,
or by
persons acting or purporting to act on behalf of any Government
Entity,
unless such Ship be released and restored to the Lessee or the
Lessor from
such hijacking, theft, condemnation, capture, seizure, arrest,
detention
or confiscation within sixty (60) days after the occurrence thereof;
or
|
|
(d)
|
the
expiry of one (1) year (or such longer period as the Lessor, the
Lessee
and the Security Trustee may agree) after the Ship shall have been
requisitioned for hire by a Government Entity or other competent
authority, whether de jure or de
facto;
|
“Total
Loss Reduction Date” has the meaning given to it in
clause 4.4.3;
“Transaction
Documents” means, collectively, the Leases, the Lessor Assignments, the
Security Documents, the Shipbuilding Contracts, the Novation Agreements,
the
Supervision Agreements, the Refund Guarantees, the Time Charters, the Time
Charter Novation Agreements, the Deposit Agreements, any Approved Management
Agreements and any Standby Documents; and
“Vessel
Cost” means, in respect of each Ship, the aggregate of:
| (a) |
the
Contract Price for that Ship; and
|
|
|
(b)
|
the
additional costs incurred by the Lessor or, as the case may be,
the
Supervisor in relation to the construction of that Ship as are
included in
the list of qualifying expenditure forming the annex to the term
sheet for
the Loan addressed by the Facility Agent and KEXIM to and accepted
by the
Teekay Guarantor on 8 June 2004 together with such other additional
costs,
together with supporting invoices for such additional costs, as
may be
approved by the Facility Agent acting on the instructions of the
Majority
Lenders.
|
|
1.3
|
Headings
|
Clause headings
and the table of contents are inserted for convenience of reference only
and
shall be ignored in the interpretation of this Agreement.
|
1.4
|
Construction
of certain terms
|
In
this
Agreement, unless the context otherwise requires:
|
1.4.1
|
references
to any person includes such person’s successors in title and permitted
assignees and transferees;
|
|
1.4.2
|
references
to clauses and schedules are to be construed as references to
clauses of, and schedules to, this Agreement and references to
this Agreement include its
schedules;
|
|
1.4.3
|
references
to (or to any specified provision of) this Agreement or any other
document
shall be construed as references to this Agreement, that provision
or that
document as in force for the time being and as amended in accordance
with
terms thereof, or, as the case may be, with the agreement of the
relevant
parties;
|
|
1.4.4
|
references
to a “regulation” include any present or future
regulation, rule, directive, requirement, request or guideline
(whether or
not having the force of law) of any agency, authority, central
bank or
government department or any self-regulatory or other national
or
supra-national authority;
|
|
1.4.5
|
references
to a “month” mean a period beginning in one calendar
month and ending in the next calendar month on the day numerically
corresponding to the day of the calendar month on which it started,
provided that (a) if the period started on the last Banking Day
in a
calendar month or if there is no such numerically corresponding
day, it
shall end on the last Banking Day in such next calendar month,
(b) if such
numerically corresponding day is not a Banking Day, the period
shall end
on the next following Banking Day in the same calendar month but
if there
is no such Banking Day it shall end on the preceding Banking Day
and
“months” and “monthly” shall be construed accordingly and (c) references
to a calendar shall be construed as references to the Gregorian
calendar;
|
|
1.4.6
|
words
importing the plural shall include the singular and vice
versa;
|
|
1.4.7
|
references
to a time of day are to Paris time unless otherwise
specified;
|
|
1.4.8
|
references
to a person shall be construed as references to an individual,
firm,
company, corporation, unincorporated body of persons or any Government
Entity;
|
|
1.4.9
|
references
to a “guarantee” include references to an indemnity or
other assurance against financial loss including, without limitation,
an
obligation to purchase assets or services as a consequence of a
default by
any other person to pay any Indebtedness and “guaranteed”
shall be construed accordingly;
|
|
1.4.10
|
references
to “assets” include all or part of any business,
undertaking, real property, personal property, uncalled capital
and any
rights (whether actual or contingent, present or future) to receive,
or
require delivery of, any of the
foregoing;
|
|
1.4.11
|
references
to a document being “in the agreed form” shall mean a
document in a form agreed by (and for the purposes of identification
initialled by and on behalf of) the Borrowers, each relevant Security
Party which is a party thereto and the Facility Agent;
and
|
|
1.4.12
|
references
to any enactment shall be deemed to include references to such
enactment
as re-enacted, amended or extended.
|
|
1.5
|
Insurance
terms
|
In
this
Agreement, unless the context otherwise requires:
|
(a)
|
“protection
and indemnity risks” means the usual risks (including oil
pollution cover) covered by a protection and indemnity association
of the
International Group of Protection and Indemnity Associations (including,
without limitation, the proportion (if any) of any sums payable
to any
other person or persons in case of collision which are not recoverable
under the hull and machinery policies by reason of the incorporation
therein of Clause 8 of the Institute Time Clauses (Hulls)
1/11/95 or the Institute Amended Running Down Clause (1/10/71) or any
equivalent provision); and
|
|
(b)
|
“war
risks” includes those risks covered by the standard form of
English marine policy with Institute War and Strikes Clauses Hulls -
Time (1/11/95) attached or similar
cover.
|
|
1.6
|
Obligations
several
|
The
obligations of each Lender under this Agreement are several; the failure
of any
Lender to perform such obligations shall not relieve any other Finance Party
or
the Borrowers of any of their respective obligations or liabilities under
this
Agreement nor shall the Facility Agent or the Arranger be responsible for
the
obligations of any Lender (except for their own respective obligations, if
any,
as a Lender) nor shall any Lender be responsible for the obligations of any
other Lender under this Agreement.
|
1.7
|
Interests
several
|
Notwithstanding
any other term of this Agreement (but without prejudice to the provisions
of
this Agreement relating to or requiring action by the Majority Lenders) the
interests of the Finance Parties are several and the amount due to the Facility
Agent or the Arranger (for its own account) and to each Lender is a separate
and
independent debt. Save as provided in the Proceeds Deed and the
Agency Agreement, the Facility Agent, the Arranger and each Lender shall
have
the right to protect and enforce its rights arising out of this Agreement
and it
shall not be necessary for another Finance Party to be joined as an additional
party in any proceedings for this purpose.
|
2
|
The
Commitments and the Ship
Tranches
|
|
2.1
|
Amount
|
The
Lenders, relying upon each of the representations and warranties in
clause 7 agree to lend to the Borrowers, jointly and severally, upon and
subject to the terms of this Agreement the aggregate principal amount of
up to
the lesser of (a) four hundred and sixty-eight million, one hundred and eight
thousand and twenty-three Dollars ($468,108,023) and (b) eighty per cent.
(80%)
of the aggregate of the Vessel Cost (after having taken into account any
agreed
variations therein and any deductions from any Delivery Instalment for each
Ship) of each of the Ships. The obligation of each Lender under this
Agreement shall, subject to clause 2.5, be to contribute that proportion of
each Advance which, as at the Drawdown Date of such Advance, its Ship Tranche
Commitment in the Ship Tranche in respect of which such Advance is to be
made,
bears to the Commitments to such Ship Tranche of all Lenders.
|
2.2
|
Drawdown
|
Subject
to the terms and conditions of this Agreement, an Advance shall be made
available to the Borrowers following receipt by the Facility Agent from the
Borrowers of a Drawdown
Notice
not later than 10:00 a.m. on the fourth (4th) Banking Day before the proposed
Drawdown Date. A Drawdown Notice shall be effective on actual receipt
by the Facility Agent and, once given, shall, subject as provided in
clause 3.5.1, be irrevocable.
|
2.3
|
Ship
Tranches
|
The
Commitments of the Lenders are calculated, and limited, by reference to each
Ship Tranche. There is a separate Ship Tranche for each Ship. Commitments
to one
Ship Tranche are unavailable for Advances in respect of any other Ship Tranche.
Any Commitments to a Ship Tranche that are unused at the Termination Date
for
such Ship Tranche will become unavailable and deemed to be automatically
cancelled.
|
2.4
|
Advances
|
Each
Advance shall be made and exists as part of a Ship Tranche. Each Advance
may
only be made on a Banking Day falling within the relevant Drawdown Period
for
the Ship Tranche to which it relates. An Advance shall be requested solely
for
the purpose of funding the required Deposit Payment that is to be paid into
the
Deposit Account in connection with the security requirements of the Lessor
under
the relevant Lease in respect of the payment by the Lessor of the Initial
Instalment or a Subsequent Instalment or, in the case of the Initial Instalment
or a Subsequent Instalment that has been paid by the Lessor prior to the
date of
the first Drawdown Notice issued under this Agreement, in refinancing the
relevant Borrower’s funding of the required Deposit Payment or Deposit Payments
made at or around the time of the relevant Initial Instalment or Subsequent
Instalment.
|
2.5
|
Limitation
on the number and amount of Advances; variations in proportion
of funding
by Lenders
|
No
more
than four (4) Advances may be requested in respect of each Ship
Tranche. The aggregate amount of a Ship Tranche at any time shall not
exceed the lesser of (a) eighty per cent. (80%) of the Vessel Cost for the
relevant Ship and (b) the relevant Maximum Ship Tranche Amount but, subject
to
this principle:
|
2.5.1
|
each
Advance (save for the Delivery Advances) in respect of each Ship
Tranche
shall not exceed the amount of the Subsequent Instalment in respect
of
which it is requested (or, in the case of any Initial Instalment,
the
amount of any Subsequent Instalment comprised within that Initial
Instalment) and;
|
|
2.5.2
|
each
Delivery Advance in respect of each Ship Tranche shall not exceed
the
aggregate sum of the amount of the Delivery Instalment in respect
of which
it is requested and any additional costs described in paragraph
(b) of the
definition of “Vessel Cost” as at the date of issue of
the Drawdown Notice in respect of that Delivery
Advance.
|
The
Lenders shall contribute to each Advance in a proportion that reflects a
contribution by KEXIM of sixty-four per cent. (64%) of the relevant Advance
and
a contribution by the Commercial Lenders of thirty-six per cent. (36%) of
the
relevant Advance, with the intention that upon the making of each such Advance
each Lender shall have contributed to such Ship Tranche in the proportion
that
its Ship Tranche Commitment bears to the Commitments of all Lenders to such
Ship
Tranche.
An
indicative schedule of the Advances to be made for each Ship Tranche based
on the provisions of this clause 2.5 is set out in
Schedule 7.
|
2.6
|
Availability
|
Upon
receipt of a Drawdown Notice complying with the terms of this Agreement the
Facility Agent shall notify each Lender thereof and of the date on which
the
relevant Advance is to be made and, subject to the provisions of clause 2.5
and clause 9, on the Drawdown Date for the relevant Advance each of the
Lenders shall make available to the Facility Agent its proportion of such
Advance for payment by the Facility Agent in accordance with
clause 6.2.
|
2.7
|
KEXIM
Tranche and the Commercial Lenders
Tranche
|
The
Commitments of KEXIM and all Contributions to Advances made by KEXIM shall
constitute and form part of the KEXIM Tranche. The Commitments of the Commercial
Lenders and all Contributions to Advances made by the Commercial Lenders
shall
constitute and form part of the Commercial Lenders Tranche. Each Ship Tranche
shall comprise a KEXIM Tranche and a Commercial Lenders Tranche in the
proportion sixty-four/thirty-six (64/36).
|
2.8
|
Application
of proceeds
|
Without
prejudice to the Borrowers’ obligations under clause 8.1.3, none of the
Finance Parties shall have any responsibility for the application of the
proceeds of any Advance by the Borrowers.
|
3
|
Interest and interest periods
|
|
3.1
|
Normal
interest rate
|
The
Borrowers shall, subject to clause 6.3, pay interest on each Advance, Ship
Tranche or the Loan in respect of each Interest Period relating thereto on
each
Interest Payment Date as follows:
|
3.1.1
|
as
regards the part of each Advance, Ship Tranche or Loan that is
part of the
KEXIM Tranche, at the applicable KEXIM Rate;
or
|
|
3.1.2
|
as
regards the part of each Advance, Ship Tranche or Loan that is
part of the
Commercial Lenders Tranche, at the rate per annum that is the aggregate
of
(a) the Commercial Tranche Margin and (b) LIBOR for such Interest
Period,
|
provided
however that:
|
(a)
|
if
the Drawdown Notice(s) for the First Advance is not received by
the
Facility Agent in time to allow the Commercial Lenders to fix funds
equal
to their Contributions to the First Advance at LIBOR on the Quotation
Date
before the proposed Drawdown Date for such First Advance then LIBOR
for
the first Interest Period of such Advances shall be the weighted
average
of the rates quoted by the Commercial Lenders to the Facility Agent
for
such Interest Period; and
|
|
(b)
|
in
the case of any Interest Period of six (6) months, accrued interest
on the
relevant Advance, Ship Tranche or Loan for such Interest Period
shall,
subject to clause 6.3, be paid on the Interest Payment Date falling
three (3) months after the commencement of that Interest Period
as well as
on the Interest Payment Date at the end of such Interest
Period.
|
|
3.2
|
Determination
of Interest Periods
|
|
3.2.1
|
The
Borrowers may by notice received by the Facility Agent not later
than
10.00 a.m. on the fourth (4th) Banking Day before the beginning
of each
Interest Period for the Loan or (as appropriate) in a Drawdown
Notice
relating to an Advance and in each case which is in respect of
the
Commercial Lenders Tranche, select a duration of three (3) or six
(6)
months for such Interest Period. The Interest Period in respect
of the
Loan or (as appropriate) an Advance which is in respect of the
KEXIM
Tranche shall, unless otherwise provided in clause 3.2.3, have a
duration of three (3) months. Interest Periods shall be
determined separately for each Ship Tranche and therefore while
Interest
Periods for separate Advances within a Ship Tranche shall be consolidated
in accordance with this clause 3, Interest Periods for different Ship
Tranches will not automatically be consolidated with each
other.
|
|
3.2.2
|
In
this clause 3.2.2, all references to a Ship Tranche shall be a
reference to that part of such Ship Tranche which is constituted
by part
or, as the case may be, all of the Commercial Lenders
Tranche.
|
Each
Interest Period which is in respect of a Ship Tranche shall, subject to the
provisions of clause 6.3, be of the duration selected by the Borrowers in
accordance with clause 3.2.1 but so that:
|
(a)
|
the
initial Interest Period in respect of the First Advance under that
Ship
Tranche shall commence on the relevant Drawdown Date for that First
Advance and shall end on the expiry of the Interest Period selected
by the
Borrowers for that First Advance pursuant to
clause 3.2.1;
|
|
(b)
|
the
first Interest Period in respect of each Advance under that Ship
Tranche
(other than the First Advance under that Ship Tranche) shall commence
on
the Drawdown Date for such Advance and shall end on the last day
of the
Interest Period for the Ship Tranche which is applicable to that
Advance
and which is current on such Drawdown Date and, upon expiry of
the
Interest Period for such Advance, such Advance shall be consolidated
into
and shall form part of that Ship Tranche for the purpose of the
selection
or determination of all future Interest
Periods;
|
|
(c)
|
each
subsequent Interest Period for each Ship Tranche shall commence
on the
expiry of the previous Interest Period for that Ship
Tranche;
|
|
(d)
|
if
the Interest Period for a Ship Tranche does not end on, and shall
fall
after, the Delivery Date of the Ship associated with that Ship
Tranche
then:
|
|
(i)
|
the
Interest Period for the Delivery Advance for that Ship Tranche
shall,
subject to clause 3.2.2(c), be of a duration referred to in
clause 3.2.1;
|
|
(ii)
|
the
Interest Period in respect of the balance of that Ship Tranche
shall,
following the expiry of the Interest Period for that Ship Tranche
which
was current at the said Delivery Date, commence on the expiry date
of that
current Interest Period and shall end on the expiry of the first
Interest
Period in respect of the said Delivery Advance referred to in
sub-paragraph (i) above; and
|
|
(iii)
|
on
the expiry of the first Interest Period for the Delivery Advance
for that
Ship Tranche, that Delivery Advance shall then be consolidated
within that
Ship Tranche and each future Interest Period for that Ship Tranche
shall
have a duration selected by the Borrowers pursuant to
clause 3.2.1;
|
|
(e)
|
if
the Borrowers fail to select the duration of an Interest Period
in
accordance with the provisions of this clause 3.2, such Interest
Period shall, subject to the other provisions of this clause 3.2.2,
have a duration of three (3) months;
and
|
|
(f)
|
after
the Delivery Date of a Ship and save as provided in
clause 3.2.2(e)(ii), each Interest Period for the relevant Ship
Tranche shall expire on a Repayment
Date.
|
|
3.2.3
|
In
this clause 3.2.3, all references to a Ship Tranche shall be a
reference to that part of such Ship Tranche which is constituted
by part
or, as the case may be, all of the KEXIM
Tranche.
|
Each
Interest Period which is in respect of a Ship Tranche shall, subject to the
provisions of clause 6.3, have the duration of three (3) months referred
to in
clause 3.2.1 but so that:
|
(a)
|
the
initial Interest Period in respect of the First Advance under that
Ship
Tranche shall commence on the relevant Drawdown Date for that First
Advance and shall end on the expiry of the said three (3) month
period
referred to in clause 3.2.1;
|
|
(b)
|
the
first Interest Period in respect of each Advance under that Ship
Tranche
(other than the First Advance under that Ship Tranche) shall commence
on
the Drawdown Date for such Advance and shall end on the last day
of the
Interest Period for the Ship Tranche which is applicable to that
Advance
and which is current on such Drawdown Date and, upon expiry of
that
Interest Period, such Advance shall be consolidated into and shall
form
part of that Ship Tranche for the purpose of the selection or
determination of all future Interest
Periods;
|
|
(c)
|
each
subsequent Interest Period for each Ship Tranche shall commence
on the
expiry of the previous Interest Period for that Ship
Tranche;
|
|
(d)
|
if
an Interest Period for a Ship Tranche does not end on, and would
otherwise
fall after, the Delivery Date of the Ship associated with that
Ship
Tranche (except otherwise pursuant to this sub-paragraph (e))
then:
|
|
(i)
|
the
Interest Period then current in respect of that Ship Tranche at
the
Delivery Date for that Ship shall end on the Delivery Date for
that
Ship;
|
|
(ii)
|
the
Interest Period for the Delivery Advance for that Ship Tranche
shall,
subject to clauses 3.2.3(c) and 3.2.3(f), be of a duration of three
(3) months as determined pursuant to clause 3.2.1;
and
|
|
(iii)
|
on
the Delivery Date for the Ship associated with that Ship Tranche
the
Delivery Advance shall be consolidated within that Ship Tranche
and each
future Interest Period for that Ship Tranche shall, subject to
clause 3.2.3(f), have a duration of three (3) months as determined
pursuant to clause 3.2.1; and
|
|
(e)
|
after
the Delivery Date of a Ship each Interest Period shall expire on
a
Repayment Date.
|
|
3.3
|
Default
interest
|
If
the
Borrowers fail to pay any sum (including, without limitation, any sum payable
pursuant to this clause 3.3) on its due date for payment under any of the
Security Documents, the Borrowers shall pay interest on such sum on demand
from
the due date up to the date of actual payment (as well after as before
judgement) at a rate determined by the Facility Agent pursuant to this
clause 3.3. The period beginning on such due date and ending on
such date of payment shall be divided into successive periods of not more
than
three (3) months as selected by the Facility Agent (after consultation with
the
Lenders so far as reasonably practicable in the circumstances) each of which
(other than the first, which shall commence on such due date) shall commence
on
the last day of the preceding such period.
The
rate
of interest applicable to each unpaid sum and for each such period shall
be the
aggregate (as determined by the Facility Agent) of, as regards any such unpaid
amount owing to the Commercial Lenders, the Facility Agent or the Arranger
(a)
two per cent. (2%) per annum, (b) the Commercial Tranche Margin and (c) LIBOR
and as regards any such unpaid amount owing to KEXIM, (x) two per cent. (2%)
per
annum and (z) the applicable KEXIM Rate.
If
the
unpaid sum is an amount of principal which shall have become due and payable,
by
reason of a declaration by the Facility Agent under clause 10.2.2 or a
prepayment obligation arising pursuant to clauses 4.3, 8.2 or 12.1, prior
to the next succeeding Interest Payment Date relating thereto, the first
period
selected by the Facility Agent shall end on such Interest Payment Date and
interest shall be payable on such unpaid sum during such period at a rate
of two
per cent. (2%) above the rate applicable thereto immediately before it shall
have become so due and payable.
Interest
under this clause 3.3 shall be due and payable on the last day of each
period determined by the Facility Agent pursuant to this clause 3.3 or, if
earlier, on the date on which the sum in respect of which such interest is
accruing shall actually be paid. If, for the reasons specified in
clause 3.5.1 the Facility Agent is unable to determine a rate in accordance
with the foregoing provisions of this clause 3.3, each Lender shall
promptly notify the Facility Agent of the cost of funds to such Lender and
interest on any sum not paid on its due date for payment shall be calculated
for
each Lender at a rate determined by the Facility Agent to be two per cent.
(2%)
per annum above, in the case of a Commercial Lender, the aggregate of the
Commercial Tranche Margin and the cost of funds to such Commercial Lender
or, in
the case of KEXIM, the KEXIM Rate.
|
3.4
|
Notification
of Interest Periods and interest
rate
|
The
Facility Agent shall notify the Borrowers and the Lenders promptly of the
duration of each Interest Period or other period for the calculation of interest
(or, as the case may be, default interest) and of each rate of interest
determined by it under this clause 3.
|
3.5
|
Market
disruption;
non-availability
|
|
3.5.1
|
If
and whenever, at any time prior to the commencement of any Interest
Period:
|
|
(a)
|
the
Facility Agent shall have determined (which determination shall,
in the
absence of manifest error, be conclusive), that adequate and fair
means do
not exist for ascertaining LIBOR during such Interest Period;
or
|
|
(b)
|
the
Facility Agent shall have received notification from Commercial
Lenders
with Contributions aggregating not less than 66 2/3rds of the
Contributions of all the Commercial Lenders (or prior to the first
Drawdown Date, with Commitments aggregating not less than 66 2/3rds
of the
Commitments of all the Commercial Lenders) that deposits in Dollars
are
not available to such Commercial Lenders in the ordinary course
of
business in sufficient amounts to fund their Contributions for
such
Interest Period or that LIBOR does not accurately reflect the cost
to such
Commercial Lenders of obtaining such
deposits,
|
|
|
the
Facility Agent shall forthwith give notice (a “Determination
Notice”) thereof to the Borrowers and to each of the
Lenders. A Determination Notice shall contain particulars of the
relevant circumstances giving rise to its issue. After the giving of
any Determination Notice (and until the Facility Agent notifies the Borrowers
that none of the circumstances specified in clause 3.5.1 continues to
exist) the undrawn amount of the Commitments of the Commercial Lenders shall
only be borrowed (and an Advance may only be requested) if a New Lender Basis
has been agreed pursuant to clause 3.5.2.
|
3.5.2
|
During
the period of ten (10) days after any Determination Notice has
been given
by the Facility Agent under clause 3.5.1, each Commercial Lender that
has notified the Facility Agent thereunder, shall certify to the
Facility
Agent an alternative basis (the “Alternative Basis”) for
making available or, as the case may be, maintaining its Contribution.
The
Alternative Basis may (without limitation) include alternative
interest
periods, alternative currencies or alternative rates of interest
but shall
include a margin above the cost of funds to such Commercial Lender
equivalent to the Commercial Tranche Margin. The Facility Agent
shall
calculate the arithmetic mean of each Alternative Basis provided
by the
Commercial Lenders (rounded upwards, if not already such a multiple,
to
the nearest whole multiple of one-sixteenth of one per cent) (the
“New Lender Basis”) and certify the same to the Borrowers
and each of the Commercial Lenders. The New Lender Basis so certified
shall be binding upon the Borrowers and the affected Commercial
Lenders
and shall take effect in accordance with its terms from the date
specified
in the Determination Notice until such time as the Facility Agent
notifies
the Borrowers that none of the circumstances specified in
clause 3.5.1 continues to exist whereupon the normal interest rate
fixing provisions for the Commercial Lenders Tranche shall
apply.
|
|
4
|
Repayment
and prepayment
|
|
4.1
|
Repayment
|
|
4.1.1
|
The
Borrowers shall repay that part of each Ship Tranche that forms
part
of:
|
|
(a)
|
the
Commercial Lenders Tranche in one instalment, such instalment to
be repaid
on the date falling on the Final Maturity Date of the Ship associated
with
such Ship Tranche (and being the final Repayment Date for that
Ship
Tranche); and
|
|
(b)
|
the
KEXIM Tranche in forty-eight (48) equal instalments, one such instalment
to be repaid on each Repayment Date, commencing with a first instalment
on
the first Repayment Date following the Delivery Date of the Ship
associated with such Ship Tranche and ending with a final instalment
on
the forty-seventh Repayment Date
thereafter.
|
Each
instalment of that part of each Ship Tranche that forms part of the Commercial
Lenders Tranche shall be such amount as appears in the column headed “Repayment
Instalment - Commercial Lenders Tranche (Ship Tranche N°·)”
against
the
relevant Repayment Date as set out in Part A of Schedule 6. Each instalment
of that part of each Ship Tranche that forms part of the KEXIM Tranche shall
be
such amount as appears in the column “Repayment Instalment - KEXIM Tranche (Ship
Tranche N°·)”
against the relevant Repayment Date as set out in Part B of
Schedule 6.
|
4.1.2
|
The
amount of each instalment of that part of each Ship Tranche as
set out in
Schedule 6 Part A and Part B has been calculated on the assumption
that the Borrowers will draw the full amount of the Commitments
to the
relevant Ship Tranche. On the Delivery Date of each Ship and on
any
occasion on which a partial prepayment of the Loan is made under
clause 4, the Facility Agent shall provide the Borrowers and the
Lenders with a replacement Schedule 6 Part A and Part B based on the
actual amount of the relevant Ship Tranche (or all the Ship Tranches)
as
at that date showing (a) the exact date of each Repayment Date
(subject to
clause 6.3), (b) the amount of the instalments due on each Repayment
Date for that part of each Ship Tranche that forms part of the
KEXIM
Tranche and the amount repayable in respect of the Commercial Lenders
Tranche on the final Repayment Date, (c) the aggregate principal
amount
payable in respect of each Ship Tranche on each Repayment Date
and (d) the
balance of each Ship Tranche outstanding after the repayment of
the
instalments of the KEXIM Tranche on each Repayment Date. Each revised
Schedule 6 shall be binding on the Borrowers and the Lenders in the
absence of any manifest error and shall replace the then existing
Schedule 6 and shall for all purposes be treated as if it had been
attached as Schedule 6 ab initio. Any revised
Schedule 6 produced following a partial prepayment of the Loan shall
reflect any provision of this Agreement requiring any such partial
prepayments to be applied in reducing the repayment instalments
set forth
in Schedule 6 in inverse order of their due date for
payment.
|
|
4.2
|
Voluntary
prepayment
|
The
Borrowers may prepay any Ship Tranche in whole or part but if in part in
a
minimum amount of five million Dollars ($5,000,000) or any larger sum which
is
an integral multiple of one million Dollars ($1,000,000) on any Interest
Payment
Date for both the Commercial Lenders Tranche and the KEXIM Tranche of that
Ship
Tranche. The Borrowers shall give the Facility Agent at least thirty (30)
days’
prior notice in writing of their intention to make any such prepayment. The
amount of each prepayment shall be regarded as being divided between the
KEXIM
Tranche and the Commercial Lenders Tranche in the ratio that their respective
aggregate Contributions bear to the aggregate Contribution of all Lenders
as at
the time of prepayment.
The
prepayment of the KEXIM Tranche (or any part thereof) shall be subject to
a
prepayment premium of zero point fifty per cent. (0.50%) of the amount of
the
KEXIM Tranche to be prepaid and shall be payable to the Facility Agent (for
the
account of KEXIM) on the date such prepayment is due to be made. No prepayment
premium or penalty is due in respect of the amount of the Commercial Lenders
Tranche to be prepaid. The prepayment premium relating to the KEXIM Tranche
shall also be payable in the event of a prepayment on the sale, transfer,
novation or assignment of the Shipbuilding Contract for a Ship (including,
without limitation, any novation of the Shipbuilding Contract of a Ship in
favour of the Time Charterer pursuant to the exercise by the Time Charterer
of
its rights under clause 1g of the relevant Time Charter for that Ship) or
on the sale of a Ship (including any sale of a Ship to the Time Charterer
pursuant to the exercise by the Time Charterer of its rights under
clause 30 of the relevant Time Charter for that Ship) but shall
not be payable in the event of a mandatory prepayment under clauses 4.3 or
following a Total Loss under clause 4.4 or a
cancellation of Commitments to the KEXIM Tranche under
clause 4.8.
|
4.3
|
Mandatory
Prepayment
|
|
4.3.1
|
If
a Ship has not been delivered by the relevant End of Funding Date
the
Borrowers shall prepay the Ship Tranche attributable to that Ship
on such
End of Funding Date and the obligation of the Lenders to make the
Ship
Tranche for such Ship available for further Advances shall immediately
cease and the Lenders’ Commitments to such Ship Tranche shall be reduced
to zero.
|
|
4.3.2
|
If
the Builder rescinds, cancels or terminates a Shipbuilding Contract
and
such rescission, cancellation or termination is not withdrawn within
seven
(7) days of such rescission, cancellation or termination, the Borrowers
shall prepay the Ship Tranche attributable to that Shipbuilding
Contract
on the third (3rd) Banking Day following the expiry of such seven
(7) day
period and the obligation of the Lenders to make the Ship Tranche
for such
Ship available for further Advances shall immediately cease and
the
Lenders’ Commitments to such Ship Tranche shall be reduced to
zero.
|
|
4.3.3
|
If
the Lessor, having regard to clause 8.4.14, rescinds, cancels or terminates
a
Shipbuilding Contract and such rescission, cancellation or termination
is
not withdrawn within three (3) days after the Lessor gave notice
to the
Builder thereof, the Borrowers shall prepay the Ship Tranche attributable
to that Shipbuilding Contract on the earlier of (a) the date on
which the
Builder repays the instalments previously paid by the Lessor under
that
Shipbuilding Contract and (b) thirty (30) days following the date
of such
rescission, cancellation or termination, provided that if the Builder
disputes such rescission, cancellation or termination and refers
the
dispute to litigation in accordance with the relevant Shipbuilding
Contract prior to the date on which the Borrowers would otherwise
be
obliged to prepay the relevant Ship Tranche in accordance with
this
clause 4.3.3, then the Borrowers shall only become obliged to prepay
the Ship Tranche on the earliest to occur of (a) ninety (90) days
after
the date of such rescission, cancellation or termination, (b) the
date on
which the Builder makes a refund of the instalments previously
paid by the
Lessor under the relevant Shipbuilding Contract and (c) the date
on which
the Refund Guarantor makes a payment under the relevant Refund
Guarantee(s) and on the date any such prepayment is due to be made
under
this clause, the obligation of the Lenders to make the Ship Tranche
for
such Ship available for further Advances shall immediately cease
and the
Lenders’ Commitments to such Ship Tranche shall be reduced to
zero.
|
|
4.3.4
|
If,
following the Delivery of a Ship, the Lessor becomes entitled to
receive a
payment from the Builder under the relevant Shipbuilding Contract
of an
amount exceeding five hundred thousand Dollars ($500,000) that
would have
been taken as a deduction to the Delivery Instalment had the applicable
amount been known or agreed at Delivery (but excluding any liquidated
damages for late delivery payable by the Builder under Article 3.3 of
the Shipbuilding Contract which does not operate to reduce the
Contract
Price, which shall not give rise to any prepayment obligation)
then the
Borrowers shall prepay the Ship Tranche attributable to that Ship
in an
amount equal to the amount of the payment the Lessor is entitled
to
receive from the Builder. If the Security Trustee receives such
payment
from the Builder under the terms of the relevant Lessee Assignment
it
shall apply such amount in or towards satisfaction of such prepayment
obligation and if the Borrowers have already satisfied such obligation
and
no Default has occurred and is continuing, the Security Trustee
shall pay
such amount to the Borrowers.
|
|
4.3.5
|
If,
in respect of a Ship, there is a termination of the agreement to
lease the
Ship or, as the case may be, the leasing of the Ship under the
relevant
Lease and/or the Lessor issues a further novation notice under
clause 7 of
the relevant Novation Agreement in each case in circumstances where
no
Lease Event of Default has occurred and is continuing, then unless
the
transaction in respect of the financing of the Ships is restructured
on
terms acceptable to all of the Finance Parties (acting reasonably)
within
thirty (30) days of the occurrence of such termination and/or further
novation, the Facility Agent shall give notice to the Borrowers
and within
(3) Banking Days following the date of such notice, the Borrowers
shall
prepay the Ship Tranche for such Ship to the Facility Agent in
full and
any Available Commitment in respect of such Ship Tranche shall
be reduced
to zero.
|
For
the
purpose of the above paragraph, if the Lessee wishes to exercise its right
of
voluntary termination under clauses 2.3 or 2.6 of the relevant Lease, the
Borrowers shall procure that the Lessee shall give the Facility Agent not
less
than thirty (30) days prior written notice of
the
date on which the Lessee intends such voluntary termination to take place
so
that the Finance Parties have the required time to discuss a possible
restructuring of the transaction in respect of the financing of the Ships
on
terms acceptable to all the Finance Parties as an alternative to the Facility
Agent requiring the Borrowers to prepay the relevant Ship Tranche upon the
voluntary termination of the relevant Lease pursuant to clauses 2.3 or 2.6
of
such Lease.
|
4.3.6
|
If
there is a change in the ownership of the Lessor without the prior
written
consent of all of the Finance Parties, which consent shall not
be
unreasonably withheld if the new parent of the Lessor is a financial
institution with a minimum credit rating of A with Standard & Poors
Rating Services or A with Moodys Investors Services Inc. and such
new
parent provides support letters in respect of the Lessor in substantially
the same form as the Lessor Parent Support Letters, the Facility
Agent
shall be entitled to give written notice to the Borrowers and where
such
written notice is given:
|
|
(a)
|
prior
to the drawdown of an Advance hereunder, then on the date of such
change
the Lenders’ Commitments shall be reduced to zero and the Lenders shall
have no obligation to make any Advances hereunder;
or
|
|
(b)
|
following
the drawdown of an Advance hereunder, then the Borrowers shall
prepay Loan
in full within three (3) Banking Days following the date of such
change.
