EXHIBIT 10.1
EXECUTION COPY
FACILITY AGREEMENT
FOR A
U.S.$600,000,000 FACILITY
TO
STENA INTERNATIONAL B.V.
PROVIDED BY
JPMORGAN CHASE BANK
NORDEA BANK SVERIGE AB (PUBL)
SVENSKA HANDELSBANKEN AB (PUBL)
HSBC BANK PLC
LANDESBANK SCHLESWIG-HOLSTEIN GIROZENTRALE
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
DEN NORSKE BANK ASA
SCOTIABANK EUROPE PLC
SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL)
ABN AMRO BANK N.V.
NEDSHIP BANK N.V.
CITIBANK, N.A.
DEUTSCHE BANK AG IN HAMBURG
ARRANGED BY
X. X. XXXXXX PLC
NORDEA BANK SVERIGE AB (PUBL)
SVENSKA HANDELSBANKEN AB (PUBL)
AGENT
SVENSKA HANDELSBANKEN AB (PUBL)
SECURITY AGENT
SVENSKA HANDELSBANKEN AB (PUBL)
DOCUMENTATION AGENTS
NORDEA BANK SVERIGE AB (PUBL)
SVENSKA HANDELSBANKEN AB (PUBL)
GUARANTEED BY
STENA AB (PUBL.)
XXXXXXXXXX XXXXXXX
XXX, XX. XXXX'X XXXXXXXXXX
XXXXXX XX0X 0XX
TEL: 000 0000 0000
FAX: 000 0000 0000
REF: 1250/00-00-00000
CONTENTS
CLAUSE CONTENTS PAGE
1 Purpose and Definitions...............................................1
2 The Commitments......................................................49
3 Advances.............................................................50
4 Issue of Bank Guarantees.............................................52
5 Reduction and Extension of Bank Guarantees...........................53
6 Payments under Bank Guarantees.......................................54
7 The Standby Facility.................................................56
8 Interest on Advances.................................................59
9 Repayment, Reduction and Cancellation................................62
10 Fees, Commission, Margin and Expenses................................76
11 Payments and Taxes; Accounts and Calculations........................80
12 Guarantee and Indemnity..............................................84
13 Representations and Warranties.......................................87
14 Undertakings.........................................................91
15 Ship and Linkspan Covenants : Insurance.............................111
16 Ship and Linkspan Covenants : Operation and Maintenance.............118
17 Covenants in respect of the Ports...................................123
18 Conditions..........................................................128
19 Default.............................................................129
20 Indemnities.........................................................133
21 Unlawfulness and Increased Costs....................................134
22 Set-Off and Pro-Rata Payments.......................................138
23 Security............................................................140
24 Assignment, Transfer and Lending Office.............................148
25 Reference Banks, Co-Arrangers, Agent and Security Agent.............152
26 Notices and Other Matters...........................................163
27 Governing Law and Jurisdiction......................................166
Schedule 1...................................................................167
The Banks and their Commitments..................................167
Schedule 2...................................................................169
The Ships - Part A...............................................169
The Ships - Part B...............................................171
Schedule 3...................................................................173
Commercial Documents.............................................173
Schedule 4...................................................................177
Prior Securities.................................................177
Schedule 5...................................................................181
Existing Bank Guarantees.........................................181
Schedule 6...................................................................183
Form of Drawdown Notice..........................................183
Schedule 7...................................................................185
Form of Bank Guarantee Request...................................185
Schedule 8...................................................................187
Conditions Precedent/Stena Tay Requirements......................187
Schedule 9...................................................................197
Form of Transfer Certificate.....................................197
Schedule 10..................................................................203
Specimen Charter Covenants and Loss Payable Clauses..............203
Schedule 11..................................................................205
Form of Free Net Worth Compliance Certificate....................205
Schedule 12..................................................................207
Form of Quiet Enjoyment Undertaking..............................207
THIS AGREEMENT is dated 6 November 2002 and is made BETWEEN:-
(1) STENA INTERNATIONAL B.V. as Borrower;
(2) X. X. XXXXXX PLC, NORDEA BANK SVERIGE AB (PUBL) and SVENSKA
HANDELSBANKEN AB (PUBL) as Co-Arrangers (for whom Nordea Bank Sverige
AB (publ) and Svenska Handelsbanken AB (publ) act as Documentation
Agents);
(3) the banks and financial institutions whose names and addresses are set
out in Schedule 1 as Banks;
(4) NORDEA BANK SVERIGE AB (PUBL) and JPMORGAN CHASE BANK as Issuing Banks;
(5) SVENSKA HANDELSBANKEN AB (PUBL) as Standby Lender;
(6) SVENSKA HANDELSBANKEN AB (PUBL) as Agent;
(7) SVENSKA HANDELSBANKEN AB (PUBL) as Security Agent; and
(8) STENA AB (PUBL.) as guarantor.
IT IS AGREED as follows:-
1 PURPOSE AND DEFINITIONS
1.1 PURPOSE
This Agreement sets out the terms and conditions upon and subject to
which the Banks and the Standby Lender agree, according to their
several obligations, to make available to the Borrower a multipurpose
corporate facility of up to $600,000,000 to be used for the purpose of
enabling the Borrower:-
(A) to refinance certain existing indebtedness of the Stena
International Group (including the SIBV $500m Facility);
(B) to provide finance for general corporate purposes of members of
the Stena International Group; and
(C) to provide for the issuance of new guarantees and the maintenance
of existing guarantees
and to provide a $30,000,000 standby facility to the Borrower for use
in connection with the business carried on by members of the Stena
International Group.
1.2 DEFINITIONS
In this Agreement, unless the context otherwise requires:-
"ACCEPTABLE BANK GUARANTEE"
means a Bank Guarantee which (save and to the extent otherwise agreed
by the New Guarantee Provider and the Agent):-
(A) is a guarantee, a standby letter of credit, an indemnity, a
performance bond or other assurance in respect of the obligations
to third parties of any:-
(i) of the Borrower or its Subsidiaries; or
(ii) any other member of the Stena AB Group for which Bank
Guarantee the Majority Banks consider the Security
Documents provide effective counter-security;
(B) states that no amount may be demanded from the New Guarantee
Provider thereunder after a specified date (but without prejudice
to any previous demand thereunder) which is not later than thirty
(30) days before the Termination Date;
(C) is for a liability or Indebtedness in Dollars or any other freely
convertible Eurocurrency;
(D) will have an Outstanding Guarantee Amount:-
(i) of not less than $500,000 (or the equivalent in any other
currency in which the relevant Bank Guarantee is to be
issued) (or such lower amount as may be agreed by the New
Guarantee Provider) upon issue of the Bank Guarantee; and
(ii) which remains at the same amount for the duration of the
Bank Guarantee or reduces after the date of its issue or
commences at an initial amount but increases by reference
to a rate of interest accruing at rates and at times stated
in the Bank Guarantee;
(E) unless otherwise agreed by the New Guarantee Provider, states the
maximum amount of the liability of the New Guarantee Provider
thereunder in respect of principal or capital amounts; and
(F) is otherwise in a form approved by the New Guarantee Provider
(such approval not to be unreasonably withheld);
"ADVANCE"
means each borrowing of a proportion of the Commitments by the Borrower
under Clause 3 or (as the context may require) the principal amount of
such borrowing for the time being outstanding;
"AFFILIATE"
of any specified person means any other person directly or indirectly
controlling or controlled by or under direct or indirect common control
with any specified person and "AFFILIATES" of Stena AB or any of its
Subsidiaries includes, without limitation, any Subsidiary of Stena AB
(other than a Wholly Owned Subsidiary of Stena AB) and any Unrestricted
Subsidiary so that neither Stena AB nor any Wholly Owned Subsidiary of
Stena AB shall be deemed an "AFFILIATE" of Stena AB or any Wholly Owned
Subsidiary of Stena AB;
"AGENT"
means Svenska Handelsbanken AB (publ) or such other person as may be
appointed agent for the Banks, the Issuing Banks, the Co-Arrangers, the
Standby Lender and the Security Agent pursuant to this Agreement;
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"AGREED FORM CERTIFICATE"
means the certificate dated of even date herewith executed by the
Borrower and the Agent attaching the agreed forms of the various
Security Documents and other relevant documents referred to in this
Agreement;
"APPROVED BROKERS"
means, in relation to a Ship or Linkspan, such firm of insurance
brokers (if any), appointed by the relevant Shipowner as may from time
to time be approved in writing by the Agent for the purposes of this
Agreement (such approval not to be unreasonably withheld or delayed);
"APPROVED FLAG STATE"
has the meaning attributed thereto in Clause 23.12(I);
"APPROVED MANAGER"
means, in relation to a Ship or Linkspan, Northern Marine Management
Limited and/or any other member of the Stena AB Group or such other
manager as may be approved by the Agent (such approval not to be
unreasonably withheld or delayed) and includes any manager or
sub-manager to whom Northern Marine Management Limited or other
applicable member of the Stena AB Group or other manager so approved
may delegate all or part of its management functions on terms, inter
alia, that the manager so delegating such functions remains wholly
responsible as principal to the relevant Shipowner or demise charterer
in respect of the Ship or Linkspan for the purposes of the relevant
management functions;
"ASSET DISPOSITION"
by any person means any transfer, conveyance, sale (including any
instalment sale or similar arrangement but excluding any sale pursuant
to a Sale and Leaseback Transaction), lease (other than pursuant to a
charter or operating lease of a Vessel in the ordinary course of
business) or other disposition by such person or any of its
Subsidiaries (including a consolidation or merger or other sale of any
such Subsidiary with, into or to another person in a transaction in
which such Subsidiary ceases to be a Subsidiary, but excluding a
disposition by a Subsidiary of such person to such person or a
Subsidiary of such person or by such person to a Subsidiary of such
person) (collectively, a "TRANSFER") of:-
(A) shares of Capital Stock (other than directors' qualifying shares
and other than pledges permitted under Clause 14.6) or other
ownership interests of a Subsidiary of such person;
(B) all or substantially all of the assets representing a division
or line of business of such person or any of its Subsidiaries;
(C) a Vessel; or
(D) other assets or rights of such person or any of its Subsidiaries
outside of the ordinary course of business
but solely for the purposes of Clause 14.7, the term "ASSET
DISPOSITION" shall not include:-
(i) any transfers of properties or assets which in the aggregate do
not exceed $5,000,000 in any fiscal year of Stena AB;
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(ii) any transfer of any properties or assets to an Unrestricted
Subsidiary permitted to be made under Clause 14.11 and Section
10.22 (LIMITATION ON UNRESTRICTED SUBSIDIARIES) of each of the
Indentures or any corresponding provision in documentation
evidencing the terms of any Successor Financing;
(iii) the exchange of Capital Stock of a person for Capital Stock of a
different class of such person ranking at least pari passu with
the Capital Stock being so exchanged as to the payment of
dividends or as to the distribution of assets upon any voluntary
or involuntary liquidation, dissolution or winding up of such
person, provided that the Fair Market Value of the shares
received in such exchange is not less than that of the Capital
Stock to be surrendered in such exchange; and
(iv) any sale or transfer pursuant to an arrangement with any lessor,
lender, obligee or investor or to which such lessor, lender,
obligee or investor is a party providing for the leasing or
renting by such person of any property or asset of such person
which has been or is being sold or transferred by such person
two hundred and seventy (270) days or less after the acquisition
thereof, to such lessor, lender, obligee or investor or to any
person to whom funds have been or are to be advanced by such
lessor, lender, obligee or investor on the security of such
property or asset;
"AUDITED STENA AB FINANCIAL STATEMENTS"
means the consolidated audited annual financial statements of the Stena
AB Group and any other entities required to be consolidated in such
statements in accordance with any applicable laws;
"AUDITED STENA INTERNATIONAL FINANCIAL STATEMENTS"
means the consolidated audited annual financial statements of the Stena
International Group and any other entities required to be consolidated
in such statements in accordance with any applicable laws;
"AVAILABILITY DATE"
means the first date upon which the Agent, or its duly authorised
representative, shall have received all the documents and evidence
specified in Part 1 of Schedule 8 in form and substance satisfactory to
the Agent and upon which the conditions referred to in Clause 18.2.
shall have been fulfilled;
"AVAILABILITY PERIOD"
means the period from the Availability Date and ending on the
Termination Date or the period ending on such earlier date (if any) (i)
on which the Borrower cancels all of the Commitments under Clause 9.10
or (ii) on which the Commitments of all the Banks are reduced to zero
pursuant to Clauses 9.4, 9.7, 9.8, 19.2 or 21.1;
"AVAILABLE COMMITMENT"
means, in relation to a Bank, the amount of its Commitment less the
amount of its Outstandings;
"AVAILABLE STANDBY COMMITMENT"
means, as at any date, the amount of the Standby Commitment less the
amount of the Standby Outstandings as at such date;
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"AVERAGE LIFE"
means as of the date of determination with respect to any Debt or other
securities or like instruments, the quotient obtained by dividing (i)
the sum of the products of the number of years from the date of
determination to the dates of each successive scheduled principal
payment of each such Debt, securities or instruments multiplied by the
amount of such principal payment by (ii) the sum of all such principal
payments;
"BANK GUARANTEE"
means any Existing Bank Guarantee issued by the Existing Guarantee
Provider and any guarantee issued by the New Guarantee Provider
pursuant to this Agreement;
"BANK GUARANTEE REQUEST"
means a notice substantially in the terms of Schedule 7;
"BANKING DAY"
means a day on which dealings in deposits in Dollars are carried on in
the London Interbank Eurocurrency Market and (other than Saturday or
Sunday) on which banks are open for business in London, Gothenburg and
New York City (or any other relevant place of payment under Clause 11);
"BANKS"
means the banks and financial institutions listed in Schedule 1 and
includes their successors in title and assignees and transferees (but,
except for the purposes of Clause 10.9, excludes the Standby Lender);
"BENEFICIARY"
means any person in whose favour a Bank Guarantee has been issued;
"BOARD OF DIRECTORS"
means either the board of directors of Stena AB (or its relevant
Subsidiary) or any duly authorised committee of that board;
"BOARD RESOLUTION"
means a copy of a resolution certified by Stena AB (or its relevant
Subsidiary) to have been duly adopted by its Board of Directors and to
be in full force and effect on the date of such certification, and
delivered to the Agent;
"BORROWER"
means Stena International B.V. a company incorporated under the laws of
The Netherlands acting through its branch office at Xxxxxxxxxxxxx 00,
XX-0000 Xxx, Xxxxxxxxxxx;
"CAPITALISED LEASE OBLIGATION"
of any person means:-
(A) the obligation to pay rent or other payment amounts under a
lease of (or other Debt arrangements conveying the right to use)
real or personal property of such person which is, or is
required to be, classified and accounted for as a capitalised
lease or a liability on the face of a balance sheet of such
person in accordance with Swedish GAAP; or
(B) the obligation to pay interest, principal, rent or other payment
amounts under a financing arrangement pursuant to a Sale and
Leaseback Transaction of real or
5
personal property of such person which is, or is required to be,
classified and accounted for as a "financing" or "financing
obligation - sale leaseback" or other liability on the face of a
balance sheet of such person in accordance with Swedish GAAP
and the Stated Maturity of any such obligation or arrangement shall be
the date of the last scheduled payment of rent or any other amount due
under such lease or financing arrangement prior to the first date upon
which such lease or financing arrangement may be terminated by the
lessee or obligor without payment of a penalty;
"CAPITAL STOCK"
of any person means any and all shares, interests, participations or
other equivalents (however designated) or corporate stock of such
person;
"CASH ASSETS"
means cash and/or Cash Equivalents, except to the extent that such cash
or Cash Equivalents are used to cash collateralise or otherwise secure
any Capitalised Lease Obligation;
"CASH COLLATERAL ACCOUNT"
means each account in the name of the Borrower (including any
sub-account thereof) in the books of the Agent designated as a Cash
Collateral Account for the purposes of this Agreement opened or, as the
case may be, to be opened pursuant to Clause 23;
"CASH COLLATERAL ACCOUNT PLEDGE"
means in respect of each Cash Collateral Account, the first priority
Swedish law pledge of account to be executed over such account in
favour of the Security Agent substantially in the form of Schedule 22
to the Agreed Form Certificate (or in such other form as the Agent
shall reasonably require if the relevant Cash Collateral Account is
held outside Sweden);
"CASH EQUIVALENTS"
means:-
(A) any security issued directly or fully guaranteed or insured by
the United States, the Kingdom of Sweden or any OECD government
whose securities are readily marketable in London, Frankfurt,
Paris or New York City, or any agency or instrumentality
thereof;
(B) other readily marketable securities having a rating of at least
A from Standard & Poor's Ratings Group or Xxxxx'x Investors
Service, Inc.;
(C) any Eurodollar time deposit, overnight deposit, certificate of
deposit or bankers' acceptance, issued by, or time deposit of, a
commercial banking institution which has, on a combined basis,
capital, surplus and undivided profits of not less than
$250,000,000 and has a Moody's Bank Credit Service rating for
short-term bank deposits of at least P-2 (or such similar
equivalent rating by a nationally recognised statistical rating
organisation as defined in Rule 436 under the Securities Act);
(D) repurchase obligations with a term of not more than ninety (90)
days for underlying securities of the types described in
paragraph (A) above entered into
6
with any commercial banking institution meeting the
qualifications specified in paragraph (C) above;
(E) short-term commercial paper issued by any person, having one of
the top two investment ratings from either Standard & Poor's
Ratings Group or Xxxxx'x Investors Service, Inc.;
(F) investments in money market funds substantially all of whose
assets are comprised of securities of the types described in
paragraph (A) through (E) above; and
(G) deposits which are unrestricted as to withdrawal with commercial
banking institutions meeting the criteria set forth in paragraph
(C) above;
"CASUALTY AMOUNT"
means $5,000,000 (or the equivalent in any other currency) unless the
Agent on the direction of the Majority Banks shall have given notice to
the Borrower that a Default shall have occurred and be continuing or
that in its opinion there shall have been a material adverse change in
the financial condition of the Stena AB Group which may impair the
ability of the Borrower or any Security Party to comply with their
obligations under any Security Document in which case the Casualty
Amount shall be such amount, not however less than $2,000,000, as the
Agent shall signify in its notice to the Borrower;
"CHARTERER'S INSURANCE ASSIGNMENT"
means:-
(A) in relation to a Mortgaged Ship (other than m.v. "Stena
Germanica" as long as she remains owned by Scandlines subject to
the Stena Germanica Mortgage) and in relation to a Mortgaged
Linkspan, any assignment by a Stena Charterer which charters the
relevant Ship or Linkspan under a demise or bareboat charter
executed or (as the context may require) to be executed by such
Stena Charterer in favour of the Security Agent pursuant to
Clause 15.1 in substantially the form set out in Schedule 12 to
the Agreed Form Certificate; and
(B) in relation to m.v. "Stena Germanica" (as long as she remains
owned by Scandlines subject to the Stena Germanica Mortgage),
the Stena Germanica Charterer's Insurance Assignment and any
other Charterer's Insurance Assignment (as defined in the Stena
Germanica Deed of Covenant) as may be executed from time to time
in relation thereto;
"CHARTERER'S SUBORDINATION UNDERTAKING"
means:-
(A) in relation to a Mortgaged Ship (other than m.v. "Stena
Germanica" as long as she remains owned by Scandlines subject to
the Stena Germanica Mortgage) and in relation to a Mortgaged
Linkspan, an undertaking by a Stena Charterer which charters the
relevant Ship or Linkspan under a time charter or a demise or
bareboat charter executed or (as the context may require) to be
executed by such Stena Charterer pursuant to Clause 15.1 in
substantially the form set out in Schedule 13 to the Agreed Form
Certificate in favour of the Security Agent; and
(B) in relation to m.v. "Stena Germanica" (as long as she remains
owned by Scandlines subject to the Stena Germanica Mortgage),
the Stena Germanica
7
Charterer's Subordination Undertaking and any other Charterer's
Subordination Undertaking (as defined in the Stena Germanica
Deed of Covenant) as may be executed from time to time in
relation thereto;
"CLASSIFICATION"
means, in relation to each Ship, the classification set forth against
the name of such Ship in Schedule 2 with its Classification Society or
other highest classification available for Vessels of the same age and
type as the Ship with its Classification Society or such other
classification as the Agent shall, at the request of the Borrower, have
agreed in writing shall be treated as the Classification of such Ship
for the purposes of this Agreement (such agreement not to be
unreasonably withheld or delayed);
"CLASSIFICATION SOCIETY"
means, in relation to any Ship, the classification society set forth
against the name of such Ship in Schedule 2 or Lloyds Register of
Shipping or Det norske Veritas or Germanischer Xxxxx or Bureau Veritas
or American Bureau of Shipping or such other classification society
which the Agent shall, at the request of the Borrower, have agreed in
writing shall be treated as its Classification Society for the purposes
of this Agreement (such agreement not to be unreasonably withheld or
delayed);
"CO-ARRANGERS"
means X. X. Xxxxxx plc, Nordea Bank Sverige AB (publ) and Svenska
Handelsbanken AB (publ) and includes their respective successors in
title and assignees (and all references to the Co-Arrangers shall
include Nordea Bank Sverige AB (publ) and Svenska Handelsbanken AB
(publ) in their capacities as Documentation Agents);
"COMMERCIAL DOCUMENTS"
means each bareboat charter in relation to a Mortgaged Ship to which a
member of the Stena AB Group is a party from time to time as bareboat
charterer (being, at the Execution Date, those bareboat charters whose
details are set out in Schedule 3) and each Sale Agreement entered into
from time to time in relation to a Ship;
"COMMITMENT"
means, in relation to a Bank, the amount set out opposite its name in
Schedule 1 or, as the case may be, in any relevant Transfer
Certificate, as reduced by any relevant term of this Agreement (but,
except for the purposes of Clause 10.9, excludes the Standby
Commitment);
"COMMON STOCK"
of any person means Capital Stock of such person that does not rank
prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or
winding up of such person, to shares of Capital Stock of any other
class of such person;
"COMPULSORY ACQUISITION"
means requisition for title or other compulsory acquisition,
requisition, appropriation, expropriation, deprivation, forfeiture or
confiscation for any reason of a Ship or Linkspan by any Government
Entity or other competent authority, whether de jure or de facto, but
shall exclude requisition for use or hire not involving requisition of
title;
"CONSOLIDATED CASH FLOW"
of any person means for any period:-
8
(A) (i) the Consolidated Operating Income for such period
increased by the sum of (without duplication):-
(x) dividends or other distributions actually paid in
cash or Cash Equivalents to such person by any
other person who is not a Subsidiary of such
person but only to the extent that such dividends
or other distributions are paid in respect of
securities classified under "investments in
affiliated companies" on the balance sheet of such
person; plus
(y) consolidated interest income earned by such person
during such period; plus
(z) to the extent deducted from consolidated revenues
in determining Consolidated Operating Income for
such period and without duplication, consolidated
depreciation and amortisation expense included in
the income statement of such person for such
period and other consolidated non-cash charges
included in the income statement of such person
for such period
minus
(ii) the aggregate gain on the disposition of a Vessel or
Vessels included in Consolidated Operating Income for
such period
plus
(B) the aggregate gain on the disposition of a Vessel or Vessels
included in Consolidated Operating Income for such period, but
only to the extent such amount does not exceed twenty five per
cent (25%) of the amount calculated pursuant to paragraph (A) of
this definition;
"CONSOLIDATED INTEREST COVERAGE RATIO"
of any person means for any period the ratio of:-
(A) Consolidated Cash Flow of such person for such period
to
(B) the sum of:-
(i) Consolidated Interest Expense of such person for such
period, plus
(ii) the annual interest expense (including the amortisation
of debt discount) with respect to any Debt proposed to be
Incurred by such person or its Subsidiaries, plus
(iii) the annual interest expense (including the amortisation
of debt discount) with respect to any other Debt Incurred
by such person or its Subsidiaries since the end of such
period to the extent not included in paragraph (B)(i)
minus
(iv) Consolidated Interest Expense of such person to the
extent included in paragraph (B)(i) with respect to any
Debt that will no longer be
9
outstanding as a result of the Incurrence of the Debt
proposed to be Incurred;
provided that:-
(X) in making such computation, the Consolidated Interest
Expense of such person attributable to interest on any
Debt bearing a floating interest rate shall be computed
on a pro forma basis as if the rate in effect on the date
of computation had been the applicable rate for the
entire period; and
(Y) in the event such person or its Subsidiaries has made
Asset Dispositions or acquisitions of assets not in the
ordinary course of business or of any Vessel (including
acquisitions of other persons or Vessels by merger,
consolidation or purchase of Capital Stock) during or
after such period, such computation shall be made on a
pro forma basis as if the Asset Dispositions or
acquisitions had taken place on the first day of such
period
and in the case of the Post-Delivery Financing of a Vessel or
Vessels (or the financing of the acquisition of a Single-Purpose
Vessel-Owning Subsidiary) by Stena AB or any of its
Subsidiaries, the computation of Consolidated Cash Flow for
purposes of calculating the Consolidated Interest Coverage Ratio
shall be increased by:-
(a) the pro forma annual earnings (losses) for such period
pursuant to any binding charter, lease or like
arrangement which will be applicable to any such Vessel
(including a Vessel owned by any such Single-Purpose
Vessel-Owning Subsidiary) for at least one year after the
date of delivery of such Vessel to Stena AB or any of its
Subsidiaries; or
(b) with respect to any such Vessel not subject to such an
arrangement, the earnings (losses) for such period of the
most comparable Vessel of Stena AB or any of its
Subsidiaries (as determined in the reasonable judgment of
the Board of Directors of Stena AB), or, if Stena AB or
any of its Subsidiaries do not have a comparable Vessel,
based on industry average earnings for comparable Vessels
(as determined in the reasonable judgement of the Board
of Directors of Stena AB) during such period;
"CONSOLIDATED INTEREST EXPENSE"
for any person means for any period the consolidated interest expense
included in the consolidated income statement (without deduction of
interest income) of such person for such period calculated on a
consolidated basis in accordance with Swedish GAAP, including, without
limitation or duplication (or, to the extent not so included, with the
addition of):-
(A) the amortisation of Debt discounts;
(B) any commissions, discounts and other fees and charges with
respect to letters of credit, bankers' acceptances, payment
guarantees or similar facilities;
(C) fees with respect to interest rate swap or similar agreements or
foreign currency hedge, exchange or similar agreements;
(D) Preferred Stock dividends declared and payable in cash;
10
(E) the interest portion of Capitalised Lease Obligations and other
deferred payment obligations;
(F) interest actually paid in respect of any guarantee of Debt or
other obligation of any person (other than a consolidated
Subsidiary of such person); and
(G) all non-cash interest payments;
"CONSOLIDATED NET INCOME"
of any person means for any period the consolidated net income (or
loss) of such person for such period determined on a consolidated basis
in accordance with Swedish GAAP, adjusted to the extent included in
such consolidated net income by excluding (without duplication):-
(A) the net income (or loss) of any person acquired by such person
or a Subsidiary of such person in a pooling-of-interests
transaction for any period prior to the date of such
transaction;
(B) the portion of net income (or loss) of any Consolidated
Subsidiary allocable to minority interests;
(C) the net income (but not net loss) of any Subsidiary of such
person which is subject to restrictions which prevent the
payment of dividends or the making of distributions to such
person to the extent of such restrictions;
(D) the net income (or loss) of any person that is not a Subsidiary
of such person except to the extent of the amount of dividends
or other distributions actually paid to such person by such
other person during such period;
(E) gains or losses on Asset Dispositions by such person or its
Subsidiaries provided that gains or losses on the disposition of
a Vessel or Vessels shall be included:-
(i) in the case of a sale for cash, Cash Equivalents and/or
the assumption of Debt in accordance with paragraph
(ii)(z) of Clause 14.7(A), to the full extent of such
gain or loss; and
(ii) in the case of a sale pursuant to a deferred payment
obligation (whether by way of a promissory note or
instalment receivable or otherwise), only to the extent
of the portion of such gain or loss allocable to such
period (based on the life of such deferred payment
obligation) and (with respect to gains only) only to the
extent payments in respect of such deferred payment
obligation are actually received by such person during
such period;
(F) the amount by which the aggregate gain on the disposition of a
Vessel or Vessels exceeds the amounts calculated pursuant to
paragraph (B) of the definition of "Consolidated Cash Flow" for
such period; and
(G) all extraordinary gains and extraordinary losses;
"CONSOLIDATED OPERATING INCOME"
of any person means for any period the income from operations of such
person for such period determined on a consolidated basis in accordance
with Swedish GAAP, less gains
11
on the disposition of a Vessel or Vessels pursuant to a deferred
payment obligation (whether by way of a promissory note or instalment
receivable or otherwise), plus the portion of such gain allocable to
such period (based on the life of such deferred payment obligation) to
the extent payments in respect of such deferred payment obligation are
actually received by such person during such period;
"CONSOLIDATED TANGIBLE ASSETS"
of any person means the sum of the Tangible Assets of such person after
eliminating intercompany items, determined on a consolidated basis in
accordance with Swedish GAAP, including appropriate deductions for any
minority interest in Tangible Assets of such person's Subsidiaries;
"CONSOLIDATION" or "CONSOLIDATION"
means, with respect to any person, the consolidation of the accounts of
such person and each of its Subsidiaries if and to the extent the
accounts of such person and each of its Subsidiaries would normally be
consolidated with those of such person, all in accordance with Swedish
GAAP (in the case of Stena AB) or Dutch GAAP (in the case of the
Borrower) and the terms "CONSOLIDATED" and "CONSOLIDATED" shall be
construed accordingly provided that, in the computation of the
Consolidated Net Income, Consolidated Interest Coverage Ratio,
Consolidated Cash Flow, Consolidated Interest Expense, Consolidated
Operating Income, Consolidated Tangible Assets and Tangible Assets of
Stena AB or any other person, the accounts of any Unrestricted
Subsidiary of Stena AB or such other person shall not be included in
any such consolidation even if the inclusion of such accounts would be
required by Swedish GAAP as in effect at 1 October 1997 and the
accounts of no other person shall be included in such consolidation if
not required to be so consolidated by Swedish GAAP as in effect on 1
October 1997;
"CONSTRUCTION FINANCING"
means Debt Incurred by Stena AB or any Subsidiary of Stena AB to
finance any progress or other similar payments required prior to the
delivery of the subject Vessel or Vessels under any Vessel Construction
Contract;
"CONTRIBUTION"
means, in relation to a Bank, the principal amount of the Advances
owing to such Bank at any relevant time;
"CONTROL"
when used with respect to any person means the power to direct the
management and policies of such person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise,
and the terms "CONTROLLING" and "CONTROLLED" shall be construed
accordingly;
"CREDIT TERMS"
means, in relation to an Asset Disposition, terms whereby the whole or
part of the consideration for the Asset Disposition is to be paid or
provided after the date on which the ownership or possession of the
relevant asset is transferred to a person which is not a Subsidiary of
Stena AB;
"DEBT"
means (without duplication), with respect to any person, whether
recourse is to all or a portion of the assets of such person and
whether or not contingent:-
(A) every obligation of such person for money borrowed;
12
(B) every obligation of such person evidenced by bonds, debentures,
notes or other similar instruments, including obligations
Incurred in connection with the acquisition of property, assets
or businesses;
(C) every reimbursement obligation of such person with respect to
letters of credit, bankers' acceptances, payment guarantees or
similar facilities issued for the account of such person, other
than bonds, letters of credit, payment guarantees or other
similar obligations required by governmental or regulatory
agencies in connection with Vessels owned by or businesses
conducted by Stena AB or any of its Subsidiaries;
(D) every obligation of such person issued or assumed as the
deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the
ordinary course of business which are not overdue or which are
not being contested in good faith);
(E) the maximum fixed redemption or repurchase price of Redeemable
Stock of such persons at the time of determination;
(F) every Capitalised Lease Obligation of such person;
(G) every net obligation under interest rate swap, foreign currency
hedge, exchange or similar agreements of such person; and
(H) every obligation of the type referred to in paragraphs (A) to
(G) above of another person and all dividends of another person
the payment of which, in either case, such person has guaranteed
or is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise,
provided that:-
(i) guarantees made by any person shall not be deemed "Debt"
to the extent that (a) the Debt so guaranteed would be
classified and accounted for as Debt on the consolidated
balance sheet of such person or (b) both such person and
the person whose obligation is being guaranteed are
Subsidiaries of Stena AB; and
(ii) payment obligations of a person pursuant to a charter or
operating lease which does not constitute a Capitalised
Lease Obligation shall not be deemed "Debt";
(iii) reimbursement obligations of any person with respect to
facilities in respect of letters of credit, bankers'
acceptances or payment guarantees issued for the account
of such person, or obligations of such person in respect
of loan facilities the proceeds of which are used as cash
collateral, shall not be deemed "Debt" to the extent that
any such facility (or the proceeds thereof) is used to
fully and irrevocably secure, guarantee or defease the
payment of Debt of such person or any of its Subsidiaries
(including, without limitation, Debt under a Capitalised
Lease Obligation) which is Incurred in connection with
the financing of a Vessel or group of Vessels and which
is otherwise permitted to be Incurred under this
Agreement;
13
"DEED OF COVENANT"
means:-
(A) in relation to a Designated Ship (other than m.v. "Stena
Germanica" as long as she remains owned by Scandlines subject to
the Stena Germanica Mortgage), the deed of covenant collateral
to the Ship Mortgage over that Ship (or, in the case of a
Linkspan, the Linkspan Mortgage) and entered or (as the context
may require) to be entered into between the relevant Shipowner
and the Security Agent in the form set out in Schedule 7 to the
Agreed Form Certificate (in relation to a Mortgaged Ship or
Mortgaged Linkspan which at the time of execution is subject to
a Ship Mortgage or Linkspan Mortgage ranking with first
priority) or in the form set out in Schedule 8 to the Agreed
Form Certificate (in relation to a Mortgaged Ship or Mortgaged
Linkspan which at the time of execution is subject to a Ship
Mortgage or Linkspan Mortgage ranking with second priority) or
in relation to m.v. "Stena Carisma" and her related Linkspans,
in the form set out in Schedule 9 to the Agreed Form
Certificate; and
(B) in relation to m.v. "Stena Germanica" (as long as she remains
owned by Scandlines subject to the Stena Germanica Mortgage),
the Stena Germanica Deed of Covenant;
and "DEEDS OF COVENANT" means all of such deeds of covenant;
"DEFAULT"
means any Event of Default or any event or circumstance which with the
giving of notice or lapse of time or both would constitute an Event of
Default;
"DESIGNATED SHIP"
means each Mortgaged Ship or Mortgaged Linkspan as may from time to
time be registered under British or Swedish or Bahamas flag or any flag
of any other jurisdiction which requires the registration of a ship
mortgage by means of a statutory form and where the Agent determines
that a separate Deed of Covenant is required to protect the interest in
the Mortgaged Ship or Mortgaged Linkspan (as the case may be) of the
Security Agent;
"DISPOSAL REDUCTION AMOUNT"
has the meaning ascribed to it in Clause 9.4;
"DISPOSAL REDUCTION DATE"
means:-
(A) in the case of a Total Loss of a Mortgaged Ship, the date which
is the earlier of:-
(i) the date one hundred and eighty (180) days after such
Ship became a Total Loss or such later date as may be
agreed by the Agent on the direction of the Majority
Banks from time to time if they are satisfied that the
relevant Ship was insured at the time of the loss and
that the proceeds of the Insurances will be received and
applied in accordance with the Security Documents and, if
relevant, the relevant bareboat charter or any Sale
Agreement relating thereto within such further period as
may be acceptable to the Majority Banks; and
14
(ii) the date upon which insurance proceeds or Requisition
Compensation in respect of such Total Loss are received
by the Security Agent, the Shipowner or the Stena
Charterer in respect of such Ship or a charterer of such
Ship by demise which is not a Stena Charterer pursuant to
the relevant Security Documents or relevant bareboat
charter or relevant Sale Agreement (as the case may be)
in relation to the relevant Ship;
(B) in the case of a Total Loss of a Transferred Ship sold on Credit
Terms, the date on which the Total Loss insurance proceeds are
received by the seller of the relevant Ship or the Security
Agent under the relevant Sale Agreement or, if earlier, the date
on which the owner of the relevant Transferred Ship repays in
full to the Shipowner the deferred consideration for the
relevant Ship;
(C) in the case of a sale of a Mortgaged Ship or any share therein,
and except where the sale is effected on Credit Terms, the date
on which the sale of such Ship or share is completed;
(D) in the case of any Transferred Ship which is transferred on
terms whereby the relevant Shipowner transfers title to the Ship
whilst any part of the deferred consideration therefore remains
outstanding (other than in the case of a Total Loss), each of
the following:-
(i) each date falling at six (6) monthly intervals from the
date of completion of the transfer of title until the
deferred purchase price of the relevant Ship has been
paid in full;
(ii) the date of the final payment of the deferred purchase
price;
(iii) in the case of an enforcement of security given for the
purchaser's obligations by way of sale of the Ship, the
date or dates on which consideration for the sale of the
Ship is paid to the Shipowner or the Security Agent; and
(iv) if any such Ship is sold by the buyer thereof before the
deferred consideration payable to the Shipowner has been
paid in full, the date on which the Shipowner receives
payment of the balance of the deferred consideration
following such sale;
(E) in the case of a Transferred Ship which is disposed of on terms
whereby the relevant Shipowner retains title to the Ship until
the full amount of the deferred consideration has been paid
(other than in the case of a Total Loss), each of the
following:-
(i) each date falling at six (6) monthly intervals from the
date of completion of the disposal until the deferred
consideration for the acquisition of the Ship has been
settled in full; and
(ii) the date of such final settlement;
(iii) in case of an enforcement of security for the purchaser's
obligations by way of sale of the Ship, the date or dates
on which the consideration for the sale of the Ship is
paid to the Shipowner or the Security Agent;
15
(iv) if the purchaser or lessee of the Ship defaults under the
sale or hire agreement relating to the Ship and the owner
thereof withdraws the Ship from such purchaser or lessee
and the agreement is validly terminated by the owner or
the agreement is terminated by agreement between the
parties thereto and the Ship returned to the owner's
possession, each date, prior to that on which such Ship
again falls to be treated as a Mortgaged Ship for the
purposes of this Agreement following repossession by the
relevant owner, on which the owner receives any amount by
way of damages or payment for the compromise of any legal
action relating to the agreement or agreed compensation
for termination of the agreement;
(F) in the case of a sale of a Mortgaged Port or any part thereof
(other than the sale of any part of a Mortgaged Port for a
consideration of less than $25,000 or the equivalent thereof in
any other currency) the date on which the sale of such Mortgaged
Port or part thereof is completed;
(G) in the case of a sale of the shares in the capital of any Port
Owner, the date on which the sale of such shares is completed;
"DISQUALIFIED STOCK"
of any person means any Capital Stock of such person which, by its
terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event:-
(A) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise; or
(B) is convertible or exchangeable for Debt or Disqualified Stock;
or
(C) is redeemable at the option of Stena AB, any Subsidiary of Stena
AB or the holder thereof, in whole or in part, on or prior to
the Termination Date;
"DOCUMENTATION AGENTS"
means Nordea Bank Sverige AB (publ) and Svenska Handelsbanken AB (publ)
in their capacities as Co-Arrangers responsible for the negotiation and
production of this Agreement and the other Security Documents;
"DOLLARS" and "$"
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 settlement of international
banking transactions denominated in U.S. dollars);
"DRAWDOWN NOTICE"
means a notice substantially in the terms of Schedule 6;
"DUTCH GAAP"
means generally accepted accounting principles in the Kingdom of the
Netherlands, consistently applied;
16
"EARNINGS"
of a person means, in relation to any Ship, all earnings whatsoever due
or to become due to such person including, without limitation, all
moneys receivable by such person and arising, in relation to such Ship,
out of its hire, compensation for requisition for hire, remuneration
for salvage and towage services, demurrage and detention moneys,
damages for breach of any charterparty or other contract for employment
or amounts payable in consideration of the termination or variation of
any such charterparty or contract;
"EVENT OF DEFAULT"
means any of the events or circumstances described in Clause 19.1;
"EXECUTION DATE"
means the date of execution of this Agreement by the parties hereto;
"EXISTING BANK GUARANTEES"
means those bank guarantees listed in Schedule 5 which have been issued
by the Existing Guarantee Provider as "Issuing Bank" under the SIBV
$500m Facility Agreement and which, with effect from the Availability
Date, are to be treated as Bank Guarantees issued by the Existing
Guarantee Provider under this Agreement;
"EXISTING DEBT"
of any person means Debt incurred prior to the date of this Agreement
which remains outstanding and shall include, without limitation, the
aggregate amount of Debt available to be borrowed under committed
credit or lease facilities existing on the date of this Agreement
less:-
(A) principal payments actually made by or on behalf of such person
on any term Debt or lease facility under any agreement governing
such Existing Debt (other than principal payments made in
connection with or pursuant to a refinancing of such Existing
Debt agreement); and
(B) any amounts by which any revolving credit facility commitment
under any Existing Debt agreement is permanently reduced (so
long as and to the extent that any required payments in
connection therewith are actually made);
"EXISTING GUARANTEE PROVIDER"
means JPMorgan Chase Bank acting through its office at 000 Xxxxxx Xxxx,
Xxxxxx XX0X 0XX;
"EXPIRY DATE"
means, in relation to any Bank Guarantee, the date (if any) upon which
it is provided by such Bank Guarantee that the relevant Issuing Bank
shall be under no further liability under such Bank Guarantee (but
without prejudice to any demand made thereunder by the relevant
Beneficiary on or before such date) or the date to which the validity
of any such Bank Guarantee (other than an Existing Bank Guarantee) is
extended pursuant to Clause 5;
"FAIR MARKET VALUE"
means, with respect to any asset or property, the sale value that would
be obtained in an arm's-length transaction between an informed and
willing seller under no compulsion to sell and an informed and willing
buyer under no compulsion to buy;
17
"FLAG STATE"
means, in relation to any Ship or Linkspan, such state or territory as
the Banks may approve pursuant to Clause 23.12, at the request of the
Borrower, as being the "Flag State" of such Ship or Linkspan for the
purposes of the Security Documents;
"FREE NET WORTH"
has the meaning ascribed to it in Clause 14.21(C);
"FREE NET WORTH COMPLIANCE CERTIFICATE"
means the Officer's Certificate to be delivered by Stena AB pursuant to
Clause 14.2(F);
"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;
"GUARANTEE"
by any person means any obligation, contingent or otherwise, of such
person guaranteeing any Debt of any other person (the "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such person:-
(A) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Debt or to purchase (or to advance or supply
funds for the purchase of) any security for the payment of such
Debt;
(B) to purchase property, securities or services for the purpose of
assuring the holder of such Debt of the payment of such Debt; or
(C) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Debt
(and "GUARANTEED", "GUARANTEEING" and "GUARANTOR" shall be construed
accordingly provided that the guarantee by any person shall not include
endorsements by such person for collection or deposit, in either case,
in the ordinary course of business);
"HOLYHEAD CHARGE"
means the English law second fixed legal charge in respect of Holyhead
Port to be executed and delivered by Stena Line Ports in favour of the
Security Agent in substantially the form set out in Schedule 20 to the
Agreed Form Certificate;
"HOLYHEAD PORT"
means all of the freehold and leasehold property belonging to Stena
Line Ports at the port of Holyhead, Isle of Anglesey, Gwynedd as is
more particularly described in the Holyhead Charge;
"INCUR"
means, with respect to any Debt or other obligation of any person, to
create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to Swedish GAAP or
otherwise, of any such Debt or other obligation on the balance sheet of
such
18
person (and "INCURRENCE", "INCURRED", "INCURRABLE" and "INCURRING"
shall be construed accordingly) provided that a change in Swedish GAAP
that results in an obligation of such person that exists at such time
becoming Debt shall not be deemed an Incurrence of such Debt and
provided that:-
(A) Debt of Stena AB or any Subsidiary of Stena AB in respect of the
Post-Delivery Financing of Vessels shall be deemed to have been
"Incurred" in the full amount of such Post-Delivery Financing
only on the date Stena AB (or such Subsidiary) enters into a
binding credit or lease commitment in good faith with a lender
(or group of lenders) or lessor with respect to such financing;
(B) no Debt shall be deemed to have been "Incurred" solely by reason
of Stena AB or any Subsidiary of Stena AB entering into a Vessel
Construction Contract;
(C) no Debt shall be deemed to have been "Incurred" solely by reason
of the transfer (including, without limitation, by way of
novation or assignment and assumption) of Debt secured by a
Vessel from a Subsidiary of Stena AB to another Subsidiary of
Stena AB in connection with the transfer of such Vessel from the
former to the latter (including, without limitation, a transfer
effected for the purpose of reflagging such Vessel) provided
that such transfer is permitted pursuant to the provisions of
paragraph (H) of the definition of "Permitted Liens";
"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;
"2005 INDENTURE"
means the indenture dated as of 20 December 1995 made between Stena AB
and JPMorgan Chase Bank (then called Chemical Bank) as trustee in
relation to the issue of the 2005 Notes as referred to in the 2005
Prospectus;
"2007 INDENTURE"
means the indenture dated as of 1 October 1997 made between Stena AB
and JPMorgan Chase Bank (then called The Chase Manhattan Bank) as
trustee in relation to the issue of the 2007 Notes as referred to in
the 2007 Prospectus;
"INDENTURES"
means the 2005 Indenture and the 0000 Xxxxxxxxx or, where the context
so requires, means either of them;
"INSURANCES"
means, in relation to any Ship or Linkspan, all policies and contracts
of insurance (which expression includes all entries of such Ship or
Linkspan 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 by or for the benefit of the owner and/or any relevant
charterer (or in the joint names of the owner and/or any relevant
charterer or other person)(but not any insurances taken out for the
sole benefit of a charterer which is not a member of the Stena AB
Group) in respect of such Ship or Linkspan or otherwise howsoever in
connection with such Ship or Linkspan and all benefits thereof
(including claims of whatsoever nature and return of premiums);
19
"INSURANCE ASSIGNMENT"
means, in relation to each Owned Ship or Linkspan which is not a
Designated Ship, the first priority assignment of all the right, title
and interest of the relevant Shipowner in the Insurances and
Requisition Compensation thereof executed or (as the context may
require) to be executed in favour of the Security Agent in the form set
out in Schedule 10 to the Agreed Form Certificate (in relation to an
Owned Ship or Linkspan which at the time of execution is subject to a
Ship Mortgage or Linkspan Mortgage ranking with first priority) or in
substantially the form set out in Schedule 11 to the Agreed Form
Certificate (in relation to an Owned Ship or Linkspan which at the time
of execution is subject to a Ship Mortgage or Linkspan Mortgage ranking
with second priority) and "INSURANCE ASSIGNMENTS" means all of such
assignments;
"INVESTMENT"
by any person means any direct or indirect loan, advance or other
extension of credit (including by way of guarantee or similar
arrangement) or capital contribution to (by means of transfers of cash
or other property to others or payments for property or services for
the account or use of others, or otherwise), or purchase or acquisition
of Capital Stock, bonds, notes, debentures or other securities or
evidence of Debt issued by any other person (other than through the
exchange or conversion of other securities of such other person
pursuant to the terms of such other securities or pursuant to a bona
fide plan of liquidation or reorganisation of such other person in
satisfaction of trade payable obligations owed from such other person)
save that notwithstanding anything to the contrary set forth above:-
(A) the receipt by Stena AB or any of its Subsidiaries of a
promissory note or like evidence of indebtedness pursuant to an
Asset Disposition otherwise permitted under Clause 14.7 (insofar
as the receipt of such evidence of indebtedness is deemed to be
a loan made by Stena AB or such Subsidiary) shall be deemed not
to be an "Investment"; and
(B) one or more investments by Stena AB or any of its Subsidiaries
in persons whose only assets are a Vessel and property directly
related thereto shall be deemed not to be an "Investment";
"ISM CODE"
means the International Safety Management Code for the Safe Operation
of Ships and for Pollution Prevention adopted by the International
Maritime Organisation;
"ISSUING BANK"
means, in respect of the Existing Bank Guarantees, the Existing
Guarantee Provider and, in respect of all other Bank Guarantees, the
New Guarantee Provider;
"LEGAL OPINIONS"
means the legal opinions delivered or, as the case may be, to be
delivered to the Agent pursuant to Clause 18.1;
"LIBOR"
means, in relation to a particular period, the rate per annum for
deposits of Dollars for a period equivalent to such period at or about
11.00 a.m. on the second London Banking Day before the first day of
such period as displayed on Xxxxxx page LIBOR 01 (British Bankers'
Association Interest Settlement Rates) (or such other page as may
replace such page LIBOR 01 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
20
Settlement Rate (as defined in the British Bankers' Association's
Recommended Terms and Conditions ("BBAIRS" terms) dated August, 1985)),
provided that if on such date no such rate is so displayed, LIBOR for
such period shall be the arithmetic mean (rounded upward if necessary
to four decimal places) of the rates respectively quoted to the Agent
by each of the Reference Banks at the request of the Agent as such
Reference Bank's offered rate for deposits of Dollars in an amount
approximately equal to the amount in relation to which LIBOR is to be
determined for a period equivalent to such period to prime banks in the
London Interbank Market at or about 11.00 a.m. on the second London
Banking Day before the first day of such period;
"LIEN"
means, with respect to any property or assets, any mortgage or deed of
trust, pledge, hypothecation, assignment, security deposit arrangement,
security interest, lien, charge, easement (other than any easement not
materially impairing usefulness or marketability), encumbrance,
preference, priority or other security agreement or preferential
arrangement (other than the subordination of inter-Subsidiary Debt to
the extent required by a lender or lessor of Stena AB or any of its
Subsidiaries) of any kind or nature whatsoever on or with respect to
such property or assets (including, without limitation, any conditional
sale or other title retention agreement having substantially the same
economic effect as any of the foregoing);
"LINKSPAN MORTGAGE"
means:-
(A) in the case of the two Linkspans named "Linkspan I" and
"Linkspan II" with call signs SFNH and SFNL respectively
registered in the Swedish Register of Shipping, the second
priority pledge of mortgage of such Linkspan to be executed by
Stena Line Scandinavia in the form or substantially in the form
set out in Schedule 6 to the Agreed Form Certificate together
also with the deed of covenant collateral thereto to be executed
by Stena Line Scandinavia in the form or substantially in the
form set out in Schedule 9 to the Agreed Form Certificate;
(B) in the case of any other Linkspan over which a first priority
mortgage is to be executed and, if appropriate, registered by
the relevant Shipowner, a mortgage in form and substance
acceptable to the Agent but in any event substantially similar
to the mortgages and collateral deeds of covenant described in
paragraph (A) above;
"LINKSPANS"
means:-
(A) the linkspan named "Linkspan I" having call sign SFNH registered
in the Swedish Register of Shipping in the ownership of Stena
Line Scandinavia, which linkspan is at the date of this
Agreement located at Gothenburg and used in connection with the
operation of m.v. "Stena Carisma";
(B) the linkspan named "Linkspan II" having call sign SFNL
registered in the Swedish Register of Shipping in the ownership
of Stena Line Scandinavia, which linkspan is at the date of this
Agreement located at Frederikshavn and used in connection with
the operation of m.v. "Stena Carisma"; and
(C) any other linkspan owned by a member of the Stena AB Group in
relation to which a Linkspan Mortgage or other Lien may be
granted to the Security Agent
21
during the Security Period directly or indirectly as security
for the obligations of the Borrower under this Agreement
and "LINKSPAN" means any of them;
"LONDON BANKING DAY"
means a day on which dealings and deposits in Dollars are carried on in
the London Interbank Eurocurrency Market and (other than Saturday or
Sunday) a day on which banks are open for business in London;
"LOSS PAYABLE CLAUSES"
means the provisions regulating the manner of payment of sums
receivable under the Insurances of an Owned Ship or a Linkspan which
are to be incorporated in the relevant insurance documents, such Loss
Payable Clauses to be in the forms set out in the Schedules to the Deed
of Covenant and/or Insurance Assignment and/or Charterer's Insurance
Assignment and/or Stena Germanica Assignment in relation to the
relevant Ship or Linkspan, in the form set out in Schedule 10 or in
such other forms as may from time to time be agreed in writing by the
Agent;
"MAJOR CASUALTY"
means an incident or occurrence whereby a Mortgaged Ship sustains
damage or is the subject of a claim in excess of the Casualty Amount;
"MAJORITY BANKS"
means Banks (including for this purpose the Standby Lender) the
aggregate of whose Commitments and/or Standby Commitment exceed
two-thirds (2/3rds) of the aggregate of (i) the total of the
Commitments of all the Banks and (ii) the Standby Commitment;
"MANAGER'S SUBORDINATION UNDERTAKINGS"
means the undertakings in the form of Schedule 14 to the Agreed Form
Certificate to be given by each Approved Manager which is a member of
the Stena AB Group on or before the Availability Date or at the time
such Approved Manager is appointed as manager of a Ship or Linkspan
after such date;
"MARGIN"
means one per cent (1.00%) (subject to adjustment under Clause 10.9);
"MATURITY DATE"
in relation to an Advance means, subject to Clause 11.4, the last day
of its Term;
"MINOR CASUALTY"
means an incident or occurrence whereby a Mortgaged Ship sustains
damage or is the subject of a claim of the Casualty Amount or less;
"MONTH"
means 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 (i) 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 and (ii) 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;
22
"MORTGAGED LINKSPAN"
means, at any relevant time, any Linkspan which is at such time subject
to a Linkspan Mortgage;
"MORTGAGED PORT"
means, at any relevant time, any Port which is at such time subject to
a Port Mortgage;
"MORTGAGED SHIP"
means, at any relevant time, any Owned Ship which is at such time
subject to a Ship Mortgage and/or the Insurances and Requisition
Compensation of which or sale proceeds or right to receive a rebate of
rentals in respect whereof are subject to a Lien pursuant to the
relevant Ship Mortgage and Deed of Covenant or any relevant Insurance
Assignment or other Security Documents but not including a Transferred
Ship (except that, for the purposes of Clauses 15 and 16, the term
"MORTGAGED Ship" shall include any Transferred Ship where the ownership
of such Transferred Ship is retained by the relevant Shipowner) and an
Owned Ship shall for the purposes of this Agreement be deemed to be a
Mortgaged Ship as from the date that the Lien in respect of that Ship
or rights relating thereto shall have been executed and registered in
accordance with this Agreement until whichever shall be the earlier of
(i) the release of the Ship Mortgage in respect of such Ship or Total
Loss of such Ship and (ii) the end of the Security Period;
"NET AVAILABLE PROCEEDS"
from any Asset Disposition or Sale and Leaseback Transaction by any
person means cash or Cash Equivalents (including, when received,
payments (including any related interest payments) in respect of
deferred payment obligations pursuant to a promissory note or
instalment receivable or otherwise) received (including by way of sale
or discounting of a note, instalment receivable or other receivable,
but excluding any other consideration received in the form of
assumption by the acquirer of Debt or other obligations relating to
such properties or assets or received in any other non-cash form)
therefrom by such person net of:-
(A) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred and all federal, state, foreign
and local taxes required to be accrued as a liability as a
consequence of such Asset Disposition or Sale and Leaseback
Transaction;
(B) all payments made by such person or its Subsidiaries on any Debt
outstanding immediately prior to such Asset Disposition or Sale
and Leaseback Transaction which is secured by such assets in
accordance with the terms of any Lien upon or with respect to
such assets or which must by the terms of such Lien, or in order
to obtain a necessary consent to such Asset Disposition or by
applicable law, be repaid out of the proceeds from such Asset
Disposition or Sale and Leaseback Transaction or by applicable
laws, be repaid out of the proceeds from such Asset Disposition
or Sale and Leaseback Transaction; and
(C) all distributions and other payments required to be made to any
person (other than Stena AB or any Subsidiary of Stena AB)
owning a beneficial interest in the assets subject to such Asset
Disposition or Sale and Leaseback Transaction;
"NET CASH SALE PROCEEDS"
means:-
(A) in relation to a Mortgaged Ship and (if relevant) its related
Linkspans or share
23
thereof which is sold (otherwise than on Credit Terms), the sale
price of such Ship and (if relevant) Linkspans or share received
by or on behalf of the relevant Shipowner (after deducting the
relevant Shipowner's reasonable costs and out-of-pocket expenses
incurred in connection with such sale including reasonable and
proper costs of drydocking the relevant vessel and carrying out
any repairs on the vessel for the purposes of complying with its
obligations under the relevant sale agreement except insofar as
the costs of such repairs are covered by insurance for the
benefit of the relevant Shipowner);
(B) in relation to a Transferred Ship which is sold pursuant to a
power conferred on the mortgagee or lessor thereof, or an
obligation on the lessor thereof, following a default by the
purchaser or lessee, the net sale proceeds of the Ship received
by the mortgagee or lessor (after deducting the costs and
out-of-pocket expenses incurred in connection with the sale)
less any part thereof due to, or belonging to, or by reference
to which a payment is to be made to, the purchaser or lessee (as
the case may be); and
(C) in relation to a Mortgaged Port or any part thereof, the sale
price thereof received by or on behalf of the relevant Port
Owner (after deducting the relevant Port Owner's reasonable
costs and out-of-pocket expenses incurred in connection with
such sale);
"NET TOTAL LOSS PROCEEDS"
means:-
(A) in relation to a Mortgaged Ship which has become a Total Loss,
the minimum amount for which such Ship was required to have been
