Date 31 August 2010 MITSUI O.S.K. LINES, LTD. as Seller TOKYO LNG TANKER CO., LTD. as Purchaser HÖEGH LNG LIMITED and SRV JOINT GAS TWO LIMITED NOVATION DEED Watson, Farley & Williams London
EXHIBIT 10.22
Date 31 August 2010
MITSUI O.S.K. LINES, LTD.
as Seller
TOKYO LNG TANKER CO., LTD.
as Purchaser
HÖEGH LNG LIMITED
and
SRV JOINT GAS TWO LIMITED
NOVATION DEED
Xxxxxx, Xxxxxx & Xxxxxxxx
London
INDEX
| Clause | Page | |||||
| 1 |
DEFINITIONS | 1 | ||||
| 2 |
NOVATION AND AMENDMENT OF LOAN AGREEMENT | 2 | ||||
| 3 |
PURCHASER’S UNDERTAKING | 2 | ||||
| 4 |
COMPANY’S UNDERTAKINGS AND PARTIAL RELEASE OF SELLER | 2 | ||||
| 5 |
SELLER’S UNDERTAKING AND PARTIAL RELEASE OF THE COMPANY | 3 | ||||
| 6 |
SELLER’S REPRESENTATIONS | 3 | ||||
| 7 |
COUNTERPARTS | 3 | ||||
| 8 |
GOVERNING LAW AND JURISDICTION | 3 | ||||
| SCHEDULE THE AMENDED LOAN AGREEMENT | 6 | |||||
THIS NOVATION DEED is made at a.m./p.m. on 31 August 2014
BETWEEN:
| (1) | MITSUI O.S.K. LINES, LTD., a company incorporated under the laws of Japan, having its principal office at 0-0, Xxxxxxxxx, 0-Xxxxx, Xxxxxx-xx, Xxxxx, Xxxxx 105-8688 (the “Seller”); |
| (2) | TOKYO LNG TANKER CO., LTD., a company incorporated under the laws of Japan, having its address at 0-0-00 Xxxxxx, Xxxxxx-xx, Xxxxx, Xxxxx 000-0000 (the “Purchaser”); |
| (3) | HÖEGH LNG LIMITED, a company incorporated pursuant to the laws of Bermuda, having its address at Canon’s Court, 00 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX00 Bermuda (“HLNG”); and |
| (4) | SRV JOINT GAS TWO LIMITED, a company incorporated under the laws of the Cayman Islands having its registered office at Xxxxxxx Xxxxx, 00 Xxxx Xxxxxx, Xxxxxx Xxxx, X.X. Xxx 0000, Xxxxx Xxxxxx XXX-0000, Xxxxxx Xxxxxxx (the “Company”). |
WHEREAS:
| (A) | As at the time and date that this Deed is signed and delivered, the Seller owns fifty per cent. (50%) of the Company. The business of the Company is partially funded by the loan pursuant to the Loan Agreement. |
| (B) | The Seller has agreed to sell, and the Purchaser has agreed to purchase, 1.5 per cent. of the shares in the Company from the Seller pursuant to the Share Purchase Agreement (as defined in this Deed), being 3 per cent. of the Seller’s shares in the Company (equivalent to 750 shares in the Company). |
| (C) | As part of that transaction, the Seller has agreed to transfer 3 per cent. of the obligations owed to the Seller by the Company under the Loan Agreement. |
| (D) | At the date of this Deed, the principal amount of the Loan outstanding pursuant to the Loan Agreement is $18,371,058 and there is $ 253,112 of interest accrued or outstanding. |
NOW IT IS AGREED as follows:
| 1 | DEFINITIONS |
| 1.1 | Definitions. In this Deed, including the recitals, unless the context requires otherwise: |
“Completion” has the meaning given in the Share Purchase Agreement;
“Loan” means the unsecured and interest-bearing shareholder loan from the Seller to the Company pursuant to the Loan Agreement;
“Loan Agreement” means the shareholder loan and novation agreement entered into between the Seller, HLNG, the Company and SRV Joint Gas Limited on 20 December 2007 and subsequently amended on 25 May 2010;
“Loan Date” means 20 December 2007;
“Novation” has the meaning ascribed to it in Clause 2.1;
“Novation Amount” means an amount equal to $558,725.10; and
“Share Purchase Agreement” means the agreement relating to the sale and purchase of certain shares in the Company made between the Seller and the Purchaser entered into on the date hereof.