|
|
4.3.7
|
If
there occurs:
|
|
(a)
|
in
relation to the Lessor or the Lessor Parent, any event which corresponds
with, or has an effect equivalent or similar to, any of those events
mentioned in clauses 10.1.7, 10.1.9, 10.1.10, 10.1.11, 10.1.12,
10.1.14 or
10.1.15 as if in such clauses, references to “Security Party” were
references to the Lessor and the Lessor Parent;
or
|
|
(b)
|
in
relation to the Security Documents, any event which corresponds
with, or
has an effect equivalent or similar to, the events mentioned in
clause
10.1.3 as if in such clause, references to “Security Party” were
references to the Lessor and the Lessor
Parent,
|
then
the
Facility Agent shall be entitled to give written notice to the Borrowers
and
where such written notice is given, the Borrowers shall be obliged to cancel
all
remaining Commitments on the date of such occurrence and prepay the Loan
in full
within three (3) Banking Days following the date of such
occurrence.
|
4.4
|
Prepayment
on Total Loss or sale
|
|
4.4.1
|
Without
prejudice to clause 8.4.14, on a
Shipbuilding Contract being sold, transferred, novated or assigned
(including, without limitation, any novation of the Shipbuilding
Contract
of a Ship in favour of the Time Charterer pursuant to the exercise
by the
Time Charterer of its rights under clause 1 of the relevant Time
Charter but not including a novation to the Replacement Purchaser
pursuant
to clause 7 of the relevant Novation Agreement) or a Ship being
sold
(including any sale of a Ship to the Time Charterer pursuant to
the
exercise by the Time Charterer of its rights under clause 30 of the
relevant Time Charter) or becoming a Total Loss, in each case before
the
First Advance for such Ship is drawn down, the obligation of the
Lenders
to make the Ship Tranche for such Ship available shall immediately
cease
and the Lenders Commitments to such Ship Tranche shall be reduced
to
zero.
|
|
4.4.2
|
Without
prejudice to clause 8.1.14, if after the drawdown of the First
Advance in respect of a Ship Tranche, the relevant Shipbuilding
Contract
is sold, transferred, novated or assigned (including, without limitation,
any novation of the Shipbuilding Contract of a Ship in favour of
the Time
Charterer pursuant to the exercise by the Time Charterer of its
rights
under clause 1g of the relevant Time Charter) or the relevant Ship is
sold (including any sale of a Ship to the Time Charterer pursuant
to the
exercise by the Time Charterer of its rights under clause 30 of the
relevant Time Charter or to the Builder pursuant to the exercise
by the
Lessor of its rights under article 3.20 of the relevant Shipbuilding
Contract) or becomes a Total Loss, the Borrowers shall on the Disposal
Reduction Date prepay to the Facility Agent an amount in Dollars
equal to
the principal amount of the Ship Tranche made available for such
Ship
outstanding on the Disposal Reduction Date and the obligation of
the
Lenders to make the Ship Tranche for such Ship available for further
Advances shall immediately cease and the Lenders’ Commitments to such Ship
Tranche shall be reduced to zero.
|
|
4.4.3
|
For
the purposes of this clause 4.4:
|
“Disposal
Reduction Date” means:
|
|
(a)
|
in
relation to a Ship which has become a Total Loss, its Total Loss
Reduction
Date; and
|
|
|
(b)
|
in
relation to a Shipbuilding Contract that is sold, transferred,
novated or
assigned or a Ship which is sold, the date upon which such sale,
transfer,
novation or assignment is completed by the assumption by the buyer
of
obligations under the Shipbuilding Contract in place of the relevant
Borrower or the transfer of title to such Ship to the purchaser,
in either
case, in exchange for payment of the relevant purchase
price;
|
“Total
LossReduction Date” means, in relation to a Ship, the
date which is the earliest of:
|
|
(a)
|
the
date falling ninety (90) days after such Ship becomes a Total
Loss;
|
|
|
(b)
|
the
date upon which the Builder or the Refund Guarantor makes a refund
of the
instalments previously paid by the Lessor or, where applicable,
the
Replacement Purchaser under the relevant Shipbuilding Contracts;
and
|
|
|
(c)
|
the
date on which insurance proceeds or Requisition Compensation in
respect of
such Total Loss are received by the Lessor or the Lessee or, where
applicable, the Replacement Purchaser (or the Security Trustee
on behalf
of the Lenders as assignee or, as the case may be, sub-assignee
pursuant
to the relevant Security
Documents).
|
For
the
purpose of this Agreement and the other Security Documents, a Total Loss
shall
be deemed to have occurred:
|
(a)
|
in
the case of an actual total loss of a Ship on the actual date and
at the
time such Ship was lost or destroyed or, if such date is not known,
on the
date on which such Ship was last reported;
or
|
|
(b)
|
in
the case of a constructive total loss of the Ship, upon the date
and at
the time notice of abandonment of the Ship is given to the insurers
of the
Ship 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;
or
|
|
(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 of such Ship;
or
|
|
(d)
|
in
the case of Compulsory Acquisition, on the date upon which the
relevant
requisition of title or other compulsory acquisition occurs;
or
|
|
(e)
|
in
the case of hijacking, theft, condemnation, capture, seizure, arrest,
detention or confiscation of such Ship (other than where the same
amounts
to Compulsory Acquisition of such Ship) by any Government Entity,
or by
persons purporting to act on behalf of any Government Entity, which
deprives the Lessee of the use of such Ship for more than sixty
(60) days,
upon the expiry of the period of sixty (60) days after the date
upon which
the relevant hijacking, theft, condemnation, capture, seizure,
arrest,
detention or confiscation occurred.
|
|
4.4.4
|
Any
insurance moneys or Requisition Compensation or proceeds of sale
received
by the Security Trustee or the Lenders in respect of such Total
Loss or
sale of a Ship or the sale, transfer, novation or assignment of
a
Shipbuilding Contract or the cancellation of a Time Charter by
the Time
Charterer pursuant to clause 2d of such Time Charter, under the
relevant Security Document shall (if and to the extent necessary
to ensure
compliance with clauses 4.3, 4.4 and 4.5) be applied by the Security
Trustee in or towards making any prepayment and paying any other
moneys
required under clauses 4.3, 4.4 or 4.5 and provided no Default has
occurred and is continuing the balance, if any, shall be paid to
the
Borrowers or as they may otherwise
direct.
|
|
4.5
|
Mandatory
prepayment on cancellation of a Time
Charter
|
If
the
Time Charterer exercises its cancellation option under clause 2d of any of
the Time Charters, any Cancellation Fee payable by the Time Charterer in
respect
of the exercise of such cancellation option shall be paid into the Operating
Account. Any Cancellation Fee so paid into the Operating Account
shall be subject to the provisions of the Lessee Assignment and the Account
Pledge. During the period commencing on the date of cancellation of
any Time Charter and expiring one hundred and twenty (120) days after such
date,
the Borrowers and/or the Lessee shall be entitled to arrange for alternative
sub-charter arrangements to be put in place in respect of the relevant Ship
on
terms and with a charterer acceptable to all the Lenders in their absolute
discretion.
If
on the
expiry of the said one hundred and twenty (120) day period, no alternative
sub
charter arrangements that are satisfactory to all of the Lenders have been
put
in place in respect of the relevant Ship, then the Borrowers shall prepay
the
Ship Tranche associated with the relevant Ship on the next Interest Payment
Date
for the relevant Ship Tranche falling after the expiry of the said one hundred
and twenty (120) day period and as specified by the Facility Agent in a notice
in writing given to the Borrowers and if the cancellation occurs prior to
the
Delivery Date for the relevant Ship, the obligations of the Lenders to make
the
Ship Tranche for such Ship available for further Advances shall immediately
cease and the Lenders’ Commitments to such Ship Tranche shall be reduced to
zero.
|
4.6
|
Amounts
payable on prepayment
|
Any
prepayment under this Agreement shall be made together with (a) accrued interest
on the amount to be prepaid to the date of such prepayment, (b) any additional
amount payable under clauses 6.7 or 12.2, (c) any prepayment premium
payable under clause 4.2 and (d) all other sums payable by the Borrowers
under this Agreement or any of the other Security Documents including, without
limitation, any accrued (but unpaid) commitment commission payable under
clauses 5.1.2 or 5.1.3 and any amounts payable under
clause 11.
|
4.7
|
Notice
of prepayment; reduction of repayment
instalments
|
Every
notice of prepayment shall be effective only on actual receipt by the Facility
Agent, shall be irrevocable, shall specify the amount to be prepaid and shall
oblige the Borrowers to make such prepayment on the date
specified. No amount prepaid may be re-borrowed. Any
partial prepayment pursuant to clause 4.2 or any other provision of this
Agreement shall be applied pro rata to each Ship Tranche in reducing the
repayment instalments of each Ship Tranche under clause 4.1 in inverse
order of their due dates for payment. The Borrowers may not prepay the Loan
or
any part thereof save as expressly provided in this Agreement.
|
4.8
|
Cancellation
of Commitments
|
The
Borrowers may at any time, by notice to the Facility Agent (effective only
on
actual receipt), cancel with effect from a date not less than thirty (30)
days
after the receipt by the Facility Agent of such notice the whole or any part
(being five million Dollars ($5,000,000) or any larger sum which is an integral
multiple of one million Dollars ($1,000,000)), of the Commitments to any
Ship
Tranche which have not then been borrowed or requested in a Drawdown Notice.
Any
such notice of cancellation, once given, shall be irrevocable and upon such
cancellation taking effect the Commitment of each Lender to such Ship Tranche
shall be reduced proportionately.
|
4.9
|
Cancellation
of KEXIM Commitments
|
If
the
Borrowers wish to cancel any part of the Commitment of KEXIM then the Borrowers
shall be obliged to pay to KEXIM on the relevant date of cancellation a
cancellation fee equal to zero point two five per cent. (0.25%) of the
applicable amount of the Commitment of KEXIM which is so cancelled.
|
5
|
Commitment
commission, fees and
expenses
|
|
5.1
|
Fees
|
The
Borrowers shall pay to the Facility Agent:
|
5.1.1
|
in
accordance with the Fee Letters and for distribution to the Arranger,
KEXIM and the Commercial Lenders, the fees details of which are
set out in
the Fee Letters;
|
|
5.1.2
|
for
the account of KEXIM, on the date falling three (3) months after
the
Original Date and on each of the dates falling at three (3) monthly
intervals thereafter up to and including the last of the Termination
Dates, commitment commission in arrear computed from the Original
Date at
the rate of zero point three per cent. (0.30%) per annum on the
daily
undrawn and uncancelled amount of the Commitments of
KEXIM;
|
|
5.1.3
|
for
the account of each Commercial Lender, on the date falling three
(3)
months after 30 September 2004 and on each of the dates falling
at three
(3) monthly intervals thereafter up to and including the last of
the
Termination Dates, commitment commission in arrear computed from
30 September 2004 at the rate of zero point four per cent. (0.40%)
per annum on the daily undrawn and uncancelled amount of the Commitments
of such Commercial Lender.
|
The
fees
referred to in sub-clause 5.1.1 and the commitment commission referred to
in sub-clauses 5.1.2 and 5.1.3 shall be payable by the Borrowers to the
Facility Agent whether or not any of the Commitments of the Lenders are
advanced.
|
5.2
|
Expenses
|
The
Borrowers shall pay to the Facility Agent on a full indemnity basis on
demand:
|
5.2.1
|
all
expenses (including legal, insurance, printing and out-of-pocket
expenses
and any tax thereon) reasonably incurred by the Facility Agent
and KEXIM
in connection with the negotiation, preparation, execution and,
where
relevant, registration of the Security Documents (subject to any
limit
agreed between the Facility Agent and any counsel instructed by
it) and of
any amendment or extension of, or the granting of any waiver or
consent
under, any of the Security Documents;
and
|
|
5.2.2
|
all
expenses (including legal, printing and out-of-pocket expenses)
properly
incurred by the Finance Parties or any of them in connection with,
the
enforcement or attempted enforcement of, or preservation or attempted
preservation of any rights under, any of the Security Documents,
or
otherwise in respect of the moneys owing under any of the Security
Documents,
|
together
with interest at the rate referred to in clause 3.3 from the date falling
fourteen (14) days following the receipt by the Borrower from the Facility
Agent
of a copy invoice or other evidence with respect to those expenses to
the date of payment (as well after as before judgement).
|
5.3
|
Value
Added Tax
|
All
fees
and expenses payable pursuant to this clause 5 shall be paid together with
value added tax or any similar tax (if any) properly chargeable
thereon. Any value added tax chargeable in respect of any services
supplied by the Finance Parties or any of them under this Agreement, the
Agency
Agreement or any other Security Document shall, on delivery of the value
added
tax invoice, be paid in addition to any sum agreed to be paid
hereunder.
|
5.4
|
Stamp
and other duties
|
The
Borrowers shall pay all stamp, documentary, registration or other like duties
or
Taxes (including, but without limitation, any duties or Taxes payable by,
or
assessed on, any of the Finance Parties) imposed on or in connection with
any of
the Transaction Documents, the Security Documents or the Loan and shall
indemnify each of the Finance Parties against any liability arising by reason
of
any delay or omission by the Borrowers to pay such duties or Taxes.
|
6
|
Payments
and taxes; accounts and
calculations
|
|
6.1
|
No
set-off or counterclaim; distribution to the
Lenders
|
All
payments to be made by the Borrowers under any of the Security Documents
shall
be made in full, without any set-off or counterclaim whatsoever and, subject
as
provided in clause 6.7, free and clear of any deductions or withholdings,
in Dollars (except for costs, charges or expenses which shall be paid in
the
currency in which they are incurred) on the due date to the account of the
Facility Agent at such bank in such place as the Facility Agent may from
time to
time specify for this purpose. Save where the Security Documents
provide for a payment to be made for the account of a particular Finance
Party,
in which case the Facility Agent shall distribute the relevant payment to
the
Finance Party concerned, payments to be made by the Borrowers under the Security
Documents shall be for the account of all the Lenders and the Facility Agent
shall forthwith distribute such payments in like funds as are received by
the
Facility Agent to the Lenders rateably in accordance with their Commitments
or
Contributions, as the case may be.
|
6.2
|
Payment
by the Lenders
|
All
sums
to be advanced by the Lenders to the Borrowers under this Agreement shall
be
remitted in Dollars on the relevant Drawdown Date (or earlier) to the account
of
the Facility Agent at Calyon Americas New York, Building 0000 Xxxxxx xx xxx
Xxxxxxxx, XX 00000, Swift Code: XXXXXX00, CHIPS: 807, Fed ABA: 0000-0000-0,
Account No. 0100383000100 of Calyon Paris, Reference: Teekay 3-Ship Facility,
Attention: Xxxxxx Xxxxx Xxxxxx - Middle Office or at such other bank as the
Facility Agent may have notified to the Lenders and shall be paid by the
Facility Agent on such date in like funds as are received by the Facility
Agent
to the account or accounts specified in the relevant Drawdown
Notice.
|
6.3
|
Non-Banking
Days
|
When
any
payment under any of the Security Documents would otherwise be due on a day
which is not a Banking Day, the due date for payment shall be extended to
the
next following Banking Day unless such Banking Day falls in the next calendar
month in which case payment shall be made on the immediately preceding Banking
Day.
When
the
first date or last date of an Interest Period would otherwise fall on a day
which is not a Banking Day, such date shall be extended to the next following
Banking Day unless such Banking Day falls in the next calendar month in which
case such date shall fall on the immediately preceding Banking Day.
|
6.4
|
Facility
Agent may assume receipt
|
Where
any
sum is to be paid under this Agreement to the Facility Agent for the account
of
another person, the Facility Agent may assume that the payment will be made
when
due and may (but shall not be obliged to) make such sum available to the
person
so entitled. If it proves to be the case that such payment was not
made to the Facility Agent, then the person to whom such sum was so made
available shall on request refund such sum to the Facility Agent together
with
interest thereon sufficient to compensate the Facility Agent for the cost
of
making available such sum up to the date of such repayment and the person
by
whom such sum was payable shall indemnify the Facility Agent for any and
all
loss or expense which the Facility Agent may sustain or incur as a consequence
of such sum not having been paid on its due date.
|
6.5
|
Calculations
|
All
interest and other payments of an annual nature under any of the Security
Documents shall accrue from day to day and be calculated on the basis of
actual
days elapsed and a three hundred and sixty (360) day year. In
calculating the actual number of days elapsed in a period which is one of
a
series of consecutive periods with no interval between them or a period on
the
last day of which any payment falls to be made in respect of such period,
the
first day of such period shall be included but the last day
excluded.
|
6.6
|
Certificates
|
Any
certificate or determination of the Facility Agent, or any Lender as to any
rate
of interest, rate of exchange or any other amount pursuant to and for the
purposes of any of the Security Documents shall, as between Finance Parties
and
as between any Finance Party and the Borrowers, be regarded as being prima
facie evidence of such rate or other amount.
|
6.7
|
Grossing-up
for Taxes - Borrowers
|
If
at any
time the Borrowers are required by any applicable law or regulation of any
Government Entity binding on them to make any deduction or withholding in
respect of Taxes from any payment due under any of the Security Documents
for
the account of any Finance Party (or if the Facility Agent is required to
make
any such deduction or withholding from a payment to a Finance Party), the
sum
due from the Borrowers in respect of such payment shall be increased to the
extent necessary to ensure that, after the making of such deduction or
withholding, each Finance Party receives on the due date for such payment
(and
retains, free from any liability in respect of such deduction or withholding),
a
net sum equal to the sum which it would have received had no such deduction
or
withholding been required to be made and the Borrowers shall indemnify each
Finance Party against any losses or costs incurred by it by reason of any
failure of the Borrowers to make any such deduction or withholding or by
reason
of any increased payment not being made on the due date for such
payment. The Borrowers shall promptly pay to the relevant tax
authorities each amount so deducted or withheld and deliver to the Facility
Agent any receipts, certificates or other proof evidencing the amounts (if
any)
paid or payable in respect of any deduction or withholding as
aforesaid.
|
6.8
|
Grossing-up
for Taxes - Lenders
|
If
at any
time any Lender is required by any applicable law or regulation of any
Government Entity binding on it to make any deduction or withholding in respect
of Taxes from any payment due under any of the Security Documents for the
account of the Facility Agent, the sum due from such Lender in respect of
such
payment shall be increased to the extent necessary to ensure that, after
the
making of such deduction or withholding, the Facility Agent receives on the
due
date for such payment (and retains free from any liability in respect of
such
deduction or withholding) a net sum equal to the sum which it would have
received had no such deduction or withholding been required to be made and
each
Lender shall indemnify the Facility Agent against any losses or costs incurred
by it by reason of any failure of such Lender to make any such deduction
or
withholding or by reason of any increased payment not being made on the due
date
for such payment.
|
6.9
|
Claw-
back of tax benefit
|
If,
following any such deduction or withholding as is referred to in clause 6.7
from any payment by the Borrowers and the payment by the Borrowers of the
amount
of such deduction or withholding to the appropriate tax authorities, the
Facility Agent or any Lender, shall receive or be granted a credit against
or
remission for any Taxes payable by it (by reason of the payment of such
deduction or withholding to the tax authorities), the Facility Agent or such
Lender shall, subject to the Borrowers having made any increased payment
in
accordance with clause 6.7 and to the extent the Facility Agent or such
Lender can do so without prejudicing the retention of the amount of such
credit
or remission and without prejudice to the right of the Facility Agent or
such
Lender to obtain any other relief or allowance which may be available to
it and
to apply any credit or remission in such order and against such amounts as
it
may choose, reimburse the Borrowers with such amount as the Facility Agent
or
such Lender shall in its absolute discretion certify to be the proportion
of
such credit or remission as will leave it (after such reimbursement) in no
worse
position than
it
would
have been in had there been no such deduction or withholding from the payment
by
the Borrowers as aforesaid. Such reimbursement shall be made forthwith upon
the
Facility Agent or, as the case may be, the relevant Lender certifying that
the
amount of such credit or remission has been received by it. Nothing contained
in
this clause shall oblige the Facility Agent or any Lender to rearrange its
tax affairs or to disclose any information regarding its tax affairs and
computations. Without prejudice to the generality of the foregoing, the
Borrowers shall not, by virtue of this clause 6.9, be entitled to enquire
about the Facility Agent’s or any Lender’s tax affairs.
|
6.10
|
Bank
account
|
Each
Lender shall maintain, in accordance with its usual practice, an account
or
accounts evidencing the amounts from time to time lent by, owing to and paid
to
it under the Security Documents. The Facility Agent shall maintain a
control account showing each Advance, Ship Tranche and other sums owing by
the
Borrowers under the Security Documents. The control account shall, in
the absence of manifest error, be conclusive as to the amount from time to
time
owing by the Borrowers under the Security Documents.
|
7
|
Representations and warranties
|
|
7.1
|
Continuing
representations and
warranties
|
The
Borrowers jointly and severally represent and warrant to each of the Finance
Parties that:
|
7.1.1
|
Due
incorporation: each of the Borrowers is duly incorporated as a
corporation and validly existing under the laws of the Xxxxxxxx
Islands
and has power to carry on its business as it is now being conducted
and to
own its property and other assets;
|
|
7.1.2
|
Corporate
power: each of the Borrowers has power to execute, deliver
and
perform its obligations under the Transaction Documents and to
borrow the
Total Commitments; all necessary corporate and other action has
been taken
to authorise the execution, delivery and performance of the same
and no
limitation on the powers of any Borrower to borrow will be exceeded
as a
result of borrowings under this
Agreement;
|
|
7.1.3
|
Binding
obligations: the Transaction Documents to which they are
respectively a party constitute or will, when executed, constitute
valid
and legally binding obligations of the Borrowers enforceable in
accordance
with their respective terms;
|
|
7.1.4
|
No
conflict with other obligations: the execution and delivery of,
the borrowing of the Total Commitments and the performance of their
respective obligations under, and compliance with the provisions
of, the
relevant Shipbuilding Contracts, the Security Documents and the
other
Transaction Documents to which they are respectively a party, by
the
relevant Borrowers will not (a) contravene any existing applicable
law, statute, documents and the Transaction Documents to which
they are
respectively a party, regulation or any judgement, decree or permit
to
which any of the Borrowers is subject, (b) conflict with, or result
in any breach of any of the terms of, or constitute a default under,
any
agreement or other instrument to which any of the Borrowers is
a party or
is subject or by which it or any of its property is bound,
(c) contravene or conflict with any provision of the constitutional
documents of any of the Borrowers or (d) result in the creation or
imposition of or oblige any of the Borrowers to create any Encumbrance
(other than a Permitted Encumbrance) on any of the undertakings,
assets,
rights or revenues of any of the
Borrowers;
|
|
7.1.5
|
Choice
of law: the choice of English law to govern the Security
Documents (other than the Mortgages (including the Mortgage Transfers),
the Account Pledge and the Retention Account Pledge), the choice
of French
law to govern the Account Pledge and the Retention Account Pledge
and the
choice of Bahamas law to govern the Mortgages (including the Mortgage
Transfers) and the submissions by the Borrower to the jurisdiction
of the
English courts and (as the case may be) the French courts and (as
the case
may be) the Bahamas courts are valid and
binding;
|
|
7.1.6
|
No
immunity: neither the Borrowers nor any of their respective
assets are entitled to immunity on the grounds of sovereignty or
otherwise
from any legal action or proceeding (which shall include, without
limitation, suit, attachment prior to judgement, execution or other
enforcement);
|
|
7.1.7
|
Consents
obtained: every consent, authorisation, licence or approval of,
or registration with or declaration to governmental or public bodies
or
authorities or courts required by any Borrower to authorise, or
required
by any Borrower in connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of the Transaction
Documents
to which it is or is to be a party and each of the Security Documents
or
the performance by each Borrower of its obligations under the Security
Documents to which it is or is to be a party, has been obtained
or made
and is in full force and effect and there has been no default in
the
observance of any of the conditions or restrictions (if any) imposed
in,
or in connection with, any of the
same;
|
|
7.1.8
|
Borrowers’
own account: in relation to the borrowing by each Borrower of the
Loan, the performance and discharge of its obligations and liabilities
under the Security Documents and the transactions and other arrangements
effected or contemplated by the Security Documents to which such
Borrower
is a party, it is acting for its own account and that the foregoing
will
not involve or lead to a contravention of any law, official requirement
or
other regulatory measure or procedure which has been implemented
to combat
“money laundering” (as defined in Article 1 of the
Directive (91/308/EEC) of the Council of the European
Communities);
|
|
7.1.9
|
Place
of business: none of the Borrowers has a place of business (or is
registered as a company or business) in England and Wales;
and
|
|
7.1.10
|
No
Encumbrance in respect of pre-delivery security: the benefit of
any of the rights, title and interest of the Lessor and the Replacement
Purchaser in or to each Shipbuilding Contract and the Refund Guarantees
is
not subject to any Encumbrance (other than, if applicable, any
Encumbrance
arising by operation of law in favour of the Time Charterer under
the Time
Charters) and such benefit and all such rights, title and interest
are
freely assignable and chargeable in the manner contemplated by
the Lessor
Assignments, Lessee Assignments and the Replacement Purchaser
Assignments.
|
|
7.2
|
Initial
representations and
warranties
|
The
Borrowers jointly and severally further represent and warrant to each of
the
Finance Parties that:
|
7.2.1
|
Pari
passu: the obligations of each Borrower under the Security
Documents are direct, general and unconditional obligations of
such
Borrower and rank at least pari passu with all other present and
future
unsecured and unsubordinated Indebtedness of such Borrower other
than
those obligations that are mandatorily preferred by law and not
solely by
contract;
|
|
7.2.2
|
No
default under other Indebtedness: none of the Borrowers is (nor
would with the giving of notice or lapse of time or the satisfaction
of
any other condition or combination thereof be) in material breach
of or in
default under any agreement relating to Indebtedness to which it
is a
party or by which it may be bound;
|
|
7.2.3
|
Information:
the information, exhibits and reports furnished by any Borrower
to the
Finance Parties in connection therewith or with the negotiation
and
preparation of the Security Documents are true and accurate in
all
material respects and not misleading and all expressions of opinion
contained therein genuinely reflect the opinions of the directors
and
senior management of such Borrower and are based on reasonable
assumptions; do not omit material facts and all reasonable enquiries
have
been made to verify the facts and statements contained therein;
there are
no other facts the omission of which would make any fact or statement
therein misleading;
|
|
7.2.4
|
No
withholding Taxes: no Taxes are imposed by withholding or
otherwise on any payment to be made by any Security Party under
the
Transaction Documents or the Security Documents or are imposed
on or by
virtue of the execution or delivery by the Security Parties of
the
Transaction Documents or the Security Documents or any other document
or
instrument to be executed or delivered under any of the Security
Documents;
|
|
7.2.5
|
No
Default: no Default has occurred which is
continuing;
|
|
7.2.6
|
Compliance
with Environmental Laws and Approvals: except as may already have
been disclosed by any of the Borrowers in writing to, and acknowledged
in
writing by, the Facility Agent:
|
|
(a)
|
the
Borrowers and their Related Companies and their respective Environmental
Affiliates have complied, to the best of their knowledge and belief,
with
the provisions of all Environmental Laws except where non-compliance
does
not and will not have a Material Adverse
Effect;
|
|
(b)
|
the
Borrowers and their Related Companies and their respective Environmental
Affiliates have obtained, to the best of their knowledge and belief,
all
Environmental Approvals and are in compliance with all such Environmental
Approvals, except where the failure to obtain or comply with any
such
Environmental Approvals does not and will not have a Material Adverse
Effect; and
|
|
(c)
|
none
of the Borrowers nor any of their Related Companies nor any of
their
respective Environmental Affiliates has received, to the best of
their
knowledge and belief, notice that any of the Borrowers or any of
their
Related Companies or any such Environmental Affiliate is not in
compliance
with any Environmental Law or any Environmental Approval, where
such
non-compliance has or will have a Material Adverse
Effect;
|
|
7.2.7
|
No
Environmental Claims: except as may already have been disclosed
by any of the Borrowers in writing to, and acknowledged in writing
by, the
Facility Agent there is no Environmental Claim pending or threatened
against any of the Borrowers or any of their Related Companies
or any
Relevant Ship or any of their respective Environmental Affiliates
that has
or will have a Material Adverse
Effect;
|
|
7.2.8
|
No
potential Environmental Claims: except as may already have been
disclosed by any of the Borrowers in writing to, and acknowledged
in
writing by, the Facility Agent there has been no emission, spill,
release
or discharge of a Pollutant from any Relevant Ship which could
give rise
to an Environmental Claim that would have a Material Adverse
Effect;
|
|
7.2.9
|
Copies
true and complete: the copies of the Transaction Documents to
which the Finance Parties are not a party delivered or to be delivered
to
the Facility Agent pursuant to clause 9.1 are, or will when delivered
be, true and complete copies of such documents; such documents
will when
delivered constitute valid and binding obligations of the parties
thereto
enforceable in accordance with its terms and there will have been
no
amendments or variations thereof (other than, in the case of the
Shipbuilding Contracts, changes or variations permitted under the
terms of
clause 8.4.11) or defaults
thereunder;
|
|
7.2.10
|
No
Default under Shipbuilding Contracts: the Lessor or, to the
extent the following obligations are performed by the Supervisor
on behalf
of the Lessor pursuant to the Supervision Agreements, the Supervisor
is
not in default of any of the Lessor’s obligations under any of the
Shipbuilding Contracts or any of the Lessor’s obligations upon the
performance or observance of which depend the continued liability
of the
Refund Guarantors in accordance with the terms of the relevant
Refund
Guarantees;
|
|
7.2.11
|
No
litigation: no litigation, arbitration or administrative
proceeding is taking place, pending or, to the knowledge of the
officers
of any of the Borrowers, threatened against any of the Borrowers which
could have a material adverse effect on the business, assets or
financial
condition of any of the Borrowers;
and
|
|
7.2.12
|
No
filings required: save for the registration of (a) the Mortgages
(including the Mortgage Transfers) in the relevant register under
the laws
of the relevant Flag State through the relevant Registry and (b)
the
Mortgages (including the Mortgage Transfers), the Lessor Assignments,
the
Lessee Assignments, the Replacement Purchaser Assignments, the
Account
Pledge and the Retention Account Pledge with the Registrar for
Companies
of England and Wales, it is not necessary to ensure the legality,
validity, enforceability or admissibility in evidence of any of
the
Transaction Documents to which any Borrower is a party that they
or any
other instrument be notarised, filed, recorded, registered or enrolled
in
any court, public office or elsewhere in any Relevant Jurisdiction
or that
any stamp, registration or similar tax or charge be paid in any
Relevant
Jurisdiction on or in relation to the Transaction Documents and
each of
the Transaction Documents is in proper form for its enforcement
in the
courts of each Relevant
Jurisdiction.
|
|
7.3
|
Representations
and warranties relating to the Delivery
Dates
|
The
Borrowers jointly and severally represent and warrant (and shall be deemed
to
represent and warrant) to each of the Finance Parties on the Delivery Date
for
each Ship that:
|
7.3.1
|
Ships:
the relevant Ship will on its Delivery Date
be:
|
|
(a)
|
in
the absolute ownership of the Lessor who will on and after each
such date
(unless that Ship is sold in accordance with the Transaction Documents)
be
the sole, legal and beneficial owner of such
Ship;
|
|
(b)
|
registered
in the name of the Lessor through the Registry as a ship under
the laws
and flag of the Flag State and with the Mortgage for that Ship
duly
registered as a first priority
mortgage;
|
|
(c)
|
operationally
seaworthy and in every way fit for
service;
|
|
(d)
|
classed
with the relevant Classification free of all requirements and
recommendations of the relevant Classification Society (other than
any
requirements and recommendations at the Delivery Date which are
approved
in writing by the Time Charterer and which are also approved by
the
Facility Agent (such approval of the Facility Agent not to be unreasonably
withheld); and
|
|
(e)
|
delivered
to and accepted by the Lessee under the relevant Lease and to and
by the
Time Charterer under the relevant Time Charter for that
Ship;
|
|
7.3.2
|
Employment:
other than pursuant to the relevant Lease and the relevant Time
Charter,
the relevant Ship will not on its Delivery Date be subject to any
charter
or contract or to any agreement to enter into any charter or contract
and
there will not on such Delivery Date be any agreement or arrangement
whereby the Earnings of such Ship may be shared with any other
person;
|
|
7.3.3
|
Freedom
from Encumbrances: none of the relevant Ship, its Insurances or
Requisition Compensation (or any part thereof), the relevant Lease,
the
relevant Time Charter nor the rights of the Lessor or the Lessee
thereunder will on the Delivery Date of the Ship be subject to
any
Encumbrance other than Permitted Encumbrances and any Encumbrances
arising
in favour of the Time Charterer under the terms of the relevant
Time
Charter;
|
|
7.3.4
|
Consents
obtained: every consent, authorisation, licence or approval of,
or registration with or declaration to, governmental or public
bodies or
authorities or courts required by any of the Borrowers (and considered
by
the Facility Agent to be material) to authorise, or required by
any of the
Borrowers in connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of any of the Security
Documents to which any of the Borrowers are a party or the performance
by
any Borrower of its obligations under the Security Documents has
been
obtained or made and is in full force and effect and there has
been no
default in the observance of any condition or restriction (if any)
imposed
in, or in connection with, any of the same which the Facility Agent
considers to be material.
|
|
7.4
|
Repetition
of representations and
warranties
|
On
and as
of each Drawdown Date and (except in relation to the representations and
warranties in clause 7.2) on each Interest Payment Date the Borrowers shall
be deemed to repeat the representations and warranties in clauses 7.1 and
7.2 as if made with reference to the facts and circumstances existing on
such
day.
|
7.5
|
Legal
qualifications
|
As
regards the representations and warranties set out in clauses 7.1.1 to 7.1.7, 7.2.1,
7.2.4
and 7.2.12 to the extent that the subject matter of those
representations and warranties is within the scope of any legal opinion provided
to the Finance Parties, such representations and warranties shall be qualified
by reference to any qualification, reservation or exception as to matters
of law
contained in such legal opinions but excluding any assumptions or references
to
matters of fact.