insured under the Security Documents less any applicable
deductible, collection commissions and any other expenses
incurred by the relevant Shipowner or Stena Charterer or third
party demise charterer in recovering under the Insurances of the
Ship in respect of such Total Loss and/or recovering any
Requisition Compensation in respect thereof; and
(B) in relation to a Transferred Ship which has become a Total Loss,
the amount which the seller or lessor of the Ship is
contractually entitled as against the relevant purchaser or
lessee (as the case may be) to receive, and has received, from
the Insurances of the Ship less any part thereof due to, or
belonging to, or by reference to which a payment is to be made
to, the purchaser or lessee (as the case may be);
"NEW GUARANTEE PROVIDER"
means Nordea Bank Sverige AB (publ) acting through its office at Xxxxx
Xxxxxxxxx 00, XX-000 00 Xxxxxxxx, Xxxxxx;
"NON-RECOURSE DEBT"
means Debt or that portion of Debt of any person:-
(A) as to which neither Stena AB nor any of its Subsidiaries:-
(i) provides credit support (including any undertaking,
agreement or instrument which would constitute Debt); or
24
(ii) is directly or indirectly liable (whether pursuant to a
guarantee or otherwise) for such Debt; and
(B) no default with respect to such Debt (including any rights which
the holders thereof may have to take enforcement action against
such an Unrestricted Subsidiary) would permit (upon notice,
lapse of time or both) any holder of any other Debt of Stena AB
or any Subsidiary of Stena AB to declare a default on such other
Debt or cause the payment thereof to be accelerated or payable
prior to its Stated Maturity;
"2005 NOTEHOLDERS"
means the holders from time to time of the 2005 Notes;
"2007 NOTEHOLDERS"
means the holders from time to time of the 2007 Notes;
"2005 NOTES"
means the Senior Notes due 2005 issued by Stena AB in an amount of
$175,000,000 pursuant to the 2005 Indenture;
"2007 NOTES"
means the Senior Notes due 2007 issued by Stena AB in an amount of
$175,000,000 pursuant to the 0000 Xxxxxxxxx;
"NOTES"
means the 2005 Notes and the 2007 Notes or, where the context so
requires, means either of them;
"NOTICE OF ASSIGNMENT OF INSURANCES"
means, in respect of a Mortgaged Ship or Mortgaged Linkspan, a notice
of assignment in the form set out in Schedule 1 to the relevant Deed of
Covenant or Schedule 1 to the relevant Insurance Assignment or Schedule
1 to the relevant Charterer's Insurance Assignment or Schedule 5 to the
Stena Germanica Assignment (as the case may be), or in such other form
as may from time to time be required or agreed in writing by the Agent;
"OFFICER'S CERTIFICATE"
means a certificate of Stena AB signed by the Chairman of the Board,
the Chief Executive Officer, the President or the Chief Financial
Officer (or any other officer identified by any of the foregoing
officers in an Officer's Certificate to be an executive officer of
Stena AB), the Secretary, any Assistant Secretary, the Treasurer, the
Financial Manager, any Assistant Treasurer or the Controller of Stena
AB;
"OPINION OF COUNSEL"
means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to Stena AB, and who shall be counsel reasonably
satisfactory to the relevant trustee under each Indenture (or any
applicable Successor Financing);
"OUTSTANDING GUARANTEE AMOUNT"
means, in relation to a Bank Guarantee at any relevant time, the
maximum amount in Dollars for which such Bank Guarantee was issued or,
if a Bank Guarantee does not contain an express provision limiting the
total amount payable by the relevant Issuing Bank thereunder to a
stated maximum amount, such amount as the relevant Issuing Bank shall
from time to time certify to be the amount which it then reasonably
considers to be
25
the maximum aggregate amount (whether of principal, interest or
otherwise) which, during the remaining duration of such Bank Guarantee,
it may be required to pay to the relevant Beneficiary under such Bank
Guarantee (and for such purpose the relevant Issuing Bank may make such
estimate of its potential liability under such Bank Guarantee as it
reasonably considers appropriate provided however that where the amount
for which a Bank Guarantee was issued increases by reference to a rate
of interest the relevant Issuing Bank may only, as at any relevant date
upon which the Outstanding Guarantee Amount of a Bank Guarantee falls
to be determined, include amounts so calculated by reference to a rate
of interest to the extent that such amounts have accrued up to such
date and in calculating the Outstanding Guarantee Amount for a Bank
Guarantee in a currency other than Dollars the Agent shall calculate
the Outstanding Guarantee Amount in such currency and then convert such
amount into Dollars at the Agent's ordinary spot rate of exchange for
the purchase of such currency with Dollars as at 11.00 a.m. the date
such Outstanding Guarantee Amount falls to be determined or if such
date is not a Banking Day 11.00 a.m. on the preceding Banking Day)
less, in either case, the aggregate amount of all reductions thereof
which have been made in accordance with the provisions of Clause 5.1;
"OUTSTANDING INDEBTEDNESS"
means all sums of any kind arising at any time for any reason payable
actually or contingently by the Borrower to the Banks, the Issuing
Banks, the Standby Lender, the Co-Arrangers, the Agent, the Security
Agent or any of them under this Agreement or any other of the Security
Documents (whether by way of repayment of principal, payment of
interest or default interest, payment upon any indemnity or
counter-indemnity, reimbursement for costs or otherwise howsoever);
"OUTSTANDINGS"
in relation to a Bank means the aggregate of:-
(A) its Percentage (expressed as an amount) of the Outstanding
Guarantee Amounts of the Bank Guarantees;
(B) the principal amount of each outstanding loan to the Borrower by
that Bank pursuant to Clause 6.2; and
(C) its Contribution
(but, except for the purposes of Clause 10.9, excludes the Standby
Outstandings);
"OWNED SHIPS"
means the Ships specified in Parts A and B of Schedule 2 and such other
Ships owned by a member of the Stena AB Group as may from time to time
be mortgaged to the Security Agent as security for the Borrower's
obligations under this Agreement;
"PERCENTAGE"
as at any date means, in relation to a Bank and in respect of any Bank
Guarantee, the proportion, expressed as a percentage, which the amount
of the Commitment of such Bank bears to the total amount of the
Commitments of all of the Banks (including such Bank) as at such date
and being in relation to each Bank, on the date of this Agreement, the
percentage set out against its name in Schedule 1;
"PERMITTED INVESTMENTS"
means:-
26
(A) any Investment in any Cash Equivalent provided that the Average
Life of the aggregate of all Cash Equivalents held by Stena AB
and its Subsidiaries may not exceed one year at any time;
(B) any Related Business Investment in an amount not in excess of
the amount of Restricted Payments that Stena AB and its
Subsidiaries will be permitted to make under Clause 14.14
immediately prior to the making of such Investment;
(C) Investments made after 1 October 1997 in Unrestricted
Subsidiaries and Related Business Investments in an aggregate
amount not to exceed:-
(i) ten per cent (10%) of Consolidated Tangible Assets plus
(ii) the aggregate amount of all moneys from time to time
actually received by Stena AB or any of its Subsidiaries
in respect of Investments made from time to time pursuant
to this paragraph (C) or (in respect of Investments made
after 1 October 1997 but before the Execution Date)
paragraph (iii) of the definition of "Permitted
Investments" in the 2007 Indenture, whether such moneys
are received as interest or principal payments (in the
case of Investments made in the form of loans or other
debt instruments or other extensions of credit), as
dividends or redemption payments or return of capital (in
the case of Investments made in the form of the purchase
of Capital Stock or capital contributions) or otherwise,
provided that the aggregate amount permitted to be
invested pursuant to this sub-paragraph (ii) shall not
exceed the aggregate amount of Investments from time to
time actually made by Stena AB and its Subsidiaries
pursuant to this paragraph (C) or (in respect of
Investments made after 1 October 1997 but before the
Execution Date) paragraph (iii) of the definition of
"Permitted Investments" in the 2007 Indenture; plus
(iii) the aggregate amount of all Investments made in any
person pursuant to this paragraph (C) or (in respect of
Investments made after 1 October 1997 but before the
Execution Date) paragraph (iii) of the definition of
"Permitted Investments" in the 2007 Indenture if (and for
so long as) any such person becomes a Subsidiary of Stena
AB and provided further, that upon giving effect to such
Investment, Stena AB could incur at least $1 of
additional Debt pursuant to Clause 10.8(A); and
(D) other Investments not otherwise permitted to be made pursuant to
paragraphs (A) to (C) above, which, together with the then
outstanding amount of other Investments made pursuant to this
paragraph (D) or (in respect of Investments made after 1 October
1997 but before the Execution Date) paragraph (iv) of the
definition of "Permitted Investments" in the 2007 Indenture,
shall not exceed five per cent (5%) of Consolidated Tangible
Assets in aggregate at the time the Investment is made;
"PERMITTED LIENS"
means:-
(A) Liens securing only the Notes granted pursuant to Section 10.14
of any Indenture where equivalent Liens are granted to the
Security Agent on a pari passu basis as security for the
Outstanding Indebtedness;
27
(B) Liens in favour of Stena AB or, with respect to Liens granted by
any Subsidiary of Stena AB, in favour of Stena AB or any Wholly
Owned Subsidiary of Stena AB;
(C) Liens on property existing immediately prior to the time of
acquisition thereof (and not created in anticipation of such
acquisition);
(D) (x) Liens to secure Debt Incurred for the purpose of financing
all or any part of the purchase price or the cost of
construction or lease (pursuant to a Capitalised Lease
Obligation) of a Vessel or other property, or the cost of
improvements of a Vessel or other property used in the business
of Stena AB and its Subsidiaries and (y) Liens on any Vessel or
other property (including, without limitation, the Related
Collateral) owned or leased (pursuant to a Capitalised Lease
Obligation) by a Subsidiary of Stena AB prior to the time it
becomes a Subsidiary of Stena AB to secure Debt Incurred by
Stena AB (or any Subsidiary of Stena AB), in an amount not to
exceed the Fair Market Value of such Vessel or other property or
such Subsidiary, for the purpose of financing (or refinancing)
all or part of the acquisition cost of such Subsidiary, but only
if such Debt is Incurred within 180 days after the acquisition
of such Subsidiary; provided that, with respect to clauses (x)
and (y) above:-
(i) in the case of a Vessel or Vessels, the principal amount
of any Debt secured by such a Lien does not exceed 80% of
the Ready for Sea Cost of a Vessel (or, with respect to
Debt Incurred under a single financing facility to
finance all or part of the purchase price or construction
cost of two or more Vessels, the aggregate Ready for Sea
Cost of such group of Vessels) or such Fair Market Value
(as the case may be) of such Vessel or other property;
and provided further that the principal amount of Debt
secured by such a Lien may be up to 100% of the Ready for
Sea Cost of such Vessel or Vessels if such Debt financing
consists of Capitalised Lease Obligations; and provided
further that, with respect to any Debt Incurred to
finance the replacement of a Vessel as described in
Clause 14.8(B)(iii) or 14.9(A), the principal amount of
such Debt secured by such Lien may be up to 100% of the
Ready for Sea Cost of such replacement Vessel less all
compensation, damages or other such payments (including
insurance proceeds other than in respect of business
interruption insurance, protection and indemnity
insurance or other third-party liability insurance)
received in connection with a Total Loss in excess of
amounts actually used to repay Debt secured by the Vessel
subject to the Total Loss;
(ii) such Liens do not extend to or cover any property other
than such Vessel or other property and Related Collateral
and any such improvements;
(iii) the Incurrence of such Debt is permitted by the
provisions of Clause 14.8 and, if applicable, Clause
14.9; and
(iv) any such Liens (other than Liens of the type described in
paragraph (D) of the definition of "Related Collateral")
attach within 180 days after the date of the acquisition
or delivery (or completion of such improvements) of such
Vessel or group of Vessels or person or other property;
28
(E) Liens on property of a person existing at the time such person
is merged into or consolidated with or acquired by Stena AB or
any Subsidiary of Stena AB that were not created in anticipation
of the acquisition of such person;
(F) Permitted Ship Liens and any other Liens in respect of Vessels
and Related Collateral arising in the ordinary course of
business which, individually or in the aggregate do not
materially and adversely affect such Vessel or materially impair
the use and operation thereof or the business of Stena AB and
its Subsidiaries;
(G) Liens to secure obligations under workmen's compensation laws or
similar legislation, including Liens with respect to judgments
which are not currently dischargeable;
(H) Liens to secure Debt Incurred to refinance, in whole or in part,
(i) any secured Debt existing on the date of this Agreement or
(ii) any Debt secured by Liens referred to in paragraphs (A) to
(G) above and paragraphs (J) and (M) below, so long as in each
such case the Liens do not extend to any other property (except
for the Related Collateral, or other property and Related
Collateral secured by Debt which is being concurrently
refinanced on a cross-collateralised basis) and the aggregate
principal amount of Debt so secured (which amount shall be
deemed to include the amount of any undrawn or available amounts
under any credit or lease facility to be so refinanced) is not
increased (other than as permitted pursuant to Clause
14.8(B)(v)(a)(y) or Clause 14.9(F)(i)(b)) by an amount greater
than the amount of any premium required to be paid in connection
with such refinancing pursuant to the terms of the Debt
refinanced or the amount of any premium reasonably determined by
Stena AB as necessary to accomplish such refinancing by means of
a tender offer or privately negotiated repurchase, plus the
expenses of Stena AB or any of its Subsidiaries incurred in
connection with such refinancing;
(I) any Liens securing Debt owing by Stena AB to one or more Wholly
Owned Subsidiaries of Stena AB;
(J) subject to compliance with sections (i), (iii) and (iv) of
paragraph (D) above, a pledge of, or other Lien in respect of,
the Capital Stock of a Single-Purpose Vessel-Owning Subsidiary
made to secure (i) Debt Incurred by such Single-Purpose
Vessel-Owning Subsidiary to finance or refinance the
acquisition, construction or improvement of a Vessel by such
Subsidiary or (ii) Debt Incurred by Stena AB or any Subsidiary
of Stena AB to finance or refinance the acquisition of any or
all of the Capital Stock of such Single-Purpose Vessel-Owning
Subsidiary;
(K) Liens in respect of Vessels and Related Collateral otherwise
permitted hereunder and incurred solely by reason of the
substitution of a new mortgage or other security agreements for
an existing agreement (or the novation or assignment of such
existing agreement), the effect of which new agreement, novation
or assignment is to effect the reflagging of the Vessel or
Vessels to which such existing agreement relates;
(L) Liens created by this Agreement and the Security Documents and
Liens incurred to secure any other Revolving Credit Facilities
as required by the terms thereof;
29
(M) a pledge or assignment of a promissory note (or other evidence
of indebtedness), or the assignment of a mortgage or other
security interest, or guarantee received by or granted to Stena
AB or any of its Subsidiaries pursuant to an Asset Disposition
to secure the unpaid portion of any Debt of Stena AB or any of
its Subsidiaries attributable to the property sold in such Asset
Disposition;
(N) subject to the limit imposed by Clause 14.6, Liens in respect of
Related Collateral and/or other property required to be granted
under the terms of an agreement governing Debt of Stena AB or
any Subsidiary of Stena AB to provide additional security to the
lenders under such agreement in the event the value of the
Vessel or Vessels and other property securing such Debt falls
below the level specified in such agreement; and
(O) Liens on a Vessel, Related Collateral (and/or the contract for
the acquisition of such Vessel and/or Related Collateral)
existing only during the construction of such Vessel and granted
to secure the builder's obligations in respect of construction
financing for such Vessel obtained by such builder;
"PERMITTED SHIP LIENS"
means:-
(A) any ship repairer's or outfitter's possessory lien for a sum not
(except with the prior written consent of the Agent or where the
cost of the relevant work is covered by the vessel's insurances
or is required for the purpose of maintaining the vessel's
classification) exceeding the Casualty Amount;
(B) any lien on a vessel for master's, officer's or crew's wages
outstanding in the ordinary course of trading;
(C) any lien for salvage;
(D) liens arising in the ordinary course of trading by statute or by
operation of law in respect of obligations which are not overdue
or which are being contested in good faith by appropriate
proceedings (and for the payment of which adequate reserves have
been provided) so long as any such proceedings or the continued
existence of such lien do not involve any likelihood of the
sale, forfeiture or loss of, or of any interest in, any vessel
owned by or chartered to a Security Party or any other member of
Stena AB Group;
(E) liens securing liabilities for Taxes against which adequate
reserves have been provided;
(F) liens arising in respect of a Ship or Linkspan by reason of an
act or omission of a charterer (other than a Stena Charterer) of
the Ship or Linkspan, in relation to which the relevant
Shipowner or Stena Charterer demonstrates to the reasonable
satisfaction of the Agent that it is taking all reasonable steps
available to it with due dispatch to procure the lifting of the
lien;
"PLANNING ACTS"
means, in the case of Holyhead Port or any other Port situated in
England and Wales, the Town and Country Planning Acts 1990 and, in the
case of Stranraer Port or any other Port situated in Scotland, the Town
and Country Planning (Scotland) Act 1972 (including in each case any
Act or Acts for the time being amending or replacing such Acts and any
30
orders, regulations and direction issued under or by virtue of such
Acts or such amending or replacing Acts for the time being in force);
"PORT"
means each of Holyhead Port and Stranraer Port and includes any other
port which is or may become owned by a member of the Stena AB Group;
"PORT MORTGAGE"
means:-
(A) in the case of Holyhead Port, the Holyhead Charge; and
(B) in the case of Stranraer Port, the Stranraer Charge;
"PORT OWNER"
means, in relation to a Mortgaged Port, the owner thereof being, at the
date of this Agreement, Stena Line Ports in respect of both Holyhead
Port and Stranraer Port;
"PORT OWNER'S GUARANTEE"
means, in respect of each Port Owner, the deed of guarantee and
indemnity to be executed and delivered by that Port Owner in favour of
the Security Agent in substantially the form set out in Schedule 2 to
the Agreed Form Certificate;
"PORT OF REGISTRY"
means in relation to a Mortgaged Ship the port of registry approved in
writing by the Banks at which such Ship is, or is to be registered on,
or at any relevant time after, the Execution Date;
"POST COMPLETION REGISTRATIONS"
means registration of the Liens created by any of the Security
Documents and the restriction contained in Clause 14.6 which require to
be completed within a period after execution thereof and/or hereof
under the laws of any relevant jurisdiction;
"POST-DELIVERY FINANCING"
means Debt Incurred by Stena AB or any Subsidiary of Stena AB to
finance the total Ready for Sea Cost of a Vessel or group of Vessels
and "Post-Delivery Financing" shall include the amount of any
Construction Financing with respect to any Vessel or group of Vessels,
but only to the extent that fully committed Post-Delivery Financing for
such Vessel or group of Vessels has been arranged at such time;
"PREFERRED STOCK"
as applied to the Capital Stock of any person, means Capital Stock of
such person of any class or classes (however designated) that ranks
prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or
winding up of such person, to shares of Capital Stock of any other
class of such person;
"PRIOR CHARTERER'S INSURANCE ASSIGNMENTS"
means those assignments of Insurances executed by Stena Charterers as
security for the SIBV $275m Facility further particulars of which are
set out in Part C of Schedule 4 (and shall include any such assignments
executed after the Execution Date as required by the SIBV $275m
Facility Agreement in respect of any of the Ships and Linkspans subject
to a Prior Mortgage);
31
"PRIOR DEEDS OF COVENANT"
means:-
(A) in respect of each of the Ships listed in Part B of Schedule 2
and "LINKSPAN I" and LINKSPAN II", the first priority deed of
covenant collateral to the Prior Mortgage thereon further
particulars of which are set out in Part B of Schedule 4;
(B) in respect of any Designated Ship over which a second priority
mortgage or charge is granted pursuant to Clause 9.4(E), the
first priority deed of covenant collateral to the Prior Mortgage
thereon granted as security for payment of the SIBV $275m
Facility; and
(C) in respect of any of the foregoing Mortgaged Ships and Mortgaged
Linkspans which is reflagged in accordance with Clause 23.12 and
which after such reflagging is a Designated Ship, the first
priority deed of covenant collateral to the substitute Prior
Mortgage thereon granted as security for payment of the SIBV
$275m Facility;
"PRIOR INSURANCE ASSIGNMENT"
means, in respect of any non-Designated Ship over which a Prior
Mortgage is at any time granted, the first priority assignment of the
Insurances thereof granted as security for payment of the SIBV $275m
Facility;
"PRIOR MORTGAGES"
means:-
(A) in respect of each of the Ships listed in Part B of Schedule 2,
the first priority statutory mortgage or, in the case of any
such Ship registered in Sweden, the first priority mortgage and
pledge of mortgage thereon further particulars of which are set
out in Part A of Schedule 4;
(B) in respect of each of "LINKSPAN I" and "LINKSPAN II", the first
priority mortgage and pledge of mortgage thereon further
particulars of which are set out in Part A of Schedule 4;
(C) in respect of Holyhead Port, the first priority legal charge in
respect thereof further particulars of which are set out in Part
A of Schedule 4;
(D) in respect of Stranraer Port, the first priority standard
security in respect thereof further particulars of which are set
out in Part A of Schedule 4;
(E) in respect of any Ship or Linkspan or Port over which a second
priority mortgage or charge is granted pursuant to Clause 9.4
(E), the first priority mortgage or charge thereon granted as
security for payment of the SIBV $275m Facility; and
(F) in respect of any of the foregoing Mortgaged Ships and Mortgaged
Linkspans which is reflagged in accordance with Clause 23.12,
the first priority mortgage thereon executed in substitution for
the existing first priority mortgage;
"PRIOR SECURITY DOCUMENTS"
means the Prior Charterer's Insurance Assignments, the Prior Deeds of
Covenant, the Prior Insurance Assignments (if any), the Prior
Mortgages, the Prior Stena Germanica
32
Assignment and any other first priority security document from time to
time securing payment of the SIBV $275m Facility.
"PRIOR STENA GERMANICA ASSIGNMENT"
means the first priority assignment of all the right, title and
interest of the Borrower in the Stena Germanica Loan Documents dated 28
September 2001 made by (1) the Borrower in favour of (2) Svenska
Handelsbanken AB (publ);
"2005 PROSPECTUS"
means the final prospectus of Stena AB relating to the initial public
offering of the 2005 Notes, such prospectus having been filed with the
Securities and Exchange Commission in Washington, D.C. with
registration number 33-99284;
"2007 PROSPECTUS"
means the final prospectus of Stena AB relating to the initial public
offering of the 2007 Notes, such prospectus having been filed with the
Securities and Exchange Commission in Washington, D.C. with
registration number 333-7486;
"READY FOR SEA COST"
means, with respect to a Vessel or Vessels to be acquired or leased
(pursuant to a Capitalised Lease Obligation) by Stena AB or any
Subsidiary of Stena AB, the aggregate amount of all expenditures
incurred to acquire or construct and bring such Vessel or Vessels to
the condition and location necessary for its intended use which would
be classified and accounted for as "property, plant and equipment" in
accordance with Swedish GAAP;
"RECEIVABLES ASSIGNMENT"
means the assignment to be granted in favour of the Security Agent in
accordance with Clause 9.4(L) in respect of the deferred purchase
consideration and Insurances and other security granted in relation to
a Transferred Ship substantially in the form set out in:-
(A) Schedule 15 to the Agreed Form Certificate in relation to a Ship
sold on terms set out in paragraph (A) of the definition of
Transferred Ship if immediately prior to such sale such Ship is
subject to a Ship Mortgage ranking with first priority;
(B) Schedule 16 to the Agreed Form Certificate in relation to a Ship
sold on terms set out in paragraph (A) of the definition of
Transferred Ship if immediately prior to such sale such Ship is
subject to a Ship Mortgage ranking with second priority;
(C) Schedule 17 to the Agreed Form Certificate in relation to a Ship
sold on terms set out in paragraph (B) of the definition of
Transferred Ship if immediately prior to such sale such Ship is
subject to a Ship Mortgage ranking with first priority;
(D) Schedule 18 to the Agreed Form Certificate in relation to a Ship
sold on terms set out in paragraph (B) of the definition of
Transferred Ship if immediately prior to such sale such Ship is
subject to a Ship Mortgage ranking with second priority;
"REDEEMABLE STOCK"
of any person means any equity security of such person that by its
terms or otherwise is required to be redeemed prior to the Termination
Date or is redeemable at the option of the holder thereof at any time
prior to the Termination Date;
33
"REFERENCE BANKS"
means the principal London offices of Svenska Handelsbanken AB (publ),
JPMorgan Chase Bank and Nordea Bank Finland Plc and/or any other Bank
appointed as such pursuant to this Agreement;
"REFERENCE DATE"
has the meaning ascribed to it in Clause 14.21(B);
"REFINANCE"
has the meaning ascribed to it in Clause 14.8(B)(v) and shall be deemed
to include successive refinancings;
"RELATED BUSINESS INVESTMENT"
means an Investment made in a person engaged in the same or a similar
line of business as Stena AB and its Subsidiaries or made for the
purpose of maintaining, enhancing the productivity of or expanding the
capabilities of Stena AB and its Subsidiaries in any business activity
permitted under Clause 14.12 (as determined, with respect to any such
Investment or series of related Investments in an aggregate amount of
$5,000,000 or more, in good faith by the Board of Directors of the
person making such Investment);
"RELATED COLLATERAL"
means, with respect to a Vessel:-
(A) any insurance policies on such Vessel;
(B) any requisition compensation payable in respect of any
compulsory acquisition thereof;
(C) any earnings derived from the use or operation thereof and/or
any earnings account with respect to such earnings, provided
that any assignment with respect thereto may only permit the
assignee thereof to apply such earnings to the repayment of Debt
held by such assignee:-
(i) upon the occurrence and during the continuation of a
payment default with respect to such Debt or upon the
acceleration of such Debt (unless such acceleration has
been rescinded); or
(ii) in the case of any other default with respect to such
Debt which would allow for the acceleration of such Debt
at such time, but only until the earliest of:-
(a) 180 days after the initial occurrence of such
default;
(b) the date such default is cured or waived; and
(c) the date such Debt is repaid in full;
(D) any charters, operating leases, licences and related agreements
entered into in respect of the Vessel and any security or
guarantee in respect of the relevant charterer's or lessee's
obligations under any relevant charter, operating lease, licence
or related agreement;
(E) any cash collateral account established with respect to such
Vessel pursuant to the financing arrangements with respect
thereto;
34
(F) any inter-company loan or facility agreements relating to the
financing of the acquisition of, and/or the leasing
arrangements, pursuant to Capitalised Lease Obligations) with
respect to, such Vessel;
(G) any building or conversion contracts relating to such Vessel and
any security or guarantee in respect of the builder's
obligations under such contracts;
(H) any interest rate swap, foreign currency hedge, exchange or
similar agreement incurred in connection with the financing of
such Vessel and required to be assigned by the lender; and
(I) any security interest in, or agreement or assignment relating
to, any of the foregoing or any mortgage in respect of such
Vessel;
"RELATED PERSON"
of any person means any other person directly or indirectly owning:-
(A) five per cent (5%) or more of the outstanding Common Stock of
such person (or, in the case of a person that is not a
corporation, five per cent (5%) or more of the equity interest
in such person); or
(B) five per cent (5%) or more of the combined voting power of
Voting Stock of such person;
"REQUISITION COMPENSATION"
means, in relation to a Ship or Linkspan, 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 or Linkspan;
"REVOLVING CREDIT FACILITIES"
means the facilities granted to the Borrower under this Agreement and
any one or more other revolving or other credit facilities to which
Stena AB and/or one or more Subsidiaries of Stena AB may become parties
(as obligor or guarantor) after the Execution Date in an aggregate
principal amount not to exceed $600,000,000 at any time outstanding
(but, for the avoidance of doubt, excludes the SIBV $275m Facility);
"SALE AGREEMENT"
means each document regulating the sale of a Ship on Credit Terms
entered into by a Shipowner after the Execution Date;
"SALE AND LEASEBACK TRANSACTION"
of any person means an arrangement with any lessor, lender, obligee or
investor or to which such lessor, lender, obligee or investor is a
party providing for the leasing or renting by such person of any
property or asset of such person which has been or is being sold or
transferred by such person more than two hundred and seventy (270) days
after the acquisition thereof or, if later, the delivery or
commencement of operation thereof, to such lessor, lender, obligee or
investor or to any person to whom funds have been or are to be advanced
by such lessor, lender, obligee or investor on the security of such
property or asset and the Stated Maturity of such arrangement shall be
the date of the last scheduled payment of rent or any other amount due
under such arrangement prior to the first date on which such
arrangement may be terminated by the lessee without payment of a
penalty;
35
"SCANDLINES"
means Scandlines AB, a company incorporated under the laws of the
Kingdom of Sweden with registration number 556206-4575 in the Swedish
Companies Register and having its registered office at Xxxxxxxxxxx 00,
XX-000 00 Xxxxxxxxxxx, Xxxxxx;
"SECURITIES ACT"
refers to the Securities Act of 1933 of the United States of America as
it may be amended and any successor act thereto;
"SECURITY AGENT"
means Svenska Handelsbanken AB (publ) or such other person as may be
appointed security agent for the Banks, the Issuing Banks, the
Co-Arrangers, the Standby Lender and the Agent pursuant to this
Agreement;
"SECURITY DOCUMENTS"
means this Agreement, the Ship Mortgages, the Deeds of Covenant, the
Insurance Assignments, the Shipowner's Guarantees, the Linkspan
Mortgages, the Charterer's Insurance Assignments, the Charterer's
Subordination Undertakings, the Manager's Subordination Undertakings,
the Stena Germanica Assignment, each Receivables Assignment, the Port
Owner's Guarantees, the Port Mortgages, the Cash Collateral Account
Pledges 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 any moneys from time to time owing by the
Borrower 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 any person who may at any time be a party to any of the Security
Documents (other than the Banks, the Standby Lender, the Issuing Banks,
the Co-Arrangers, the Agent and the Security Agent) but does not
include either any such party as and when it has ceased to be under any
continuing obligation under the Security Documents and its property has
ceased to be (or was never) subject to any Lien pursuant to any of the
Security Documents or any party which is not a member of the Stena AB
Group;
"SECURITY PERIOD"
means the period commencing on the Execution Date and terminating upon
the later of (i) the end of the Availability Period (ii) the end of the
Standby Availability Period and (iii) the discharge of the security
created by the Security Documents by payment of moneys payable
thereunder and the discharge and release, to the satisfaction of the
Issuing Banks and the Agent, of all Bank Guarantees;
"SHIP MORTGAGE"
means, in relation to an Owned Ship:-
(A) in the case of a Designated Ship referred to in Part A of
Schedule 2 (other than a Ship registered in Sweden), the first
priority statutory mortgage of the Ship executed (or as the
context may require) to be executed and registered by the
relevant Shipowner in favour of the Security Agent including the
appropriate narrative text set out in Schedule 3 to the Agreed
Form Certificate (being Schedule 3.2 in respect of Stena Rederi
AB and Stena Line Scandinavia and Schedule 3.1 in respect of
each other Shipowner);
36
(B) in the case of a Designated Ship referred to in Part B of
Schedule 2 (other than a Ship registered in Sweden), the second
priority statutory mortgage of the Ship executed (or as the
context may require) to be executed and registered by the
relevant Shipowner in favour of the Security Agent including the
appropriate narrative text set out in Schedule 4 to the Agreed
Form Certificate (being Schedule 4.2 in respect of Stena Rederi
AB and Stena Line Scandinavia and Schedule 4.1 in respect of
each other Shipowner);
(C) in the case of a Ship referred to in Part A of Schedule 2 which
is registered in Sweden, the first priority pledge of mortgage
of the Ship to be executed by the relevant Shipowner in the form
or substantially in the form set out in Schedule 5 to the Agreed
Form Certificate (being Schedule 5.2 in respect of Stena Rederi
AB and Stena Line Scandinavia and Schedule 5.1 in respect of
each other Shipowner);
(D) in the case of a Ship referred to in Part B of Schedule 2 which
is registered in Sweden, the second priority pledge of mortgage
of the Ship executed or to be executed by the relevant Shipowner
in the form or substantially in the form set out in Schedule 6
to the Agreed Form Certificate (being Schedule 6.2 in respect of
Stena Rederi AB and Stena Line Scandinavia and Schedule 6.1 in
respect of each other Shipowner), which mortgage and pledge of
mortgage in the case of m.v. "Stena Germanica" (the Stena
Germanica Mortgage) has been executed and assigned to the
Borrower (as assignee from Stena Line Scandinavia (as assignee
from Stena Line)) and is to be on-assigned by the Borrower to
the Security Agent under the Stena Germanica Assignment as
security for the Outstanding Indebtedness;
(E) in the case of any other Owned Ship over which, after the
Availability Date, a first priority mortgage is to be executed
and registered by the relevant Shipowner, a mortgage in a form
and substance acceptable to the Agent but in any event
substantially similar to the mortgages described in paragraphs
(A) and (C) above and including, where appropriate, mortgage
covenants substantially similar to those contained in the pro
forma Deed of Covenants set out in Schedule 7 to the Agreed Form
Certificate;
(F) in the case of any other Owned Ship over which, after the
Availability Date, a second priority mortgage is to be executed
and registered by the relevant Shipowner, a mortgage in a form
and substance acceptable to the Agent but in any event
substantially similar to the mortgages described in paragraphs
(B) and (D) above and including, where appropriate, mortgage
covenants substantially similar to those contained in the pro
forma Deed of Covenants set out in Schedule 8 to the Agreed Form
Certificate;
and "SHIP MORTGAGES" means all of such mortgages;
"SHIPOWNER"
means, in relation to a Ship or Linkspan, the registered owner or
owners thereof and being at the date of this Agreement, in relation to
a Ship identified in Schedule 2, the company whose name is set forth
opposite the name of such Ship in Schedule 2;
37
"SHIPOWNER'S GUARANTEE"
means, in respect of each Shipowner and each member of the Stena
International Group which at any time during the Security Period owns a
Ship or Linkspan or sells a Mortgaged Ship on Credit Terms (other than,
in either case, Stena Rederi AB or Stena Line Scandinavia), the deed of
guarantee and indemnity to be executed and delivered by that Shipowner
or other member of the Stena International Group in favour of the
Security Agent in substantially the form set out in Schedule 1 to the
Agreed Form Certificate (provided that no Shipowner's Guarantee shall
be required from Scandlines by reason of its registered ownership of
m.v. "Stena Germanica" as long as the Stena Germanica Loan Documents
remain in place in favour of the Borrower and are assigned to the
Security Agent under the Stena Germanica Assignment);
"SHIPS"
means each of the ships listed in Schedule 2 and includes any other
Vessel in relation to which a Ship Mortgage, or in relation to rights
to the sale proceeds, Insurances or rebate of rentals of which a Lien,
may be granted to the Security Agent during the Security Period
directly or indirectly as security for the obligations of the Borrower
under this Agreement and "SHIP" means any of them;
"SIBV $275M FACILITY"
means the secured multipurpose corporate facility in the amount of up
two hundred and seventy five million Dollars ($275,000,000) made
available to the Borrower pursuant to the SIBV $275m Facility Agreement
or, as the context may require, the maximum amount of such facility as
it may be cancelled or otherwise reduced from time to time;
"SIBV $275M FACILITY AGREEMENT"
means the facility agreement dated 25 September 2001 as amended by an
amendment dated of even date herewith made between (1) the Borrower as
borrower, (2) X.X. Xxxxxx plc, Nordbanken AB (publ) and Svenska
Handelsbanken AB (publ) as co-arrangers, (3) the banks and financial
institutions defined therein as "Banks" as lenders, (4) Svenska
Handelsbanken AB (publ) as agent, (5) Svenska Handelsbanken AB (publ)
as security agent and (6) Stena AB as guarantor pursuant to which such
lenders agreed to make available to the Borrower a secured multipurpose
corporate facility in the amount of up to two hundred and seventy five
million Dollars ($275,000,000);
"SIBV $275M FACILITY INTERCREDITOR AGREEMENT"
means the intercreditor agreement in respect of the Ships listed in
Part B of Schedule 2 and the Ports executed or (as the context may
require) to be executed between (1) Svenska Handelsbanken AB (publ) and
(2) the Security Agent in the form set out in Schedule 23 to the Agreed
Form Certificate;
"SIBV $500M FACILITY"
means the secured multipurpose corporate facility in the amount of up
to five hundred million Dollars ($500,000,000) made available to the
Borrower pursuant to the SIBV $500m Facility Agreement;
"SIBV $500M FACILITY AGREEMENT"
means the facility agreement dated 11 December 1995 (as amended,
novated and restated from time to time) made between (1) the Borrower
as borrower, (2) JPMorgan Chase Bank (then called The Chase Manhattan
Bank), Nordea Bank Sverige AB (publ) (then called Nordbanken AB
(publ)), Svenska Handelsbanken AB (publ) and ABN Amro Bank N.V. as
co-arrangers, (3) the banks and financial institutions defined therein
as "Banks" as lenders, (4) JPMorgan Chase Bank (then called The Chase
Manhattan Bank) as issuing
38
bank, (5) Svenska Handelsbanken AB (publ) as standby lender, (6)
Svenska Handelsbanken AB (publ) as agent, (7) Svenska Handelsbanken AB
(publ) as security agent and (8) Stena AB as guarantor pursuant to
which such lenders agreed to make available to the Borrower a secured
multipurpose corporate facility in the amount of up to five hundred
million Dollars ($500,000,000);
"SINGLE-PURPOSE VESSEL-OWNING SUBSIDIARY"
means a Subsidiary of Stena AB the sole purpose of which is to own or
lease (pursuant to a Capitalised Lease Obligation) one (but not more
than one) Vessel;
"STANDBY AVAILABILITY PERIOD"
means the period from the Availability Date and ending on the
Termination Date or the period ending on such earlier date (if any) (i)
on which the Borrower cancels the Standby Commitment under Clause 7.10
or (ii) on which the Standby Commitment is reduced to zero pursuant to
any provision of this Agreement or (iii) on which the Borrower cancels
the Commitments in full or (iv) on which the Commitments are reduced to
zero pursuant to any provision of this Agreement;
"STANDBY COMMITMENT"
means the sum of $30,000,000 which the Standby Lender has agreed to
make available to the Borrower under Clause 7;
"STANDBY FACILITY"
means the facility made available to the Borrower pursuant to Clause 7;
"STANDBY LENDER"
means Svenska Handelsbanken AB (publ) acting through its London branch;
"STANDBY OUTSTANDINGS"
means the aggregate of the principal amounts outstanding from the
Borrower in relation to the Standby Facility pursuant to Clause 7;
"STANDBY RATE"
means:-
(A) in relation to a drawing for a particular period, the Standby
Lender's per annum offered rate in the London Interbank Market
at or about 11.00 a.m. on the second London Banking Day before
the first day of such period for deposits in an amount
approximately equal to the amount of such drawing for a period
equivalent to such period; or
(B) in relation to drawings on a call basis, the Standby Lender's
base rate for Dollar currency accounts;
"STATED MATURITY"
means:-
(A) with respect to any debt security, the date specified in such
debt security as the fixed date on which the final instalment of
principal of such debt security is due and payable; or
39
(B) with respect to any specified scheduled instalment of principal
or interest on any debt security, the date specified in such
debt security as the fixed date on which such instalment is due
and payable;
"STENA AB"
means Stena AB (publ.) a company incorporated under the laws of the
Kingdom of Sweden with registration number 556001-0802 in the Swedish
Companies Register and having its registered office at Masthuggskajen,
XX-000 00 Xxxxxxxxxx, Xxxxxx;
"STENA AB GROUP"
means Stena AB and its Subsidiaries and "MEMBER OF THE STENA AB GROUP"
means Stena AB or any of its Subsidiaries;
"STENA CHARTERER"
means any member of the Stena AB Group to whom a Mortgaged Ship or a
Transferred Ship or a Mortgaged Linkspan may be chartered;
"STENA GERMANICA ASSIGNMENT"
means the second priority assignment of all the right, title and
interest of the Borrower in the Stena Germanica Loan Documents to be
executed and delivered by the Borrower in favour of the Security Agent
in substantially the form set out in Schedule 19 to the Agreed Form
Certificate;
"STENA GERMANICA CHARTERER'S INSURANCE ASSIGNMENT"
means the first priority assignment of Insurances in respect of m.v.
"Stena Germanica" dated 28 September 2001 executed by Stena Line
Scandinavia as bareboat charterer thereof in favour of the Borrower;
"STENA GERMANICA CHARTERER'S SUBORDINATION UNDERTAKING"
means the charterer's subordination undertaking in respect of m.v.
"Stena Germanica" dated 28 September 2001 executed by Stena Line
Scandinavia as bareboat charterer thereof in favour of the Borrower;
"STENA GERMANICA DEED OF COVENANT"
means the deed of covenant dated 21 December 2000 made between
Scandlines as owner and Stena Line as mortgagee as assigned by Stena
Line to Stena Line Scandinavia pursuant to the Stena Line Asset
Purchase Agreement and as amended by an amendment no. 1 thereto dated
28 September 2001 made between Scandlines, Stena Line Scandinavia and
the Borrower amending certain provisions thereof and assigning all of
Stena Line Scandinavia's rights, title and interest thereunder to the
Borrower;
"STENA GERMANICA LOAN AGREEMENT"
means the inter-company loan agreement dated 21 December 2000 made
between Scandlines as borrower and Stena Line as lender under which
Stena Line made available to Scandlines a loan in the amount of
$52,000,000 as assigned by Stena Line to Stena Line Scandinavia
pursuant to the Stena Line Asset Purchase Agreement and as amended by
an amendment no. 1 thereto dated 28 September 2001 made between
Scandlines, Stena Line Scandinavia and the Borrower amending certain
provisions thereof and assigning all of Stena Line Scandinavia's right,
title and interest thereunder to the Borrower;
40
"STENA GERMANICA LOAN DOCUMENTS"
means the Stena Germanica Loan Agreement, the Stena Germanica Mortgage,
the Stena Germanica Deed of Covenant, the Stena Germanica Charterer's
Insurance Assignment and the Stena Germanica Charterer's Subordination
Undertaking;
"STENA GERMANICA MORTGAGE"
means the first priority mortgage and pledge of mortgage of m.v. "Stena
Germanica" dated 21 December 2000 executed and registered by Scandlines
in favour of Stena Line as assigned by Stena Line to Stena Line
Scandinavia pursuant to the Stena Line Asset Purchase Agreement and as
assigned by Stena Line Scandinavia to the Borrower on 28 September
2001;
"STENA INTERNATIONAL GROUP"
means Stena International B.V. and its Subsidiaries;
"STENA LINE"
means Forvaltningsaktiebolaget Lastluckan (formerly Stena Line AB), a
company incorporated under the laws of the Kingdom of Sweden;
"STENA LINE ASSET PURCHASE AGREEMENT"
means the agreement dated 25 September 2001 made between Stena Line and
Stena Line Scandinavia pursuant to which (inter alia) Stena Line has
assigned all its rights in respect of the Stena Germanica Loan
Agreement, the Stena Germanica Mortgage and the Stena Germanica Deed of
Covenant to Stena Line Scandinavia;
"STENA LINE PORTS"
means Stena Line Ports Limited, a company incorporated with limited
liability under the laws of England and Wales with company number
1824328 and having its registered office at Xxxxxxx Xxxxx, Xxxx Xxxxxx,
Xxxxxxx, Xxxx, XX00 0XX;
"STENA LINE SCANDINAVIA"
means Stena Line Scandinavia AB, a company incorporated under the laws
of the Kingdom of Sweden with registration number 556231-7825 in the
Swedish Companies Register and having its registered office at XX-000
00 Xxxxxxxxxx, Xxxxxx;
"STENA TAY NOTE AGREEMENT"
means the note agreement dated as of 15 July 1999 made between Stena
Tay Limited, Stena Maritime AG, the Borrower, Stena AB and the
purchasers named in Schedule 1 thereto in relation to the issue of the
Stena Tay Notes;
"STENA TAY NOTES"
means the Senior Secured Guaranteed Notes issued by Stena Tay Limited
pursuant to the Stena Tay Note Agreement;
"XXXX X. XXXXXX FAMILY"
means:-
(A) Sten Xxxxx Xxxxxx;
(B) all the lineal descendants in direct line of the said Sten Xxxxx
Xxxxxx;
(C) a husband and wife or former husband or wife or widower or widow
of any of the above persons; and
41
(D) the estates or legal representatives of any of the above persons
and so that for the purposes of this definition a step-child or adopted
child or illegitimate child of any person shall be deemed to be a
lineal descendant of such person and of the lineal ascendants of such
person;
"XXXX X. XXXXXX FAMILY TRUSTS"
means trusts (whether arising under settlement, declaration of trust or
other instrument by whomsoever or wheresoever made or under a
testamentary disposition or on an intestacy) under which no immediate
beneficial interest in the property which is the subject of such trust
is for the time being vested in any person other than members of the
Xxxx X. Xxxxxx Family;
"STRANRAER CHARGE"
means the Scots law second priority standard security in respect of
Stranraer Port to be executed and delivered by Stena Line Ports in
favour of the Security Agent in substantially the form set out in
Schedule 21 to the Agreed Form Certificate;
"STRANRAER PORT"
means all of the property belonging to Stena Line Ports at Stranraer
Harbour, Stranraer, County of Wigtown, Scotland as is more particularly
described in the Stranraer Charge;
"SUBORDINATED DEBT"
means Debt of Stena AB or any Subsidiary of Stena AB which is
subordinate or junior in right of payment to the Notes (or any
applicable Successor Financing) pursuant to a written agreement;
"SUBSIDIARY"
of any person means:-
(A) a corporation more than fifty per cent (50%) of the outstanding
Voting Stock of which is owned, directly or indirectly, by such
person or by one or more other Subsidiaries of such person or by
such person and one or more Subsidiaries thereof; or
(B) any other person (other than a corporation) in which such
person, or one or more other Subsidiaries of such person or such
person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to
direct the policies, management and affairs thereof
but for the purposes of the definitions of "Affiliate", "Asset
Disposition", "Consolidated Cash Flow", "Consolidated Interest Coverage
Ratio", "Consolidated Interest Expense", "Consolidated Net Income",
"Consolidated Tangible Assets", "Construction Financing", "Disqualified
Stock", "Investment", "Lien", "Net Available Proceeds", "Non-Recourse
Debt", "Permitted Investments", "Permitted Liens", "Post-Delivery
Financing", "Ready for Sea Cost", "Related Business Investment",
"Revolving Credit Facilities", "Single-Purpose Vessel-Owning
Subsidiary", "Subordinated Debt", "Unrestricted Subsidiary", "Vessels",
"Vessel Construction Contract", "Wholly Owned Subsidiary" and the
proviso to the definition of "Incur" and Clauses 14.6, 14.7, 14.8,
14.9, 14.10, 14.11, 14.12 and 14.14 Unrestricted Subsidiaries shall be
deemed not to be Subsidiaries of Stena AB;
"SUCCESSOR FINANCING"
has the meaning ascribed thereto in Clause 14.18;
42
"SWEDISH GAAP"
means generally accepted accounting principles in the Kingdom of
Sweden, consistently applied and (but only in relation to the
definitions of "Capitalised Lease Obligation", "Consolidated Cash
Flow", "Consolidated Interest Coverage Ratio", "Consolidated Interest
Expense", "Consolidated Net Income", "Consolidated Operating Income",
"Consolidated Tangible Assets" and "Tangible Assets" and not for any
other purpose of this Agreement) as in effect on 1 October 1997;
"TANGIBLE ASSETS"
of any person means, at any date, the gross book value as shown by the
accounting books and records of such person of all its property both
real and personal, less (without duplication):-
(A) the net book value of all its licences, patents, patent
applications, copyrights, trademarks, trade names, goodwill,
non-compete agreements or organisational expenses and other like
intangibles;
(B) unamortised Debt discount and expenses;
(C) all reserves for depreciation, obsolescence, depletion and
amortisation of its properties; and
(D) all other proper reserves which in accordance with Swedish GAAP
should be provided in connection with the business conducted by
such person;
"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" shall be construed accordingly;
"TERM"
means, in relation to an Advance, the period for which such Advance is,
or is to be, borrowed, as specified in the Drawdown Notice for such
Advance;
"TERMINATION DATE"
means, subject to Clauses 3.8 and 11.4, the date falling sixty (60)
months after the Execution Date;
"TOTAL LOSS"
in relation to a Ship or Linkspan means:-
(A) actual, constructive, compromised or arranged total loss of such
Ship or Linkspan; or
(B) the Compulsory Acquisition of such Ship or Linkspan; or
(C) the condemnation, capture, seizure, arrest, detention or
confiscation of such Ship or Linkspan (other than where the same
amounts to the Compulsory Acquisition of such Ship or Linkspan)
by any Government Entity, or by persons acting or purporting to
act on behalf of any Government Entity, unless the Ship or
Linkspan be released and restored to the relevant Shipowner,
Stena Charterer or other charterer from such hijacking, theft,
condemnation, capture, seizure, arrest,
43
detention or confiscation within one hundred and eighty (180)
days after the occurrence thereof;
"TRANSFER CERTIFICATE"
means a transfer certificate for the purposes of Clause 24.3
substantially in the form set out in Schedule 9 (or in such other form
as the Banks may approve or require);
"TRANSFEREE BANK" and "TRANSFEROR BANK"
shall have the meaning ascribed to those expressions in Clause 24.3;
"TRANSFERRED SHIP"
means a ship which was a Mortgaged Ship but the ownership or possession
of which has been transferred to a person which is not a Subsidiary of
Stena AB on Credit Terms so that either:-
(A) such person has obtained title thereto on terms that all or part
of the purchase price of the Ship is payable after the date such
person acquired title thereto; or
(B) such person will or may obtain title thereto under a hire
purchase or conditional sale agreement by payment of hire
payable in respect of the Ship and either by virtue of the
exercise of an option, or an obligation, to purchase such Ship
at the end of the hire period upon payment of a nominal sum or
final obligatory rental payment or a sum referrable to the
written down value or unamortised capital cost of the Ship
provided that a Ship shall cease to be a Transferred Ship for the
purposes of this Agreement if the Ship, having been sold by the
relevant Shipowner on hire purchase or conditional sale terms is
repossessed by the Shipowner following a default by the purchaser under
the relevant Sale Agreement or by agreement between the Shipowner and
the purchaser and is not required to be sold by the Shipowner pursuant
to its agreement with the relevant purchaser and the Ship shall
thereupon be treated as a Mortgaged Ship for all purposes of this
Agreement;
"UNRESTRICTED SUBSIDIARY"
means:-
(A) Stena Fastigheter;
(B) Stena Realty BV;
(C) any Subsidiary of Stena AB which Stena AB by resolution of its
Board of Directors shall classify as an Unrestricted Subsidiary
and, for this purpose, a Subsidiary of Stena AB may only be
classified as an Unrestricted Subsidiary if, immediately after
giving effect to such classification:-
(i) there would be no Default or Event of Default under and
as defined in the Indentures (or any applicable Successor
Financing);
(ii) such Subsidiary would have no Debt other than
Non-Recourse Debt, as certified in an Opinion of Counsel
delivered to the relevant trustee under each Indenture or
any Successor Financing;
44
(iii) Stena AB would be able to Incur at least $1.00 of Debt
pursuant to Clause 14.8;
(iv) such Subsidiary has no assets which are essential to the
operations of Stena AB and its Subsidiaries, taken as a
whole; and
(v) neither Stena AB nor any of its Subsidiaries has any
obligation:-
(a) to subscribe for additional shares of Capital
Stock or other equity interests of such
Subsidiary; or
(b) to maintain or preserve such Subsidiary's
financial condition or to cause such Subsidiary to
achieve certain levels of operating results;
Provided however that:-
(x) any Subsidiary of Stena AB may not be reclassified more
than once in any thirteen (13) month period;
(y) an Unrestricted Subsidiary may only be reclassified as a
Subsidiary of Stena AB if immediately after giving effect
to such reclassification, there would be no Default or
Event of Default as defined in the Indentures (or any
applicable Successor Financing); and
(z) any such classification or reclassification shall be
evidenced by, and shall become effective upon, the filing
with each relevant trustee under the Indentures (or any
Successor Financing) of the resolution of the Board of
Directors of Stena AB giving effect to such designation,
an Officer's Certificate certifying that such designation
complies with the applicable conditions set forth above
and, if applicable, the Opinion of Counsel required under
paragraph (C)(ii) above, in each case in form and
substance as satisfactory to such trustee;
(D) any Subsidiary of an Unrestricted Subsidiary;
"VALUE ADDED TAX"
means value added tax as provided for in the Value Added Tax Xxx 0000
and legislation (whether delegated or otherwise) supplemental thereto
or in any primary or subordinate legislation promulgated by the
European Union or any body or agency thereof and which has legal effect
in the United Kingdom and any similar tax replacing or introduced in
addition to any of the same and any penalties and interest in relation
thereto and any similar tax in any other territory;
"VAT INVOICE"
has the meaning given in section 6(15) of the Value Added Tax Xxx 0000
or in any similar provision of the Value Added Tax legislation of
another territory;
"VESSEL CONSTRUCTION CONTRACT"
means any contract for the construction (or construction and
acquisition) or conversion of a Vessel or Vessels entered into by Stena
AB or any Subsidiary of Stena AB;
45
"VESSELS"
means the shipping vessels whose primary purpose is the maritime
transportation of cargo and/or passengers or which are otherwise
engaged or used in any business activities of Stena AB and its
Subsidiaries permitted under Clause 14.12 (including, without
limitation, semi-submersible and other drilling rigs and drillships)
and which are owned by and registered (or to be owned by and
registered) in the name of Stena AB or any of its Subsidiaries or
operated by Stena AB or any of its Subsidiaries pursuant to a lease or
other operating agreement constituting a Capitalised Lease Obligation,
in each case together with all related equipment and any additions or
improvements;
"VOTING STOCK"
of any person means Capital Stock of such person which ordinarily has
voting power for the election of directors (or persons performing
similar functions) of such person, whether at all times or only so long
as no senior class of securities has such voting power by reason of any
contingency; and
"WHOLLY OWNED SUBSIDIARY"
of any person means a Subsidiary of such person all of the outstanding
Capital Stock or other ownership interests of which (other than
directors' qualifying shares) shall at the time be owned by such person
or by one or more Wholly Owned Subsidiaries of such person or by such
person and one or more Wholly Owned Subsidiaries of such person.
1.3 INSURANCE TERMS
In Clause 15:-
(A) "EXCESS RISKS" means the proportion (if any) of claims for
general average, salvage and salvage charges and under the
ordinary collision clause not recoverable in consequence of the
value at which a Ship is assessed for the purpose of such claims
exceeding her insured value;
(B) "THE IGA" means the International Group of Protection and
Indemnity Associations and includes any successor association or
replacement body of such associations;
(C) "PROTECTION AND INDEMNITY RISKS" means:-
(i) the usual risks (including oil pollution) covered by a
United Kingdom protection and indemnity association or a
protection and indemnity association which is managed in
London, Norway or Sweden or is a member of the IGA
(including, without limitation, the maximum 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 1 of the Institute Time
Clauses (Hulls) (1/11/95) or the Institute Amended
Running Down Clause (1/10/71) or any equivalent
provision); or
(ii) (if placed on Norwegian terms) means protection and
indemnity risks as defined in the Norwegian Marine
Insurance Plan of 1996 as amended; and
(D) "WAR RISKS" includes those risks covered by the standard form
of English marine policy with Institute War and Strikes
Clauses (Time) (1/10/83) attached or similar cover which may
be insured by entry with such association or (if placed on
46
Norwegian terms) means the war risks described in the
Norwegian Marine Insurance Plan of 1996 as amended or (if
placed on Swedish terms) means the Swedish War Insurance
Conditions for Ships 1992/01/01;
1.4 ACCOUNTING TERMS
All accounting terms not otherwise defined in this Agreement shall have
the meanings assigned to them in accordance with Swedish GAAP where
used in relation to the Stena AB Group and Dutch GAAP where used in
relation to the Stena International Group (whether or not such is
indicated in this Agreement).
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
In any Security Document unless the context otherwise requires:-
(A) references to Clauses and Schedules are to be construed as
references to Clauses of, and Schedules to, such Security
Document and references to such Security Document include its
Schedules;
(B) references to (or to any specified provision of) any Security
Document or any other document shall be construed as references
to such Security Document, that provision or that document as in
force for the time being and as novated and/or as amended in
accordance with terms thereof, or, as the case may be, with the
agreement of the relevant parties and (where such consent is, by
the terms of any Security Document or the relevant document,
required to be obtained as a condition to such amendment) with
the consent of the Agent;
(C) 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;
(D) words importing the plural shall include the singular and vice
versa;
(E) references to a time of day are to London time;
(F) references to a person shall be construed as references to an
individual, firm, company, corporation, unincorporated body of
persons or any Government Entity;
(G) references to any person includes such person's assignees and
successors in title; and
(H) references to any enactment shall be deemed to include
references to such enactment as re-enacted, amended or extended.
1.7 CONSENTS AND APPROVALS
(A) Where any matter requires the approval or consent of the Agent
and/or the Security Agent and/or the Banks and/or any Issuing
Bank and/or the Standby
47
Lender, such approval or consent shall not be deemed to have
been given unless given in writing.
(B) Unless the context otherwise expressly states to the contrary,
where in any Security Document any party is required or
requested to consent or agree to, authorise or approve, either
with or without conditions, or give an opinion or express
satisfaction or certify, make payments, determinations or
determine requirements in any such case at its discretion, then
it is hereby agreed that such consent, agreement, authorisation,
approval, conditions, opinion, expression of satisfaction,
certification, determination, payment or requirement shall not
(when taking into account all the circumstances) be unreasonably
withheld, imposed, given or determined. Where in any Security
Document the Agent, the Co-Arrangers, the Security Agent, any
Issuing Bank, the Standby Lender or any of the Banks is required
to give any notice, document or other information or to do any
act or thing (unless the context otherwise expressly states to
the contrary) such notice, document or other information shall
be given and such act or thing shall be done as soon as is
reasonably practicable.
1.8 CONFLICT WITH FACILITY AGREEMENT
In the event of any conflict between the provisions of this Agreement
and any other of the Security Documents, the provisions of this
Agreement shall prevail.
1.9 MAJORITY BANKS
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Majority Banks or to be subject to the
consent or request of the Majority Banks or for any action to be taken
on the instructions of the Majority Banks, such opinion, consent,
request or instructions shall (as between the Banks) only be regarded
as having been validly given or issued by the Majority Banks if all the
Banks shall have received prior notice of the matter on which such
opinion, consent, request or instructions are required to be obtained
and the relevant majority of Banks shall have given or issued such
opinion, consent, request or instructions but so that the Borrower
shall be entitled (and bound) to assume that such notice shall have
been duly received by each Bank and that the relevant majority shall
have been obtained to constitute Majority Banks whether or not this is
in fact the case.
1.10 TRANSFER AND SUCCESSION
In this Agreement all references to the Agent, the Security Agent, the
Banks, the Issuing Banks, the Standby Lender and/or the Co-Arrangers
shall in each case include:-
(A) any successor in title to or assignee or transferee of all or
any portion of that respective party's rights, title and
interest in, to and under this Agreement including any
Transferee to whom all or part of such person's rights and
obligations hereunder are transferred; and
(B) any other person whomsoever in whose favour all or any portion
of such rights, title and interest are transferred including any
person who becomes a party to this Agreement by way of a
novation hereof
and the expressions "Bank", "Standby Lender" and "Issuing Bank" (as the
case may be) shall include any such person aforesaid notwithstanding
that such person may have made
48
no advance to the Borrower hereunder and notwithstanding also that the
indebtedness of the Borrower to such person may be operation of law or
otherwise constitute, or be deemed to constitute, an indebtedness
separate and distinct from the indebtedness arising on the date of
drawing of the Commitment or the Standby Commitment or the issue of a
Bank Guarantee in respect of which the assignment or other transfer of
rights, title and interest is made.