|
8
|
Undertakings
|
|
8.1
|
General
|
The
Borrowers undertake with each of the Finance Parties that throughout the
Security Period and while all or any part of the Commitments remains
outstanding, they will:
|
8.1.1
|
Notice
of Default: promptly upon becoming aware of the same inform the
Facility Agent of any occurrence which might adversely affect the
ability
of any Security Party to perform their obligations under any of
the
Security Documents and, without limiting the generality of the
foregoing:
|
|
(a)
|
will
inform the Facility Agent of any Default forthwith upon becoming
aware
thereof;
|
|
(b)
|
will
from time to time, if so requested by the Facility Agent, confirm
to the
Facility Agent in writing that, save as otherwise stated in such
confirmation, no Default has occurred and is
continuing;
|
|
(c)
|
will
inform the Facility Agent of any default by the Lessee in the performance
of its obligations under a Lease or of any Lease Event of
Default;
|
|
(d)
|
will
inform the Facility Agent of any Mandatory Prepayment Event (as
defined in
each Lease); and
|
|
(e)
|
will
procure that the Lessee will provide to the Facility Agent copies
of any
notices which the Lessee receives pursuant to clause 18 of any
Lease;
|
|
8.1.2
|
Consents
and licences: without prejudice to clause 7.1 and 9, obtain
or cause to be obtained, maintain in full force and effect and
comply in
all material respects with the conditions and restrictions (if
any)
imposed in, or in connection with, every consent, authorisation,
licence
or approval of governmental or public bodies or authorities or
courts and
do, or cause to be done, all other acts and things which may from
time to
time be necessary or desirable under applicable law for the continued
due
performance of all the obligations of the Security Parties under
each of
the Security Documents;
|
|
8.1.3
|
Use
of proceeds: use each Advance exclusively for the purpose
specified in clause 1.1;
|
|
8.1.4
|
Pari
passu: ensure that their obligations under this Agreement shall,
without prejudice to the provisions of clause 8.2, at all times rank
at least pari passu with all its other present and future unsecured
and
unsubordinated Indebtedness with the exception of any obligations
which
are mandatorily preferred by law and not solely by
contract;
|
|
8.1.5
|
Provision
of further information: provide the Facility Agent with such
additional financial and other information concerning any Borrower,
the
other Security Parties and their respective affairs as the Facility
Agent
or any Lender (acting through the Facility Agent) may from time
to time
reasonably require (but for the avoidance of doubt there shall
be no
requirement for audited financial statements for any of the
Borrowers);
|
|
8.1.6
|
Employment
of the Ships: in respect of a Ship which is no longer chartered
to the Time Charterer and if this is requested by any Lender, within
thirty (30) days of the end of each accounting year, provide the
Facility
Agent with a written report on the employment record of such Ship
over
that year;
|
|
8.1.7
|
Obligations
under Transaction Documents: duly and punctually perform each of
the obligations expressed to be assumed by them under the Transaction
Documents;
|
|
8.1.8
|
Compliance
with ISM Code: procure that any Operator will, comply with and
ensure that the Mortgaged Ships and any Operator comply with the
requirements of the ISM Code, including (but not limited to) the
maintenance and renewal of valid certificates pursuant thereto
throughout
the Security Period (as defined in the relevant
Mortgage);
|
|
8.1.9
|
Compliance
with ISPS Code: procure that any Operator will comply with and
ensure that the Mortgaged Ships and any Operator will comply with
the
requirements of the ISPS Code and with specifications of the International
Maritime Organisation, and any other regulations, either existing
or
future, of the International Maritime Authority and the European
Union;
|
|
8.1.10
|
Issuance
of DOC and SMC: procure that upon any change of Operator of any
of the Ships, such Operator will promptly inform the Facility Agent
and
deliver to the Facility Agent a certified true copy of the relevant
DOC
and SMC; and
|
|
8.1.11
|
Withdrawal
of certificates: procure that any Operator will, immediately
inform the Facility Agent if there is any threatened or actual
withdrawal
of a DOC or the SMC in respect of any of the Mortgaged Ships or
any
certification required in order for it, any Operator and the Mortgaged
Ship to comply with the ISPS Code.
|
|
8.2
|
Security
value maintenance
|
|
8.2.1
|
Security
shortfall: If at any time in respect of any of the Ships, (i) the
Security Value shall be less than the Security Requirement and
(ii) the RG
Security Value shall be less than the RG Security Requirement,
the
Facility Agent acting on the instructions of the Majority Lenders
may give
notice to the Borrowers requiring that such deficiency be remedied
and
then the Borrowers shall either:
|
|
(a)
|
prepay
within a period of twenty (20) Banking Days of the date of receipt
by the
Borrowers of the Facility Agent’s said notice such sum in Dollars as will
result in (taking into account any other repayment of the Loan
made
between the date of the notice and the date of such prepayment)
(i) the
Security Value after such prepayment being equal to or greater
than the
Security Requirement and/or, as the case may be (ii) the RG Security
Value
after such prepayment being equal to or greater than the RG Security
Requirement; or
|
|
(b)
|
within
twenty (20) Banking Days of the date of receipt by the Borrowers
of the
Facility Agent’s said notice, constitute to the satisfaction of the
Majority Lenders such further security (in the form of an Encumbrance)
for
the Loan as shall be acceptable to the Majority Lenders having
a value for
security purposes (as determined by the Majority Lenders in their
absolute
discretion) at the date upon which such further security shall
be
constituted which, (i) when added to the Security Value, shall
not be less
than the Security Requirement as at such date and/or, as the case
may be,
(ii) when added to the RG Security Value, shall not be less than
the RG
Security Requirement as at such
date.
|
The
provisions of clause 4.6 shall apply to prepayments under
clause 8.2.1(a).
|
8.2.2
|
Valuation
of Ships: Each Mortgaged Ship shall, for the purposes of this
clause, be valued in Dollars for the first time at its Delivery
Date and
thereafter as at each anniversary of the Delivery Advance for the
relevant
Ship Tranche relating to such Mortgaged Ship in each year. Notwithstanding
the foregoing the Facility Agent, acting on the instructions of
the
Majority Lenders, shall be entitled to require a valuation of any
one or
more of the Ships at any other time if the Majority Lenders reasonably
believe that either (a) there has been a material change in the
second
hand market for similar ships or (b) it is appropriate that a valuation
of
a Ship be made on the basis of a physical inspection. On each occasion
that the value of the Ship is required to be determined, the Facility
Agent shall nominate two Approved Shipbrokers to make valuations
without
physical inspection (unless required by the Majority Lenders) and
on the
basis of a sale for prompt delivery for cash at arms length on
normal
commercial terms as between a willing buyer and a willing seller
and:
|
|
(a)
|
for
the purposes of determining the Security Value, without taking
into
account the benefit of, or any detriment caused by, the relevant
Time
Charter or any other charterparty or other engagement concerning
the
relevant Ship; and
|
|
(b)
|
for
the purposes of determining the RG Security Value, taking into
account the
benefit of or any detriment caused by the relevant Time Charter
in
accordance with the RG Value
Principles.
|
The
Facility Agent shall then calculate the average of each pair of valuations
and
such average shall be the valuation used for the purpose of determining the
Security Value and the RG Security Value. The Facility Agent shall provide
the
Borrowers and each Lender with a copy of any valuation obtained by it. In
respect of any request for a valuation under this clause 8.2.2, the
Borrowers shall use reasonable efforts to facilitate any required physical
inspection as soon as practicable after the relevant request.
Where
the
Borrowers disagree with valuations in respect of a Ship provided by either
of
the two appointed Approved Shipbrokers, the Borrowers shall notify the Facility
Agent in writing of such disagreement. The Borrowers may thereafter
instruct a third Approved Shipbroker to make a third valuation in respect
of
either or both of the Security Value and the RG Security Value of such Ship
in
accordance with the principles set out above in this
clause 8.2.2. The Facility Agent shall then calculate the
average of each set of valuations and such average shall be the valuation
used
for the purpose of determining the Security Value and the RG Security
Value.
The
most
recent relevant valuation determined in accordance with the provisions of
this
clause 8.2 shall constitute the market value of the relevant Ship for the
purposes of this Agreement and shall be binding upon the parties hereto until
such time as any further such valuations shall be obtained.
For
the
purposes of this clause, the “RG Value Principles” shall be as
follows:
the
value
of the benefit of, or detriment caused by, the relevant Time Charter shall
be
calculated as the net present value of the difference between such Time Charter
and other comparable and recently fixed time charters of an equivalent duration
as the relevant Time Charter for ships of an equivalent age and type to the
relevant Ship and for comparable projects in the market; and
the
net
present value of the difference in the time charter incomes in (a) above,
shall
be calculated using a discount rate of four point eight nine per cent. (4.89%)
with rests at three (3) monthly intervals during the relevant period of
calculation.
|
8.2.3
|
Information:
The Borrowers undertake with the Finance Parties to supply to the
Facility
Agent and to any Approved Shipbrokers such information concerning
the
Ships and their condition as such Approved Shipbrokers may reasonably
require for the purpose of making any such
valuation.
|
|
8.2.4
|
Costs:
All costs in connection with the Facility Agent or, as the case
may be,
the Borrowers obtaining any valuation of any of the Ships referred
to in
clause 8.2.2, and any valuation either of any additional security for
the purposes of ascertaining the Security Value and the RG Security
Value
at any time or necessitated by the Borrowers electing to constitute
additional security pursuant to clause 8.2.1(b), shall be borne by
the Borrowers.
|
|
8.2.5
|
Valuation
of additional security: For the purpose of this clause 8.2,
the market value of any additional security provided or to be provided
to
the Lenders shall be determined by the Facility Agent, acting on
the
instructions of the Majority Lenders in their absolute discretion,
without
any necessity for the Majority Lenders assigning any reason
thereto.
|
|
8.2.6
|
Documents
and evidence: In connection with any additional security provided
in accordance with this clause 8.2, the Facility Agent shall be
entitled to (and shall if so requested by the Majority Lenders)
require
the Borrowers to provide such evidence and documents of the kind
referred
to in Schedule 4 that it believes are appropriate (or which it has
been so required to request) and such favourable legal opinions
as the
Facility Agent shall in its absolute discretion
require.
|
|
8.2.7
|
Release
of Additional Security: Where additional security has been
constituted by the Borrowers to the satisfaction of the Majority
Lenders
under clause 8.2.1(b), if at any time thereafter either (a) the
Security Value less the market value of such additional security
(as
determined in accordance with clause 8.2.5) is equal to or more than
the Security Requirement or (b) the RG Security Value less the
market
value of such additional security (as determined in accordance
with
clause 8.2.5) is equal to or more than the RG Security Requirement,
the Borrowers shall be entitled to notify the Facility Agent and
as soon
as practicable following receipt of that notice and subject to
the
Facility Agent being indemnified to its satisfaction against the
cost of
doing so and also being of the opinion that the requirements referred
to
in (a) or (b) above are satisfied, the Facility Agent and/or, as
the case
may be, the Security Trustee shall release any such additional
security.
|
|
8.3
|
Negative
undertakings
|
Each
of
the Borrowers undertakes with each of the Finance Parties that throughout
the
Security Period and while all or any part of the Commitments remains
outstanding, it will not, without the prior written consent of the Facility
Agent acting on the instructions of the Majority Lenders:
|
8.3.1
|
No
merger
|
enter
into any amalgamation, demerger, merger or corporate reconstruction;
or
|
8.3.2
|
Other
business
|
undertake
any business other than entering into the Transaction Documents to which
it is a
party and performing its obligations and exercising its rights under and
pursuant to the Transaction Documents; or
|
8.3.3
|
Negative
pledge
|
permit
any Encumbrance (other than a Permitted Encumbrance) to subsist, arise or
be
created or extended over all or any part of its present or future undertakings,
assets, rights or revenues; or
|
8.3.4
|
Disposals
|
sell,
transfer, abandon, lend or otherwise dispose of or cease to exercise direct
control over any part of its present or future undertaking, assets, rights
or
revenues whether by one or a series of transactions related or not except
in
respect of any Intra-Group Transactions, but subject to clauses 8.3.14 and 8.3.15;
or
|
8.3.5
|
Acquisitions
|
acquire
any further assets other than the rights arising under contracts entered
into by
or on behalf of such Borrower in the ordinary course of its business of
performing its obligations and exercising its rights under and pursuant to
the
Transaction Documents except in respect of any Intra-Group Transactions,
but
subject to clauses 8.3.14 and 8.3.15; or
|
8.3.6
|
Other
obligations
|
incur
any
obligations except for obligations arising in respect of any Intra-Group
Transactions, but subject to clauses 8.3.14
and 8.3.15, or under the relevant Transaction
Documents or contracts entered into in the ordinary course of its business
of
performing its obligations and exercising its rights under and pursuant to
the
Transaction Documents; or
|
8.3.7
|
No
borrowing
|
incur
any
Borrowed Money except for Borrowed Money pursuant to the Security Documents
and,
subject to clauses 8.3.14 and 8.3.15, in respect
of any Intra-Group Transactions;
or
|
8.3.8
|
Repayment
of borrowings
|
repay
the
principal of, or pay interest on or any other sum in connection with any
of its
Borrowed Money except for Borrowed Money pursuant to the Security Documents
and,
subject to clause 8.3.14, in respect of any
Intra-Group Transactions; or
|
8.3.9
|
Guarantees
|
issue
any
guarantee or indemnity or otherwise become directly or contingently liable
for
the obligations of any person, firm, or corporation except pursuant to the
Security Documents and except for guarantees or indemnities from time to
time
required in the ordinary course by any protection and indemnity or war risks
association with which the relevant Ship is entered, guarantees required
to
procure the release of the relevant Ship from any arrest, detention, attachment
or levy or guarantees or undertakings required for the salvage of the relevant
Ship; or
|
8.3.10
|
Loans
|
make
any
loans or grant any credit (save for normal trade credit in the ordinary course
of business and, subject to clauses 8.3.14 and 8.3.15, in respect
of any Intra-Group Transactions) to
any person or agree to do so; or
|
8.3.11
|
Sureties
|
permit
any Indebtedness of such Borrower to any person (other than the Finance Parties)
to be guaranteed by any person (save for guarantees or indemnities from time
to
time required in the ordinary course by any protection and indemnity or war
risks association with which the relevant Ship is entered, guarantees required
to procure the release of the relevant Ship from any arrest, detention,
attachment or levy or guarantees or undertakings required for the salvage
of the
relevant Ship or guarantees of trade debt incurred by a Borrower in the ordinary
course of business); or
|
8.3.12
|
Share
capital and distribution
|
purchase
or otherwise acquire for value any shares of its capital; or
|
8.3.13
|
Subsidiaries
|
form
or
acquire any Subsidiaries; or
|
8.3.14
|
Inter-company
loan
|
following
the issue of a notice under clause 10.2 or a demand
under any of the Security Documents in respect of the whole of the
Loan:
|
(a)
|
demand
or accept repayment in whole or in part of any Indebtedness now
or
hereafter due to any of the Borrowers from any of the other Security
Parties or take any step to enforce any right against any of the
other
Security Parties or in respect of any such Indebtedness;
or
|
|
(b)
|
claim
any set-off or counterclaim against any of the other Security Parties
or
claim or prove in competition with any of the Finance Parties in
the
liquidation of any of the other Security Parties or have the benefit
of,
or share in, any payment from or composition with, any of the other
Security Parties but, if so directed by the Facility Agent, they
will
prove for the whole or part of their claims in the liquidation
of such of
the other Security Parties on terms that the benefit of such proof
and of
all money received by them in respect thereof shall be held on
trust for
the Facility Agent and applied in or towards discharge of the Loan
and all
other amounts due and owing by the Borrowers under the Security
Documents
in such manner as the Facility Agent shall deem appropriate;
or
|
|
8.3.15
|
Borrowers/Lessee
inter-company arrangements
|
amend
or
agree to amend the provisions and documents governing the credit support
and
hedge arrangements between the Borrowers and the Lessee as described in the
summary provided or to be provided under paragraph 15 of Part 1 of Schedule
4
where the amendments would have a material effect on any of the Finance Parties
but any consent required of the Facility Agent acting on the instructions
of the
Majority Lenders in relation to the matters covered under this clause 8.3.15 shall not be unreasonably
withheld.
|
8.4
|
Ship
covenants - pre-delivery
|
Each
of
the Borrowers hereby covenants with each of the Finance Parties and undertakes
throughout the Security Period that it will:
|
8.4.1
|
procure
that the Supervisor will duly and punctually observe and perform
all the
conditions and obligations imposed on it by the relevant Shipbuilding
Contract (as agent of the Lessor) and relevant Supervision
Agreement;
|
|
8.4.2
|
procure
that the Supervisor (as agent of the Lessor) will use its reasonable
endeavours to ensure that the Builder observes and performs all
conditions
and obligations imposed on it by the relevant Shipbuilding Contract
and
take all reasonable steps within its power to ensure that the Builder
proceeds with the construction of the relevant Ship with due diligence
and
despatch and will promptly notify the Facility Agent of any default
by the
Builder upon becoming aware
thereof;
|
|
8.4.3
|
upon
the request of the Facility Agent, procure that the Supervisor
will advise
the Facility Agent of the progress of construction of each Ship
and supply
the Facility Agent with such other information as the Facility
Agent may
reasonably require regarding the Ships and the materials allocated
or
appropriated to the Ships;
|
|
8.4.4
|
in
the event that the Builder and/or the Lessor (or the Supervisor
as agent
of the Lessor) resorts to litigation as provided in Article 14 of
each of the Shipbuilding Contracts, procure that the Supervisor
both
immediately notifies the Facility Agent in writing that such litigation
has been initiated and upon termination of the litigation process
also
notifies the Facility Agent in writing to that effect and supplies
the
Facility Agent with a copy of the court
judgment;
|
|
8.4.5
|
where
a Ship is (or is to be) sold in exercise of any power contained
in the
relevant Lessor Assignment, Lessee Assignment or Replacement Purchaser
Assignment or otherwise conferred on the Facility Agent, procure
that the
Supervisor uses all reasonable endeavours to procure that the Lessor
executes or procures that the Replacement Purchaser executes, forthwith
upon request by the Facility Agent, such form of conveyance of
such Ship
as the Facility Agent may require;
|
|
8.4.6
|
procure
that the Supervisor and, where applicable, the Replacement Purchaser
does
or permits to be done each and every act or thing which the Security
Trustee may from time to time reasonably require to be done for
the
purpose of enforcing the Security Trustee’s rights in respect of the
Shipbuilding Contracts and the Refund Guarantees under or pursuant
to the
Lessor Assignments, the Lessee Assignments and the Replacement
Purchaser
Assignments and, upon the occurrence of an Event of Default which
is
continuing, procure that the Supervisor uses all reasonable endeavours
to
allow the name of the Lessor to be used as and when required by
the
Security Trustee for that purpose;
|
|
8.4.7
|
notifies
the Facility Agent promptly if:
|
|
(a)
|
the
Supervisor receives any notice of a delay on account of which the
Builder
claims that it is entitled under a Shipbuilding Contract to a postponement
of the Delivery Date for the relevant Ship from the Builder under
Article 9.3 of the relevant Shipbuilding Contract (and at the time of
notifying the Facility Agent will also provide the Facility Agent
with a
copy of such notice and accompanying supporting documents);
or
|
|
(b)
|
the
Builder or (with the prior written consent of the Facility Agent,
acting
on the instructions of the Majority Lenders given pursuant to
clause 8.4.14) the Supervisor (as agent
of the Lessor) and/or the Lessor rejects a Ship or the Lessor or
the
Supervisor (as agent of the Lessor) cancels, rescinds, repudiates
or
otherwise terminates any of the Shipbuilding Contracts or the Refund
Guarantees or purports to do so or if a Ship shall become a Total
Loss or
shall be damaged and the repair or reinstatement cost of such damage
exceeds or is likely to exceed the Casualty
Amount;
|
|
8.4.8
|
procure
the execution by the Lessee and the Lessor and the registration
of the
Mortgage and the Mortgage Transfer respectively in respect of each
Ship
under the laws and flag of the Flag State immediately upon its
Delivery;
|
|
8.4.9
|
not
agree and procure that there is no agreement, without the prior
written
consent of the Facility Agent acting on the instructions of the
Majority
Lenders (each Lender acting reasonably), to any variation of any
Refund
Guarantee or to any release of any Refund Guarantor from any of
its
obligations thereunder or to any waiver of any breach of a Refund
Guarantor's obligations thereunder or consent to any such act or
omission
of a Refund Guarantor as would otherwise constitute such
breach;
|
|
8.4.10
|
ensure
that no Ship is registered in the name of the Lessor other than
in
satisfaction of the conditions precedent in Part 4 of Schedule 4
without the prior written consent of the Facility Agent acting
on the
instructions of the Majority
Lenders;
|
|
8.4.11
|
procure
that the Supervisor notifies the Facility Agent of any amendment
to a
Shipbuilding Contract and provides the Facility Agent with evidence
of the
Time Charterer’s consent to any such amendment and procure that there is
not, without the prior written consent of the Facility Agent acting
on the
instructions of the Majority Lenders (each Lender acting reasonably)
(a)
any variation of a Shipbuilding Contract or any material variation
of the
specification (but excluding for this purpose variations of the
specification that are required by the Time Charterer under the
terms of
clause 1(f)(4) of the relevant Time Charter, which shall not require
such consent) of a Ship (and for the purpose of this paragraph any
extras, additions or alterations which the Lessor or the Supervisor
(as
agent of the Lessor) may desire to effect in the building of a
Ship shall
be deemed to constitute a material variation if the cost thereof
(which
shall in every case be agreed in writing between the Lessor and/or
the
Supervisor and the Builder before the work is put in hand irrespective
of
whether the prior consent thereto of the Facility Agent be required
hereunder) or if the aggregate cost of the proposed work, together
with
the cost of any work already ordered, will alter the Contract Price
for
such Ship by an amount greater than two per cent. (2%) of the Contract
Price) or (b) any release of the Builder from any of its obligations
under
a Shipbuilding Contract or any waiver of any breach of the Builder's
obligations thereunder or any consent to any such act or omission
of the
Builder as would otherwise constitute such
breach;
|
|
8.4.12
|
not
agree and procure that there is no agreement, without the prior
written
consent of the Facility Agent acting on the instructions of the
Majority
Lenders (each Lender acting reasonably) and without prejudice to
clause 8.4.11, to any variation of a Shipbuilding
Contract or specification of a Ship which would delay the time
for
delivery of such Ship by more than an aggregate of thirty (30)
days unless
such variation is required by the Time Charterer under the terms
of the
relevant Time Charter.
|
|
8.4.13
|
not
agree and procure that there is no agreement, without the prior
written
consent of the Facility Agent acting on the instructions of the
Majority
Lenders, to any reconstruction and/or repair of a Ship following
a Total
Loss;
|
|
8.4.14
|
not
agree and procure that there is no agreement, without the prior
written
consent of the Facility Agent acting on the instructions of the
Majority
Lenders (each Lender acting reasonably) but subject always to the
obligations of the Lessee and the rights of the Time Charterer
under
clause 1(g) of the relevant Time Charter, to the exercise, or failure
to exercise, of any right which the Lessor and/or the Supervisor
may have
to reject a Ship or to cancel or rescind or otherwise terminate
a
Shipbuilding Contract, provided always that any such rejection
of a Ship
or cancellation, rescission or other termination of a Shipbuilding
Contract by the Lessor or the Supervisor (as the agent of the
Lessor) after such consent is given shall be without
responsibility on the part of any Finance Party who shall be under
no
liability whatsoever to the extent that such rejection, rescission,
cancellation or termination is thereafter adjudged to constitute
a
repudiation or other breach of such Shipbuilding Contract by the
Lessor;
and
|
|
8.4.15
|
procure
that the Supervisor will keep the Facility Agent regularly informed
of the
likely delivery date for each Ship and copy to the Facility Agent
any
notices received from the Builder pursuant to the last sentence
of
article 2.3 or under article 6.2 of the Shipbuilding Contract
for each Ship.
|
|
8.5
|
Insurance
covenants
|
|
8.5.1
|
Insurance:
|
|
(a)
|
Insured
risks, amounts
andterms: effect and
maintain (and/or procure that there is effected and maintained)
from the
Delivery Date of each Mortgaged Ship and throughout the Security
Period,
at its cost and expense, Insurances covering physical loss and/or
damage
and liabilities to crew, cargo and third parties interests of,
or in
connection with, each Mortgaged Ship on terms, conditions, and
insured
values as expressly required by the Facility Agent and further
described
below. Such Insurances shall be effected through the Approved Broker
with
or directly by the Lessee or another member of the Teekay Guarantor
Group,
with a first class underwriter or group of underwriters, insurance
companies and associations approved, such approval not to be unreasonably
withheld or delayed, by the Facility Agent and underwritten a full
one
hundred per cent. (100%) by such approved insurers. Following the
Delivery
Date of
|
|
|
each
Mortgaged Ship, unless and until otherwise approved in writing
by the
Facility Agent, the Insurances required by and acceptable to it
will
be:
|
|
(i)
|
hull
and machinery insurances:
|
|
(A)
|
on
full conditions as wide as the Institute Time Clauses Hull (1/11/95),
or American Institute Hull Clauses (June 2 1977), or Norwegian Marine
Insurance Plan of 1999, or French Maritime Clause dated 1st January
1998 as updated and amended;
|
|
(B)
|
on
an agreed value basis for an amount of at least one hundred and
ten per
cent. (110%) of the Relevant Insured Amount;
and
|
|
(C)
|
deductible
amounts in respect of each Mortgaged Ship shall not exceed seven
hundred
and fifty thousand Dollars ($750,000) or such higher amount as
the Lenders
may agree (such agreement not to be unreasonably
withheld);
|
|
(ii)
|
increased
value (total loss only, including excess liabilities)
insurance:
|
|
(A)
|
on
full conditions as wide as the Institute Time Clauses Hulls
Disbursements and Increased Value (1/10/83), or American Institute
Increased Value and Excess Liabilities Clauses (November 3, 1977), or
the equivalent under the Norwegian Marine Insurance Plan of 1999
or French
Maritime Clause dated 1st January 1998;
and
|
|
(B)
|
on
an agreed value basis for a maximum insured amount of at least
one hundred
and ten per cent. (110%) of the Relevant Insured Amount,
and
|
it
is
understood that for the purpose of determining the compliance of the agreed
value with the requirements of sub-clauses 8.5.1(a)(i) and 8.5.1(a)(ii),
the total of the agreed values of each insurance will be aggregated. For
the
purpose of clarification, it is also agreed that the amount insured under
the
increased value insurance shall be a maximum of twenty five per cent. (25%)
of
this total amount;
|
(iii)
|
war
risk insurance:
|
|
(A)
|
on
full conditions as wide as the Institute War and Strikes
Clauses Hulls-Time or French War Risks Clause, including the London
Blocking and Trapping Clause (LPO
444);
|
|
(B)
|
on
an agreed value basis for an amount of at least one hundred and
ten per
cent. (110%) of the Relevant Insured Amount;
and
|
|
(C)
|
a
full protection and indemnity insurance will cover war risks through
an
endorsement of this policy for the minimum of the agreed value
of the
Mortgaged Ship;
|
|
(iv)
|
a
full protection and indemnity
insurance:
|
|
(A)
|
on
terms and conditions as per the rules of a mutual association that
is a
member of the International Group of Protection and Indemnity Associations
and acceptable to the Facility
Agent;
|
|
(B)
|
such
cover to provide maximum liability cover any one accident or occurrence
permitted by the association, excepting oil pollution which will
have to
be covered for a minimum of one billion Dollars
($1,000,000,000);
|
|
(C)
|
war
risks will also be covered through an excess cover for the maximum
amount
offered from time to time by the association;
and
|
|
(D)
|
the
Lessee, together with any manager and/or its/their agents, shall
be named
as full member/joint member of the association for each class of
cover
under the protection and indemnity
insurance;
|
|
(v)
|
any
additional Insurances, including but not limited to protection
and
indemnity, third party liability cover, which in the reasonable
opinion of
the Facility Agent might become necessary in case of (A) alteration,
reduction or cancellation of the Insurances described in this
clause 8.5.1(a), or (B) in case of changing in the navigation areas
or use of the Mortgaged Ship as originally forecasted, or (C) any
change
in laws or decree or navigation rules of any sort which might result
in an
alteration of the risks and liabilities related to the Mortgaged
Ship;
and
|
|
(vi)
|
notwithstanding
anything contained in the hull and machinery wording(s) actually
used by
the Lessee or any manager, it is understood and agreed that the
Insurances
referred to in sub-clauses 8.5.1(a)(i) to 8.5.1(a)(iii) above will
contain an English law and jurisdiction clause; such clause will be
paramount.
|
|
(b)
|
Hull
policy documents, notices, loss payable clauses and brokers’
undertakings, reinsurances: secure the interests of the Finance
Parties (acting through the Security Trustee) under each of the
Insurances
in the following manner:
|
|
(i)
|
each
of the Insurances referred to in sub-clauses 8.5.1(a)(i) to
8.5.1(a)(iii) above, and each of the relevant policies when
issued:
|
|
(A)
|
shall
be endorsed with (1) the notice of assignment in the form attached
to
schedule 3 to the relevant Proceeds Deed for the Mortgaged Ship, and
(2) the relevant loss payable clause in the form attached as
schedule 2 to the relevant Proceeds Deed;
and
|
|
(B)
|
shall
(if it so requests) have the Security Trustee named as an additional
insured;
|
|
(ii)
|
by
procuring the submission to the Facility Agent at least five (5)
Banking
Days before the Delivery Date of each Ship and seven (7) days before
each
subsequent renewal of any Insurances of documentary evidence of
the
Insurances;
|
|
(iii)
|
if
one or more of the Insurances referred to in sub-clauses 8.5.1(a)(i)
to 8.5.1(a)(iii), are not effected and maintained (throughout the
term of
the relevant insurance policy) with insurers rated at least BBB
by
Standard and Poors (or equivalent rating by another international
rating
agency) or with insurers whose obligations are guaranteed by a
party or
parties acceptable to the Majority Lenders with such minimum rating
(for
which purpose, where the relevant insurer is Xx-Xxxx Insurance
and
Reinsurance Limited, so long as it has such minimum rating, Qatar
Petroleum shall be deemed to be an acceptable guarantor), the Borrowers
shall procure that the Lessee shall procure, at its own expense,
that the
relevant insurers maintain in full force and effect facultative
reinsurances with reinsurers and through brokers, in each case,
of
recognised standing and acceptable to the Facility Agent
that:
|
|
(A)
|
are
on same terms, conditions, duration, law and jurisdiction and date
of
renewal as the primary insurances;
|
|
(B)
|
are
satisfactory in all respects to the Facility
Agent;
|
|
(C)
|
are,
in the case of a captive, for one hundred per cent. (100%) of all
risks
insured (or the maximum acceptable by local law) and, in any other
case,
of such percentage of all risks insured as is equal to one hundred
and ten
per cent. (110%) of the Relevant Insured
Amount;
|
|
(D)
|
contain
a cut-through clause in the terms set out below or otherwise
satisfactory to the Facility Agent:
|
“The
reinsurers hereby agree that in the event of any claim arising under the
reinsurances in respect of a total loss or other claim where, as provided
by the
Security Documents, such claim is to be paid to the person named as sole
loss
payee under the primary insurances, the reinsurers shall in lieu of payment
to
the reassured, its successor in interest and assigns, pay to the person named
as
sole loss payee under the primary insurances effected by the Assured that
portion of any loss due for which the reinsurers would otherwise be liable
to
pay the reassured (subject to proof of loss), it being understood and agreed
that any such payment by the reinsurers shall (to the extent of such payment)
fully discharge and release the reinsurers from any and all further liability
in
connection therewith. Any payment due under this clause shall not
contravene any law, statute or decree of [name of the insurer
country].”; and
|
(E)
|
it
shall be described and confirmed to the Facility Agent with (1)
a copy of
the policies when available and a certificate of insurance and,
when
necessary reinsurance, issued by the Approved Broker including
amongst
other things the name and percentage underwritten by each insurer
and,
when necessary reinsurer, and the names of any correspondent broker
or
underwriting agency involved and (2) shall be further supported
by the
relevant letter of undertaking to be issued by the approved broker
or the
approved lead-underwriter or the approved war risks association,
as the
case may be, in a form approved by the Facility
Agent;
|
|
(iv)
|
in
respect of the protection and indemnity insurance referred to in
sub-clause 8.5.1(a)(iv) above:
|
|
(A)
|
by
having (1) the notice of assignment in the form set attached as
schedule 3 to the relevant Proceeds Deed delivered to the mutual
association, and (2) the mutual association’s standard loss payable
clause in the form as wide as the one attached as schedule 2 to
the relevant Proceeds Deed endorsed on the certificate of
entry;
|
|
(B)
|
if
“mis-directed arrow” protection is available from the mutual association,
by procuring the mutual association gives the Security Trustee
and the
Lenders the benefit of such mis-directed arrow protection, in respect
of
any mis-direct claim brought against one or more of them, with
no
obligation for any of them to pay the initial or supplementary
calls or
any sum whatsoever; and
|
|
(C)
|
by
procuring the delivery to the Facility Agent of (1) the certificate
of
entry of the Ship in the association when available issued by the
association together with the rules book of the association and
(2) the
standard letter of undertaking issued by the association in its
standard
form or otherwise in a form approved by the Facility
Agent;
|
|
(c)
|
Employment
of Mortgaged Ships: operate each Mortgaged
Ship within the confines of the cover provided by each of the Insurances
referred to in paragraph (a) above. In that respect, the Borrowers
shall procure that the Lessee and/or any manager,
shall:
|
|
(i)
|
not
make, do, consent or agree to any act or omission which would or
could
render any such instrument of insurance invalid, void, voidable,
or
unenforceable or render any sum payable there under repayable in
whole or
in part;
|
|
(ii)
|
pay
all premiums, association calls, contributions and/or all other
sums
payable in respect of the Insurances promptly when due, and produce
all
relevant receipts when so required by the Facility
Agent;
|
|
(iii)
|
be
responsible for pursuing all claims under the Insurances referred
to in
sub-clause 8.5.1(a), and take such action as may be necessary to
satisfy insurer's enquiries, and simultaneously advise the Facility
Agent;
and
|
|
(iv)
|
arrange
for collision and/or salvage guarantee(s) and/or security to be
provided
to third parties so as to prevent the arrest, or secure the release
of the
applicable Ship, unless the Facility Agent has given written notice
to the
contrary; and
|
|
(d)
|
Evidence
of Oil Pollution and special cover: provide
to the Facility Agent copies of (i) all declarations to the protection
and
indemnity association in which the Ship is entered, (ii) any certificate
of financial responsibility (or equivalent certification required
in
respect of liability insurance cover otherwise than for oil pollution
risks) and (iii) all certificates issued by the United States Coast
Guard
(or other equivalent Governmental Entity), or confirmations by
such
association in each case in respect of cover for oil pollution
risks and
such other information and documents relating to oil pollution
risks or
insurances as the Facility Agent may from time to time reasonably
request.
|
|
8.5.2
|
Independent
report: The Facility Agent shall commission an independent firm
of insurance consultants to review and report upon the adequacy
of the
Insurances to be effected and maintained in accordance with
clause 8.5.1(a). The Borrowers undertake to procure that the Lessee
shall provide or cause the primary insurer or Approved Broker or
association manager, as the case may be, to provide all the policies
of
insurance, rules book of association and any other documents which
will be
necessary to the Facility Agent and their insurance consultant
upon
reasonable request by the Facility
Agent.
|
The
Facility Agent shall commission such reviews and reports to coincide with
the
delivery of a Ship (in satisfaction of the condition precedent in item 8
of Part
4 of Schedule 4), for each new policy year and at any other time if there
is any change in the Insurances or, in the opinion of the Facility Agency,
a
change in insurance market practice.