2 THE COMMITMENTS
2.1 AGREEMENT TO LEND AND TO ISSUE BANK GUARANTEES
Upon and subject to the terms and conditions of this Agreement and in
reliance on the representations and warranties in Clause 13:-
(A) the Existing Guarantee Provider agrees to maintain the Existing
Bank Guarantees for the account of the Borrower;
(B) the New Guarantee Provider agrees to issue Bank Guarantees to
Beneficiaries for the account of the Borrower;
(C) each Bank agrees to reimburse the relevant Issuing Bank for its
Percentage for each Bank Guarantee of all payments made by such
Issuing Bank to the Beneficiary under any such Bank Guarantee;
(D) the Banks agree to lend Advances to the Borrower and the
obligation of each Bank under this Agreement shall be to
contribute its Percentage of each Advance; and
(E) the Standby Lender agrees to make available the Standby
Facility.
2.2 OBLIGATIONS SEVERAL
The obligations of each Bank, the Standby Lender and the Issuing Banks
under this Agreement are several; the failure of any Bank or the
Standby Lender or any Issuing Bank to perform such obligations shall
not relieve any other of the Banks, the Standby Lender, the
Co-Arrangers, the Issuing Banks, the Agent, the Security Agent or the
Borrower (as the case may be) of any of their respective obligations or
liabilities under this Agreement nor shall any other of the Banks, the
Standby Lender, the Co-Arrangers, the Issuing Banks, the Agent or the
Security Agent be responsible for the obligations of any Bank or the
Standby Lender or any Issuing Bank (except for its own obligations, if
any, as a Bank or as the Standby Lender or as an Issuing Bank).
Provided that, in the event of the failure of any Bank or the Standby
Lender or any Issuing Bank (the "DEFAULTING BANK") to perform its
obligations under this Agreement:-
(A) the Agent shall consult with the Borrower and the others of the
Banks, the Standby Lender and the Issuing Banks (as the case may
be) with a view to taking steps to mitigate the effects of such
default including the procuring of another bank to assume the
obligations of the defaulting Bank; and
(B) the defaulting Bank shall indemnify the Borrower against any
losses, costs and expenses which the Borrower may sustain or
incur as a result of such failure.
49
2.3 INTERESTS SEVERAL
Notwithstanding any other term of this Agreement (but without prejudice
to Clause 25.4 (I) or the provisions of this Agreement relating to or
requiring action by the Majority Banks) the interests of the
Co-Arrangers, the Issuing Banks, the Agent, the Security Agent, the
Banks and the Standby Lender are several and the amount due to the
Co-Arrangers, each Issuing Bank, the Agent, the Security Agent, each
Bank and the Standby Lender (each for its own account) is a separate
and independent debt. The Co-Arrangers, the Issuing Banks, the Agent,
the Security Agent, any Bank and the Standby Lender shall have the
right to protect and enforce its rights arising out of this Agreement
and it shall not be necessary for the Co-Arrangers, any Issuing Bank,
the Agent, the Security Agent, any Bank or the Standby Lender (as the
case may be) to be joined as an additional party in any proceedings for
this purpose.
3 ADVANCES
3.1 DRAWDOWN
Subject to the terms and conditions of this Agreement, an Advance may
be made to the Borrower following receipt by the Agent from the
Borrower of a Drawdown Notice not later than 10.00 a.m. on the third
Banking Day before the date on which the Advance is intended to be made
which shall be a Banking Day falling within the Availability Period. A
Drawdown Notice shall be effective on actual receipt by the Agent and,
once given, shall, subject as provided in Clause 8.5(A), be
irrevocable. No Drawdown Notice may be given in respect of an amount
which is the subject of a notice of cancellation under Clause 9.
3.2 AMOUNT
Each Advance shall be a minimum of $10,000,000 but no more than the
balance of the Available Commitments or such other amount (not
exceeding the Available Commitments) as the Banks may agree but no
Advance may be drawn down on any day of an amount exceeding the
Available Commitments on such day, taking into account for this purpose
any Advance to be repaid on such day, any other Advance which is to be
made which is the subject of a current Drawdown Notice and any Bank
Guarantee which is to be issued or extended on such day which is the
subject of a current Bank Guarantee Request.
3.3 TERM
Subject to Clause 3.6, Advances may be borrowed only for a Term of one
(1), two (2), three (3) or six (6) months or such other periods up to
twelve (12) months as the Agent may agree or such other periods
exceeding twelve (12) months as the Banks may agree, in each case
ending on or before the Termination Date.
3.4 AVAILABILITY
Upon receipt of a Drawdown Notice complying with the terms of this
Agreement the Agent shall notify each Bank thereof and of the date on
which the Advance is to be made and, subject to the provisions of
Clause 18, on such date each of the Banks shall make available to the
Agent its portion of such Advance for payment by the Agent in
accordance with Clause 11.2. Except with the Banks' consent, no
Advances shall be
50
made to the Borrower under this Agreement after the date falling one
(1) month before the Termination Date.
3.5 THE TERMINATION DATE
Without prejudice to any other provisions of this Agreement, the
Commitments shall in any event be reduced to zero on the Termination
Date and no Advances shall be made to the Borrower or Bank Guarantees
issued or extended under this Agreement thereafter.
3.6 NUMBER OF ADVANCES
Notwithstanding the provisions of Clauses 3.2 and 3.3, Advances may be
drawn only so that the number of separate Advances outstanding at any
time does not exceed fifteen (15) or such other number as may be agreed
by all the Banks or so that on the Maturity Date in respect of the next
Advance to be repaid the number of Advances outstanding (excluding
those repayable on such Maturity Date) will not exceed fifteen (15) or
such other number as may be agreed by all the Banks. No more than
twelve (12) Terms of one month (or, if agreed by the Banks, any shorter
period) may be selected by the Borrower in respect of Advances during
any calendar year.
3.7 APPLICATION OF PROCEEDS
Without prejudice to the Borrower's obligations under Clause 14.19,
none of the Banks, the Issuing Banks, the Co-Arrangers or the Agent
shall have any responsibility for the application of proceeds of any
Advance by the Borrower.
3.8 EXTENSION OF TERMINATION DATE
The Termination Date may be extended by up to twenty four (24) months
in accordance with the following provisions:-
(A) on the third anniversary of the Execution Date (subject always
to Clause 11.4), the Borrower may request that the Termination
Date be extended by twelve (12) months so that, if the Banks and
the Standby Lender at that time unanimously agree to such
request (which agreement they shall be at full liberty to
withhold), the Termination Date shall be extended until the date
falling seventy two (72) months after the Execution Date
(subject to further adjustment under Clause 11.4); and
(B) on the fourth anniversary of the Execution Date (subject always
to Clause 11.4), the Borrower may request that the Termination
Date be extended by twelve (12) months so that, if the Banks and
the Standby Lender at that time unanimously agree to such
request (which agreement they shall be at full liberty to
withhold), the Termination Date shall be extended until the date
falling seventy two (72) months after the Execution Date or, if
the Termination Date has already been extended pursuant to
paragraph (A) above, the date falling eighty four (84) months
after the Execution Date (subject always to further adjustment
under Clause 11.4).
51
4 ISSUE OF BANK GUARANTEES
4.1 AGREEMENT TO ISSUE BANK GUARANTEES
Subject to the terms and conditions of this Agreement, the New
Guarantee Provider shall issue to a Beneficiary, or (pursuant to Clause
5.2) extend the Expiry Date of, a Bank Guarantee if:-
(A) the Agent has received a Bank Guarantee Request in respect of
the issue of that Bank Guarantee or the extension of its Expiry
Date, together with a final draft of the form in which the
Borrower wishes such Bank Guarantee to be issued, from the
Borrower not later than fifteen (15) days prior to the date on
which such Bank Guarantee is intended to be issued or the Expiry
Date which is intended to be extended;
(B) the date on which such Bank Guarantee is intended to be issued,
or the date on which its Expiry Date is intended to be extended,
is a Banking Day at least thirty (30) days prior to the
Termination Date and the date to which the Expiry Date of a Bank
Guarantee is to be issued or extended is a date not later than
thirty (30) days prior to the Termination Date;
(C) the conditions specified in Clause 18.4 have been satisfied or
waived;
(D) the proposed Bank Guarantee is an Acceptable Bank Guarantee;
(E) no more than nine (9) other Bank Guarantees have been issued or
extended by the New Guarantee Provider during the calendar year
during which such Bank Guarantee is to be issued or extended;
and
(F) the Outstanding Guarantee Amount of such Bank Guarantee will not
be such as would result in the aggregate Outstandings of the
Banks as at the date of issue or as at the Expiry Date of such
Bank Guarantee or as at the date to which it is intended to be
extended being greater than the amount of the Commitments.
A Bank Guarantee Request shall be effective on actual receipt by the
Agent and the Bank Guarantee referred to therein shall be issued or
extended by the New Guarantee Provider in accordance with the terms of
such Bank Guarantee Request without the requirement for any further
request or instruction from the Borrower unless, at the time the Bank
Guarantee Request is given, the Borrower stipulates that the Bank
Guarantee referred to therein shall only be issued or extended upon the
Borrower's further written request in which case such Bank Guarantees
shall not be issued or extended unless and until such further written
request is received.
4.2 NOTIFICATION TO BANKS
Upon receipt of a Bank Guarantee Request complying with the terms of
this Agreement, the Agent shall notify the New Guarantee Provider and
each Bank thereof and of the content of the Bank Guarantee which is,
and the date on which it is, to be issued.
52
4.3 CURRENCIES OF BANK GUARANTEES
The New Guarantee Provider shall not issue a Bank Guarantee in a
currency other than Dollars if to do so would cause the number of
currencies other than Dollars in which Bank Guarantees are outstanding
to exceed five (5).
4.4 EXCESS AMOUNTS
The Agent shall monitor the Outstanding Guarantee Amounts not less than
monthly. If at any time and from time to time by reason of fluctuations
in the currency conversion rates or interest rates the Agent reasonably
considers that the aggregate of all Outstanding Guarantee Amounts of
Bank Guarantees then in issue and the other Outstandings as at the date
of determination exceed the Commitments, the Agent shall notify the
Borrower and require the Borrower to pay an amount equal to the excess
certified by the Agent to the Cash Collateral Account and/or prepay the
Outstandings by an amount equal to the excess within two (2) Banking
Days of the Agent's notice whereupon the Borrower shall be liable to
make such payment within such period. The Borrower shall be entitled to
the release of amounts paid to the Cash Collateral Account under this
Clause from time to time provided no Event of Default has occurred and
is continuing to the extent that the Commitments as reduced or
suspended pursuant to Clause 9.4 and/or any other relevant provisions
of this Agreement at the time of the Borrower's request then exceed the
Outstandings expressed in Dollars. In determining the Outstanding
Guarantee Amounts for the purposes of this Clause the Agent shall in
relation to interest by reference to which each Issuing Bank's
liability under the outstanding Bank Guarantees may be calculated take
into account only such amounts as have accrued to form part of such
Issuing Bank's liability under the relevant Bank Guarantees at the time
the Agent's determination is made.
5 REDUCTION AND EXTENSION OF BANK GUARANTEES
5.1 REDUCTION OF OUTSTANDING GUARANTEE AMOUNT
The Outstanding Guarantee Amount of a Bank Guarantee shall not be
treated as reduced for the purposes of this Agreement unless (i) the
relevant Issuing Bank has received a written confirmation from the
Beneficiary of the amount of such reduction or (ii) the relevant
Issuing Bank has notified the Agent in writing that (notwithstanding
the absence of written confirmation from the Beneficiary) it is
satisfied that its liability under such Bank Guarantee has been
irrevocably reduced or (iii) a payment has been made by the relevant
Issuing Bank under such Bank Guarantee. The relevant Issuing Bank shall
in each case promptly notify the Agent (which shall notify the Banks
and the Borrower) of the amount and date of such reduction. Upon such
notification the liability of each Bank with respect to such Bank
Guarantee shall (but without prejudice to such Bank's obligations under
Clause 6.2) be reduced by an amount equal to its Percentage of such
reduction.
5.2 REQUEST FOR EXTENSION OF EXPIRY DATE
If the New Guarantee Provider and the Agent shall be requested by the
Borrower to extend the Expiry Date of a Bank Guarantee, the Agent shall
advise the Banks of such request, specifying the date to which it is
proposed the Bank Guarantee be extended. The New Guarantee Provider
shall not extend the Expiry Date of a Bank Guarantee otherwise than in
accordance with Clause 4.1. The Expiry Date of an Existing Bank
Guarantee may not be extended under this Agreement.
53
5.3 RELEASE OF BANK GUARANTEES
On or before the end of the Availability Period the Borrower shall
procure that each Issuing Bank is fully discharged and released from
all of its obligations under all of the Bank Guarantees issued by it
and failure to do so shall constitute an Event of Default.
6 PAYMENTS UNDER BANK GUARANTEES
6.1 PAYMENTS TO CONSTITUTE LOANS
Any payment by an Issuing Bank to the Beneficiary under a Bank
Guarantee shall constitute a loan from that Issuing Bank to the
Borrower. Such loan shall be:-
(A) of an amount equal to the amount of such payment (less any
amount paid to such Issuing Bank by the Agent and debited to the
Cash Collateral Account pursuant to Clause 23.3) and in the case
of a payment made in a currency other than Dollars shall be
deemed to be in an amount equal to the amount in Dollars yielded
by the Agent purchasing such amount of the relevant foreign
currency with Dollars at the Agent's spot rate of exchange at
11.00 a.m. two (2) Banking Days before the date on which the
payment in foreign currency is made;
(B) treated as made at the time of payment to the Beneficiary;
(C) due and payable by the Borrower at the time it is made; and
(D) reduced by the amount of each payment made by a Bank to the
Agent for account of such Issuing Bank pursuant to Clause
6.2(A).
6.2 BANKS' OBLIGATIONS TO REIMBURSE
If an Issuing Bank makes payment to the Beneficiary under a Bank
Guarantee such Issuing Bank shall forthwith give notice to the Agent
and the Banks and each Bank shall, on demand by the Agent, pay to the
Agent for account of such Issuing Bank an amount equal to the aggregate
of:-
(A) such Bank's Percentage of the amount of any loan constituted
pursuant to Clause 6.1, as reduced by the amount of any
repayment made by the Borrower prior to the date of such demand
(but for the purpose of calculating the amount of such loan any
amount paid by the Agent and debited to the Cash Collateral
Account pursuant to Clause 23.3 shall, if such amount was paid
to the Cash Collateral Account pursuant to Clause 9.12 or Clause
21.1, be deemed not to have been paid); and
(B) such Issuing Bank's cost of funding the amount payable by such
Bank pursuant to Clause 6.2(A) from the date of payment by such
Issuing Bank to the Beneficiary to the date of payment of such
amount to the Agent by such Bank.
The relevant Issuing Bank shall (without prejudice to the obligation of
the Banks to pay such amount) provide reasonable detail as to the basis
on which it has determined its said cost of funding.
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6.3 BORROWER'S OBLIGATION TO REIMBURSE
Any payment by a Bank to the Agent pursuant to Clause 6.2 shall
constitute a loan from the Bank to the Borrower. Such loan shall be:-
(A) of an amount equal to the amount of such payment;
(B) treated as made at the time of payment to the Agent; and
(C) due and payable at the time it is made.
If and to the extent that at that time the Borrower would (if it had
given a Drawdown Notice and if the Banks had agreed to make an Advance
of that amount) be entitled under the other provisions of this
Agreement to borrow an Advance not exceeding the amount of such
payments to the Banks (other than any Bank whose Commitment has been
reduced pursuant to Clauses 9.12 or 21.1), the aggregate of such loans
by such Banks shall to such extent be deemed for the purposes of this
Agreement to be an Advance of that amount with a Term of the minimum
period for which the Borrower would at that time be entitled to borrow
an Advance under Clause 3.3 and any balance of such loan shall be
deemed payable at the time it is made. Where the Commitment of a Bank
has been reduced pursuant to Clauses 9.12 or 21.1, any such loan made
by that Bank under this Clause 6.3 will be due and payable at the time
it is made.
6.4 BANKS' ENTITLEMENTS
Upon payment by a Bank of the full amount due from such Bank under
Clause 6.2, such Bank shall be entitled to receive its Percentage of
all interest payable by the Borrower under Clause 8.2 in respect of the
relevant payment by the relevant Issuing Bank to the Beneficiary.
6.5 ISSUING BANK'S ENTITLEMENT
The relevant Issuing Bank shall be entitled to pay immediately any
amount for which a demand or request has been made at any time under
any Bank Guarantee issued by it without any reference to or further
authority from the Borrower or any Bank and shall not be under any duty
to investigate or enquire whether any claim or demand on that Issuing
Bank under a Bank Guarantee shall have been properly made
notwithstanding that the Borrower or any Bank may dispute the validity
of such claim or demand. The liabilities of the Borrower and the Banks
under this Clause 6.5 shall be in no way prejudiced, affected or
diminished by the fact that the relevant Issuing Bank was or might have
been justified in refusing payment of any amount claimed or demanded
under a Bank Guarantee.
6.6 FAILURE OF A BANK TO PAY
If any Bank fails to make any payment to the Agent for account of the
relevant Issuing Bank when due pursuant to Clause 6.2, then until such
Bank's failure has been remedied in full such Issuing Bank shall be
entitled to (i) the benefit of all security then existing or thereafter
created to secure the obligations of the Borrower under this Agreement
to which such Bank would have been entitled had it made such payment
and (ii) such Bank's rights to fees and commissions in respect of the
Bank Guarantee in respect of which it has failed to perform its
obligations and, for the purpose of determining the Majority Banks, the
relevant Issuing Bank shall be treated as a Bank having Outstandings
equal to the
55
Outstandings of the Bank which has failed to make such payment. The
rights conferred upon each Issuing Bank by this Clause 6.6 shall be in
addition and without prejudice to its rights against such Bank under
this Clause 6.
7 THE STANDBY FACILITY
7.1 AVAILABILITY
Subject to the terms and conditions of this Agreement and in reliance
on the representations and warranties contained in Clause 13, the
Standby Commitment will be available to the Borrower at any time during
the Standby Availability Period.
7.2 DRAWINGS
Drawings against the Standby Commitment may be made available to the
Borrower by written instructions from the Borrower to the Standby
Lender to make payments or remittances on behalf of the Borrower. Each
drawing when aggregated with previous drawings then outstanding shall
not exceed the balance of the Available Standby Commitment. Drawings
may be made on a call basis or for a fixed term of one, three or six
months or such other period (but not, unless the Standby Lender
otherwise agrees, in any case longer than twelve (12) months) as the
Borrower may request and the Standby Lender agree in its discretion in
each case ending on or before the Termination Date. The minimum amount
which may be drawn for any fixed period is $500,000 (unless the Standby
Lender shall consent to a lesser or other amount).
In the case of a request to draw an amount otherwise than on a call
basis a notice of drawdown shall be given to the Standby Lender in
mutatis mutandis the same form as Schedule 6 and such notice shall be
given not later than 10.00 a.m. on the second Banking Day before the
proposed drawing.
7.3 APPLICATION OF PROCEEDS
Without prejudice to the Borrower's obligations to use the Standby
Facility exclusively for the purposes specified in Clause 1.1 the
Standby Lender shall have no responsibility for the application by the
Borrower of the proceeds of drawings representing Standby Outstandings.
7.4 INTEREST
(A) CALL BASIS
The Borrower shall pay interest on the cleared daily balance of
the amount of Standby Outstandings in relation to which interest
is to be calculated on a call basis at the rate per annum
determined by the Standby Lender to be the aggregate of (i) the
Margin and (ii) the applicable Standby Rate. Such interest shall
be payable quarterly in arrears on 31 March, 30 June, 30
September and 31 December in each year and on the Termination
Date.
(B) TERM BORROWINGS
The Borrower shall pay interest on any each amount borrowed
under the Standby Facility for which interest is to be
calculated for a fixed period at the rate per annum determined
by the Standby Lender to be the aggregate of (i) the Margin
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and (ii) the applicable Standby Rate, such interest to be
payable (a) at the end of such period and/or (b) if the period
exceeds six (6) months, on each date falling at six (6) monthly
intervals within such period and (c) on the date the amount
borrowed is repaid.
7.5 DEFAULT INTEREST
If the Borrower fails to pay any sum (including, without limitation,
any sum payable pursuant to this Clause 7.5) in relation to the Standby
Facility on its due date for payment under this Agreement, the Borrower
shall pay interest on such sum on demand from the due date up to the
date of actual payment (as well after as before judgment) at a rate
determined by the Standby Lender pursuant to this Clause 7.5 as
follows:-
(A) In the case of amounts borrowed on a call basis the rate of
interest shall be the Standby Lender's current standard default
rate and such interest shall be payable on demand.
(B) In the case of amounts borrowed for a fixed term 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 Standby Lender 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 such period shall be the
aggregate (as determined by the Standby Lender) of (i) two per
cent (2%) per annum, and (ii) the Standby Rate for such period.
Default interest shall be due and payable on the last day of
each such period as determined by the Standby Lender pursuant to
this Clause 7.5 or, if earlier, on the date on which the sum in
respect of which such default interest is accruing shall
actually be paid. If, for the reasons specified in Clause
8.5(A), the Standby Lender is unable to determine a rate in
accordance with the foregoing provisions of this Clause 7.5,
interest on any sum not paid on its due date for payment shall
be calculated at a rate determined by the Standby Lender to be
two per cent (2%) per annum above the cost of funds to the
Standby Lender.
7.6 NOTIFICATION OF INTEREST RATE
The Standby Lender shall notify the Borrower promptly of each rate of
interest determined by it in relation to borrowings in relation to
which interest is to be calculated by reference to a fixed term.
7.7 MARKET DISRUPTION; NON-AVAILABILITY
(A) If and whenever, at any time prior to the making of a drawing
under the Standby Facility:-
(i) the Standby Lender shall have determined (which
determination shall, in the absence of manifest error, be
conclusive) that adequate and fair means do not exist for
ascertaining the applicable Standby Rate during the term
of such drawing; or
(ii) the Standby Lender certifies that deposits in Dollars are
not available to it in the London Interbank Market in the
ordinary course of business in an amount sufficient to
fund such drawing,
57
the Standby Lender shall forthwith give notice (a "STANDBY
FACILITY DETERMINATION NOTICE") thereof to the Borrower and the
Agent and such drawing shall not be made. The Standby Facility
Determination Notice shall contain particulars of the relevant
circumstances giving rise to its issue.
(B) After the giving of any the Standby Facility Determination
Notice no further amounts may be borrowed under the Standby
Facility until notice to the contrary is given to the Borrower
by the Standby Lender.
(C) During the period of twenty (20) days following the giving of
any Standby Facility Determination Notice, the Borrower and the
Standby Lender shall negotiate in good faith in order to arrive
at a mutually acceptable substitute basis for the Standby Lender
to continue to make the Standby Facility available and, if
within such twenty (20) day period the Borrower and the Standby
shall agree in writing upon such an alternative basis (the
"STANDBY FACILITY SUBSTITUTE BASIS"), the Standby Facility
Substitute Basis shall be retroactive to and effective from the
first day of the relevant interest period.
(D) If the Borrower and the Standby Lender fail to agree on a
Standby Facility Substitute Basis within such twenty (20) day
period, the Borrower shall pay interest to the Standby Lender on
the principal amount drawn under the Standby Facility at the
rate certified by the Standby Lender as being a reasonable
interest rate reflecting the cost to it of funding the Standby
Outstandings during the period from the date of the relevant
Standby Facility Determination Notice, plus the Margin and such
rate plus the Margin shall be the Standby Facility Substitute
Basis.
(E) So long as any Standby Facility Substitute Basis is in force,
the Standby Lender shall from time to time (but at least
monthly) review whether or not the circumstances are such that
such Standby Facility Substitute Basis is no longer necessary
and, if the Standby Lender so determines, it shall notify the
Borrower that the Standby Facility Substitute Basis shall cease
to be effective from such date as the Standby Lender shall
reasonably specify.
7.8 REPAYMENT
The Borrower shall repay any Standby Outstandings on the last day of
the Standby Availability Period and shall repay each amount drawn for a
fixed period on the last day of such period.
7.9 SCHEDULED CANCELLATION OF STANDBY COMMITMENT
Without prejudice to any other provisions of this Agreement, the
Standby Commitment shall in any event be reduced to zero on the
Termination Date and no drawings shall be made by the Borrower
thereafter.
7.10 VOLUNTARY CANCELLATION OF STANDBY COMMITMENT
The Borrower may at any time during the Standby Availability Period by
notice to the Standby Lender (effective only on actual receipt) (with
copy to the Agent) cancel with effect from a date not less than thirty
(30) days after the receipt by the Standby Lender of such notice the
whole or any part (being $500,000 or any larger sum which is an
integral multiple of $100,000 but not more than the Available Standby
Commitment as at such
58
date) of the total of the Available Standby Commitment as at such date.
Any such notice of cancellation, once given, shall be irrevocable and
upon such cancellation taking effect the Standby Commitment shall be
reduced accordingly and the Borrower shall on the date designated in
its notice for such cancellation pay to the Standby Lender all Standby
Outstandings exceeding the amount of the Standby Commitment as reduced
by such cancellation.
7.11 VOLUNTARY REPAYMENT
The Borrower may repay the Standby Outstandings in whole or in part on
any Banking Day but if in part in relation to an amount borrowed for a
fixed term the payment shall be an amount of $500,000 or an integral
multiple thereof (unless the Standby Lender shall consent to the
repayment of a lesser or other amount).
7.12 AMOUNTS PAYABLE ON REPAYMENT OR PREPAYMENT
Any repayment of all or part of the Standby Outstandings under this
Agreement shall be made together with (i) accrued interest on the
amount to be repaid or prepaid to the date of such repayment, (ii) any
additional amount payable under Clauses 11.7 or 21.2, (iii) costs
certified by the Standby Lender as necessary to compensate it for the
cost of repaying fixed deposits borrowed to fund any amount in respect
of the Standby Facility which is drawn for a fixed term and which is
prepaid before the end of such fixed term and (iv) all other sums
payable by the Borrower to the Standby Lender in its capacity as such
under this Agreement including, without limitation, any amounts payable
under Clause 10.4.
7.13 INTEREST ON CREDIT BALANCES
For credit balances to the Standby Facility credit interest will be
paid by the Standby Lender after specific agreement with the Borrower.
Such credit interest will be computed in accordance with an interest
rate and upon terms from time to applicable to accounts of this type
with the Standby Lender. Accrued credit interest will be paid by the
Standby Lender by crediting the account subject to the Standby Lender's
obligation, if any, to make withholdings for Taxes so that the Borrower
shall not be entitled to set off against any amount payable to the
Standby Lender, the Banks, the Agent, the Security Agent, the Issuing
Banks or the Co-Arrangers any amount due to the Borrower under this
Clause 7.13.
8 INTEREST ON ADVANCES
8.1 NORMAL INTEREST RATE
The Borrower shall pay interest on each Advance on its Maturity Date
(or, in the case of an Advance having a Term of more than six (6)
months, by instalments, the first six (6) months from the drawdown of
such Advance and the subsequent instalments at intervals of six (6)
months or, if shorter, the period from the date of the preceding
instalment until the relevant Maturity Date) at the rate per annum
determined by the Agent to be the aggregate of (i) the Margin and (ii)
LIBOR
Provided however that, in the case of any Advance which is borrowed for
a Term of one month or less, the amount of interest payable in respect
thereof shall be that amount which is the higher of:-
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(A) the amount of interest which would be payable thereon if
calculated at the interest rate specified in the foregoing
provisions of this Clause 8.1; and
(B) the amount which is equal to the aggregate of (i) that amount of
interest which would be payable thereon pursuant to the
foregoing provisions of this Clause 8.1 if the Margin were zero
and (ii) eight thousand three hundred and thirty three Dollars
($8,333).
8.2 DEFAULT INTEREST
Except as provided in Clause 7.5 in relation to sums due in respect of
the Standby Facility, if the Borrower fails to pay any sum (including,
without limitation, any sum payable pursuant to this Clause 8.2) on its
due date for payment under any of the Security Documents, the Borrower
shall pay interest on such sum on demand from the due date up to the
date of actual payment (as well after as before judgment) at a rate
determined by the Agent pursuant to this Clause 8.2. 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 Agent (after consultation with the Banks) 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 such period shall be the aggregate (as
determined by the Agent) of (i) two point seven five per cent (2.75%)
per annum and (ii) LIBOR for such period provided that if such unpaid
sum is an amount of principal which became due and payable, by reason
of a declaration by the Agent under Clause 19.2 or a prepayment
pursuant to Clauses 9.4, 9.7, 9.8, 9.11 or 21.1 on a date other than a
Maturity Date relating thereto, the first such period selected by the
Agent shall be of a duration equal to the period between the due date
of such principal sum and such Maturity Date and interest shall be
payable on such principal sum during such period at a rate of two point
seven five per cent (2.75%) above the rate of LIBOR applicable thereto
immediately before it shall have become so due and payable. Default
interest shall be due and payable on the last day of each such period
as determined by the Agent pursuant to this Clause 8.2 or, if earlier,
on the date on which the sum in respect of which such default interest
is accruing shall actually be paid. If, for the reasons specified in
Clause 8.5(A), the Agent is unable to determine a rate in accordance
with the foregoing provisions of this Clause 8.2, each Bank shall
promptly notify the Agent of the cost of funds to such Bank and
interest on any sum not paid on its due date for payment shall be
calculated for each Bank at a rate determined by the Agent to be two
point seven five per cent (2.75%) per annum above the cost of funds to
such Bank. Each Bank shall (without prejudice to the obligation of the
Borrower to pay such interest) provide reasonable detail as to the
basis on which it has determined such cost of funds.
8.3 NOTIFICATION OF INTEREST RATE
The Agent shall notify the Borrower promptly of each rate of interest
determined by it under this Clause 8.
8.4 REFERENCE BANK QUOTATIONS
If any Reference Bank is unable or otherwise fails to furnish a
quotation for the purpose of calculating LIBOR pursuant to the proviso
contained in the definition of LIBOR the interest rate shall be
determined, subject to Clause 8.5, on the basis of the quotations
furnished by the remaining Reference Banks.
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8.5 MARKET DISRUPTION; NON-AVAILABILITY
(A) If and whenever, at any time prior to the making of an Advance:-
(i) the 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 the Term of that Advance;
(ii) where applicable, none of the Reference Banks supplies
the Agent with a quotation for the purpose of calculating
LIBOR; or
(iii) the Agent shall have received notification from Banks
with Commitments aggregating not less than one-half of
the total of the Commitments (or, if no Advance has been
made, Commitments aggregating not less than one-half of
the Commitments of all the Banks) that deposits in
Dollars are not available to such Banks in the London
Interbank Market in the ordinary course of business in
sufficient amounts to fund their Contributions to such
Advance or, where applicable, that the arithmetic mean of
the quotations for LIBOR supplied by the Reference Banks
does not accurately reflect the cost to such Banks of
obtaining such deposits,
the Agent shall forthwith give notice (a "DETERMINATION NOTICE")
thereof to the Borrower and to each of the Banks and such
Advance shall not be made. A Determination Notice shall contain
particulars of the relevant circumstances giving rise to its
issue.
(B) After the giving of any Determination Notice no further Advances
may be borrowed until notice to the contrary is given to the
Borrower by the Agent.
(C) During the period of twenty (20) days following the giving of
any Determination Notice, the Borrower and the Agent in
consultation with the Banks shall negotiate in good faith in
order to arrive at a mutually acceptable substitute basis for
each Bank to continue its Contribution to any further Advances
and, if within such twenty (20) day period the Borrower and the
Agent (in consultation as aforesaid) shall agree in writing upon
such an alternative basis (the "SUBSTITUTE BASIS"), the
Substitute Basis shall be retroactive to and effective from the
first day of the relevant Term.
(D) If the Borrower and the Agent (in consultation with the Banks)
fail to agree on a Substitute Basis within such twenty (20) day
period, the Borrower shall pay interest on the Advances to each
Bank at the rate certified by each such Bank and notified
through the Agent to the Borrower as being a reasonable interest
rate reflecting the cost to such Bank of funding its
Contribution to such Advances during the period from the date of
the relevant Determination Notice, plus the Margin and such rate
plus the Margin shall be the Substitute Basis.
(E) So long as any Substitute Basis is in force, the Agent shall
from time to time (but at least monthly) and in consultation
with the Banks review whether or not the circumstances are such
that such Substitute Basis is no longer necessary and, if the
Agent so determines, it shall notify the Borrower and the Banks
that the Substitute Basis shall cease to be effective from such
date as the Agent shall reasonably specify.
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9 REPAYMENT, REDUCTION AND CANCELLATION
9.1 REPAYMENT OF ADVANCES
The Borrower shall repay each Advance on its Maturity Date. If an
Advance (the "NEW ADVANCE") is to be made on a day on which another
Advance (the "MATURING ADVANCE") is due to be repaid then, subject to
the terms of this Agreement, (i) the maturing Advance shall be deemed
to have been repaid on its Maturity Date either in whole (if the new
Advance is equal to or greater than the maturing Advance) or in part
(if the new Advance is less than the maturing Advance) and (ii) to the
extent that the maturing Advance is so deemed to have been repaid, the
principal amount of the new Advance to be made on such date shall be
deemed to have been credited to the account of the Borrower by the
Agent on behalf of the Banks in accordance with the terms of this
Agreement and the Banks shall only be obliged to make available to the
Borrower pursuant to Clause 3 a principal amount equal to the amount by
which the new Advance exceeds the maturing Advance. On the Termination
Date, all outstanding Advances and other sums (if any) then owing under
this Agreement shall in any event be repaid or paid in full.
9.2 SCHEDULED REDUCTION OF COMMITMENTS
All of the Commitments shall be cancelled and reduced to zero on the
Termination Date.
9.3 REDUCTION OF COMMITMENTS UPON EXTENSION OF THE TERMINATION DATE
Without prejudice to any other provision of this Agreement, if the
Termination Date is extended pursuant to Clause 3.8 the Commitments
shall be reduced as follows:-
(A) if the Termination Date is extended pursuant to Clause 3.8(A),
the Commitments shall be reduced pro rata in accordance with the
Banks' respective Percentages on the date falling sixty (60)
months after the Execution Date by the aggregate amount of
$100,000,000 or, if lower, by an amount in Dollars equal to
10/57ths of the then aggregate amount of the Commitments;
(B) if the Termination Date is extended pursuant to Clause 3.8(B)
without first having been extended pursuant to Clause 3.8(A),
the Commitments shall be reduced pro rata in accordance with the
Banks' respective Percentages on the date falling sixty (60)
months after the Execution Date by the aggregate amount of
$100,000,000 or, if lower, by an amount in Dollars equal to
10/57ths of the then aggregate amount of the Commitments; and
(C) if the Termination Date is extended pursuant to Clause 3.8(B)
after first having been extended pursuant to Clause 3.8(A), the
Commitments shall be reduced pro rata on the date falling
seventy two (72) months after the Execution Date by the
aggregate amount of $100,000,000 or, if lower, by an amount in
Dollars equal to 10/47ths of the then aggregate amount of the
Commitments.
If, upon any reduction of the Commitments pursuant to this Clause 9.3,
the aggregate of the Outstandings at such time exceeds the Commitments
as thereby reduced, the Borrower shall, on the date on which such
reduction takes effect, prepay such amount of the outstanding Advances
and/or procure the release and discharge by the Beneficiaries of such
of the Bank Guarantees as will ensure that immediately thereafter the
aggregate amount of the Outstandings will not exceed the Commitments as
so reduced.
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9.4 REDUCTION OF COMMITMENTS ON TOTAL LOSS OR SALE OR BY RECEIPT OF
INSTALMENTS
(A) TOTAL LOSS OR SALE OF MORTGAGED SHIPS
If a Mortgaged Ship is sold or becomes a Total Loss, the
Commitments shall, subject to Clause 9.4(E), be reduced on the
Disposal Reduction Date for such Ship by the relevant Disposal
Reduction Amount.
(B) TRANSFERRED SHIPS
On each Disposal Reduction Date applicable to a Transferred
Ship, the Commitments shall, subject to Clause 9.4(E), be
reduced by the relevant Disposal Reduction Amount.
(C) SALE OF MORTGAGED PORTS AND/OR PORT OWNER
If a Mortgaged Port or any part thereof is sold (other than any
part of a Mortgaged Port which is sold for a consideration of
less than $25,000 or the equivalent thereof in any other
currency), or any of the shares in the capital of any Port Owner
are sold, the aggregate amount of the Commitments shall, subject
to Clause 9.4(E), be reduced on the Disposal Reduction Date
relating thereto by the relevant Disposal Reduction Amount.
(D) PREPAYMENT UPON REDUCTION OF COMMITMENTS AND/OR STANDBY
COMMITMENT
If, upon reduction or suspension of the Commitments by any such
Disposal Reduction Amount, the aggregate of the Outstandings at
such time exceeds the Commitments as thereby reduced or after
deduction of the amount to be suspended as the case may be, the
Borrower shall on such Disposal Reduction Date prepay such
amount of the outstanding Advances and/or procure the release
and discharge by the Beneficiaries of such of the Bank
Guarantees as will ensure that immediately thereafter the
aggregate amount of the Outstandings will not exceed the
Commitments as so reduced or after deduction of the amount to be
suspended as the case may be. If after such reduction or after
deduction of the amount to be suspended as the case may be the
Commitments are reduced to zero, the Standby Commitment shall be
reduced or suspended by the amount of the excess of the Disposal
Reduction Amount over the amount of the Commitments prior to
such reduction or the relevant suspension and the Borrower shall
repay such part of the Standby Outstandings as is necessary to
ensure that they do not exceed the Standby Commitment as so
reduced or after deduction of the amount to be suspended as the
case may be, together with any costs certified by the Standby
Lender as necessary to compensate it for the cost or repaying
fixed deposits borrowed to fund any amount in respect of the
Standby Facility which is drawn for a fixed term and which is
prepaid pursuant to this Clause 9.4(D) before the end of such
fixed term.
(E) SUBSTITUTE SECURITY
(i) Without prejudice to the Borrower's obligation to make
any payment due under Clause 9.4(D) the Commitments shall
be suspended for a period of up to twelve (12) months
from the relevant Disposal Reduction Date in an amount
equal to the relevant Disposal Reduction Amount. The
Borrower shall on any one or more dates during such
twelve (12) month period
63
(each such date being a "SUBSTITUTE SECURITY PROVISION
DATE") provide the Security Agent with substitute
security in accordance with the provisions of this
paragraph such that, upon the Agent giving notice to the
Borrower and the Banks that such security has been duly
granted, the suspended amount of the Commitments
(adjusted, if appropriate, in accordance with the
provisions of this paragraph) shall cease to be suspended
by an amount equal to two-thirds (2/3rds) of the value of
such substitute security or such lesser amount as the
Borrower requests, but so that the Commitments may not at
any time exceed the amount of the Commitments as they
would have stood but for the suspension of part thereof
and taking into account reductions and cancellations by
virtue of the other provisions of this Agreement.
For the purpose of this paragraph:-
(a) the value of any substitute security shall be the
market value on the Substitute Security Provision
Date of the asset subject to that Security
Document minus, in the case of any substitute
security provided under a Security Document which
ranks behind a Prior Security Document, 115% of
the amount of the Commitments under the SIBV $275m
Facility Agreement (as defined therein) which
cease to be suspended thereunder on that
Substitute Security Provision Date by reason of
the relevant Prior Security Document being granted
over that asset on such date; and
(b) the suspended amount of the Commitments shall be
reduced during the period of the suspension in
proportion to the reduction of the Commitments
(including the suspended portions) which takes
effect by virtue of any reduction or partial
cancellation in respect of the Commitments which
takes effect during the period of the suspension
by virtue of the other provisions of this
Agreement.
(ii) The Borrower's obligation to provide substitute security
in relation to an amount of the Commitments suspended by
virtue of this Clause 9.4(E) shall be deemed discharged
if any member of the Stena AB Group provides security
over a Vessel or Vessels (a "SUBSTITUTE VESSEL") owned by
such member of the Stena AB Group and the following
conditions in relation thereto are satisfied:-
(a) the relevant member of the Stena AB Group (except
in the case of Stena Rederi AB and Stena Line
Scandinavia) has executed a Shipowner's Guarantee
in favour of the Security Agent;
(b) the relevant member of the Stena AB Group has
executed in favour of the Security Agent a first
priority Ship Mortgage and either a first priority
Deed of Covenant or a first priority Insurance
Assignment in respect of the Substitute Vessel in
substantially the forms of Schedules 7 and 10
respectively to the Agreed Form Certificate
PROVIDED THAT, if the Commitments are suspended by
virtue of this Clause 9.4(E) due to the sale or
Total Loss of a Ship which
64
at the time of such sale or Total Loss was subject
to a Prior Mortgage, and if the Borrower is
required to provide substitute security under the
SIBV $275m Facility Agreement to avoid a
cancellation of part of the SIBV $275m Facility as
a result thereof, then the relevant member of the
Stena AB Group shall execute in favour of the
Security Agent a second priority Ship Mortgage
(ranking behind a Prior Mortgage only) and either
a second priority Deed of Covenant or a second
priority Insurance Assignment in respect of the
Substitute Vessel in substantially the forms of
Schedules 8 and 11 respectively to the Agreed Form
Certificate;
(c) the Substitute Vessel is registered under the laws
and flag of an Approved Flag State;
(d) the Agent shall have received the documents and
evidence referred to in Clause 23.12(F) in
relation to the Substitute Vessel.
If the Borrower provides substitute security in any other
form such security shall be in such form and constituted
in such manner as shall be in all respects satisfactory
to the Majority Banks.
(iii) To the extent that the Borrower does not grant or procure
the grant of additional security as provided in this
Clause 9.4(E) or cancel the whole or part of the
suspended amount under paragraph (iv) of this Clause
9.4(E) within the period of twelve (12) months after the
relevant Disposal Reduction Date, then the Commitments
shall be treated as permanently reduced by the suspended
amount or lesser amount in respect of which the Borrower
has not granted or procured the grant of substitute
security in accordance with the preceding provisions of
this Clause 9.4(E).
(iv) The Borrower may, during any period for which a part of
the Commitments is suspended under this Clause 9.4(E), by
notice to the Agent cancel with effect from a date not
less than thirty (30) days after the receipt by the Agent
of such notice in whole or part (being $1,000,000 or any
larger sum) of the suspended amount. Any such notice of
cancellation, once given, shall be irrevocable and upon
such cancellation taking effect the Commitment of each of
the Banks shall be reduced proportionately.
(v) Nothing in this Clause 9.4(E) shall affect the Borrower's
obligation to procure that all amounts realised from the
property pledged to the Security Agent as security under
the Security Documents shall, after an Event of Default
has occurred and is continuing, be applied in payment of
the relevant Disposal Reduction Amounts and, following a
declaration by the Agent under Clause 19.2, be applied in
accordance with Clause 11.10.
(vi) If the Borrower or any other member of the Stena AB Group
creates a Lien over any asset on or after the Execution
Date as security for payment of the SIBV $275m Facility
(whether pursuant to Clause 5.3(E) of the SIBV $275m
Facility Agreement or otherwise) the Borrower shall
procure that, simultaneously with the creation of such
Lien, a second
65
priority Lien over that asset is granted in favour of the
Security Agent as security for payment of the Outstanding
Indebtedness.
(F) DEFINED TERMS
For the purposes of this Clause 9.4:-
"DISPOSAL REDUCTION AMOUNT"
means:-
(x) in relation to a Mortgaged Ship which has become a Total
Loss or is sold, an amount in Dollars which is the lesser
of:-
(i) (aa) where the Ship has become a Total Loss,
the Net Total Loss Proceeds of such Ship
and (if relevant) its related Linkspans
less, in the case of a Mortgaged Ship
which is subject to a Ship Mortgage
ranking with second priority, the Relevant
Reduction/Prepayment Amount; or
(bb) where the Ship has been sold (otherwise
than on Credit Terms) the Net Cash Sale
Proceeds of such Ship and (if relevant)
its related Linkspans less, in the case of
a Mortgaged Ship which is subject to a
Ship Mortgage ranking with second
priority, the Relevant
Reduction/Prepayment Amount; and
(ii) such amount (if any) as will, after reduction or
suspension of the Commitments and the Standby
Commitment pursuant to Clauses 9.4(A) or 9.4(E)
and, if required by Clause 9.4(D), after any
prepayment of Advances and/or amounts drawn under
the Standby Facility and/or any release and
discharge of Bank Guarantees pursuant to the
Clause 9.4(D) on the Disposal Reduction Date for
such Ship, result in the Security Value being not
less than one hundred and fifty per cent (150%) of
the aggregate of (a) the total of the Commitments
and (b) the Standby Commitment (as so reduced or
suspended);
(y) in relation to a Transferred Ship, an amount in Dollars
which is the lesser of:-
(i) (aa) if the Ship has become a Total Loss, the
Net Total Loss Proceeds of such Ship and
(if relevant) its related Linkspans less,
in the case of a Transferred Ship which is
subject to a Receivables Assignment
ranking with second priority, the Relevant
Reduction/Prepayment Amount; or
(bb) if the Ship is sold pursuant to a power
conferred on the mortgagee or lessor
thereof, or an obligation on the lessor
thereof, following a default by the
purchaser or lessee, the Net Cash Sale
Proceeds of such Ship and (if relevant)
its related Linkspans less, in the case of
a Transferred Ship which is subject to a
Receivables Assignment ranking with second
priority, the Relevant
Reduction/Prepayment
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Amount; or
(cc) in any other case the amount of deferred
payment instalments, rent or other
deferred consideration received since the
drawdown date of the first Advance or, as
the case may be, the preceding Disposal
Reduction Date by the member of the Stena
AB Group which has disposed of the
relevant Ship less, in the case of a
Transferred Ship which is subject to a
Receivables Assignment ranking with second
priority, the Relevant
Reduction/Prepayment Amount; or
(dd) if, following a default by the purchaser
or lessee of the Ship under an agreement
for the sale of the Ship on Credit Terms
or the agreed early termination thereof
the agreement is validly terminated, and
the Ship is sold by the Shipowner
following the default or agreed early
termination the amount received by the
Shipowner by way of damages for breach of
the agreement (or any payment received by
the Shipowner or Stena Charterers on the
compromise of legal proceedings in respect
of such breach) or compensation for early
termination less, in the case of a
Transferred Ship which is subject to a
Receivables Assignment ranking with second
priority, the Relevant
Reduction/Prepayment Amount;
(ii) the amount referred to in paragraph (x)(ii) of
this Clause 9.4(F) (as if the reference therein to
Clause 9.4(A) were a reference to Clause 9.4(B));
and
(z) in relation to any Mortgaged Port or part of a Mortgaged
Port (other than any such part sold for a consideration
of less than $25,000 or the equivalent thereof in any
other currency) and/or any shares in the capital of a
Port Owner which is or are sold, an amount in Dollars
which is the lesser of:-
(i) the Net Cash Sale Proceeds thereof less, in the
case of a Mortgaged Port which is subject to a
Port Mortgage ranking with second priority, the
Relevant Reduction/Prepayment Amount; and
(ii) the amount referred to in paragraph (x)(ii) of
this Clause 9.4(F) (as if the reference therein to
Clause 9.4(A) were a reference to Clause 9.4(C)
and the reference therein to "such Ship" were a
reference to "such Port").
However, if the Security Value has not been determined by the
relevant Disposal Reduction Date, the Disposal Reduction Amount
shall be the amount referred to in sub-paragraph (x)(i), (y)(i)
or (z)(i) (as the case may be) of this definition, provided that
if, no later than thirty (30) days after such Disposal Reduction
Date, the Borrower demonstrates to the Agent's satisfaction
that, on the basis of the Security Value as at the relevant
Disposal Reduction Date, a lower Disposal Reduction Amount would
have applied at such date, such lower Disposal Reduction Amount
shall, for the purposes of determining the respective
67
Commitments of the Banks and for all other relevant purposes of
this Agreement, be deemed to have applied on and from such
Disposal Reduction Date;
"RELEVANT REDUCTION/PREPAYMENT AMOUNT"
means, in the case of a Mortgaged Ship or Transferred Ship or
Mortgaged Port which is subject to a Prior Security Document,
the amount (if any) by which the SIBV $275m Facility is
initially suspended upon the sale or Total Loss or other
disposal of such Ship or Port, whether mandatorily by the
relevant "Disposal Reduction Amount" as defined in the SIBV
$275m Facility Agreement or voluntarily by a higher amount upon
the election of the Borrower in accordance with the terms of the
SIBV $275m Facility Agreement;
"SECURITY VALUE" means the amount in Dollars (as certified by
the Agent whose certificate shall, in the absence of manifest
error, be conclusive and binding on the parties hereto) which,
at any relevant time, is equal to:-
(u) the market value of all the Owned Ships which are then
Mortgaged Ships (together with their related Linkspans,
if any, but only if they are Mortgaged Linkspans)
determined in accordance with Clause 9.4(G) provided that
if the Ship Mortgage on any such Owned Ship or the
Linkspan Mortgage on such Linkspan (as the case may be)
is restricted to a registered maximum amount recoverable
thereunder then such maximum mortgage amount shall be
used towards calculating the Security Value if it is
lower than the market value determined as aforesaid in
respect of such Owned Ship or Linkspan provided further
that, in the case of m.v. "Stena Germanica", if the
principal amount due under the Stena Germanica Loan
Agreement is less than the market value of the Ship and
the registered maximum amount recoverable under the Stena
Germanica Mortgage then such principal amount shall be
used towards calculating the Security Value in respect of
such Ship; plus
(v) in the case of a Transferred Ship which is sold on terms
which provide for capital payments to be paid over a
period of time together with interest at an agreed rate
or let on hire purchase terms where the rentals are
calculated by reference to an inherent rate of interest,
the aggregate amount of the capital payments or the
capital element of such payments payable in respect of
the Ship during the period for which such payments are to
be made under the relevant Sale Agreement; plus
(w) in the case of a Transferred Ship which is sold or let on
hire purchase terms and the relevant Sale Agreement does
not distinguish between capital and interest payments
inherent in the instalment or rental payments made the
aggregate of the payments payable in respect of the Ship
during the period for which such payments are to be made
under the relevant Sale Agreement, discounted to their
net present value at a discount rate certified by an
Officer's Certificate as the average cost of funds of the
Stena AB Group as at the date on which the Asset
Disposition affecting the relevant ship is completed and
in the case that any of the above are initially expressed
in a currency other than Dollars the relevant value shall
be taken to be the amount in Dollars obtained by
converting the amount in foreign currency at the Agent's
spot rate for the purchase of the relevant foreign
currency with Dollars as at the date of determination of
the Security Value; plus
68
(x) the market value of the Ports which are then subject to a
Port Mortgage determined in accordance with Clause 9.4(H)
unless the Port Mortgage on any such Port is restricted
to a registered maximum amount recoverable thereunder in
which case such maximum mortgage amount shall be used
towards calculating the Security Value if it is lower
than the market value determined as aforesaid in respect
of such Port; plus
(y) the market value of any other asset over which a Lien has
been granted in favour of the Security Agent pursuant to
a Security Document (such market value being determined
on such basis as the Agent shall reasonably require or
approve); minus
(z) the lower of (i) 115% of the then amount of the SIBV
$275m Facility (being the aggregate of all amounts drawn
under the SIBV $275m Facility Agreement and all amounts
then undrawn but committed and available for drawing
thereunder and not suspended) and (ii) the aggregate
value of the those assets subject to the Prior Security
Documents as determined in accordance with paragraphs (u)
to (y) above.
(G) VALUATION OF SHIPS AND LINKSPANS
The value of each Mortgaged Ship shall be determined as being
the mortgage free value thereof after deduction of the aggregate
amount of any mortgage debt secured thereon in favour of any
creditor other than the Security Agent and, in the case of m.v.
"Stena Carisma" and any other Ship which may become a Mortgaged
Ship and which requires the use of Linkspans for its operation,
such value shall be taken as the mortgage free value thereof
together with the book value of its related Linkspans (but only
if they are Mortgaged Linkspans) as shown in the then latest
Free Net Worth Compliance Certificate delivered to the Agent.
For these purposes, the mortgage free value of each such Ship
(together, if relevant, with its Linkspans) shall be the mean of
the valuations of the charter-free market value thereof on a
willing buyer/willing seller basis as assessed as at the
relevant date by, in the case of any ro-ro or ferry, three
leading European shipbrokers active in the ro-ro/ferry market
appointed by the Borrower from the following list of brokers:-
Xxxxx Xxxxxxxx Xxxxxx
Xxxx Shipping HB
Simsonship AB
Maersk Sales
Parimar Francharte S.A.
English White Shipping Ltd.
Nor Ocean
in the case of any drilling rig, by three leading shipbrokers
active in the offshore market appointed by the Borrower from the
following list of brokers:-
Fearnleys A/S
Xxxxxxx Xxxx
Bassoe Offshore A/S
Xxxxx Xxxxxxxx Salles
Seascope Offshore
69
in the case of any crude oil or other products tanker, by three
leading shipbrokers active in the tanker market appointed by the
Borrower from the following list of brokers:-
Xxxxxxx Xxxxx Xxxxx Xxxxx & Associates
H Clarkson & Co Limited
Bassoe A/S
Fearnleys A/S
Xxxxxxx Xxxxxx & Xxxxx Shipbrokers
Xxxxxxxx Tankers AB
or any other broker nominated by the Borrower and approved by
the Agent.
Valuations of each Mortgaged Ship and each Mortgaged Linkspan
shall be obtained twice annually as at 30 June and 31 December
in each year (which valuations are to be received by the Agent
within twenty one (21) days after the relevant dates).
(H) VALUATION OF HOLYHEAD PORT AND STRANRAER PORT
The value of each Port shall be the amount (expressed in Dollars
by reference to exchange rates prevailing on the day of
computation of the Security Value) determined as the earnings
before interest, taxes, depreciation and amortisation in respect
of such Port for the previous period of twelve (12) months as
shown in the documents relating to such Port most recently
delivered to and accepted by the Agent pursuant to Clause
14.2(E) multiplied by six and one half (6.5) provided that if
the Agent on the instructions of the Majority Banks gives notice
to the Borrower that the foregoing does not represent a fair
market value of Holyhead Port and/or Stranraer Port the value
shall be determined by the auditors of the Borrower or such
other firm of auditors as the Agent shall on the instructions of
the Majority Banks appoint on a basis which in the opinion of
such auditors provides a Fair Market Valuation in accordance
with the practice adopted by auditors in valuing similar port
facilities in the United Kingdom.
The foregoing procedure shall also be used to value any other
Port which may from time to time be subject to a Port Mortgage
in favour of the Security Agent.
The initial values in Sterling of Holyhead Port and Stranraer
Port shall be (pound)72,202,000 and (pound)13,533,000
respectively (being the values determined as at 31 December 2001
by reference to the earnings before interest, taxes,
depreciation and amortisation for the previous twelve (12)
months in respect of each respective Port).
(I) VALUATION COSTS
The reasonable costs of valuations carried out pursuant to this
Clause 9.4 shall be reimbursed by the Borrower to the Agent on
the Agent's request.
(J) DATE OF TOTAL LOSS
For the purpose of this Agreement, a Total Loss shall be deemed
to have occurred:-
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(i) in the case of an actual total loss of a Ship or Linkspan
on the actual date and at the time such Ship or Linkspan
was lost or, if such date is not known, on the date on
which the Ship or Linkspan was last reported;
(ii) in the case of a constructive total loss of a Ship or
Linkspan, upon the date and at the time notice of
abandonment of such Ship or Linkspan is given to the
insurers of such Ship or Linkspan 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 panel to have occurred or, if
earlier, the date falling six (6) months after notice of
abandonment of such Ship or Linkspan was given to the
insurers;
(iii) 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 the relevant Ship or Linkspan;
(iv) in the case of Compulsory Acquisition of a Ship or
Linkspan, on the date upon which the relevant requisition
of title or other compulsory acquisition of such Ship or
Linkspan occurs; and
(v) in the case of hijacking, theft, condemnation, capture,
seizure, arrest, detention or confiscation of a Ship or
Linkspan (other than where the same amounts to Compulsory
Acquisition of such Ship or Linkspan) by any Government
Entity, or by persons purporting to act on behalf of any
Government Entity, which deprives the relevant Shipowner
of the use or the relevant Stena Charterer or third party
demise charterer of such Ship or Linkspan for more than
one hundred and eighty (180) days, upon the expiry of the
period of one hundred and eighty (180) days after the
date upon which the relevant hijacking, theft,
condemnation, capture, seizure, arrest, detention or
confiscation occurred.
(K) APPLICATION OF TOTAL LOSS AND SALE PROCEEDS
Provided no Event of Default has occurred and is continuing, and
provided the Borrower shall have complied with Clauses 9.4 and
9.5, any insurance moneys or Requisition Compensation or
proceeds of sale received by the Agent or the Security Agent in
respect of a Total Loss of a Ship or sale of a Mortgaged Ship or
Mortgaged Port or Mortgaged Linkspan under the relevant Security
Documents or in consideration of the agreement of the Security
Agent to release its security in relation to any Ship or Port
shall be paid to the relevant mortgagor or assignor or (if and
to the extent necessary to ensure compliance with Clause 9.4)
retained by the Agent for application in or towards making any
prepayment and paying any other moneys required under Clauses
9.4 and 9.5. For this purpose, any such insurance moneys or
Requisition Compensation or proceeds of sale so received (or the
relevant part thereof) may be applied, if the relevant mortgagor
or assignor so requests the Agent in writing before the date of
receipt thereof, in effecting any prepayment required in
accordance with Clause 9.4 and paying related amounts due under
Clause 9.5 provided that in relation to any Transferred Ships
the references in this Clause 9.4(K) to sale proceeds, insurance
moneys and Requisition Compensation shall be deemed to refer to
the moneys received by the Security Agent under the relevant
Receivables Assignment. Pending each
71
Disposal Reduction Date in relation thereto such moneys shall be
accumulated in an account of the relevant assignor with the
Agent and the balance thereof after making applications required
by Clauses 9.4 and 9.5 shall, provided no Event of Default has
occurred and is continuing or would be occasioned thereby, be
released to the relevant assignor on the relevant Disposal
Reduction Date or as soon thereafter as is reasonably
practicable.
(L) SALE OF SHIPS ON CREDIT TERMS
Where a Shipowner sells its Mortgaged Ship on Credit Terms, the
relevant Shipowner shall before completion of the sale (in the
case of a credit sale) or delivery of the Ship to the relevant
charterer (in the case of a hire purchase or conditional sale)
execute and deliver to the Security Agent an assignment in
substantially the form of the Receivables Assignment of the
amounts receivable in respect of the sale or letting of the Ship
and all security granted to such Shipowner in respect of the
obligation of the buyer to pay the outstanding balance of the
purchase price or rentals and the option price under any
relevant hire purchase agreement in respect of such Ship. Where
the Ship is sold pursuant to a credit sale or other arrangement
under which the purchaser acquires title to the Ship, such
security shall in any event include either:-
(i) a first priority mortgage in favour of the seller of the
Ship constituted under the laws of an Approved Flag State
and a first priority assignment in favour of the seller
of the Insurances of the Ship which shall be placed on
terms which are not materially less favourable to the
seller than the terms set out in the form of Deed of
Covenant in Schedule 7 to the Agreed Form Certificate in
the case of mortgage covenants and the terms set out in
Schedule 10 to the Agreed Form Certificate in the case of
an Insurance Assignment; or
(ii) a bank guarantee from a first class international bank
guaranteeing to the seller of the Ship repayment of the
full amount of the deferred consideration for the sale of
the Ship.