The
cost
of each review and report will be borne by the Borrowers and shall (to the
extent not paid by way of a remittance from the Operating Account) be payable
by
the Borrowers to the Facility Agent promptly following receipt by the Borrowers
of an invoice from the Facility Agent evidencing such costs.
|
8.5.3
|
Additional
perils insurances: In addition to the Insurances covenanted by
the Borrowers to be effected and maintained by the Lessee under
clause 8.5.1(a), the Facility Agent shall (if so instructed by the
Majority Lenders) effect and maintain from the Delivery Date of
each Ship,
throughout the Security Period:
|
|
(a)
|
mortgagee’s
interest insurance covering all Mortgaged Ships;
and
|
|
(b)
|
mortgagee’s
additional perils (pollution)
cover.
|
These
insurances shall be (i) for the exclusive account of the Security Trustee
(acting on behalf and for the account of the Lenders), (ii) placed by the
Security Trustee through its own appointed insurance broker and (iii) be
on
terms, conditions and insured amounts (being, in respect of each applicable
Mortgaged Ship, equivalent to one hundred and ten per cent. (110%) of the
relevant Ship Tranche) acceptable from time to time to the Facility Agent.
The
cost of these insurances will be borne by the Borrowers and shall (to the
extent
not payable by way of a remittance from the Operating Account) be payable
by the
Borrowers to the Facility Agent promptly following receipt by the Borrowers
of
an invoice from the Facility Agent evidencing such premium costs.
|
8.5.4
|
Additional
covenants in relation to
Insurances:
|
Each
of
the Borrowers hereby covenants with each of the Finance Parties and undertakes
throughout the Security Period that it will procure that the Lessee
will:
|
(a)
|
Fleet
liens, set-off andcancellation: procure, if any
of the insurances referred to in clause 8.5.1 form part of a fleet
cover, that the Approved Brokers shall (if so required by the Facility
Agent) undertake to the Facility Agent (for the benefit of the
Finance
Parties) that they shall neither set off against any claims in
respect of
any Mortgaged Ship any premiums due in respect of other vessels
under such
fleet cover or any premiums due for other insurances, nor cancel
the
insurance for reason of non-payment of premiums for other vessels
under
such fleet cover or of premiums for such other insurances, and
shall
undertake to issue a separate policy in respect of each Mortgaged
Ship;
|
|
(b)
|
Payment
of premiumsand
calls: punctually pay all premiums, calls,
contributions or other sums payable in respect of all such insurances
and
produce all relevant receipts or other evidence of payment when
so
required by the Facility Agent;
|
|
(c)
|
Guarantees: arrange
for the execution and delivery of such guarantees or indemnities
as may
from time to time be required by any protection and indemnity or
war risks
association;
|
|
(e)
|
Collection
of claims: do all things necessary and provide all documents,
evidence and information to enable the Facility Agent to collect
or
recover any moneys which shall at any time become due in respect
of the
Insurances; and
|
|
(f)
|
Further
insurance assignments: not permit the insurances referred to in
clause 8.5.1(a) to be effected in the name of any person (other than
the Lessor, the Lessee, the Security Trustee and/or the other Finance
Parties) unless such person has to the satisfaction of the Facility
Agent
executed a first priority assignment in favour of the Security
Trustee of
such person’s interest in the Insurances of such Mortgaged Ship on similar
terms (mutatis mutandis) to the assignment by the Lessee in the
relevant
Lessee Assignment.
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|
8.6
|
Ship
Covenants - post delivery
|
Each
of
the Borrowers hereby covenants with each of the Finance Parties and undertakes
with effect from the Delivery Date of each Ship and thereafter throughout
the
Security Period (other than in relation to clause 8.6.14 which shall also
apply during the period prior to the Delivery Date of each Ship) that it
will or
will procure that the Lessee or another person will:
|
8.6.1
|
Ship’s
name and registration, mortgage
registration:
|
|
(a)
|
give
prompt notice to the Facility Agent upon any change of the name
of any
Mortgaged Ship;
|
|
(b)
|
keep
each Mortgaged Ship registered under the laws of its Flag State
at the
relevant Registry;
|
|
(c)
|
not
do or suffer to be done anything, or omit to do anything the doing
or
omission of which could or might result in such registration being
forfeited or imperilled or which could or might result in a Mortgaged
Ship
being required to be registered otherwise than under the laws of
its Flag
State at the relevant Registry;
|
|
(d)
|
not
register any Mortgaged Ship or permit its registration under any
other
flag or at any other port without the prior written consent of
the
Facility Agent (acting on the instructions of the Majority
Lenders);
|
|
(e)
|
if
the said registration of a Mortgaged Ship is provisional or for
a limited
period, procure the permanent registration of the Mortgaged Ship
or renew
the registration of such Ship at least forty-five (45) days prior
to the
expiry of such registration and provide evidence of such permanent
registration or renewal to the Facility Agent at least thirty (30)
days
prior to such expiry;
|
|
(f)
|
if
the registration of the Mortgage on the Mortgaged Ship is provisional
or
for a limited period procure the permanent registration of the
Mortgage as
soon as practicable following such provisional or initial registration
and
in any event at least forty-five (45) days prior to the expiry
of such
registration and provide evidence of such permanent registration
or
renewal to the Facility Agent at least thirty (30) days prior to
such
expiry;
|
|
8.6.2
|
Repair:
keep each Mortgaged Ship in a good and efficient state of repair
and in
compliance with the requirements of the relevant Time Charter and
procure
that all repairs to or replacement of any damaged, worn or lost
parts or
equipment are effected in such manner (both as regards workmanship
and
quality of materials) as not to diminish the value of such Mortgaged
Ship;
|
|
8.6.3
|
Modification;
removal of parts; equipment owned by third parties: not without
the prior written consent of the Facility Agent (acting on the
instructions of the Majority Lenders) suffer any other person
to:
|
|
(a)
|
make
any modification to any Mortgaged Ship in consequence of which
her
structure, type or performance characteristics could or might be
materially altered or her value materially reduced;
or
|
|
(b)
|
remove
any material part of any Mortgaged Ship or any equipment the value
of
which is such that its removal from such Mortgaged Ship would materially
reduce the value of such Mortgaged Ship without replacing the same
with
equivalent parts or equipment which are owned by the Lessor or
the Lessee
free from Encumbrances; or
|
|
(c)
|
install
on any Mortgaged Ship any equipment owned by a third party which
cannot be
removed without causing damage to the structure or fabric of such
Mortgaged Ship,
|
except
where such modifications are required by the terms of the relevant Time Charter,
in which case the Borrowers shall only be obliged to notify the Facility
Agent
and shall not be obliged to obtain the Facility Agent’s prior written
consent;
|
8.6.4
|
Maintenance of class; compliance with regulations: at
all times after Delivery keep each Mortgaged Ship in class and
maintain
the relevant Classification as the class of each Mortgaged Ship
free of
all overdue recommendations and comply with and ensure that each
Mortgaged
Ship at all times complies with all regulations and requirements
(statutory or otherwise) from time to time applicable to vessels
registered under the laws of its Flag State or otherwise applicable
to
such Mortgaged Ship;
|
|
8.6.5
|
Surveys:
submit each Mortgaged Ship to continuous surveys and such periodical
or
other surveys as may be required for classification purposes and,
if so
requested by the Facility Agent or if the survey report relates
to or
recommends or requires repairs and/or other work the cost of which
will or
is likely to exceed the Casualty Amount, supply to the Facility
Agent
copies of all survey reports issued in respect
thereof;
|
|
8.6.6
|
Inspection:
ensure that the Facility Agent, by surveyors or other persons appointed
by
it for such purpose, may board any Mortgaged Ship at all reasonable
times
without interfering with the operation of such Mortgaged Ship for
the
purpose of inspecting her and to afford all proper facilities for
such
inspections;
|
|
8.6.7
|
Prevention of and release from arrest:
promptly in accordance with good ship owning practice pay and discharge
all debts, damages, liabilities and outgoings whatsoever which
have given
or may give rise to maritime, statutory or possessory liens on,
or claims
enforceable against, each Mortgaged Ship, her Earnings or Insurances
or
any part thereof and, in the event of a writ or libel being filed
against
any Mortgaged Ship, her Earnings or Insurances or any part thereof,
or of
any of the same being arrested, attached or levied upon pursuant
to legal
process or purported legal process or in the event of detention
of any
Mortgaged Ship in exercise or purported exercise of any such lien
or claim
as aforesaid, procure the release of such Mortgaged Ship, her Earnings
and
Insurances from such arrest, detention attachment or levy or, as
the case
may be, the discharge of the writ or libel forthwith upon receiving
notice
thereof by providing bail or procuring the provision of security
or
otherwise as the circumstances may
require;
|
|
8.6.8
|
Employment:
|
|
(a)
|
subject
to the requirements of the Time Charters, not knowingly employ
any
Mortgaged Ship or permit her employment in any manner, trade or
business
which is forbidden by international law, or which is unlawful or
illicit
under the law of any relevant jurisdiction, or in carrying illicit
or
prohibited goods, or in any manner whatsoever which may render
her liable
to condemnation in a prize court, or to destruction, seizure,
confiscation, penalty or
sanctions; and
|
|
(b)
|
in
the event of hostilities in any part of the world (whether war
be declared
or not), not employ any Mortgaged Ship or permit her employment
in
carrying any contraband goods, or enter or trade to or to continue
to
trade in any zone which has been declared a war zone by any Government
Entity or by the relevant Mortgaged Ship’s war risks insurers unless the
relevant Mortgaged Ship remains held covered while in that zone
whether by
insurance then available commercially (by which is meant available
from a
leading international insurer) or under a relevant government programme
(by which is meant an insurance or an indemnity programme on terms
acceptable to the Lenders, having regard to the insurance requirements
set
forth in clause 8.5 of the State of Qatar, any member of the European
Union and/or the United States or any other country approved by
the
Lenders);
|
|
8.6.9
|
Information:
promptly furnish the Facility Agent with all such information as
it may
from time to time reasonably require regarding each Mortgaged Ship,
her
Insurances, her employment, position and engagements, particulars
of all
towages and salvages, and copies of all charters and other contracts
for
her employment entered into by the Lessee, or otherwise howsoever
concerning her;
|
|
8.6.10
|
Notification of certain events:
notify the Facility Agent immediately
of:
|
|
(a)
|
any
damage to any Mortgaged Ship requiring repairs the cost of which
will or
might exceed the Casualty Amount;
|
|
(b)
|
any
occurrence in consequence of which any Mortgaged Ship has or may
become a
Total Loss;
|
|
(c)
|
any
requisition of any Mortgaged Ship for
hire;
|
|
(d)
|
any
requirement or recommendation made in relation to any Mortgaged
Ship by
any insurer or its Classification Society or by any competent authority
which cannot or is not complied with in accordance with its
terms;
|
|
(e)
|
any
arrest or detention of any Mortgaged Ship or any exercise or purported
exercise of a lien or other claim on such Ship or her Earnings
or
Insurances or any part thereof;
|
|
(f)
|
the
occurrence of any material Environmental Claim against the Lessor,
the
Lessee, any Mortgaged Ship or any incident, event or circumstances
which
may give rise to any such Environmental Claim or a
Default;
|
|
(g)
|
the
occurrence of any period of off-hire in excess of ten (10) days
or
unscheduled dry-docking in respect of any Mortgaged
Ship;
|
|
(h)
|
the
occurrence of any default by the Time Charterer under any of the
Time
Charters, including any event of non-payment of charterhire under
any Time
Charter;
|
|
(i)
|
the
occurrence of any force majeure event under clause 22 of any of the
Time Charters which has been occurring for thirty (30) days or
more and
the exercise by the Time Charterer of its right to cancel any relevant
Time Charter pursuant to such clause 22 of any such Time Charter;
and
|
|
(j)
|
the
exercise by the Time Charterer of its optional cancellation rights
under
clause 2d of any of the Time Charters and/or its option to purchase a
Ship under clause 30 of any relevant Time Charter and/or its option
to bareboat charter a Ship under clause 31 of any relevant Time
Charter;
|
|
8.6.11
|
Payment
of outgoings and evidence of payments: promptly pay all tolls,
dues and other outgoings whatsoever in respect of each Mortgaged
Ship and
her Earnings and Insurances and keep proper books of account in
respect of
each Mortgaged Ship and her Earnings and, as and when the Facility
Agent
may so require, make such books available for inspection on behalf
of the
Facility Agent, and furnish satisfactory evidence that the wages
and
allotments and the insurance and pension contributions of the Master
and
crew are being promptly and regularly paid and that all deductions
from
crew’s wages in respect of any applicable tax liability are being properly
accounted for and that the Master has no claim for disbursements
other
than those incurred by him in the ordinary course of trading on
the voyage
then in progress;
|
|
8.6.12
|
Encumbrances:
not without the prior written consent of the Facility Agent acting
on the
instructions of all of the Lenders (and then only subject to such
conditions as the Facility Agent may impose in accordance with
such
instructions) create or purport or agree to create or permit to
arise or
subsist any Encumbrance (other than Permitted Encumbrances) over
or in
respect of any Ship, any share or interest therein, the Insurances,
the
Earnings or in any other assets, contracts, accounts or revenues
that are
subject to (or that will, on the execution thereof, be subject
to) the
provisions of this Agreement or any of the other Security
Documents;
|
|
8.6.13
|
Sale or other disposal:
not without the prior written consent of the Facility Agent acting
on the
instructions of the Majority Lenders (and then only subject to
such
conditions as the Facility Agent may impose in accordance with
such
instructions) sell, agree to sell or request or require the Lessor
to
sell, transfer, assign, abandon or otherwise dispose of any Ship
or any
share or interest therein or any Shipbuilding Contract (other than,
for
the avoidance of doubt, to the Time Charterer in accordance with
the terms
of the relevant Time Charter) if the proceeds of sale of such Ship
or
disposal, assignment or transfer of such Shipbuilding Contract,
if applied
in accordance with the relevant Proceeds Deed, would or may be
insufficient to enable the Borrowers to comply with their obligations
under clause 4.4 and to meet any expenses incurred by the Borrowers
or the Finance Parties in connection with such disposal upon the
disposal
of such Ship or such Shipbuilding Contract and the Borrowers will
not have
other funds available to them to enable them to comply with such
obligations upon completion of the disposal of such Ship or such
Shipbuilding Contract;
|
|
8.6.14
|
Chartering:
|
|
(a)
|
unless
required by the Time Charterer pursuant to clause 31 of any Time
Charter and save to the extent agreed by the Lenders under
clause 4.5, not without the prior written consent of the Facility
Agent (to be given with the prior approval of the Majority Lenders)
and,
if such consent is given, only subject to such conditions as the
Facility
Agent may impose, let any Mortgaged Ship on demise charter for
any period;
and
|
|
(b)
|
save
for the Time Charters, not without the prior written consent of
the
Facility Agent (to be given with the prior approval of the Majority
Lenders which approval shall not be unreasonably withheld) and,
if such
consent is given, only subject to such conditions as the Facility
Agent
may impose:
|
|
(i)
|
let
any Mortgaged Ship by any time or consecutive voyage charter for
a term
which exceeds or which by virtue of any optional extensions therein
contained may exceed twelve (12) months’
duration;
|
|
(ii)
|
de-activate
or lay up any Mortgaged Ship other than when required to do so
by the Time
Charterer in accordance with the relevant Time
Charter;
|
|
(iii)
|
let
any Mortgaged Ship other than on arms’ length
terms.
|
|
8.6.15
|
Sharing
of Earnings: save as contemplated in the Proceeds Deeds, not
without the prior written consent of the Facility Agent acting
on the
instructions of the Majority Lenders (and then only subject to
such
conditions as the Facility Agent may impose in accordance with
such
instructions) to enter into any agreement or arrangement whereby
the
Earnings of any Mortgaged Ship may be shared with any other
person;
|
|
8.6.16
|
Payment
of Earnings: procure that the Earnings in respect of the Time
Charter of any Mortgaged Ship are at all times paid either to the
Operating Account or, upon the occurrence of an Event of Default
which is
unwaived and continuing, the Collection Account and that any Earnings
in
respect of the Time Charter of any Mortgaged Ship which are so
payable and
which are in the hands of the Lessee’s brokers or agents are duly
accounted for and paid over to the Facility Agent (for credit to
the
Operating Account or, as the case may be, the Collection Account)
forthwith on demand;
|
|
8.6.17
|
Repairers’ liens:
not without the prior written consent of the Facility Agent (acting
on the
instructions of the Majority Lenders) put any Mortgaged Ship into
the
possession of any person for the purpose of work being done upon
her
unless either:
|
|
(a)
|
such
person shall first have given to the Facility Agent in terms satisfactory
to it, a written undertaking not to exercise any lien on the relevant
Mortgaged Ship or her Earnings for the cost of such work or otherwise;
or
|
|
(b)
|
any
such lien of such person would be a Permitted
Lien;
|
|
8.6.18
|
Technical
management of a Mortgaged Ship: not sub-contract the technical
management of a Mortgaged Ship or allow the technical management
of the
Ship to be sub-contracted to any person who is not a member of
the Teekay
Guarantor Group without the prior written consent of the Facility
Agent
(given with the approval of the Majority Lenders) which consent
may be
given subject to such conditions as the Facility Agent may reasonably
require including the execution by the proposed manager of a Manager’s
Undertaking confirming that the rights of such manager will be
subordinate
to those of the Finance Parties under the Security Documents, provided
that the sub-contracting of the provision of a specific service
to a
person or persons who is not a member of the Teekay Guarantor Group
and
whose remuneration when aggregated with any other such sub-contracting
to
such other persons, is less than $1,500,000 per annum (escalating
at three
point five per cent (3.5%) per annum for each calendar year from
and
including 2005), shall not require such
consent;
|
|
8.6.19
|
Notice
of Mortgage: place and at all times and places retain a properly
certified copy of the relevant Mortgage (which shall form part
of the
relevant Mortgaged Ship’s documents) on board each Mortgaged Ship with her
papers and place and keep prominently displayed in the navigation
room and
in the Master’s cabin of each Mortgaged Ship a framed printed notice in
plain type reading as follows:
|
“NOTICE
OF MORTGAGE
This
Ship
is subject to a first priority mortgage in favour of [here insert name
of mortgagee(s)] of [here insert address of
mortgagee(s)] who has transferred such mortgage to [here insert
name of transferee(s)] of [here insert address of
transferee(s)]. Under the said mortgage, neither [here insert
name of Lessor and Lessee] nor any charterer nor the Master of this
Ship has any right, power or authority to create, incur or permit to be imposed
upon this Ship any commitments or encumbrances whatsoever other than for
crew’s
wages and salvage.”;
|
8.6.20
|
Notice
of Mortgagefollowing Interim Disposition:
following an Interim Disposition, place and at all times and places
retain
a properly certified copy of the relevant Standby Mortgage (which
shall
form part of the relevant Mortgaged Ship’s documents) on board each
Mortgaged Ship with her papers and place and keep prominently displayed
in
the navigation room and in the Master’s cabin of each Mortgaged Ship a
framed printed notice in plain type reading as
follows:
|
“NOTICE
OF MORTGAGE
The
Ship
is subject to a first priority mortgage and security deed in favour of
[here insert name of mortgage(s)] of [here insert
address of mortgagee(s)]. Under the said mortgage and
security deed, neither [here insert name of Standby Purchaser and
Lessee] nor any charterer nor the Master of this Ship has any
right, power of authority to create, incur or permit to be imposed upon this
Ship any commitments or encumbrances whatsoever other than for crew’s wages and
salvage.”;
|
8.6.21
|
Conveyance
on default: where a Mortgaged Ship is (or is to be) sold in
exercise of any power contained in the relevant Mortgage or, as
applicable, Standby Mortgage or otherwise conferred on the Security
Trustee, procure, forthwith upon request by the Security Trustee,
that
such form of conveyance of such Mortgaged Ship as the Security
Trustee may
require is executed;
|
|
8.6.22
|
Anti-drug
abuse: without prejudice to clause 8.6.23, take all necessary and
proper precautions
to prevent any infringements of the Anti-Drug Abuse Act of 1986
of the
United States of America or any similar legislation applicable
to any
Mortgaged Ship in any jurisdiction in or to which any Mortgaged
Ship shall
be employed or located or trade or which may otherwise be applicable
to
any Mortgaged Ship and/or the
Lessees;
|
|
8.6.23
|
Compliance
with Laws: to comply in all material respects with all laws
(including Environmental Laws) applicable to it and/or its Mortgaged
Ship
including, without limitation, requirements relating to xxxxxxx
and
establishment of financial responsibility and to obtain and comply
with
all Environmental Approvals applicable to its and/or its Mortgaged
Ship;
and
|
|
8.6.24
|
Retention
Account; Minimum Cash Balance: procure that on or
before 31 December 2010 an amount of not less than three million
Dollars
($3,000,000) is deposited to the Retention Account with the intent
that
following 31 December 2010 the Retention Account must at all times
during
the Security Period have a minimum balance of not less than three
million
Dollars ($3,000,000) or, if the following paragraph is applicable,
six million Dollars ($6,000,000). In addition, the Borrowers
shall also procure that the Retention Account Pledge is executed
in favour
of the Security Trustee on or before 31 December 2010 and that
the
Facility Agent shall have been provided on or before such date
with such
conditions precedent relating to the Retention Account Pledge as
the
Facility Agent may reasonably require (and which will be of a similar
type
to those conditions precedent referred to in clause 9.1 and parts 1
and 3 of Schedule 4 as the Facility Agent shall have previously
received in respect of the Account
Pledge).
|
In
addition, if at any time prior to 31 December 2010 the Lenders, acting
reasonably and in good faith and based on their independent assessment of
the
financial condition of the Guarantors, believe that a further retention in
the
Retention Account is required then the Agent shall notify the Borrowers and
the
Guarantors in writing and on or prior to 31 December 2010 or, if later, within
thirty (30) days of receipt of such notice, the Borrowers shall procure that
the
minimum balance standing to the credit of the Retention Account shall be
not
less than six million Dollars ($6,000,000).
As
an
alternative to depositing the required amounts referred to above in the
Retention Account, the Borrowers shall be entitled to procure that a letter
of
credit is issued in favour of the Security Trustee from a bank or financial
institution acceptable to the Lenders, for a principal amount equal to the
minimum balance that would otherwise be required to be retained on the Retention
Account in accordance with the above provisions, for a duration at least
equal
to the Security Period (or for shorter periods but with an obligation on
the
part of the Borrowers to renew an existing letter of credit not later than
thirty (30) days prior to the expiry of that existing letter of credit) and
otherwise on terms acceptable to the Security Trustee (acting on the
instructions of the Majority Lenders). If the Borrowers decide to
exercise this entitlement the Borrowers and the Lenders shall agree such
changes, if any, to this Agreement as may be necessary to reflect the basis
upon
which any such letter of credit is provided.
If
the
Time Charterer should exercise its rights under clause 31 of the Time
Charter in respect of any or all the Ships and, at that time, no Event of
Default (other than an Event of Default relating to the Time Charters referred
to in clause 10.1.24) has occurred and is continuing unremedied or unwaived
the Lenders shall, at the request and cost of the Borrowers, agree such
modifications to the provisions of this clause 8.6 during the period of any
bareboat charter of the relevant Ship or Ships pursuant to the said
clause 31 as the Lenders, acting in good faith, consider appropriate to
reflect (a) the terms upon which the Time Charterer shall bareboat charter
the
relevant Ship or Ships in consequence of the exercise of the Time Charterer’s
rights under the said clause 31 and (b) the obligations under the
provisions of this
clause 8.6
which are still capable of being performed by the Borrowers and/or the Lessee,
having regard to the existence of the bareboat charter in respect of the
relevant Ship or Ships (and to the extent that the obligations of the Borrowers
and/or the Lessee under this clause 8.6 are not so capable of being
performed by the Borrowers and/or the Lessee, the Borrowers and/or the Lessee
shall be released from the performance of those obligations during the period
of
any bareboat charter of the relevant Ship or Ships pursuant to the said
clause 31 but shall otherwise comply with the provisions of this
clause 8.6 to the extent agreed by the Lenders by such
modifications).
|
9
|
Conditions
|
|
9.1
|
Documents
and evidence
|
The
obligation of each Lender to make its Commitment available shall be subject
to
the condition that:
|
9.1.1
|
the
Facility Agent, or its duly authorised representative, shall have
received, not later than two (2) Banking Days before the day on
which the
Drawdown Notice is given in respect of the First Advance, the documents
and evidence specified in Part 1 of Schedule 4 in form and substance
satisfactory to the Facility Agent;
|
|
9.1.2
|
the
Facility Agent, or its duly authorised representative, shall have
received
prior to the Drawdown Date of each Advance (other than a Delivery
Advance), the documents and evidence specified in Part 2 of
Schedule 4 in form and substance satisfactory to the Facility
Agent;
|
|
9.1.3
|
the
Facility Agent, or its duly authorised representative, shall have
received, prior to the Drawdown Date of each Delivery Advance,
the
documents and evidence specified in Part 3 of Schedule 4 in form and
substance satisfactory to the Facility Agent;
and
|
|
9.1.4
|
the
Facility Agent, or its duly authorised representative, shall have
received, on or prior to the Delivery Date of any Ship, the documents
and
evidence specified in Part 4 of Schedule 4 in form and substance
satisfactory to the Facility Agent.
|
|
9.2
|
General
conditions precedent
|
The
obligation of each Lender to contribute to any Advance shall be subject to
the
further conditions that, at the time of the giving of each Drawdown Notice
and
on each Drawdown Date:
|
9.2.1
|
the
representations and warranties contained in clauses 7.1 and 7.2 and
clauses 4.1 and 4.2 of the Teekay Guarantee (and so that the
representation and warranty in clause 4.1.6 of the Teekay Guarantee
shall for this purpose refer to the then latest audited financial
statements delivered to the Security Trustee under clause 5.1.4 of
the Teekay Guarantee), clauses 4.1 and 4.2 of the QGTC Guarantee
(and so
that the representation and warranty in clause 4.1.6 of the QGTC
Guarantee
shall for this purpose refer to the then latest audited financial
statements delivered to the Security Trustee under clause 5.1.4
of the
QGTC Guarantee) and clauses 2.1 and 2.2 of the Lessee Assignments are
true and correct on and as of each such time as if each was made
with
respect to the facts and circumstances existing at such time;
and
|
|
9.2.2
|
no
material adverse change (as described in clause 10.1.17) and no other
Default shall have occurred and be continuing or would result from
the
making of such Advance; and
|
|
9.2.3
|
in
respect of the Ship to which an Advance relates, no event of the
type
referred to in clause 4.3.5 has
occurred.
|
|
9.3
|
Waiver
of conditions precedent
|
The
conditions specified in this clause 9 are inserted solely for the benefit
of the Lenders and may be waived on their behalf in whole or in part and
with or
without conditions by the Facility Agent acting on the instructions of the
Majority Lenders (or in the case of any waiver in relation to the execution
of
any of the Security Documents, all the Lenders) in respect of the first or
any
other Advance without prejudicing the right of the Facility Agent acting
on such
instructions to require fulfilment of such conditions in whole or in part
in
respect of any other Advance.
|
9.4
|
Further
conditions precedent
|
If
the
Facility Agent reasonably believes that there has been a change in law that
adversely affects the status of any of the Security Parties, the Lessor or
any
Finance Party, the security intended to be created by the Security Documents
or
the delivery or registration of a Ship, then, not later than five (5) Banking
Days prior to each Drawdown Date and to each Interest Payment Date, the Facility
Agent acting on the instructions of the Majority Lenders (or in the case
of any
waiver in relation to the Mortgages, all the Lenders) may request and the
Borrowers shall, not later than two (2) Banking Days prior to such date,
deliver
to the Facility Agent on such request further favourable certificates and/or
opinions as to any or all of the matters which are the subject of
clauses 7, 8, 9, and 10.
|
9.5
|
Notification
|
The
Facility Agent shall notify the Lenders and the Borrowers promptly upon receipt
by it of the documents and evidence referred to in clause 9.1 in form and
substance satisfactory to it and shall, if so requested, provide copies of
such
documents and evidence to KEXIM.
|
10
|
Events of Default
|
|
10.1
|
Events
|
There
shall be an Event of Default if:
|
10.1.1
|
Non-payment:
any Security Party fails to pay:
|
|
(a)
|
any
amount of principal or interest due from it under this Agreement
at the
time, in the currency and in the manner stipulated herein unless
(i) its
failure to pay is caused by administrative or technical error and
(ii)
payment is made within three (3) Banking Days of its due date;
or
|
|
(b)
|
any
other amount due from it under any of the Security Documents and
such
failure continues unremedied after five (5) Banking Days from its
due date
(which shall include payments expressed to be payable within a
particular
time period of demand under the term of the Security Documents),
or in the
case of sums payable on demand, ten (10) Banking Days after such
demand
has been duly made on such Security Party;
or
|
|
10.1.2
|
Breach
of Insurance and certain other obligations: (a) any Security
Party fails to obtain and/or maintain the Insurances (in accordance
with
the requirements of clause 8.5) or (b) if any insurer in respect of
such Insurances cancels the Insurances or disclaims liability by
reason,
in either case, of mis-statement in any proposal for the Insurances
or for
any other failure or default on the part of any Security Party
or any
other person or (c) the Borrowers commit any breach of, or omit
to observe
any of, the obligations or undertakings expressed to be assumed
by them
under clause 8.2, 8.3, 8.5 or 8.6.24 or (d) the Teekay Guarantor
commits any breach of clause 5.3 (Financial undertakings) of the
Teekay Guarantee; or
|
|
10.1.3
|
Breach
of other obligations: any Security Party commits any breach of or
omits to observe any of its obligations or undertakings expressed
to be
assumed by it under any of the Security Documents (other than those
referred to in clause 10.1.1 and 10.1.2 above) and, in respect of any
such breach or omission which in the opinion of the Majority Lenders
is
capable of remedy, such action as the Facility Agent may require
shall not
have been taken within thirty (30) days of the Facility Agent notifying
the relevant Security Party of such default and of such required
action;
or
|
|
10.1.4
|
Misrepresentation:
any representation or warranty (which the Majority Lenders in their
reasonable opinion consider material) made or deemed to be made
or
repeated by or in respect of any Security Party in or pursuant
to any of
the Security Documents or in any notice, certificate or statement
referred
to in or delivered under any of the Security Documents is or proves
to
have been incorrect or misleading in any material respect;
or
|
|
10.1.5
|
Cross-default:
at any time, the aggregate of the following amounts at such time
exceeds
one million Dollars ($1,000,000) in aggregate in relation to the
Borrowers
taken together or fifty million Dollars ($50,000,000) in aggregate
in
relation to all the members of each Guarantor Group taken
together:
|
|
(a)
|
any
Borrowed Money of any Security Party or any other member of either
Guarantor Group that is not paid when due and remains
unpaid;
|
|
(b)
|
any
Borrowed Money of any Security Party or other member of either
Guarantor
Group that has become (whether by declaration or automatically
in
accordance with the relevant agreement or instrument constituting
the
same) due and payable prior to the date when it would otherwise
have
become due (unless as a result of the exercise by such Security
Party or
such other member of either Guarantor Group of a voluntary right
of
prepayment or upon a mandatory prepayment not constituting or arising
out
of an event of default);
|
|
(c)
|
any
facility or commitment available to any Security Party or any other
member
of either Guarantor Group relating to Borrowed Money that has been
withdrawn, suspended or cancelled by reason of any default (however
described) of the person concerned (unless such Security Party
or such
other member of either Guarantor Group shall have satisfied the
Majority
Lenders that such withdrawal, suspension or cancellation will not
affect
or prejudice in any way such Security Party’s ability or the ability of
such other member of either Guarantor Group to pay its debts as
they fall
due and fund its commitments, or any guarantee given by such Security
Party or such other member of either Guarantor
Group);
|
|
(d)
|
any
amounts demanded of, but not paid when due and remaining unpaid
by any
Security Party or any other member of either Guarantor Group under
any
guarantee in respect of Borrowed Money;
or
|
|
10.1.6
|
Legal
process: any judgement or order made against any Security Party
is not stayed or complied with within fifteen (15) days or a creditor
attaches or takes possession of, or a distress, execution, sequestration
or other process is levied or enforced upon or sued out against,
any of
the undertakings, assets, rights or revenues of any Security Party
and is
not discharged within thirty (30) days, in each case in an aggregate
amount equal to or exceeding fifty million Dollars ($50,000,000);
or
|
|
10.1.7
|
Insolvency:
any Security Party is unable or admits inability to pay its debts
as they
fall due, suspends making payments on any of its debts or announces
an
intention to do so, becomes insolvent, has consolidated assets
the value
of which is less than the value of its consolidated liabilities
(taking
into account contingent liabilities) or suffers the declaration
of a
moratorium in respect of any of its indebtedness;
or
|
|
10.1.8
|
Reduction
or loss of capital: a meeting is convened by any Security Party
for the purpose of passing any resolution to purchase, reduce or
redeem
any of its share capital, other than in the case of the Teekay
Guarantor,
in respect of any arrangement for the repurchase by the Teekay
Guarantor
of shares of the Teekay Guarantor;
|
|
10.1.9
|
Insolvency
proceedings: except as provided below, any of the following
occurs in respect of any Security
Party:
|
|
(a)
|
any
step is taken with a view to a moratorium or to a composition,
compromise,
assignment or similar arrangement with any of its creditors with
a view to
the general readjustment or rescheduling of all or part of its
indebtedness; or
|
|
(b)
|
a
meeting of its shareholders, directors or other officers is convened
for
the purpose of considering any resolution to petition for or file
documents with a court for its winding-up, administration or dissolution
(unless in any case it is solvent) or any such resolution is passed;
or
|
|
(c)
|
any
person presents a petition, or files documents with a court for
its
winding-up, administration or dissolution;
or
|
|
(d)
|
an
order for its winding-up, administration or dissolution is made;
or
|
|
(e)
|
any
liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager,
receiver, administrative receiver, administrator or similar official
is
appointed in respect of it or any of its assets;
or
|
|
(f)
|
its
directors, shareholders or other officers request the appointment
of, or
give notice of their intention to appoint a liquidator, trustee
in
bankruptcy, judicial custodian, compulsory manager, receiver,
administrative receiver, administrator or similar officer;
or
|
|
(g)
|
any
other analogous step or procedure is taken in any Relevant
Jurisdiction,
|
provided
that this clause 10.1.9 shall not apply to a frivolous or vexatious
petition for winding-up presented by a creditor which is being contested
in good
faith with due diligence and by appropriate proceedings and is discharged
or
struck out within fourteen (14) days of the making of such petition;
or
|
10.1.10
|
Analogous
proceedings: there occurs, in relation to any Security Party in
any country or territory in which any of them carries on business
or to
the jurisdiction of whose courts any part of their assets is subject,
any
event which, in the reasonable opinion of the Facility Agent, appears
in
that country or territory to correspond with, or have an effect
equivalent
or similar to, any of those mentioned in clause 10.1.6, 10.1.7 or
10.1.9; or
|
|
10.1.11
|
Cessation
of business: any Security Party suspends or ceases or threatens
to suspend or cease to carry on its business;
or
|
|
10.1.12
|
Seizure:
save to the extent that such event constitutes a Total Loss of
a Ship, all
or a material part of the undertaking, assets, rights or revenues
of, or
shares or other ownership interests in, any Security Party are
seized,
nationalised, expropriated or compulsorily acquired by or under
the
authority of any government (other than in circumstances referred
to in
clause 10.1.25); or
|
|
10.1.13
|
Invalidity:
any of the material terms of any of the Security Documents shall
at any
time and for any reason, whether in whole or part, become invalid
or
unenforceable or otherwise cease to remain in full force and effect
unless
the Facility Agent, acting reasonably, believes such invalidity
or
enforceability is capable of being remedied or mitigated and such
invalidity or unenforceability is not remedied or mitigated to
the
satisfaction of the Facility Agent within thirty (30) days after
it has
given notice thereof to the Borrowers, or if the validity or
enforceability of any of the Security Documents shall at any time
and for
any reason be contested by any Security Party or if any Security
Party
shall deny that it has any, or any further, liability thereunder;
or
|
|
10.1.14
|
Unlawfulness:
it becomes impossible or unlawful at any time for any Security
Party to
fulfil any of the material covenants and obligations expressed
to be
assumed by it in any of the Security Documents or for any of the
Finance
Parties to exercise the rights or any of them vested in it under
any of
the Security Documents or otherwise unless the Facility Agent,
acting
reasonably, believes such impossibility or illegality is capable
of being
remedied or mitigated, and such impossibility or illegality is
not
remedied or mitigated to the satisfaction of the Facility Agent
within
thirty (30) days after it has given notice thereof to the Borrowers;
or
|
|
10.1.15
|
Repudiation:
any Security Party repudiates any of the Security Documents or
does or
causes or permits to be done any act or thing evidencing an intention
to
repudiate any of the Security Documents;
or
|
|
10.1.16
|
Encumbrances
enforceable: other than an arrest of a Ship to which the
provisions of clause 10.1.25 apply, any Encumbrance (other than
Permitted
Liens) in respect of any of the property (or part thereof) which
is the
subject of any of the Security Documents becomes enforceable unless
the
Borrowers are taking appropriate steps to remove and/or discharge
that
Encumbrance and such Encumbrance is removed and/or discharged within
thirty (30) days thereafter; or
|
|
10.1.17
|
Material
adverse change: there occurs, in the reasonable opinion of the
Majority Lenders, (a) a material adverse change in the financial
condition
of any Security Party by reference to the financial statements
referred to
in clause 4.1.6 of the Teekay Guarantee or (b) an event or
circumstance which is likely materially and adversely to affect
either (i)
the ability of any Security Party to perform all or any of its
obligations
under, or otherwise to comply with the terms of any of, the Security
Documents or the Time Charters or (ii) the security created by
any of the
Security Documents; or
|
|
10.1.18
|
Unrest:
the Flag State of any Mortgaged Ship or any Relevant Jurisdiction
becomes
involved in hostilities or civil war or there is a seizure of power
in the
Flag State or any Relevant Jurisdiction by unconstitutional means
if, in
any such case, such event could in the reasonable opinion of the
Facility
Agent reasonably be expected to have a material adverse effect
on the
security created by any of the Security Documents and, within thirty
(30)
days of notice from Facility Agent to do so, the Security Parties
have not
taken all such action as the Facility Agent may require to ensure
that
such circumstances will not have such an effect;
or
|
|
10.1.19
|
Environment:
any Security Party fails to comply with any Environmental Law or
any
Environmental Approval or any of the Mortgaged Ships or any other
Relevant
Ship is involved in any incident which gives rise or may give rise
to an
Environmental Claim if, in any such case, such non-compliance or
incident
or the consequences thereof could, in the opinion of the Majority
Lenders,
reasonably be expected to have a Material Adverse Effect;
or
|
|
10.1.20
|
P&I:
the Lessee or any other person fails or omits to comply with any
requirements of the protection and indemnity association or other
insurer
with which any of the Ships is entered for insurance or insured
against
protection and indemnity risks (including oil pollution risks)
to the
effect that any cover relative to any of the Ships (including,
without
limitation, any cover in respect of liability for Environmental
Claims
arising in jurisdictions where any such Ship operates or trades)
is or may
be liable to cancellation, qualification or exclusion at any time;
or
|
|
10.1.21
|
Licenses
etc.: any license, authorisation, consent or approval at any
time
necessary to enable any Security Party to comply with its obligations
under the Security Documents or to enable the operation of any
of the
Mortgaged Ships is revoked or withheld or modified or is otherwise
not
granted or fails to remain in full force and effect or if any exchange
control or other law or regulation shall exist which would make
any
transaction under the Security Documents, or the continuation thereof,
unlawful or would prevent the performance by any Security Party
of any
term of the Security Documents; or
|
|
10.1.22
|
Change
of Control: there is a change in control of
any Security Party other than QGTC (whether or not by reference
to a
change in the majority ownership of shares in such Security Party
or by
reference to a change in the composition of the board of directors
or
equivalent management body of such Security Party) without the
prior
written consent of the Facility Agent (acting on the instructions
of the
Majority Lenders), provided that so long as the Teekay Guarantor
continues
to have:
|
|
(a)
|
legally
or beneficially and either directly or indirectly more than fifty
per
cent. (50%) of the entire issued share capital of a Security Party
other
than QGTC; or
|
|
(b)
|
the
right or ability to control, either directly or indirectly, the
affairs,
or the composition of the board of directors (or equivalent of
it), of
such Security Party other than
QGTC;
|
there
shall not have occurred any change of control in such Security Party;
or
|
10.1.23
|
Termination
of Time Charters: any of the Time Charters are terminated or
cancelled or the chartering of the relevant Ship thereunder is
terminated
for any reason other than any expiry or termination arising by
effluxion
of time or any termination or cancellation which would give rise
to a
mandatory prepayment event under clause 4;
or
|
|
10.1.24
|
Default
under the Time Charters: any Security Party fails to
perform or observe any of the covenants, conditions, agreements
and
stipulations on its part contained in any of the Time Charters
and, if
such default is capable of remedy, shall have failed to remedy
such a
default within the period of thirty (30) days after notice in writing
of
that default has been received by the relevant Security Party from
the
other party to such Time Charter;
or
|
|
10.1.25
|
Arrest: any
of the Mortgaged Ships is arrested, confiscated, seized, taken
in
execution, impounded, forfeited, detained in exercise or purported
exercise of any possessory lien or other claim or otherwise taken
from the
possession of the Lessee (other than in the circumstances referred
to in
clause 10.1.12) and such Mortgaged Ship is
not released by the date falling thirty (30) days after such arrest
or, if
earlier, the date upon which an application for sale of that Mortgaged
Ship is to be heard or the Majority Lenders otherwise reasonably
consider
that there is an imminent risk of sale of that Mortgaged Ship;
or
|
|
10.1.26
|
Flag
State: the registration of any of the Mortgaged Ships or any
of
the Mortgages under the laws and flag of the Flag State is cancelled
or
terminated without the prior written consent of the Majority Lenders;
or
|
|
10.1.27
|
Lease
termination: there occurs a Lease Event of Default under any of
the Leases and thereafter by reason of such Lease Event of Default,
the
Lessor terminates either (a) its obligation to acquire and lease
the Ship
in relation to the relevant Lease or (b) the leasing of the Ship
under the
relevant Lease.
|
The
provisions of clauses 10.1.5 to 10.1.10 inclusive are, in relation to the
Teekay
Guarantor and QGTC, subject to the provisions of clause 10.4.
|
10.2
|
Acceleration
|
The
Facility Agent may and if so requested by the Majority Lenders shall, (without
prejudice to any other rights of the Lenders), at any time after the happening
of an Event of Default by notice to the Borrowers declare that:
|
10.2.1
|
the
obligation of each Lender to make its Commitment available shall
be
terminated, whereupon the Total Commitments shall be reduced to
zero
forthwith; and/or
|
|
10.2.2
|
the
Loan and all interest and commitment commission accrued and all
other sums
payable under the Security Documents have become due and payable,
whereupon the same shall, immediately or in accordance with the
terms of
such notice, become due and
payable.
|
|
10.3
|
Demand
basis
|
If,
pursuant to clause 10.2.2, the Facility Agent declares the Loan to be due
and payable on demand, the Facility Agent may (and, if so instructed by the
Majority Lenders, shall) at anytime by written notice to the Borrowers (a)
call
for repayment of the Loan on such date as may be specified whereupon the
Loan
shall become due and payable on the date so specified together with all interest
and commitment commission accrued and all other sums payable under this
Agreement or (b) withdraw such declaration with effect from the date
specified in such notice.
|
10.4
|
Guarantor
Insolvency and
Cross-Default
|
|
10.4.1
|
Teekay
Guarantor Default
|
If
any of
the events described in clauses 10.1.5 to 10.1.10 occurs in respect of the
Teekay Guarantor (a “TeekayGuarantor
Default”), then QGTC shall be entitled, within five (5) Banking Days or
such longer period as the Lenders may agree of receiving notice of such Teekay
Guarantor Default, to request that all of the Finance Parties approve a proposal
whereby:
|
(a)
|
QGTC
may provide an additional or supplementary guarantee in respect
of the
obligations of the Borrowers to replace the Teekay Guarantee;
or
|
|
(b)
|
QGTC
may procure a replacement Guarantor which is a member of the QGTC
Group
and acceptable to each of the Finance Parties to replace the Teekay
Guarantee,
|
and
each
of the Finance Parties shall consider such request in good faith but any
approval of each of the Finance Parties shall be in each Finance Party’s
absolute discretion and shall also be subject to each of the Finance Parties
obtaining such further board and/or credit approval as may be necessary for
the
acceptance of such request and all other matters each of the Finance Parties
considers relevant to its approval.
If
a
request under sub-paragraph (a) or (b) above is approved by each of the Finance
Parties, such replacement or supplementary or additional guarantee shall
be
furnished within a period of thirty (30) days of the date of approval of
all the
Finance Parties. The replacement or supplementary or additional
guarantee shall be on such terms as the Finance Parties shall approve (but
having regard to the terms of the existing Guarantees) and shall be supplemented
by such consequential changes to the terms of this Agreement as may be
appropriate and shall also be accompanied by such evidence of the type referred
to in Part 1 of Schedule 4 as the Facility Agent considers
appropriate. If the above conditions are met no Event of Default
shall be deemed to have arisen or to continue in respect of the Teekay Guarantor
Default.
If
the
above conditions are not met, an Event of Default shall be treated as having
arisen in respect of the Teekay Guarantor Default and the Finance Parties
shall
not have been treated as having waived the Teekay Guarantor Default as a
result
of not taking any action in respect thereof during any period referred to
above
in this clause 10.4.1 in which it had been
contemplated that QGTC as the non-defaulting Guarantor was considering whether
to provide or procure an additional or supplemental guarantee or the Finance
Parties were considering such a proposal or the additional or supplemental
guarantee arrangements were being put in place in accordance with the provisions
of this clause 10.4.1.
|
10.4.2
|
QGTC
Default
|
If
any of
the events described in clauses 10.1.5 to 10.1.10 occurs in respect of QGTC
(a
“QGTC Default”), then the Teekay Guarantor shall be entitled to
notify the Facility Agent within five (5) Banking Days or such longer period
as
the Lenders may agree of receiving notice of such QGTC Default
that:
|
(a)
|
the
Teekay Guarantor wishes to provide an additional or supplementary
guarantee in respect of obligations of the Borrowers to replace
mutatis
mutandis the QGTC Guarantee; or
|
|
(b)
|
the
Teekay Guarantor wishes to procure a replacement Guarantor which
is a
member of the Teekay Guarantor Group and acceptable to each of
the Finance
Parties (in each of their absolute discretions) to replace the
QGTC
Guarantee,
|
and
in
either case, such replacement or supplementary or additional guarantee shall
be
furnished within a period of thirty (30) days of, in the case of sub-paragraph
(a) above, the Teekay Guarantor’s notification or, in the case of sub-paragraph
(b) above, the approval of each of the Finance Parties. The
replacement or supplementary or additional guarantee shall be on such terms
as
the Finance Parties shall approve (but having regard to the terms of the
existing Guarantees) and shall be supplemented by such consequential changes
to
the terms of this Agreement as may be appropriate and shall also be accompanied
by such evidence of the type referred to in Part 1 of Schedule 4 as the Facility
Agent considers appropriate. If the above conditions are met, no
Event of Default shall be deemed to have arisen or to continue in respect
of the
QGTC Default.
If
the
above conditions are not met, an Event of Default shall be treated as having
arisen in respect of the QGTC Default and the Finance Parties shall not have
been treated as having waived the QGTC Default as a result of not taking
any
action in respect thereof during any period referred to above in this clause
10.4.2 in which it had been contemplated that the
Teekay Guarantor as the non-defaulting Guarantor was considering whether
to
provide or procure an additional or supplemental guarantee or the Finance
Parties were considering such a proposal or the additional or supplemental
guarantee arrangements were being put in place in accordance with the provisions
of this clause 10.4.2.
|
11
|
Indemnities
|
|
11.1
|
Miscellaneous
indemnities
|
The
Borrowers shall within three (3) Banking Days of demand, indemnify each Finance
Party, without prejudice to any of their other rights under any of the Security
Documents, against any cost, loss or liability properly incurred by that
Finance
Party as a result of:
|
11.1.1
|
the
occurrence of any Default; or
|
|
11.1.2
|
a
failure by any Security Party to pay an amount due under a Security
Document on its due date, including without limitation, any cost,
loss or
liability arising as a result of clause 6 of the Agency Agreement;
or
|
|
11.1.3
|
the
Loan (or any part thereof) or any Ship Tranche (or part thereof)
not being
prepaid in accordance with clauses 4.3, 8.2 or 12.1 and any other
repayment or prepayment of the Loan (or part thereof) or any Ship
Tranche
(or part thereof) being made otherwise than on an Interest Payment
Date
relating to the part of the Loan or such Ship Tranche prepaid or
repaid;
or
|
|
11.1.4
|
funding,
or making arrangements to fund, its participation in any Advance
requested
by the Borrowers in a Drawdown Notice but not made by reason of
the
operation of any one or more of the provisions of this Agreement
(other
than by reason of default or gross negligence by that Finance Party
alone),
|
including,
in any such case, but not limited to, any loss or expense sustained or incurred
properly by such Lender in maintaining or funding its Contribution or any
part
thereof or in liquidating or re-employing deposits from third parties acquired
to effect or maintain its Contribution or any part thereof or any other amount
owing to such Lender.
|
11.2
|
Indemnity
to the Facility Agent and Security
Trustee
|
The
Borrowers shall promptly indemnify the Facility Agent and Security Trustee
against any cost, loss or liability reasonably incurred by the Facility Agent
and the Security Trustee or either of them (acting reasonably) as a result
of:
|
11.2.1
|
investigating
any event which it reasonably believes is a Default;
or
|
|
11.2.2
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised.
|
|
11.3
|
Currency
indemnity
|
If
any
sum due from the Borrowers under any of the Security Documents or any order
or
judgement given or made in relation thereto has to be converted from the
currency (the “first
currency”)
in which the same is payable under the relevant Security Document or under
such
order or judgement into another currency (the “second
currency”) for the purpose of (a) making or filing a
claim or proof against the Borrowers, (b) obtaining an order or judgement
in any court or other tribunal or (c) enforcing any order or judgement
given or made in relation to any of the Security Documents, the Borrowers
shall
indemnify and hold harmless each of the Finance Parties from and against
any
loss suffered as a result of any difference between (i) the rate of
exchange used for such purpose to convert the sum in question from the first
currency into the second currency and (ii) the rate or rates of exchange at
which any of the Finance Parties may in the ordinary course of business purchase
the first currency with the second currency upon receipt of a sum paid to
it in
satisfaction, in whole or in part, of any such order, judgement, claim or
proof. Any amount due from the Borrowers under this clause 11.2
shall be due as a separate debt and shall not be affected by judgement being
obtained for any other sums due under or in respect of any of the Security
Documents and the term “rate of exchange” includes any premium and costs of
exchange payable in connection with the purchase of the first currency with
the
second currency.
|
11.4
|
Environmental
indemnity
|
The
Borrowers shall indemnify each of the Finance Parties on demand and hold
each of
the Finance Parties harmless from and against all costs, expenses, payments,
charges, losses, demands, liabilities, actions, proceedings (whether civil
or
criminal), penalties, fines, damages, judgements, orders, sanctions or other
outgoings of whatever nature which may be suffered, incurred or paid by,
or made
or asserted against any Finance Party at any time, whether before or after
the
repayment in full of principal and interest under this Agreement, relating
to,
or arising directly or indirectly in any manner or for any cause or reason
whatsoever out of an Environmental Claim made or asserted against the Finance
Party if such Environmental Claim would not have been, or been capable of
being,
made or asserted against the Finance Party if it had not entered into any
of the
Security Documents and/or performed any of its obligations thereunder and/or
been involved in any of the transactions contemplated by the Security
Documents.
|
12
|
Unlawfulness
and increased costs
|
|
12.1
|
Unlawfulness
|
If
it is
or becomes contrary to any law or regulation for any Lender to contribute
to
Advances or to maintain its Commitment or fund its Contribution, such Lender
shall promptly, through the Facility Agent, give notice to the Borrowers
whereupon (a) such Lender’s Commitment shall be reduced to zero and (b) the
Borrowers shall be obliged to prepay the Contribution of such Lender either
(i)
forthwith or (ii) on a future specified date not being earlier than the latest
date permitted by the relevant law or regulation together with interest and
commitment commission accrued to the date of prepayment and all other sums
payable by the Borrowers to such Lender under this Agreement.
|
12.2
|
Increased
costs
|
If
the
result of any change in, or in the interpretation or application of, or the
introduction of, any law or any regulation, request or requirement (whether
or
not having the force of law, but, if not having the force of law, with which
the
relevant Lender or, as the case may be, its holding company habitually
complies), including (without limitation) those relating to Taxation, capital
adequacy, liquidity, reserve assets, cash ratio deposits and special deposits,
is to:
|
12.2.1
|
subject
any Lender to Taxes or change the basis of Taxation of any Lender
with
respect to any payment under any of the Security Documents (other
than
Taxes or Taxation on the overall net income, profits or gains of
such
Lender imposed in the jurisdiction in which its principal or lending
office under this Agreement is located);
and/or
|
|
12.2.2
|
increase
the cost to, or impose an additional cost on, the Lender or its
holding
company in making or keeping such Lender’s Commitment available or
maintaining or funding all or part of such Lender’s Contribution;
and/or
|
|
12.2.3
|
reduce
the amount payable or the effective return to any Lender under
any of the
Security Documents; and/or
|
|
12.2.4
|
reduce
any Lender’s or its holding company’s rate of return on its overall
capital by reason of a change in the manner in which it is required
to
allocate capital resources to such Lender’s obligations under any of the
Security Documents; and/or
|
|
12.2.5
|
require
any Lender or its holding company to make a payment or forgo
a return on
or calculated by reference to any amount received or receivable
by such
Lender under any of the Security Documents;
and/or
|
|
12.2.6
|
require
any Lender or its holding company to incur or sustain a loss by
reason of
being obliged to deduct all or part of such Lender’s Commitment or
Contribution from its capital for regulatory
purposes,
|
then
and
in each such case (subject to clause 12.3):
|
(a)
|
such
Lender shall notify the Borrowers through the Facility Agent in
writing of
such event promptly upon its becoming aware of the same;
and
|
|
(b)
|
the
Borrowers shall on demand, made at any time whether or not such
Lender’s
Contribution has been repaid, pay to the Facility Agent for the
account of
such Lender the amount which such Lender specifies (in a certificate
setting forth the basis of the computation of such amount but not
including any matters which such Lender or its holding company
regards as
confidential) is required to compensate such Lender and/or (as
the case
may be) its holding company for such liability to Taxes, cost,
reduction,
payment, forgone return or loss.
|
For
the
purposes of this clause 12.2 and clause 12.4 “holding
company” means the company or entity (if any) within the consolidated
supervision of which a Lender is included.
|
12.3
|
Exception
|
Nothing
in clause 12.2 shall entitle any Lender to receive any amount in respect of
compensation for any such liability to Taxes, increased or additional cost,
reduction, payment, foregone return or loss to the extent that the same is
the
subject of an additional payment under clause 6.7 which fully compensates
that Lender.
|
12.4
|
Mitigation
|
If
circumstances arise which would, or would upon the giving of notice, result
in:
|
(a)
|
the
Borrowers being required to make an increased payment to a Lender
pursuant
to clause 6.7; or
|
|
(b)
|
the
reduction of the Commitment of a Lender to zero or the Borrowers
being
required to prepay any Lender’s Contribution pursuant to clause 12.1;
or
|
|
(c)
|
the
Borrowers being required to make a payment to a Lender to compensate
such
Lender or its holding company for a liability to Taxes, increased
or
additional cost, reduction, payment, foregone return or loss pursuant
to
clause 12.2.6,
|
then,
without in any way limiting, reducing or otherwise qualifying the obligations
of
the Borrowers under clauses 6.7 and 12.1, the Facility Agent and the
relevant Lender shall meet together and with the Borrowers to discuss in
good
faith (but without obligation) what steps may be open to the relevant Lender
(or, as the case may be, its holding company) to mitigate or remove such
circumstances. If the relevant Lender and the Borrowers are unable to agree
such
steps within thirty (30) days (or such longer period as they may agree) of
the
notice referred to in this clause 12.4 having been given, then the
Borrowers shall be entitled to notify such Lender of its intention to prepay
such Lender’s Contribution. The Borrowers shall make such prepayment within
thirty (30) days of such notification and shall simultaneously pay to such
Lender any reasonable expense which such Lender certifies as sustained or
incurred by it as a consequence of such prepayment including any loss or
expense
sustained or incurred by such Lender in liquidating or re-employing deposits
from third parties acquired to effect or maintain its Contribution. Upon
receipt
of the Borrowers’ notice of prepayment the Commitments of the relevant Lender
shall be reduced to zero.
|
13
|
Security
and set-off
|
|
13.1
|
Application
of moneys
|
If
either
(a) on any date on which a payment is due to be made by the Borrowers under
this
Agreement, the amount received by the Facility Agent from the Borrowers falls
short of the total amount of the payment due to be made by the Borrowers
on such
date or (b) the Facility Agent, the Security Trustee and/or the Lenders receive
moneys under or pursuant to any of the Security Documents that are expressed
to
be applicable in accordance with the provisions of this clause 13.1, then,
without prejudice to any rights or remedies available to the Facility Agent,
the
Security Trustee and the Lenders under the Security Documents, such amount,
if
received by the Lenders shall be paid to the Facility Agent, and shall be
applied by the Facility Agent in the following manner:
|
13.1.1
|
first
in or toward payment, on a pari passu basis, of all unpaid fees,
commissions, costs and expenses which may be owing to any of the
Finance
Parties under any of the Security
Documents;
|
|
13.1.2
|
secondly,
in or towards payment of any arrears of interest which have become
due but
remain unpaid;
|
|
13.1.3
|
thirdly,
in or towards payment to the Lenders, on a pari passu basis, of
any
principal which has become due but remains
unpaid;
|
|
13.1.4
|
fourthly,
in or towards payment to the Lenders for any loss suffered by reason
of
any such payment in respect of principal not being effected on
an Interest
Payment Date relating to the part of the Loan
repaid;
|
|
13.1.5
|
fifthly,
in or towards payment to the Finance Parties of any other sums
(including
indemnity amounts) which have become due but remain unpaid under
any of
the Security Documents; and
|
|
13.1.6
|
sixthly,
the surplus (if any) shall be paid to the Borrowers or to whomsoever
else
may be entitled to receive such
surplus.
|
|
13.2
|
Set-off
|
Each
Borrower authorises each Lender (without prejudice to any of the Lenders’ rights
at law, in equity or otherwise), at any time following the occurrence of
an
Event of Default which is continuing and unremedied at the applicable time
and
without notice to the Borrowers, to apply any credit balance to which the
relevant Borrower is then entitled standing upon any account of the relevant
Borrower with any branch of such Lender in or towards satisfaction of any
sum
due and payable from such Borrower to such Lender under any of the Security
Documents. For this purpose, each Lender is authorised to purchase
with the moneys standing to the credit of such account such other currencies
as
may be necessary to effect such application. No Lender shall be
obliged to exercise any right given to it by this
clause 13.2. Each Lender shall notify the Facility Agent and the
Borrowers forthwith upon the exercise or purported exercise of any right
of
set-off giving full details in relation thereto and the Facility Agent shall
inform the other Lenders.
|
14
|
Accounts
|
|
14.1
|
General
|
The
Borrowers undertake with the Finance Parties that they will procure
that:
|
14.1.1
|
on
or before the Delivery Date for the First Ship, the Lessee shall
open the
Operating Account and the Collection Account with the Operating
Account
Bank and the relevant member of the Teekay Guarantor Group shall
open the
Retention Account with the Operating Account Bank;
and
|
|
14.1.2
|
procure
that all moneys payable to the Lessee in respect of Earnings shall
be paid
to the Operating Account or, upon the occurrence of an Event of
Default
which is unwaived and continuing, the Collection
Account.
|
|
14.2
|
Operation
of Operating Account and Collection
Account
|
The
Borrowers undertake to procure that the Operating Account and the Collection
Account shall be operated by the Lessee in accordance with the provisions
of the
Account Pledge.
|
14.3
|
Operation
of Retention Account
|
The
Borrowers undertake to procure that the Retention Account shall be operated
by
the relevant member of the Teekay Guarantor Group in accordance with the
provisions of clause 8.6.24 and the Retention
Account Pledge.
|
15
|
Assignment,
transfer and lending office
|
|
15.1
|
Benefit
and burden
|
This
Agreement shall be binding upon, and enure for the benefit of, the Finance
Parties and the Borrowers and their respective successors including, without
limitation, in the case of Calyon, any successor following an asset contribution
or partial merger within the meaning of sections L-236 sqq. of the French
Commercial Code.
|
15.2
|
No
assignment by Borrowers
|
The
Borrowers may not assign or transfer any of its rights or obligations under
this
Agreement.
|
15.3
|
Assignments
and transfers by Lenders
|
|
15.3.1
|
Subject
to this clause 15.3 and to clause 17.4 of the Proceeds Deed, any
Lender (the “Existing Lender”) may at any time, assign
any of its rights or transfer any of its rights and obligations
under this
Agreement and the Security Documents to any other bank or financial
institution (a “New Lender”). The Existing Lender shall
give prior notice of such assignment or transfer to the Facility
Agent.
The consent of the Facility Agent to an assignment or transfer
is not
required. The consent of the Borrowers is not required to an
assignment. An assignment will only be effective on receipt by
the
Facility Agent of written confirmation from the New Lender (in
form and
substance satisfactory to the Facility Agent) that the New Lender
will
assume the same obligations to the other Finance Parties as it
would have
been under if it was an Existing
Lender.
|
|
15.3.2
|
A
transfer will only be effective if the procedure set out in clause 15.3.3 is complied with. The consent
of the Borrowers to a transfer of a part of the KEXIM Tranche is
not
required, but KEXIM will consult in good faith with the
Borrowers. The Existing Lender may transfer any part of the
Commercial Tranche to another branch of that Lender without the
Borrowers’
consent but a transfer to another bank or financial institution
shall be
subject to the prior written consent of the Borrowers, not to be
unreasonably withheld, provided that such consent shall not be
required if
an Event of Default has occurred and is continuing unremedied and
unwaived.
|
|
15.3.3
|
No
such transfer is binding on, or effective in relation to, the Borrowers,
or the Facility Agent unless it is effected or evidenced by a Substitution
Certificate which complies with the provisions of this clause 15.3
and is signed by or on behalf of the Existing Lender, the New Lender
and
the Facility Agent (on behalf of itself, the Borrowers, the Security
Trustee and the other Lenders). Upon signature of any such
Substitution Certificate by the Facility Agent, which signature
shall be
effected as promptly as is practicable after such Substitution
Certificate
has been delivered to the Facility Agent, and subject to the terms
of such
Substitution Certificate, such Substitution Certificate shall have
effect
as set out below. The following further provisions shall have effect
in
relation to any Substitution
Certificate:
|
|
(a)
|
a
Substitution Certificate may be in respect of a Lender’s rights in respect
of all or part, of its Commitment and shall be in respect of the
same
proportion of its Contribution;
|
|
(b)
|
a
Substitution Certificate shall only be in respect of rights and
obligations of the Existing Lender in its capacity as a Lender
and shall
not transfer its rights and obligations as an agent, or in any
other
capacity, as the case may be and such other rights and obligations
may
only be transferred in accordance with any applicable provisions
of this
Agreement;
|
|
(c)
|
a
Substitution Certificate shall take effect in accordance with English
law
as follows:
|
|
(i)
|
to
the extent specified in the Substitution Certificate, the Existing
Lender’s payment rights and all its other rights (other than those
referred to in sub-clause 15.3.3(b)) under this Agreement are
assigned to the New Lender absolutely, free of any defects in the
Existing
Lender’s title and of any rights or equities which the Borrowers had
against the Existing Lender;
|
|
(ii)
|
the
Existing Lender’s Commitment is discharged to the extent specified in the
Substitution Certificate;
|
|
(iii)
|
the
New Lender becomes a Lender with a Contribution and a Commitment
of the
amounts specified in the Substitution
Certificate;
|
|
(iv)
|
the
New Lender becomes bound by all the provisions of this Agreement,
the
Agency Agreement and the other Security Documents which are applicable
to
the Lenders, including those about pro-rata sharing and the exclusion
of
liability on the part of, and the indemnification of, the Facility
Agent
in accordance with the provisions of the Agency Agreement and to
the
extent that the New Lender becomes bound by those provisions, the
Existing
Lender ceases to be bound by them;
|
|
(v)
|
an
Advance or part of an Advance which the New Lender makes after
the
Substitution Certificate comes into effect ranks in point of priority
and
security in the same way as it would have ranked had it been made
by the
Existing Lender, assuming that any defects in the Existing Lender’s title
and any rights or equities of any Security Party against the Existing
Lender had not existed; and
|
|
(vi)
|
the
New Lender becomes entitled to all the rights under this Agreement
which
are applicable to the Lenders, including but not limited to those
relating
to the Majority Lenders and those under clause 3.5, 5 and 12 and to
the extent that the New Lender becomes entitled to such rights,
the
Existing Lender ceases to be entitled to
them;
|
|
15.3.4
|
the
rights and equities of the Borrowers or of any other Security Party
referred to above include, but are not limited to, any right of
set-off
and any other kind of cross-claim;
and
|
|
15.3.5
|
the
Borrowers, the Security Trustee and the Lenders hereby irrevocably
authorise and instruct the Facility Agent to sign any such Substitution
Certificate on its behalf and undertake not to withdraw, revoke
or qualify
such authority or instruction at any time. Promptly upon its
signature of any Substitution Certificate, the Facility Agent shall
notify
the Borrowers, the Security Trustee, the Existing Lender, the New
Lender
and each of the other Finance
Parties.
|
|
15.4
|
Reliance
on Substitution
Certificate
|
|
15.4.1
|
The
Facility Agent shall be entitled to rely on any Substitution Certificate
believed by it to be genuine and correct and to have been presented
or
signed by the persons by whom it purports to have been presented
or
signed, and shall not be liable to any of the parties to this Agreement
and the Security Documents for the consequences of such
reliance.
|
|
15.4.2
|
The
Facility Agent shall at all times during the continuation of this
Agreement maintain a register in which it shall record the name,
Commitments, Contributions and administrative details (including
the
lending office) from time to time of the Lenders holding a Substitution
Certificate and the date at which the transfer referred to in such
Substitution Certificate held by each Lender was transferred to
such
Lender, and the Facility Agent shall make the said register available
for
inspection by any Lender and any Borrower during normal banking
hours upon
receipt by the Facility Agent of reasonable prior notice requesting
the
Facility Agent to do so.
|
|
15.4.3
|
The
entries on the said register shall, in the absence of manifest
error, be
conclusive in determining the identities of the Commitments, the
Contributions and the Substitution Certificates held by the Lenders
from
time to time and the principal amounts of such Substitution Certificates
and may be relied upon by the Facility Agent and the other Security
Parties for all purposes in connection with this Agreement and
the
Security Documents.
|
|
15.5
|
If
any
Lender other than KEXIM assigns or transfers of all or any part of its rights,
benefits and/or obligations under the Security Documents, it shall pay to
the
Facility Agent on demand a fee of one thousand five hundred Dollars ($1,500)
(for its own account) together with all costs, fees and expenses (including,
but
not limited to, legal fees and expenses), and all value added tax thereon,
verified by the Facility Agent as having been incurred by it in connection
with
such transfer.