The Borrower and Stena AB shall procure that without the consent
of the Banks no Ship is sold on Credit Terms for a consideration
the principal or capital amount of which is less than the Fair
Market Value of the Ship at the time the Ship is sold.
9.5 AMOUNTS PAYABLE ON PREPAYMENT
Any prepayment of an Advance under this Agreement shall be made
together with:-
(A) accrued interest on the amount to be prepaid to the date of such
prepayment (calculated in respect of the period during which the
relevant Substitute Basis has applied by virtue of Clause 8.5,
at a rate per annum equal to the aggregate of (i) the Margin and
(ii) for such period the cost to such Bank of funding its
Contribution);
(B) any additional amounts payable under Clauses 11.7 and 21.2;
(C) costs certified by the Agent as necessary to compensate the
Banks or the Standby Lender for the cost of repaying fixed
deposits borrowed to fund any part of any
72
Advance or drawing under the Standby Facility which is prepaid
before the Maturity Date of any Advance or the fixed term by
reference to which the relevant rate of interest has been
ascertained;
(D) all other sums payable by the Borrower to the relevant Bank
under this Agreement or any of the other Security Documents
including, without limitation, any accrued commitment or
guarantee commission payable under Clause 10 and any amounts
payable under Clause 21.
9.6 NOTICE OF PREPAYMENT
No voluntary prepayment of an Advance may be effected under this Clause
9 unless the Borrower shall have given the Agent at least ten (10)
days' notice of its intention to make such prepayment, except on the
sale of a Ship or a Total Loss. Every notice of prepayment shall be
effective only on actual receipt by the Agent, shall be irrevocable,
shall specify the amount to be prepaid and shall oblige the Borrower to
make such prepayment on the date specified. Unless and to the extent
that the Commitments are cancelled or reduced on or with effect from
the date of any such prepayment, amounts prepaid may be re-drawn under
this Agreement. The Borrower may not prepay any Advance or any part
thereof save as expressly provided in this Agreement.
9.7 CHANGE OF CONTROL OF STENA AB: MANDATORY CANCELLATION
If at any time during the Security Period less than seventy five per
cent (75%) of the issued voting share capital of Stena AB (including
any votes attached to any shares of Stena AB into which outstanding
warrants or other securities may be converted) is held by members of
the Xxxx X. Xxxxxx Family the Borrower or the Agent shall immediately
upon becoming aware thereof give notice to the other. The Agent shall
consult with the Banks as to the appropriate action to be taken in the
light of representations by the Borrower as to the consequences of the
change of shareholding. Without prejudice to Clause 19, not earlier
than one hundred and twenty (120) days after receiving from or giving
notice to the Borrower as provided above the Agent shall unless all of
the Banks agree otherwise if the shareholding of the Xxxx X. Xxxxxx
Family in Stena AB does not then exceed seventy five per cent (75%),
give notice to the Borrower requiring the Borrower to prepay all the
Outstandings and the Standby Outstandings within thirty (30) days of
the Agent's notice and upon such notice the Borrower shall within such
period make payment to the Agent accordingly and the Commitments and
the Standby Commitment shall be cancelled in full at the end of such
thirty (30) day period.
9.8 CHANGE OF CONTROL OF THE BORROWER: MANDATORY CANCELLATION
If at any time during the Security Period Stena AB ceases directly or
via a Wholly Owned Subsidiary of Stena AB to hold the entire issued
share capital of the Borrower without the prior consent of the Majority
Banks the Outstandings and the Standby Outstandings shall forthwith
become repayable on the Agent's demand and the Agent may, and if so
directed by the Majority Banks shall, make such a demand on the
Borrower whereupon the Outstandings and the Standby Outstandings shall
be repayable on the date specified in such notice together with all
interest and any commitment commission accrued and all other sums
payable under this Agreement and the Commitments and the Standby
Commitment shall be cancelled in full.
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9.9 FAILURE TO PROVIDE SECURITY ON M.V. "STENA TAY": MANDATORY PARTIAL
CANCELLATION.
If the Agent, or its duly authorised representative, does not receive
all of the documents and evidence specified in Part 2 of Schedule 8 in
respect of "STENA TAY" in form and substance satisfactory to the Agent
on or before the date falling sixty (60) days after the Availability
Date then, unless the Banks and the Standby Lender agree otherwise
before such date, the aggregate commitments shall be reduced on such
date pro rata in accordance with the Banks' respective percentage by
the aggregate amount of $95,000,000 and the Standby Commitment shall be
reduced on such date by the amount of $5,000,000.
If, upon any reduction of the Commitments pursuant to this Clause 9.9,
the aggregate of the Outstandings at such time exceeds the Commitments
as thereby reduced the Borrower shall, on the date on which such
reduction takes effect, prepay such amount of the outstanding Advances
and/or procure the release and discharge by the Beneficiaries of such
of the Bank Guarantees as will ensure that immediately thereafter the
aggregate amount of the Outstandings will not exceed the Commitments as
so reduced.
If upon any reduction of the Standby Commitment pursuant to this Clause
9.9, the Standby Outstandings at that time exceed the Standby
Commitment as thereby reduced the Borrower shall, on the date on which
such reduction takes effect, prepay such amount of the Standby
Outstandings as will ensure that immediately thereafter the aggregate
amount of the Standby Outstandings will not exceed the Standby
Commitment as so reduced.
9.10 VOLUNTARY CANCELLATION OF COMMITMENTS
The Borrower may at any time during the Availability Period by notice
to the Agent (effective only on actual receipt) cancel with effect from
a date not less than thirty (30) days after the receipt by the Agent of
such notice the whole or any part (being $10,000,000 or any larger sum
but not more than the Available Commitments of all of the Banks as at
such date) of the total of the Available Commitments as at such date of
all the Banks. Any such notice of cancellation, once given, shall be
irrevocable and upon such cancellation taking effect the Commitment of
each of the Banks shall be reduced proportionately and the Borrower
shall on the date designated in its notice prepay such amount of the
outstanding Advances and/or procure the release and discharge by the
Beneficiaries of such of the Bank Guarantees as will ensure that
immediately thereafter the aggregate amount of the Outstandings will
not exceed the Commitments as so reduced by virtue of the Borrower's
cancellation.
9.11 ALTERNATIVE COLLATERALISATION OF BANK GUARANTEES
If the Commitments and the Standby Commitment are cancelled in full by
virtue of any provision of this Agreement (including without limitation
Clauses 9.7, 9.8 or 9.9) and the Borrower is unable to or does not wish
to procure the release and discharge of one or more of the Bank
Guarantees then in issue, it may, in relation to such Bank Guarantees
(and without prejudice to its obligation to prepay either the
outstanding Advances and the Standby Outstandings as provided above),
instead of procuring such release and discharge, either:-
(A) pay to the credit of the relevant Cash Collateral Account
amounts equal to the Outstanding Guarantee Amounts of the
relevant Bank Guarantees (less any amounts already standing to
the credit thereof); and/or
74
(B) provide to each Issuing Bank a counter-indemnity or
counter-indemnities from any one or more first class banks or
financial institutions acceptable to such Issuing Bank
covering the Outstanding Guarantee Amounts of the relevant
Bank Guarantees issued by it (less any amounts standing to the
credit of the Cash Collateral Accounts in relation thereto),
such counter-indemnity or counter-indemnities to be in form
and substance acceptable to each relevant Issuing Bank
whereupon the Banks shall be released from any further obligation to
the Issuing Banks under Clause 6.2, no further commission shall be
payable under Clause 10.2, Clauses 14, 15, 16, 17 and 19 shall cease to
be operative and the Security Agent shall release all of the security
constituted by the Security Documents (other than that constituted over
the Cash Collateral Account pursuant to this Agreement and the Cash
Collateral Account Pledges).
9.12 ADDITIONAL PARTIAL CANCELLATION
The Borrower may at any time during the Availability Period by notice
to the Agent (effective only on actual receipt) cancel with effect from
a date not less than thirty (30) Banking Days after receipt by the
Agent of such notice the whole but not part only, but without prejudice
to its obligations under Clauses 11.7 and 21.2, of the Commitment of
any Bank to which the Borrower shall have become obliged to pay
additional amounts under Clause 11.7 or 21.2. Upon any notice of such
prepayment being given, the Commitment of the relevant Bank shall be
reduced to zero and:-
(A) the Borrower shall on the date on which such Bank's Commitment
is reduced to zero pay to the Agent for credit to the Cash
Collateral Account an amount equal to such Bank's Percentage of
the difference between (i) the Outstanding Guarantee Amounts of
the Bank Guarantees and (ii) the amount then standing to the
credit of the Cash Collateral Account (less any amount standing
to the credit of the Cash Collateral Account as a result of a
payment in respect of another Bank pursuant to Clause 21.1 or
this Clause 9.12); and
(B) the Borrower shall be obliged to prepay the Contribution of such
Bank on such date; and
(C) such Bank shall be under no obligation under Clause 6.2 in
respect of any Bank Guarantees which may be issued after the
date upon which its Commitment has been so reduced.
If the Borrower has made the payment to the Cash Collateral Account
required of it in respect of a Bank Guarantee under this Clause 9.12,
the Percentage of the Bank in respect of which such payment was made of
the liabilities of the Banks for each Bank Guarantee shall be reduced
to zero. To the extent that the Borrower has not made such payment,
such Bank shall continue to be liable to the relevant Issuing Bank
under Clause 6.2 for an amount equal to its Percentage of such Bank
Guarantee less the amount of any such payment by the Borrower to the
Cash Collateral Account in relation to the relevant Bank Guarantee.
9.13 PREPAYMENT DURING TERM
The Borrower may at any time by notice to the Agent (effective only on
actual receipt) prepay the whole or any part (being $10,000,000 or any
larger sum) of any Advance prior to its Maturity Date on not less than
ten (10) days notice (whether or not any part of the
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Commitment is also being cancelled on such date pursuant to any
provision of this Agreement) and the Borrower shall when making such
prepayment, make such prepayment together with any amounts as referred
to in Clause 9.5.
9.14 TRANSFERRED SHIPS : APPLICATION OF MONEYS RECEIVED
The Borrower shall procure that moneys payable by the purchasers of
Transferred Ships on account of the deferred consideration for the
purchase of the relevant Ships shall be paid to accounts in the name of
the Security Agent established with itself. The amounts accumulated in
such accounts shall be applied on each Disposal Reduction Date in
payment to the Agent of the Disposal Reduction Amount in respect of the
relevant Ship and, provided that no Event of Default has occurred and
is continuing, the balance standing to the credit of the relevant
accounts shall be released to the relevant seller immediately following
such application. Moneys credited to the relevant accounts will bear
interest at the normal rates paid by the Agent for accounts of the
relevant type to first class customers.
10 FEES, COMMISSION, MARGIN AND EXPENSES
10.1 AGENCY FEE
The Borrower shall pay to the Agent and Security Agent on the Execution
Date and on each anniversary thereof during the Security Period an
agency fee of the amount set out in a separate letter agreement dated
25 October 2002 made between Svenska Handelsbanken AB (publ) as Agent
and Security Agent, the Borrower and Stena AB.
10.2 COMMISSION ON BANK GUARANTEES
The Borrower shall pay to the Agent for the account of the Banks in
accordance with their respective Percentages semi-annually in arrears
during the Availability Period guarantee commission in Dollars
calculated on a daily basis at an annual rate (based on a year of 360
days) equal to the Margin on the daily aggregate Outstanding Guarantee
Amounts since the later of the Availability Date and the later of the
preceding 30 June and 31 December of all Bank Guarantees. For the
purpose of calculating the daily aggregate Outstanding Guarantee Amount
during each such half-year period of any Bank Guarantee denominated in
a currency other than Dollars, the Agent shall convert the daily
amounts of this other currency into Dollars using the Agent's ordinary
spot rate of exchange for the purchase of such currency with Dollars as
at 11.00 a.m. on the last Banking Day of that period.
The first period in respect of which such guarantee commission shall be
calculated will be the period from the Availability Date up to and
including 31 December 2002; thereafter the guarantee commission shall
be calculated for each of the following consecutive periods of six (6)
months ending on 30 June and 31 December respectively in each year with
a final instalment being calculated in respect of the period ending on
the last day of the Availability Period.
The amount of guarantee commission payable in respect of each such
period shall be calculated by the Agent within five (5) Banking Days of
the end of such period and shall be notified by the Agent to the
Borrower who shall pay such amount to the Agent not later than five (5)
Banking Days after receiving the Agent's notification thereof.
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10.3 ISSUING BANK COMMISSION
The Borrower shall pay to the Agent for the account of each Issuing
Bank semi-annually in arrears during the Availability Period in respect
of all Bank Guarantees issued by that Issuing Bank a guarantee
provider's commission in Dollars calculated on a daily basis at an
annual rate (based on a year of 360 days) equal to zero point one five
per cent (0.15%) per annum on the daily amount of the sum of the
aggregate Outstanding Guarantee Amounts of all such Bank Guarantees
since the later of the Availability Date and the later of the preceding
30 June and 31 December minus the relevant Issuing Bank's own
Percentage of such Outstanding Guarantee Amounts in its capacity as a
Bank. For the purpose of calculating the daily aggregate Outstanding
Guarantee Amount during each such half-year period of any Bank
Guarantee denominated in a currency other than Dollars, the Agent shall
convert the daily amounts of this other currency into Dollars using the
Agent's ordinary spot rate of exchange for the purchase of such
currency with Dollars as at 11.00 a.m. on the last Banking Day of that
period.
The first period in respect of which such guarantee provider's
commission shall be calculated will be the period from the Availability
Date up to and including 31 December 2002; thereafter the guarantee
provider's commission shall be calculated for each of the following
consecutive periods of six (6) months ending on 30 June and 31 December
respectively in each year with a final instalment being calculated in
respect of the period ending on the last day of the Availability
Period.
The amount of guarantee provider's commission payable in respect of
each such period shall be calculated by the Agent within five (5)
Banking Days of the end of such period and shall be notified by the
Agent to the Borrower who shall pay such amount to the Agent not later
than five (5) Banking Days after receiving the Agent's notification
thereof.
10.4 COMMITMENT COMMISSION
The Borrower shall pay to the Agent for the account of the Banks and
the Standby Lender quarterly in arrears during the Availability Period
commitment commission computed from the date of this Agreement at an
annual rate equal to zero point five per cent (0.5%) on the daily
average undrawn and uncancelled amount of each Bank's Available
Commitment and the Available Standby Commitment in relation to the
relevant period. Commitment commission shall also be payable in respect
of any portion of the Commitments which has been suspended pursuant to
Clause 9.4 (E) but not cancelled.
The first period in respect of which such commitment commission shall
be calculated will be the period from the Execution Date up to and
including 31 December 2002; thereafter the commitment commission shall
be calculated for each of the following consecutive periods of three
(3) months ending on 31 March, 30 June, 30 September and 31 December
respectively in each year with a final instalment being calculated in
respect of the period ending on the last day of the Availability
Period.
The amount of commitment commission payable in respect of each such
period shall be calculated by the Agent within five (5) Banking Days of
the end of such period and shall be notified by the Agent to the
Borrower who shall pay such amount to the Agent not later than five (5)
Banking Days after receiving the Agent's notification thereof.
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10.5 ARRANGEMENT FEE
The Borrower shall pay to the Agent for the account of the Co-Arrangers
on the Execution Date an arrangement fee of the amount set out in the
mandate letter dated 23 September 2002 made between the Co-Arrangers,
the Borrower and Stena AB.
10.6 EXPENSES
The Borrower shall pay to the Agent on a full indemnity basis on demand
all expenses (including external and internal legal, printing and
out-of-pocket expenses) incurred:-
(A) by any Issuing Bank and/or the Agent and/or the Security Agent
and/or the Standby Lender and/or the Co-Arrangers in connection
with the negotiation, preparation, primary syndication,
execution and, where relevant, registration of the Security
Documents and of any amendment or extension of or the granting
of any waiver or consent under, any of the Security Documents
(but excluding, for the avoidance of doubt, any such expense
incurred in connection with the transfer, assignment or
sub-participation of any of the rights and/or obligations of any
Bank under the Security Documents other than by the Co-Arrangers
in connection with the primary syndication of the facility
granted hereunder);
(B) by the Agent, the Security Agent and the New Guarantee Provider
in connection with the issue of any Bank Guarantee or the
extension of the Expiry Date of any Bank Guarantee; and
(C) by the Agent, the Issuing Banks, any of the Banks, the Standby
Lender and the Security Agent in contemplation of, or otherwise
in connection with, the enforcement of, or 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 8.2
from the date on which such expenses were incurred, to the date
of payment (as well after as before judgment)
provided that the Borrower shall not be liable to reimburse the costs
of any external legal advisers under paragraph (A) except the legal
fees and disbursements of Xxxxxxxxxx Xxxxxxx as counsel to the
Co-Arrangers and the fees and disbursements of the legal counsel who
are to render opinions in respect of any of the Security Documents or
to deal with registration of any of the Ship Mortgages or other
Security Documents on behalf of the Security Agent.
10.7 VAT
All fees, commissions and expenses payable pursuant to this Clause 10
shall be paid together with an amount equal to any VAT payable by the
Agent, the Security Agent, the Co-Arrangers, the Issuing Banks, any
Bank or the Standby Lender in respect of such fees and expenses and any
VAT chargeable in respect of any services supplied by the Agent, the
Security Agent, the Co-Arrangers, the Issuing Banks, any Bank or the
Standby Lender under this Agreement shall, on delivery of a VAT
Invoice, be paid in addition to any sum agreed to be paid hereunder to
the extent that, in either case, the Agent, the Security Agent, the
Co-Arrangers, the Issuing Banks, the relevant Bank or the Standby
Lender (as the case may be) shall have certified (such certificate to
be binding and conclusive, in the absence of manifest error, on the
Borrower) to the Borrower that it is not entitled to credit for such
VAT as input tax.
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10.8 STAMP AND OTHER DUTIES
The Borrower shall pay all stamp, documentary, registration or other
like duties or taxes (including any duties or taxes payable by the
Agent, the Security Agent, the Issuing Banks, the Co-Arrangers, the
Banks and the Standby Lender but excluding any such duties or taxes
incurred in connection with any transfer, assignment or
sub-participation of any of the rights and/or obligations of the Agent,
the Security Agent, an Issuing Bank, a Co-Arranger, a Bank or the
Standby Lender under any of the Security Documents other than at the
request of the Borrower) imposed on or in connection with any of the
Commercial Documents, the Security Documents or the Bank Guarantees and
shall indemnify the Agent, the Issuing Banks, the Co-Arrangers, the
Security Agent, the Banks and the Standby Lender against any liability
arising by reason of any delay or omission by the Borrower to pay such
duties or taxes.
10.9 SUPPLEMENTAL MARGIN
(A) The Margin is calculated on the basis that the daily average of
the Outstandings of the Banks during each Calculation Period
will not exceed thirty three and one-third of one per cent (33
1/3%) of the daily average of the Commitments of the Banks
during such Calculation Period. If such daily average for a
Calculation Period exceeds thirty three and one-third of one per
cent (33 1/3%) and sixty six and two-thirds of one per cent (66
2/3%) (as the case may be) an additional amount shall be payable
by the Borrower to each Bank in the manner provided by this
Clause 10.9.
(B) For the purposes of this Clause 10.9:-
(i) "CALCULATION PERIOD" means the period commencing on the
Availability Date and ending on the first Review Date and
each of the successive three (3) monthly periods
thereafter each expiring on a Review Date with the final
Calculation Period (whether of three (3) months or
shorter) ending on the final Review Date;
(ii) "REVIEW DATE" means 31 December 2002 and 31 March, 30
June and 30 September and 31 December in each year
thereafter up to the date upon which all of the
Commitments are reduced to zero, and such date itself;
and
(iii) in relation to Svenska Handelsbanken AB (publ)
"OUTSTANDINGS" and "COMMITMENT" shall be deemed to
include Standby Outstandings and the Standby Commitment
and reference to "BANK" shall include Svenska
Handelsbanken AB (publ) both in its capacity as Bank and
as Standby Lender
(C) Within five (5) Banking Days after each Review Date the Agent
shall calculate the actual daily average of the Outstandings of
each Bank during the Calculation Period expiring on such Review
Date according to the following formula -
A = O x 100
-
C
where -
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A is the actual daily average of the Outstandings of the Banks
during the relevant Calculation Period, expressed as a
percentage.
O is the aggregate of the amounts of the Outstandings of the
Banks on each day during such Calculation Period; and
C is the aggregate of the amounts of the Commitments of the
Banks on each day during such Calculation Period.
(D) For the purposes of this Clause 10.9, the rate of supplemental
margin in relation to a Calculation Period will be as follows:-
(i) where A as so calculated exceeds thirty three and
one-third of one per cent (33 1/3%) but does not exceed
sixty six and two-thirds of one per cent (66 2/3%), the
supplemental margin applicable to all of the Outstandings
for such Calculation Period will be zero point twenty
five per cent (0.25%); and
(ii) where A as so calculated exceeds sixty six and two-thirds
of one per cent (66 2/3%), the supplemental margin
applicable to all of the Outstandings for such
Calculation Period will be zero point three hundred and
seventy five per cent (0.375%).
(E) Upon calculating the rate of supplemental margin (if any), the
Agent shall promptly calculate an amount (the "SUPPLEMENTAL
MARGIN AMOUNT") equal to interest accruing at an annual
percentage rate equal to the supplemental margin for such
Calculation Period on the daily Outstandings of each Bank from
the beginning of such Calculation Period to the Review Date on
which it ends. The Agent shall then notify the Borrower and each
Bank of the rate of supplemental margin (if any) for such
Calculation Period and the Supplemental Margin Amount (if any)
due to such Bank for such Calculation Period.
(F) The Borrower shall pay to the Agent, for the account of the
Banks and the Standby Lender, the aggregate of the Supplemental
Margin Amounts due to each of the Banks and the Standby Lender
for a Calculation Period within five (5) Banking Days of being
notified by the Agent of the rate of supplemental margin and the
amount of the Supplemental Margin Amounts for that Calculation
Period.
11 PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS
11.1 NO SET-OFF OR COUNTERCLAIM; DISTRIBUTION TO THE BANKS
The Borrower acknowledges that in performing its obligations under this
Agreement, the Banks, the Standby Lender and the Issuing Banks will be
incurring liabilities to third parties in relation to the funding of
amounts to the Borrower, such liabilities matching the liabilities of
the Borrower to the Banks, the Standby Lender and the Issuing Banks and
that it is reasonable for the Banks, the Standby Lender and the Issuing
Banks to be entitled to receive payments from the Borrower gross on the
due date in order that the Banks, the Standby Lender and the Issuing
Banks are put in a position to perform their matching obligations to
the relevant third parties. Accordingly all payments to be made by the
Borrower under any of the Security Documents shall be made in full,
without any set-off or counterclaim whatsoever and, subject as provided
in Clause 11.7, free and clear of any deductions or withholdings, in
Dollars (except for costs, charges or expenses
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which shall, at the request of the Agent, be payable in the currency in
which they are incurred) on the due date to the account required under
Clause 11.12. Save where this Agreement specifically provides for a
payment to be made for the account of a particular Bank (including,
without limitation, Clauses 9.12, 10, 11.7, 20.2, 21.1, 21.2 and 22.2)
in which case the Agent shall distribute the relevant payment to the
Bank concerned and except in relation to amounts payable to the Standby
Lender in respect of the Standby Facility or to the relevant Issuing
Bank in respect of any Bank Guarantee, payments to be made by the
Borrower under this Agreement shall be for the account of all the Banks
and the Agent shall forthwith distribute such payments in like funds as
are received by the Agent to the Banks rateably in accordance with
their Commitments.
11.2 PAYMENTS BY THE BANKS
(A) TO THE AGENT AND THE ISSUING BANKS
All payments to be made by a Bank to or for the account of an
Issuing Bank or the Agent under this Agreement shall be made in
full, without any set-off or counterclaim whatsoever and,
subject as provided in Clause 11.8, free and clear of any
deductions or withholdings, in Dollars on the due date to the
account of the Agent at such bank as the Agent may from time to
time specify for this purpose and, in the case of payments for
the account of an Issuing Bank, shall be paid by the Agent on
such date in like funds as are received by the Agent to such
Issuing Bank.
(B) TO THE BORROWER
All sums to be advanced by the Banks to the Borrower under this
Agreement shall be remitted in Dollars on the date of the
Advance to the account of the Agent at such bank as the Agent
may have notified to the Banks and shall be paid by the Agent on
such date in like funds as are received by the Agent to the
account specified in the relevant Drawdown Notice.
11.3 AGENT MAY ASSUME RECEIPT
Where any sum is to be paid under any of the Security Documents to the
Agent for the account of another person, the Agent may assume that the
payment will be made when due and the Agent 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 Agent, then
the person to whom such sum was so made available shall on request
refund such sum to the Agent together with interest thereon sufficient
to compensate the 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 Agent and/or person to whom such sum was made
available by the Agent for any and all loss or expense which the Agent
or such person may sustain or incur as a consequence of such sum not
having been paid on its due date.
11.4 NON-BANKING DAYS
When any payment under any of the Security Documents would otherwise be
due, or the Termination Date or any relevant anniversary of the
Execution Date would otherwise fall, on a day which is not a Banking
Day, the due date for payment or (as the case may be) the Termination
Date or such anniversary date shall be extended to the next following
Banking Day unless such Banking Day falls in the next calendar month in
which case
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payment shall be made, or (as the case may be) the Termination Date or
such anniversary date shall fall, on the immediately preceding Banking
Day.
11.5 CALCULATIONS
All interest, commissions, fees 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 360 day year.
11.6 CERTIFICATES CONCLUSIVE
Any certificate or determination of the Agent, any Issuing Bank, any
Bank or the Standby Lender as to any rate of interest or any other
amount pursuant to and for the purposes of any of the Security
Documents shall substantiate in reasonably sufficient detail the
interest or other amount concerned and, subject thereto, shall, in the
absence of manifest error, be conclusive and binding on the Borrower
and (in the case of a certificate or determination by the Agent) on the
Issuing Banks and the Banks. The Agent or, as the case may be, the
Standby Lender shall, promptly upon the request of the Borrower, send
to the Borrower such details as may reasonably be required by the
Borrower setting out the manner in which any such rate or amount has
been determined, together with such documents and calculations as may
reasonably be required by the Borrower in order to verify the same.
11.7 GROSSING-UP FOR TAXES - BORROWER
(A) GROSSING UP
If at any time the Borrower or Stena AB is required 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
Bank, the Standby Lender, the Co-Arrangers, the Security Agent,
any Issuing Bank or the Agent (or if the Agent is required to
make any deduction or withholding from a payment to the
Co-Arrangers, the Security Agent, an Issuing Bank, a Bank or the
Standby Lender), the sum due from the Borrower or, as the case
may be, Stena AB in respect of such payment shall be increased
to the extent necessary to ensure that, after the making of such
deduction or withholding, each Bank, the Standby Lender, each
Co-Arranger, the Security Agent, each Issuing Bank and the 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 the
Borrower and Stena AB shall indemnify each Bank, the Standby
Lender, the Co-Arrangers, the Security Agent, each Issuing Bank
and the Agent against any losses or costs incurred by any of
them by reason of any failure of the Borrower or Stena AB 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 Borrower or, as the case may be, Stena AB shall
promptly deliver to the Agent any receipts, certificates or
other proof evidencing the amounts (if any) paid or payable in
respect of any deduction or withholding as aforesaid.
(B) TAX CREDITS
If, following any such deduction or withholding as is referred
to in Clause 11.7(A) from any payment by the Borrower or Stena
AB, the recipient of that
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payment shall receive or be granted a credit against or
remission for any Taxes payable by it, such recipient shall,
subject to the Borrower or, as the case may be, Stena AB having
made any increased payment in accordance with Clause 11.7(A) and
to the extent that the recipient can do so without prejudicing
the retention of the amount of such credit or remission and
without prejudice to the right of the recipient to obtain any
other relief or allowance which may be available to it,
reimburse the Borrower or, as the case may be, Stena AB with
such amount as the recipient shall in its absolute discretion
certify to be the proportion of such credit or remission as will
leave the recipient (after such reimbursement) in no worse
position than it would have been in had there been no such
deduction or withholding from the payment to the recipient as
aforesaid. Such reimbursement shall be made forthwith upon the
recipient certifying that the amount of such credit or remission
has been received by it. Nothing contained in this Agreement
shall oblige the recipient to rearrange its tax affairs or to
disclose any information regarding its tax affairs and
computations. Without prejudice to the generality of the
foregoing, neither the Borrower nor Stena AB shall by virtue of
this Clause 11.7(B) be entitled to enquire about the recipient's
tax affairs.
11.8 GROSSING-UP FOR TAXES - BANKS
If at any time any Bank is required 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 Agent, the Security Agent or
any Issuing Bank the sum due from such Bank in respect of such payment
shall be increased to the extent necessary to ensure that, after the
making of such deduction or withholding, the Agent, the Security Agent
and the Issuing Banks receive on the due date for such payment (and
retain free from any liability in respect of such deduction or
withholding) a net sum equal to the sum which they would have received
had no such deduction or withholding been required to be made and each
Bank shall indemnify the Agent, the Security Agent and the Issuing
Banks against any losses or costs incurred by any of them by reason of
any failure of such Bank to make any such deduction or withholding or
by reason of any increased payment not being made on the due date for
such payment.
11.9 BANK ACCOUNTS
Each Bank and the Standby 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 Agent shall maintain a control account showing the Advances and
other sums owing to the Issuing Banks, the Agent, the Security Agent,
the Banks and the Standby Lender under the Security Documents and all
payments in respect thereof made from time to time. The control account
shall, in the absence of manifest error, be conclusive as to the amount
from time to time owing to the Issuing Banks, the Agent, the Security
Agent, the Banks and the Standby Lender under the Security Documents.
11.10 APPLICATION OF MONEYS
All moneys received by the Agent, the Security Agent, any Bank, any
Issuing Bank or the Standby Lender under or pursuant to this Agreement
or any other of the Security Documents and expressed to be applicable
in accordance with this Clause 11.10 or whose application is not
otherwise specifically provided for in the Security Documents shall (if
not already done so) be paid to the Agent and shall be applied by the
Agent, unless the Banks and the Standby Lender unanimously require
otherwise:-
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First: in or towards satisfaction pari passu of any amounts in
respect of the balance of the Outstanding Indebtedness as
are then accrued due and payable or are then due and
payable by virtue of payment demanded;
SECONDLY: in or towards transfer to the Cash Collateral Account for
any outstanding Bank Guarantees of amounts equal to their
Outstanding Guarantee Amounts less any amounts already
standing to the credit of such Cash Collateral Account; and
THIRDLY: the surplus (if any) shall be paid to the Borrower or
whomsoever else shall be entitled thereto.
11.11 SUSPENSE ACCOUNT
Notwithstanding the provisions of Clause 11.10, insofar as any moneys
are received or recovered by the Security Agent under or in connection
with the guarantee and indemnity contained in Clause 12, such moneys
may at the Security Agent's discretion be transferred to a suspense or
impersonal account and may be held in such account for so long as the
Security Agent thinks fit pending payment to the Agent for application
in or towards discharging the obligations of the Borrower under this
Agreement and the other Security Documents.
11.12 PLACE OF PAYMENT
All payments to be made by the Borrower or Stena AB under any of the
Security Documents shall be made not later than 10.00 a.m. New York
time on the due date and in same day funds to the account of the Agent
at JPMorgan Chase Bank, New York City, USA, SWIFT Address XXXXXX00 by
way of payment order MT103, SWIFT Address XXXXXXXX or tested telex no.
27500 answerback HANDGBS quoting reference RVIC STBNL 675 or at such
other office or bank in New York City as the Agent may from time to
time designate.
12 GUARANTEE AND INDEMNITY
12.1 GUARANTEE
In consideration of the Banks and the Standby Lender agreeing at the
request of Stena AB to make available to the Borrower the loan and
guarantee facilities provided for in this Agreement in accordance with
the terms of this Agreement and in order to secure the payment of the
Outstanding Indebtedness in accordance with the provisions of the
Security Documents and the performance and observance of all of the
obligations contained in the Security Documents:-
(A) Stena AB as primary obligor as and for its own debt and not
merely as surety hereby irrevocably and unconditionally
undertakes to the Security Agent as trustee for and on behalf of
itself, the Banks, the Issuing Banks, the Standby Lender, the
Co-Arrangers and the Agent to be responsible for and hereby
guarantees to the Security Agent the due and punctual payment by
the Borrower to the Agent on behalf of the Banks, the Issuing
Banks, the Standby Lender, the Co-Arrangers, the Security Agent
and the Agent (as and when due by acceleration, demand or
otherwise howsoever) of the Outstanding Indebtedness and every
part thereof;
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(B) Stena AB irrevocably and unconditionally undertakes immediately
on demand by the Security Agent from time to time to pay and/or
perform its obligations under Clause 12.1(A); and
(C) Stena AB irrevocably and unconditionally undertakes immediately
on demand by the Agent from time to time to indemnify and hold
harmless the Security Agent, the Banks, the Issuing Banks, the
Standby Lender, the Co-Arrangers and the Agent in respect of:-
(i) any loss incurred by the Security Agent, the Banks, the
Issuing Banks, the Standby Lender, the Co-Arrangers
and/or the Agent as a result of any of the Security
Documents or any provision thereof being or becoming
invalid, void, voidable or unenforceable for any reason
whatsoever; and
(ii) all loss or damage of any kind arising directly or
indirectly from any failure on the part of the Borrower
to perform any obligation to be performed by the Borrower
under and pursuant to the Security Documents or any of
them.
The obligations of Stena AB under this Clause 12 shall not be
diminished by any of the other obligations undertaken by Stena AB in
this Agreement and the obligations of Stena AB set out in Clause
12.1(A) shall be construed as a guarantee of payment and not of
collection.
12.2 SURVIVAL OF STENA AB'S LIABILITY
Stena AB's liability to the Security Agent and the Banks, the Issuing
Banks, the Standby Lender, the Co-Arrangers and the Agent under Clause
12.1 shall not be discharged, impaired or otherwise affected by reason
of any of the following events or circumstances (regardless of whether
any such events or circumstances occur with or without the knowledge or
consent of Stena AB):-
(A) any time, forbearance or other indulgence given or agreed by the
Security Agent, the Banks, the Issuing Banks, the Standby
Lender, the Co-Arrangers and/or the Agent to or with any
Security Party in respect of any of its respective obligations
to the Security Agent, the Banks, the Issuing Banks, the Standby
Lender, the Co-Arrangers and/or the Agent hereunder or under any
other of the Security Documents; or
(B) any legal limitation, disability or incapacity relating to any
Security Party; or
(C) any invalidity, irregularity, unenforceability, imperfection or
avoidance of or any defect in any security granted by, or the
obligations of any Security Party under, this Agreement or any
other of the Security Documents or any amendment to or variation
thereof or to or of any other document or security comprised
therein; or
(D) any change in the name, constitution or otherwise of any
Security Party or the merger of any Security Party with any
other corporate entity; or
(E) the liquidation, bankruptcy or dissolution (or proceedings
analogous thereto) of any Security Party or the appointment of a
receiver or administrative receiver or administrator or trustee
or similar officer of any of the assets of any Security Party or
the occurrence of any circumstances whatsoever affecting any
Security
85
Party's liability to discharge its respective obligations under
any of the Security Documents; or
(F) any challenge, dispute or avoidance by any liquidator of any
Security Party in respect of any claim by Stena AB or the
Borrower or any of them by right of subrogation in any such
liquidation; or
(G) any release of any other Security Party or any renewal, exchange
or realisation of any security or obligation provided under or
by virtue of any of the Security Documents or the provision to
the Security Agent, the Banks, the Issuing Banks, the Standby
Lender, the Co-Arrangers and/or the Agent at any time of any
further security for the obligations of the Borrower under any
of the Security Documents; or
(H) the release of any co-guarantor and/or indemnor who is now or
may hereafter become under a joint and several liability with
Stena AB under this guarantee or the release of any other
guarantor, indemnor or other third party obligor in respect of
the obligations of any Security Party under any of the Security
Documents; or
(I) any failure on the part of the Security Agent, the Banks, the
Issuing Banks, the Standby Lender, the Co-Arrangers and/or the
Agent (whether intentional or not) to take or perfect any
security agreed to be taken under or in relation to any of the
Security Documents or to enforce any of the Security Documents;
or
(J) any other act, matter or thing (save for repayment in full of
the Outstanding Indebtedness) which might otherwise constitute a
legal or equitable discharge of any of Stena AB's obligations
under this Clause 12.
12.3 CONTINUING GUARANTEE
The guarantee contained in Clause 12.1 shall be:
(A) a continuing guarantee remaining in full force and effect until
payment in full has been received by the Security Agent, the
Banks, the Issuing Banks, the Standby Lender, the Co-Arrangers
and the Agent of each and every part and the ultimate balance of
the Outstanding Indebtedness in whatever currency or currencies
the same may from time to time be denominated in accordance with
this Agreement; and
(B) in addition to and not in substitution for or in derogation of
any other security held by the Security Agent, the Banks, the
Issuing Banks, the Standby Lender, the Co-Arrangers and/or the
Agent from time to time in respect of the Outstanding
Indebtedness or any part thereof.
12.4 CIRCUMSTANCES WHERE DISCHARGE TO BE VOID AB INITIO
Any satisfaction of obligations by Stena AB to the Security Agent, the
Banks, the Issuing Banks, the Standby Lender, the Co-Arrangers and/or
the Agent or any discharge given by the Security Agent, the Banks, the
Issuing Banks, the Standby Lender, the Co-Arrangers and/or the Agent to
Stena AB or any other agreement reached by Stena AB with the Security
Agent, the Banks, the Issuing Banks, the Standby Lender, the
Co-Arrangers and/or the Agent in relation to this Clause 12 shall be,
and be deemed always to have been, void ab initio if any act satisfying
any of the said obligations or on the faith of
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which any such discharge was given or any such agreement was entered
into is subsequently avoided in whole or in part by or pursuant to any
provision of any applicable law whatsoever.
12.5 EXCLUSION OF THE RIGHTS OF STENA AB AS GUARANTOR
Until the actual and contingent obligations of each Security Party
under the Security Documents have been performed in full Stena AB shall
not:-
(A) be entitled to share in or succeed to or benefit from (by
subrogation or otherwise) any rights which the Security Agent,
the Banks, the Issuing Banks, the Standby Lender, the
Co-Arrangers and/or the Agent may have in respect of the
Outstanding Indebtedness or any security therefor or all or any
of the proceeds of such rights or security; or
(B) without the prior consent of the Security Agent (as directed by
the Banks):-
(i) exercise in respect of any amount paid by it hereunder
any right of subrogation, contribution or any other right
or remedy which it may have in respect thereof; or
(ii) prove in a liquidation of any Security Party in
competition with the Security Agent or the Agent, the
Issuing Banks, the Standby Lender, the Co-Arrangers or
any of the Banks for any moneys owing to Stena AB by any
other Security Party on any account whatsoever.
13 REPRESENTATIONS AND WARRANTIES
13.1 CONTINUING
The Borrower and Stena AB each represent and warrant (subject to the
reservations or qualifications as to matters of law as set forth in the
Legal Opinions delivered to the Agent) to the Agent, the Security
Agent, the Issuing Banks, the Standby Lender, the Co-Arrangers and the
Banks that as at the Execution Date (and each other date referred to in
Clause 13.3):-
(A) STATUS
each of the Security Parties is a limited liability company,
duly constituted and validly existing under the laws of its
place of incorporation, possessing perpetual corporate
existence, the capacity to xxx and be sued in its own name and
the power to own its assets and carry on its business as it is
now being conducted;
(B) POWERS AND AUTHORITY
each of the Security Parties has the power and capacity to enter
into, and to perform its obligations under, those of the
Security Documents to which it is or will be a party and has
taken all necessary action to authorise the entry into such
Security Documents and the performance by it of its obligations
thereunder;
(C) LEGAL VALIDITY
this Agreement constitutes and each other of the Security
Documents, upon execution and delivery thereof, will constitute
(subject to any Post-Completion
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Registrations) the legal, valid and binding obligations of each
Security Party which is a party thereto enforceable in
accordance with its terms except as such enforcement may be
limited by any relevant bankruptcy, insolvency, administration
or similar laws affecting creditors' rights generally and by
general principles of equity and subject to any relevant
qualifications contained in any of the Legal Opinions delivered
to the Agent;
(D) NON-CONFLICT WITH LAWS
the entry into and performance of the Security Documents to
which each Security Party is or will be a party and the
transactions contemplated hereby and thereby do not and will not
contravene or conflict with:-
(i) any law or regulation or any official or judicial order;
or
(ii) the constitutional documents of such Security Party; or
(iii) any material agreement or document to which such Security
Party is a party or which is binding upon it or any of
its assets;
nor, save as contemplated by this Agreement and the other
Security Documents, result in the creation or imposition of any
Lien on the assets of any Security Parties pursuant to the
provisions of any such agreement or document;
(E) PARI PASSU STATUS
the claims of the Banks, the Co-Arrangers, the Agent and the
Security Agent against each Security Party under the Security
Documents will (subject to the terms of the relevant Security
Documents) rank at least pari passu with the claims of all other
unsecured creditors of such Security Party other than claims of
such creditors to the extent that they are statutorily
preferred;
(F) NO IMMUNITY
no Security Party nor any of its respective assets enjoys any
right of immunity from set-off, suit or execution in respect of
its obligations under this Agreement or any other of the
Security Documents to which it is a party;
(G) EXECUTIVE OFFICE
none of the Security Parties has an executive office in any part
of the U.S.A. which would entitle it to apply for a
reorganisation under Chapter XI of the United States Bankruptcy
Act;
(H) NO MONEY LAUNDERING
in relation to the utilisation by the Borrower of the facilities
granted to it hereunder, the performance and discharge of its
obligations and liabilities under the Security Documents to
which it is a party, and the transactions and other arrangements
effected or contemplated by the Security Documents to which the
Borrower is a party, the Borrower confirms that it is acting for
its own account and that the foregoing will not involve or lead
to contravention of any law, official requirement or other
regulatory measure or procedure implemented to
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combat "money laundering" (as defined in Article 1 of the
Directive (91/308/EEC) of the Council of the European
Communities).
13.2 INITIAL
The Borrower and Stena AB each represent and warrant (subject to the
reservations or qualifications as to matters of law as set forth in the
Legal Opinions delivered to the Agent) to the Agent, the Security
Agent, the Issuing Banks, the Standby Lender, the Co-Arrangers and the
Banks that as at the Execution Date:-
(A) NO DEFAULT
no event has occurred which constitutes a material default under
or in respect of:-
(i) any agreement or document relating to Debt to which any
Security Party is a party or by which any Security Party
may be bound; or
(ii) any other agreement or document to which any Security
Party is a party or by which any Security Party may be
bound and which default will have, or may reasonably be
expected to have, a material adverse effect on the
ability of such Security Party to perform its respective
obligations under this Agreement and the other Security
Documents;
(B) CONSENTS
save as disclosed in writing to the Agent or as disclosed in any
of the documents or evidence referred to in Schedule 8 delivered
to, and accepted by, the Agent under this Agreement, all
authorisations, approvals, consents, licences, exemptions,
filings, registrations, notarisations and other matters,
official or otherwise, required by any Security Party:-
(i) in connection with the entry into, performance, validity
and enforceability of this Agreement and the other
Security Documents and the transactions contemplated
hereby and thereby;
(ii) in order to maintain its corporate existence in good
standing; and
(iii) in order to ensure that it has the right, and is duly
qualified and able, to conduct its business as it is
conducted in all applicable jurisdictions including,
without limitation to the generality of the foregoing,
all such consents and approvals as are required to
conduct its business and/or own and operate its assets
have been obtained or effected and are in full force and effect
other than
(a) Post-Completion Registrations in respect of paragraph (i)
above; and
(b) any consent or approval required by a Security Party to
conduct its business and/or own and operate its assets to
the extent that such Security Party is unaware or cannot
reasonably be expected to be aware of the requirement to
obtain such consent or approval or to the extent that the
absence of such consent or approval would not have a
material adverse effect on the ability of such Security
Party to perform its obligations under the Security
Documents;
89
(C) ACCURACY OF INFORMATION
all factual information furnished in writing to the Co-Arrangers
by the Borrower and Stena AB relating to the businesses and
affairs of the Stena AB Group in connection with this Agreement,
the other Security Documents and the Commercial Documents was
(when given) true and correct in all material respects and there
are no other material facts or considerations the omission of
which would render any such information misleading;
(D) ACCOUNTS
the Audited Stena AB Financial Statements for the financial year
ended 31 December 2001 (which accounts were prepared in
accordance with Swedish GAAP) fairly represent the consolidated
financial condition of the Stena AB Group as at 31 December 2001
and since that date there has been no material adverse change in
the consolidated financial condition of the Stena AB Group as
shown in such audited accounts save as disclosed in writing to
the Agent;
(E) NO LIENS
save for m.v. "STENA TAY", none of the Ships listed in Part A of
Schedule 2 or any of their Insurances or Earnings is subject to
any Lien other than Permitted Ship Liens and Liens securing the
SIBV $500m Facility which will be released on or before the
Availability Date and none of the Ports or any of the Ships
listed in Part B of Schedule 2 or any of their Insurances or
Earnings is subject to any Lien other than Permitted Ship Liens
and Liens created by the relevant Prior Security Documents and
neither m.v. "STENA TAY" nor any of her Insurances or Earnings
is subject to any Lien other than Permitted Ship Liens, Liens
securing the SIBV $500m Facility which will be released on or
before the Availability Date and Liens securing the Stena Tay
Notes;
(F) EXISTING DEBT
neither Stena AB nor any of its Subsidiaries (other than
Unrestricted Subsidiaries) has incurred any Debt other than:
(i) in respect of Existing Debt;
(ii) the Notes (to the extent not included in the definition
Existing Debt); or
(iii) pursuant to this Agreement;
(G) WINDING-UP, ETC.
no Security Party has taken any corporate action nor have any
other steps been taken or legal proceedings been started or (to
the best of the knowledge and belief of the Borrower and Stena
AB) threatened against any of Stena AB or any other Security
Party for its winding-up or dissolution or for the appointment
of a liquidator, administrator, receiver, administrative
receiver, trustee or similar officer of any Security Party of
any or all of its assets or revenues nor has any Security Party
sought any other relief under any applicable insolvency or
bankruptcy law;
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(H) LITIGATION
save as disclosed in writing to the Agent, no litigation,
arbitration or administrative proceedings are current or pending
or, to the knowledge of the Borrower and/or Stena AB,
threatened, which involve a claim against any Security Party in
an amount exceeding $2,000,000;
(I) TAXES ON PAYMENTS
all amounts payable by each Security Party under the Security
Documents may be made free and clear of and without deduction
for or on account of any Taxes;
(J) COMPLETENESS OF DOCUMENTS
the copies of the Commercial Documents, the Stena Germanica Loan
Documents and the Stena Line Asset Purchase Agreement delivered
to the Agent are true and complete copies of each such document
and no amendments thereto or variations thereof have been made
or agreed which are substantial in relation to the business as
presently conducted of the Stena AB Group as a whole.
13.3 REPETITION OF CONTINUING REPRESENTATIONS AND WARRANTIES
On and as of the Availability Date, each date of drawing an Advance or
issuing or extending a Bank Guarantee, each date on which a drawing is
made under the Standby Facility, each Maturity Date, each date on which
guarantee commission is payable pursuant to Clause 10.2 and each date
on which a drawing is made under the Standby Facility the Borrower and
Stena AB shall be deemed to repeat the representations and warranties
in Clause 13.1 as if made with reference to the facts and circumstances
existing on such day.
13.4 FUTURE FINANCIAL STATEMENTS
In relation to the financial statements provided or to be provided
under Clause 14, the Borrower and Stena AB each represent and warrant,
as at the date to which such statements were prepared, that the
statements were prepared in accordance with Swedish GAAP (in the case
of Stena AB) or Dutch GAAP (in the case of the Borrower) and fairly
represent the consolidated financial position of (as the case may be)
the Stena AB Group or the Stena International Group as at such date.
14 UNDERTAKINGS
14.1 DURATION
The undertakings contained in this Clause 14 shall remain in force from
the date of this Agreement until the end of the Security Period.
14.2 PROVISION OF FINANCIAL AND OTHER INFORMATION
The Borrower will provide to the Agent in sufficient copies for
distribution to each of the Banks:-
(A) within one hundred and eighty (180) days after the close of the
relevant financial years, copies of the Audited Stena AB
Financial Statements and of the Audited Stena International
Financial Statements for that financial year;
91
(B) as soon as practicable, but in any event within ninety (90) days
after 31 December 2002 and each of the dates falling quarterly
thereafter (other than the final quarter of each financial
year), certified copies of the unaudited consolidated management
accounts of the Stena AB Group and of the Stena International
Group for the preceding quarter;
(C) promptly, such further information in the possession or control
of the Borrower or Stena AB regarding the financial condition
and operations of the Stena AB Group and/or the Stena
International Group as the Agent may reasonably request;
(D) within ninety (90) days after the end of each financial year of
Stena AB, an Officer's Certificate (one of the signors of which
is the principal executive, financial or accounting officer of
Stena AB), stating whether or not to the best knowledge of the
signors thereof, Stena AB is in default in the performance and
observance of any of the terms, provisions and conditions of
Clauses 14.6, 14.7, 14.8, 14.9, 14.10, 14.11, 14.14, 14.17,
14.20 and 14.21 and, if Stena AB shall be in default, specifying
all such defaults and the nature and status thereof of which
they may have knowledge;
(E) as soon as practicable, but in any event within one hundred and
twenty (120) days after the close of each financial year:-
(i) a certificate from the chief financial officer of each
Port Owner certifying the amount of earnings before
interest, taxes, depreciation and amortisation during the
previous twelve (12) month period of each Mortgaged Port
owned by the Port Owner; and
(ii) copies of the unaudited management accounts of each Port
Owner for such financial year showing the earnings before
interest, taxes, depreciation and amortisation of each
such Port
such documents to be in a form reasonably acceptable to the
Agent so that, if they are not so acceptable, the Borrower
shall, if requested by the Agent, procure that an auditor's
certificate and/or audited accounts are delivered to the Agent
showing the earnings before interest, taxes, depreciation and
amortisation of each Mortgaged Port as referred to in paragraph
(i) above,
(F) not later than the Availability Date in respect of the position
as at 30 June 2002 and thereafter within ninety (90) days after
31 December 2002 and each of the dates falling at six (6)
monthly intervals thereafter, an Officer's Certificate together
with the method of the calculation of the Free Net Worth and all
supporting documents, in substantially the form set out in
Schedule 11 in respect of the Free Net Worth test set out in
Clause 14.21(A) confirming:-
(i) the respective amounts of the Appraised Value of
Restricted Group Assets, Secured Debt, Strategic
Investments, Cash and Marketable Securities, Other Assets
and Working Capital, Available Asset Value and Unsecured
Debt (as each of those terms is defined in Clause
14.21(C)) as at the relevant date and that such amounts
were calculated in accordance with this Agreement and
Swedish GAAP; and
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(ii) the amounts of the valuations of the assets comprised in
the calculation of the Available Asset Value (including a
list of each of the vessels and ports and their
respective valuations).
14.3 NOTIFICATION OF DEFAULT
The Borrower or Stena AB will notify the Agent of any Default promptly
upon their becoming aware of the occurrence thereof.
14.4 PREPARATION OF FINANCIAL STATEMENTS
Each set of financial statements and management accounts to be provided
to the Agent pursuant to Clause 14.2 shall be prepared in accordance
with Swedish GAAP (in the case of the Stena AB Group) or Dutch GAAP (in
the case of the Stena International Group) consistently applied (or, if
not consistently applied, accompanied by details of the
inconsistencies) and shall fairly represent the financial condition of
Stena AB Group and the Stena International Group respectively.
14.5 CONSENTS AND REGISTRATIONS AND MAINTENANCE OF STATUS
Each of the Borrower and Stena AB will do, and will procure that each
other Security Party will do, all such things as are necessary to
enable it to comply with any of its financial obligations under those
of the Security Documents to which it is a party including, without
limitation, obtaining, maintaining, promptly renewing (when necessary)
and complying at all times with (and promptly furnishing certified
copies to the Agent of) all such authorisations, approvals, consents,
licences and exemptions as are from time to time required under any
applicable law or regulation in connection with any of the matters
aforesaid.
Insofar as any such filings or registrations aforesaid have not been
completed on or before the first Advance is drawn the Borrower and
Stena AB will procure the filing or registration within applicable time
limits of each Security Document which requires filing or registration
together with all ancillary documents required to preserve the priority
and enforceability of the Security Documents.
Where the operation of any Mortgaged Ship or Mortgaged Linkspan in
accordance with its owner's or operator's requirements requires the
obtaining or maintenance of a route licence or port licence, the
Borrower and Stena AB further undertake to procure that such licence is
obtained, maintained, promptly renewed (when necessary) and complied
with in all material respects at all relevant times during the Security
Period.
14.6 LIMITATION ON LIENS
Except with the prior written consent of the Majority Banks, the
Borrower and Stena AB will not, and shall procure that no other member
of the Stena AB Group will:-
(A) create or incur or permit to subsist any Lien on m.v. "STENA
TAY" or on the whole or any part of any property or rights which
is or are presently or may in future during the Security Period
be subject to any Lien in favour of the Security Agent pursuant
to the Security Documents or over any Earnings of any Shipowner
or Stena Charterer in relation to any Mortgaged Ship (other than
Permitted Ship Liens or Liens created by a Prior Security
Document or, in the case of m.v. "STENA TAY", Liens securing the
Stena Tay Notes); or
93
(B) create or incur any Lien (other than Permitted Liens) on or with
respect to any other property or assets of Stena AB or any
Subsidiary thereof now owned or hereafter acquired to secure
Debt of any person without making, or causing such Subsidiary to
make, effective provision for securing the Outstanding
Indebtedness equally and rateably with such Debt or, in the
event such Debt is subordinate in right of payment to the
Outstanding Indebtedness, prior to such Debt, as to such
property or assets for so long as such Debt shall be so secured
provided however that Stena AB and its Subsidiaries may incur
Liens to secure any Debt under this paragraph (B) without
securing the Outstanding Indebtedness equally and rateably with
or prior to such Debt, as applicable, if the outstanding amount
of Debt secured by Liens created after the date of this
Agreement and otherwise prohibited by this Agreement does not at
the time of such incurrence, when aggregated with the
outstanding amount of Debt secured by Liens created after 1
October 1997 but before the Execution Date otherwise prohibited
by the 2007 Indenture but which Liens are permitted by Section
10.14(b) thereof, exceed:-
(i) 5% of Consolidated Tangible Assets; minus;
(ii) the lesser of (a) the Fair Market Value of the Related
Collateral and/or other property granted as additional
security pursuant to paragraph (N) of the definition of
"Permitted Liens" and subject to Liens at such time and
(b) the maximum amount of Debt secured at such time or
thereafter by such additional collateral set forth in a
written security or other agreement at such time or
thereafter with respect to such additional collateral.
14.7 ASSET DISPOSITIONS
(A) Stena AB will not, and will not permit any Subsidiary of Stena
AB to, make any Asset Disposition in one or more related
transactions by Stena AB or a Subsidiary of Stena AB unless:-
(i) Stena AB or the Subsidiary of Stena AB, as the case may
be, receives consideration for such disposition at least
equal to the Fair Market Value for the shares or assets
sold or disposed of as determined by the Board of
Directors of Stena AB or such Subsidiary in good faith;
(ii) at least eighty five per cent (85%) of the consideration
for such disposition consists of one or more of the
following:-
(w) cash or Cash Equivalents, provided that any
promissory note (or other evidence of
indebtedness) received by Stena AB or such
Subsidiary that is immediately converted into cash
or Cash Equivalents shall be deemed to be cash for
the purposes of this provision to the extent of
the cash or Cash Equivalents actually received
upon such conversion;
(x) in the case of an Asset Disposition relating to a
Vessel or Vessels, a promissory note (or other
evidence of indebtedness) issued by the purchaser
of the asset sold or disposed of and secured by a
first perfected security interest in such asset,
(provided such security interest remains in full
force and perfected, or is replaced by a bank
guarantee, letter of credit or cash collateral,
until all obligations arising under such
promissory note (or other evidence
94
of indebtedness) are paid in full), a bank
guarantee, a letter of credit or cash collateral;
(y) the assumption of Debt (which, for the purposes of
the calculation of the consideration received
pursuant to the Asset Disposition, shall be valued
at the principal amount so assumed) of Stena AB or
such Subsidiary or other obligations relating to
such assets and release from all liability on such
Debt or other obligations assumed;
(z) in the case of an Asset Disposition relating to a
Vessel or Vessels, notes received in consideration
for such disposition, provided, that at no time
shall there be, in the aggregate, more than
$15,000,000 of notes received under this
sub-clause (z) outstanding (exclusive of notes
complying with the requirements of clauses (w) or
(x) above); and
(iii) no Default or Event of Default (as defined in either
Indenture or any Successor Financing) shall have occurred
and be continuing at the time of, or after giving effect
to, such Asset Disposition.
(B) The Net Available Proceeds of any Asset Disposition shall
subject to Clauses 9.4 and 9.5 be applied by Stena AB or any
Subsidiary of Stena AB (as the case may be) within three hundred
and sixty (360) days after such Asset Disposition:-
(i) first, to repay permanently any outstanding Debt of:-
(a) Stena AB that ranks senior to or pari passu with
the Notes or any Successor Financing; or
(b) any Subsidiary of Stena AB that does not
constitute Subordinated Debt,
in each case as required by the terms thereof,
(ii) second, to the extent of any then remaining Net Available
Proceeds and to the extent Stena AB or such Subsidiary so
elects:-
(a) to the prepayment of Debt of:-
(x) Stena AB that ranks senior to or pari
passu with the Notes or any Successor
Financing; or
(y) any Subsidiary of Stena AB that does not
constitute Subordinated Debt; and/or
(b) to an investment (which shall be deemed to include
entering into a legally binding agreement, subject
to customary conditions, to invest) in assets,
other than Cash Assets, that will be used in the
business of Stena AB and its Subsidiaries subject
to the limitations of Clause 14.11; provided that
Stena AB or any Subsidiary of Stena AB may deem
that the amount of any prior investment
(including, without limitation, any payments made
in respect of
95
Vessel Construction Contracts) made in connection
with the delivery or acquisition of any Vessel,
equal to the difference between the Ready for Sea
Cost of such Vessel and the aggregate Debt
Incurred to finance the purchase of such Vessel
(or related assets) occurring within one (1) year
prior to such Asset Disposition, shall be
considered an investment made with the Net
Available Proceeds of such Asset Disposition.