|
15.6
|
Documenting
assignments and transfers
|
If
any
Lender transfers all or any part of its rights, benefits and/or obligations
as
provided in clause 15.3, each of the Borrowers undertakes, immediately on
being requested to do so by the Facility Agent and at the cost of the Existing
Lender, to enter into, and procure that the other Security Parties shall
enter
into, such documents as may be necessary or desirable to transfer to the
New
Lender all or the relevant part of such Lender’s interest in the Security
Documents and all relevant references in this Agreement to such Lender shall
thereafter be construed as a reference to the Existing Lender and/or its
New
Lender (as the case may be) to the extent of their respective
interests.
|
15.7
|
Sub-participation
|
A
Lender
may sub-participate all or any part of its rights and/or obligations under
the
Security Documents without the consent of the Borrowers but subject to giving
prior written notice to the Facility Agent and the Borrowers.
|
15.8
|
Lending
offices
|
Each
Lender shall lend through its office at the address specified in Schedule 1
or, as the case may be, in any relevant Substitution Certificate or through
any
other office of such Lender selected from time to time by such Lender through
which such Lender wishes to lend for the purposes of this Agreement
(“Lending Office”). If the office through which a
Lender is lending is changed pursuant to this clause 15.8, such Lender
shall notify the Facility Agent promptly of such change and the Facility
Agent
shall notify the Borrowers.
|
15.9
|
Disclosure
of information
|
Any
Lender may disclose to a prospective transferee such information about the
Borrowers as such Lender shall consider appropriate, subject to such Lender
ensuring that the prospective transferee will observe, and confirms that
it will
observe, the terms of clause 32 (Confidentiality) of the Time Charters as
if they applied to them directly.
|
15.10
|
Increased
costs
|
If
(a) an
Existing Lender transfers part or all of its rights, benefits and obligations
under this Agreement pursuant to clause 15.3 or a Lender changes its
Lending Office pursuant to clause 15.8 and (b) as a result of circumstances
existing at the date such transfer or change occurs, the Borrowers would
be
obliged to make payment under clause 6.7 or 12.2 to the New Lender or the
Lender that has changed its Lending Office, that New Lender or Lender shall
only
be entitled to receive payment under clause 6.7 or 12.2 to the same extent
as the Existing Lender or Lender acting through its previous Lending Office
would have been if the novation
or
change
had not occurred. The limitations on the New Lender or on a Lender that has
changed is Lending Office in this clause 15.10 shall not apply where the
transfer to the New Lender or change in Lending Office was made at the
Borrowers’ request or where the payment or increased payment results from a
change in law after the date of the transfer or change in question.
|
16
|
Facility
Agent and Security Trustee
|
|
16.1
|
Appointment
of the Facility Agent
|
The
terms
and basis on which the Facility Agent has been appointed by the Lenders as
facility agent are set out in the Agency Agreement including, among other
things, the manner in which any decision to exercise any right, powers,
discretion or authority or to carry out any duty are to be made between the
Lenders and the Facility Agent.
|
16.2
|
Appointment
of the Security Trustee
|
The
terms
and basis on which the Security Trustee has been appointed by the Lenders
as
security trustee are set out in each Proceeds Deed including, amongst other
things the manner in which any decision to exercise any right, power, discretion
or authority to carry out any duty are to be made between the Lenders and
the
Security Trustee.
|
17
|
Notices and other matters
|
|
17.1
|
Notices
|
Every
notice, request, demand or other communication under this Agreement or (unless
otherwise provided therein) under any of the other Security Documents
shall:
|
17.1.1
|
be
in writing, delivered personally or by first-class prepaid letter
(airmail
if available) or telefax and, in the case of notification of rates
of
interest by the Facility Agent or in the case of the delivery of
any
document by the Facility Agent, the Facility Agent may refer the
relevant
party or parties (by fax or letter) to a web site and to the location
of
the relevant information on such web site in discharge of such
notification or delivery
obligation;
|
|
17.1.2
|
be
deemed to have been received, subject as otherwise provided in
the
relevant Security Document:
|
|
(a)
|
in
the case of a letter, when delivered personally or seven (7) days
after it
has been put into the post;
|
|
(b)
|
in
the case of a telefax, when a complete and legible copy is received
by the
addressee (unless the date of despatch is not a business day in
the
country of the addressee or, if the time of despatch is after the
close of
business in the country of the addressee, it shall be deemed to
have been
received at the opening of business on the next such business day);
and
|
|
(c)
|
where
reference in such notice, request, demand or other communication
is made
to a web site, when the delivery of the letter or telefax referring
to the
addressee to such website is deemed to have been received pursuant
to the
other provisions of this
clause 17.1,
|
provided
that any notice, request, demand or communication which is to be sent, made
or
delivered to the Facility Agent will be effective only when actually received
by
the Facility Agent and then only if it is expressly marked for the attention
of
the department or the individual specified in clause 17.1.3 or any other
individual that the Facility Agent shall specify pursuant to such
clause 17.1.3; and
|
17.1.3
|
be
sent:
|
|
(a)
|
to
the Borrowers at:
|
|
(i)
|
x/x
Xxxxxx Xxxxxxxx (Xxxxxx) Xxx
|
Xxxxx
0000, Xxxxxxx 5,
000
Xxxxxxx Xxxxxx,
Xxxxxxxxx,
X.X. X0X 0X0
Xxxxxx
Telefax
No:
x0 000 000 0000
Attn: Vice
President, Finance
|
(ii)
|
c/o
Qatar Gas Transport Company Limited
(Nakilat)
|
Xxxx
XXXxx
00000
Xxxxx
Fax
No:
x000 000 0000
Attn: Xx
Xxxxxx X. Xxxx, Managing Director
|
(b)
|
to
each Lender at its address or telefax number specified in Schedule 1
or in any relevant Substitution
Certificate.
|
|
(c)
|
to
the Facility Agent at:
|
Calyon
0
xxxx xx
Xxxxxxxxx Xxxx Xxxxxx
00000
Xxxxx La Defense
Cedex
France
Fax:
(x00) 0 00 00 00 00
Attn: Shipping
Department
Copy
to:
Calyon,
London Shipping Department
000
Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X
0XX
Fax:
x00 00 0000 0000
Attn: Head
of Shipping
|
(d)
|
to
the Security Trustee at:
|
Calyon
0
xxxx xx
Xxxxxxxxx Xxxx Xxxxxx
00000
Xxxxx La Defense
Cedex
France
Fax:
(x00) 0 00 00 00 00
Attn: Shipping
Department
Copy
to:
Calyon,
London Shipping Department
000
Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X
0XX
Fax:
x00 00 0000 0000
Attn: Head
of Shipping
or
to
such other address and/or number as is notified by the relevant party to
the
other parties to this Agreement by not less than five (5) Banking Days’ written
notice.
|
17.2
|
Notices
through the Facility Agent
|
Every
notice, request, demand or other communication under this Agreement to be
given
by the Borrowers to any other party shall be given to the Facility Agent
specified in this Agreement for onward transmission as appropriate and to
be
given to the Borrowers shall (except as otherwise provided in this Agreement)
be
given by the Facility Agent. Promptly upon receipt of notification of
an address, fax number or (as the case may be) e-mail or change of address,
fax
number or e-mail pursuant to clause 17.1.3 or changing its own address, fax
number or e-mail, the Facility Agent shall notify the other parties to this
Agreement.
|
17.3
|
No
implied waivers, remedies
cumulative
|
No
failure or delay on the part of the Facility Agent, the Security Trustee,
the
Arranger, the Lenders or any of them to exercise any power, right or remedy
under any of the Security Documents shall operate as a waiver thereof (unless
expressly agreed in writing by the Facility Agent), nor shall any single
or
partial exercise by the Facility Agent, the Security Trustee, the Arranger,
the
Lenders or any of them of any power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or
remedy. The remedies provided in the Security Documents are
cumulative and are not exclusive of any remedies provided by law.
|
17.4
|
English
language
|
All
certificates, instruments and other documents to be delivered under or supplied
in connection with any of the Security Documents shall be in the English
language or shall be accompanied by a certified English translation upon
which
the Facility Agent, the Security Trustee, the Arranger and the Lenders shall
be
entitled to rely.
|
17.5
|
Counterparts
|
This
Agreement may be executed in any number of original counterparts and by
facsimile provided that original signed copies are provided within a reasonable
period of time thereafter. All such counterparts shall, once executed,
constitute a single document.
|
17.6
|
Further
assurance
|
Each
of
the Borrowers undertakes that the Security Documents shall both at the date
of
execution and delivery thereof and so long as any moneys are owing under
any of
the Security Documents be valid and binding obligations of the respective
parties thereto and rights of each Lender enforceable in accordance with
their
respective terms and that it will, at its expense, execute, sign, perfect
and
do, and will procure the execution, signing, perfecting and doing by each
of the
other Security Parties of, any and every such further assurance, document,
act
or thing as in the reasonable opinion of the Facility Agent (acting on the
instructions of the Majority Lenders) may be necessary or desirable for
perfecting the security contemplated or constituted by the Security
Documents.
|
17.7
|
Conflicts
|
In
the
event of any conflict between this Agreement and any of the other Security
Documents to which any or all of the Borrowers are party to, the provisions
of
this Agreement shall prevail.
|
17.8
|
Borrowers'
obligations
|
|
17.8.1
|
Joint
and several
|
Notwithstanding
anything to the contrary contained in any of the Security Documents, the
agreements, obligations and liabilities of the Borrowers herein contained
are
joint and several and shall be construed accordingly. Each of the
Borrowers agrees and consents to be bound by the Security Documents to which
it
is, or is to be, a party notwithstanding that the other Borrowers which are
intended to sign or to be bound may not do so or be effectually bound and
notwithstanding that any of the Security Documents may be invalid or
unenforceable against any of the other Borrowers, whether or not the deficiency
is known to any of the Finance Parties.
|
17.8.2
|
Borrowers
as principal debtors
|
Each
Borrower acknowledges and confirms that it is a principal and original debtor
in
respect of all amounts which may become payable by the Borrowers in accordance
with the terms of this Agreement or any of the other Security Documents and
agrees that the Finance Parties may also continue to treat it as such, whether
or not any of the Finance Parties is or becomes aware that such Borrower
is or
has become a surety for another Borrower.
|
17.8.3
|
Indemnity
|
The
Borrowers hereby agree jointly and severally to keep the Finance Parties
fully
indemnified on demand against all damages, losses, costs and expenses arising
from any failure of any Borrower to perform or discharge any purported
obligation or liability of a Borrower which would have been the subject of
this
Agreement had it been valid and enforceable and which is not or ceases to
be
valid and enforceable against a Borrower on any ground whatsoever, whether
or
not known to the Finance Parties (including, without limitation, any irregular
exercise or absence of any corporate power or lack of authority of, or breach
of
duty by, any person purporting to act on behalf of a Borrower (or any legal
or
other limitation, whether under the Limitation Acts or otherwise or any
disability or death
,
bankruptcy, unsoundness of mind, insolvency, liquidation, dissolution, winding
up, administration, receivership, amalgamation, reconstruction or any other
incapacity of any person whatsoever (including, in the case of a partnership,
a
termination or change in the composition of the partnership) or any change
of
name or style or constitution of any Security Party)).
|
17.8.4
|
Liability
unconditional
|
None
of
the obligations or liabilities of the Borrowers under this Agreement or any
other Security Document shall be discharged or reduced by reason
of:
|
(a)
|
the
death, bankruptcy, unsoundness of mind, insolvency, liquidation,
dissolution, winding-up, administration, receivership, amalgamation,
reconstruction or other incapacity of any person whatsoever (including,
in
the case of a partnership, a termination or change in the composition
of
the partnership) or any change of name or style or constitution
of any
Borrower or any other person liable;
or
|
|
(b)
|
any
of the Finance Parties granting any time, indulgence or concession
to, or
compounding with, discharging, releasing or varying the liability
of, a
Borrower or any other person liable or renewing, determining, varying
or
increasing any accommodation, facility or transaction or otherwise
dealing
with the same in any manner whatsoever or concurring in, accepting,
varying any compromise, arrangement or settlement or omitting to
claim or
enforce payment from a Borrower or any other person liable;
or
|
|
(c)
|
anything
done or omitted which but for this provision might operate to exonerate
the Borrowers or any of them.
|
|
17.8.5
|
Recourse
to other security
|
The
Finance Parties shall not be obliged to make any claim or demand or to resort
to
any Security Document or other means of payment now or hereafter held by
or
available to it for enforcing this Agreement or any of the Security Documents
against a Borrower or any other person liable and no action taken or omitted
by
any of the Finance Parties in connection with any such Security Document
or
other means of payment will discharge, reduce, prejudice or affect the liability
of the Borrowers under this Agreement and the Security Documents to which
any of
them is, or is to be, a party.
|
17.8.6
|
Waiver
of Borrowers' rights
|
Each
Borrower agrees with the Finance Parties that, from the date of this Agreement
and so long as any moneys are owing under any of the Security Documents and
while all or any part of the Commitment remains outstanding, it will not,
without the prior written consent of the Facility Agent:
|
(a)
|
exercise
any right of subrogation, reimbursement and indemnity against any
other
Borrower or any other person liable;
or
|
|
(b)
|
demand
or accept repayment in whole or in part of any Indebtedness now
or
hereafter due to such Borrower from any other Borrower or from
any other
person liable or demand or accept any guarantee, indemnity or other
assurance against financial loss or any document or instrument
created or
evidencing an Encumbrance in respect of the same or dispose of
the same;
or
|
|
(c)
|
take
any steps to enforce any right against any other Borrower or any
other
person liable in respect of any such moneys;
or
|
|
(d)
|
claim
any set-off or counterclaim against any other Borrower or any other
person
liable or claiming or proving in competition with the Finance Parties
in
the liquidation of any other Borrower or any other person liable
or have
the benefit of, or share in, any payment from or composition with,
any
other Borrower or any other person liable or any other Security
Document
now or hereafter held by the Finance Parties for any moneys owing
under
this Agreement or for the obligations or liabilities of any other
person
liable but so that, if so directed by the Facility Agent, it will
prove
for the whole or any part of its claim in the liquidation of any
other
Borrower or other person liable on terms that the benefit of such
proof
and all money received by it in respect thereof shall be held on
trust for
the Finance Parties and applied in or towards discharge of any
moneys
owing under this Agreement in such manner as the Facility Agent
shall deem
appropriate.
|
The
parties to this Agreement acknowledge that Teekay LNG Partners L.P.
(“Teekay LNG”) may acquire the whole shareholding interest of
the Teekay Guarantor in the Teekay Charterer or the Borrowers during the
period
falling between the Effective Date (as such term is defined in the Supplemental
Agreement) and the first Delivery Date. If Teekay LNG does in fact
exercise its rights to acquire such an interest during this period, the parties
agree, subject as provided below, to act in good faith in negotiating both
the
provision of a corporate guarantee from Teekay LNG in favour of the Security
Trustee, guaranteeing the obligations of the Borrowers under the Security
Documents in an amount of up to the percentage of the relevant shareholding
interest of the aggregate amounts of the said obligations of the Borrowers
and,
at the same time, the release and discharge of all the obligations of the
Teekay
Guarantor under the Teekay Guarantee. It is, however, recognised that
the agreement of the Finance Parties to the provision of such a guarantee
from
Teekay LNG in replacement of the Teekay Guarantee is subject always to the
obtaining by each of the Finance Parties of such further board and/or credit
approval as may be necessary for the acceptance of a guarantee from Teekay
LNG
in replacement of the Teekay Guarantee (such approval to be in the relevant
Finance Party’s absolute discretion), together with any consequential
restructuring and amendment of the provisions of this Agreement and the other
Security Documents (including the creation by Teekay LNG of equivalent security
in favour of the Finance Parties over the shares in each applicable Borrower
as
that granted by the Teekay Charterer under the Security Documents) as the
Finance Parties consider necessary.
|
18
|
Governing law and jurisdiction
|
|
18.1
|
Law
|
This
Agreement is governed by, and shall be construed in accordance with, English
law.
|
18.2
|
Submission
to jurisdiction
|
The
parties to this Agreement agree for the benefit of the Finance Parties
that:
|
18.2.1
|
if
any party has any claim against any other arising out of or in
connection
with this Agreement such claim shall (subject to clause 18.2.3) be
referred to the High Court of Justice in England, to the jurisdiction
of
which each of the parties irrevocably
submits;
|
|
18.2.2
|
the
jurisdiction of the High Court of Justice in England over any such
claim
against any Finance Party shall be an exclusive jurisdiction and
no courts
outside England shall have jurisdiction to hear or determine any
such
claim; and
|
|
18.2.3
|
nothing
in this clause 18.2 shall limit the right of a Finance Party to refer
any such claim against any of the Borrowers to any other court
of
competent jurisdiction outside England, to the jurisdiction of
which the
Borrower hereby irrevocably agrees to submit, nor shall the taking
of
proceedings by a Finance Party before the courts in one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction
whether concurrently or not.
|
The
parties further agree that only the Courts of England and not those of any
other
State shall have jurisdiction to determine any claim which the Borrower may
have
against any of the Finance Parties arising out of or in connection with this
Agreement.
|
18.3
|
Agent
for service of process
|
The
Borrowers irrevocably designate, appoint and empower Teekay Shipping (UK)
Limited of 00 Xx. Xxxxx’x Xxxxxx, Xxxxxx XX0X 0XX to receive for them and on
their behalf service of process issued out of the High Court of Justice in
England in relation to any claim arising out of or in connection with this
Agreement.
|
18.4
|
Waiver
of immunity
|
Each
of
the Borrowers irrevocably and unconditionally:
|
(a)
|
agrees
not to claim immunity from proceedings brought by any Finance Party
against it in relation to any of the Security Documents and to
ensure that
no such claim is made on its
behalf;
|
|
(b)
|
consents
generally to the giving of any relief or the issue of any process
in
connection with any request for relief;
and
|
|
(c)
|
waives
all rights of immunity in respect of itself or its
assets.
|
|
18.5
|
Contracts
(Rights of Third Parties) Xxx
0000
|
No
term
of this Agreement is enforceable under the Contracts (Rights of Third Parties)
Xxx 0000 by a person who is not a party to this Agreement.
IN WITNESS
whereof the parties to this Agreement have caused this Agreement to be duly
executed on the date first above written.
Schedule 1
The
Lenders and their addresses
Part
1
|
Name
|
Address
and fax number
|
|
The
Export-Import Bank of Korea
|
Lending
Office
The
Export – Import Bank Of Korea
00-0,
Xxxxx-xxxx, Xxxxxxxxxxxx-xx
Xxxxx,
000-000
Xxxxx
Address
for Notices
The
Export – Import Bank Of Korea
Ship
Financing Department
00-0,
Xxxxx-xxxx, Xxxxxxxxxxxx-xx
Xxxxx,
000-000
Xxxxx
Fax: +
822 3779 6745
Attn:
|
|
Calyon
|
Lending
Office
Calyon
0
Xxxx xx Xxxxxxxxx Xxxx Xxxxxx,
00000
Xxxxx
La
Defense Cedex
France
Address
for Notices
Address:
Calyon
0
Xxxx xx Xxxxxxxxx Xxxx Xxxxxx,
00000
Xxxxx
La
Défense Cedex
France
Fax:x00
(0) 0 00 00 00 87
Attn:Shipping
Department
Copy
to:
Calyon,
London Shipping Department
000
Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X
0XX
Fax: x00
00 0000 0000
Attn: Head
of Shipping
|
|
DnB
NOR Bank ASA
|
Lending
Office
DNB
Nor Bank ASA
0021
Oslo
Norway
Address
for Notices
XXX
Xxx Xxxx XXX
0000
Xxxx
Xxxxxx
Fax:x00
00 00 00 00
Attn:Credit
Administration
Copy
to:Xxxx Xxxx
Xxxx Xxxxxx
gate 30
Fax:x00
00 00 00 00
|
|
The
Royal Bank of Scotland plc
|
Lending
Office
Address:
The
Royal Bank of Scotland plc
Shipping
Business Centre
0-00
Xxxxx Xxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
Address
for Notices
Address:
The
Royal Bank of Scotland plc
Shipping
Business Centre
0-00
Xxxxx Xxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
Fax:
x00 000 000 0000
Attn:
Colin Manchester
|
|
ING
Bank N.V.
|
Lending
Office
Address:
ING
Bank N.V.
00
Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
Address
for Notices
Address:
ING
Bank N.V.
00
Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
Fax:x00
000 000 0000
Attn:Xxxx
Xxxxx
|
|
Nordea
Bank Norge ASA Grand Cayman Branch
|
Lending
Office
Nordea
Bank Norge ASA Grand Cayman Branch
000
Xxxxxxx Xxx
Xxx
Xxxx, XX 00000
Address
for Notices (Credit Issues)
Nordea
Bank Norge ASA Grand Cayman Branch
000
Xxxxxxx Xxx
Xxx
Xxxx, XX 00000
Fax: +
1 212 421
4420
Attn: Xxxx
Xxxxxxxxx Kjelsrud
Address
for Notices (Operational Issues)
Nordea
Bank Norge ASA Grand Cayman Branch
000
Xxxxxxx Xxx
Xxx
Xxxx, XX 00000
Fax: +
1 212 750 9188
Attn: Xxxxxxxxxx
Xx
|
Part
2
Commitments
of the Lenders
|
Name
of Lender
|
Maximum
total
Commitment
|
Commitment
to
Ship
Tranche
for
Hull
N°
2238
|
Commitment
to
Ship
Tranche
for
Hull
N°
2239
|
Commitment
to
Ship
Tranche
for
Hull
N°
2240
|
|
KEXIM
|
$299,589,135
|
$99,649,193
|
$99,861,474
|
$100,078,468
|
|
Calyon
|
$34,518,888
|
$11,481,656
|
$11,506,115
|
$11,531,117
|
|
DnB
NOR Bank ASA
|
$33,500,000
|
$11,142,754
|
$11,166,491
|
$11,190,755
|
|
The
Royal Bank of Scotland
|
$33,500,000
|
$11,142,754
|
$11,166,491
|
$11,190,755
|
|
ING
Bank N.V.
|
$33,500,000
|
$11,142,754
|
$11,166,491
|
$11,190,755
|
|
Nordea
Bank Norge ASA Grand
Cayman
Branch
|
$33,500,000
|
$11,142,754
|
$11,166,491
|
$11,190,755
|
Schedule 2
The
Ships
|
Name
and Builder
|
Date
of Shipbuilding Contract
|
Type
of Ship
|
Scheduled
Delivery Date
|
Vessel
Cost $
|
|
Hull
No. 2238
at
Daewoo
Shipbuilding
&
Marine
Engineering
Co.,
Ltd
|
3
June
2004
|
151,700
cbm
LNG
|
Last
Quarter
2006
|
194,627,331
|
|
Hull
No. 2239
at
Daewoo
Shipbuilding
&
Marine
Engineering
Co.,
Ltd
|
3
June
2004
|
151,700
cbm
LNG
|
First
Quarter
2007
|
195,041,941
|
|
Hull
No. 2240
at
Daewoo
Shipbuilding
&
Marine
Engineering
Co.,
Ltd
|
3
June
2004
|
151,700
cbm
LNG
|
Second
Quarter
2007
|
195,465,757
|
Schedule 3
Form
of Drawdown Notice
(referred
to in clause 2.2)
To: [Name
and address of Facility Agent]
[Date]
Loan
Agreement dated l
December 2004 (as amended and restated pursuant to the Supplemental Agreement
dated [●] 2005)
We
refer
to the above Loan Agreement and hereby give you notice that we wish to draw
down
[an
Advance of $·
under the Ship Tranche relative to the Deposit Payment to be made in respect
of
the [Initial Instalment] [Second/Third/Fourth/Delivery] Instalment under
the
Shipbuilding Contract for Hull No.[2238][2239][2240] on [Date].
[The
Deposit Payment in respect of the Instalment to which the Advance is to be
applied has already been funded by us and we therefore require that such
Advance
be applied in refinancing the funding we have already made.]
[The
Advance requested is a Deposit Payment in respect of a Delivery Advance [and
the
following additional costs which are evidenced by the annexed supporting
invoices: [●]] and the scheduled Delivery Date for the relevant Ship is · 200·]]:
The
first
Interest Period for the Commercial Tranche of the Advance will be of [three]
[six] month’s duration. The first Interest Period for the KEXIM
Tranche of the Advance will be of three (3) month’s duration]
We
confirm that:
|
(a)
|
no
Default has occurred and is
continuing;
|
|
(b)
|
the
representations and warranties contained in clauses 7.1 and 7.2 of
the Loan Agreement and clauses 4.1 and 4.2 of the Teekay Guarantee
(and so that the representation and warranty in clause 4.1.6 of the
Teekay Guarantee shall for this purpose refer to the then latest
audited
financial statements delivered to the Security Trustee under
clause 5.1.4 of the Teekay Guarantee), clauses 4.1 and 4.2 of the
QGTC Guarantee (and so that the representation and warranty in
clause
4.1.6 of the QGTC Guarantee shall for this purpose refer to the
then
latest audited financial statements delivered to the Security Trustee
under clause 5.1.4 of the QGTC Guarantee) and clauses 2.1 and 2.2 of
the Lessee Assignments are true and correct at the date hereof
as if made
with respect to the facts and circumstances existing at such
date;
|
|
(c)
|
no
breach of the terms either of the Shipbuilding Contracts or the
Refund
Guarantees or the Time Charters or any default thereunder has occurred
or
is continuing;
|
|
(d)
|
each
of the conditions set out in Schedule 5, part 2 and, where
applicable, part 3 of the Loan Agreement have been satisfied or
waived in
respect of the making of the Advance(s) requested or will be satisfied
on
or before the relevant Drawdown Date or such date as the Facility
Agent
has provided in a waiver;
|
|
(e)
|
no
amendments or variations have been agreed to any of the Shipbuilding
Contracts which would have required consent pursuant to
clauses 8.4.11 or 8.4.12 of the Loan Agreement and no action has been
taken by any Builder which might in any way render any of the Shipbuilding
Contracts inoperative or unenforceable, in whole or in part;
and
|
|
(f)
|
the
borrowing to be effected by the drawdown of such Advance will be
within
our corporate powers, has been validly authorised by appropriate
corporate
action and will not cause any limit on our borrowings (whether
imposed by
statute, regulation, agreement or otherwise) to be
exceeded.
|
Words
and
expressions defined in the Loan Agreement shall have the same meanings where
used herein.
…………………………………….
For
and
on behalf of
AL
MARROUNA INC.
…………………………………….
For
and
on behalf of
AL
AREESH INC.
…………………………………….
For
and
on behalf of
AL
DAAYEN INC.
…………………………………….
For
and
on behalf of
TEEKAY
SHIPPING CORPORATION
…………………………………….
For
and
on behalf of
TEEKAY
NAKILAT CORPORATION
Schedule 4
Documents
and evidence required as conditions precedent
(referred
to in clause 9.1)
Part
1
1. Security
Parties’ constitutional documents
copies,
certified by the secretary, a director, an officer or a sole member, as the
case
may be of each of the Security Parties as true, complete and up to date copies
of all documents which contain or establish or relate to the constitution
or
formation of each of the Security Parties;
2. Security
Parties’ corporate authorisations
copies
of
resolutions of the directors or sole member, as the case may be and, in respect
of the Borrowers only, the shareholders of each of the Security Parties
approving each of the relevant Transaction Documents to which such Security
Parties are party and authorising the signature, delivery and performance
of
such Security Parties’ obligations thereunder, certified (in a certificate dated
no earlier than five (5) Banking Days prior to the date of the Supplemental
Agreement) by the secretary, a director or a sole member, as the case may
be, of
such Security Party as:
(a) being
true and correct;
(b) being
duly passed at meeting of the directors or sole member, as the case may be,
of
such Security Party duly convened and held;
(c) not
having been amended, modified or revoked; and
(d) being
in full force and effect
together
with originals or certified copies of any powers of attorney issued by such
Security Parties pursuant to such resolutions;
3. Security
Parties’ incumbency certificate
an
original certificate signed by a duly authorised signatory of each of the
Security Parties no earlier than five (5) Banking Days prior to the date
of the
Supplemental Agreement certifying the names of the officers and directors
of the
relevant Security Party;
4. Security
Parties’ process agent
a
copy,
certified as a true copy by a duly authorised signatory of each of the Security
Parties or other person acceptable to the Facility Agent of a letter from
each
of the Security Parties’ agent for receipt of service of proceedings referred to
in clause 18.3 accepting its appointment under this Agreement and each of
the other Security Documents in which it is or is to be appointed as the
Security Parties’ agent and confirming that its appointment has become
effective;
5. Lessor
and Lessor Parent
|
(a)
|
a
certified true copy of a certificate signed by an officer of the
Lessor
stating the names of the directors of the Lessor and attaching
certified
true copies of:
|
|
(i)
|
the
certificate of incorporation and memorandum and articles of
association of the Lessor;
|
|
(iii)
|
a
copy of the power of attorney referred to at paragraph 5(a)(ii)
above; and
|
|
(b)
|
a
letter confirming signing authority of Lessor Parent in respect
of the
Lessor Parent Support Letter;
|
6. Builder’s
and Refund Guarantor’s signing authority
evidence
of the authority of the signatories on behalf of the Builder and the Refund
Guarantor to execute the Transaction Documents to which they are a
party;
|
7.
|
Fees
|
evidence
that the fees due under clauses 5.1.1 and 5.1.2 have been paid in
full;
8. Security
Documents
original
signed copies of all the Security Documents for all of the Ships (save for
the
Mortgages (including the Mortgage Transfers), the Account Pledge, the Consent
and Agreements and the documents referred to in paragraph 9 of Part 2 to
this Schedule 4) plus all ancillary documents in respect of such Security
Documents;
9. Summary
of documents
a
summary
from the Lessee of the provisions of the internal management agreement between
the Lessee and the member of the Teekay Guarantor Group who will act as the
ship
manager for the Ships in a form and on terms acceptable to the Facility
Agent;
10. Agreed
Forms
an
agreed
form certificate annexing the agreed forms of the Mortgages (including the
Mortgage Transfers), the Account Pledge and the Consent and
Agreements;
11. Facility
Agent approvals
approval
by the Facility Agent of the terms and conditions of:
|
(a)
|
the
Leases;
|
|
(b)
|
the
Novation Agreements and the Supervision
Agreements;
|
|
(c)
|
the
Refund Guarantees;
|
|
(d)
|
the
Time Charter Novation Agreements;
and
|
|
(e)
|
any
amendments to the Original Time Charters pursuant to the Time Charter
Novation Agreements;
|
12. Certified
Copies
copies,
certified (in a certificate dated no earlier than five (5) Banking Days prior
to
the date of the Supplemental Agreement) as a true and complete copy by the
lawyers representing each of the Borrowers or, as the case may be, the Lessee,
of each of the Transaction Documents other than the Security
Documents;
13. Legal
opinions
|
(a)
|
a
legal opinion of Xxxxxx Xxxx, English legal counsel to the Finance
Parties
in respect of the Security Documents governed by English
law;
|
|
(b)
|
a
legal opinion of Cozen X’Xxxxxx, legal counsel to the Finance Parties on
matters of Xxxxxxxx Islands law in respect of the Security Parties
incorporated or formed in the Xxxxxxxx
Islands;
|
|
(c)
|
a
legal opinion of Xxxxxx Xxxxxxxx Law Office, legal counsel to the
Finance
Parties on matters of Qatari law in respect of QGTC;
and
|
|
(d)
|
a
legal opinion of Xxx & Xxxxx, legal counsel to the Finance Parties on
matters of Korean law in respect of the Builder and the Refund
Guarantor;
|
14. Lease
conditions precedent
a
certificate duly executed by the Lessor evidencing the satisfaction or waiver
on
terms satisfactory to the Lessor of all corresponding initial conditions
precedent required to be satisfied by the Lessee under the Leases;
and
15. Borrowers/Lessee
inter-company arrangements
a
summary
from the Borrowers of the provisions of the credit support and hedge
arrangements between the Borrowers and the Lessee, and being in a form and
on
terms acceptable to and previously approved by the Facility Agent.
Part
2
Documents
and evidence required as conditions precedent for each Advance (other than
a
Delivery Advance)
1 Drawdown
Notice
the
Drawdown Notice in respect of the relevant Advance duly executed;
2 Conditions
precedent
evidence
that the conditions precedent set out in Part 1 of Schedule 4 have been, or
as the case may be, remain fully, satisfied;
3 Updated
corporate authorisations/certificates of incumbency
evidence
of the authority of the person(s) signing the Drawdown Notice, the Consent
and
Agreement and any notices and acknowledgements on behalf of the relevant
Security Parties or, as the case may be, the Lessor or, as the case may be,
the
Builder or, as the case may be, the Time Charterer or, as the case may be,
the
Refund Guarantor;
4 Fees
and commissions
payment
of any fees and commissions due from the Borrowers to the Facility Agent
pursuant to the terms of clause 5.1 or any other provision of the Security
Documents;
5 Equity
contribution
in
respect of the First Advance under each Ship Tranche, evidence that the Lessor
has paid the First Instalment under the relevant Shipbuilding Contract to
the
Builder pursuant to the payment by the Lessor of the Initial Instalment in
respect of the relevant Shipbuilding Contract in respect of which a Deposit
Payment is to be made or, as the case may be, has been made;
6 Class
confirmation
a
copy of
the relevant stage certificate to be issued by the Builder under the relevant
Shipbuilding Contract countersigned on behalf of the Classification Society,
confirming that the relevant construction stage to which such certificate
relates has been reached;
7 Commercial
invoice and receipt
a
commercial invoice from the Builder in relation to the Subsequent Instalment
in
respect of which a Deposit Payment is to be made or, as the case may be,
has
been made and which is to be financed or refinanced in whole or in part by
such
Advance and a receipt from such Builder addressed to the Lessor evidencing
the
payment of any previously paid Subsequent Instalment;
8 Refund
Guarantee(s)
an
original copy of any additional or supplemental Refund Guarantee;
9 Notice
and acknowledgements
|
|
in
respect of the First Advance under each Ship Tranche only, originals
of
(a) the Shipbuilding Contract Notices and Acknowledgements duly
signed by
the Lessor, the Lessee, the Replacement Purchaser and the Builder
and (b)
the Refund Guarantee Notices and Acknowledgements for each Refund
Guarantee that has been issued to the Lessor duly signed by the
Lessor,
the Lessee, the Replacement Purchaser and the Refund
Guarantor;
|
10 Quiet
Enjoyment
|
|
in
respect of the First Advance under each Ship Tranche only, duly
signed
original of the relevant Consent and
Agreement;
|
|
11
|
Lease
condition precedent
|
a
certificate duly executed by the Lessor evidencing the satisfaction or waiver
on
terms satisfactory to the Lessor of all corresponding conditions precedent
required to be satisfied by the Lessee under the Lease in respect of the
payment
of the applicable Subsequent Instalment; and
12 Lessor
Proceeds Account
in
respect of the First Advance under each Ship Tranche only, evidence that
the
relevant Lessor Proceeds Account has been opened with the Proceeds Account
Bank
and at least one Dollar ($1) has been deposited therein.
Part
3
Documents
and evidence required as conditions precedent for each Delivery
Advance
|
1
|
Drawdown
Notice
|
the
Drawdown Notice in respect of the relevant Delivery Advance duly
executed;
|
2
|
Updated
corporate authorisations/certificates of
incumbency
|
evidence
of the authority of the person(s) signing the Drawdown Notice, the relevant
Mortgage (including the Mortgage Transfer) and (in respect of the first Delivery
Advance only) the Account Pledge on behalf of the Borrowers, the Lessor and
the
Lessee;
|
3
|
Fees
and commissions
|
payment
of any fees and commissions due from the Borrowers to the Facility Agent
pursuant to the terms of clause 5.1 or any other provision of the Security
Documents;
|
4
|
Ship
conditions
|
evidence
that the Ship in relation to which the Advance is being made:
|
(a)
|
Registration
and Encumbrances
|
will
on
the Delivery Date be registered or provisionally registered in the name of
the
Lessor under the laws and flag of the Flag State and that such Ship will
be free
of Encumbrances (other than Permitted Encumbrances but excluding any Permitted
Liens); and
|
(b)
|
Insurance
|
will
be
insured in accordance with the provisions of the Security Documents and all
requirements of the Security Documents in respect of such insurance have
been
complied with (including without limitation, confirmation from the protection
and indemnity association or other insurer with which the Ship is, or is
to be,
entered for insurance or insured against protection and indemnity risks
(including oil pollution risks) that any necessary declarations required
by the
association or insurer for the removal of any oil pollution exclusion have
been
made and that any such exclusion does not apply to the Ship);
|
5
|
Delivery
|
evidence
that the Builder does not have any claims against the relevant Ship or the
Lessor and is ready upon payment of the relevant Delivery Instalment to deliver
the relevant Ship to the Lessor;
|
6
|
Security
Documents
|
the
relevant Mortgage (including the relevant Mortgage Transfer) for the relevant
Ship duly executed;
|
7
|
Valuation
|
|
|
copies
of the valuations for the Ship made in accordance with
clause 8.2.2.
|
8 Commercial
invoice in respect of the relevant Ship
a
copy of
the draft commercial invoice addressed by the Builder to the Lessor in respect
of the relevant Ship and, if applicable, invoices in respect of any additional
vessel costs described in paragraph (b) of the definition of “Vessel
Costs”;
9 Notices
of assignment
copies
of
duly executed notices of assignment required by the terms of the Security
Documents and in the forms prescribed by the Security Documents (other than
the
notices referred to in paragraph 9 of Part 2 of this
Schedule 4);
11 Legal
Opinion
|
|
in
respect of the first Delivery Advance only, a legal opinion of
Xxxxxx
Xxxx, French legal counsel to the Finance Parties in respect of
the
Account Pledge; and
|
12 Accounts
and Account Pledges
in
respect of the first Delivery
Advance only:
|
(a)
|
evidence
that the Operating Account and the Collection Account have been
opened
with the Operating Account Bank and at least one Dollar ($1) has
been
deposited in the Operating Account and at least one thousand Dollars
($1,000) has been deposited in the Collection
Account;
|
|
(b)
|
the
Account Pledge in respect of the Operating Account and the Collection
Account duly executed;
|
|
(c)
|
evidence
that the Retention Account has been opened with the Operating Account
Bank
and at least one Dollar ($1) has been deposited therein;
and
|
|
(d)
|
the
Retention Account Pledge in respect of the Retention Amount duly
executed.
|
Part
4
Documents
and evidence required as conditions precedent for each
Delivery
|
1
|
Ship
conditions
|
evidence
that the Ship in relation to which the Delivery Advance is being
made:
|
(a)
|
Registration
and Encumbrances
|
will
immediately upon delivery be registered in the name of the relevant Borrower
under the laws and flag of the Flag State and that such Ship is free of
Encumbrances other than the Mortgage; and
|
(b)
|
Classification
|
maintains
the Classification free of all requirements and recommendations of the
Classification Society;
2 Protocols
of Delivery and Acceptance
the
relevant Shipbuilding Contract Protocol of Delivery and Acceptance, the relevant
Lease Protocol of Delivery and Acceptance and the relevant Time Charter Protocol
of Delivery and Acceptance duly executed by the relevant parties;
3 Mortgage
registration
evidence
that immediately upon delivery of the Ship the relevant Mortgage (including
the
relevant Mortgage Transfer) will be registered against such Ship under the
laws
and flag of the Flag State;
4 Insurances
the
Agent
shall have received the following:
(a) evidence
that the Insurances have been effected in accordance with
clause 8.5;
|
|
(b)
|
a
letter of undertaking in a form acceptable to the Facility Agent
addressed
to the Security Trustee by the Approved Brokers or agreement of
the
Approved Brokers to issue a letter of undertaking in a form agreed
by the
Security Trustee; and
|
|
|
(c)
|
an
opinion from such insurance consultants to the Facility Agent as
the
Facility Agent may require on the insurances effected or to be
effected in
respect of the relevant Ship upon and following the relevant Delivery
Date
or agreement of the insurance consultants to issue an opinion in
a form
agreed by the Security Trustee;
|
5 Bahamas
opinion
an
opinion in respect of the relevant Mortgage (including the relevant Mortgage
Transfer) of [Xxxxx & Xxxxxxx], special legal advisers on matters of Bahamas
law to the Finance Parties;
6 DOC
and SMC
a
certified true copy of the DOC of the Operator of the relevant Ship and either
(a) a certified true copy of the SMC for the relevant Ship or (b) evidence
satisfactory to the Facility Agent that the Operator for the relevant Ship
has
applied to the relevant Regulatory Agency for an SMC for such Ship to be
issued
pursuant to the ISM Code within any time-limit required or recommended by
such
Regulatory Agency;
7 ISPS
Code
|
|
evidence
that the Lessee and the relevant Ship are in compliance with the
ISPS Code
and regulations issued by any relevant Regulatory Agency in respect
of the
ISPS Code;
|
8 Ship
certificates
evidence
that on or immediately following delivery of the Ship, the Facility Agent
will
receive copies of each of the following trading certificates:
|
(a)
|
Builder's
certificate and/or Xxxx of Sale;
|
|
(b)
|
Certificate
of registry; and
|
|
(c)
|
Classification
certificate (hull & machinery);
and
|
9 Lease
Conditions Precedent
|
|
a
certificate duly executed by the Lessor evidencing the satisfaction
or
waiver on terms satisfactory to the Lessor of all corresponding
conditions
precedent required to be satisfied by the Lessee under the Lease
in
respect of the payment of the relevant Delivery Instalment and
the
delivery of the relevant Ship under the
Lease.
|
Schedule 5
Form
of Substitution Certificate
(referred
to in clause 15.3)
SUBSTITUTION
CERTIFICATE
Lenders
are advised not to employ Substitution Certificates or otherwise to assign
or
transfer interests in the Loan Agreement without further ensuring that the
transaction complies with all applicable laws and regulations, including
the
Financial Services Xxx 0000 and regulations made thereunder and similar statutes
which may be in force in other jurisdictions
To: Calyon,
as facility agent on its own behalf and on behalf of the Borrowers, the Security
Trustee and the Lenders defined in the Loan Agreement referred to
below.
[Date]
Attention: •
This
certificate (“Substitution Certificate”) relates to a loan
agreement dated • December 2004 (the “Loan Agreement”) and made
between (1) Al Marrouna Inc., Al Areesh Inc., and Al Daayen Inc. (the
“Borrowers”), (2) The Export-Import Bank of Korea and the banks
and financial institutions defined therein as Commercial Lenders (together
the
“Lenders”), (3) Calyon as Arranger (4) Calyon as Facility Agent
and (5) Calyon as Security Trustee; for a loan of up to
$468,108,023. Terms defined in the Loan Agreement shall, unless
otherwise defined herein, have the same meanings herein as therein.
In
this
Certificate:
the
“Existing Lender” means [full name] of
[lending office]; and
the
“New Lender” means [full name] of
[lending office].
|
1
|
The
Existing Lender with full title guarantee assigns to the New Lender
absolutely all rights and interests (present, future or contingent)
which
the Existing Lender has as a Lender under or by virtue of the Loan
Agreement, the Agency Agreement and all the Security Documents
in relation
to [ ] per cent. ([ ]%) of the
Contribution of the Existing Lender (or its predecessors in title)
details
of which are set out below:
|
|
Date
of
Advances
|
Amount
of Advances
or
Ship Tranche
|
Existing
Lender’s Contribution
to
Advances or Ship Tranches
|
Maturity
Date
|
|
2
|
By
virtue of this Substitution Certificate and clause 15 of the Loan
Agreement, the Existing Lender is discharged [entirely from its
Available
Commitment which amounts to
$[ ]] [from
[ ] per cent.
([ ]%) of its Available
Commitment, which percentage represents
$[ ]].
|
|
3
|
The
New Lender hereby requests the Borrowers, the Facility Agent, the
Security
Trustee and the Lenders to accept the executed copies of this Substitution
Certificate as being delivered pursuant to and for the purposes
of
clause 15.3 of the Loan Agreement so as to take effect in accordance
with the terms thereof on [date of
transfer].
|
|
4
|
The
New Lender:
|
|
(a)
|
confirms
that it has received a copy of the Loan Agreement, the Agency Agreement
and the other Security Documents together with such other documents
and
information as it has required in connection with the transaction
contemplated thereby;
|
|
(i)
|
confirms
that it has not relied and will not hereafter rely on the Existing
Lender
or the Facility Agent to check or enquire on its behalf into the
legality,
validity, effectiveness, adequacy, accuracy or completeness of
the Loan
Agreement, the Agency Agreement, any of the Security Documents
or any such
documents or information;
|
|
(ii)
|
agrees
that it has not relied and will not rely on the Existing Lender,
the
Facility Agent, the Security Trustee or the Lenders to assess or
keep
under review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of the Borrowers, or any other
Security Party (save as otherwise expressly provided
therein);
|
|
(iii)
|
warrants
that it has power and authority to become a party to the Loan Agreement
and the Agency Agreement and has taken all necessary action to
authorise
execution of this Substitution Certificate and to obtain all necessary
approvals and consents to the assumption of its obligations under
the Loan
Agreement, the Agency Agreement and the Security
Documents;
|
|
(iv)
|
acknowledges
and accepts the provisions of paragraph 4(iii) above;
and
|
|
(v)
|
if
not already a Lender, appoints the Facility Agent and the Security
Trustee
to act, respectively, as its agent and security trustee as provided
in the
Loan Agreement and the Security Documents and agrees to be bound
by the
terms of the Loan Agreement.
|
|
5
|
The
Existing Lender:
|
|
(a)
|
warrants
to the New Lender that it has full power to enter into this Substitution
Certificate and has taken all corporate action necessary to authorise
it
to do so;
|
|
(i)
|
warrants
to the New Lender that this Substitution Certificate is binding
on the
Existing Lender under the laws of England, the country in which
the
Existing Lender is incorporated and the country in which its lending
office is located; and
|
|
(ii)
|
agrees
that it will, at its own expense, execute any documents which the
New
Lender reasonably requests for perfecting in any relevant jurisdiction
the
New Lender’s title under this Substitution Certificate or for a similar
purpose.
|
|
6
|
The
New Lender hereby undertakes with the Existing Lender and each
of the
other parties to the Loan Agreement and the other Security Documents
that
it will perform in accordance with its terms all those obligations
which
by the terms of the Loan Agreement, the Agency Agreement and the
other
Security Documents will be assumed by it after delivery of the
executed
copies of this Substitution Certificate to the Facility Agent and
satisfaction of the conditions (if any) subject to which this Substitution
Certificate is expressed to take
effect.
|
|
7
|
By
execution of this Substitution Certificate on their behalf by the
Facility
Agent and in reliance upon the representations and warranties of
the New
Lender, the Borrowers and the Finance Parties accept the New Lender
as a
party to the Loan Agreement and the Security Documents with respect
to all
those rights and/or obligations which by the terms of the Loan
Agreement
and the Security Documents will be assumed by the New Lender (including
those about pro-rata sharing and the exclusion of liability on
the part
of, and the indemnification of, the Facility Agent as provided
by the Loan
Agreement and the Agency Agreement) after delivery of the executed
copies
of this Substitution Certificate to the Facility Agent and satisfaction
of
the conditions (if any) subject to which this Substitution Certificate
is
expressed to take effect.
|
|
8
|
None
of the Existing Lender or the other Finance
Parties:
|
|
(a)
|
makes
any representation or warranty nor assumes any responsibility with
respect
to the legality, validity, effectiveness, adequacy or enforceability
of
the Loan Agreement or any of the Security Documents or any document
relating thereto; or
|
|
(b)
|
assumes
any responsibility for the financial condition of the Borrowers
or any
other Security Party or any party to any such other document or
for the
performance and observance by the Borrowers or any other Security
Party or
any party to any such other document (save as otherwise expressly
provided
therein) and any and all such conditions and warranties, whether
express
or implied by law or otherwise, are hereby excluded (except as
aforesaid).
|
|
9
|
The
Existing Lender and the New Lender each undertake that they will
on demand
fully indemnify the Facility Agent in respect of any claim, proceeding,
liability or expense which relates to or results from this Substitution
Certificate or any matter concerned with or arising out of it unless
caused by the Facility Agent’s gross negligence or wilful misconduct, as
the case may be.
|
|
10
|
The
Existing Lender hereby declares that its rights as a beneficiary
of the
securities created pursuant to those of the Security Documents
governed by
French law are expressly reserved in accordance with Article 1278 of
the French Civil Code (Code Civil) and such reservation is hereby
expressly acknowledged and accepted by the New
Lender.
|
In
addition, the Existing Lender and the New Lender hereby undertake to notify
the
Borrowers of such reservation of rights and to obtain the acknowledgement
thereof from the Borrowers.
|
11
|
The
agreements and undertakings of the New Lender in this Substitution
Certificate are given to and for the benefit of and made with each
of the
other parties to the Loan Agreement and the Security
Documents.
|
|
12
|
This
Substitution Certificate is governed by, and shall be construed
in
accordance with, English law.
|
Existing
Lender New
Lender
By: By:
Dated: Dated:
Agent
Agreed
for and on behalf of itself as Facility Agent, the Security Trustee
the
Borrower, the Arranger and the Lenders
CALYON
By:
Dated:
Note: The
execution of this Substitution Certificate alone may not transfer a
proportionate share of the Existing Lender’s interest in the security
constituted by the Security Documents in the Existing Lender’s or New Lender’s
jurisdiction. It is the responsibility of the New Lender to ascertain
whether any other documents are required to perfect a transfer of such a
share
in the Existing Lender’s interest in such security in any such jurisdiction and,
if so, to seek appropriate advice and arrange for execution of the
same.
The
Schedule
Outstanding
Contribution: $•
Commitment:
$•
Portion
Transferred: •%
Administrative
Details of Transferee
Name
of
New Lender:
Lending
Office:
Contact
Person
(Loan
Administration Department):
Telephone:
Telefax
No:
Contact
Person
(Credit
Administration Department):
Telephone:
Telefax
No:
Account
for payments:
Schedule 6
Repayment
Schedules
Part
A
(Commercial
Lenders Tranche)
|
Repayment
Date
|
Ship
Tranche
(Hull
N°2238) ($)
|
Ship
Tranche
(Hull
N°2239) ($)
|
Ship
Tranche
(Hull
N°2240) ($)
|
|
1
|
0
|
0
|
0
|
|
2
|
0
|
0
|
0
|
|
3
|
0
|
0
|
0
|
|
4
|
0
|
0
|
0
|
|
5
|
0
|
0
|
0
|
|
6
|
0
|
0
|
0
|
|
7
|
0
|
0
|
0
|
|
8
|
0
|
0
|
0
|
|
9
|
0
|
0
|
0
|
|
10
|
0
|
0
|
0
|
|
11
|
0
|
0
|
0
|
|
12
|
0
|
0
|
0
|
|
13
|
0
|
0
|
0
|
|
14
|
0
|
0
|
0
|
|
15
|
0
|
0
|
0
|
|
16
|
0
|
0
|
0
|
|
17
|
0
|
0
|
0
|
|
18
|
0
|
0
|
0
|
|
19
|
0
|
0
|
0
|
|
20
|
0
|
0
|
0
|
|
21
|
0
|
0
|
0
|
|
22
|
0
|
0
|
0
|
|
23
|
0
|
0
|
0
|
|
24
|
0
|
0
|
0
|
|
25
|
0
|
0
|
0
|
|
26
|
0
|
0
|
0
|
|
27
|
0
|
0
|
0
|
|
28
|
0
|
0
|
0
|
|
29
|
0
|
0
|
0
|
|
30
|
0
|
0
|
0
|
|
31
|
0
|
0
|
0
|
|
32
|
0
|
0
|
0
|
|
33
|
0
|
0
|
0
|
|
34
|
0
|
0
|
0
|
|
35
|
0
|
0
|
0
|
|
36
|
0
|
0
|
0
|
|
37
|
0
|
0
|
0
|
|
38
|
0
|
0
|
0
|
|
39
|
0
|
0
|
0
|
|
40
|
0
|
0
|
0
|
|
41
|
0
|
0
|
0
|
|
42
|
0
|
0
|
0
|
|
43
|
0
|
0
|
0
|
|
44
|
0
|
0
|
0
|
|
45
|
0
|
0
|
0
|
|
46
|
0
|
0
|
0
|
|
47
|
0
|
0
|
0
|
|
final
maturity date
|
56,052,671
|
56,172,079
|
56,294,138
|
Part
B
(KEXIM
Tranche)
|
Tranche
A Vessel 2238
|
|||
|
Drawdown
|
Repayment
|
Loan
Outstanding
|
|
|
31-Oct-06
|
$99,649,193
|
|
$99,649,193
|
|
31-Jan-07
|
|
$2,076,025
|
$97,573,168
|
|
30-Apr-07
|
|
$2,076,025
|
$95,497,143
|
|
31-Jul-07
|
|
$2,076,025
|
$93,421,118
|
|
31-Oct-07
|
|
$2,076,025
|
$91,345,094
|
|
31-Jan-08
|
|
$2,076,025
|
$89,269,069
|
|
30-Apr-08
|
|
$2,076,025
|
$87,193,044
|
|
31-Jul-08
|
|
$2,076,025
|
$85,117,019
|
|
31-Oct-08
|
|
$2,076,025
|
$83,040,994
|
|
31-Jan-09
|
|
$2,076,025
|
$80,964,969
|
|
30-Apr-09
|
|
$2,076,025
|
$78,888,944
|
|
31-Jul-09
|
|
$2,076,025
|
$76,812,920
|
|
31-Oct-09
|
|
$2,076,025
|
$74,736,895
|
|
31-Jan-10
|
|
$2,076,025
|
$72,660,870
|
|
30-Apr-10
|
|
$2,076,025
|
$70,584,845
|
|
31-Jul-10
|
|
$2,076,025
|
$68,508,820
|
|
31-Oct-10
|
|
$2,076,025
|
$66,432,795
|
|
31-Jan-11
|
|
$2,076,025
|
$64,356,770
|
|
30-Apr-11
|
|
$2,076,025
|
$62,280,746
|
|
31-Jul-11
|
|
$2,076,025
|
$60,204,721
|
|
31-Oct-11
|
|
$2,076,025
|
$58,128,696
|
|
31-Jan-12
|
|
$2,076,025
|
$56,052,671
|
|
30-Apr-12
|
|
$2,076,025
|
$53,976,646
|
|
31-Jul-12
|
|
$2,076,025
|
$51,900,621
|
|
31-Oct-12
|
|
$2,076,025
|
$49,824,596
|
|
31-Jan-13
|
|
$2,076,025
|
$47,748,572
|
|
30-Apr-13
|
|
$2,076,025
|
$45,672,547
|
|
31-Jul-13
|
|
$2,076,025
|
$43,596,522
|
|
31-Oct-13
|
|
$2,076,025
|
$41,520,497
|
|
31-Jan-14
|
|
$2,076,025
|
$39,444,472
|
|
30-Apr-14
|
|
$2,076,025
|
$37,368,447
|
|
31-Jul-14
|
|
$2,076,025
|
$35,292,423
|
|
31-Oct-14
|
|
$2,076,025
|
$33,216,398
|
|
31-Jan-15
|
|
$2,076,025
|
$31,140,373
|
|
30-Apr-15
|
|
$2,076,025
|
$29,064,348
|
|
31-Jul-15
|
|
$2,076,025
|
$26,988,323
|
|
31-Oct-15
|
|
$2,076,025
|
$24,912,298
|
|
31-Jan-16
|
|
$2,076,025
|
$22,836,273
|
|
30-Apr-16
|
|
$2,076,025
|
$20,760,249
|
|
31-Jul-16
|
|
$2,076,025
|
$18,684,224
|
|
31-Oct-16
|
|
$2,076,025
|
$16,608,199
|
|
31-Jan-17
|
|
$2,076,025
|
$14,532,174
|
|
30-Apr-17
|
|
$2,076,025
|
$12,456,149
|
|
31-Jul-17
|
|
$2,076,025
|
$10,380,124
|
|
31-Oct-17
|
|
$2,076,025
|
$8,304,099
|
|
31-Jan-18
|
|
$2,076,025
|
$6,228,075
|
|
30-Apr-18
|
|
$2,076,025
|
$4,152,050
|
|
31-Jul-18
|
|
$2,076,025
|
$2,076,025
|
|
31-Oct-18
|
|
$2,076,025
|
$0
|
|
Tranche
B Vessel 2239
|
|||
|
Drawdown
|
Repayment
|
Loan
Outstanding
|
|
|
10-Jan-07
|
$99,861,474
|
|
$99,861,474
|
|
10-Apr-07
|
|
$2,080,447
|
$97,781,027
|
|
10-Jul-07
|
|
$2,080,447
|
$95,700,579
|
|
10-Oct-07
|
|
$2,080,447
|
$93,620,132
|
|
10-Jan-08
|
|
$2,080,447
|
$91,539,685
|
|
10-Apr-08
|
|
$2,080,447
|
$89,459,237
|
|
10-Jul-08
|
|
$2,080,447
|
$87,378,790
|
|
10-Oct-08
|
|
$2,080,447
|
$85,298,342
|
|
10-Jan-09
|
|
$2,080,447
|
$83,217,895
|
|
10-Apr-09
|
|
$2,080,447
|
$81,137,448
|
|
10-Jul-09
|
|
$2,080,447
|
$79,057,000
|
|
10-Oct-09
|
|
$2,080,447
|
$76,976,553
|
|
10-Jan-10
|
|
$2,080,447
|
$74,896,106
|
|
10-Apr-10
|
|
$2,080,447
|
$72,815,658
|
|
10-Jul-10
|
|
$2,080,447
|
$70,735,211
|
|
10-Oct-10
|
|
$2,080,447
|
$68,654,763
|
|
10-Jan-11
|
|
$2,080,447
|
$66,574,316
|
|
10-Apr-11
|
|
$2,080,447
|
$64,493,869
|
|
10-Jul-11
|
|
$2,080,447
|
$62,413,421
|
|
10-Oct-11
|
|
$2,080,447
|
$60,332,974
|
|
10-Jan-12
|
|
$2,080,447
|
$58,252,527
|
|
10-Apr-12
|
|
$2,080,447
|
$56,172,079
|
|
10-Jul-12
|
|
$2,080,447
|
$54,091,632
|
|
10-Oct-12
|
|
$2,080,447
|
$52,011,184
|
|
10-Jan-13
|
|
$2,080,447
|
$49,930,737
|
|
10-Apr-13
|
|
$2,080,447
|
$47,850,290
|
|
10-Jul-13
|
|
$2,080,447
|
$45,769,842
|
|
10-Oct-13
|
|
$2,080,447
|
$43,689,395
|
|
10-Jan-14
|
|
$2,080,447
|
$41,608,948
|
|
10-Apr-14
|
|
$2,080,447
|
$39,528,500
|
|
10-Jul-14
|
|
$2,080,447
|
$37,448,053
|
|
10-Oct-14
|
|
$2,080,447
|
$35,367,605
|
|
10-Jan-15
|
|
$2,080,447
|
$33,287,158
|
|
10-Apr-15
|
|
$2,080,447
|
$31,206,711
|
|
10-Jul-15
|
|
$2,080,447
|
$29,126,263
|
|
10-Oct-15
|
|
$2,080,447
|
$27,045,816
|
|
10-Jan-16
|
|
$2,080,447
|
$24,965,369
|
|
10-Apr-16
|
|
$2,080,447
|
$22,884,921
|
|
10-Jul-16
|
|
$2,080,447
|
$20,804,474
|
|
10-Oct-16
|
|
$2,080,447
|
$18,724,026
|
|
10-Jan-17
|
|
$2,080,447
|
$16,643,579
|
|
10-Apr-17
|
|
$2,080,447
|
$14,563,132
|
|
10-Jul-17
|
|
$2,080,447
|
$12,482,684
|
|
10-Oct-17
|
|
$2,080,447
|
$10,402,237
|
|
10-Jan-18
|
|
$2,080,447
|
$8,321,790
|
|
10-Apr-18
|
|
$2,080,447
|
$6,241,342
|
|
10-Jul-18
|
|
$2,080,447
|
$4,160,895
|
|
10-Oct-18
|
|
$2,080,447
|
$2,080,447
|
|
10-Jan-19
|
|
$2,080,447
|
$0
|
|
|
|
|
|
|
Tranche
C Vessel 2240
|
|||
|
Drawdown
|
Repayment
|
Loan
Outstanding
|
|
|
30-Apr-07
|
$100,078,468
|
|
$100,078,468
|
|
30-Jul-07
|
|
$2,084,968
|
$97,993,500
|
|
30-Oct-07
|
|
$2,084,968
|
$95,908,532
|
|
30-Jan-08
|
|
$2,084,968
|
$93,823,564
|
|
30-Apr-08
|
|
$2,084,968
|
$91,738,596
|
|
30-Jul-08
|
|
$2,084,968
|
$89,653,628
|
|
30-Oct-08
|
|
$2,084,968
|
$87,568,660
|
|
30-Jan-09
|
|
$2,084,968
|
$85,483,691
|
|
30-Apr-09
|
|
$2,084,968
|
$83,398,723
|
|
30-Jul-09
|
|
$2,084,968
|
$81,313,755
|
|
30-Oct-09
|
|
$2,084,968
|
$79,228,787
|
|
30-Jan-10
|
|
$2,084,968
|
$77,143,819
|
|
30-Apr-10
|
|
$2,084,968
|
$75,058,851
|
|
30-Jul-10
|
|
$2,084,968
|
$72,973,883
|
|
30-Oct-10
|
|
$2,084,968
|
$70,888,915
|
|
30-Jan-11
|
|
$2,084,968
|
$68,803,947
|
|
30-Apr-11
|
|
$2,084,968
|
$66,718,979
|
|
30-Jul-11
|
|
$2,084,968
|
$64,634,011
|
|
30-Oct-11
|
|
$2,084,968
|
$62,549,043
|
|
30-Jan-12
|
|
$2,084,968
|
$60,464,074
|
|
30-Apr-12
|
|
$2,084,968
|
$58,379,106
|
|
30-Jul-12
|
|
$2,084,968
|
$56,294,138
|
|
30-Oct-12
|
|
$2,084,968
|
$54,209,170
|
|
30-Jan-13
|
|
$2,084,968
|
$52,124,202
|
|
30-Apr-13
|
|
$2,084,968
|
$50,039,234
|
|
30-Jul-13
|
|
$2,084,968
|
$47,954,266
|
|
30-Oct-13
|
|
$2,084,968
|
$45,869,298
|
|
30-Jan-14
|
|
$2,084,968
|
$43,784,330
|
|
30-Apr-14
|
|
$2,084,968
|
$41,699,362
|
|
30-Jul-14
|
|
$2,084,968
|
$39,614,394
|
|
30-Oct-14
|
|
$2,084,968
|
$37,529,426
|
|
30-Jan-15
|
|
$2,084,968
|
$35,444,457
|
|
30-Apr-15
|
|
$2,084,968
|
$33,359,489
|
|
30-Jul-15
|
|
$2,084,968
|
$31,274,521
|
|
30-Oct-15
|
|
$2,084,968
|
$29,189,553
|
|
30-Jan-16
|
|
$2,084,968
|
$27,104,585
|
|
30-Apr-16
|
|
$2,084,968
|
$25,019,617
|
|
30-Jul-16
|
|
$2,084,968
|
$22,934,649
|
|
30-Oct-16
|
|
$2,084,968
|
$20,849,681
|
|
30-Jan-17
|
|
$2,084,968
|
$18,764,713
|
|
30-Apr-17
|
|
$2,084,968
|
$16,679,745
|
|
30-Jul-17
|
|
$2,084,968
|
$14,594,777
|
|
30-Oct-17
|
|
$2,084,968
|
$12,509,809
|
|
30-Jan-18
|
|
$2,084,968
|
$10,424,840
|
|
30-Apr-18
|
|
$2,084,968
|
$8,339,872
|
|
30-Jul-18
|
|
$2,084,968
|
$6,254,904
|
|
30-Oct-18
|
|
$2,084,968
|
$4,169,936
|
|
30-Jan-19
|
|
$2,084,968
|
$2,084,968
|
|
30-Apr-19
|
|
$2,084,968
|
$0
|
|
|
|
|
|
Schedule 7
Indicative
Schedule of Advances
|
|
Hull
2238
|
|
Hull
2239
|
|
Hull
2240
|
||||
|
Instalment
|
Commercial
|
KEXIM
|
Total
|
Commercial
|
KEXIM
|
Total
|
Commercial
|
KEXIM
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
Second
- Steel Cutting
|
$14,013,167.75
|
$24,912,298.25
|
$38,925,466.00
|
$14,043,019.75
|
$24,965,368.50
|
$39,008,388.25
|
$14,073,534.50
|
$25,019,617.00
|
$39,093,151.50
|
|
|
|
|
|
|
|
|
|
|
|
|
Third
- Keel Laying
|
$14,013,167.75
|
$24,912,298.25
|
$38,925,466.00
|
$14,043,019.75
|
$24,965,368.50
|
$39,008,388.25
|
$14,073,534.50
|
$25,019,617.00
|
$39,093,151.50
|
|
|
|
|
|
|
|
|
|
|
|
|
Fourth
- Launching
|
$14,013,167.75
|
$24,912,298.25
|
$38,925,466.00
|
$14,043,019.75
|
$24,965,368.50
|
$39,008,388.25
|
$14,073,534.50
|
$25,019,617.00
|
$39,093,151.50
|
|
|
|
|
|
|
|
|
|
|
|
|
Delivery
|
$14,013,167.75
|
$24,912,298.25
|
$38,925,466.00
|
$14,043,019.75
|
$24,965,368.50
|
$39,008,388.25
|
$14,073,534.50
|
$25,019,617.00
|
$39,093,151.50
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL
|
$56,052,671.00
|
$99,649,193.00
|
$155,701,864.00
|
$56,172,079.00
|
$99,861,474.00
|
$156,033,553.00
|
$56,294,138.00
|
$100,078,468.00
|
$156,372,606.00
|
|
|
|
|
|
|
|
|
|
|
|
|
$468,108,023.00
|
|||||||||
Execution
Page
Borrowers
SIGNED
by )
for
and
on behalf
of )
AL
MARROUNA
INC. )
pursuant
to a Power of
Attorney ) …………………………….
) Attorney
in-fact
SIGNED
by )
for
and
on behalf
of )
AL
AREESH
INC. )
pursuant
to a Power of
Attorney
) …………………………….
) Attorney
in-fact
SIGNED
by )
for
and
on behalf
of )
AL
DAAYEN
INC. )
pursuant
to a Power of
Attorney ) …………………………….
) Attorney
in-fact
Facility
Agent
SIGNED
by )
for
and
on behalf
of )
CALYON ) …………………………….
as
Facility Agent pursuant to
a ) Attorney-in-fact
Power
of
Attorney )
Security
Trustee
SIGNED
by )
for
and
on behalf
of )
CALYON ) …………………………….
as
Security Trustee pursuant to
a ) Attorney-in-fact
Power
of
Attorney )
Arranger
SIGNED
by )
for
and
on behalf
of
)
CALYON ) …………………………….
as
Arranger pursuant to
a ) Attorney-in-fact
Power
of
Attorney
)
KEXIM
SIGNED
by )
for
and
on behalf
of ) …………………………….
THE
EXPORT-IMPORT BANK OF
KOREA )
The
Commercial Lenders
SIGNED
by )
for
and
on behalf
of
)
CALYON ) …………………………….
as
a
Commercial Lender pursuant to
a
) Attorney-in-fact
Power
of
Attorney
)
SIGNED
by )
for
and
on behalf
of )
DnB
NOR BANK
ASA
) …………………………….
as
a
Commercial Lender pursuant to
a ) Attorney-in-fact
Power
of
Attorney )
SIGNED
by )
for
and
on behalf
of
)
THE
ROYAL BANK OF SCOTLAND
PLC
) …………………………….
as
a
Commercial Lender pursuant to
a ) Attorney-in-fact
Power
of
Attorney )
SIGNED
by )
for
and
on behalf
of )
ING
BANK
N.V.