If any legally binding agreement to invest any Net
Available Proceeds is terminated, then Stena AB, or any
Subsidiary of Stena AB, may invest such Net Available
Proceeds, prior to the end of the one (1) year period
after such Asset Disposition or six (6) months from such
termination, whichever is later, in the business of Stena
AB and Subsidiaries of Stena AB as provided above. The
amount of such Net Available Proceeds neither used to
repay or prepay Debt nor used or invested (or deemed used
or invested) as set forth in the preceding sentences
constitutes "EXCESS PROCEEDS."
(C) If at any time the aggregate amount of Excess Proceeds not
previously applied pursuant to this Clause 14.7 equals
$30,000,000 or more, Stena AB shall apply such Excess Proceeds:-
(i) first, to the extent of the remaining Excess Proceeds at
Stena AB's option, (a) to make an offer to purchase the
outstanding 2005 Notes (as required by the 2005 Indenture
or any Successor Financing) at one hundred per cent
(100%) of their principal amount plus accrued interest to
the date of purchase or (b) to make an offer to purchase
the outstanding 2007 Notes at one hundred per cent (100%)
of their principal amount plus accrued interest to the
date of purchase;
(ii) second, if an offer to purchase is made under (C)(i)(a)
above and there are any, and to the extent of any,
remaining Excess Proceeds following completion of such
purchase, to make an offer to purchase the outstanding
2007 Notes (as required by the 2007 Indenture or any
Successor Financing) at one hundred per cent (100%) of
their principal amount plus accrued interest to the date
of purchase;
(iii) third, to the extent of any remaining Excess Proceeds
following the completion of the offer to purchase, to the
repayment of other Debt (other than Subordinated Debt) of
Stena AB and its Subsidiaries to the extent permitted by
the agreements governing such Debt; and
(iv) fourth, to the extent of any then remaining Excess
Proceeds, for general corporate purposes of Stena AB and
its Subsidiaries.
(D) This Clause 14.7 will not apply to a transaction consummated in
compliance with Section 8.1 (Mergers, Consolidations and Certain
Sales and Purchases of Assets) of each of the Indentures (or the
corresponding provision in any Successor Financing).
14.8 INCURRENCE OF DEBT BY STENA AB
(A) Stena AB shall not Incur any Debt unless:-
96
(i) immediately after giving effect to the Incurrence of such
Debt and the receipt and application of the proceeds
thereof, the Consolidated Interest Coverage Ratio for the
four full fiscal quarters for which quarterly or annual
financial statements are available next preceding the
Incurrence of such Debt, calculated on a pro forma basis
as if such Debt had been Incurred (and the receipt and
application thereof had been made) at the beginning of
such four full fiscal quarters, would be greater than 2
to 1; and
(ii) no Default or Event of Default (as defined in the Notes
or any Successor Financing) shall have occurred and be
continuing at the time of, or after giving effect to, the
Incurrence of such Debt.
(B) Notwithstanding the foregoing limitation, Stena AB may Incur the
following Debt:-
(i) Existing Debt;
(ii) Debt pursuant to any of the Notes or any Successor
Financing (to the extent not included in the definition
of Existing Debt);
(iii) Debt to finance the replacement of a Vessel owned or
leased under a Capitalised Lease Obligation by Stena AB
or any Subsidiary of Stena AB secured by a Lien of the
type described under paragraph (D) of the definition of
"Permitted Liens" upon a total loss, destruction,
condemnation, confiscation, requisition, seizure,
forfeiture or other taking of title to or use of such
Vessel (provided that such loss, destruction,
condemnation, confiscation, requisition, seizure,
forfeiture or other taking of title to or use of such
Vessel was covered by insurance or resulted in the
payment of compensation or similar payments to such
person) (collectively, a "RELEVANT TOTAL LOSS") in an
aggregate amount up to the Ready for Sea Cost for such
replacement Vessel less all compensation, damages and
other payments (including insurance proceeds other than
in respect of business interruption insurance, protection
and indemnity insurance or other third-party liability
insurance) received from any person in connection with
the Relevant Total Loss in excess of amounts actually
used to repay Debt secured by the Vessel subject to the
Relevant Total Loss;
(iv) Debt under any interest rate swap, foreign currency
hedge, exchange or similar agreements to the extent
entered into to hedge any other Debt permitted under this
Agreement or otherwise entered into in the ordinary
course of business;
(v) Debt to renew, extend, refinance, replace or refund
(herein, "REFINANCE") any Debt permitted to be Incurred
under Clause 14.8(A) (including, without limitation, Debt
in respect of binding commitments for Post-Delivery
Financing permitted under Clause 14.8(A)), any Existing
Debt or any Debt permitted to be incurred under
paragraphs (ii), (iv), (v) or (vii) of this Clause
14.8(B) provided that:-
(a) the amount of such Debt does not exceed:-
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(x) except as provided in (y) below, the
principal amount of Debt to be so
refinanced (which amount shall be deemed
to include the amount of any undrawn or
available amounts under any committed
credit or lease facility being so
refinanced); or
(y) in the case of the refinancing of the
Post-Delivery Financing of a Vessel within
two hundred and seventy (270) days after
the acquisition or delivery of such Vessel
pursuant to a Capitalised Lease
Obligation, one hundred per cent (100%) of
the Ready for Sea Cost of such Vessel
plus, in either case, the amount of any premium
required to be paid in connection with such
refinancing pursuant to the terms of the Debt
refinanced or the amount of any premium reasonably
determined by Stena AB as necessary to accomplish
such refinancing by means of a tender offer or
privately negotiated repurchase, plus the expenses
of Stena AB or any of its Subsidiaries Incurred in
connection with such refinancing; and
(b) the Incurrence of Debt the proceeds of which are
used to refinance Debt shall only be permitted if
the refinancing Debt by its terms, or by the terms
of any agreement or instrument pursuant to which
such Debt is issued, has an Average Life and
Stated Maturity which is equal to or greater than
that of the Debt to be refinanced at the time of
the Incurrence of such refinancing Debt;
(vi) Debt owed by Stena AB to any Subsidiary of Stena AB;
provided that upon either:-
(a) the transfer or other disposition by any such
Subsidiary of any Debt so permitted to a person
other than Stena AB or a Subsidiary of Stena AB or
(b) the issuance, sale, transfer or other disposition
(other than a pledge of the shares of such
Subsidiary permitted under Clause 14.6) of shares
of Capital Stock (including by consolidation or
merger) of such Subsidiary to a person other than
Stena AB or a Subsidiary of Stena AB which, after
giving effect thereto, results in such Subsidiary
ceasing to be a Subsidiary of Stena AB,
the provisions of this paragraph (vi) shall no longer be
applicable to such Debt and such Debt shall be deemed to
have been Incurred at the time of such transfer or other
disposition;
(vii) Debt Incurred pursuant to this Agreement or under any
other Revolving Credit Facilities; and
(viii) Debt of Stena AB not otherwise permitted to be Incurred
pursuant to paragraphs (ii) to (vii) above, which,
together with:-
(a) any other outstanding Debt Incurred pursuant to
this paragraph (viii) and/or Clause 14.9(I) (and
any outstanding Preferred Stock
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issued by Subsidiaries of Stena AB pursuant to
Clause 14.10(D)); and
(b) any other outstanding Debt Incurred after 1
October 1997 but before the Execution Date
pursuant to Section 10.8(vii) and/or Section
10.9(viii) of the 2007 Indenture (and any
outstanding Preferred Stock issued by Subsidiaries
of Stena AB after 1 October 1997 but before the
Execution Date pursuant to Section 10.10(iv) of
the 2007 Indenture)
has an aggregate principal amount (and/or liquidation
preference) not in excess of $50,000,000 at any time
outstanding.
14.9 INCURRENCE OF DEBT BY SUBSIDIARIES
Stena AB will not permit any Subsidiary of Stena AB to Incur any Debt
except:-
(A) Debt to finance the replacement of a Vessel owned or leased
under a Capitalised Lease Obligation by that Subsidiary secured
by a Lien of the type described under paragraph (D) of the
definition of "Permitted Lien" upon a Relevant Total Loss of
such Vessel (as defined in Clause 14.8(B)(iii)) in an aggregate
amount up to the Ready for Sea Cost for such replacement Vessel
less all compensation, damages and other payments (including
insurance proceeds other than in respect of business
interruption insurance, protection and indemnity insurance or
other third-party liability insurance) received from any person
in connection with the Relevant Total Loss in excess of amounts
actually used to repay Debt secured by the Vessel subject to the
Relevant Total Loss; provided that if the Debt Incurred by that
Subsidiary in financing the Vessel subject to the Relevant Total
Loss is subordinated to the Debt Incurred under this Agreement,
the Debt Incurred to finance the replacement Vessel shall be
subordinated to the same degree;
(B) Debt under any interest rate swap, foreign currency hedge,
exchange or similar agreements to the extent entered into by
that Subsidiary to hedge any other Debt permitted to be Incurred
by it under this Agreement or otherwise entered into in the
ordinary course of business;
(C) Debt owed to Stena AB or a Subsidiary of Stena AB provided that
upon either (x) the transfer or other disposition by Stena AB or
such Subsidiary of any Debt so permitted to a person other than
Stena AB or a Subsidiary of Stena AB or (y) the issuance, sale,
transfer or other disposition (other than a pledge of the shares
of such Subsidiary permitted under Clause 14.6) of shares of
Capital Stock (including by consolidation or merger) of such
Subsidiary to a person other than Stena AB or another such
Subsidiary which, after giving effect thereto, results in such
Subsidiary ceasing to be a Subsidiary of Stena AB, the
provisions of this paragraph (C) shall no longer be applicable
to such Debt and such Debt shall be deemed to have been Incurred
at the time of such transfer or other disposition;
(D) subject to the satisfaction of the incurrence test set forth in
Clause 14.8(A), Debt Incurred by a person prior to the time (a)
such person became a Subsidiary of Stena AB, (b) such person
merges with or into or consolidates with a Subsidiary of Stena
AB or (c) another Subsidiary of Stena AB merges with or into or
consolidates with such person (in a transaction in which such
person becomes a
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Subsidiary of Stena AB), which Debt was not Incurred or issued
in anticipation of such transaction and was outstanding prior to
such transaction;
(E) subject to the satisfaction of the incurrence test set forth in
Clause 14.8(A), Debt of a Subsidiary of Stena AB secured by a
Lien of the type described under paragraph (D) of the definition
of "Permitted Liens";
(F) (subject to Clause 14.22) Debt to refinance Existing Debt of any
Subsidiary and Debt to refinance any Debt permitted to be
Incurred pursuant to paragraphs (A), (D), (E), (F) and (G) of
this Clause 14.9 provided that:-
(i) the amount of such Debt does not exceed:-
(a) except as provided in (b) below, the principal
amount of Debt to be so refinanced (which amount
shall be deemed to include the amount of any
undrawn or available amounts under any committed
credit or lease facility being so refinanced); or
(b) in the case of the refinancing of the
Post-Delivery Financing of a Vessel within 270
days after the acquisition or delivery of such
Vessel pursuant to a Capitalised Lease Obligation,
100% of the Ready for Sea Cost of such Vessel
plus, in either case, the amount of any premium required
to be paid in connection with such refinancing pursuant
to the terms of the Debt refinanced or the amount of any
premium reasonably determined by Stena AB as necessary to
accomplish such refinancing by means of a tender offer or
privately negotiated repurchase, plus the expenses of
Stena AB or any of its Subsidiaries Incurred in
connection with such refinancing;
(ii) such refinancing Debt shall not be used to refinance
outstanding Debt or Preferred Stock of Stena AB; and
(iii) such refinancing Debt by its terms, or by the terms of
any agreement or instrument pursuant to which such Debt
is issued, has an Average Life and Stated Maturity which
is equal to or greater than that of the Debt to be
refinanced at the time of the Incurrence of such
refinancing Debt;
(G) Debt Incurred under this Agreement and/or any other Revolving
Credit Facilities including, without limitation, Debt Incurred
pursuant to guarantees made by Subsidiaries of Stena AB in
respect of this Agreement and/or any other Revolving Credit
Facilities;
(H) Debt of any Subsidiary pursuant to a guarantee issued pursuant
to the first paragraph of Section 10.13 of either Indenture or
the corresponding provision of any Successor Financing;
(I) Debt of Subsidiaries of Stena AB not otherwise permitted to be
Incurred pursuant to paragraphs (A) through (H) above which
together with:-
(i) any other outstanding Debt Incurred pursuant to this
paragraph (I) and/or Clause 14.8(B)(viii) (and any
outstanding Preferred Stock issued by Subsidiaries of
Stena AB pursuant to Clause 14.10(D)); and
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(ii) any other outstanding Debt Incurred after 1 October 1997
but before the Execution Date pursuant to Section
10.8(vii) and/or Section 10.9(viii) of the 2007 Indenture
(and any outstanding Preferred Stock issued by
Subsidiaries of Stena AB after 1 October 1997 but before
the Execution Date pursuant to Section 10.10(iv) of the
2007 Indenture)
has an aggregate principal amount (and/or liquidation
preference) not in excess of $50,000,000 at any time
outstanding.
14.10 LIMITATION ON PREFERRED STOCK OF SUBSIDIARIES
Stena AB will not permit any of its Subsidiaries to issue, directly or
indirectly, any Preferred Stock except:-
(A) Preferred Stock of a Subsidiary of Stena AB issued to and held
by Stena AB or any of its Wholly Owned Subsidiaries, provided
that any subsequent issuance or transfer of any Capital Stock
which results in such Wholly Owned Subsidiary ceasing to be a
Wholly Owned Subsidiary of Stena AB or any transfer of such
Preferred Stock by any such Wholly Owned Subsidiary will, in
each case, be deemed an issuance of Preferred Stock;
(B) Preferred Stock issued by a person prior to the time (i) such
person becomes a Subsidiary of Stena AB, (ii) such person merges
with or into or consolidates with a Subsidiary of Stena AB or
(iii) another Subsidiary of Stena AB merges with or into or
consolidates with such person (in a transaction in which such
person becomes a Subsidiary of Stena AB), which Preferred Stock
was not issued in anticipation of such transaction;
(C) Preferred Stock (other than Disqualified Stock) which is
exchanged for Preferred Stock permitted to be outstanding
pursuant to paragraphs (A) and (B) above or which is used to
refinance Debt (or any refinancing thereof), having a
liquidation preference not to exceed the liquidation preference
of the Preferred Stock in the principal amount of the Debt so
refinanced; and
(D) Preferred Stock issued by Subsidiaries of Stena AB not otherwise
permitted to be issued pursuant to paragraphs (A) through (C)
above which together with:-
(i) any other Preferred Stock outstanding pursuant to this
paragraph (D);
(ii) any Debt of Subsidiaries of Stena AB Incurred pursuant to
Clause 14.9(I);
(iii) any Debt of Stena AB Incurred pursuant to Clause
14.8(B)(viii); and
(iv) any other outstanding Debt Incurred after 1 October 1997
but before the Execution Date pursuant to Section
10.8(vii) and/or Section 10.9(viii) of the 2007 Indenture
(and any outstanding Preferred Stock issued by
Subsidiaries of Stena AB after 1 October 1997 but before
the Execution Date pursuant to Section 10.10(iv) of the
2007 Indenture)
has an aggregate principal amount (and/or liquidation
preference) not in excess of $50,000,000 at any time
outstanding.
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14.11 LIMITATION ON INVESTMENTS
Except with the prior written consent of the Majority Banks, the
Borrower and Stena AB will not, and shall procure that no other member
of the Stena AB Group will, make any Investment in any person (other
than Stena AB, any Subsidiary of Stena AB or any person which, after
giving effect to such Investment, would become a Subsidiary of Stena
AB) except Permitted Investments.
14.12 BUSINESS ACTIVITIES
Stena AB will not, and will not permit any of its Subsidiaries (other
than any Unrestricted Subsidiaries) to, engage in any type of business
other than the business Stena AB and its Subsidiaries are engaged in on
the date of this Agreement, other business activities within the
shipping, offshore oilfield services and real estate investment and
management industries and (as determined in good faith by the Board of
Directors of Stena AB) other business activities complementary,
incidental or reasonably related thereto.
14.13 MERGERS AND CONSOLIDATION
Except with the prior written consent of the Majority Banks, neither
the Borrower nor any other Security Party will merge or consolidate
with any other person save for a merger or consolidation by operation
of law with one or more other entities into a single surviving entity
which is the Borrower or (as the case may be) such other Security Party
and which succeeds by operation of law to all of the assets and
liabilities of the Borrower or (as the case may be) such other Security
Party immediately prior to such merger or consolidation.
14.14 RESTRICTED PAYMENTS BY STENA AB GROUP
Stena AB will not, and will not permit any Subsidiary of Stena AB
(other than an Unrestricted Subsidiary) to, directly or indirectly:-
(A) declare or pay any dividend, or make any distribution of any
kind or character (whether in cash, property or securities), in
respect of any class of Stena AB's Capital Stock to the holders
thereof, excluding any dividends or distributions payable solely
in shares of the Capital Stock of Stena AB or in options,
warrants or other rights to acquire the Capital Stock of Stena
AB;
(B) purchase, redeem, defease, or otherwise acquire or retire for
value:-
(i) any Capital Stock of Stena AB or any Related Person of
Stena AB; or
(ii) any options, warrants or rights to purchase or acquire
shares of Capital Stock of Stena AB or any Related Person
of Stena AB or any securities convertible or exchangeable
into shares of Capital Stock of Stena AB or any Related
Person of Stena AB, in either case other than
acquisitions of Capital Stock or options, warrants or
rights to acquire such Capital Stock pursuant to
paragraph (C) of the definition of "Permitted
Investments";
(C) make any Investment in any Affiliate or Related Person of Stena
AB (other than Stena AB or a Subsidiary of Stena AB) and other
than a person which becomes a Subsidiary of Stena AB as a result
of such Investment) provided that this
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paragraph (C) shall not prohibit the making of an Investment
otherwise permitted under Clause 14.11;
(D) redeem, defease, repurchase, retire or otherwise acquire or
retire for value prior to any scheduled maturity, repayment or
sinking fund payment, Debt of Stena AB which is subordinate in
right of payment to any of the Notes or any Successor Financing,
except to the extent that payment for such Debt is made from the
proceeds of a simultaneous refinancing of such Debt otherwise
permitted under the Indentures or any Successor Financing; or
(E) declare or pay any dividend or make any distribution of any kind
or character (whether in cash, property or securities) on any
Capital Stock of any Subsidiary of Stena AB (except where Stena
AB or any Subsidiary of Stena AB receives a rateable portion of
such dividend or distribution) to any person (other than Stena
AB or any Subsidiary of Stena AB) or purchase, redeem or
otherwise acquire or retire for value any Capital Stock of any
Subsidiary of Stena AB held by any person (other than Stena AB
or any Subsidiary of Stena AB)
each of the matters described in paragraphs (A) to (E) being a
"RESTRICTED PAYMENT" if at the time thereof:-
(i) a Default or Event of Default as defined in the
Indentures shall have occurred and is continuing; or
(ii) upon giving effect to such Restricted Payment, Stena AB
could not Incur at least $1 of additional Debt pursuant
to Clause 14.8(A); or
(iii) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments, together with, (a)
payments on guarantees of obligations of Affiliates or
Related Persons (other than Stena AB or a Subsidiary of
Stena AB) of Stena AB in effect on 1 October 1997 but
only to the extent such payments have not been reimbursed
in accordance with the terms of the relevant guarantee or
other agreement, and (b) outstanding Investments made
pursuant to paragraph (B) of the definition of "Permitted
Investments" (or, in respect of Investments made prior to
the Execution Date, paragraph (ii) of the definition of
"Permitted Investments" in the 2007 Indenture) in either
case made after 1 October 1997 exceeds the greater of:-
(a) the sum of (x) fifty per cent (50%) of cumulative
Consolidated Net Income of Stena AB (or, if
cumulative Consolidated Net Income of Stena AB
shall be negative, less one hundred per cent
(100%) of such deficit) since the end of the most
recent fiscal quarter of Stena AB ended on or
prior to 1 October 1997 through the last day of
the period for which quarterly or annual financial
statements of Stena AB are available, plus (y) one
hundred per cent (100%) of the aggregate net
proceeds received after 1 October 1997, including
the fair value of property other than cash, from
the issuance of Capital Stock (other than
Disqualified Stock) of Stena AB and warrants,
rights or options on Capital Stock (other than
Disqualified Stock) of Stena AB and the principal
amount of Debt that has been converted into
Capital Stock (other
103
than Disqualified Stock) of Stena AB after 1
October 1997, plus (z) $50,000,000; and
(b) $50,000,000.
The foregoing provisions will not prohibit the payment of any
dividend on Capital Stock of any class within sixty (60) days
after the declaration thereof if, on the date when the dividend
was declared, such dividend could have been paid in accordance
with the provisions of the foregoing covenant.
Under Swedish law, any shareholder of a Swedish corporation
owning ten per cent (10%) or more of the outstanding shares of
such corporation has the right to demand the payment of
dividends from the profits of the corporation in accordance with
the Swedish Companies Act. Whilst this Agreement cannot prevent
the payment of a dividend by Stena AB under such circumstances,
the declaration or payment by Stena AB of dividends (or other
distributions) in excess of the amount then permitted under this
Clause 14.14 shall constitute an Event of Default under this
Agreement.
14.15 FINANCIAL YEAR
Except with the prior written consent of the Agent (such consent not to
be unreasonably withheld or delayed), the Borrower and Stena AB will
not alter their respective financial years.
14.16 OWNERSHIP OF STENA AB GROUP COMPANIES
Stena AB will procure that Stena Rederi AB and Stena Line Scandinavia
remain Wholly Owned Subsidiaries of Stena AB until the Availability
Date and that each of the Security Parties which are at the Execution
Date members of the Stena AB Group (other than Stena AB itself) remain
Subsidiaries of Stena AB and that none of the shares of any person
which is a Security Party at any time during the Security Period shall
(except in favour of the Security Agent) be pledged to any person.
14.17 STENA AB GROUP WORKING CAPITAL
(A) Stena AB and the Borrower will procure that:-
(i) the aggregate of (i) the Consolidated Current Assets and
(ii) Available Facilities shall be not less than one
hundred and twenty five per cent (125%) of the
Consolidated Current Liabilities; and
(ii) the aggregate of (i) Consolidated Liquid Assets and (ii)
Available Facilities shall be not less than $50,000,000.
(B) The requirements contained in this Clause 14.17 as to the
financial condition of the Stena AB Group shall be tested on the
Availability Date by reference to the most recently published
unaudited financial statements of the Stena AB Group and
thereafter quarterly as at 31 March, 30 June, 30 September and
31 December in each year in each case by reference to the
Audited Stena AB Financial Statements and the unaudited
financial statements delivered to the Agent pursuant to Clause
14.2 provided however that no breach shall be deemed to have
arisen under this Clause 14.17 unless and until Stena AB shall,
within ten (10) Banking
104
Days following receipt by the Stena AB of written notification
from the Agent that a shortfall has occurred under this Clause
14.17, have failed to satisfy the Agent that such shortfall has
been eliminated.
(C) For the purposes of this Clause 14.17, accounting terms are used
and shall be construed in accordance with Swedish GAAP but so
that:-
"AVAILABLE FACILITIES" means, at any relevant time, the undrawn
amount of any committed loan or overdraft facilities (including
the facilities provided under this Agreement) available to one
or more members of the Stena AB Group at the date of such
financial statements;
"CONSOLIDATED CURRENT ASSETS" means the aggregate at the date of
computation of the consolidated stocks, assets held for sale,
receivables and prepayments, intercompany receivables,
securities, cash at banks and in hand and other current assets
(as determined in accordance with Swedish GAAP) of the Stena AB
Group;
"CONSOLIDATED CURRENT LIABILITIES" means the aggregate at the
date of computation of intercompany payables and other current
liabilities (as determined in accordance with Swedish GAAP) of
the Stena AB Group;
"CONSOLIDATED LIQUID ASSETS" means the aggregate of:-
(i) the cash and Cash Equivalents of the Stena AB Group; and
(ii) the market value of shares or other marketable debt or
equity securities held by members of the Stena AB Group
which are quoted on any recognised stock exchange or over
the counter or similar market in any member of the
European Union or European Economic Area, U.S.A., Canada,
Hong Kong, Tokyo, Singapore or as otherwise approved by
the Agent and other marketable securities having a rating
of no less than BBB- from Standard & Poor's Corporation
or Xxxxx'x Investors Service Inc or other rating agency
which the Agent accepts to be of equivalent standing
provided that cash or Cash Equivalents expressed or denominated
in a currency other than Dollars shall be converted into Dollars
by reference to the rate of exchange used for conversion of such
currency in the consolidation of the relevant consolidated
balance sheets or, if the relevant currency was not thereby
involved, by reference to the rate of exchange or approximate
rate of exchange ruling on such date and determined on such
basis as Stena AB's auditors may determine or approve.
14.18 EARLY REDEMPTION OR DEFEASANCE OF NOTES
Stena AB will not exercise its rights of optional redemption of any of
the Notes under Article XI (Redemption of Securities) of either of the
Indentures or its rights of defeasance of the Notes under Article XII
(Defeasance and Covenant Defeasance) of either of the Indentures or
voluntarily redeem or repay any Successor Financing unless such
optional redemption, defeasance or voluntary repayment of the Notes or
(as the case may be) such voluntary redemption, defeasance or repayment
of the Successor Financing
105
is fully financed on the date thereof by an Acceptable Refinancing and
for the purposes of this Clause 14.18:-
"ACCEPTABLE REFINANCING" means Debt incurred by Stena AB or any
Subsidiary of Stena AB other than the Borrower (otherwise than from
other members of the Stena AB Group) which:-
(A) is for an amount not less than the amount required to effect
such optional redemption, defeasance or voluntary repayment of
the relevant Notes or (as the case may be) voluntarily to
redeem, defease or repay the relevant Successor Financing;
(B) is on terms that the scheduled date for repayment or redemption
of such Debt is no earlier than the scheduled maturity date of
the relevant Notes or (as the case may be) Successor Financing
being refinanced and that the person or persons to whom such
Debt is owed is or are not entitled to require any earlier
repayment or redemption in circumstances more onerous upon Stena
AB or such Subsidiary of Stena AB than those applicable in
respect of such Notes or relevant Successor Financing; and
(C) is not secured or preferred by any Liens over any of the
Mortgaged Ships or other assets or rights mortgaged, charged or
assigned to the Security Agent pursuant to the Security
Documents from time to time or any of their Insurances or
Requisition Compensation or by a pledge of shares of any
Security Party; and
"SUCCESSOR FINANCING" means:-
(A) any Debt incurred for the purpose of assisting Stena AB to
effect optional redemption of any Notes under Article XI of the
relevant Indenture or for the purpose of assisting Stena AB or
any other member of the Stena AB Group voluntarily to repay such
Notes; or
(B) any other Debt incurred for the purpose of assisting Stena AB or
any other member of the Stena AB Group to redeem or repay any
such Debt referred to in sub-paragraph (A) or which, directly or
indirectly, refinances any such Debt.
14.19 APPLICATION OF PROCEEDS
Stena AB and the Borrower will procure that the facilities provided
under this Agreement are applied for the purposes specified in Clause
1.1.
14.20 RESTRICTIONS ON GUARANTEES AND OTHER SECURITY
Except as provided in this Agreement, the Borrower shall not, and shall
procure that none of its Subsidiaries shall, give any guarantee or
indemnify or grant any security in favour of any person in respect of
any obligation of any member of the Stena AB Group other than the
Borrower or a Subsidiary or another Subsidiary of the Borrower except
that the Borrower or a Subsidiary of the Borrower may in its capacity
as charterer of a Vessel owned by, or let under a Capitalised Lease
Obligation to, a member of the Stena AB Group which is not the Borrower
or a Subsidiary of the Borrower give security by way of a charterer's
assignment of earnings and/or insurances if required in connection with
the financing or refinancing of that Vessel where the liability of the
Borrower or its relevant Subsidiary in respect of such financing or
refinancing is limited to the value of the
106
earnings and/or insurances so assigned by it and where, in the case of
a Vessel owned by a relevant member of the Stena AB Group, such owner
has executed a mortgage on the Vessel as security for such financing or
refinancing.
14.21 FREE NET WORTH CALCULATION
(A) FREE NET WORTH COVENANT
Stena AB and the Borrower will procure that the Free Net Worth
shall be not less than $850,000,000.
(B) TESTING OF COVENANT
The requirements contained in this Clause 14.21 as to the Free
Net Worth shall be tested as at 31 December 2002 and each of the
dates falling six (6) monthly thereafter (each such date a
"REFERENCE DATE" for the purposes of this Clause 14.21), in each
case by reference to the Audited Stena AB Financial Statements
and unaudited consolidated management accounts of the Stena AB
Group and the Free Net Worth Compliance Certificate delivered to
the Agent pursuant to Clause 14.2 provided however that no
breach shall be deemed to have arisen under this Clause 14.21 if
a shortfall has occurred under this Clause 14.21 but the
Borrower is able to satisfy the Agent within ten (10) Banking
Days of the Agent's receipt of the Free Net Worth Compliance
Certificate evidencing that such shortfall has been eliminated.
(C) DEFINED TERMS
For the purposes of this Clause 14.21 and Clause 14.2(F),
accounting terms are used and shall be construed in accordance
with Swedish GAAP but so that as at any Reference Date:-
"APPRAISED VALUE OF RESTRICTED GROUP ASSETS" means the value,
determined in accordance with this Clause 14.21, of the
following assets of the Restricted Group, on a consolidated
basis:-
(i) completed vessels owned by or, pursuant to a Capitalised
Lease Obligation, chartered to any member of the
Restricted Group;
(ii) ongoing newbuilding and other projects;
(iii) machinery and equipment;
(iv) ports and other real estate owned by or, pursuant to a
Capitalised Lease Obligation, leased to members of the
Restricted Group;
(v) all other assets and properties of the Restricted Group
but excluding Strategic Investments, Cash and Marketable
Securities and Other Assets and Working Capital;
"AVAILABLE ASSET VALUE" means the amount which is the sum,
determined on a consolidated basis of:-
(i) the Appraised Value of Restricted Group Assets; minus
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(ii) Secured Debt; plus
(iii) Strategic Investments; plus
(iv) Cash and Marketable Securities; plus
(v) Other Assets and Working Capital;
"CASH AND MARKETABLE SECURITIES" means the aggregate value
determined on a consolidated basis, of all:-
(i) cash and cash equivalents;
(ii) shares or other marketable equities;
(iii) bonds, floating rate notes and other marketable debt
securities
owned by members of the Restricted Group less the amount of any
Debt owing by any member of the Restricted Group in relation to
the property referred to in paragraphs (ii) and (iii) of this
definition;
"FREE NET WORTH" means the amount which is equal to the
Available Asset Value minus Unsecured Debt at any time;
"OTHER ASSETS AND WORKING CAPITAL" means the value determined on
a consolidated basis of all current and other assets of the
Restricted Group (excluding the Appraised Value of Restricted
Group Assets, Strategic Investments and Cash and Marketable
Securities) less the amount of the current liabilities of the
Restricted Group and less deferred tax as shown in the balance
sheet;
"RESTRICTED GROUP" means all members of the Stena AB Group which
are not Unrestricted Subsidiaries;
"SECURED DEBT" means the aggregate of all outstanding Debt of
the Restricted Group on a consolidated basis which is at such
time owed to parties who are not members of the Stena AB Group
and is secured by a Lien in respect of any asset of the
Restricted Group or, in the case of Debt in respect of a
Capitalised Lease Obligation, the Debt outstanding under the
relevant lease but excluding Debt owing by any member of the
Restricted Group in relation to the property referred to in
paragraphs (ii) and (iii) of the definition of "Cash and
Marketable Securities";
"STRATEGIC INVESTMENT" means the value, determined on a
consolidated basis, of all Investments owned by members of the
Restricted Group which Stena AB considers to be of a strategic
nature;
"UNRESTRICTED GROUP" means all members of the Stena AB Group
which are Unrestricted Subsidiaries;
"UNSECURED DEBT" means the aggregate of all outstanding Debt of
the Restricted Group on a consolidated basis which is at such
time owed to parties who are not members of the Stena AB Group
and is not secured by a Lien in respect of any asset of the
Restricted Group but excluding Debt owing by any member of the
108
Restricted Group in relation to the property referred in
paragraphs (ii) and (iii) of the definition of "Cash and
Marketable Securities",
each as at the relevant Reference Date and so that the value of
any assets or property is determined in accordance with the
following provisions of this Clause 14.21 and the amount of any
liability shall be determined in the same manner in which it is
determined for the purpose of the balance sheet of the relevant
member of the Stena AB Group as at the Reference Date in
accordance with Swedish GAAP.
(D) VALUATION OF VESSELS AND LINKSPANS
Every completed vessel owned by or, pursuant to a Capitalised
Lease Obligation, chartered to any member of the Stena AB Group
(for the purposes of this Clause 14.21, a "RELEVANT VESSEL")
shall be valued in the manner and at the times specified below.
The value of each Relevant Vessel shall be determined as being
the mortgage free value thereof. For these purposes, the
mortgage free value of each such Relevant Vessel shall be
assessed semi-annually on 30 June and 31 December in each year
as being the mean of the valuations of the charter-free market
value thereof on a willing buyer/willing seller basis as
assessed as at the relevant date by, in the case of any ro-ro or
ferry, three leading European shipbrokers active in the
ro-ro/ferry market appointed by the Borrower from the following
list of brokers:-
Xxxxx Xxxxxxxx Xxxxxx
Xxxx Shipping HB
Simsonship AB
Maersk Sales
Parimar Francharte S.A.
English White Shipping Ltd.
Nor Ocean
in the case of any drilling rig, by three leading shipbrokers
active in the offshore market appointed by the Borrower from the
following list of brokers:-
Fearnleys A/S
Xxxxxxx Xxxx
Bassoe Offshore A/S
Xxxxx Xxxxxxxx Salles
Seascope Offshore
in the case of any crude oil or other products tanker, by three
leading shipbrokers active in the tanker market appointed by the
Borrower from the following list of brokers:-
Xxxxxxx Xxxxx Xxxxx Xxxxx & Associates
H Clarkson & Co. Ltd.
Bassoe A/S
Fearnleys A/S
Xxxxxxx Xxxxxx & Xxxxx Shipbrokers
Xxxxxxxx Tankers AB
109
or any other brokers nominated by the Borrower and approved by
the Agent.
For this purpose, any current valuation of a Mortgaged Ship
provided pursuant to Clause 9.4(G) shall satisfy the Borrower's
obligation to provide a broker valuation for such Mortgaged Ship
pursuant to this Clause.
The value of any linkspan owned by any member of the Stena AB
Group shall be its book value (as determined in accordance with
Swedish GAAP).
(E) VALUATION OF NEWBUILDING CONTRACTS
Any vessel under construction owned by, or contracted for
delivery on completion to, any member of the Stena AB Group
(whether as owner or pursuant to a Capitalised Lease Obligation)
and any contract entered into for the construction of such a
vessel shall be valued at its book value (as determined in
accordance with Swedish GAAP).
(F) VALUATION OF PORTS
The value of any port shall be the amount (expressed in Dollars
by reference to exchange rates prevailing on the Reference Date)
determined as the earnings before interest, taxes, depreciation
and amortisation in respect of the relevant port as shown in the
then latest audited accounts of the owner of the relevant port
multiplied by six and one half (6.5).
For this purpose, any current valuation of Holyhead Port and
Stranraer Port provided pursuant to Clause 9.4(H) shall satisfy
the Borrower's obligation to provide a valuation for such Port
pursuant to this Clause 14.21(F).
(G) VALUATION OF OTHER REAL ESTATE
The value of any real estate (other than ports) owned by any
member of the Stena AB Group shall be the value thereof as
determined by the management of the relevant owning company as
being its market value.
(H) VALUE OF STRATEGIC INVESTMENTS
The value of any Strategic Investment held or owned by any
member of the Stena AB Group shall be:-
(i) in the case of any listed securities or shares, their
market value; and
(ii) in the case of any other Strategic Investment, its book
value as determined in accordance with Swedish GAAP and
the accounting policies of the Stena AB Group or
otherwise as determined by such method of valuation as
shall from time to time be agreed between the Agent
(acting on the instructions of the Majority Banks) and
the Borrower having regard to the nature of the relevant
Strategic Investment.
(I) VALUATION OF OTHER ASSETS
The value of any other assets not referred to in (D) to (H)
above owned by any member of the Stena AB Group shall be the
book value thereof as determined in
110
accordance with Swedish GAAP and the accounting policies of the
Stena AB Group.
14.22 PROHIBITION ON AMENDMENTS TO, AND REFINANCING OF, THE SIBV $275M
FACILITY
The Borrower shall not:-
(A) without the prior written consent of the Lenders and the Standby
Lender, agree to any amendment to the SIBV $275m Facility
Agreement which has the effect of either (i) increasing the
aggregate committed amount of the SIBV $275m Facility (but
excluding the restoration of any suspended portion of the
commitments by the provision of substitute security under Clause
5.3(E) of the SIBV $275m Facility Agreement) or (ii) amending
the amount and/or date of any scheduled reduction in such
facility or (iii) extending the scheduled cancellation date for
such facility or (iv) amending the provisions requiring part of
such facility to be cancelled upon a sale or Total Loss or other
relevant disposal of any of the assets mortgaged or charged as
security for the Borrower's obligations under the SIBV $275m
Facility Agreement; or
(B) refinance the SIBV $275m Facility on or before the scheduled
maturity thereof.
15 SHIP AND LINKSPAN COVENANTS : INSURANCE
15.1 DURATION
Stena AB and the Borrower undertake to the Agent, the Security Agent,
the Issuing Banks, the Standby Lender, the Co-Arrangers and the Banks
that throughout the Security Period they will procure that in relation
to each Mortgaged Ship and each Mortgaged Linkspan:-
(A) during any period for which the Ship or Linkspan is in service
under a bareboat charter to a charterer which is not a member of
the Stena AB Group, the Shipowner and each Stena Charterer of
the relevant Ship or Linkspan will use its reasonable endeavours
to procure that:-
(i) the covenants as to insurance of the relevant Ship or
Linkspan in such bareboat charter are complied with by
such charterer so that the insurances are maintained in
force in accordance with the requirements of that
bareboat charter;
(ii) the rights of the Security Agent are protected by the
endorsement of loss payable clauses on the Insurances
(other than any Insurances for the benefit of such
charterer and which are not for the benefit of the
Shipowner or are effected in excess of the amount of
cover required to be effected by the charterer under the
terms of the relevant charterer) which, subject to the
rights of any assignee under a Prior Security Document,
will provide for payment to the Security Agent of all
moneys in respect of Total Loss proceeds and, in the case
of a Mortgaged Ship or Mortgaged Linkspan (but only on
terms that such claims shall be paid to the relevant
charterer insofar as the relevant moneys belong to the
charterer and may not be applied by the relevant
Shipowner or any Stena Charterer in or towards payment of
any amounts owing to them by such charterer pursuant to
the relevant charter and shall not otherwise be applied
in or
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towards payment of amounts owing under any of the
Security Documents) Major Casualty claims; and
(iii) in the case of a Mortgaged Ship or Mortgaged Linkspan
which is let on bareboat charter hereafter, the relevant
bareboat charter includes obligations on the charterer
not materially less favourable to the Shipowner or Stena
Charterer as disponent owner than those set out in
Schedule 10;
provided that following the occurrence of an Event of Default
and for so long as such Event of Default is continuing, subject
to the rights of any assignee under a Prior Security Document,
the Borrower shall procure that the Shipowners and each Stena
Charterer will comply with the directions of the Security Agent
in relation to the exercise of its rights in relation to the
Insurances relating to each Mortgaged Ship and Mortgaged
Linkspan;
(B) during any period for which the Ship or Linkspan is not employed
on such a bareboat charter, the Shipowner will comply and/or
procure that any Stena Charterer who is chartering the Ship or
Linkspan under a bareboat charterer will comply with the
covenants set out in Clauses 15.2 through 15.19 and will execute
and deliver in favour of the Security Agent or, in the case of
m.v. "Stena Germanica" (as long as she remains owned by
Scandlines subject to the Stena Germanica Mortgage), the
Borrower a Charterer's Subordination Undertaking and a
Charterer's Insurance Assignment on or before delivery of the
Ship and/or Linkspan to the relevant Stena Charterer under the
charter; and
(C) the aggregate value of the Insurances placed in respect of Total
Loss and which, subject to the relevant Ship Mortgage and/or
Insurance Assignment and/or Charterer's Insurance Assignment,
are receivable and which may be retained by the Shipowners in
respect of the Mortgaged Ships which are subject to a Ship
Mortgage then ranking with first priority and by the sellers of
any Transferred Ships which are subject to a Receivables
Assignment then ranking with first priority (when aggregated to
the value of the insurances taken out pursuant to Clause 17.2 in
respect of those Ports, if any, which are subject to a Port
Mortgage then ranking with first priority) is at all times
during the Security Period not less than 120% of the total of
the Commitments and the Standby Commitment.
15.2 RISKS INSURED AND AMOUNT OF COVER
Each Shipowner shall insure its Mortgaged Ships and Mortgaged Linkspans
(if any) and keep them insured in the name of the Shipowner and any
other persons with an insurable interest therein against:-
(A) in the case of a Mortgaged Ship, fire and insurance marine risks
(including excess risks) and war risks on an agreed value basis
for not less than the market value of the Ship (for which
purpose the Ship shall be assessed with the benefit of any
charterparty being or to be performed by the Ship unless the
value would be greater if that charterparty were not taken into
account in which case the Ship shall be valued without the
benefit of any such charterparty);
(B) in the case of a Mortgaged Ship, protection and indemnity risks
in the maximum amount available to the Shipowner for the Ship
from any member of the IGA or, if the IGA has disbanded and
there is no successor or replacement body of
112
associations, such leading protection and indemnity association
or body as may be selected by the relevant Shipowner or Stena
Charterer;
(C) in the case of a Mortgaged Ship, all other risks whatsoever
which are customarily insured against by leading operators of
vessels of the same age and type as in accordance with then
current industry practice and taking account of the areas in
which the Ships may trade from time to time;
(D) in the case of a Mortgaged Linkspan, loss or damage by fire,
theft, storm or accident and such other risks and matters in
respect of which the Linkspan is for the time being required by
statute or otherwise to be insured against and generally in
accordance with any relevant good shipping industry practice,
for not less than the original cost of the Linkspan;
(E) in the case of a Mortgaged Linkspan, third party claims arising
in respect of damage to and loss of property or death or injury
to third parties arising directly or indirectly out of the
ownership, management, use or operation of the Linkspan or the
chartering thereof; and
(F) in the case of a Mortgaged Linkspan, all other risks whatsoever
which are customarily insured against by leading operators of
linkspans of the same age and type as the Linkspan in accordance
with then current industry practice and taking account of the
area in which the Linkspan is from time to time located.
15.3 PORT RISK COVER
While a Mortgaged Ship is laid up, port risk insurance may be taken out
on such Ship by the relevant Shipowner instead of hull insurance, on
normal market terms.
15.4 TERMS OF COVER
Each Shipowner shall procure that the Insurances for its Mortgaged Ship
and Mortgaged Linkspans (if any) shall:-
(A) be effected through the Approved Brokers and reputable
independent insurance companies and/or underwriters in Europe,
North America, the Far East and other established insurance
markets in OECD countries except that the insurances against
protection and indemnity risks may be effected by the entry of
the Ship with such protection and indemnity associations which
are members of the IGA or, if the IGA has disbanded and there is
no successor or replacement body of associations, other leading
protection and indemnity associations and the insurances against
war risks may be effected by the entry of the Ship with leading
war risks associations;
(B) provide that all amounts payable thereunder shall be payable in
Dollars, Sterling, Euro or any other currency approved by the
Security Agent (such approval not to be unreasonably withheld);
(C) in all other respects be in a form and on terms customary in the
insurance markets in which the cover is placed and/or as
otherwise approved by the Security Agent (such approval not to
be unreasonably withheld or delayed).
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15.5 NOTICE OF ASSIGNMENT OF INSURANCES AND ENDORSEMENT OF THE SECURITY
AGENT'S INTERESTS
Each Shipowner and Stena Charterer (as the case may be) shall forthwith
upon execution by it of the relevant Insurance Assignment or Deed of
Covenants or Charterer's Insurance Assignment to be entered into by it
in respect of any Mortgaged Ship or Mortgaged Linkspan:-
(A) execute a Notice of Assignment of Insurances in respect of the
relevant Ship or Linkspan in the form required by the terms of
such Insurance Assignment or Deed of Covenant or Charterer's
Insurance Assignment and in accordance with normal market
practice serve the same on all brokers, insurance companies,
underwriters, protection and indemnity and/or war risks
associations through whom any of the policies or entries
relating to the Insurances of such Ship or Linkspan are
effected; and
(B) procure that the interests of the Security Agent in the
Insurances of such Ship or Linkspan shall be endorsed upon all
slips, cover notes, policies, certificates of entry and other
instruments of insurance issued or to be issued in connection
with the Insurances by means of the incorporation therein of the
relevant Loss Payable Clause required by the terms of such
Insurance Assignment or Deed of Covenant or Charterer's
Insurance Assignment and the attachment thereto of the relevant
Notice of Assignment of Insurances referred to in Clause 15.5(A)
and/or by such other means and/or in such other form as is
customary or appropriate in the insurance market in which the
cover is placed and/or as the Security Agent shall otherwise
reasonably require
and, in the event that any further Mortgaged Ship or Mortgaged Linkspan
is delivered to any Stena Charterer under a demise charter after the
date of the relevant Charterer's Insurance Assignment entered into by
it, such Stena Charterer shall perform its obligations under paragraphs
(A) and (B) above in respect of such Mortgaged Ship or Mortgaged
Linkspan forthwith upon its delivery to such Stena Charterer.
15.6 LETTERS OF UNDERTAKING
Each Shipowner shall procure that the Approved Brokers and any
protection and indemnity or war risks association in which its Ship may
from time to time be entered shall deliver to the Security Agent a
letter or letters of undertaking in such form as the Security Agent may
reasonably require having regard to the then current market practice
and the practices prescribed by the IGA or any successor association or
body and/or the Lloyds Insurance Brokers' Committees and/or any other
professional association of which the Approved Brokers are members.
15.7 DEPOSIT AND PRODUCTION OF INSURANCE DOCUMENTS
Each Shipowner shall procure in respect of its Mortgaged Ship and
Mortgaged Linkspans (if any):-
(A) that all original slips, cover notes, policies, certificates of
entry and other instruments of insurance issued from time to
time in respect of those of the Insurances in respect of its
Ship and Linkspans (if any) which are effected through Approved
Brokers shall forthwith be deposited with such Approved Brokers
and (subject to the rights of any assignee under a Prior
Security
114
Document) shall thereafter be held by the Approved Brokers to
the order of the Security Agent upon and subject to such terms
as the Security Agent shall reasonably require having regard to
the then current market practice and subject to the rights of
any prior assignee thereof;
(B) that, as soon as reasonably practicable upon the Security
Agent's request therefor, certified copies of the instruments of
insurance referred to in paragraph (A) above shall be produced
to the Security Agent by the Approved Brokers;
(C) that, forthwith upon the Security Agent's request therefor,
certified copies of all certificates of entry and policies
relating to the Ship's entry with any protection and indemnity
association or war risks association shall be produced to the
Security Agent by such protection and indemnity and/or war risks
association (as appropriate).
15.8 PAYMENT OF PREMIUMS AND CALLS
Each Shipowner shall punctually pay all premiums, calls, contributions
or other sums payable in respect of the Insurances and shall produce to
the Security Agent all relevant receipts or other evidence of payment
when so required by the Security Agent.
15.9 WAIVER OF BROKER'S LIEN
Where any of the insurances effected through Approved Brokers form part
of a fleet cover and such Approved Brokers are or would be entitled to
exercise rights of set-off or cancellation in relation to claims under
such Insurances relating to a Mortgaged Ship or Mortgaged Linkspan for
non-payment of premiums in respect of other vessels or linkspans
covered by the same Insurances, such Shipowner shall use its reasonable
endeavours (having regard to then current market practice including the
practice prescribed by the Lloyds Insurance Brokers' Committee and/or
any other professional association of which the Approved Brokers are
members) to procure that the Approved Brokers shall undertake to the
Security Agent:-
(A) not to exercise against the policy or against any claims in
respect of the Ship or Linkspan (as the case may be) any lien or
right of set off for unpaid premiums in respect of vessels or
linkspans other than the Ship or Linkspan covered under such
fleet cover or for unpaid premiums in respect of any other such
policies of insurance;
(B) not to cancel the insurances for the Ship or Linkspan or by
reason of the non-payment of premiums for vessels or linkspans
(other than any Mortgaged Ships or Mortgaged Linkspans) covered
by such fleet cover;
or, in lieu of the undertakings referred to in paragraphs (A) and (B)
to issue a separate policy of insurance in respect of the Ship or
Linkspan (as the case may be) as and when the Security Agent may
reasonably so require.
15.10 RENEWAL OF INSURANCES
Each Shipowner shall renew the Insurances (or relevant part thereof) in
respect of its Mortgaged Ship and Mortgaged Linkspans (if any) before
the relevant policies, contracts or entries expire and shall procure
that the Approved Brokers and/or the relevant protection and indemnity
association or war risks association or relevant Approved
115
Manager shall promptly confirm in writing to the Security Agent as and
when each such renewal has been effected.
15.11 EXECUTION OF GUARANTEES
Each Shipowner shall promptly arrange for the execution and delivery of
such guarantees in respect of its Mortgaged Ship as may from time to
time be required by any protection and indemnity or war risks
association in accordance with its rules or the terms of entry of the
Ship.
15.12 INFORMATION FROM BROKERS
Each Shipowner shall procure that the Approved Brokers and the managers
of any protection and indemnity and/or war risks association with which
its Ship is entered shall give to the Security Agent such information
as to the Insurances relating thereto as the Security Agent may
reasonably request.
15.13 RESTRICTION ON AMENDMENTS TO COVER
No Shipowner shall without the prior consent of the Security Agent
(such consent not to be unreasonably withheld or delayed), make any
alteration to the terms of any of the Insurances of a Mortgaged Ship or
Mortgaged Linkspan which would or could reasonably be expected to have
a material adverse effect on the rights or interests of the Security
Agent nor shall any Shipowner take any action or omit to take any
action or suffer any act or omission which would or would be likely to
render any of the Insurances invalid, void, voidable, suspended,
defeated or unenforceable or render any sum payable thereunder
repayable in whole or in part (save and to the extent that replacement
cover has been effected in accordance with this Clause 15).
15.14 MAJOR CASUALTIES RELATING TO MORTGAGED SHIPS
In the event of a Major Casualty relating to any Mortgaged Ship the
proceeds of insurance claims in respect of such Major Casualty shall,
subject to the rights of any assignee under a Prior Security Document
and to the rights of any charterer (other than a Stena Charterer), be
paid to the Security Agent in accordance with the relevant Loss Payable
Clauses and:-
(A) if no Event of Default has occurred and is continuing, such
proceeds shall be applied by the Security Agent in or towards
payment on behalf of the relevant Shipowner or bareboat
charterer to the relevant repairer, salvor or other relevant
creditor in respect of the cost of repairs, salvage or other
charges unless the Shipowner or bareboat charterer has first
fully repaired the damage or secured complete discharge of the
liability insured against or otherwise made good the loss in
which case the Security Agent shall reimburse the Shipowner or
bareboat charterer therefor up to the amount received by the
Security Agent provided however that the insurers with whom the
fire and usual marine risks insurances are effected may, in the
case of a Major Casualty, make payment on account of repairs in
the course of being effected; or
(B) if an Event of Default has occurred and is continuing, and the
Agent has given notice in accordance with Clause 19.2 the
Security Agent shall be entitled to apply such proceeds in the
manner specified in Clause 11.10.
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15.15 MINOR CASUALTIES RELATING TO MORTGAGED SHIPS; CASUALTIES RELATING TO
MORTGAGED LINKSPANS
Each Shipowner or relevant Stena Charterer shall apply all sums
receivable under the Insurances in respect of its Mortgaged Ship or
Mortgaged Linkspans (as the case may be) as are paid to it in
accordance with the relevant Loss Payable Clauses for the purpose of
fully repairing the damage or securing complete discharge of the
liability insured against or otherwise making good the loss in respect
of which such sums shall have been received and/or reimbursing itself
for the expense of having previously carried out such repairs,
discharging such liability or making good such loss.
15.16 TOTAL LOSSES RELATING TO MORTGAGED LINKSPANS
In the event of a Total Loss relating to any Mortgaged Linkspan the
proceeds of insurance claims in respect of such Total Loss shall,
subject to the rights of any prior assignee under a Prior Security
Document, be paid to the Security Agent in accordance with the relevant
Loss Payable Clauses and:-
(A) if no Event of Default has occurred and is continuing, such
proceeds shall be applied by the Security Agent in or towards
payment on behalf of the relevant Shipowner for the purchase of
a replacement Linkspan (it being a condition of such payment
that the relevant Shipowner execute a Linkspan Mortgage in
favour of the Security Agent immediately upon its acquisition of
title to such replacement Linkspan and that, to the extent that
to do so is consistent with market practice, the Shipowner
assign to the Security Agent the benefit of the relevant
building contract and any refund guarantee (or provide other
security acceptable to the Majority Banks) where any proceeds of
the Total Loss are paid over to the manufacturer or supplier of
the replacement Linkspan before the relevant Shipowner acquires
title thereto); and
(B) if an Event of Default has occurred and is continuing, and the
Agent has given notice in accordance with Clause 19.2 the
Security Agent shall be entitled to apply such proceeds in the
manner specified in Clause 11.10.
15.17 RECEIPT OF PROCEEDS BY THE SHIPOWNER
If, despite the provisions of the relevant Loss Payable Clauses, any
Shipowner or relevant Stena Charterer receives any proceeds of an
insurance claim in respect of a Major Casualty relating to its
Mortgaged Ship or Total Loss relating to its Mortgaged Linkspan before
having repaired the damage or discharged the liability or otherwise
made good the loss in respect of which the moneys are paid, such
Shipowner shall, subject to the rights of any prior assignee thereof,
immediately pay such proceeds to the Security Agent who shall apply
them in accordance with the relevant provisions of Clause 15.14 or
Clause 15.16 and until payment thereof to the Security Agent the
relevant Shipowner or relevant Stena Charterer shall hold the proceeds
on trust for the Security Agent.
15.18 RESTRICTION ON SETTLEMENT OF CLAIMS
Subject to the rights of any assignee under a Prior Security Document
and to the rights of any charterer (other than a Stena Charterer), no
Shipowner shall without the prior written consent of the Security Agent
settle, compromise or abandon any claim under the Insurances for a
Total Loss or Major Casualty relating to its Mortgaged Ship or
Mortgaged Linkspan (if any).
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15.19 ASSISTANCE BY THE SHIPOWNER
Subject to the rights of any prior assignee of the Insurances each
Shipowner undertakes to do all things and provide all documents,
evidence and information as may be necessary to enable the Security
Agent to collect or recover any moneys which at any time become due in
respect of the Insurances relating to its Mortgaged Ship or Mortgaged
Linkspans (if any) and for such purpose (but without limitation) such
Shipowner shall permit the Security Agent if necessary to xxx in that
Shipowner's name.
15.20 EMPLOYMENT IN CONFORMITY WITH INSURANCE COVER
No Shipowner will at any time employ its Mortgaged Ship or Mortgaged
Linkspans (if any) or suffer them to be employed except in conformity
with the terms of the Insurances (including any express or implied
warranties) without first obtaining the consent to such employment of
the insurers and complying with such requirements as to extra premium
or otherwise as the insurers may prescribe and before allowing its Ship
to enter or trade to any zone which is declared a war zone by any
government or by the Ship's war risks insurers or which is rendered
dangerous by reason of hostility in any part of the world (whether war
be declared or not) to effect such special insurance cover so as to
ensure that such Ship is fully insured against war risks in accordance
with this Clause 15 while in such zone.
16 SHIP AND LINKSPAN COVENANTS : OPERATION AND MAINTENANCE
16.1 DURATION
Stena AB and the Borrower undertake to the Agent, the Security Agent,
the Issuing Banks, the Standby Lender, the Co-Arrangers and the Banks
that throughout the Security Period they will procure that in relation
to each Mortgaged Ship and each Mortgaged Linkspan:-
(A) during any period for which the Ship or Linkspan is in service
under a bareboat charter to a charterer which is not a member of
the Stena AB Group, the Shipowner and each Stena Charterer of
the relevant Ship or Linkspan will use its reasonable endeavours
to procure that:-
(i) the covenants as to registration, operation and
maintenance of the relevant Ship or Linkspan are complied
with by the person on whom such obligations are imposed;
and
(ii) in the case of a Mortgaged Ship or Mortgaged Linkspan
which is let on bareboat charter hereafter, the relevant
bareboat charter includes obligations on the charterer
not materially less favourable to the Shipowner or Stena
Charterer as disponent owner than those set out in
Schedule 10;
provided that following the occurrence of an Event of Default
and for so long as such Event of Default is continuing the
Borrower shall procure that the Shipowners and each Stena
Charterer will comply with the directions of the Security Agent
in relation to the exercise of its rights under each
charterparty or other contract of employment relating to its
Mortgaged Ship and Mortgaged Linkspans (if any); and
118
(B) during any period for which the Ship or Linkspan is not employed
on a bareboat charter as described in paragraph (A) above, the
Shipowner will comply and/or procure that any Stena Charterer
who is chartering the Ship or Linkspan under a bareboat charter
will comply with the covenants set out in Clauses 16.3 through
16.17.
16.2 SHIP AND LINKSPAN REGISTRATION
Each Shipowner shall:-
(A) maintain the registration of its Mortgaged Ship under the
registry of the Flag State at the Port of Registry; and
(B) maintain the registration of its Mortgaged Linkspan under the
registry of the Flag State (but only if such Linkspan is capable
of registry in a ship registry or other central or public
registry)
and (save pursuant to and in accordance with Clause 23.12) shall not do
or omit to do anything or suffer any act or omission whereby such
registration may be forfeited or imperilled.