) …………………………….
as
a
Commercial Lender pursuant to
a ) Attorney-in-fact
Power
of
Attorney )
SIGNED
by )
for
and
on behalf
of )
NORDEA
BANK NORGE
ASA )
GRAND
CAYMAN
BRANCH
) …………………………….
as
a
Commercial Lender pursuant to
a
) Attorney-in-fact
Power
of
Attorney
)
|
Date 2006
|
AL
MARROUNA INC. (formerly DSME HULL NO. 2238 INC.),
AL
AREESH INC. (formerly DSME HULL NO. 2239 INC.)
and
AL DAAYEN INC. (formerly DSME HULL NO. 2240 INC.
as
joint and several Borrowers (1)
CALYON
as
Arranger (2)
CALYON
as
Facility Agent (3)
CALYON
as
Security Trustee (4)
THE
EXPORT-IMPORT BANK OF KOREA
as
loan provider (5)
THE
BANKS AND FINANCIAL INSTITUTIONS
whose
names and addresses are set out in
Schedule
1 as Commercial Lenders (6)
TEEKAY
NAKILAT (II) LIMITED
as
Lessee (7)
TEEKAY
NAKILAT CORPORATION (8)
as
Shareholder
QATAR
GAS TRANSPORT COMPANY
LIMITED
(NAKILAT) (9)
as
guarantor
and
TEEKAY
SHIPPING CORPORATION (10)
as
Original Guarantor
|
SECOND
SUPPLEMENTAL AGREEMENT
relating
to a US$468,108,023 loan to
finance
three LNG tankers to be time chartered to Ras Laffan Liquefied
Natural
Gas
Company Limited II
|
Contents
| Clause Page |
Page
|
| 1 Definitions | 2 |
| 2 Consent of the Finance Parties | 3 |
| 3 Amendments to Original Loan Agreement | 3 |
| 4 Representations and warranties | 4 |
| 5 Conditions | 5 |
| 6 Relevant Parties’ confirmations | 6 |
| 7 Expenses | 7 |
| 8 Miscellaneous and notices | 8 |
|
9 Applicable
law
|
8 |
|
Schedule 1
The Lenders
|
10
|
| Schedule 2 Documents and evidence required as conditions precedent | 14 |
| Schedule 3 Amendments to Original Loan Agreement | 16 |
| Schedule 4 Form of Effective Date Notice | 18 |
| Schedule 5 Form of New Guarantee | 19 |
THIS
SECOND SUPPLEMENTAL AGREEMENT is
dated August 2006 and
made BETWEEN:
|
(1)
|
AL
MARROUNA INC. (formerly DSME HULL NO. 2238 INC.), AL
AREESH INC. (formerly DSME HULL NO. 2239 INC.) and AL
DAAYEN INC. (formerly DSME HULL NO. 2240 INC.) as joint and
several Borrowers;
|
|
(2)
|
CALYON
as Arranger;
|
|
(3)
|
CALYON
as Facility Agent;
|
|
(4)
|
CALYON
as Security Trustee;
|
|
(5)
|
THE
EXPORT-IMPORT BANK OF KOREA as
KEXIM;
|
|
(6)
|
THE
BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are
set out in Schedule 1 (the “Commercial Lenders” and,
together with KEXIM, the
“Lenders”);
|
|
(7)
|
TEEKAY
NAKILAT (II) LIMITED as
Lessee;
|
|
(8)
|
TEEKAY
NAKILAT CORPORATION as
Shareholder;
|
|
(9)
|
QATAR
GAS TRANSPORT COMPANY LIMITED (NAKILAT) as QGTC;
and
|
|
(10)
|
TEEKAY
SHIPPING CORPORATION (the “Original
Guarantor”).
|
WHEREAS:
|
(A)
|
this
Agreement is supplemental to a loan agreement dated 15 December 2004,
as
amended and restated pursuant to a supplemental agreement dated 15
December 2005 (as so amended and restated, the “Original Loan
Agreement”) made between (1) the Borrowers, (2) the Arranger, (3)
the Facility Agent, (4) the Security Trustee, (5) KEXIM and (6) the
Commercial Lenders, pursuant to which the Lenders agreed to make
available
to the Borrowers jointly and severally a loan of up to an aggregate
amount
of four hundred and sixty eight million, one hundred and eight thousand
and twenty three Dollars ($468,108,023) upon the terms and conditions
therein set out, to be used for the purposes of financing part of
the cost
of the purchase of the Ships;
|
|
(B)
|
by
a corporate guarantee dated 15 December 2004, as amended by a supplemental
letter dated 15 December 2005 and a waiver letter dated 20 January
2006
(as so amended, the “Original Guarantee”) made between
the Original Guarantor and (2) the Security Trustee, the Original
Guarantor agreed to guarantee the obligations of the Borrowers to
the
Lenders under the Original Loan Agreement and the other Security
Documents; and
|
|
(C)
|
the
Borrowers have requested, (1) that the Commercial Lenders consent
to an
amendment to the Original Loan Agreement to reflect a proposed change
to
the interest margin payable to the Commercial Lenders and (2) as
contemplated by clause 17.9 of the Original Loan Agreement, the Lenders
agree to the provision of a new guarantee by Teekay LNG Partners
L.P. (the
“New Guarantor”) and this Agreement sets out the terms
and conditions upon which the Finance Parties shall, at the request
of the
Borrowers, agree to such changes.
|
|
1
|
Definitions
|
|
1.1
|
Defined
expression
|
Words
and
expressions defined in the Loan Agreement (as defined below) shall unless the
context otherwise requires or unless otherwise defined herein, have the same
meanings when used in this Agreement.
|
1.2
|
Definitions
|
In
this
Agreement unless the context otherwise requires:
“Effective
Date” means the date on which the Effective Date Notice is executed and
dated by the Facility Agent;
“Effective
Date Notice” means a notice in the form set out in Schedule
4;
“Loan
Agreement” means the Original Loan Agreement as amended by this
Agreement;
“New
Guarantee” means the guarantee executed or to be executed by the New
Guarantor in favour of the Security Trustee in respect of the obligations of
the
Borrowers to the Finance Parties under the Loan Agreement and the Security
Documents in the form set out in Schedule 5;
“Relevant
Documents” means this Agreement and the New Guarantee together with all
notices, consents, certificates and other documents and agreements issued or,
as
the case may be, to be issued pursuant to the matters referred to in Recital
(C)
in the form approved by the Finance Parties; and
“Relevant
Parties” means the Borrowers, the Lessee, the Shareholder, QGTC and
(except in respect of clause 4.1.1) the Original Guarantor.
|
1.3
|
Loan
Agreement
|
References
in any of the Security Documents (other than the Loan Agreement) which remain
in
effect following the Effective Date to the Original Loan Agreement shall, with
effect from the Effective Date and unless the context otherwise requires, be
references to the Original Loan Agreement as amended by this Agreement and
shall
also be deemed to include this Agreement and the obligations of the Borrowers
hereunder and words such as “therein”, “thereof”, “thereunder”, “thereafter”,
“thereby” and “thereto”, where they appear in such documents, shall be construed
accordingly.
|
1.4
|
New
Guarantee
|
References
in any of the Security Documents which remain in effect following the Effective
Date to the “Teekay Guarantee” shall, with effect from the Effective Date and
unless the context otherwise requires, be references to the New Guarantee and
words such as “herein”, “hereof”, “hereafter”, “hereunder”, “hereby”, and
“hereto”, where they appear in such Documents, shall be construed
accordingly.
|
1.5
|
Headings
|
Clause headings
and the table of contents are inserted for convenience of reference only and
shall be ignored in the interpretation of this Agreement.
|
1.6
|
Construction
of certain terms
|
Clause 1.4
of the Original Loan Agreement shall apply to this Agreement (mutatis mutandis)
as if set out herein and as if references therein to “this Agreement” were
references to this Agreement and references therein to “clauses” and “Schedules”
were references to clauses of, and Schedules to, this Agreement.
|
1.7
|
Contracts
(Rights of Third Parties Act)
1999
|
No
term
of this Agreement is enforceable under the Contracts (Rights of Third Parties)
Xxx 0000 by a person who is not a party to this Agreement.
Each
of
the Finance Parties, relying upon the representations and warranties on the
part
of the Relevant Parties contained in clause 4, agrees
with the Relevant Parties, subject to the terms and conditions of this Agreement
and in particular, but without prejudice to the generality of the foregoing,
fulfilment of the conditions contained in clause 5 and Schedule 2, (a) to the amendment of the Original
Loan Agreement on the terms set out in clause 3 and Schedule 3, (b) to the
replacement of the Original Guarantee with the New Guarantee and (c) to the
release and discharge of all liabilities and obligations of the Original
Guarantor under the Original Guarantee.
|
3.1
|
Loan
Agreement
|
The
Original Loan Agreement shall, with effect on and from the Effective Date,
be
(and it is hereby) amended in accordance with the provisions set out in Schedule
3 (and the Loan Agreement (as so amended) will continue to be binding upon
the
Finance Parties and the Borrowers upon such terms as so amended).
|
3.2
|
Continued
force and effect
|
Save
as
amended by this Agreement, the provisions of the Original Loan Agreement shall
continue in full force and effect and the Original Loan Agreement and this
Agreement shall be read and construed as one instrument.
|
3.3
|
Effective
Date
|
If
the
Effective Date does not occur on or prior to 31 September 2006, then this
Agreement and the rights and obligations of each of the parties hereunder shall
cease to have any force or effect and the Original Loan Agreement shall continue
in full force and effect in its original forms unamended and not restated
pursuant to this Agreement.
It
is
further acknowledged by all parties hereunder that prior to the Effective Date,
the provisions of the Original Loan Agreement shall continue in full force
and
effect unaffected by the provisions of this Agreement.
|
4.1
|
Primary
representations and
warranties
|
Each
of
the Relevant Parties represents and warrants to each of the Finance Parties
that:
|
4.1.1
|
Existing
representations and
warranties
|
the
representations and warranties set out in clause 7 of the Original Loan
Agreement and clause 4 of the QGTC Guarantee were true and correct on the date
of the Original Loan Agreement and the QGTC Guarantee respectively and such
representations and warranties are true and correct, including to the extent
that they may have been or shall be amended by this Agreement, as if made at
the
date of this Agreement with reference to the facts and circumstances existing
at
such date;
|
4.1.2
|
Corporate
power
|
each
of
the Relevant Parties has power to execute, deliver and perform its obligations
under the Relevant Documents to which it is or is to be a party, and all
necessary corporate, shareholder and other action has been taken by each of
the
Relevant Parties to authorise the execution, delivery and performance of the
Relevant Documents to which it is or is to be a party;
|
4.1.3
|
Binding
obligations
|
the
Relevant Documents to which it is or is to be a party constitute or will, when
executed, constitute valid and legally binding obligations of each of the
Relevant Parties enforceable in accordance with their respective terms save
as
such enforcement may be restricted by laws affecting rights of creditors
generally;
|
4.1.4
|
No
conflict with other
obligations
|
the
execution, delivery and performance of the Relevant Documents to which it is
or
is to be a party by each of the Relevant Parties will not (a) contravene any
existing law, statute, rule or regulation or any judgment, decree or permit
to
which any of the Relevant Parties is subject, (b) conflict with, or result
in any breach of any of the terms of, or constitute a default under, any
agreement or other instrument to which any of the Relevant Parties is a party
or
is subject or by which it or any of its property is bound or (c) contravene
or conflict with any provision of the memorandum and articles of
association or other constitutional documents of any of the Relevant Parties
or
(d) result in the creation or imposition of or oblige any of the Relevant
Parties to create any Encumbrance (other than a Permitted Encumbrance) on any
of
the undertaking, assets, rights or revenues of any of the Relevant
Parties;
|
4.1.5
|
No
filings required
|
it
is not
necessary to ensure the legality, validity, enforceability or admissibility
in
evidence of any of the Relevant Documents that they or any other instrument
be
notarised,
filed, recorded, registered or enrolled in any court, public office or elsewhere
in any Relevant Jurisdiction or that any stamp, registration or similar tax
or
charge be paid in any Relevant Jurisdiction on or in relation to the Relevant
Documents and each of the Relevant Documents is in proper form for its
enforcement in the courts of each Relevant Jurisdiction;
|
4.1.6
|
Pari
Passu
|
the
obligations of such Relevant Parties under the Relevant Documents to which
it is
a party are direct, general and unconditional obligations of such Relevant
Party
and rank at least pari passu with all other present and future unsecured and
unsubordinated Indebtedness of such Relevant Party;
|
4.1.7
|
Choice
of law
|
the
choice of English law to govern the Relevant Documents and the submissions
by
the Relevant Parties to the non-exclusive jurisdiction of the English courts
are
valid and binding; and
|
4.1.8
|
Consents
obtained
|
every
consent, authorisation, licence or approval of, or registration or declaration
to, governmental or public bodies or authorities or courts required by any
of
the Relevant Parties in connection with the execution, delivery, validity,
enforceability or admissibility in evidence of the Relevant Documents to which
it is or will become a party or the performance by any of the Relevant Parties
of their respective obligations under such documents has been obtained or made
and is in full force and effect and there has been no default in the observance
of any conditions or restrictions (if any) imposed in, or in connection with,
any of the same.
|
4.2
|
Repetition
of representations and
warranties
|
Each
of
the representations and warranties contained in clause 4.1 of this Agreement, clause 7 of the Loan
Agreement and clause 4 of the QGTC Guarantee shall be deemed to be repeated
by
the Borrowers and QGTC respectively on the Effective Date as if made with
reference to the facts and circumstances existing on such day.
|
4.3
|
Legal
qualifications
|
As
regards the representations and warranties set out in clauses 4.1.2 to 4.1.8
to
the extent that the subject matter of those representations and warranties
is
within the scope of any legal opinion provided to the Finance Parties, such
representations and warranties shall be qualified by reference to any
qualification, reservation or exception as to matters of law contained in such
legal opinions but excluding any assumptions or references to matters of
fact.
The
consent of the Finance Parties referred to in clause 2
shall be subject to the receipt by the Facility Agent or its duly authorised
representative of the documents and
evidence
specified in Schedule 2 in form and substance satisfactory to the Facility
Agent.
|
5.2
|
General
conditions precedent
|
The
consent of the Finance Parties referred to in clause 2
shall be further subject to:
|
5.2.1
|
the
representations and warranties in clause 4 being
true and correct on the Effective Date as if each was made with respect
to
the facts and circumstances existing at such time;
and
|
|
5.2.2
|
no
Default having occurred and be continuing at the time of the Effective
Date.
|
|
5.3
|
Waiver
of conditions precedent
|
The
conditions specified in this clause 5 are inserted solely for the benefit
of the Finance Parties and may be waived on their behalf by the Facility Agent
acting on the instructions of the Majority Lenders in whole or in part with
or
without conditions.
|
6.1
|
QGTC
hereby confirms its consent to the amendments to the Original Loan Agreement
contained in this Agreement and agrees that:
|
6.1.1
|
the
QGTC Guarantee, and the obligations of QGTC thereunder, shall remain
and
continue in full force and effect notwithstanding the said amendments
to
the Original Loan Agreement contained in this Agreement;
and
|
|
6.1.2
|
with
effect from the Effective Date references in the QGTC Guarantee to
the
“Agreement” shall henceforth be reference to the Original Loan Agreement
as amended by this Agreement and as from time to time hereafter amended
and shall also be deemed to include this Agreement and the obligations
of
the Borrowers hereunder.
|
|
6.2
|
Security
Documents
|
Each
of
the Relevant Parties hereby confirms its consent to the amendments to the
Original Loan Agreement contained in this Agreement and agrees
that:
|
6.2.1
|
the
Security Documents to which it is a party and its obligations thereunder
(to the extent not already released or which otherwise remain in
existence
following the Effective Date), shall remain and continue in full
force and
effect notwithstanding the said amendments to the Original Loan Agreement
contained in this Agreement;
|
|
6.2.2
|
with
effect from the Effective Date references in any of the Security
Documents
to the Original Loan Agreement shall henceforth be reference to the
Original Loan Agreement as amended by this Agreement and as from
time to
time hereafter amended and shall also be deemed to include this Agreement
and the obligations of the Borrowers hereunder;
and
|
|
6.2.3
|
with
effect from the Effective Date, the Original Guarantor shall cease
to be a
“Security Party” for the purposes of the Loan
Agreement.
|
|
6.3
|
Commercial
Tranche Margin
|
Each
of the Relevant Parties hereby (a) confirms its consent to the amendment to
the
Commercial Tranche Margin in accordance with the provisions set out in clause
3.1 and Schedule 3 paragraph 1 and (b) confirms that such amendments shall
be
deemed to take effect from 25 July 2006 in accordance with the provisions of
a
side letter dated 25 July 2006 made between the Borrowers and the Commercial
Lenders.
|
7
|
|
7.1
|
The
Borrowers agree to pay to the Facility Agent on a full indemnity basis on demand
all expenses (including legal, consular and registration expenses) incurred
by
the Facility Agent and any of the other Finance Parties:
|
7.1.2
|
in
contemplation of, or otherwise in connection with, the enforcement
of, or
preservation of any rights under any of the Relevant Documents or
otherwise in respect of the moneys owing and obligations incurred
under
any of the Relevant Documents,
|
together
with interest at the rate referred to in clause 3.3 of the Loan Agreement from
the date on which such expenses were incurred to the date of payment (as well
after as before judgment).
|
7.2
|
Value
Added Tax
|
All
expenses payable pursuant to this clause 7 shall be paid together with
value added tax or any similar tax (if any) properly chargeable
thereon. Any value added tax chargeable in respect of any services
supplied by the Facility Agent under this Agreement shall, on delivery of the
value added tax invoice, be paid in addition to any sum agreed to be paid
hereunder.
|
7.3
|
Stamp
and other duties
|
The
Borrowers agree to pay to the Facility Agent on demand all stamp, documentary,
registration or other like duties or taxes (including any duties or taxes
payable by the Facility Agent
and
any
of the other Finance Parties) imposed on or in connection with this Agreement,
the other Relevant Documents and shall indemnify the Facility Agent and the
any
of the other Finance Parties against any liability arising by reason of any
delay or omission by the Borrowers to pay such duties or taxes.
|
8.1
|
Notices
|
The
provisions of clause 17.1 of the Loan Agreement and clause 7.1 of the QGTC
Guarantee shall extend and apply to the giving or making of notices or demands
hereunder as if the same were expressly stated herein.
|
8.2
|
Counterparts
|
This
Agreement may be executed in any number of counterparts and by the different
parties on separate counterparts and, provided each of the parties shall so
execute this Agreement, each of the executed counterparts, when duly exchanged
or delivered, shall be deemed to be an original but, taken together, they shall
constitute one instrument.
|
8.3
|
Partial
invalidity
|
If,
at
any time, any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision in any other respect
or
under the law of any other jurisdiction will be affected or impaired in any
way.
|
9.1
|
Law
|
This
Agreement is governed by and shall be construed in accordance with English
law.
|
9.2
|
Submission
to jurisdiction
|
Each
of
the Relevant Parties agrees, for the benefit of the Facility Agent and the
other
Finance Parties or any of them, that any legal action or proceedings arising
out
of or in connection with this Agreement against any of the Relevant Parties
or
any of their assets may be brought in the English courts. Each of the
Relevant Parties irrevocably and unconditionally submits to the jurisdiction
of
such courts and each Relevant Party (apart from the Lessee) irrevocably
designates, appoints and empowers Teekay Shipping (UK) Limited at present of
0xx
Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX to receive for it and on its behalf,
service of process issued out of the English courts in any such legal action
or
proceedings. The submission to such jurisdiction shall not (and shall
not be construed so as to restrict the right of the Facility Agent and the
other
Finance Parties or any of them to take proceedings against any of the Relevant
Parties in the courts of any other competent jurisdiction nor shall the taking
of proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or
not. The parties further agree that only the Courts of England and
not those of any other state shall have jurisdiction to determine any claim
which any of the Relevant Parties may have against the Facility Agent and the
other Finance Parties or any of them arising out of or in connection with this
Agreement.
IN
WITNESS whereof the parties to this Agreement have caused this
Agreement to be duly executed on the date first above written.
Schedule 1
The
Lenders
|
Name
|
Address
and fax number
|
|
The
Export-Import
Bank
of Korea
|
Lending
Office
The
Export – Import Bank Of Korea
00-0,
Xxxxx-xxxx, Xxxxxxxxxxxx-xx
Xxxxx,
000-000
Xxxxx
Address
for Notices
The
Export – Import Bank Of Korea
Ship
Financing Department
00-0,
Xxxxx-xxxx, Xxxxxxxxxxxx-xx
Xxxxx,
000-000
Xxxxx
Fax: +
822 3779 6745
Attn: Ship
Financing Department
|
|
Calyon
|
Lending
Office
Calyon
0
Xxxx xx Xxxxxxxxx Xxxx Xxxxxx,
00000
Xxxxx
La
Defense Cedex
France
Address
for Notices
Address:
Calyon
0
Xxxx xx Xxxxxxxxx Xxxx Xxxxxx,
00000
Xxxxx
La
Défense Cedex
France
Fax:
x00 (0) 0 00 00 00 87
Attn:
Shipping Department
|
|
Copy
to:
Calyon,
London Shipping Department
000
Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X
0XX
Fax: x00
00 0000 0000
Attn: Head
of Shipping
|
|
|
DnB
NOR Bank ASA
|
Lending
Office
DNB
Nor Bank ASA
0021
Oslo
Norway
Address
for Notices (Credit Issues)
DNB
Nor Bank XXX
0000
Xxxxxx
Xxxxxx
Fax:
x00 00 00 00 00
Attn:
Xxxx Xxxxxxxxx Xxxx
Address
for Notices (Operational Issues)
XXX
Xxx Xxxx XXX
0000
Xxxx
Xxxxxx
Fax:
x00 00 00 00 00
Attn:
Credit Administration
|
|
The
Royal Bank of
Scotland
plc
|
Lending
Office
Address:
The
Royal Bank of Scotland plc
Shipping
Business Centre
0-00
Xxxxx Xxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
|
|
Address
for Notices
Address:
The
Royal Bank of Scotland plc
Shipping
Business Centre
0-00
Xxxxx Xxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
Fax: x00
000 000 0000
Attn:
Colin Manchester
|
|
|
ING
Bank N.V.
|
Lending
Office
Address:
ING
Bank N.V.
00
Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
Address
for Notices
Address:
ING
Bank N.V.
00
Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
Fax:
x00 000 000 0000
Attn:
Xxxx Xxxxx
|
|
Nordea
Bank Norge
ASA
Grand Cayman
Branch
|
Lending
Office
Nordea
Bank Norge ASA Grand Cayman Branch
000
Xxxxxxx Xxx
Xxx
Xxxx, XX 00000
Address
for Notices (Credit Issues)
Nordea
Bank Norge ASA Grand Cayman Branch
000
Xxxxxxx Xxx
Xxx
Xxxx, XX 00000
Fax:
+ 0 000 000 0000
Attn:
Xxxx Xxxxxxxxx Kjelsrud
Address
for Notices (Operational Issues)
Nordea
Bank Norge ASA Grand Cayman Branch
000
Xxxxxxx Xxx
Xxx
Xxxx, XX 00000
Fax:
+ 0 000 000 0000
Attn:
Xxxxxxxxxx Xx
|
Schedule 2
Documents
and evidence required as conditions precedent
(referred
to in clause 5.1)
|
1.
|
Relevant
Parties’ and New Guarantor’s constitutional
documents
|
copies,
certified by the secretary, a director, an officer, a sole member or a general
partner, as the case may be, of each of the Relevant Parties and the New
Guarantor as true, complete and up to date copies of all documents which
contain
or establish or relate to the constitution or formation each of the Relevant
Parties and the New Guarantor or, in respect of the Relevant Parties only,
confirmation from such parties that their respective constitutional documents
have not changed since 15 December 2005;
|
2.
|
Relevant
Parties’ and New
Guarantor’s corporate
authorisations
|
copies
of
resolutions of the directors, sole member or partners, as the case may be
and,
in respect of the Borrowers only, the shareholders of each of the Relevant
Parties and the New Guarantor approving each of the Relevant Documents to
which
such Relevant Parties or, as the case may be, the New Guarantor are party
and
authorising the signature, delivery and performance of such Relevant Parties’
and the New Guarantor’s obligations thereunder, certified (in a certificate
dated no earlier than five (5) Banking Days prior to the date of this Agreement)
by the secretary, a director, a sole member or a general partner, as the
case
may be, of such Relevant Party and the New Guarantor as:
(a) being
true and correct;
(b) being
duly passed at meeting of the directors, sole member or partners, as the
case
may be of such Relevant Party or, as the case may be, the New Guarantor duly
convened and held;
(c) not
having been amended, modified or revoked; and
(d) being
in full force and effect
together
with originals or certified copies of any powers of attorney issued by such
Relevant Parties and the New Guarantor pursuant to such
resolutions;
|
3.
|
Relevant
Parties’ and New
Guarantor’s incumbency
certificate
|
an
original certificate signed by a duly authorised signatory of each of the
Relevant Parties and the New Guarantor no earlier than five (5) Banking Days
prior to the date of this Agreement certifying the names of the officers
and
directors of the relevant Relevant Party or, as the case may be, the New
Guarantor;
|
4.
|
Relevant
Parties’ and the New
Guarantor’s process agent
|
with
the
exception of the Lessee, a copy, certified as a true copy by a duly authorised
signatory of each of the Relevant Parties and the New Guarantor or other
person
acceptable to the Facility Agent of a letter from each of the Relevant Parties’
and the
New
Guarantor’s agent for receipt of service of proceedings referred to in
clause 18.3 of the Loan Agreement accepting its appointment under the Loan
Agreement and each of the other Relevant Documents (including this Agreement)
in
which it is or is to be appointed as the Relevant Parties’ and the New
Guarantor’s agent and confirming that its appointment has become
effective;
|
5.
|
Original
Guarantee
|
|
|
the
Original Guarantee duly discharged and returned to the Original
Guarantor;
|
|
6.
|
New
Guarantee
|
|
|
original
executed copy of the New
Guarantee; and
|
|
7.
|
Legal
opinion
|
a
legal
opinion of Cozen X’Xxxxxx, legal counsel to the Finance Parties on matters of
Xxxxxxxx Islands law in respect of the New Guarantor.
Schedule 3
Amendments
to Original Loan Agreement
|
1
|
The
definition of “Commercial Tranche Margin” in clause 1.2 of the Original
Loan Agreement shall be amended to reads as
follows:
|
“”Commercial
Tranche Margin” means zero point six seven five per cent. (0.675%) per
annum;”.
|
2
|
The
definition of “Intra-Group Transactions” in clause 1.2 of the Original
Loan Agreement shall be deleted and replaced with the following
new
definition:
|
““Intra-Group
Transactions” means (i) transactions and dealings between two or more
Security Parties who are members of the Teekay Guarantor Group and (ii) prior
to
the Shareholding Transfer Date, loans to each Borrower made by Teekay Shipping
Corporation, whether directly or through a Subsidiary or
Subsidiaries;”.
|
3
|
In
clause 1.2 of the Original Loan Agreement, the following new definition
shall be added:
|
““Shareholding
Transfer Date” means the date on which the direct or indirect
shareholding interest of Teekay Shipping Corporation in each Borrower is
transferred to the Teekay Guarantor;”.
|
4
|
The
definition of “Subsidiary” in clause 1.2 of the Original Loan Agreement
shall be amended to read as
follows:
|
“”Subsidiary”
of a person means any company or entity directly or indirectly controlled
by
such person, and for this purpose “control” means either the
ownership of more than fifty per cent. (50%) of the voting share capital
(or
equivalent rights of ownership) of such company or entity or the power to
direct
its policies and management, whether by contract or otherwise;”.
|
5
|
The
definition of “Teekay Guarantor” in clause 1.2 of the Original Loan
Agreement shall be deleted and replaced with the following new
definition:
|
“”Teekay
Guarantor” means Teekay LNG Partners L.P. of Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx XX
00000;”.
|
6
|
Clause
10.1.22 of the Original Loan Agreement shall be deleted and replaced
with
the following new definition:
|
“”Change
of Control: means there is a change in control of any Security Party
other than QGTC (whether or not by reference to a change in the majority
ownership of shares in such Security Party or by reference to a change in
the
composition of the board of directors or equivalent management body of such
Security Party) without the prior written consent of the Facility Agent (acting
on the instructions of the Majority Lenders), provided that
|
(a)
|
so
long as the Teekay Guarantor or, prior to the Shareholding Transfer
Date,
Teekay Shipping Corporation continues to
have:
|
|
(i)
|
legally
or beneficially and either directly or indirectly more than fifty
per
cent. (50%) of the entire issued share capital of a Security Party
other
than QGTC; or
|
|
(ii)
|
the
right or ability to control, either directly or indirectly, the
affairs,
or the composition of the board of directors (or equivalent of
it), of
such Security Party other than
QGTC,
|
there
shall not be any change in control in such Security Party; and
|
(b)
|
on
and from the Shareholding Transfer Date, so long as Teekay Shipping
Corporation or a Subsidiary of Teekay Shipping Corporation remains
the
general partner of the Teekay Guarantor, a change in control in
relation
to the Teekay Guarantor shall not occur by reason of any changes
from time
to time in the ownership of partner interests in the Teekay Guarantor;
or;
“.
|
|
7
|
Clause
17.9 of the Original Loan Agreement shall be deleted in its entirety
and
replaced with the following new
clause:
|
“17.9The
Teekay Guarantor
The
parties to this Agreement acknowledge that the Teekay Guarantor is to acquire
the whole shareholding interest of Teekay Shipping Corporation in the Borrowers
on or about the Delivery Date.”.
|
8
|
Clause
18.3 of the Original Loan Agreement shall be amended by deleting
reference
to “00 Xx. Xxxxx’x Xxxxxx, Xxxxxx XX0X 0XX” and replacing it with
reference to “0xx Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxx XX0X
0XX”.
|
Schedule 4
Form
of Effective Date Notice
We
refer
to the second supplemental agreement dated [·] 2006
(the
“SecondSupplemental Agreement”) between (1) AL
MARROUNA INC. (formerly DSME Hull No. 2238 Inc.), AL AREESH INC. (formerly
DSME
Hull No. 2239 Inc.) and AL DAAYEN INC. (formerly DSME Hull No. 2240 Inc.)
as
joint and several borrowers (the “Borrowers”),
(2) Calyon as arranger (the “Arranger”),
(3) Calyon as facility agent (the “Facility Agent”), (4) Calyon
as security trustee (the “Security Trustee”), (5) The
Export-Import Bank of Korea (“KEXIM”), (6) certain banks and
financial institutions whose names and addresses are set out in Schedule
1 of
the Second Supplemental Agreement (the “Commercial Lenders”),
(7) Teekay Nakilat (II) Limited as lessee, (8) Teekay Nakilat Corporation
as shareholder, (9) Qatar Gas Transport Company Limited (Nakilat) as guarantor
and (10) Teekay Shipping Corporation as original guarantor in respect of
a loan
agreement dated 15 December 2004 (as amended and restated from time to time)
made between (1) the Borrowers, (2) the Arranger, (3) the Facility Agent,
(4)
the Security Trustee, (5) KEXIM and (6) the Commercial Lenders in respect
of a
loan of up to an aggregate amount of four hundred and sixty eight million,
one
hundred and eight thousand and twenty three Dollars ($468,108,023) made
available by the KEXIM and the Commercial Lenders to the Borrowers jointly
and
severally for the purposes of financing part of the cost of the purchase
of
three LNG tankers.
We
hereby
give you notice that we have received the documents and evidence specified
in
clause 5 of, and Schedule 2 to, the Second Supplemental Agreement in a form
and substance satisfactory to us and confirm that for the purposes of the
Second
Supplemental Agreement the Effective Date is [·] 2006.
This
notice shall be governed by and construed in accordance with the laws of
England.
…………………………………………………..
for
and
on behalf of
CALYON
as
Facility Agent
Schedule 5
Form
of New Guarantee
Execution
Page
Borrowers
SIGNED
by
)
for
and
on behalf
of
)
AL
MARROUNA
INC.
)
pursuant
to a Power of
Attorney
) …………………………….
) Attorney in-fact
SIGNED
by
)
for
and
on behalf
of )
AL
AREESH
INC. )
pursuant
to a Power of
Attorney
) …………………………….
) Attorney
in-fact
SIGNED
by
)
for
and
on behalf
of
)
AL
DAAYEN
INC. )
pursuant
to a Power of
Attorney ) …………………………….
) Attorney
in-fact
Facility
Agent
SIGNED
by
)
for
and
on behalf
of )
CALYON
) …………………………….
as
Facility Agent pursuant to
a ) Attorney-in-fact
Power
of
Attorney )
Security
Trustee
SIGNED
by
)
for
and
on behalf
of )
CALYON ) …………………………….
as
Security Trustee pursuant to
a ) Attorney-in-fact
Power
of
Attorney )
Arranger
SIGNED
by
)
for
and
on behalf
of )
CALYON
) …………………………….
as
Arranger pursuant to
a ) Attorney-in-fact
Power
of
Attorney
)
KEXIM
SIGNED
by
)
for
and
on behalf
of ) …………………………….
THE
EXPORT-IMPORT BANK OF
KOREA
) Attorney-in-fact
pursuant
to a Power of
Attorney )
The
Commercial Lenders
SIGNED
by
)
for
and
on behalf
of )
CALYON
) …………………………….
as
a
Commercial Lender pursuant to
a ) Attorney-in-fact
Power
of
Attorney )
SIGNED
by
)
for
and
on behalf
of
)
DnB
NOR BANK
ASA ) …………………………….
as
a
Commercial Lender pursuant to
a ) Attorney-in-fact
Power
of
Attorney )
SIGNED
by
)
for
and
on behalf
of )
THE
ROYAL BANK OF SCOTLAND
PLC ) …………………………….
as
a
Commercial Lender pursuant to
a ) Attorney-in-fact
Power
of
Attorney
)
SIGNED
by
)
for
and
on behalf
of )
ING
BANK
N.V.
) …………………………….
as
a
Commercial Lender pursuant to
a ) Attorney-in-fact
Power
of
Attorney )
SIGNED
by
)
for
and
on behalf
of )
NORDEA
BANK NORGE
ASA )
GRAND
CAYMAN
BRANCH ) …………………………….
as
a
Commercial Lender pursuant to
a ) Attorney-in-fact
Power
of
Attorney )
Lessee
SIGNED
by )
for
and
on behalf
of ) …………………………….
TEEKAY
NAKILAT (II)
LIMITED ) Attorney-in-fact
as
Lessee
pursuant to
a
Power
of Attorney
Shareholder
SIGNED
by
)
for
and
on behalf
of ) …………………………….
TEEKAY
NAKILAT
CORPORATION ) Attorney-in-fact
as
Shareholder pursuant to
a
Power
of Attorney
QGTC
SIGNED
by
)
for
and
on behalf
of ) …………………………….
QATAR
GAS TRANSPORT COMPANY
LIMITED ) Attorney-in-fact
(NAKILAT)
as
guarantor pursuant to
a
Power
of Attorney
Original
Guarantor
SIGNED
by
)
for
and
on behalf
of ) …………………………….
TEEKAY
SHIPPING
CORPORATION ) Attorney-in-fact
as
Original Guarantor pursuant to
a
Power
of Attorney