16.3 STANDARD OF MAINTENANCE
Each Shipowner shall keep its Mortgaged Ship and Mortgaged Linkspans
(if any) in a good and efficient state of repair so as (in the case of
each Ship) to entitle such Ship to its Classification with a
Classification Society free of any requirement or recommendation
affecting class which has not been complied with in accordance with its
terms and (in the case of each Ship and Linkspan) so as to comply with
all material legislation of the Flag State and all other legislation,
regulations and requirements of any government, governmental agency or
other regulatory authority (statutory or otherwise) from time to time
applicable to such Ship and Linkspans. Each Shipowner shall procure
that all appropriate repairs to or replacements of any damaged, worn or
lost parts or equipment are carried out (both as regards workmanship
and quality of materials) so as not to diminish the value or class of
its Mortgaged Ship or Mortgaged Linkspans.
16.4 REMOVAL OF PARTS AND EQUIPMENT
No part or item of equipment whose removal would materially reduce the
value of any Mortgaged Ship or Mortgaged Linkspan shall be removed from
such Ship or Linkspan unless it is replaced promptly by a suitable part
or item and the replacement part or item:-
(A) is in the same or better condition than that part or item
removed or enhances the value and/or earning capacity of such
Ship or Linkspan;
(B) is (or upon its installation on board such Ship or Linkspan will
become) legally and beneficially wholly owned by the relevant
Shipowner;
(C) is free from Liens other than Permitted Ship Liens and/or Liens
created by any Prior Security Document; and
(D) with effect from its installation on board such Ship or Linkspan
is subject to the security constituted by the Ship Mortgage or
Linkspan Mortgage (as the case may be) thereon.
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16.5 RESTRICTION ON MODIFICATIONS
No Shipowner shall, without the prior consent of the Agent (such
approval not to be unreasonably withheld or delayed), make any
modifications to its Mortgaged Ship or any Mortgaged Linkspan or any
part thereof which would or might materially and adversely alter the
structure, type or performance characteristics of such Ship or Linkspan
or materially reduce its value.
16.6 EQUIPMENT BELONGING TO THIRD PARTIES
No Shipowner shall, without the prior consent of the Agent (such
approval not to be unreasonably withheld or delayed), install on its
Mortgaged Ship or Mortgaged Linkspan any equipment belonging to a third
party which cannot be removed without causing significant damage to the
structure or fabric of such Ship or Linkspan.
16.7 SURVEY
Each Shipowner shall submit its Mortgaged Ship to such periodical or
other surveys as may be required for classification purposes and, if so
required by the Agent, such Shipowner shall supply to the Security
Agent copies of all survey reports in respect thereof.
16.8 INSPECTION
Each Shipowner shall permit surveyors or other persons appointed by the
Agent to board its Mortgaged Ship at all reasonable times (but so as
not to interfere with the ordinary operation of the Ship) for the
purpose of inspecting her condition and her class or other records or
satisfying themselves as to repairs proposed or already carried out
subject to such persons and the Security Agent signing an indemnity
and/or waiver letter reasonably required by the relevant shipyard or
the Shipowner or relevant bareboat charterer. Each Shipowner shall
afford all proper and reasonable facilities for such inspections and
also for inspections of the Mortgaged Linkspans if reasonably required
by the Agent.
16.9 EMPLOYMENT OF SHIPS
No Shipowner shall knowingly or recklessly employ its Mortgaged Ship or
suffer her employment in any trade or business which is forbidden by
any applicable law or is otherwise illicit 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 or
confiscation or that may expose such Ship to penalties or sanctions.
16.10 INFORMATION
Each Shipowner shall promptly provide the Agent with all such
information which the Agent may periodically and reasonably require
regarding its Mortgaged Ship and its Mortgaged Linkspans (if any),
their employment, position and engagements, particulars of all towages
and salvages and copies of all charters and other contracts for her
employment or otherwise concerning such Ship or Linkspans.
16.11 PAYMENT OF TRADING EXPENSES AND WAGES
Each Shipowner shall promptly pay all tolls, dues and other outgoings
whatsoever in respect of its Mortgaged Ship, its Mortgaged Linkspans
(if any) and their Insurances and
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keep accounts in respect thereof in accordance with its current
practice. As and when the Agent may so reasonably require each
Shipowner shall make such accounts available for inspection on behalf
of the Agent and shall provide evidence satisfactory to the Security
Agent that the wages and allotments and the insurance and pension
contributions of the master and crew are being regularly paid, that all
deductions from crew's wages in respect of any tax and/or social
security liability are being properly accounted for and that the master
has no claim for disbursements other than those incurred in the
ordinary course of trading on the voyage (if any) then in progress or
completed prior to such inspection.
16.12 AVOIDANCE AND DISCHARGE OF OTHER LIENS
Each Shipowner shall in accordance with good shipping industry practice
pay and discharge or cause to be paid and discharged all debts, damages
and liabilities whatsoever which have given rise, or may give rise, to
maritime, statutory or possessory liens on or claims enforceable
against its Mortgaged Ship or its Mortgaged Linkspans (if any) under
the laws of all countries to whose jurisdiction such Ship or Linkspans
may from time to time be subject. If any Mortgaged Ship or Mortgaged
Linkspan is arrested pursuant to legal process or detained in exercise
or purported exercise of any such lien or claim as aforesaid the
relevant Shipowner shall use all reasonable endeavours to procure the
release of the Ship or Linkspan from such arrest or detention as soon
as reasonably practicable after receiving notice thereof by providing
bail or taking such other steps as the circumstances may require (but,
in the case of an arrest or detention as a consequence of claims or
alleged claims against a charterer of such Ship or Linkspan which is
not a member of the Stena AB Group, the relevant Shipowner or Stena
Charterer may defer procuring such release if it reasonably considers
it to be in the best commercial interests of the Stena AB Group and
provided that, unless otherwise agreed by the Agent, and for so long as
so doing does not involve any imminent likelihood of a sale of such
Ship or Linkspan by order of any court of competent jurisdiction).
16.13 NOTICE OF MORTGAGE
Each Shipowner will do everything necessary under the laws of any
relevant jurisdiction for the purpose of perfecting and maintaining the
Ship Mortgage in relation to its Mortgaged Ship and the Linkspan
Mortgage in relation to each of its Mortgaged Linkspans (if any) as a
valid and enforceable mortgage and for preserving the priority of such
Ship Mortgage and Linkspan Mortgage and, in particular (but without
limitation), it will keep on board its Ship each such document or
record as may be required by law and cause such particulars relating to
the relevant Ship Mortgage and Linkspan Mortgages to be recorded as may
be required by law.
16.14 NOTIFICATION OF CERTAIN EVENTS
Each Shipowner shall notify the Agent by telefax promptly upon the same
coming to its knowledge and in reasonable detail of:-
(A) any casualty to its Mortgaged Ship which is or is likely to be a
Major Casualty;
(B) any occurrence in consequence whereof its Mortgaged Ship or any
Mortgaged Linkspan has become or is likely to become a Total
Loss;
(C) any requirement or recommendation made by its Classification
Society or by any competent authority in respect of its
Mortgaged Ship which has not been complied with by the date by
which it is required to be complied with (as
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extended by agreement with the Classification Society) other
than any such requirement or recommendation the imposition of
which is being contested in good faith by the relevant
Shipowner;
(D) any arrest or detention of its Mortgaged Ship or any Mortgaged
Linkspan or the exercise or purported exercise of any lien on
such Ship or Linkspan;
(E) its Mortgaged Ship or, if capable of registration, its Mortgaged
Linkspan ceasing to be registered under the laws of its Flag
State or anything which is done or omitted to be done whereby
such registration may be imperilled.
16.15 RESTRICTIONS ON EMPLOYMENT
Except with the prior written consent of the Agent, no Shipowner and no
Stena Charterer shall let or employ a Mortgaged Ship or a Mortgaged
Linkspan:-
(A) on demise charter for any period;
(B) on any time or consecutive voyage charter or (in respect of a
rig or drilling unit) under any drilling contract for a term
which exceeds or which by virtue of any optional extensions
therein contained may exceed twenty-five (25) months' duration;
or
(C) on terms which permit the charterer or operator to purchase the
Ship or Linkspan (save for an option price which reflects the
market value of such Ship or Linkspan at the time the relevant
option is exercisable or a reasonable pre-estimate of such value
having regard to the other terms of the relevant charter and
save for a charter which is a hire purchase or conditional sale
agreement on Credit Terms);
provided however that:-
(i) no such consent shall be required in respect of a charter
to a Stena Charterer provided that the relevant Stena
Charterer has executed and delivered to the Agent a
Charterer's Subordination Undertaking and (if the charter
is a demise charter) a Charterer's Insurance Assignment
in relation to the Mortgaged Ship and (if relevant) the
Mortgaged Linkspans and the Approved Manager shall have
delivered to the Security Agent a Manager's Subordination
Undertaking in relation thereto; and
(ii) in respect of the matters referred to in sub-paragraph
(B) of this Clause 16.15 the Agent's consent shall be
deemed to have been given thereto if the relevant
Shipowner shall not have been informed by the Agent
either in writing or by word of mouth that such consent
is refused within two (2) Banking Days in Gothenburg and
London of the time at which the relevant Shipowner's
application for such consent was received by the Agent;
and
(iii) the Agent shall not unreasonably withhold its consent to
any charter or drilling contract and it shall not for
this purpose be reasonable to withhold consent or to
impose conditions on its consent either (a) by reason of
the failure of the proposed charterer (other than a Stena
Charterer) or operator to agree to grant an assignment of
its interest in the Insurances of the Ship and/or
Linkspan and/or to agree to subordinate its rights in
respect of the Ship and/or Linkspan and/or to agree to
subordinate its rights in respect of the
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Ship and/or Linkspan to those of the Security Agent as
its mortgagee and/or assignee of its Insurances (in each
case either at all or on terms required by the Agent)
and/or to agree the terms of the relevant charter or
drilling contract reflecting or containing the provisions
of Clauses 15 and/or 16 or (b) by reason of the duration
of the charter or drilling contract and/or the identity
and/or creditworthiness of the charterer or operator or
(c) by reason of the relevant Shipowner and/or any
charterer (including a Stena Charterer) and/or any
operator failing to agree to assign its rights under the
relevant charter or drilling contract and/or in respect
of the Earnings of the Ship and/or Linkspan as security
for the obligations of the Borrower pursuant to the
Security Documents or (d) by reason of any bareboat
charterer or operator of a rig or drilling unit (other
than a Stena Charterer) requiring the Security Agent as
mortgagee to enter into a quiet enjoyment undertaking in
its favour in substantially the form set out in Schedule
12 or such other form as the Borrower may reasonably
require which is not materially more onerous on the
Security Agent than that set out in Schedule 12 (in which
case the Security Agent undertakes to issue such
undertaking). The Security Agent further undertakes to
issue a quiet enjoyment undertaking in such form in
favour of any other charterer or operator of a rig or
drilling unit (other than a Stena Charterer) if required
by the Borrower in respect of any drilling contract or
charter for which the Agent's consent is not required
under this Clause 16.15.
16.16 MANAGEMENT
No Shipowner or Stena Charterer shall appoint any manager of a
Mortgaged Ship or Mortgaged Linkspan other than an Approved Manager and
each Approved Manager of a Mortgaged Ship or Mortgaged Linkspan so
appointed by any Shipowner or Stena Charterer shall execute and deliver
to the Security Agent a Manager's Subordination Undertaking in relation
to each of the Mortgaged Ships and Mortgaged Linkspans from time to
time managed by it.
16.17 ISM COMPLIANCE
Each Shipowner shall comply, or procure that any other relevant person
such as the Approved Manager or bareboat charterer who has assumed the
responsibility for operation of its Mortgaged Ship for the purposes of
the ISM Code will comply, with the ISM Code or any replacement thereof.
17 COVENANTS IN RESPECT OF THE PORTS
17.1 DURATION
Stena AB and the Borrower undertake to the Agent, the Security Agent,
the Issuing Banks, the Standby Lender, the Co-Arrangers and the Banks
that throughout the Security Period they will procure that in relation
to each Mortgaged Port the Port Owner will comply with the covenants
set out in Clauses 17.2 through 17.16.
17.2 INSURANCE
Save where the provisions of Clause 17.4 are applicable, each Port
Owner shall:-
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(A) insure and keep insured all such buildings, fixtures, fittings,
plant and machinery on its Mortgaged Port as are in each case
used or required in the ordinary course of the Stena AB Group's
business (other than those in respect of which the Security
Agent agrees that insurance is not reasonably required) with
such insurer and against such risks and in such amounts (being
no less than their full reinstatement value if realistically
capable of being so severely damaged as to require
reinstatement) and otherwise upon such terms as the Security
Agent may reasonably require;
(B) use its best endeavours to procure that a note of the Security
Agent's interest is endorsed on all insurance policies relating
thereto; and
(C) (if the Security Agent so requires but subject to the rights of
any mortgagee or chargee pursuant to a Prior Mortgage) produce
to or deposit with the Security Agent all such insurance
policies in respect of its Mortgaged Port and the receipts for
all premiums and other payments necessary for effecting and
keeping up such policies.
17.3 SECURITY AGENT'S RIGHT TO REMEDY BREACH OF INSURANCE COVENANTS
If a Port Owner fails to comply with any of its obligations under
Clause 17.2 in respect of its Mortgaged Port (whether or not the Port
Mortgage relating thereto shall have become enforceable) the Security
Agent may, but without being under any duty to do so, itself insure and
keep insured any of the buildings, fixtures, fittings, plant and
machinery which the relevant Port Owner has in Clause 17.2 covenanted
to insure in each case in accordance with the provisions of Clause 17.2
and the Port Owner shall be liable to the Security Agent for the
expense of the Security Agent in so doing.
17.4 LEASEHOLD PROPERTY INSURED BY LESSOR
If the interest of any Port Owner in its Mortgaged Port or any part
thereof is leasehold and the lessor (or any superior lessor) covenants
to insure (or procure the insurance of) the same the relevant Port
Owner shall:-
(A) provide the Security Agent with details of the insurance of such
Port and provide the Security Agent with a copy of the insurance
policies and any subsequent endorsements if such Port Owner has
the right to obtain the same from the landlord and has so
obtained the same;
(B) provide the Security Agent with receipts or other evidence of
the payment of all premiums under such policies of insurance if
such Port Owner has the right to obtain the same from the
landlord and has so obtained the same;
(C) insure separately (in accordance with the provisions of Clause
17.2) against such risks as are referred to in Clause 17.2 for
additional sums required by the Security Agent (or failing such
requirement in accordance with the practice in respect of assets
of the same type from time to time current amongst prudent
businessmen) not insured by the lessor but only to the extent
that such Port Owner is not prohibited from doing so under the
terms of the relevant lease; and
(D) take all steps open to it to enforce the insurance and (unless
the Security Agent agrees otherwise) reinstatement covenants on
the part of the lessors and any superior lessors. The Security
Agent shall not unreasonably withhold its approval
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to a request from the relevant Port Owner that it terminate the
relevant lease in lieu of enforcing the reinstatement covenants
therein if, in the reasonable opinion of such Port Owner, it
would be commercially advantageous to it to do so.
17.5 NOTIFICATION AND SETTLEMENT OF INSURANCE CLAIMS
The relevant Port Owner shall as soon as possible give notice to the
Security Agent of all claims in respect of its Mortgaged Port made
under each policy of insurance referred to in Clause 17.2 and 17.4
estimated to be in excess of $2,000,000 (or the equivalent in any other
currency) and of all facts and matters relating to such claims. Subject
to complying with its obligations to any lessor or tenant under any
existing lease, the relevant Port Owner shall not agree to the
settlement of any such claim without the prior written consent of the
Security Agent.
17.6 APPLICATION OF INSURANCE PROCEEDS
Subject to the obligations of the relevant Port Owner to any tenant in
respect thereof and subject to the rights of any mortgagee or chargee
pursuant to a Prior Mortgage, all sums at any time payable under any
policies of insurance relating to a Mortgaged Port shall be paid to the
Security Agent and shall be applied in making good or recouping
expenditure in respect of the loss or damage for which such moneys are
received or as the Security Agent may otherwise require (and if the
same is not paid directly to the Security Agent or any prior mortgagee
or chargee by the insurers then the relevant Port Owner shall hold the
same on trust for the benefit of the Security Agent and shall account
to the Security Agent accordingly) provided however that until the
Security Agent otherwise requires by notice in writing to the relevant
Port Owner, such Port Owner will not be required so to pay to the
Security Agent any such sums in respect of any claim for $2,000,000 (or
the equivalent in any other currency) or less.
17.7 REPAIR
Each Port Owner shall keep its Mortgaged Port in good and substantial
repair and condition and (when necessary) replace all such buildings,
fixtures, fittings, plant and machinery thereon as are in each case
used or required in the ordinary course of the Stena AB Group's
business but not where the relevant Port Owner reasonably considers
that repair or replacement is not necessary or desirable to enable it
efficiently to carry on its business.
17.8 SECURITY AGENT'S RIGHT TO REMEDY BREACH OF REPAIR COVENANTS
Subject to the rights of any mortgagee or chargee pursuant to a Prior
Mortgage, if a Port Owner fails to comply with any of its obligations
under Clause 17.7 in respect of its Mortgaged Port (whether or not the
Port Mortgage relating thereto shall have become enforceable) the
Security Agent may, but without being under any duty to do so, itself
repair any such buildings, fixtures, fittings, plant and machinery
which the relevant Port Owner has in Clause 17.7 covenanted to repair
(and for such purpose the Security Agent may enter upon the Mortgaged
Port or any part thereof without being deemed to have gone into
possession thereof).
17.9 MAINTENANCE
None of the Port Owners will, without the prior written consent of the
Security Agent (such consent not to be unreasonably withheld), pull
down or remove the whole or any
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part of any buildings on its Mortgaged Port or sever or unfix or remove
any of the fixtures thereon or (except for the purpose of effecting
necessary repairs thereto or of replacing the same with new or improved
models or substitutes) remove any of the plant and machinery forming
part of such Mortgaged Port except where:-
(A) it is required to do so pursuant to any mandatory local
authority or other requirement;
(B) the effect of doing so will not materially reduce the value of
such Mortgaged Port;
(C) if there is a material reduction in the value of such Mortgaged
Port following the removal of any plant or machinery therefrom,
such plant or machinery is removed to another Mortgaged Port
which is subject to a Port Mortgage in favour of the Security
Agent and there is an increase in the value of that Mortgaged
Port commensurate with the decrease in value of the first
Mortgaged Port; or
(D) the relevant building, fixture, plant or machinery is disposed
of in accordance with Clause 9.4.
17.10 NOTIFICATION OF PLANNING AUTHORITY NOTICES, ETC.
Each of the Port Owners will, within seven (7) days after becoming
aware thereof, give to the Security Agent a copy of any notice, order,
direction, designation, resolution or proposal having specific
application to its Mortgaged Port or any part thereof or to the
locality in which the same is situate given or made by any planning
authority or other public body or authority whatsoever the compliance
with which is likely to have a material adverse effect on the value of
the Mortgaged Port concerned and (if the Security Agent so requires or
if such Port Owner is obliged by law to do so and so decides) that it
will forthwith and at the cost of such Port Owner take all reasonable
and necessary steps to comply with any such notice, order, direction,
designation or resolution and make or join with the Security Agent in
making such objections or representations in respect of any such
proposal as the Security Agent may require.
17.11 PERFORMANCE OF COVENANTS
Each of the Port Owners will:-
(A) observe and perform all material covenants, stipulations and
conditions to which its Mortgaged Port or any part thereof or
the user thereof is now or may hereafter be subjected so far as
the same are still subsisting and capable of being enforced and
of which such Port Owner receives written notice that it is in
breach thereof from the person entitled to enforce the same
(including all material covenants and obligations of such Port
Owner as lessor);
(B) (without prejudice to the generality of the foregoing) as
regards any lease under which all or any part of its Mortgaged
Port is held, duly and punctually pay all rents due or to become
due thereunder and perform and observe all the material
covenants and conditions on the part of the tenant which are
therein contained; and
(C) notify the Security Agent of any material claim, notice or
proceedings in respect of any (alleged) breach of any of the
foregoing.
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17.12 RESTRICTION ON LICENCES, TENANCIES AND LEASES
Except with the prior written consent of the Security Agent (which
consent shall not be unreasonably withheld and which shall not be
withheld at all where the relevant Port Owner is contractually obliged
to any existing lessor or tenant to perform the act for which the
Security Agent's consent is required), no Port Owner shall grant or
agree to grant or vary or agree to vary any licence or tenancy
affecting all or any part of its Mortgaged Port nor exercise the powers
of leasing or agreeing to lease or of accepting or agreeing to accept
surrenders conferred by Sections 99 and 100 of the Law of Property Xxx
0000 nor in any other way dispose or agree to dispose of or create any
legal or equitable estate or interest in or otherwise part with or
share possession or occupation of its Mortgaged Port or any part
thereof to or with any person (other than another member of the Stena
AB Group) where this would materially and adversely affect the value of
the Port or the profitability of the business carried out thereat.
It is agreed for the purpose of this Clause 17.12 that there will be no
material and adverse effect on the value of a Mortgaged Port or the
profitability of any business carried out thereat where:-
(A) the relevant Port Owner grants a lease or licence of any part of
the Port for a term not exceeding twenty five (25) years on
proper commercial terms with rents to be reviewed at reasonable
intervals of not more than five (5) years if appropriate and at
either:-
(i) the best rent reasonably obtainable in the open market
without taking a fine or premium or other capital
consideration; or
(ii) at a lower rent where the relevant Port Owner is
satisfied that it is in the best commercial interests of
the business carried on at the Port that the lease or
licence should be granted; and
(B) in any case where the term of any lease is for not more than
five (5) years the letting excludes the provisions of Sections
24 to 28 of the Landlord and Xxxxxx Xxx 0000
and such lease or licence would have no material adverse effect on the
use of the Port for the purpose of any undertaking carried on at the
Port.
17.13 LAND REGISTRATION ACTS 1925 TO 1986
In respect of any Port situated in England and Wales, each of the Port
Owners shall procure that no person shall be registered under the Land
Registration Acts 1925 to 1986 as proprietor of its Mortgaged Port or
any part thereof who is not now or when the same is acquired by the
relevant Port Owner so registered without the prior written consent of
the Security Agent (provided always that this restriction shall not
apply to any lease granted pursuant to Clause 17.12) and the relevant
Port Owner shall be liable for the costs incurred by the Security Agent
in lodging from time to time cautions against the first registration of
title at H.M. Land Registry to its Mortgaged Port.
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17.14 RESTRICTION ON DEVELOPMENT
Each of the Port Owners undertakes in respect of its Mortgaged Port
that, where this would materially and adversely affect the value of its
Mortgaged Port, it will not without the prior written consent of the
Security Agent:-
(A) carry out or permit or suffer to be carried out any development
(as defined in the Planning Acts) on such Mortgaged Port or any
part thereof; or
(B) materially change or permit or suffer to be materially changed
the user of the such Mortgaged Port or any part thereof.
17.15 COMPLIANCE WITH PLANNING ACTS
None of the Port Owners will do or omit or permit or suffer to be done
or omitted any act, matter or thing in, on or respecting its Mortgaged
Port or any part thereof which is required to be omitted or done by the
Planning Acts or any other Acts or statutory provisions whatever or
which shall contravene the provisions of such Acts or any of them and
each Port Owner will at all times indemnify and keep indemnified the
Security Agent against all actions, proceedings, costs, expenses,
claims and demands whatsoever in respect of any such matter or thing
contravening the provisions of the said Acts or any of them as
aforesaid.
17.16 PAYMENT OF OUTGOINGS
Each of the Port Owners will pay, and indemnify the Agent, the Security
Agent, the Issuing Banks, the Standby Lender, the Co-Arrangers and the
Banks against, all claims in respect of rates, taxes, duties, charges,
assessments and outgoings assessed or charged upon its Mortgaged Port
or payable by the owner or occupier.
17.17 INSPECTION
Each of the Port Owners undertakes in respect of its Mortgaged Port
that it will permit the Security Agent and any duly authorised agent,
architect or surveyor of the Security Agent to have access to such Port
or any part thereof at all reasonable times (but so as not to interfere
with the ordinary conduct of business at such Port) upon prior
appointment for the purpose of inspecting the same.
18 CONDITIONS
18.1 DOCUMENTS AND EVIDENCE
The obligation of each Bank to make its Commitment available and of the
Standby Lender to make the Standby Commitment available and of the New
Guarantee Provider to issue Bank Guarantees shall be subject to the
condition that the Agent, or its duly authorised representative, shall
have received all the documents and evidence specified in Part 1 of
Schedule 8 in form and substance satisfactory to the Agent.
18.2 GENERAL CONDITIONS PRECEDENT
The obligation of each Bank to make its Commitment available and of the
Standby Lender to make the Standby Commitment available and of the New
Guarantee Provider to issue Bank Guarantees shall be subject to the
further conditions that, as at the Availability Date:-
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(A) the representations and warranties contained in Clauses 13.1 and
13.2 are true and correct on and as of the Availability Date as
if each was made with respect to the facts and circumstances
existing at such time;
(B) no Default shall have occurred and be continuing or would result
from the making of an Advance or a drawing under the Standby
Facility or the issue of a Bank Guarantee on the Availability
Date; and
(C) no material adverse change has occurred in the business,
financial condition or prospects of the Stena AB Group or the
Stena International Group as a whole from that shown in the
information memorandum dated September 2002 prepared by X. X.
Xxxxxx plc and received by the Banks.
18.3 WAIVER OF CONDITIONS PRECEDENT
The conditions specified in this Clause 18 are inserted solely for the
benefit of the Banks and the Standby Lender and may be waived on their
behalf in whole or in part and with or without conditions by the Agent
acting on the instruction of all the Banks (in respect of any Advance
or Bank Guarantee) or on the instructions of the Standby Lender (in
respect of any drawing under the Standby Facility) without prejudicing
the right of the Agent acting on such instructions to require
fulfilment of such conditions in whole or in part in respect of any
other Advance or Bank Guarantee or drawing under the Standby Facility.
18.4 FURTHER CONDITIONS PRECEDENT IN RESPECT OF BANK GUARANTEES
Not later than three (3) Banking Days prior to the date on which a Bank
Guarantee is to be issued, the Agent may request and the Borrower
shall, not later than two (2) Banking Days prior to such date, deliver
to the Agent on such request, in relation only to the issue of such
Bank Guarantee, further favourable certificates and/or opinions as to
any or all of the relevant matters which are the subject of Clauses 13,
14, 15, 16, 17, and 19.
18.5 NOTIFICATION TO BANKS
The Agent shall notify the Banks promptly after receipt by it of the
documents and evidence referred to in Clause 18.1 in form and substance
satisfactory to it.
19 DEFAULT
19.1 EVENTS OF DEFAULT
Each of the events set out below is an Event of Default:-
(A) NON-PAYMENT
any Security Party does not pay within three (3) Banking Days of
the due date any amount payable by it under any Security
Document at the place and in the currency in which it is
expressed to be payable or, in the case of amounts due on
demand, within seven (7) Banking Days of receipt of the relevant
demand;
(B) BREACH OF OTHER OBLIGATIONS
any Security Party fails to comply with any other provision of
any Security Document in a material respect and (unless in the
reasonable opinion of the Agent incapable of remedy) such action
as the Agent may require shall not have been
129
taken within a period of twenty one (21) days of the Agent
notifying the relevant Security Party of such default and of
such required action or within two (2) Banking Days of such
notification in relation to any breach of any insurance covenant
leading to a possible avoidance of insurance cover;
(C) MISREPRESENTATION
any representation or warranty made or repeated by any Security
Party in any Security Document or in any certificate, statement
or opinion delivered by or on behalf of any Security Party
thereunder or in connection therewith is incorrect in a material
respect when made or repeated and (unless in the reasonable
opinion of the Agent incapable of remedy) action has not been
taken by the relevant Security Party to ensure that such
representation or warranty is rendered correct within twenty one
(21) days of the Agent notifying the relevant Security Party;
(D) CROSS-ACCELERATION
at any time the aggregate amount at such time of:-
(i) the amount of any Debt of the Security Parties which is
not paid when due or within any originally applicable
grace period relating thereto and remains unpaid or which
has been declared due and payable prior to the date when
it would otherwise have become due (unless as a result of
the exercise by the relevant person of a voluntary right
of prepayment or upon mandatory prepayment as a result of
a change of law or other circumstances not constituting
an event of default under, or breach of, any agreement
regulating and/or securing the relevant Debt) and such
declaration has not been cancelled or withdrawn; and
(ii) any amounts demanded of, but not paid when due and
remaining unpaid by, the Security Parties under any
guarantee in respect of Debt (other than Debt referred to
in sub-paragraph (i) of this paragraph)
exceeds $15,000,000;
(E) WINDING-UP
any order is made or resolution passed or other action taken
without the prior written consent of the Majority Banks for the
suspension of payments or resulting in the dissolution,
termination of existence, liquidation, winding-up or bankruptcy
of any Security Party, unless in each case such proceeding is
revoked within fourteen (14) days of such order being made,
resolution passed or action taken;
(F) MORATORIUM OR ARRANGEMENT WITH CREDITORS
a moratorium in respect of all or a significant part of the
debts of any Security Party, or a composition or an arrangement
with creditors of any Security Party or any similar proceeding
or arrangement by which the assets of any Security Party are
submitted to the control of its creditors, is applied for,
ordered or declared;
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(G) APPOINTMENT OF LIQUIDATORS ETC.
a liquidator, trustee, administrator, receiver, manager or
similar officer is appointed in respect of any Security Party or
in respect of all or any substantial part of the respective
assets of any Security Party;
(H) INSOLVENCY
any Security Party becomes or is declared insolvent or suspends
payment of or is unable, or admits in writing its inability, to
pay its debts as they fall due or becomes insolvent within the
terms of any applicable law;
(I) LEGAL PROCESS
any distress, execution, attachment or other process is levied
against the whole or any substantial part of the assets of any
Security Party and remains undischarged for a period of thirty
(30) days (except in the case of a Vessel);
(J) ANALOGOUS EVENTS
anything analogous to or having a substantially similar effect
to any of the events specified in sub-Clauses (E) to (I) of this
Clause 19.1 shall occur in relation to a Security Party under
the laws of any applicable jurisdiction;
(K) UNLAWFULNESS
at any time it becomes unlawful or impossible for any Security
Party to perform any of its material obligations under any
Security Document to which it is a party or it is unlawful or
impossible for the Agent, the Security Agent, any Bank, any
Issuing Bank or the Standby Lender to exercise any of their
respective material rights under any of the Security Documents
and (unless in the reasonable opinion of the Agent any such
impossibility or unlawfulness is incapable of rectification or
remedy) the relevant Security Party (with due co-operation from
the Agent, the Security Agent, the Banks, the Issuing Banks and
the Standby Lender) shall have failed to procure within twenty
eight (28) days of notice from the Agent to do so that the
foregoing is no longer impossible or unlawful;
(L) MATERIAL ADVERSE CHANGE; MATERIAL ADVERSE LITIGATION
either:-
(i) any material adverse change in the consolidated financial
condition of the Stena AB Group as a whole from that set
forth in the Audited Stena AB Financial Statements as at
31 December 2001 occurs the effect of which is materially
to imperil, delay or prevent the due fulfilment by any
Security Party of all or any of their material payment
obligations under any Security Documents; or
(ii) any final and conclusive judgment, order or award is made
by any court, arbitration board or other tribunal against
any member of the Stena AB Group the effect of complying
with which will materially imperil, delay or prevent the
due fulfilment by any Security Party of all or any of
their material payment obligations under any Security
Documents
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and in either such case such circumstances continue unremedied
for a period of one hundred and twenty (120) days after
notification from the Agent to the Borrower requiring the same
to be remedied provided that such one hundred and twenty (120)
day remedy period shall only be taken into account if the Agent
certifies to the Borrower that such circumstances are in the
opinion of the Majority Banks capable of remedy and the Borrower
demonstrates to the satisfaction of the Agent that reasonable
steps are being taken which are likely to lead to such
circumstances being remedied within such one hundred and twenty
(120) day period.
For the purposes of the foregoing, the Borrower or Stena AB shall be
deemed to have failed to perform or comply with any covenant contained
in this Agreement or the other Security Documents requiring the
Borrower or Stena AB to cause certain actions to be taken (or to
prohibit the taking of certain actions) by any Subsidiary of the
Borrower or Stena AB if such Subsidiary shall have taken (or failed to
take) such actions, even where the Borrower or Stena AB lacks the
corporate power and authority under Book 2 of the Netherlands Civil
Code or the Swedish Companies Act (1975:1385) respectively to cause or
prohibit such actions.
19.2 TERMINATION AND COLLATERALISATION
The Agent if so requested by the Majority Banks shall, without
prejudice to any other rights of the Agent, the Security Agent, the
Issuing Banks, the Standby Lender and the Banks, at any time after the
happening of an Event of Default by notice to the Borrower:-
(A) declare that all outstanding Advances 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; and/or
(B) declare that the obligation of each Bank to make its Commitment
available shall be terminated, whereupon the Commitments shall
be reduced to zero forthwith; and/or
(C) declare that the obligation of the New Guarantee Provider to
issue the Bank Guarantees shall be terminated, whereupon such
obligations shall be terminated forthwith; and/or
(D) require the Borrower to pay to the Agent for credit to the Cash
Collateral Account for each Bank Guarantee an amount as at the
date of such demand in Dollars equal to the Outstanding
Guarantee Amount of such Bank Guarantee less the amount standing
to the credit of such Cash Collateral Account at such date,
whereupon such amounts shall become immediately or in accordance
with such notice due and payable; and/or
(E) declare that the Standby Commitment shall be terminated
whereupon such obligations shall be terminated forthwith and all
amounts outstanding in respect of the Standby Facility and
accrued interest thereon shall be immediately due and payable in
accordance with such notice
and thereupon each Issuing Bank, or the Agent on its behalf, may take
such action as it thinks fit to procure the release and discharge of
any relevant Bank Guarantee by its Beneficiary.
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19.3 DEMAND BASIS
If, pursuant to Clause 19.2(A) and/or (E), the Agent declares all
outstanding Advances and/or amounts outstanding under the Standby
Facility to be due and payable on demand, the Agent may (and, if so
instructed by the Majority Banks, shall) by written notice to the
Borrower (i) call for repayment of the Advances and/or amounts
outstanding under the Standby Facility on such date as may be specified
whereupon the Advances and/or all amounts outstanding under the Standby
Facility shall become due and payable on the date so specified together
with all interest and any commitment commission accrued and all other
sums payable under this Agreement or (ii) withdraw such declaration
with effect from the date specified in such notice.
20 INDEMNITIES
20.1 MISCELLANEOUS INDEMNITIES
The Borrower shall on demand indemnify each Bank, the Co-Arrangers, the
Security Agent, each Issuing Bank, the Standby Lender and the Agent,
without prejudice to any of their other rights under any of the
Security Documents, against any loss or expense which such Bank, the
Co-Arrangers, the Security Agent, such Issuing Bank, the Standby Lender
or the Agent shall certify as sustained or incurred by it as a
consequence of:-
(A) any default in payment by the Borrower of any sum under any of
the Security Documents when due; or
(B) the occurrence of any other Event of Default; or
(C) as a consequence of or arising in any way whatsoever in
connection with the issue of any Bank Guarantee or the
performance of its obligations hereunder; or
(D) applying any sum standing to the credit of a Cash Collateral
Account otherwise than on the last day of a deposit period
relating thereto; or
(E) receiving or recovering all or any part of a sum unpaid
otherwise than on the due date for the payment of interest in
respect thereof; or
(F) any prepayment of any Advance or amount drawn under the Standby
Facility or part thereof being made under Clauses 7.10, 7.11,
9.4, 9.9 or 21.1, or any other repayment of any Advance or
amount drawn under the Standby Facility or part thereof being
made otherwise than on its Maturity Date or due date for
repayment; or
(G) any Advance or drawing under the Standby Facility not being made
for any reason (excluding any default by the Agent, the
Co-Arrangers, the Security Agent, any Bank or the Standby
Lender) after a Drawdown Notice or request for drawing has been
given; or
(H) any Issuing Bank, or the Agent on its behalf, taking any action,
following the occurrence of an Event of Default, to procure the
release and discharge of any relevant Bank Guarantee by its
Beneficiary
including, in any such case, but not limited to, any loss or expense
sustained or incurred by any Issuing Bank, any Bank, the Standby
Lender, the Security Agent or the Agent in
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maintaining or funding its Contribution or the Standby Facility or any
part thereof or its portion of any other sum to be paid by it hereunder
or in liquidating or re-employing deposits from third parties acquired
or contracted for to fund, effect or maintain its Contribution or the
Standby Facility or any part thereof or any other amount owing to such
Issuing Bank, such Bank, the Standby Lender, the Security Agent or the
Agent.
20.2 CURRENCY INDEMNITY
If any sum due from the Borrower or Stena AB under any of the Security
Documents or any order or judgment 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 judgment into another currency (the "SECOND CURRENCY") for the
purpose of (i) making or filing a claim or proof against the Borrower
or Stena AB, (ii) obtaining an order or judgment in any court or other
tribunal or (iii) enforcing any order or judgment given or made in
relation to any of the Security Documents, the Borrower and Stena AB
shall indemnify and hold harmless the Agent, the Co-Arrangers, the
Security Agent, the Issuing Banks, the Standby Lender and each Bank
from and against any loss suffered as a result of any difference
between (a) the rate of exchange used for such purpose to convert the
sum in question from the first currency into the second currency and
(b) the rate or rates of exchange at which the Agent, the Co-Arrangers,
the Security Agent, any Issuing Bank, the Standby Lender or any Bank
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, judgment, claim or proof. Any
amount due from the Borrower or Stena AB under this Clause 20.2 shall
be due as a separate debt and shall not be affected by judgment 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.
20.3 WAIVER
If and insofar as the Borrower has a right to invoke the nullity of any
indemnity granted by it in this Agreement on the basis of Article 2.7
Netherlands Civil Code, it hereby explicitly waives its right to invoke
such nullity on the basis of Article 2.7 Netherlands Civil Code.
21 UNLAWFULNESS AND INCREASED COSTS
21.1 UNLAWFULNESS
If at any time after the Execution Date the introduction, imposition,
variation or change of any law, regulation or regulatory requirement or
any judgment, order or direction of any court, tribunal or authority
binding upon an Issuing Bank or a Bank or the Standby Lender in the
jurisdiction in which it is formed or has its principal office or the
office identified against its name in this Agreement (or in any
Transfer Certificate, in the case of a Transferee Bank) or in which any
action is required to be performed by it for the purposes of this
Agreement (whether or not in force before the Execution Date):-
(A) causes the New Guarantee Provider to believe that it has become
unlawful prior to the date of issue of a Bank Guarantee for it
to issue such Bank Guarantee;
(B) causes an Issuing Bank to believe that it has become unlawful
for it to perform its obligations under any Bank Guarantee
previously issued;
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(C) causes any Bank to believe that it has become unlawful for any
Bank:-
(i) to perform its obligations under Clause 6.2 in respect of
any Bank Guarantee which has previously been issued; or
(ii) to perform its obligations under Clause 6.2 in respect of
any Bank Guarantee which is to be issued; or
(iii) renders it unlawful for that Bank to contribute to the
Advances or to fund its Contribution; or
(D) causes the Standby Lender to believe that it has become unlawful
to make available or maintain the Standby Facility;
then that Issuing Bank, that Bank or the Standby Lender (as the case
may be) shall promptly inform the Agent and the Agent shall notify the
Borrower whereupon:-
(i) the relevant Issuing Bank or Bank or Standby Lender (the
"AFFECTED PARTY") shall, following consultation with the
Borrower, use all reasonable efforts to avoid the effects
of such introduction, imposition, variation or change and
in particular shall consider, subject to obtaining any
necessary consents, transferring at par its rights and
obligations under this Agreement to another legal entity
approved by the Borrower not affected by such law;
(ii) if the Affected Party is unable, within ninety (90) days
following the date upon which the Affected Party became
aware of any such introduction, imposition, variation or
change, or such shorter period permitted thereby, to
avoid the effect thereof, or the Borrower fails to agree
to any proposal put forward by the Affected Party to
avoid the effects of such introduction, imposition
variation or change, then the Agent shall, at the request
and on behalf of the Affected Party, give notice to the
Borrower that on such date or on a future specified date,
in either case not being earlier than the latest date
permitted by such introduction, imposition, variation or
change:-
(a) in the case of paragraph (A) above, the
obligations of the New Guarantee Provider to issue
such Bank Guarantee shall forthwith terminate;
(b) in the case of paragraph (B) above, the Borrower
shall within fourteen (14) Banking Days after such
notice pay to the Agent for credit to the Cash
Collateral Account an amount equal to the
difference between (i) the Outstanding Guarantee
Amount of such Bank Guarantee and (ii) the amount
then standing to the credit of the Cash Collateral
Account (less any amount standing to the credit of
the Cash Collateral Account as a result of a
payment in respect of another Bank pursuant to
Clause 9.12 or this Clause 21); or
(c) in the case of paragraph (C) above:-
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(i) such Bank's Commitment shall be reduced to
zero;
(ii) the Borrower shall within fourteen (14)
Banking Days after such notice pay to the
Agent for credit to the Cash Collateral
Account an amount equal to such Bank's
Percentage of the difference between (1)
the Outstanding Guarantee Amounts of the
Bank Guarantees and (2) the amount then
standing to the credit of the Cash
Collateral Account (less any amount
standing to the credit of the Cash
Collateral Account as a result of a
payment in respect of another Bank
pursuant to Clause 9.12 or this Clause
21); and
(iii) the Borrower shall be obliged to prepay
the Contribution of such Bank either (a)
forthwith or (b) on a future specified
date not being earlier than the latest
date permitted by the relevant law or
regulation; and
(iv) no further Bank Guarantees may be issued;
(d) in the case of paragraph (D) above the Borrower
shall immediately repay all Standby Outstandings.
If the Borrower has made the payment to the Cash
Collateral Account required of it in respect of a Bank
Guarantee under Clause 21.1(C), the Percentage of the
Bank in respect of which such payment was made of the
liabilities of the Banks for each Bank Guarantee shall be
reduced to zero. To the extent that the Borrower has not
made such payment, such Bank shall continue to be liable
to the relevant Issuing Bank under Clause 6.2 for an
amount equal to its Percentage of such Bank Guarantee
less the amount of any such payment by the Borrower to
the Cash Collateral Account.
21.2 INCREASED COSTS
If the result of any change in, or in the interpretation or application
of, any law or regulation (including, without limitation, those
relating to Taxation, capital adequacy, liquidity, reserve assets and
special deposits) after the Execution Date is to:-
(A) subject any Issuing Bank or any Bank or the Standby Lender to
Taxes or change the basis of Taxation of any Issuing Bank or any
Bank or the Standby 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 Issuing Bank or
such Bank or the Standby Lender imposed in the jurisdiction in
which its principal or lending office under this Agreement is
located); and/or
(B) increase the cost to, or impose an additional cost on, any
Issuing Bank or any Bank or the Standby Lender in making or
keeping its Commitment available or maintaining or funding its
Contribution or the Standby Facility or otherwise in maintaining
its obligations under this Agreement; and/or
136
(C) reduce the amount payable or the effective return to any Issuing
Bank or any Bank or the Standby Lender under any of the Security
Documents; and/or
(D) reduce any Issuing Bank's or any Bank's or the Standby Lender's
rate of return on its capital by reason of a change in the
manner in which it is required to allocate capital resources to
its obligations under any of the Security Documents; and/or
(E) require any Issuing Bank or any Bank or the Standby Lender to
make a payment or forgo a return on or calculated by reference
to any amount received or receivable by it under any of the
Security Documents,
then and in each such case (but subject to Clause 21.3):-
(i) such Issuing Bank or such Bank or the Standby Lender
shall notify the Borrower in writing of such event
promptly upon its becoming aware of the same specifying
reasonable details of the relevant event and of any
increased cost, reduction in any rate of return or
liability and its method of calculation and attribution
to its obligations under this Agreement; and
(ii) the Borrower shall on demand, made at any time whether or
not the relevant Bank's Contribution or the Standby
Outstandings have been repaid, pay to the Agent for the
account of such Issuing Bank or such Bank or the Standby
Lender the amount which such Issuing Bank or such Bank or
the Standby Lender specifies (in a certificate setting
forth the basis of the computation of such amount in
reasonable detail but not including any matters which
such Issuing Bank or such Bank or the Standby Lender
regards as confidential in relation to its funding
arrangements) is required to compensate such Issuing Bank
or such Bank or the Standby Lender for such increased
cost, reduction, payment or forgone return.
21.3 EXCEPTION
Nothing in Clause 21.2 shall entitle any Issuing Bank or any Bank or
the Standby Lender to compensation for any such increased costs,
reduction, payment or foregoing return to the extent that the same is
the subject of an additional payment under Clause 11.7.
21.4 MITIGATION
If circumstances arise which would, or would upon the giving of notice,
result in:-
(A) the Borrower being required to make an increased payment to a
Bank pursuant to Clause 11.7;
(B) the reduction of the Commitment of a Bank to zero or the
Borrower being required to prepay the Outstandings of a Bank or
the Standby Outstandings pursuant to Clause 21.1; or
(C) the Borrower being required to make a payment to a Bank or the
Standby Lender to compensate such Bank or the Standby Lender for
an increased cost, reduction, payment or forgone return pursuant
to Clause 21.2
137
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrower under Clauses 11.7 and 21, the Agent, the
relevant Bank or the Standby Lender (as the case may be) shall
endeavour to take such reasonable steps as may be open to it to
mitigate or remove such circumstances including (without limitation)
the transfer of its rights and obligations under this Agreement to
another bank or financial institution acceptable to the Borrower unless
to do so might (in its opinion) be prejudicial to it or be in conflict
with its general banking policies or involve it in expense or an
unreasonable increased administrative burden.
22 SET-OFF AND PRO-RATA PAYMENTS
22.1 SET-OFF
The Borrower and Stena AB each authorise each Issuing Bank and each
Bank and the Standby Lender (without prejudice to any of such Issuing
Bank's or such Bank's or the Standby Lender's rights at law, in equity
or otherwise), at any time when an Event of Default has occurred and is
continuing and without notice to the Borrower or Stena AB:-
(A) to apply any credit balance to which the Borrower or Stena AB is
then entitled standing upon any account of the Borrower or Stena
AB with any branch of such Issuing Bank or such Bank or the
Standby Lender in or towards satisfaction of any sum due and
payable from the Borrower or Stena AB to such Issuing Bank or
such Bank or the Standby Lender under any of the Security
Documents;
(B) in the name of the Borrower and/or Stena AB and/or such Issuing
Bank or such Bank or the Standby Lender to do all such acts and
to execute all such documents as may be necessary or expedient
to effect such application; and
(C) to combine and/or consolidate all or any accounts in the name of
the Borrower and/or Stena AB with such Issuing Bank or such Bank
or the Standby Lender.
For such purposes, each Issuing Bank and each Bank and the Standby
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 Issuing Bank nor any Bank nor the Standby Lender
shall be obliged to exercise any right given to it by this Clause 22.1.
Each Issuing Bank and each Bank and the Standby Lender shall notify the
Agent and the Borrower forthwith upon the exercise or purported
exercise of any right of set-off giving full details in relation
thereto and the Agent shall inform the other Banks.
22.2 PRO RATA PAYMENTS
(A) If at any time any Bank, any Issuing Bank or the Standby Lender
(the "RECOVERING BANK") receives or recovers any amount owing to
it by the Borrower or Stena AB under this Agreement by direct
payment, set-off or in any manner other than by payment through
the Agent pursuant to Clause 11.1 or 11.10 (not being a payment
received from an assignee, a Transferee Bank or a
sub-participant in such Bank's Contribution or any other payment
of an amount due to the Recovering Bank for its sole account
pursuant to Clauses 7, 8.5, 9.12, 10.1, 10.3, 10.5, 10.6, 11.7,
20.1, 20.2, 21.1 or 21.2) the Recovering Bank shall, within two
Banking Days of such receipt or recovery (a "RELEVANT RECEIPT")
notify the Agent of the amount of the Relevant Receipt. If the
Relevant Receipt exceeds the amount which the Recovering Bank
would have received if the
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Relevant Receipt had been received by the Agent and distributed
pursuant to Clause 11.1 or 11.10 as the case may be then:
(i) within two Banking Days of demand by the Agent, the
Recovering Bank shall pay to the Agent an amount equal
(or equivalent) to the excess;
(ii) the Agent shall treat the excess amount so paid by the
Recovering Bank as if it were a payment made by the
Borrower and shall distribute the same to the Banks, the
Standby Lender and the Issuing Banks (other than the
Recovering Bank) in accordance with Clause 11.10; and
(iii) as between the Borrower or, as the case may be, Stena AB,
and the Recovering Bank the excess amount so
re-distributed shall be treated as not having been paid
but the obligations of the Borrower and Stena AB to the
others of the Banks, the Standby Lender and the Issuing
Banks shall, to the extent of the amount so
re-distributed to them, be treated as discharged.
(B) If any part of the Relevant Receipt subsequently has to be
wholly or partly refunded by the Recovering Bank (whether to a
liquidator or otherwise) each Bank, the Standby Lender and each
Issuing Bank to which any part of such Relevant Receipt was so
re-distributed shall on request from the Recovering Bank repay
to the Recovering Bank such Bank's, the Standby Lender's and
such Issuing Bank's pro rata share of the amount which has to be
refunded by the Recovering Bank.
(C) Each Bank, the Standby Lender and each Issuing Bank shall on
request supply to the Agent such information as the Agent may
from time to time request for the purpose of this Clause 22.2.
(D) Notwithstanding the foregoing provisions of this Clause 22.2 no
Recovering Bank shall be obliged to share any Relevant Receipt
which it receives or recovers pursuant to legal proceedings
taken by it to recover any sums owing to it under this Agreement
with any other party which has a legal right to, but does not,
either join in such proceedings or commence and diligently
pursue separate proceedings to enforce its rights in the same or
another court (unless the proceedings instituted by the
Recovering Bank are instituted by it without prior notice having
been given to such party through the Agent).
22.3 NO RELEASE
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of Clause 22.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under Clause 22.2.
22.4 NO CHARGE
The provisions of this Clause 22 shall not, and shall not be construed
so as to, constitute a charge by a Bank, an Issuing Bank or the Standby
Lender over all or any part of a sum received or recovered by it in the
circumstances mentioned in Clause 22.2.
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22.5 PARTIAL REALISATION OF SECURITY
If, by reason of the transfer or purported transfer by any Bank or the
Standby Lender of all or any of its rights, title and interest
hereunder by means of a Transfer Certificate or otherwise, the
indebtedness of the Borrower to any successor in title, assignee or
transferee (including a Transferee) of such Bank or the Standby Lender
constitutes, or is deemed to constitute, at the time of such transfer
or purported transfer by operation of law or otherwise indebtedness
("NEW INDEBTEDNESS") separate and distinct from the indebtedness
("ORIGINAL INDEBTEDNESS") owed by the Borrower to the other Banks and
the Standby Lender (including the Bank or the Standby Lender making the
transfer insofar as it does not transfer all of its rights, title and
interest hereunder) and if the New Indebtedness is not secured by any
particular Security Document or, if so secured, if such security ranks
in priority after the security constituted thereby in respect of the
Original Indebtedness, the proceeds of realisation of that particular
Security Document received by the Agent from the Security Agent shall
be applied by the Agent:-
(A) insofar as the proceeds of realisation relate to the Original
Indebtedness, in distribution thereof between the Banks and/or
the Standby Lender to whom the Original Indebtedness is owed pro
rata to their respective contributions to the Original
Indebtedness; and
(B) insofar as the proceeds of realisation relate to the New
Indebtedness, in distribution thereof to the relevant successors
in title, assignees or transferees (including any Transferees)
in respect of the Bank or the Standby Lender making the transfer
(being the persons to whom the New Indebtedness is owed) pro
rata to their respective contributions to the New Indebtedness.
23 SECURITY
23.1 CASH COLLATERAL ACCOUNT
The Agent shall at such time as it considers appropriate (and is hereby
irrevocably authorised by the Borrower to) open in its books one or
more Cash Collateral Accounts to which shall be credited all sums
required to be paid to the Agent under this Agreement for credit to a
Cash Collateral Account. Each Cash Collateral Account shall be charged
in favour of the Security Agent by the execution on the date of opening
of the account of a Cash Collateral Account Pledge.
23.2 WITHDRAWALS
Except as provided in Clauses 23.3 and 23.4 the Borrower agrees not to
withdraw or attempt to withdraw any monies from the Cash Collateral
Accounts nor assign, transfer or suffer any Encumbrance other than the
Encumbrance created pursuant to Clause 23.1 to arise over the whole or
any part thereof.
23.3 PAYMENTS OUT OF CASH COLLATERAL ACCOUNT
The Agent shall, subject to Clause 23.5, pay to the relevant Issuing
Bank and debit to the Cash Collateral Account opened in relating to any
particular Bank Guarantee or in relation to the Bank Guarantees
generally or Bank Guarantees issued in a particular currency or which
have other common characteristics on the date on which such Issuing
Bank makes any payment to the Beneficiary under a Bank Guarantee, an
amount equal to
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the amount of such payment (or the amount standing to the credit of the
Cash Collateral Account, if less).
23.4 APPLICATION OF MONEYS IN CASH COLLATERAL ACCOUNT
The Agent shall at all times be entitled, subject to Clause 23.5, to
apply the whole or any part of the sums standing to the credit of the
Cash Collateral Account in or towards payment of any sums due from the
Borrower under the Security Documents but unpaid and for that purpose
may purchase with such sums such other currencies as may be necessary
to effect such application.
23.5 PAYMENTS INTO CASH COLLATERAL ACCOUNTS
Subject to Clause 23.4 any amount which the Borrower has paid to the
Agent for credit to a Cash Collateral Account pursuant to Clauses 9.12
or 21.1 shall be applied solely in or towards the discharge of the
obligations of the Borrower which, but for such payment, would have
fallen to be satisfied by the Bank whose Percentage has, by virtue of
such payment, been reduced as a consequence of the Borrower paying that
amount for credit to the relevant Cash Collateral Account.
23.6 INTEREST
The amount from time to time standing to the credit of the Cash
Collateral Accounts shall bear interest by reference to successive
deposit periods or as otherwise agreed, the rate at which such interest
is payable and the duration of each such deposit period to be agreed
between the Borrower and the Agent from time to time. Such interest
shall, until an Event of Default shall have occurred, be payable by the
Agent to the Borrower or as it may direct and thereafter shall accrue
to the relevant Cash Collateral Account.
23.7 DISCHARGE
When all moneys, obligations and liabilities due, owing or incurred by
the Borrower under this Agreement shall have been paid or discharged in
full, the Agent shall at the request and cost of the Borrower reassign
to the Borrower the property pledged pursuant to the Cash Collateral
Account Pledge and release any moneys standing to the credit of the
Cash Collateral Accounts to the Borrower.
23.8 CONTINUING SECURITY
The security created under the Security Documents is a continuing
security and shall remain in full force and effect until all moneys,
obligations and liabilities from time to time due, owing or incurred by
the Borrower under the Security Documents shall have been paid or
satisfied in full, and is in addition to and not in substitution for,
and shall not be prejudiced or affected by, any other security or
guarantee from time to time held by the Agent, the Security Agent, the
Issuing Banks, the Standby Lender, the Co-Arrangers or any Bank for the
payment or satisfaction of such moneys, obligations or liabilities.
23.9 AMENDMENTS
The liability of the Borrower and Stena AB under the Security Documents
shall not be lessened or impaired by any time, indulgence or relief
being given by the Beneficiary to any Issuing Bank, by any Issuing Bank
to any Bank or by the Agent, the Security Agent,
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the Standby Lender, the Co-Arrangers or any Bank to any other person
liable, any amendment or extension of or supplement to the Bank
Guarantees, the taking, variation, compromise, renewal or release of or
refusal or neglect to perfect or enforce any rights, remedies or
securities against any other person liable, any legal limitation,
disability, incapacity or other circumstances relating to any other
person liable, whether or not known to any Issuing Bank, the Agent, the
Security Agent, the Standby Lender, the Co-Arrangers or any Bank, any
invalidity in or irregularity or unenforceability of the obligations of
any other person liable or anything done or omitted which but for this
provision might constitute a legal or equitable discharge or defence of
the Borrower or Stena AB.
23.10 WAIVER BY BORROWER AND STENA AB
The Borrower and Stena AB hereby waive all rights they may have of
first requiring the Agent, the Security Agent, any Issuing Bank, any
Bank, the Standby Lender or the Co-Arrangers to proceed against or
enforce any guarantee or security of, or claim payment from, the
Borrower or Stena AB or any other person liable to make any claim or
file any proof in the bankruptcy, insolvency or liquidation of the
Borrower or Stena AB or any other person liable.
23.11 SETTLEMENT OR DISCHARGE
Any settlement or discharge between the Agent, the Security Agent, any
Issuing Bank, any Bank, the Co-Arrangers or the Standby Lender and the
Borrower and/or Stena AB shall be conditional upon no security or
payment to the Agent, the Security Agent, any Issuing Bank, any Bank,
the Co-Arrangers or the Standby Lender by the Borrower or any other
person being avoided or set aside or ordered to be refunded or reduced
by virtue of any provision or enactment relating to bankruptcy,
insolvency or liquidation for the time being in force and the Agent,
the Security Agent, any Issuing Bank, any Bank, the Co-Arrangers and
the Standby Lender shall be entitled to recover from the Borrower
and/or Stena AB the value which the Agent, the Security Agent, such
Issuing Bank, such Bank, the Co-Arrangers or the Standby Lender has
placed upon such security or the amount of any such payment as if such
settlement or discharge has not occurred.
23.12 REFLAGGING
(A) REFLAGGING NOTICE
At any time and from time to time during the Security Period
provided that no Event of Default has occurred and is
continuing, the Borrower may give a notice (a "REFLAGGING
NOTICE") to the Agent that the Shipowner of a Mortgaged Ship or
Mortgaged Linkspan wishes:-
(i) to transfer the port of registry of such Ship or Linkspan
from one port of registry (the "EXISTING PORT OF
REGISTRY") in the Ship's or Linkspan's Flag State to
another port of registry (a "NEW PORT OF REGISTRY") in
such Flag State (a "TRANSFER OF PORT OF REGISTRY"); or
(ii) to redocument and reregister such Ship or Linkspan under
the laws of any jurisdiction (the "NEW FLAG State") other
than its existing Flag State (the "EXISTING FLAG STATE")
(a "TRANSFER OF FLAG"); or
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(iii) to transfer ownership of such Ship or Linkspan to the
sole ownership of another member of the Stena AB Group
(the "NEW OWNER") (a "TRANSFER OF OWNERSHIP"); or
(iv) to suspend the use of the flag of such Ship's or
Linkspan's Flag State (the "PRIMARY FLAG STATE") while
such Ship or Linkspan is on bareboat charter and where it
is proposed that, for the duration of such bareboat
charter, such Ship or Linkspan will fly the flag of
another jurisdiction (the "SECONDARY FLAG State")
selected by such charterer (a "Dual Registration").
(B) CONTENTS OF REFLAGGING NOTICE
Any Reflagging Notice delivered by the Borrower to the Agent
shall contain the following particulars:-
(i) the name of the Mortgaged Ship or Mortgaged Linkspan
which is the subject of such Reflagging Notice;
(ii) the name of the relevant Shipowner;
(iii) in the case of a Transfer of Port of Registry, the
proposed New Port of Registry;
(iv) in the case of a Transfer of Flag, the proposed New Flag
State;
(v) in the case of a Transfer of Ownership, the full name,
place of incorporation and principal place of business of
the proposed New Owner;
(vi) if applicable, any proposed new name of such Ship or
Linkspan on a Transfer of Port of Registry, Transfer of
Flag, Transfer of Ownership and/or Dual Registration;
(vii) in the case of a Transfer of Ownership taking place in
conjunction with a Transfer of Port of Registry and/or a
Transfer of Flag, details of the name of the proposed New
Flag State and (if applicable) proposed New Port of
Registry of the Ship or Linkspan upon completion of the
Transfer of Ownership; and
(viii) in the case of a Dual Registration, details of the
Secondary Flag State, the bareboat charter and the
charterer.
(C) RELEASE OF SECURITY DOCUMENTS ON TRANSFER OF FLAG AND/OR
TRANSFER OF OWNERSHIP
Subject to fulfilment of the conditions specified in Clause
23.12(F), the Agent shall instruct the Security Agent to, and
the Security Agent shall, duly release and discharge the Ship
Mortgage in respect of the relevant Mortgaged Ship or (as the
case may be) the Linkspan Mortgage in respect of the relevant
Mortgaged Linkspan, and release and re-assign the Deed of
Covenant or Insurance Assignment and, if so requested by the
Borrower, any Charterer's Insurance Assignment executed in
respect of such Ship or Linkspan by a Stena Charterer
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upon reasonable notice from the Borrower to enable the Transfer
of Flag of such Ship or Linkspan and/or the Transfer of
Ownership of such Ship or Linkspan.
(D) CONSENT TO TRANSFER OF PORT OF REGISTRY
The Agent shall give instructions to the Security Agent to, and
the Security Agent shall, give any requisite consents required
by any applicable ship registrar or other official to enable a
Mortgaged Ship or Mortgaged Linkspan to be transferred from its
Existing Port of Registry to the New Port of Registry provided
that the Ship Mortgage over such Ship or (as the case may be)
the Linkspan Mortgage over such Linkspan will continue to be
registered against such Ship or Linkspan at the New Port of
Registry or in any applicable central register of ship mortgages
in the Flag State.
(E) CONSENT TO DUAL REGISTRATION
Subject to fulfilment of the conditions specified in Clause
23.12(G), the Agent shall instruct the Security Agent to, and
the Security Agent shall, give any requisite consents required
by any applicable ship registrar or other official in the
Primary Flag State and/or the Secondary Flag State to permit the
Dual Registration of a Mortgaged Ship or Mortgaged Linkspan.
(F) CONDITIONS TO TRANSFER OF OWNERSHIP AND/OR TRANSFER OF FLAG
Upon completion of the Transfer of Ownership and/or Transfer of
Flag, the Borrower shall deliver or procure the delivery to the
Agent of:-
(i) a Shipowner's Guarantee and a Ship Mortgage or (in the
case of a Linkspan) a Linkspan Mortgage together with a
Deed of Covenant (in the case of a Designated Ship) or an
Insurance Assignment (in the case of a Linkspan or any
other Ship) in respect of the Mortgaged Ship or Mortgaged
Linkspan executed by the relevant Shipowner or (in the
case of a Transfer of Ownership) the New Owner (provided
that no Shipowner's Guarantee shall be required from
Stena Rederi AB or Stena Line Scandinavia);
(ii) in the case of a Ship or Linkspan managed by another
member of the Stena AB Group, a Manager's Subordination
Undertaking;
(iii) in the case of a Ship or Linkspan let on bareboat charter
to a Stena Charterer, a Charterer's Subordination
Undertaking and a Charterer's Insurance Assignment;
(iv) a notice of assignment of insurances in relation to the
Ship or Linkspan executed by the New Owner and any Stena
Charterer;
(v) evidence that the Ship or Linkspan has been insured in
accordance with the requirements of the Deed of Covenant,
Insurance Assignment and any Charterer's Insurance
Assignment;
(vi) opinions satisfactory to the Banks in relation to the
registration of the Ship and the Ship Mortgage or (as the
case may be) the Linkspan and the Linkspan Mortgage, the
due execution and authorisation of any
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documents executed pursuant to paragraphs (i) to (iv)
above and such other matters as the Banks may reasonably
require in relation to English law and to the
jurisdictions of incorporation of the Shipowner, any
Stena Charterer, any other charterer and the registry or
registries of the Ship or Linkspan;
(vii) evidence that the New Owner of the Ship or Linkspan has
acquired good marketable title to the Ship or Linkspan
and that the Ship or Linkspan is unencumbered save for
the new Ship Mortgage or new Linkspan Mortgage (as the
case may be), Permitted Ship Liens and, if relevant,
Liens created by any Prior Security Document;
(viii) in the case of a Transfer of Flag, evidence that the New
Flag State shall be an Approved Flag State;
(ix) the Agent being satisfied, where the relevant Shipowner
or (in the case of a Transfer of Ownership) the New Owner
is incorporated in Sweden, that such Shipowner or New
Owner is able to grant the Security Documents referred to
in Clause 23.12(F)(i) to secure an amount equal to at
least the market value of the relevant Ship or Linkspan
and that the amount recoverable thereunder will not be
limited by Swedish law rules on corporate benefit or any
other relevant provision of Swedish company law
and the obligations of the Agent and the Security Agent under
Clause 23.12(D) shall be subject to the condition that the Agent
has received all of such documents and evidence.
(G) CONDITIONS TO DUAL REGISTRATION
Upon suspension of the use of the flag of the Primary Flag State
and commencement of the use of the flag of the Secondary Flag
State, the Borrower shall deliver or procure the delivery to the
Agent of the following documents and/or evidence:-
(i) evidence that the Secondary Flag State shall be an
Approved Flag State;
(ii) an opinion satisfactory to the Agent from lawyers
qualified or accustomed to advise on the laws of the
Primary Flag State and the Secondary Flag State that the
Dual Registration is permitted by their respective laws
for the duration of the relevant charter period or a
specified part thereof and that the Ship Mortgage over
the relevant Ship or (as the case may be) the Linkspan
Mortgage over the relevant Linkspan and the relevant
Shipowner's title thereto remain duly registered under
the laws of the Primary Flag State following the Dual
Registration and that on termination of the charter by
virtue of which the Ship or Linkspan is registered in the
Secondary Flag State or a judicial sale of the Ship or
Linkspan the Dual Registration will be terminated without
delay and without any discretionary consents from
authorities in the Secondary Flag State;
(iii) if the laws of the Secondary Flag State require that the
Ship Mortgage or Linkspan Mortgage be noted or registered
against the Ship or Linkspan (as the case may be) in the
Secondary Flag State, evidence reasonably
145
satisfactory to the Agent that such notation or
registration will be effected upon or within an
appropriate period following commencement of the Dual
Registration
and the obligations of the Agent and the Security Agent under
Clause 23.12(E) shall be subject to the condition that the Agent
has received all of such documents and evidence.
(H) COMBINED TRANSACTIONS
Where a combined Transfer of Ownership and/or Transfer of Flag
and/or Dual Registration is proposed, Clauses 23.12(C) and (E)
and Clauses 23.12(F) and (G) shall respectively be read
together.
(I) APPROVED FLAG STATES
For the purposes of this Agreement, "APPROVED FLAG STATE" means
any of the following:-
(i) the United Kingdom, Bermuda, the Cayman Islands, any
other British Dependent Territory, the Channel Islands,
the Isle of Man and Hong Kong;
(ii) Sweden and any other Member State of the European Union
or Switzerland;
(iii) Norway (including, without limitation, the Norwegian
International Shipping Register) and any other member of
the European Economic Area;
(iv) United States of America and Canada;
(v) Australia and New Zealand;
(vi) the Bahamas, Cyprus, Greece, Liberia and Panama;
(vii) if the European Union establishes a register of ships for
the European Union as a whole (whether instead of, in
addition to or as an alternative to registration in a
Member State of the European Union), the European Union
shall, in relation to the registration of a Mortgaged
Ship in such register, be deemed to be an Approved Flag
State for the purposes of this Agreement; and
(viii) any other state approved by the Majority Banks which
approval shall not be unreasonably withheld in the case
of a state in which significant numbers of vessels owned
by entities whose ultimate parent companies and/or
shareholders are resident in North America or the
European Union, European Economic Area or Switzerland are
registered and/or where such state is proposed as the
Secondary Flag State for the relevant Ship.
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(J) REFLAGGING OF TRANSFERRED SHIPS
If the purchaser of a Transferred Ship requests the relevant
Shipowner to consent to a change of the flag state in which a
Transferred Ship is registered, the relevant Shipowner may agree
to such change of flag provided that:-
(i) the requirements of this Clause 23.12 are satisfied in
relation to the Ship;
(ii) the Agent has received evidence satisfactory to it that
the Ship is insured in accordance with the terms of the
relevant Sale Agreement;
(iii) the Agent is satisfied that the obligation of the
purchaser of the Transferred Ship is effectively secured
by an assignment in favour of the Security Agent of a
first priority mortgage over the Ship and an assignment
in favour of the Security Agent of the purchaser's
interest in the insurances of the Ship in the event of a
Total Loss (such assignments to rank with the same
priority as the Receivables Assignment relating to such
Transferred Ship).
23.13 RELEASE OF SECURITY
Provided that no declaration has been made by the Agent under Clause
19.2 the Agent shall instruct the Security Agent to, and the Security
Agent shall, release and discharge the Ship Mortgage and the Deed of
Covenants or Insurance Assignment in respect of any Mortgaged Ship
which is sold by the relevant Shipowner (whether on Credit Terms or
otherwise) on terms that ownership of the relevant Mortgaged Ship
passes from the relevant Shipowner as and when ownership of the
relevant Ship is to pass to the relevant purchaser, in exchange for the
purchase price, or relevant portion thereof, payable to the Shipowner
by the relevant purchaser upon transfer of title to such purchaser (to
be applied in accordance with the provisions of this Agreement and the
other Security Documents) and provided that (in the case of a sale on
Credit Terms) the relevant Shipowner has executed a Receivables
Assignment in relation to the sale of such Ship in accordance with the
provisions of this Agreement.
23.14 INCREASE IN MAXIMUM MORTGAGE AMOUNTS
In respect of any Mortgaged Ship or Mortgaged Linkspan which is
registered in Sweden or any other jurisdiction where the amount
recoverable thereunder is restricted to a registered maximum amount:-
(A) the relevant Shipowner may at any time execute and register all
such documents as are required to increase the registered
maximum amount recoverable by the Security Agent under the Ship
Mortgage or Linkspan Mortgage relating thereto to such higher
amount as that Shipowner may elect; and
(B) if according to the latest valuation of such Ship or Linkspan
the market value thereof exceeds the registered maximum amount
recoverable by the Security Agent under the Ship Mortgage or
Linkspan Mortgage relating thereto, and if at that time the
Security Value is less than 150% of the aggregate of (a) the
total of the Commitments (excluding any part thereof suspended
under Clause 9.4 and not yet reinstated) and (b) the Standby
Commitment, the Agent (acting on the instructions of the
Majority Banks) may require the relevant Shipowner to execute
and register all such documents as are required to increase the
registered
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maximum amount recoverable by the Security Agent under the Ship
Mortgage or Linkspan Mortgage relating thereto to an amount
equal to 110% of such latest valuation (such documents to be
executed and registered within ten (10) Banking Days of notice
from the Agent requiring the same to be done).
24 ASSIGNMENT, TRANSFER AND LENDING OFFICE
24.1 BENEFIT AND BURDEN
This Agreement shall be binding upon, and enure for the benefit of,
each of the Banks, the Agent, the Co-Arrangers, the Security Agent, the
Issuing Banks, the Standby Lender, the Borrower, Stena AB and their
respective successors.
24.2 NO ASSIGNMENT BY BORROWER
Neither of the Borrower nor Stena AB may assign or transfer any of
their rights or obligations under any of the Security Documents.
24.3 TRANSFERS
Any Bank (the "TRANSFEROR BANK") may at any time cause all or any part
of its rights, benefits and/or obligations under this Agreement and the
Security Documents to be transferred to any bank or financial
institution (a "TRANSFEREE BANK") by delivering to the Agent a Transfer
Certificate duly completed and duly executed by the Transferor Bank and
the Transferee Bank.
Any such transfer shall require the consent of the Borrower (such
consent not to be unreasonably withheld) unless (i) it is made in
favour of another Bank or an affiliate of the Transferor Bank or any
other Bank or (ii) it is made in favour of any other bank or financial
institution after an Event of Default has occurred and has been
continuing for 45 days, in which case it may be made without the
Borrower's consent.
Any transfer by a Bank shall be offered and effected in compliance with
all applicable laws and regulations. No such transfer is binding on, or
effective in relation to, the Borrower, the Agent or the Security Agent
unless it is effected or evidenced by a Transfer Certificate which
complies with the provisions of this Clause 24.3 and is signed by or on
behalf of the Transferor Bank, the Transferee Bank and the Agent (on
behalf of itself, the Borrower and Stena AB, the Security Agent, the
Co-Arrangers, the Issuing Banks, the Standby Lender and the other
Banks). Upon signature of any such Transfer Certificate by the Agent,
which signature shall be effected as promptly as is practicable after
such Transfer Certificate has been delivered to the Agent, and subject
to the terms of such Transfer Certificate, such Transfer Certificate
shall have effect as set out below.
The following further provisions shall have effect in relation to any
Transfer Certificate:-
(A) a Transfer Certificate may be in respect of a Bank's rights in
respect of all or part of its Commitment and shall be in respect
of the same proportion of its Percentage and of its
Contribution;
(B) a Transfer Certificate shall only be in respect of rights and
obligations of the Transferor Bank in its capacity as a Bank and
shall not transfer its rights and obligations as Agent, Security
Agent, Issuing Bank or Standby Lender, or in any
148
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 Transfer Certificate shall take effect in accordance with
English law as follows:-
(i) to the extent specified in the Transfer Certificate, the
Transferor Bank's payment rights and all its other rights
(other than those referred to in paragraph (B) above)
under this Agreement are assigned to the Transferee Bank
absolutely, free of any defects in the Transferor Bank's
title and of any rights or equities which the Borrower
had against the Transferor Bank;
(ii) the Transferor Bank's Commitment is discharged to the
extent specified in the Transfer Certificate;
(iii) the Transferee Bank becomes a Bank with a Contribution, a
Percentage and a Commitment of the amounts specified in
the Transfer Certificate;
(iv) the Transferee Bank becomes bound by all the provisions
of this Agreement and the Security Documents which are
applicable to the Banks generally, including those about
pro rata sharing and the exclusion of liability on the
part of, and the indemnification of, the Agent, the
Security Agent and the Issuing Banks in accordance with
the provisions of this Agreement and to the extent that
the Transferee Bank becomes bound by those provisions,
the Transferor Bank ceases to be bound by them;
(v) an Advance or part of an Advance which the Transferee
Bank makes after the Transfer 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
Transferor Bank, assuming that any defects in the
Transferor Bank's title and any rights or equities of any
Security Party against the Transferor Bank had not
existed; and
(vi) the Transferee Bank becomes entitled to all the rights
under this Agreement which are applicable to the Banks
generally, including but not limited to those relating to
the Majority Banks and those under Clauses 8.5, 11 and
21, and to the extent that the Transferee Bank becomes
entitled to such rights, the Transferor Bank ceases to be
entitled to them;
(D) the rights and equities of the Borrower 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;
(E) the Borrower, the Security Agent, the Issuing Banks, the Standby
Lender, the Banks, Stena AB and the Co-Arrangers hereby
irrevocably authorise and instruct the Agent to sign any such
Transfer Certificate on its behalf (and, in the case of the
Security Agent, on behalf of any Security Party which has in the
relevant Security Document given a corresponding authorisation
and instruction to the Security Agent) and undertake not to
withdraw, revoke or qualify such authority or instruction at any
time. Promptly upon its signature of any Transfer Certificate,
the Agent shall notify the Borrower, the Security Agent, the
Transferor Bank and the Transferee Bank.
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24.4 RELIANCE ON TRANSFER CERTIFICATE
(A) The Agent shall be entitled to rely on any Transfer 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.
(B) (i) The Agent shall at all times during the continuation of
this Agreement maintain a register in which it shall
record the name, Commitments, Contributions, Percentages
and administrative details (including the lending office)
from time to time of each Bank holding Transfer
Certificates and the date at which the transfer referred
to in such Transfer Certificate held by each Bank was
transferred to such Bank, and the Agent shall make the
said register available for inspection by any Bank, the
Security Agent, the Issuing Banks, the Standby Lender,
the Borrower and Stena AB during normal banking hours
upon receipt by the Agent of reasonable prior notice
requesting the Agent to do so.
(ii) The entries on the said register shall, in the absence of
manifest error, be conclusive in determining the
identities of the Commitments, the Contributions, the
Percentages and the Transfer Certificates held by the
Banks from time to time and the principal amounts of such
Transfer Certificates and may be relied upon by the
Agent, the Security Agent and the other Security Parties
for all purposes in connection with this Agreement and
the Security Documents.
24.5 TRANSFER FEES AND EXPENSES
If any Bank causes the transfer of all or any part of its rights,
benefits and/or obligations under the Security Documents, it shall pay
to the Agent for its own account a registration fee of $1,000 for each
transfer, and shall also pay to the Agent on demand all costs, fees and
expenses (including, but not limited to, legal fees and expenses), and
all VAT thereon, certified by the Agent as having been reasonably
incurred by it in connection with such transfer.
24.6 DOCUMENTING ASSIGNMENTS AND TRANSFERS
If any Bank transfers all or any part of its rights, benefits and/or
obligations as provided in Clause 24.3 the Borrower and Stena AB
undertake, immediately on being requested to do so by the Agent and at
the cost of the Transferor Bank, 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 Transferee Bank all or the
relevant part of such Bank's interest in the Security Documents and all
relevant references in this Agreement to such Bank shall thereafter be
construed as a reference to the Bank and/or its Transferee Bank (as the
case may be) to the extent of their respective interests.
24.7 SUB-PARTICIPATION
Except with the consent of the Borrower (such consent not to be
unreasonably withheld), a Bank may not sub-participate all or any part
of its rights and/or obligations under the Security Documents or enter
into any contractual arrangement with any person (other
150
than as permitted under Clause 24.3) the effect of which is to give
that person an interest in that Bank's rights and/or obligations under
the Security Documents.
24.8 LENDING OFFICE
Each Bank shall lend through its office at the address specified in
Schedule 1 or, as the case may be, in any relevant Transfer Certificate
or through any other office of such Bank selected from time to time by
it through which such Bank wishes to lend for the purposes of this
Agreement. If the office through which such Bank is lending is changed
pursuant to this Clause 24.8, such Bank shall notify the Agent promptly
of such change and the Agent shall notify the Borrower.
24.9 DISCLOSURE OF INFORMATION
Any Bank may disclose to a prospective assignee, substitute or
transferee or to any other person who may propose entering into
contractual relations with the Bank in relation to this Agreement such
information about the Borrower and the Stena AB Group as such Bank
shall consider appropriate if such Bank first procures that the
relevant prospective assignee, substitute or transferee or other person
(such person together with any prospective assignee, substitute or
transferee being hereinafter described as the "PROSPECTIVE ASSIGNEE")
shall undertake to the Borrower to keep secret and confidential and,
not without the prior written consent of the Borrower, disclose to any
third party any of the information, reports or documents supplied by
such Bank provided however that the Prospective Assignee shall be
entitled to disclose any such information, reports or documents in the
following situations:-
(A) in relation to any proceedings arising out of this Agreement or
the other Security Documents to the extent considered necessary
by the Prospective Assignee to protect its interest; or
(B) pursuant to a court order relating to discovery or otherwise; or
(C) pursuant to any law or regulation or to any fiscal, monetary,
tax, governmental or other competent authority; or
(D) to its auditors, legal or other professional advisers.
In addition, the Prospective Assignee shall be entitled to disclose or
use any such information, reports or documents if the information
contained therein shall have emanated, in conditions free from
confidentiality, bona fide from some person other than such Bank or the
Borrower or any member of the Stena AB Group.
24.10 NO ADDITIONAL COSTS
If at the time of, or immediately after, any transfer by a Bank of any
part of the rights, benefits and/or obligations under this Agreement,
or any change in the office through which it lends for the purposes of
this Agreement, the Borrower would be obliged to pay to the Transferee
Bank or (in the case of a change of lending office) the Bank under
Clauses 11.7 or 21.2 any sum in excess of the sum (if any) which it
would have been obliged to pay to the relevant Bank under the relevant
Clause in the absence of such transfer or change, the Borrower shall
not be obliged to pay that excess.
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25 REFERENCE BANKS, CO-ARRANGERS, AGENT AND SECURITY AGENT
25.1 REFERENCE BANKS
If (i) the whole of the Contribution (if any) of any Reference Bank is
prepaid, (ii) the Commitments (if any) of any Reference Bank are
reduced to zero in accordance with Clause 21 or any other relevant
provision hereof, (iii) a Reference Bank transfers the whole of its
rights and obligations (if any) as a Bank under this Agreement or (iv),
where applicable, any Reference Bank ceases to provide quotations to
the Agent for the purposes of determining LIBOR, the Agent may, acting
on the instructions of the Majority Banks, terminate the appointment of
such Reference Bank and appoint another Bank to replace such Reference
Bank.
25.2 DECISION MAKING
(A) DECISIONS REQUIRING CONSENT OF ALL THE BANKS AND THE STANDBY
LENDER
Save as expressly provided in Clause 25.2(B) or as otherwise
expressly provided herein, any proposed course of action in
connection with any matter requiring the consent of the Banks
and the Standby Lender under or in connection howsoever with
this Agreement or any other Security Document shall only be
taken with the consent of all the Banks and the Standby Lender
including, but without limitation to the generality of the
foregoing:-
(i) (save as required by the terms of the Security Documents)
the release of any of the Security Documents or the
release of any Security Party from any of its obligations
hereunder or under any other Security Document;
(ii) the amendment of any of the provisions of this Agreement
or any other of the Security Documents;
(iii) any time or other indulgence to be granted to the
Borrower or any other Security Party in respect of its
obligations under any of the Security Documents.
(B) DECISIONS REQUIRING CONSENT OF THE MAJORITY BANKS
Proposals in connection with the following matters shall, in the
absence of agreement thereon by all of the Banks and the Standby
Lender or as otherwise provided in this Agreement, be determined
by the Majority Banks:-
(i) the making of any declaration by the Agent under Clause
19.2;
(ii) the institution of any legal proceedings for the
enforcement of any rights or powers whatsoever pursuant
to the terms of this Agreement or any other of the
Security Documents;
(iii) any course of action whatsoever from time to time (other
than the making of a demand for payment hereunder)
whether of a legal or commercial nature or otherwise
howsoever for the purpose of achieving a full or partial
recovery of any principal, interest or other amount due
and payable by the Borrower hereunder or otherwise in
connection therewith following the making of a
declaration by the Agent under Clause 19.2;
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(iv) any other matter in respect of which this Agreement or
any other Security Document expressly provides that the
consent of the Majority Banks shall be required.
(C) METHOD OF SOLICITING AGREEMENT
Any determination of the Banks and the Standby Lender shall be
ascertained by the Agent or the Security Agent (as the case
may be) either:-
(i) by means of a telefax sent by the Agent or the Security
Agent (as the case may be) to each of the Banks and the
Standby Lender in identical terms on the proposal or
matter in issue; or
(ii) by means of the vote of representatives of each Bank and
the Standby Lender at a meeting convened by the Agent or
the Security Agent (as the case may be) and held for the
purpose of discussing (inter alia) such proposal or
matter in issue.
Furthermore, it is hereby agreed by the Banks and the Standby
Lender that:-
(a) where a decision of the Banks and the Standby
Lender is sought by the Agent or the Security
Agent by means of a telefax sent in accordance
with paragraph (i) above and provided that the
Agent or Security Agent (as appropriate) verifies
forthwith by telephone with each relevant Bank and
the Standby Lender that it has received such
telefax in good order and provided further that
such telefax states that it is issued in
accordance with this Clause 25.2(C) and states the
consequences to the recipient of failing to
respond, then the Agent or Security Agent (as the
case may be) may in its telefax:-
(i) recommend a proposed course of action to
be taken by the Banks and the Standby
Lender; and
(ii) specify a time limit (of not less than
three (3) Banking Days) within which the
Banks and the Standby Lender are required
to respond to the Agent's or Security
Agent's recommendation
so that, if any Bank or the Standby Lender fails
to notify the Agent or Security Agent (as
appropriate) within such time limit of its
response to the recommendation, such Bank or
Standby Lender shall be deemed to have accepted
and approved the course of action proposed by the
Agent or the Security Agent (as the case may be);
and
(b) where the approval of the Majority Banks is
required in respect of any matter, the approval
shall be deemed to have been given as soon as the
Agent or the Security Agent (as the case may be)
receives the requisite number of votes in favour
of the proposal so that the Agent or Security
Agent may act on the basis of such votes without
having to wait for the response of (or to give any
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notification to) any other Bank or the Standby
Lender who has yet to reply to the Agent or
Security Agent.
25.3 THE AGENT
(A) APPOINTMENT OF THE AGENT
Each of the Banks, the Issuing Banks, the Standby Lender, the
Co-Arrangers and the Security Agent hereby appoints the Agent to
act as its agent under this Agreement with such rights, powers
and discretions as are expressly delegated to the Agent
hereunder.
(B) OBLIGATIONS OF THE AGENT
The Agent shall:-
(i) promptly inform the Banks, the Issuing Banks and the
Standby Lender of the contents of any notice or request
received by it from the Borrower or any other Security
Party under the Security Documents (whether such notice
or request is addressed to the Agent alone or the Agent
on behalf of the Banks, the Issuing Banks, the Standby
Lender and/or the Security Agent) and of any information
delivered to it pursuant to Clause 14.2(C) and of any
other matters which the Agent considers material;
(ii) promptly deliver to the Banks, the Issuing Banks and the
Standby Lender copies of any accounts and certificates
delivered to it pursuant to Clause 14.2 and, as soon as
reasonably practicable after the Availability Date,
copies of the documents delivered in satisfaction of the
requirements of Schedule 8;
(iii) promptly inform the Banks, the Issuing Banks and the
Standby Lender in reasonable detail of any exercise by it
of any of the rights, powers and/or discretions vested in
it hereunder (but without the Agent being under any
obligation to give prior notice to the Banks, the Issuing
Banks or the Standby Lender of any such exercise);
(iv) promptly notify the Banks, the Issuing Banks and the
Standby Lender of the occurrence of any Default or any
other default by a Security Party in the due performance
of or compliance with its material obligations under any
of the Security Documents of which the Agent has actual
knowledge or actual notice and the occurrence of which
the Agent has verified;
(v) if directed by the Majority Banks, exercise (or refrain
from exercising) any right, power or discretion vested in
it hereunder in accordance with the directions (subject
to Clause 25.2(A)) of the Majority Banks provided,
however, that it may refrain from acting in accordance
with any such directions until it has received such
security as it may require (whether by way of payment in
advance or otherwise) for all costs, claims, expenses
(including legal fees) and liabilities which it will or
may expend or incur in complying with such directions and
for this purpose the Agent shall make a demand for such
security addressed to all the Banks and the Standby
Lender;
154
(vi) receive from the Borrower all payments of principal,
interest and other moneys expressed to be payable to the
Agent hereunder on behalf of all or any of the Banks, the
Issuing Banks, the Standby Lender, the Co-Arrangers
and/or the Security Agent and shall receive from the
Security Agent the proceeds of realisation of the
securities constituted by the Security Documents and
shall promptly distribute the same amongst the Banks, the
Issuing Banks, the Standby Lender, the Co-Arrangers, the
Security Agent and itself in accordance with the terms of
this Agreement pending which the Agent shall hold any and
all such moneys on trust for the Banks, the Issuing
Banks, the Standby Lender, the Co-Arrangers, the Security
Agent and itself.
(C) RELATIONSHIP OF AGENT AND PRINCIPAL
The relationship between the Agent on the one part and each
Bank, each Issuing Bank, the Standby Lender, the Co-Arrangers
and the Security Agent on the other is that of agent and
principal and, except in relation to any moneys referred to in
Clause 25.3(B)(vi) held by the Agent pending distribution
hereunder, the Agent shall not have a fiduciary relationship
with or be, or be deemed to be, a trustee of or for any such
party.
25.4 THE SECURITY AGENT
(A) APPOINTMENT OF THE SECURITY AGENT
Each of the Banks, the Issuing Banks, the Standby Lender, the
Co-Arrangers and the Agent hereby appoints the Security Agent to
act for and on its behalf as its trustee in connection with this
Agreement and the other Security Documents and authorises the
Security Agent to enter into each of the Security Documents and
exercise such rights, powers and discretions as are specifically
delegated to it by the terms thereof together with such rights,
powers and discretions as are reasonably incidental thereto.
(B) THE TRUST PROPERTY
In this Clause 25 the expression "TRUST PROPERTY" shall mean:-
(i) all rights, title and interests that may at any time be
or have been granted, mortgaged, charged or assigned in
favour of the Security Agent pursuant to the Security
Documents (except to the extent that such rights, title
and/or interests are intended to be for the sole benefit
or protection of the Security Agent);
(ii) all moneys which are received or recovered by or on
behalf of the Security Agent under or by virtue of any
right, title and/or interest described in paragraph (i)
above; and
(iii) all moneys and other assets accrued on, or derived from,
any moneys described in paragraph (ii) above but shall
not include any moneys which the Security Agent has
transferred to the Agent or (being entitled to do so) has
retained in accordance with the provisions of Clause
25.4(D).
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(C) DECLARATION OF TRUST
The Security Agent shall hold the Trust Property for the benefit
of each of the Banks, the Issuing Banks, the Standby Lender, the
Co-Arrangers, the Agent and itself from time to time upon the
trusts and in accordance with the provisions contained in this
Clause 25 and the obligations, rights and benefits vested or to
be vested in the Security Agent by this Agreement, any other
Security Document or any document entered into pursuant hereto
or thereto shall (as well before as after enforcement) be
performed and (as the case may be) exercised in accordance with
the provisions of this Clause 25.
(D) APPLICATION OF MONEYS
Save as expressly stated to the contrary herein or in any other
Security Document, any moneys received or recovered by the
Security Agent and which form part of the Trust Property shall
(without prejudice to the rights of the Security Agent pursuant
to any Security Document to credit any moneys received by it to
any suspense account) be transferred forthwith to the Agent for
distribution in accordance with the relevant provisions of this
Agreement
Provided however that, before transferring such moneys to the
Agent, the Security Agent shall be entitled to deduct therefrom
any sum then properly due and payable under this Agreement or
any other Security Document to the Security Agent or any
receiver, attorney, agent, delegate or other person appointed by
it and retain that sum for its own account or (as the case may
be) remit such sum to the other person to whom it is then due
and payable.
For as long as Svenska Handelsbanken AB (publ) continues to act
as both Agent and Security Agent (or at any other time when any
single bank shall act in both such capacities) it shall be
sufficient for the purposes of complying with this Clause
25.4(D) for the moneys concerned to be credited to the account
kept by the Agent for the purposes of dealing with amounts
received by it under or pursuant to the Security Documents.
(E) DUTIES OF THE SECURITY AGENT
In addition to its obligations under Clause 25.4(D) the Security
Agent shall:-
(i) promptly inform the Banks, the Issuing Banks and the
Standby Lender of the contents of any notice or request
received by it from the Borrower or any other Security
Party under the Security Documents and of any other
matters which the Security Agent considers material;
(ii) promptly inform the Banks, the Issuing Banks and the
Standby Lender in reasonable detail of any exercise by it
of any of the rights, powers and/or discretions vested in
it hereunder (but without the Security Agent being under
any obligation to give prior notice to the Banks, the
Issuing Banks or the Standby Lender of any such
exercise);
(iii) promptly notify the Banks, the Issuing Banks and the
Standby Lender of the occurrence of any Default or any
other default by a Security Party in the due performance
of or compliance with its material obligations under any
of the Security Documents of which the Security Agent has
actual
156
knowledge or actual notice and the occurrence of which
the Security Agent has verified;
(iv) if directed by the Majority Banks, exercise (or refrain
from exercising) any right, power or discretion vested in
it hereunder in accordance with the directions (subject
to Clause 25.2(A)) of the Majority Banks provided,
however, that it may refrain from acting in accordance
with any such directions until it has received such
security as it may require (whether by way of payment in
advance or otherwise) for all costs, claims, expenses
(including legal fees) and liabilities which it will or
may expend or incur in complying with such directions and
for this purpose the Security Agent shall make a demand
for such security addressed to all the Banks and the
Standby Lender.
(F) POWERS AND DISCRETIONS OF THE SECURITY AGENT
The Security Agent shall have all the powers and discretions
conferred upon a trustee by the Trustee Xxx 0000 and/or any
other relevant legislation from time to time in force (to the
extent not inconsistent herewith) and upon a receiver appointed
under the Security Documents or any of them (as though the
Security Agent were a receiver thereunder).
(G) DELEGATION OF POWERS; APPOINTMENT OF CO-TRUSTEES
The Security Agent shall be entitled:-
(i) whenever it thinks fit, to delegate by power of attorney
or otherwise to any person or persons all or any of the
rights, trusts, powers, authorities and discretions
vested in it by this Agreement or any other Security
Document and such delegation may be made upon such terms
and subject to such conditions and subject to such
regulations as the Security Agent may think fit and the
Security Agent shall not be bound to supervise the
proceedings or be in any way responsible for any loss
incurred by reason of any misconduct or default on the
part of any such delegate or sub-delegate provided that
the Security Agent shall have acted reasonably in making
such delegation to such delegate and the Security Agent
shall promptly give notice to each of the Banks, the
Issuing Banks, the Standby Lender, the Co-Arrangers and
the Agent of the appointment of any delegate or such
delegate as aforesaid; and
(ii) with the prior consent of the Majority Banks and the
Borrower, to appoint (and subsequently to dismiss) such
other person or persons as it thinks fit to become
additional trustees hereunder (but so that there shall
not be more than two trustees at any time) to assist it
in carrying out its rights and duties hereunder and under
the other Security Documents and each such additional
trustee shall be entitled to the same rights and subject
to the same obligations hereunder as the Security Agent.
(H) AUTHORITY TO ENTER INTO DOCUMENTS AND GRANT WAIVERS
Each of the Banks, the Issuing Banks, the Standby Lender, the
Co-Arrangers and the Agent hereby authorises the Security
Agent:-
157
(i) to enter into the SIBV $275m Facility Intercreditor
Agreement;
(ii) to enter into any amendment to any Security Document or
to grant any waiver of any obligation of any Security
Party under any Security Document which in either case
has either been approved by the Banks or is, in the
unfettered opinion of the Security Agent, of a minor or
technical nature and not likely to have any material
effect on the obligation of the relevant Security Party
under the relevant Security Document;
(iii) to enter into any quiet enjoyment undertaking as
contemplated by Clause 16.15; and
(iv) to enter into a tripartite agreement with Stena Ferries
Limited as owner and P&O Ferries Limited as bareboat
charterer in respect of m.v. "P O AQUITAINE"
substantially in the form set out in Schedule 24 to the
Agreed Form Certificate.
(I) SECURITY AGENT TO BE CREDITOR
The parties hereto agree that for the purpose of enforcing
rights established under the Security Documents in the
Netherlands, to the extent Netherlands law will apply thereto,
the Security Agent will be the joint creditor of each and every
obligation of the Borrower towards the Banks, the Issuing Banks,
the Standby Lender, the Co-Arrangers and the Agent under this
Agreement, so that the Security Agent will have its own
independent right to demand performance by the Borrower of each
such obligation but so that payment to the Security Agent will
serve as payment to the Banks, the Issuing Banks, the Standby
Lender, the Co-Arrangers and the Agent (as appropriate) and
payment to any of the Banks, the Issuing Banks, the Standby
Lender, the Co-Arrangers and the Agent will serve as payment to
the Security Agent.
(J) WINDING-UP OF TRUSTS
If:-
(i) all of the liabilities of the Borrower secured under the
Security Documents have been fully and finally
discharged; and
(ii) no future or contingent liability remains outstanding;
and
(iii) the Security Agent is satisfied that there is no
substantial risk of any payment or other transaction
under this Agreement or any other Security Document being
set aside in any liquidation or insolvency of the
Borrower or any other Security Party which has previously
occurred or may later occur
then the trusts herein created shall be wound-up and the
Security Agent shall release, without recourse or warranty, all
security granted to it pursuant to the Security Documents then
held by it, whereupon the Security Agent, the Banks, the Issuing
Banks, the Standby Lender, the Co-Arrangers and the Agent shall
each be released from their respective obligations under this
Clause 25.4 (except those which arose prior to such winding-up).
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(K) PERPETUITY PERIOD
The perpetuity period under the rule against perpetuities if
applicable to the Trust Property shall be the period of eighty
(80) years from the date of this Agreement.
(L) GOVERNING LAW
The trusts created by this Clause 25 shall be governed by and
construed in accordance with English law.
25.5 THE AGENT AND SECURITY AGENT: COMMON PROVISIONS
(A) POWERS OF THE AGENT AND SECURITY AGENT GENERALLY
In addition to the powers expressly given to the Agent and/or
the Security Agent by this Agreement:-
(i) the Banks and the Standby Lender may give the Agent
and/or the Security Agent (generally or in any particular
case) any powers which the Banks and the Standby Lender
consider appropriate; and
(ii) each of the Agent and the Security Agent has power to
take any other action which it considers to be reasonably
incidental or conducive to the performance of its
functions under this Agreement or otherwise appropriate
in the context of those functions, including the exercise
of any powers given to it by the Banks and the Standby
Lender.
(B) EXERCISE OF THE AGENT'S AND SECURITY AGENT'S POWERS
The rights, powers and discretions vested in the Agent and the
Security Agent by this Agreement and/or the other Security
Documents shall only be exercised by the Agent or the Security
Agent (as the case may be) in accordance with the instructions
of the Majority Banks or (if so required in accordance with the
provisions of Clause 25.2(A)) the Banks and the Standby Lender
provided however that the Agent and the Security Agent shall
each be entitled (but not bound) to exercise or refrain from
exercising any such right, power or discretion without the
directions of the Majority Banks or the Banks and the Standby
Lender (as the case may be) if the Agent or Security Agent (as
appropriate) believes that the immediate exercise of such right,
power or discretion is necessary or desirable to protect the
interests of the Banks and the Standby Lender under or in
respect of the Security Documents or to protect or preserve the
security afforded thereby.
Where any right, power or discretion is vested in the Security
Agent under this Agreement or any other Security Document but is
expressed as being exercisable in accordance with the directions
of the Banks and the Standby Lender or the Majority Banks, such
right, power or discretion shall not be exercised by the
Security Agent without the lawful directions of the Banks and
the Standby Lender or the Majority Banks (as the case may be).
(C) LIMIT OF AGENT'S AND SECURITY AGENT'S OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied
herein or in any other Security Document, neither the Agent nor
the Security Agent shall:-
159
(i) be bound to enquire as to the occurrence or otherwise of
any Default or as to the performance by any Security
Party of its obligations under any of the Security
Documents;
(ii) be bound to disclose to any other person any information
relating to any Security Party if such disclosure would
or might in its opinion constitute a breach of any law or
regulation or be otherwise actionable at the suit of any
person;
(iii) have any responsibility to the Banks, the Issuing Banks,
the Standby Lender, the Co-Arrangers or each other for:-
(a) the financial position, creditworthiness, affairs
or prospects of any of the Security Parties;
(b) the performance or non-performance howsoever by
any of the Security Parties of any of their
obligations hereunder or under any of the Security
Documents;
(c) the due execution, effectiveness, genuineness,
validity or enforceability of any of the Security
Documents or any document relating thereto or any
filing or recording thereof or the taking of any
other action whatsoever and howsoever in
connection therewith or the collectability of any
sum due thereunder;
(d) any computations and/or information supplied to
the Banks, the Issuing Banks and/or the Standby
Lender by the Agent or the Security Agent in
reliance upon which the Banks, the Issuing Banks
and/or the Standby Lender have entered into this
Agreement;
(iv) be under any liability whatsoever for any consequence of
relying on:-
(a) any written communication or document believed by
it to be genuine or correct and to have been
communicated or signed by the person by whom it is
purported to have been communicated or signed; or
(b) the advice or opinions of any professional
advisers selected by it;
(v) be under any duty to account to any Bank, any Issuing
Bank, the Standby Lender, the Co-Arrangers or each other
for any sum received by it for its own account or the
profit element of any such sum;
(vi) be under any obligation other than those for which
express provision is made herein.
(D) RIGHTS OF THE AGENT AND SECURITY AGENT
Each of the Agent and Security Agent may:-
(i) carry out its duties hereunder through such officers,
directors, employees, consultants or independent agents
as it may in its unfettered discretion think fit;
160
(ii) assume that no Default has occurred and that none of the
Security Parties is in breach of its obligations under
any of the Security Documents unless the Agent or the
Security Agent (as the case may be) has actual knowledge
or actual notice to the contrary;
(iii) engage and pay for the advice or services of any internal
or external lawyers, accountants, surveyors or other
experts whose advice or services may to it seem
necessary, expedient or desirable and rely upon any
advice so obtained;
(iv) rely as to any matters of fact which might reasonably be
expected to be within the knowledge of any Security Party
upon a certificate signed by or on behalf of that
Security Party;
(v) rely upon any communication or document believed by it to
be genuine.
(E) RESPONSIBILITIES OF THE BANKS, THE ISSUING BANKS, THE STANDBY
LENDER AND THE CO-ARRANGERS
It is understood that each of the Banks, the Issuing Banks, the
Standby Lender and the Co-Arrangers has itself been, and will
continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial
condition, creditworthiness, condition, affairs, status and
nature of each Security Party and, accordingly, each of the
Banks, the Issuing Banks, the Standby Lender and the
Co-Arrangers warrants to both the Agent and the Security Agent
that it has not relied and will not rely on the Agent or the
Security Agent:-
(i) to check or enquire on its behalf into the adequacy,
accuracy or completeness of any information provided by
any Security Party in connection with this Agreement or
any other Security Document; or
(ii) to assess or keep under review on its behalf the
financial condition, creditworthiness, condition,
affairs, status or nature of any Security Party.
(F) ADMINISTRATION
Subject to the terms of this Agreement, this Agreement and the
other Security Documents shall be serviced, supervised and
administered by the Agent and the Security Agent respectively in
the ordinary course of its business and in accordance with its
usual practices. In performing its duties and functions
hereunder, the Agent or the Security Agent (as the case may be)
shall exercise the same care as it normally exercises in making
and administering loans for its own account, but assumes no
further responsibility in respect of such performance.
(G) LIMITATION OF LIABILITY
Neither the Agent nor the Security Agent shall be under any
liability as a result of taking or omitting to take any action
in relation to this Agreement or any other Security Document
save in the case of gross negligence or wilful misconduct and
neither the Banks, the Issuing Banks, the Standby Lender nor the
Co-Arrangers will assert or seek to assert against any director,
officer or employee of the Agent or the Security Agent (as the
case may be) any claim they might have against any of them in
respect of the matters referred to in this Clause 25.5(G).
161
(H) NO RESTRICTION ON OTHER BUSINESS
Neither the Agent nor the Security Agent (nor any officer
thereof) shall be precluded by reason of so acting from
underwriting, guaranteeing the subscription of or subscribing
for or otherwise acquiring, holding or dealing with any
debentures, shares or securities whatsoever of any Security
Party or from entering into any contract or financial or other
transaction with or from engaging in any banking or other
business with any Security Party and shall not be liable to
account for any profit made or payment received by it thereby or
in connection therewith.
25.6 RETIREMENT AND REPLACEMENT OF THE AGENT AND THE SECURITY AGENT
(A) Either or both of the Agent and the Security Agent may retire at
any time without assigning any reason by giving to the Borrower,
the Banks, the Issuing Banks, the Standby Lender and the
Security Agent or Agent (as the case may be) not less than
thirty (30) days notice of its intention to do so. Unless the
Agent or Security Agent (as appropriate) in its notice of
retirement nominates any of its associated companies to be its
successor, the successor Agent or Security Agent may be
appointed by the Majority Banks (with the prior written consent
of the Borrower, such consent not to be unreasonably withheld or
delayed) during such thirty (30) day period provided that,
should they fail to do so, the Agent or the Security Agent (as
the case may be) may then appoint as its successor a reputable
and experienced bank with an office in London.
(B) If any Bank is dissatisfied with the Agent and/or the Security
Agent and wants it to be replaced, such Bank shall consult with
the other relevant Banks and the Borrower for a period of up to
thirty (30) days to decide whether the Agent and/or the Security
Agent should be replaced and, if so, by whom (such replacement
being one of the relevant Banks or an associated company
thereof). If at the end of such period the relevant Banks
unanimously agree that the Agent and/or the Security Agent (as
the case may be) should be replaced by a particular Bank or one
of its associated companies, and if the Borrower consents in
writing to the identity of the proposed replacement (such
consent (i) not to be unreasonably withheld and (ii) not to be
required if an Event of Default has occurred and is continuing),
then notice shall be given by the relevant Banks to the Agent
and/or the Security Agent (as the case may be) specifying the
date, being not fewer than five (5) Banking Days after the date
of such notice, on which the appointment of the successor Agent
and/or Security Agent is, subject to Clause 25.6(D), to take
effect.
(C) For the purposes of this Clause 25.6(A):-
(i) an "ASSOCIATED COMPANY" of the Agent or Security Agent or
any Bank shall mean any company which is a holding
company of the Agent or Security Agent or such Bank (as
the case may be) or a wholly-owned subsidiary of it or
its parent company; and
(ii) "RELEVANT BANKS" means all of the Banks other than that
Bank which acts as Agent or (as the case may be) Security
Agent or whose associated company acts in such capacity.
162
(D) Any appointment of a successor Agent or Security Agent under
Clause 25.6(A) or (B) shall take effect upon:-
(i) the successor confirming in writing its agreement to be
bound by the provisions of this Agreement; and
(ii) notice thereof by the Agent or Security Agent and its
successor (which notice, in the case of a new Agent,
shall specify the bank in New York to which payments to
the new Agent shall be made thereafter) being given to
each of the other parties to this Agreement and/or the
other Security Documents; and
(iii) in the case of a new Security Agent, the outgoing
Security Agent has transferred to its successor all of
its rights and obligations under the Security Documents.
(E) If a successor to the Agent or Security Agent is appointed under
the provisions of this Clause 25.6:-
(i) the outgoing Agent or Security Agent (as the case may be)
shall be discharged from any further obligation under
this Agreement;
(ii) its successor and each of the other parties hereto shall
have the same rights and obligations amongst themselves
as they would have had if such successor had been a party
hereto in place of the outgoing Agent or Security Agent
(as the case may be);
(iii) Clause 25 and the other provisions of this Agreement
shall remain in effect for the benefit and protection of
the outgoing Agent or Security Agent (as the case may be)
in relation to any claim or loss which may be brought
against or incurred by it in connection with or as a
result of any act, omission, breach, neglect or other
occurrence or matter relating to or arising out of this
Agreement which took place before its resignation.
26 NOTICES AND OTHER MATTERS
26.1 NOTICES
Every notice, request, demand or other communication under this
Agreement or (unless otherwise provided therein) under any of the other
Security Documents shall:-
(A) be in writing delivered personally or by first-class prepaid
letter (airmail if available) or facsimile transmission or other
means of telecommunication in permanent written form provided
that any communication by facsimile transmission shall be
confirmed forthwith by letter;
(B) be deemed to have been received, subject as otherwise provided
in the relevant Security Document, in the case of a letter, when
delivered personally or 5 days after it has been put in to the
post and, in the case of a facsimile transmission or other means
of telecommunication in permanent written form, at the time of
despatch (provided that if 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
163
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) be sent:-
(i) to the Borrower at:-
Xxxxxxxxxxxxx 00
XX-0000 Xxx
Xxxxxxxxxxx
Fax: 00 00 000 0000
Marked for attention: Jan Larsson
with a copy to the Borrower at:-
World Trade Centre
Amsterdam Airport
Schipol Xxxxxxxxx 000
0000 XX Xxxxxxx Xxxxxxx
Xxx Xxxxxxxxxxx
Fax: 00 00 000 0000
Marked for attention: Deputy General Manager
(ii) to Stena AB at:-
Xxxxxxxxxxxxxx
XX-000 00 Xxxxxxxx
Xxxxxx
Fax: 00 00 000000
Marked for attention: Finance Manager
(iii) to the Agent, the Security Agent and the Standby Lender
at:-
Svenska Handelsbanken AB (publ)
Regional Bank of Western Sweden
XX-000 00 Xxxxxxxx
Xxxxxx
Fax: 00 00 000 0000
Marked for attention: RVIC XXXXX 000
000
(xx) to the New Guarantee Provider at:-
Nordea Bank Sverige AB (publ)
Xxxxx Xxxxxxxxx 00
XX-000 00 Xxxxxxxx
Xxxxxx
Fax: 00 00 000 0000
Marked for attention: Nordea Shipping Offshore and Oil
Services
(v) to the Existing Guarantee Provider at:-
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Fax: 00 00 0000 0000
Marked for attention: Xxxxxx Xxxxxxx
(vi) to each Bank or Co-Arranger at its address and fax number
specified in Schedule 1 or in any relevant Transfer
Certificate,
or to such other address and/or number as is notified by one
party to the other party under this Agreement;
(D) be sent by the Borrower or Stena AB to the Banks, the relevant
Issuing Bank, the Standby Lender or the Co-Arrangers by sending
the same to the Agent and by the Banks, the Issuing Banks, the
Standby Lender and the Co-Arrangers to the Borrower and Stena AB
by forwarding the same through the Agent.
26.2 NO IMPLIED WAIVERS, REMEDIES CUMULATIVE
No failure or delay on the part of the Agent, the Co-Arrangers, the
Security Agent, the Issuing Banks, the Standby Lender, the Banks or any
of them to exercise any power, right or remedy under any of the
Security Documents shall operate as a waiver thereof, nor shall any
single or partial exercise by the Agent, the Co-Arrangers, the Security
Agent, the Issuing Banks, the Standby Lender, the Banks 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.
26.3 FURTHER ASSURANCE
The Borrower and Stena AB undertake 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 the rights of
the Agent, the Security Agent, the Issuing Banks, the Standby Lender,
the Banks and the Co-Arrangers thereunder enforceable in accordance
with their respective terms and that they will, at their 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
165
the Agent may be necessary or desirable for perfecting the security
contemplated or constituted by the Security Documents.
26.4 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 Agent shall be entitled to rely.
26.5 THIRD PARTY RIGHTS
A person (including any body of persons) who is not a party to this
Agreement has no right under the Contracts (Rights of Third Parties)
Xxx 0000 to enforce any term of this Agreement but this does not affect
any right or remedy of a third party which exists or is available apart
from that Act.
27 GOVERNING LAW AND JURISDICTION
27.1 LAW
This Agreement is governed by and shall be construed in accordance with
English law.
27.2 SUBMISSION TO JURISDICTION
The Borrower and Stena AB each agree, for the benefit of the Agent, the
Co-Arrangers, the Security Agent, the Issuing Banks, the Standby Lender
and the Banks, that any legal action or proceedings arising out of or
in connection with this Agreement against the Borrower or Stena AB or
any of its assets may be brought in the English courts. The Borrower
and Stena AB each hereby irrevocably and unconditionally submits to the
jurisdiction of such courts and irrevocably designates, appoints and
empowers Stena (UK) Limited at present of 0/0 Xxxxxxxxx Xxxxxx, Xxxxxx
XX0 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) limit the right of the Agent, the Co-Arrangers, the Security
Agent, the Issuing Banks, the Standby Lender or the Banks to take
proceedings against the Borrower and Stena AB 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 or Sweden and not those of any
other State shall have jurisdiction to determine any claim which the
Borrower or Stena AB may have against the Agent, the Co-Arrangers, the
Security Agent, the Issuing Banks, the Standby Lender or any Bank
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 as a deed on the date first written above.
166
SCHEDULE 1
THE BANKS AND THEIR COMMITMENTS
==================================================================================================================
NAME ADDRESS AND FAX NUMBER COMMITMENT PERCENTAGE
$ %
------------------------------------------------------------------------------------------------------------------
JPMorgan Xxxxx Xxxx 000 Xxxxxx Xxxx 33,000,000 5.789474
Xxxxxx XX0X 0XX
Xxxxxxx
Fax: 00 00 0000 0000
Attention: Xxxxxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------
Svenska Handelsbanken AB (publ) Xxxxx Xxxxxxxxx 00 90,000,000 15.789474
XX-000 00 Xxxxxxxx
Xxxxxx
Fax: 00 00 000 0000
Attention: RVIC STBNL 675
------------------------------------------------------------------------------------------------------------------
Nordea Bank Sverige Xxxxx Xxxxxxxxx 00 120,000,000 21.052632
AB (publ) XX-000 00 Xxxxxxxx
Xxxxxx
Fax: 00 00 000 0000
Attention: NORDEA Shipping
Offshore and Oil Services
------------------------------------------------------------------------------------------------------------------
HSBC Bank plc Transport Industries 32,700,000 5.736842
Corporate & Industrial Banking
3rd Floor, 00-00 Xxxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Fax: 00 00 0000 0000
Attention: Simon Deefholts
------------------------------------------------------------------------------------------------------------------
Landesbank Schleswig-Holstein Martensdamm 6 32,700,000 5.736842
Girozentrale X-00000 Xxxx
Xxxxxxx
Fax: 00 000 000 0000
Attention: Shipping
Department- Xxxxxxxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------
The Governor and Company of the 2nd Floor, New Uberior House 32,700,000 5.736842
Bank of Scotland 00 Xxxx Xxxx Xxxxxx
Xxxxxxxxx XX0 0XX
Xxxxxxxx
Fax: 00 000 000 0000
Attention: Shipping Finance
------------------------------------------------------------------------------------------------------------------
167
==================================================================================================================
NAME ADDRESS AND FAX NUMBER COMMITMENT PERCENTAGE
$ %
------------------------------------------------------------------------------------------------------------------
Den norske Bank ASA Stranden 21 32,700,000 5.736842
X-0000 Xxxx
Xxxxxx
Fax: 00 00 00 00 00
Attention: Credit
Administration Shipping
------------------------------------------------------------------------------------------------------------------
Scotiabank Europe plc Scotia House 32,700,000 5.736842
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Fax: 00 00 0000 0000
Attention: Xxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------
Skandinaviska Enskilda Xxxxxx XX Xxxxx Xxxxxxxxx 00 32,700,000 5.736842
(publ) X-000 00 Xxxxxxxx
Xxxxxx
Fax: 00 00 00 00 00
Attention: PSF/Shipping
------------------------------------------------------------------------------------------------------------------
ABN AMRO Bank N.V. X.X. Xxx 000 32,700,000 5.736842
3000 DD Rotterdam
The Netherlands
Fax: 00 00 000 0000
Attention: Mr X X van Mastrigt
And
Fax: 00 00 000 0000
Attention: Mr P van der Have
------------------------------------------------------------------------------------------------------------------
Nedship Bank N.V. acting through X.X. Xxx 000, 32,700,000 5.736842
Xxxxxxx Xxxx (Xxxxxx) 0000 Xxxxxx
Xxxxxx
Fax: 00 00 00 00 00
Attention: Xx Xxxxxx Xxxxx/Xx Xxx
Xxxxx
------------------------------------------------------------------------------------------------------------------
Citibank, N.A. 33 Canada Square 32,700,000 5.736842
Xxxxxx Xxxxx
Xxxxxx X0 0XX
Fax: 00 00 0000 0000
Attention: Xxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------
Deutsche Bank AG Brandstwiete 1 32,700,000 5.736842
In Hamburg X-00000 Xxxxxxx
Xxxxxxx Xxxxxxxx of Germany
Fax: 00 00 0000 0000
Attention: International Ship
Financing, Xxxxxx Xxxx
==================================================================================================================
TOTAL 570,000,000 100
==================================================================================================================
168
SCHEDULE 2
THE SHIPS - PART A
-----------------------------------------------------------------------------------------------------------
NAME SHIPOWNERS CLASSIFICATION
-----------------------------------------------------------------------------------------------------------
P O Aquitaine Stena Ferries Limited LR + 100A1 Ro-Ro Passenger and Vehicle
(tbr Pride of aquitaine) Ferry LMC UMS
-----------------------------------------------------------------------------------------------------------
Stena Clipper Stena Admiral Line Limited ABS + A1 (E) +AMS+ACCU
-----------------------------------------------------------------------------------------------------------
Stena XXXXX Stenloyal Limited DNV +1A1 Column Stabilised Drilling Unit
-----------------------------------------------------------------------------------------------------------
STENA DEE Stena Drilling Limited DNV +1A1 Column Stabilised Drilling Unit
DRILL
-----------------------------------------------------------------------------------------------------------
STENA DON Stena Don LLC DNV +1A1 Column Stabilised Unit, Drilling
Unit, Structure (N), DRILL (N), E0,
DYNPOS-AUTRO, CRANE, HELDK
-----------------------------------------------------------------------------------------------------------
STENA NAUTICA Stena Nautica Line Limited BV I + HULL + MACH Ro-Ro Passenger Ship
Unrestricted Navigation Ice Class IB +
AUT-UMS
-----------------------------------------------------------------------------------------------------------
STENA SAGA Stena Rederi AB LR + 100A1 Ferry, Ice Class 1A Super,
+LMC, UMS, with descriptive note
ShipRight SCM
-----------------------------------------------------------------------------------------------------------
STENA SHIPPER Freehaven Ltd. GL +100A5 E1 Ro-Ro Ship Equipped for
Carriage of Containers
-----------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CLASSIFICATION OFFICIAL NO./CALL FLAG
SOCIETY SIGN
--------------------------------------------------------------------------------
Lloyds Register of Shipping 731221 Bermudan
--------------------------------------------------------------------------------
American Bureau of Shipping 726099 Bahamian
--------------------------------------------------------------------------------
Det norske Veritas 376547 British
--------------------------------------------------------------------------------
Det norske Veritas 701160 British
--------------------------------------------------------------------------------
Det norske Veritas 731309 Bermudan
--------------------------------------------------------------------------------
Bureau Veritas SCQU Swedish
--------------------------------------------------------------------------------
Lloyds Register of Shipping SLVH Swedish
--------------------------------------------------------------------------------
Germanischer Xxxxx 902333 British
--------------------------------------------------------------------------------
169
-----------------------------------------------------------------------------------------------------------
NAME SHIPOWNERS CLASSIFICATION
-----------------------------------------------------------------------------------------------------------
STENA SPEY Stena HSD Limited DNV +1A1 Column Stabilised Drilling
-----------------------------------------------------------------------------------------------------------
STENA Tay Stena Tay Limited DNV +1A1 Column Stabilised Drilling Xxxx,
X0, HELDK DYNPOS-AUTR
-----------------------------------------------------------------------------------------------------------
STENA TENDER Stena Tender Line Limited DNV +1A1 General Cargo Carrier Ro-Ro E0
-----------------------------------------------------------------------------------------------------------
STENA TIMER Stena Challenger Limited DNV +1A1 General Cargo Carrier Ro-Ro E0
-----------------------------------------------------------------------------------------------------------
STENA TRAVELLER Stena Rederi AB DNV +1A1 General Cargo Carrier Ro-Ro Car
Ferry A E0 ICE-1B
-----------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CLASSIFICATION OFFICIAL NO./CALL FLAG
SOCIETY SIGN
--------------------------------------------------------------------------------
Det norske Veritas 703396 British
--------------------------------------------------------------------------------
Det norske Veritas 731247 Bermudan
--------------------------------------------------------------------------------
Det norske Veritas 720026 Isle of Man
--------------------------------------------------------------------------------
Det norske Veritas 718104 Isle of Man
--------------------------------------------------------------------------------
Det norske Veritas SCQV Swedish
--------------------------------------------------------------------------------
170
THE SHIPS - PART B
----------------------------------------------------------------------------------------------------------
NAME SHIPOWNER CLASSIFICATION
----------------------------------------------------------------------------------------------------------
Stena Baltica Stena Line B.V. DNV+1A1 R280 Car Ferry A EO
----------------------------------------------------------------------------------------------------------
Stena Carisma Stena Line Scandinavia AB DNV+1A1 HSLC RI Car Ferry A EO ICS
----------------------------------------------------------------------------------------------------------
Stena Carrier Stena Line Shipholding B.V. LR+100 A1 Ice Class 1A+LMC+ UMS
----------------------------------------------------------------------------------------------------------
Stena Xxxxxx Stena Line Scandinavia AB DNV+1A1 Car Ferry A EO ICE-1B
----------------------------------------------------------------------------------------------------------
Stena Europe 33 shares - Stena Line DNV+1A1 Car Ferry A MCDK ICE- 1C
Shipholding B.V.
31 shares - Stena Line
Scandinavia AB
----------------------------------------------------------------------------------------------------------
Stena Freighter Stena Line Scandinavia AB LR+100 A1 Ice Class 1A +LMC+UMS
----------------------------------------------------------------------------------------------------------
Stena Germanica Scandlines AB LR+100 A1 Car Ferry, Ice Class 2+LMC and
UMS
----------------------------------------------------------------------------------------------------------
Stena Gothica Stena Line Shipholding B.V. DNV+1A1 MCDK EO
----------------------------------------------------------------------------------------------------------
Stena Scandinavica Stena Line Scandinavia AB LR+100 A1 Car Ferry, Ice Class 2+LMC and
UMS
----------------------------------------------------------------------------------------------------------
Stena Scanrail Stena Line Scandinavia AB BV 1 3/3 E Roll On Roll Off Deepsea ICE
III
----------------------------------------------------------------------------------------------------------
Stena Searider Stena Line Scandinavia AB DNV+1A1 Car and Train Ferry A EO ICE -1B
----------------------------------------------------------------------------------------------------------
Stena SeaTrader Stena Line B.V. DNV+1A1 ICE- A
----------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CLASSIFICATION OFFICIAL NO./CALL FLAG
SOCIETY SIGN
--------------------------------------------------------------------------------
Det norske Veritas 8000475 Bahamian
--------------------------------------------------------------------------------
Det norske Veritas SGFV Swedish
--------------------------------------------------------------------------------
Lloyds Register of Shipping SLUY Swedish
--------------------------------------------------------------------------------
Det norske Veritas SKFH Swedish
--------------------------------------------------------------------------------
Det norske Veritas 905449 British
--------------------------------------------------------------------------------
Lloyds Register of Shipping SEPG Swedish
--------------------------------------------------------------------------------
Lloyds Register of Shipping SKPZ Swedish
--------------------------------------------------------------------------------
Det norske Veritas SCQO Swedish
--------------------------------------------------------------------------------
Lloyds Register of Shipping XXXX Swedish
--------------------------------------------------------------------------------
Bureau Veritas SLBM Swedish
--------------------------------------------------------------------------------
Det norske Veritas 900102 British
--------------------------------------------------------------------------------
Det norske Veritas 904247 British
--------------------------------------------------------------------------------
171
SCHEDULE 3
COMMERCIAL DOCUMENTS
BAREBOAT CHARTERS MADE WITH STENA CHARTERERS
1 m.v. "STENA CLIPPER" A charterparty by way of demise dated 15 November
1994 made between (1) Stena Admiral Line Limited
("XXXX") as owner and (2) Stena Ferries Limited
("SFL") as charterer as amended by an addendum
no. 1 dated as of 15 November 1998 and an
addendum no. 2 dated as of 2 January 2002 each
made between (1) XXXX and (2) SFL.
A BALTIME 1939 time charter dated 15 November
1994 made between (1) SFL as disponent owner and
(2) Stena Rederi AB ("SRAB") as time charterer as
amended by an addendum no. 1 dated as of 15
November 1998 and an addendum no. 2 dated as of 1
January 2002 each made between (1) SFL and (2)
SRAB.
2 m.v. "STENA SHIPPER" A charterparty by way of demise dated 4 October
1994 made between (1) Stena Florida Line Limited
("SFLL") as owner and (2) SFL as charterer as
amended by an addendum No.1 dated as of 14 March
1995 made between (1) SFLL and (2) SFL, as
further amended and novated by an addendum No.2
dated 16 December 1999 made between (1) SFLL, (2)
Orondo Limited ("ORONDO") and (3) SFL (so as to
constitute a charter between (1) Orondo as owner
and (2) SFL as charterer), as further amended by
an addendum No.3 dated as of 17 May 2000, an
addendum No.4 dated 14 November 2000 each made
between (1) Orondo and (2) SFL and as further
amended and novated by an addendum No.5 dated 20
December 2001 made between (1) Orondo, and (2)
SFL and (3) Freehaven Ltd. ("FREEHAVEN") (so as
to constitute a charter between (1) Freehaven as
owner and (2) SFL as charterer).
3 m.v. "STENA SAGA" A BARECON 89 bareboat charter dated 19 June 1991
made between (1) SRAB as owner and (2) Sealink
U.K. Limited ("SEALINK") as charterer as amended
and novated by an addendum No.1 dated 3 March
1994 made between (1) SRAB, (2) Sealink (renamed
Stena Sealink Limited) and Stena Line AB ("SLAB")
(so as to constitute a charter between (1) SRAB
as owner and (2) SLAB as charterer), as further
amended by an addendum No.2 dated 13 April 1995
made between (1)
172
SRAB and (2) SLAB, as further amended by an
addendum No.3 dated 7 June 1995, an addendum No.4
dated 10 May 1996, an addendum No.5 dated 9 April
1997, an addendum No.6 dated 22 March 1999, each
between (1) SRAB and (2) SLAB, as further amended
and novated by an addendum No.7 dated 24
September 2001 made between (1) SRAB, (2) SLAB
(renamed Forvaltningsaktiebolaget Lastluckan AB
("FL")) and (3) Stena Line Scandinavia AB
("SLSAB") (so as to constitute a charter between
(1) SRAB as owner and (2) SLSAB as charterer) and
as further amended by an addendum No.8 dated 12
February 2002 made between (1) SRAB and (2)
SLSAB.
4 m.v. "STENA NAUTICA" A BARECON 89 bareboat charter dated 15 October
1997 made between (1) Stena Nautica Line Limited
("SNLL") as owner and (2) SLAB as charterer, as
amended by an addendum No.1 dated 26 March 1999
made between (1) SNLL and (2) SLAB, as amended
and novated by an addendum No.2 dated 28
September 2001 made between SNLL, (2) FL and (3)
SLSAB (so as to constitute a charter between (1)
SNLL as owner and (2) SLSAB as charterer), and as
further amended by an addendum No.3 dated 12
February 2002 made between (1) SNLL and (2)
SLSAB.
5 m.v. "STENA TRAVELLER" A BARECON 89 bareboat charter dated 21 December
2001 made between (1) SRAB as owner and (2) SLSAB
as charterer.
6 m.v. "P O AQUITAINE" A BARECON 89 bareboat charter dated 21 April 1999
made between (1) SFL as owner and (2) P&O Ferries
Limited (formerly P&O Stena Line Ltd.) as
charterer.
7 s.s.v. "STENA DON" A bareboat charter dated 28 November 2001 made
between (1) Stena Don LLC as owner and (2) Stena
Don AS as charterer.
8 m.v. "STENA CARRIER" A BARECON 89 bareboat charter dated 1 January
1992 made between (1) Stena Carrier Ltd ("SCL")
as owner and (2) SLAB as charterer as amended and
novated by addendum No.1 dated 31 March 1995 made
between (1) SCL, (2) Stena Empress Ltd ("SEL")
and (3) SLAB (so as to constitute a charter
between (1) SEL as owner and (2) SLAB as
charterer) as further amended and novated by an
addendum No.2 dated 20 December 1996 made between
(1) SEL, (2) Stena Line Shipholding B.V.
("SLSHBV") and (3) SLAB (so as to constitute a
charter between (1) SLSHBV as owner and (2) SLAB
as charterer) as further amended by an addendum
No.3 dated 15 January 1997 made between (1)
SLSHBV and (2) SLAB and as further amended by an
addendum No.4 dated 15 January 1999, an addendum
No.5 dated 15 January 2000, an addendum No.6
dated 5 February 2001, each between (1) SLSHBV
and (2) SLAB, as further amended and novated by
an addendum No. 7 dated 28 September 2001 made
between (1) SLSHBV,
173
(2) SLAB and (3) SLSAB (so as constitute a
charter between (1) SLSHBV as owner and (2) SLSAB
as charterer) and as further amended by an
addendum No.8 dated 5 February 2002 made between
(1) SLSHBV and (2) SLSAB.
9 m.v. "STENA GOTHICA" A BARECON 89 bareboat charter dated 15 October
1994 made between (1) Scandinavica Ltd as owner
and (2) Stena Line Scandinavia AB (formerly known
as Stena Line Service AB and subsequently merged
into SLAB on 1 January 1999) as charterer as
amended and novated by an addendum No.1 dated 31
March 1995 made between (1) Scandinavica Ltd (2)
SEL and (3) Stena Line Scandinavia AB (so as to
constitute a charter between (1) SEL as owner and
(2) Stena Line Scandinavia AB as charterer) as
further amended by an addendum No.2 dated 9
January 1996 between (1) SEL and (2) Stena Line
Scandinavia AB as further amended and novated by
an addendum No.3 dated 16 December 1996 made
between (1) SEL, (2) SLSHBV and (3) Stena Line
Scandinavia AB (so as to constitute a charter
between (1) SLSHBV as owner and (2) Stena Line
Scandinavia AB as charterer) as further amended
by an addendum No.4 dated 15 January 1997 and an
addendum No.5 dated 31 August 1998 each between
(1) SLSHBV and (2) Stena Line Scandinavia AB and
as further amended by an addendum No.6 dated 15
January 1999, an addendum No.7 dated 17 January
2000, an addendum No.8 dated 31 August 2000, an
addendum No.9 dated 5 February 2001 each between
(1) SLSHBV and (2) SLAB (as successor to Stena
Line Scandinavia AB), as further amended by an
addendum No.10 dated 17 September 2001 made
between (1) Stena Line Scandinavica AB and (2)
SLSHBV, as further amended and novated by an
addendum No.11 dated 28 September 2001 made
between (1) SLSHBV, (2) SLAB and (3) SLSAB (so as
to constitute a charter between (1) SLSHBV as
owner and (2) SLSAB as charterer), as further
amended by an addendum No.12 dated 5 February
2002 and an addendum No.13 dated 9 September
2002, each between (1) SLSHBV and (2) SLSAB.
10 m.v. "STENA GERMANICA" A BARECON 89 bareboat charter dated 20 December
2000 between (1) Scandlines AB as owner and (2)
SLAB as charterer to be amended and novated on or
about the Availability Date by an addendum No. 1
dated 28 September 2001 made between (1)
Scandlines AB ("SCANDLINES"), (2) SLAB and (3)
SLSAB (so as to constitute a charter between (1)
Scandlines as owner and (2) SLSAB as charterer)
and as further amended by an addendum No.2 dated
5 February 2002 made between
174
(1) Scandlines and (2) SLSAB.
11 m.v. "STENA EUROPE" A BARECON 89 bareboat charter dated 26 May 1997
between (1) SLSHBV as 33/64th owner and SLAB as
31/64th owner and (2) SLAB as charterer as
amended by an addendum dated 25 June 2001, as
further amended and novated by an addendum No. 2
dated 28 September 2001 made between (1) SLSHBV,
(2) SLAB and (3) SLSAB (so as to constitute a
charter between (1) SLSHBV as 33/64th owner and
SLSAB as 31/64th owner and (2) SLSAB as
charterer), as further amended and novated by an
addendum No.3 dated 11 October 2002 and made
between (1) SLSHBV, (2) SLSAB and (3) SLL (so as
to constitute a charter between (1) SLSHBV as
33/64th owner and SLSAB as 31/64th owner and (2)
SLL as charterer).
12 m.v. "STENA SEARIDER" A BARECON 89 bareboat charter dated 25 September
2000 made between (1) SLAB as owner and (2) Stena
Line B.V. ("SLBV") as charterer as amended and
novated by an addendum No. 1 dated 28 September
2001 made between (1) SLAB, (2) SLBV and (3)
SLSAB (so as to constitute a charter between (1)
SLSAB as owner and (2) SLBV as charterer), as
further amended by an addendum No.2 dated 5
February 2001 made between (1) SLAB and (2) Stena
Line Limited ("SLL") and as further amended by an
addendum No.3 dated 5 February 2002 made between
(1) SLSAB and (2) SLBV.
13 m.v. "STENA BALTICA" A BARECON 89 bareboat charter dated 9 June 1997
between (1) SLBV as owner and (2) SLL as
charterer as amended by an addendum No.1 dated 1
June 1999, an addendum No.2 dated 5 February 2001
and an addendum No.3 dated 28 September 2001 each
between (1) SLBV and (2) SLL and as amended and
novated by an addendum No.4 dated 11 October 2002
made between (1) SLBV, (2) SLL and (3) SLSAB (so
as to constitute a charter between (1) SLBV as
owner and (2) SLSAB as charterer).
175
SCHEDULE 4
PRIOR SECURITIES
PART A - PRIOR MORTGAGES
1 The first priority Bahamian statutory ship mortgage dated 13 March 2002 on
"Stena Baltica" made by Stena Line B.V. in favour of Svenska Handelsbanken
AB (publ).
2 The first priority Swedish deed of mortgage no. 2294 dated 3 June 1998 on
"stena Carisma" and the first priority pledge thereof dated 28 September
2001 made by Stena Line Scandinavia AB in favour of Svenska Handelsbanken
AB (publ).
3 The first priority Swedish deed of mortgage no. 1602 dated 4 May 2000 on
"stena CarRier" and the first priority pledge thereof dated 28 September
2001 made by Stena Line Shipholding B.V. in favour of Svenska
Handelsbanken AB (publ).
4 The first priority Swedish deed of mortgage no. 2270 dated 3 June 1998 on
"stena xxxxxx" and the first priority pledge thereof dated 28 September
2001 made by Stena Line Scandinavia AB in favour of Svenska Handelsbanken
AB (publ).
5 The first priority British statutory ship mortgage dated 27 February 2002
in respect of 33/64 shares in "Stena Europe" made by Stena Line
Shipholding B.V. in favour of Svenska Handelsbanken AB (publ).
6 The first priority British statutory ship mortgage dated 27 February 2002
in respect of 31/64 shares in "Stena Europe" made by Stena Line
Scandinavia AB in favour of Svenska Handelsbanken AB (publ).
7 The first priority Swedish deeds of mortgage nos. 4404 and 4405 dated 24
August 1984 and the first priority Swedish deed of mortgage no. 266 dated
27 January 1994 on "stena Freighter" and the first priority pledge thereof
dated 28 September 2001 made by Stena Line Scandinavia AB in favour of
Svenska Handelsbanken AB (publ).
8 The Stena Germanica Mortgage.
9 The first priority Swedish deeds of mortgage nos. 5302 and 5303 dated 5
November 1991 on "stena gothica" and the first priority pledge thereof
dated 28 September 2001 made by Stena Line Shipholding B.V. in favour of
Svenska Handelsbanken AB (publ).
10 The first priority Swedish deed of mortgage no. 2290 dated 3 June 1998 on
"stena scandinavica" and the first priority pledge thereof dated 28
September 2001 made by Stena Line Scandinavia AB in favour of Svenska
Handelsbanken AB (publ).
11 The first priority Swedish deeds of mortgage nos. 3121 and 6723 dated 18
May 1984 and 3 November 1989 respectively on "stena scanrail" and the
first priority pledge thereof dated 28 September 2001 made by Stena Line
Scandinavia AB in favour of Svenska Handelsbanken AB (publ).
12 The first priority British statutory ship mortgage dated 28 September 2001
on "Stena searider" made by Stena Line Scandinavia AB in favour of Svenska
Handelsbanken AB (publ).
176
13 The first priority British statutory ship mortgage dated 28 September 2001
on "Stena seatrader" made by Stena Line B.V. in favour of Svenska
Handelsbanken AB (publ).
14 The first priority Swedish deed of mortgage no. 3454 dated 27 September
2001 on "Linkspan i" and the first priority pledge thereof dated 28
September 2001 made by Stena Line Scandinavia AB in favour of Svenska
Handelsbanken AB (publ).
15 The first priority Swedish deed of mortgage no. 3458 dated 27 September
2001 on "Linkspan ii" and the first priority pledge thereof dated 28
September 2001 made by Stena Line Scandinavia AB in favour of Svenska
Handelsbanken AB (publ).
16 The first priority legal charge over Holyhead Port dated 28 September 2001
made by Stena Line Ports Limited in favour of Svenska Handelsbanken AB
(publ).
17 The Scots law first priority standard security over Stranraer Port dated
28 September 2001 made by Stena Line Ports Limited in favour of Svenska
Handelsbanken AB (publ).
PART B - PRIOR DEEDS OF COVENANT
18 The first priority deed of covenant dated 28 September 2001 (as amended by
a supplement to the deed of covenant dated 13 March 2002) made by Stena
Line B.V. in favour of Svenska Handelsbanken AB (publ) in respect of
"Stena Baltica".
19 The first priority deed of covenant dated 28 September 2001 made by Stena
Line Scandinavia AB in favour of Svenska Handelsbanken AB (publ) in
respect of "stena Carisma", "Linkspan i" and "Linkspan ii".
20 The first priority deed of covenant dated 28 September 2001 made by Stena
Line Shipholding B.V. in favour of Svenska Handelsbanken AB (publ) in
respect of "stena CarRier".
21 The first priority deed of covenant dated 28 September 2001 made by Stena
Line Scandinavia AB in favour of Svenska Handelsbanken AB (publ) in
respect of "stena xxxxxx".
22 The first priority deed of covenant dated 28 September 2001 (as amended by
a supplement to the deed of covenant dated 27 February 2002) made by Stena
Line Shipholding B.V. in favour of Svenska Handelsbanken AB (publ) in
respect of "Stena Europe".
23 The first priority deed of covenant dated 28 September 2001 (as amended by
a supplement to the deed of covenant dated 27 February 2002) made by Stena
Line Scandinavia AB in favour of Svenska Handelsbanken AB (publ) in
respect of "Stena Europe".
24 The first priority deed of covenant dated 28 September 2001 made by Stena
Line Scandinavia AB in favour of Svenska Handelsbanken AB (publ) in
respect of "stena Freighter".
25 The Stena Germanica Deed of Covenant.
177
26 The first priority deed of covenant dated 28 September 2001 made by Stena
Line Shipholding B.V. in favour of Svenska Handelsbanken AB (publ) in
respect of "stena gothica".
27 The first priority deed of covenant dated 28 September 2001 made by Stena
Line Scandinavia AB in favour of Svenska Handelsbanken AB (publ) in
respect of "stena scandinavica".
28 The first priority deed of covenant dated 28 September 2001 made by Stena
Line Scandinavia AB in favour of Svenska Handelsbanken AB (publ) in
respect of "stena scanrail".
29 The first priority deed of covenant dated 28 September 2001 made by Stena
Line Scandinavia AB in favour of Svenska Handelsbanken AB (publ) in
respect of "Stena searider".
30 The first priority deed of covenant dated 28 September 2001 made by Stena
Line B.V. in favour of Svenska Handelsbanken AB (publ) in respect of
"Stena seatrader".
PART C - PRIOR CHARTERER'S INSURANCE ASSIGNMENTS
31 The deed of assignment of insurances and requisition compensation dated 28
September 2001 made by Stena Line Scandinavia AB in favour of Svenska
Handelsbanken AB (publ).
32 The deed of assignment of insurances and requisition compensation dated 28
September 2001 made by Stena Line B.V. in favour of Svenska Handelsbanken
AB (publ).
33 The deed of assignment of insurances and requisition compensation dated 28
September 2001 made by Stena Line Limited in favour of Svenska
Handelsbanken AB (publ).
178
SCHEDULE 5
EXISTING BANK GUARANTEES
Guarantee No: 9
Beneficiary: Dalian Shipyard
Amount: $8,700,000
Valid from: 22 June 2001
Expiry Date: 15 January 2004
Guarantee No: 10
Beneficiary: Dalian Shipyard
Amount: $8,700,000
Valid from: 22 June 2001
Expiry Date: 5 May 2004
Guarantee No: 11
Beneficiary: Lloyds Capital Leasing Limited
Amount: (pound)8,212,255.11
Valid from: 1 November 2001
Expiry Date: 31 October 2003
Guarantee No: 00
Xxxxxxxxxxx: Xxxxxxxxxxx XX, Xxxx
Xxxxxx: (euro)1,044,000
Valid from: 28 September 2001
Expiry Date: 30 June 2003
Guarantee No: 17
Beneficiary: HSBC Bank plc
Amount: (pound)776,000
Valid from: 5 October 2001
Expiry Date: 1 October 2003 (but renews automatically for a
further 12 months on each expiry date unless 60 days
prior notice to terminate is given by the Existing
Guarantee Provider thereunder)
Guarantee No: 18
Beneficiary: Bank Handlowy w Warzawie
Amount: PLN250,000
Valid from: 5 October 2001
Expiry Date: 30 May 2003
Guarantee No: 21
Beneficiary: ING Bank N.V., Amsterdam
Amount: (euro)147,585
Valid from: 31 July 2002
Expiry Date: 11 August 2003 (but renews automatically for a
further 12 months on each expiry date unless 60 days
prior notice to terminate is given by the Existing
Guarantee Provider thereunder)
179
Guarantee No: 22
Beneficiary: Association of British Travel Agents Ltd.
Amount: (pound)758,500
Valid from: 1 October 2002
Expiry Date: 31 March 2004
Guarantee No: 23
Beneficiary: Civil Aviation Authority
Amount: (pound)71,250 (Principal Bond)
Valid from: 26 September 2002
Expiry Date: 31 March 2004
Guarantee No: 24
Beneficiary: Civil Aviation Authority
Amount: (pound)71,250 (Supplementary Bond)
Valid from: 26 September 2002
Expiry Date: 31 March 2004
180
SCHEDULE 6
FORM OF DRAWDOWN NOTICE
To: Svenska Handelsbanken AB (publ)
XX-000 00 Xxxxxxxx
Xxxxxx
Attention: RVIC STBNL 675
o 20 o
U.S.$600,000,000
Facility Agreement dated 6 November 2002
We refer to the above Facility Agreement and hereby give you notice that we wish
to draw an Advance of $o on o 20o [and select a Term in respect thereof of o
months]. The funds should be credited to [NAME AND NUMBER OF ACCOUNT] with [NEW
YORK CITY].
We confirm that the borrowing to be effected by 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 Facility Agreement shall have the same
meanings where used herein.
For and on behalf of
STENA INTERNATIONAL B.V.
......................
181
SCHEDULE 7
FORM OF BANK GUARANTEE REQUEST
To: Svenska Handelsbanken AB (publ)
XX-000 00 Xxxxxxxx
Xxxxxx
Attention: RVIC STBNL 675
o 20 o
U.S.$600,000,000
Facility Agreement dated 6 November 2002
We refer to the above Facility Agreement and hereby request that the New
Guarantee Provider [agrees to extend the Expiry Date of [DESCRIBE RELEVANT BANK
GUARANTEE] from o to o] [issues a Bank Guarantee in the form attached hereto in
favour of [INSERT NAME OF BENEFICIARY] on o 20o].
[This Bank Guarantee should only be [issued/extended] on our further written
request.]
Words and expressions defined in the Facility Agreement shall have the same
meanings where used herein.
For and on behalf of
STENA INTERNATIONAL B.V.
......................
182
SCHEDULE 8
CONDITIONS PRECEDENT/STENA TAY REQUIREMENTS
(referred to in Clauses 18.1 and 9.9)
PART 1 - CONDITIONS PRECEDENT
1 FACILITY AGREEMENT, AGREED FORM CERTIFICATE AND GUARANTEES
1.1 Originals of this Agreement and the Agreed Form Certificate executed by
all of the parties thereto (in sufficient copies so that each Bank will
be able to retain one original for itself).
1.2 Original Shipowner's Guarantees executed by each of the Shipowners
(other than Stena Rederi AB, Stena Line Scandinavia, Stena Tay Limited
and Scandlines).
1.3 An original Port Owner's Guarantee executed by Stena Line Ports.
2 THE SHIPS AND LINKSPANS
2.1 Such evidence as the Agent may require in respect of each Ship (other
than m.v. "STENA TAY") that such Ship and, where appropriate, each of
its associated Linkspans is:-
(A) registered in the sole name of the relevant Shipowner shown in
Schedule 2 free from all Liens except for Permitted Ship Liens
and, where relevant, Liens created by any Prior Security
Document;
(B) classified 1A1 with its Classification Society;
(C) technically managed by its Approved Manager (if any); and
(D) (together with its operator) compliant with the requirements of
the ISM Code.
2.2 Written confirmation from the insurance brokers and the managers of any
protection and indemnity or war risks association through whom any
Insurances of a Ship or Linkspan (other than m.v. "STENA TAY") have
been placed that (i) they will each issue a letter of undertaking in a
form acceptable to the Agent upon receipt of the Notice(s) of
Assignment of Insurances relating to such Ship or Linkspan and (ii)
that they have not received notice of any prior assignment of such
Insurances other than, where relevant, pursuant to a Prior Security
Document or an assignment securing the SIBV $500m Facility.
2.3 Originals of the Security Documents to be entered into in respect of
each Ship and Linkspan (other than m.v. "STENA TAY") duly executed by
the Security Parties which are party thereto together with all relevant
notices, acknowledgements and other ancillary documents to be executed
thereunder or pursuant thereto, namely:-
(A) in the case of m.v.'s "STENA NAUTICA", "STENA SAGA" AND "STENA
TRAVELLER":-
(i) first priority instruments of pledge in the form set out
in Schedule 5 to the Agreed Form Certificate executed by
the relevant Shipowner in respect of
183
the Swedish law ship mortgages thereon registered or to
be registered against each of the above Ships in the
following amounts:-
SHIP AMOUNT
"STENA NAUTICA" $22,000,000
"STENA SAGA" $109,000,000
"STENA TRAVELLER" $45,000,000
(ii) the original mortgage deeds as referred to in (i) above
in respect of each of the above Ships; and
(iii) a Deed of Covenant and Notices of Assignment of
Insurances in the form of Schedule 1 thereto each
executed by the relevant Shipowner in respect thereof;
(B) in the case of m.v.'s "P O AQUITAINE", "STENA CLIPPER", "STENA
XXXXX", "STENA DEE", "STENA DON", "STENA SHIPPER", "STENA SPEY",
"STENA TENDER" AND "STENA TIMER":-
(i) a first priority statutory ship mortgage thereon
incorporating the text set out in Schedule 3 to the
Agreed Form Certificate executed by the relevant
Shipowner;
(ii) a Deed of Covenant and Notices of Assignment of
Insurances in the form of Schedule 1 thereto executed by
the relevant Shipowner in respect thereof;
(C) in the case of m.v.'s "STENA XXXXXX", "STENA SCANDINAVICA",
"STENA FREIGHTER", "STENA SCANRAIL", "STENA CARRIER", "STENA
CARISMA", "LINKSPAN I", "LINKSPAN II" AND "STENA GOTHICA":-
(i) second priority instruments of pledge in the form set out
in Schedule 6 to the Agreed Form Certificate executed by
the relevant Shipowner in respect of the Swedish law ship
mortgages thereon registered or to be registered against
each of the above Ships and Linkspans in the following
amounts:-
SHIP/LINKSPAN AMOUNT
"STENA XXXXXX" $57,000,000
"STENA SCANDINAVICA" $115,000,000
"STENA FREIGHTER" $12,570,000
"STENA SCANRAIL" $8,000,000
"STENA CARISMA" $62,500,000
"LINKSPAN I" $4,000,000
"LINKSPAN II" $3,000,000
"STENA CARRIER" $8,500,000
"STENA GOTHICA" $14,437,500
(ii) a Deed of Covenant and Notices of Assignment of
Insurances in the form of Schedule 1 thereto each
executed by the relevant Shipowner in respect thereof;
184
(D) in the case of m.v.'s "STENA EUROPE", "STENA SEARIDER", "STENA
SEATRADER" AND "STENA BALTICA":-
(i) a second priority statutory ship mortgage thereon
incorporating the text set out in Schedule 4 to the
Agreed Form Certificate executed by the relevant
Shipowner;
(ii) a Deed of Covenant and Notices of Assignment of
Insurances in the form of Schedule 1 thereto executed by
the relevant Shipowner in respect thereof;
(E) in the case of m.v. "STENA GERMANICA":-
(i) the Stena Germanica Assignment;
(ii) the notice of assignment in the form of Schedule 1 to the
Stena Germanica Assignment executed by the Borrower and
the acknowledgement thereof in the form of Schedule 2 to
the Stena Germanica Assignment executed by Scandlines;
(iii) the notice of assignment in the form of Schedule 3 to the
Stena Germanica Assignment executed by the Borrower and
the acknowledgement thereof in the form of Schedule 4 to
the Stena Germanica Assignment executed by Stena Line
Scandinavia;
(iv) the Notice of Assignment of Insurances in the form of
Schedule 5 to the Stena Germanica Assignment executed by
the Borrower;
(F) in the case of each of the Mortgaged Ships and Mortgaged
Linkspans (other than m.v. "STENA TAY"):-
(i) the Charterer's Insurance Assignment (if any) executed by
any Stena Charterer of such Ship or Linkspan;
(ii) the Charterer's Subordination Undertaking (if any)
executed by any Stena Charterer of such Ship or Linkspan;
(iii) the Manager's Subordination Undertaking (if any) executed
by any Approved Manager of such Ship or Linkspan.
2.4 In the case of each Ship and Linkspan (other than m.v. "STENA
GERMANICA" and m.v. "STENA TAY"), evidence that the relevant mortgage
in favour of the Security Agent on such Ship or Linkspan has been
registered against such Ship or Linkspan at the appropriate ship
registry with first priority in the case of the Ships referred to in
paragraphs (A) and (B) above and with second priority, subject only to
the Prior Mortgages, in the case of the Ships and Linkspans referred to
in paragraphs (C) and (D) above.
2.5 In the case of m.v. "STENA GERMANICA", evidence that the Stena
Germanica Mortgage is registered at the appropriate ship registry with
first priority.
185
3 HOLYHEAD PORT
3.1 Save for the Prior Mortgage relating thereto, a clear H.M. Land
Registry search in favour of the Security Agent against such part of
Holyhead Port as is registered or is in the course of registration,
with priority expiring no earlier than twenty eight (28) days after the
Availability Date.
3.2 An original of the Holyhead Charge executed by Stena Line Ports.
3.3 A certificate of title in respect of Holyhead Port (including details
of the insurances of the relevant port) in form and substance
acceptable to the Agent.
3.4 Confirmation in writing from Svenska Handelsbanken AB (publ) as chargee
under the Prior Mortgage relating to Holyhead Port that it consents to
the Holyhead Charge.
4 STRANRAER PORT
4.1 Save for the Prior Mortgage relating thereto, a clear search in the
property register and in the computerised presentment book in respect
of Stranraer Port to be continued to a date twenty two (22) days after
the date of recording of the Stranraer Charge and a clear search in the
personal register in respect of Stena Line Ports.
4.2 An original of the Stranraer Charge executed by Stena Line Ports.
4.3 A certificate of title in respect of Stranraer Port (including details
of the insurances of the relevant port) in form and substance
acceptable to the Agent.
4.4 Confirmation in writing from Svenska Handelsbanken AB (publ) as chargee
under the Prior Mortgage relating to Stranraer Port that it consents to
the Stranraer Charge.
5 CASH COLLATERAL ACCOUNTS
5.1 Evidence that the Borrower has opened Cash Collateral Accounts with the
Agent in Dollars, Euro, Pounds Sterling and Polish Zlotych.
5.2 An original Cash Collateral Account Pledge executed by the Borrower in
respect of the accounts referred to in paragraph 5.1 above.
6 CONSTITUTIONAL DOCUMENTS
Certified copies of the Certificate of Incorporation and Memorandum and
Articles of Association or equivalent constitutive documents of the
Borrower and each other Security Party.
7 CORPORATE AUTHORISATIONS
7.1 Certified copies of resolutions of each Security Party approving the
Security Documents to which such Security Party is a party and
approving the transactions contemplated thereby and authorising the
execution of such documents by an officer or attorney of the relevant
Security Party.
7.2 Original or certified copies of the powers of attorney, if any, issued
pursuant to the resolutions referred to in paragraph 6.1 above.
186
8 CERTIFICATE OF INCUMBENCY
Certified copies of a certificate of incumbency or extract from the
commercial register in respect of the Borrower and each other Security
Party.
9 CONSENTS AND APPROVALS
Such evidence as the Agent may require that all such consents have been
obtained as may be required from any authority by each of the Borrower
and each other Security Party for the execution of and performance by
them of their respective obligations under those of the Security
Documents to which they are respectively a party.
10 FEES
10.1 The agency fee letter agreement referred to in Clause 10.1 executed by
the Borrower, Stena AB and Svenska Handelsbanken AB (publ) as Agent and
Security Agent.
10.2 Evidence that such fees referred to in Clause 10 as are payable on or
before the Availability Date have been received by the Agent.
11 INSURANCE OPINION
An opinion on the insurances relating to all of the Ships, the
Linkspans and the Ports by HSBC Insurance Brokers Limited dated not
more than thirty (30) days before the Availability Date, such report to
be in form and substance acceptable to the Agent.
12 LEGAL OPINIONS
Legal opinions in form and substance acceptable to the Agent (or
confirmation satisfactory to the Agent that such legal opinions will be
issued in form and substance acceptable to it) from:-
(A) Messrs. Xxxxxxxxxx Xxxxxxx concerning such matters of English
law as the Agent may reasonably require;
(B) Messrs. Xxxxxxxxxx Swartling concerning such matters of Swedish
law as the Agent may reasonably require;
(C) Messrs. Loyens & Loeff concerning such matters of Netherlands
law as the Agent may reasonably require;
(D) Messrs. Xxxxxx, Xxxxxxxx & Xxxxxxxxx concerning such matters of
Scottish law as the Agent may reasonably require;
(E) Messrs. Xxxxxxxxx Xxxxxxxxxxx & Co. concerning such matters of
Manx law as the Agent may reasonably require;
(F) Messrs. Xxxxxxx Xxxx & Xxxxxxx concerning such matters of
Bermudan law as the Agent may reasonably require;
(G) Messrs. Xxxxxx & Calder concerning such matters of Cayman law as
the Agent may necessary require; and
187
(H) Messrs Xxxxxxxx F0yen Advokatfirma DA concerning such matters of
Norwegian law as the Agent may reasonably require.
13 VALUATIONS
Valuations of the Mortgaged Ships and Mortgaged Linkspans as at 30 June
2002 or any later date, such valuations to be determined in accordance
with Clause 9.4(G).
14 FINANCIAL CONDITION
14.1 Evidence that as at 30 June 2002:-
(A) the aggregate of (i) the Consolidated Current Assets and (ii)
Available Facilities was at least one hundred and twenty five
per cent (125%) of the Consolidated Current Liabilities; and
(B) the aggregate of (i) Consolidated Liquid Assets and (ii)
Available Facilities was at least $50,000,000.
14.2 The Free Net Worth Compliance Certificate required to be produced under
Clause 14.2(F) evidencing that as at 30 June 2002 the Free Net Worth
was at least $850,000,000.
15 PROCESS AGENT
Written confirmation from Stena (UK) Limited that it will act as the
process agent for service of process in England of the Borrower and
each other Security Party (other than Stena Tay Limited).
16 STENA GERMANICA DOCUMENTS
16.1 A certified copy of the Stena Germanica Loan Agreement as amended and
transferred out of the name of Stena Line into the name of the Borrower
as lender to Scandlines thereunder, such agreement to be on terms
whereby the principal loan amount outstanding thereunder is $52,000,000
and the repayment date thereof falls after the Termination Date
hereunder.
16.2 Certified copies of the Stena Germanica Mortgage and the Stena
Germanica Deed of Covenants together with certified copies of the
agreement or agreements by which such documents have been assigned from
Stena Line to the Borrower (including all appropriate notices and
acknowledges of assignment given to and/or by Scandlines and Stena Line
Scandinavia), all such documents to be in form and substance acceptable
to the Agent.
16.3 Certified copies of the Stena Germanica Charterer's Insurance
Assignment and the Stena Germanica Charterer's Subordination
Undertaking.
16.4 A certified copy of the Stena Line Asset Purchase Agreement.
17 COMMERCIAL DOCUMENTS
17.1 Certified copies of the Commercial Documents (save those if any,
relating specifically to m.v. "STENA TAY").
188
18 CANCELLATION OF EXISTING FACILITIES
18.1 Evidence that, simultaneously with drawdown of the first Advance, all
outstandings in respect of the SIBV $500m Facility will be reduced to
zero and such facility finally and irrevocably cancelled and that at
that time all of the securities securing such facility will be finally
and unconditionally released and discharged.
18.2 Evidence that the (euro)200,000,000 364 day unsecured revolving credit
facility made available to Stena AB pursuant to the facility agreement
dated 25 September 2001 made between (1) Stena AB as borrower, (2) the
banks and financial institution defined therein as "Banks" as lenders,
(3) the Co-Arrangers as arrangers and (4) Svenska Handelsbanken AB
(publ) as agent has expired or been cancelled and that all outstandings
thereunder (if any) have been repaid in full.
19 INTERCREDITOR AGREEMENT
An original of the SIBV $275m Facility Intercreditor Agreement executed
by each of the parties thereto.
20 NOTICE OF PREPAYMENT OF STENA TAY NOTES
Evidence that Stena Tay Limited has given thirty (30) days irrevocable
notice in writing to prepay all of the Stena Tay Notes in accordance
with the Stena Tay Note Agreement.
189
PART 2 - STENA TAY REQUIREMENTS
1 SHIPOWNER'S GUARANTEE
An original Shipowner's Guarantee executed by Stena Tay Limited.
2 M.V. "STENA TAY"
2.1 Such evidence as the Agent may require in respect of m.v. "STENA
TAY" that such Ship is:-
(A) registered in the sole name of Stena Tay Limited free from all
Liens except for Permitted Ship Liens;
(B) classified 1A1 with its Classification Society;
(C) technically managed by its Approved Manager (if any); and
(D) (together with its operator) compliant with the requirements of
the ISM Code.
2.2 Written confirmation from the insurance brokers and the managers of any
protection and indemnity or war risks association through whom any
Insurances of m.v. "STENA TAY" have been placed that (i) they will each
issue a letter of undertaking in a form acceptable to the Agent upon
receipt of the Notice(s) of Assignment of Insurances relating to such
Ship and (ii) that they have not received notice of any prior
assignment of such Insurances other than pursuant to an assignment
securing the Stena Tay Notes.
2.3 Originals of the Security Documents to be entered into in respect m.v.
"STENA TAY" duly executed by the Security Parties which are party
thereto together with all relevant notices, acknowledgements and other
ancillary documents to be executed thereunder or pursuant thereto,
namely:-
(A) a first priority statutory ship mortgage thereon incorporating
the text set out in Schedule 3 to the Agreed Form Certificate
executed by Stena Tay Limited;
(B) a Deed of Covenant and Notices of Assignment of Insurances in
the form of Schedule 1 thereto executed by Stena Tay Limited in
respect thereof;
(C) the Charterer's Insurance Assignment (if any) executed by any
Stena Charterer of such Ship;
(D) the Charterer's Subordination Undertaking (if any) executed by
any Stena Charterer of such Ship;
(E) the Manager's Subordination Undertaking (if any) executed by
any Approved Manager of such Ship.
2.4 Evidence that the relevant mortgage in favour of the Security Agent
m.v. "STENA TAY" has been registered against such Ship at the
appropriate ship registry with first priority.
3 CONSTITUTIONAL DOCUMENTS
Certified copies of the Certificate of Incorporation and Memorandum and
Articles of Association or equivalent constitutive documents of Stena
Tay Limited.
190
4 CORPORATE AUTHORISATIONS
4.1 Certified copies of resolutions of Stena Tay Limited approving the
Security Documents to which it is a party and approving the
transactions contemplated thereby and authorising the execution of such
documents by an officer or attorney of Stena Tay Limited.
4.2 Original or certified copies of the powers of attorney, if any, issued
pursuant to the resolutions referred to in paragraph 4.1 above.
5 CERTIFICATE OF INCUMBENCY
Certified copies of a certificate of incumbency or extract from the
commercial register in respect of Stena Tay Limited.
6 CONSENTS AND APPROVALS
Such evidence as the Agent may require that all such consents have been
obtained as may be required from any authority by Stena Tay Limited for
the execution of and performance by it of its obligations under those
of the Security Documents to which it is a party.
7 LEGAL OPINIONS
Legal opinions in form and substance acceptable to the Agent (or
confirmation satisfactory to the Agent that such legal opinions will be
issued in form and substance acceptable to it) from such of the law
firms mentioned in paragraph 12, Part 1 of this Schedule 8 as the Agent
may reasonably require, in each case relating to Stena Tay Limited,
m.v. "STENA TAY" and/or the Security Documents relating thereto.
8 PROCESS AGENT
Written confirmation from Stena (UK) Limited that it will act as the
process agent for service of process in England of Stena Tay Limited.
9 COMMERCIAL DOCUMENTS
Certified copies of the Commercial Documents, if any, relating
specifically to m.v. "STENA TAY".
191
SCHEDULE 9
FORM OF TRANSFER CERTIFICATE
(referred to in Clause 24.3)
Transfer Certificate
Banks are advised not to employ Transfer Certificates or otherwise to assign or
transfer interests in the Facility 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: Svenska Handelsbanken AB (publ), as agent on its own behalf
and for and on behalf of the Borrower, the Security Agent, the
Issuing Banks, the Standby Lender, the Banks, the Co-Arrangers
and Stena AB defined in the Facility Agreement referred to
below.
Attention: RVIC STBNL 675
o 20 o
This certificate ("TRANSFER CERTIFICATE") relates to a US$600,000,000 facility
agreement dated 6 November 2002 (as amended, novated and/or restated from time
to time the "FACILITY AGREEMENT") and made between (1) Stena International B.V.
(the "BORROWER"), (2) X. X. Xxxxxx plc, Nordea Bank Sverige AB (publ) and
Svenska Handelsbanken AB (publ) as Co-Arrangers, (3) the banks and financial
institutions defined therein as banks (the "BANKS"), (4) Nordea Bank Sverige AB
(publ) and JPMorgan Chase Bank as Issuing Banks, (5) Svenska Handelsbanken AB
(publ) as Standby Lender, (6) Svenska Handelsbanken AB (publ) as Agent, (7)
Svenska Handelsbanken AB (publ) as Security Agent and (8) Stena AB (publ.) as
guarantor for a facility of up to $600,000,000. Terms defined in the Facility
Agreement shall, unless otherwise defined herein, have the same meanings herein
as therein.
In this Certificate:
the "TRANSFEROR" means [FULL NAME] of [LENDING OFFICE]; and
the "TRANSFEREE" means [FULL NAME] of [LENDING OFFICE].
1 The Transferor as beneficial owner assigns to the Transferee absolutely
all rights and interests (present, future or contingent) which the
Transferor has as Bank under or by virtue of the Facility Agreement and
all the Security Documents in relation to [ ] per centum ([ ]%) of the
Outstandings of the Transferor (or its predecessors in title) which are
set out below:-
DATE OF CONTRIBUTION AMOUNT MATURITY DATE
OUTSTANDING GUARANTEE AMOUNTS
192
2 By virtue of this Transfer Certificate and Clause 24 of the Facility
Agreement, the Transferor is discharged [entirely from its Available
Commitment which amounts to $[ ]] [from [ per centum ([ ]%)
of its Available Commitment, which percentage represents $[ ]].
3 [The Transferee acknowledges that the Contribution of the Transferor
referred to in Clause 1 above relates to Advances having Maturity Dates
which fall after the date hereof which have been funded as to its
relevant portion by the Transferor and in respect of which the
Transferor has incurred and continues to incur funding costs at an
annual rate of interest per annum approximate to the relevant rate of
LIBOR for each such Advance as determined by the Agent prior to the
drawdown thereof. In consider of the Transferor agreeing to execute
this Transfer Certificate in favour of the Transferee, the Transferee
undertakes that upon the Maturity Date of each such Advance, the
Transferee will pay to the Transferor a sum in Dollars for value on
such Maturity Date equal to the aggregate of:-
(A) the amount of principal repaid to the Transferee under the
Facility Agreement in respect of the relevant portion of such
Advance transferred by the Transferor to the Transferee
hereunder;
(B) the amount of all interest earned and received by the Transferee
under the Facility Agreement in respect of the relevant portion
of such Advance transferred by the Transferor to the Transferee
hereunder which is attributable to LIBOR (i.e. so that it
excludes that part of such interest which is attributable to the
Margin); and
(C) the amount of all interest earned and received by the Transferee
under the Facility Agreement in respect of the relevant portion
of such Advance transferred by the Transferor to the Transferee
hereunder which is earned during the period from its drawdown
date up to (but not including) the date of this Transfer
Certificate and which is attributable to the Margin.
By its execution and delivery of this Transfer Certificate the
Transferee hereby irrevocably and unconditionally authorises and
instructs the Agent to effect on its behalf the payments to be made to
the Transferor as referred to in this Clause from the corresponding
payments of interest and repayment of principal received by it on
behalf of the Banks under the Facility Agreement.]
4 The Transferee hereby requests the Borrower, the Agent, the Security
Agent, the Issuing Banks, the Standby Lender, the Banks and Stena AB to
accept the executed copies of this Transfer Certificate as being
delivered pursuant to and for the purposes of Clause 24.3 of the
Facility Agreement so as to take effect in accordance with the terms
thereof on [DATE OF TRANSFER].
5 The Transferee:-
(A) confirms that it has received a copy of the Facility Agreement
and the Security Documents together with such other documents
and information as it has required in connection with the
transaction contemplated thereby;
(B) confirms that it has not relied and will not hereafter rely on
the Transferor, the Agent or the Security Agent to check or
enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of the
Facility
193
Agreement, any of the Security Documents or any such documents
or information;
(C) agrees that it has not relied and will not rely on the
Transferor, the Agent, the Security Agent, the Issuing Banks,
the Standby Lender, the Co-Arrangers or the Banks to assess or
keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the
Borrower or any other Security Party (save as otherwise
expressly provided therein);
(D) warrants that it has power and authority to become a party to
the Facility Agreement and has taken all necessary action to
authorise execution of this Transfer Certificate and to obtain
all necessary approvals and consents to the assumption of its
obligations under the Facility Agreement and the Security
Documents; and
(E) if not already a Bank, appoints the Agent to act as its agent
and the Security Agent to act as its trustee as provided in the
Facility Agreement and the Security Documents and agrees to be
bound by the terms of the Facility Agreement.
6 The Transferor:-
(A) warrants to the Transferee that it has full power to enter into
this Transfer Certificate and has taken all corporate action
necessary to authorise it to do so;
(B) warrants to the Transferee that this Transfer Certificate is
binding on the Transferor under the laws of England, the country
in which the Transferor is incorporated and the country in which
its lending office is located; and
(C) agrees that it will, at its own expense, execute any documents
which the Transferee reasonably requests for perfecting in any
relevant jurisdiction the Transferee's title under this Transfer
Certificate or for a similar purpose.
7 The Transferee hereby undertakes with the Transferor and each of the
other parties to the Facility Agreement and the other Security
Documents that it will perform in accordance with its terms all those
obligations which by the terms of the Facility Agreement and the other
Security Documents will be assumed by it after delivery of the executed
copies of this Transfer Certificate to the Agent and satisfaction of
the conditions (if any) subject to which this Transfer Certificate is
expressed to take effect.
8 By execution of this Transfer Certificate on their behalf by the Agent
and in reliance upon the representations and warranties of the
Transferee, the Borrower, Stena AB, the Agent, the Security Agent, the
Issuing Banks, the Standby Lender, the Co-Arrangers and the Banks
accept the Transferee as a party to the Facility Agreement and the
Security Documents with respect to all those rights and/or obligations
which by the terms of the Facility Agreement and the Security Documents
will be assumed by the Transferee (including those about pro-rata
sharing and the exclusion of liability on the part of, and the
indemnification of, the Agent, the Co-Arrangers, the Security Agent,
the Issuing Banks, the Standby Lender and the Banks as provided by the
Agreement) after delivery of the executed copies of this Transfer
Certificate to the Agent and satisfaction of the conditions (if any)
subject to which this Transfer Certificate is expressed to take effect.
9 None of the Transferor, the Agent, the Security Agent, the Issuing
Banks, the Standby Lender, the Co-Arrangers or the Banks:-
194
(A) makes any representation or warranty nor assumes any
responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of the Facility
Agreement or any of the Security Documents or any document
relating thereto;
(B) assumes any responsibility for the financial condition of the
Borrower or any other Security Party or any party to any such
other document or for the performance and observance by the
Borrower 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).
10 The Transferor and the Transferee each undertake that they will on
demand fully indemnify the Agent and the Security Agent in respect of
any claim, proceeding, liability or expense which relates to or results
from this Transfer Certificate or any matter concerned with or arising
out of it unless caused by the Agent's or Security Agent's gross
negligence or wilful misconduct, as the case may be.
11 The agreements and undertakings of the Transferee in this Transfer
Certificate are given to and for the benefit of and made with each of
the other parties to the Facility Agreement and the Security Documents.
12 This Transfer Certificate shall be governed by, and construed in
accordance with, English law.
Transferor Transferee
[INSERT TRANSFEROR'S NAME] [INSERT TRANSFEREE'S NAME]
By: By:
Dated: Dated:
AGENT
Agreed for and on behalf of itself as Agent, the Co-Arrangers, the
Security Agent, the Issuing Banks, the Standby Lender, the Banks,
the Borrower, Stena AB (publ.) and each other Security Party.
SVENSKA HANDELSBANKEN AB (PUBL)
By:
Dated:
NOTE: The execution of this Transfer Certificate alone may not transfer
a proportionate share of the Transferor's interest in the security
constituted by the Security Documents in the Transferor's or
Transferee's jurisdiction. It is the responsibility of each
individual Bank to ascertain whether any other documents are
required to perfect a transfer of such a share in the Transferor's
interest in such security in any such jurisdiction and, if so, to
seek appropriate advice and arrange for execution of the same.
195
THE SCHEDULE
Outstanding Contributions of Transferor : $ [ ]
Available Commitment of Transferor : $ [ ]
Portion Transferred : [ ]%
ADMINISTRATIVE DETAILS OF TRANSFEREE
Name of Transferee:
Lending Office:
Contact person
(Loan Administration Department):
Telephone:
Fax:
Contact person
(Credit Administration Department):
Telephone:
Fax:
Account for payments:
196
SCHEDULE 10
SPECIMEN CHARTER COVENANTS AND LOSS PAYABLE CLAUSES
197
SCHEDULE 11
FORM OF FREE NET WORTH COMPLIANCE CERTIFICATE
OFFICER'S CERTIFICATE ISSUED PURSUANT TO A
$600,000,000 FACILITY AGREEMENT DATED 6 NOVEMBER 2002
(THE "FACILITY AGREEMENT")
I, [O], the [Chief Financial Officer/DESCRIBE OFFICE] of Stena AB (publ.),
hereby certify that:-
1. Attached hereto is a statement of the respective amounts of:-
o Appraised Value of Restricted Group Assets
o Secured Debt
o Strategic Investments
o Cash and Marketable Securities
o Other Assets and Working Capital
o Available Asset Value
o Unsecured Debt
as at [30 June/31 December/OTHER [YEAR]] (the "REFERENCE DATE"), determined
in accordance with Clause 14.21 of the Facility Agreement.
2. As at the Reference Date, the Free Net Worth was $[INSERT].
3. Attached hereto is a statement of the amounts of the values of the assets
of the Stena AB Group determined in accordance with Clause 14.21 of the
Facility Agreement for the purpose of calculating the Available Asset Value
as at the Reference Date.
Terms used herein and not otherwise defined herein shall have the meanings set
forth in the Facility Agreement. This certificate is rendered pursuant to Clause
14.2(F) of the Facility Agreement.
IN WITNESS WHEREOF, the undersigned has set his hand this O day of O [20O].
STENA AB (PUBL.)
By: ...................................
[Chief Financial Officer/INSERT OFFICE]
198
SCHEDULE 12
FORM OF QUIET ENJOYMENT UNDERTAKING
To: [Name of Addressee]
[Date]
We, Svenska Handelsbanken AB (publ) of XX-000 00 Xxxxxxxx, Xxxxxx acknowledge
that we have reviewed a copy of the [describe contract] (the "CONTRACT") in
respect of the Drilling Unit [name] (the "UNIT") and are fully aware of all its
terms and conditions.
In consideration of your entering into the Contract and certain related
agreements, we hereby irrevocably and unconditionally undertake to you and
promise that so long as you shall retain any interest in the Contract, we shall
not exercise any rights as mortgagee in relation to the Unit, including any
rights to take possession, or otherwise seek to enforce such rights as we have
at any time where such action may affect in any manner your free and
uninterrupted use of the Unit in accordance with the terms of the Contract.
This undertaking shall be governed and construed in accordance with the laws of
England and Wales and we submit to the exclusive jurisdiction of the courts in
London for all purposes in connection with this undertaking.
SIGNED for an on behalf of
SVENSKA HANDELSBANKEN AB (PUBL)
/s/ Sten-Xxxx Xxxxxx
199
THE BORROWER
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxx )
attorney-in-fact for and on behalf of )
STENA INTERNATIONAL B.V. )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
THE AGENT AND SECURITY AGENT
SIGNED AND DELIVERED AS A DEED by )
/s/ Sten-Xxxx Xxxxxx )
attorney-in-fact for and on behalf of )
SVENSKA HANDELSBANKEN AB (PUBL) )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
THE BANKS AND CO-ARRANGERS
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxxxx )
for and on behalf of )
X.X. XXXXXX PLC )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxxxx )
attorney-in-fact for and on behalf of )
NORDEA BANK SVERIGE AB (PUBL) )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
SIGNED AND DELIVERED AS A DEED by )
/s/ Sten-Xxxx Xxxxxx )
attorney-in-fact for and on behalf of )
SVENSKA HANDELSBANKEN AB (PUBL) )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
200
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxxxx )
for and on behalf of )
JPMORGAN CHASE BANK )
by its duly authorised signatory )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
SIGNED AND DELIVERED AS A DEED by )
/s/ Simon Deefholts )
for and on behalf of )
HSBC BANK PLC )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxxxx )
attorney-in-fact for and on behalf of )
LANDESBANK SCHLESWIG-HOLSTEIN )
GIROZENTRALE )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxxxx )
attorney-in-fact for and on behalf of )
THE GOVERNOR AND COMPANY )
OF THE BANK OF SCOTLAND )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxxxx )
attorney-in-fact for and on behalf of )
DEN NORSKE BANK ASA )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
201
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxxx Xxxxxxx )
for and on behalf of )
SCOTIABANK EUROPE PLC )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxxxx
Attorney-in-fact for and on behalf of )
SKANDINAVISKA ENSKILDA )
XXXXXX XX (PUBL) )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxxxx )
attorney-in-fact for and on behalf of )
ABN AMRO BANK N.V. )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
SIGNED AND DELIVERED AS A DEED by )
NEDSHIP BANK N.V. )
acting through its Norwegian branch )
NEDSHIP BANK (NORDIC) acting by )
/s/ Xxxx Xxxxxxxxx )
as its duly authorised attorney-in-fact )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxxx Xxxxx )
for and on behalf of )
CITIBANK, N.A. )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
202
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxxxx )
attorney-in-fact for and on behalf of )
DEUTSCHE BANK AG IN HAMBURG )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
THE STANDBY LENDER
SIGNED AND DELIVERED AS A DEED by )
/s/ Sten-Xxxx Xxxxxx )
attorney-in-fact for and on behalf of )
SVENSKA HANDELSBANKEN AB (PUBL) )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
THE ISSUING BANKS
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxxxx )
attorney-in-fact for and on behalf of )
NORDEA BANK SVERIGE AB (PUBL) )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxx Xxxxxxxxx )
for and on behalf of )
JPMORGAN CHASE BANK )
by its authorised signatory )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
STENA AB
SIGNED AND DELIVERED AS A DEED by )
/s/ Xxxxxx Xxxxxxxx )
attorney-in-fact for and on behalf of )
STENA AB (PUBL.) )
in the presence of:- /s/ X. Xxxxxx )
Trainee Solicitor )
Xxxxxxxxxx Xxxxxxx )
One, St. Paul's Churchyard )
London )
XX0X 0XX )
203