| 2 | NOVATION AND AMENDMENT OF LOAN AGREEMENT |
| 2.1 | Novation. With effect from Completion, the Seller, HLNG and the Company agree to novate to the Purchaser 3 per cent. of the principal amount of the Loan, along with all accrued interest and all of the Seller’s accrued rights and obligations under the Loan Agreement relating to that amount in the period from the Loan Date up to and including the date of Completion (the “Novation”). |
| 2.2 | Validity of novation. The novation contained in Clause 2.1 shall be valid and take effect pursuant to this Deed, irrespective of whether the Loan Agreement was itself duly authorised and executed by the parties to it. |
| 2.3 | Amendment of Loan Agreement. With effect on and from Completion, the Loan Agreement will be amended so that it shall be read and construed for all purposes as set out in the Schedule, where it is set out in full. |
| 3 | PURCHASER’S UNDERTAKING |
| 3.1 | Payment of Novation Amount. The Purchaser hereby undertakes to pay the Novation Amount to the Seller at Completion in accordance with Clause 3.1(b) of the Share Purchase Agreement. |
| 3.2 | Purchaser’s undertakings. In order to give effect to the Novation, and with effect from Completion, the Purchaser hereby: |
| (a) | undertakes to the Seller, HLNG and the Company to observe, perform, discharge and be bound by the Loan Agreement as if the Purchaser was a lender under the Loan Agreement in respect of the Novation Amount; |
| (b) | undertakes to the Seller, HLNG and the Company to observe, perform, discharge and be bound by the Loan Agreement as if the Purchaser was a lender of 3 per cent. of the Loan under the Loan Agreement in respect of obligations falling to be performed by a lender on and from the date of Completion; and |
| (c) | accepts the Company’s undertaking to observe, perform, discharge and be bound by the Loan Agreement (to the extent set out in Clause 4). |
| 3.3 | Events prior to Completion. Notwithstanding the foregoing undertakings, nothing in this Deed shall: |
| (a) | require the Purchaser to perform any obligation created by or arising under the Loan Agreement falling due for performance, or which should have been performed, before Completion; or |
| (b) | make the Purchaser liable for any act, neglect, default or omission in respect of the Loan Agreement committed by the Seller before Completion or any other liability in respect of the Loan Agreement arising prior to Completion. |
| 4 | COMPANY’S UNDERTAKINGS AND PARTIAL RELEASE OF SELLER |
| 4.1 | Company’s undertakings. With effect from Completion, the Company hereby: |
2
| (a) | releases and discharges the Seller from its obligations to observe, perform, discharge and be bound by the Loan Agreement, to the extent that such obligations are assumed by the Purchaser; |
| (b) | accepts the Purchaser’s undertaking to observe, perform, discharge and be bound by the Loan Agreement (to the extent set out in Clause 3); and |
| (c) | undertakes to the Purchaser to observe, perform, discharge and be bound by the Loan Agreement as if the Purchaser was the lender under that Loan Agreement in respect of the Novation Amount. |
| 5 | SELLER’S UNDERTAKING AND PARTIAL RELEASE OF THE COMPANY |
| 5.1 | Seller’s undertakings. With effect from Completion, the Seller hereby: |
| (a) | releases and discharges the Company from its obligations to the Seller to observe, perform, discharge and be bound by the Loan Agreement, to the extent that such obligations relate to the Novation Amount; and |
| (b) | indemnifies the Purchaser fully against any loss, damage or costs suffered, sustained or incurred by the Purchaser as a result of any act, neglect, default or omission in respect of the Loan Agreement committed by the Seller before Completion. |
| 6 | SELLER’S REPRESENTATIONS |
| 6.1 | Representations. The Seller represents to the Purchaser that, as at the date first written above: |
| (a) | all payments due under the Loan Agreement have been paid and there are no disputes outstanding between the Company and the Seller under the Loan Agreement; and |
| (b) | the Loan Agreement has not been amended, assigned, novated, supplemented, cancelled or terminated, save as described in Clause 1.1 above. |
| 7 | COUNTERPARTS |
| 7.1 | Effective date. This Deed may be executed in any number of counterparts, and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart. |
| 7.2 | Originals. Each counterpart shall constitute an original of this Deed, but all the counterparts shall together constitute but one and the same instrument. |
| 8 | GOVERNING LAW AND JURISDICTION |
| 8.1 | Governing law. This Deed and any non-contractual obligations arising out of or in connection with it are governed by and construed in accordance with English law. |
| 8.2 | Exclusive jurisdiction. The courts of England shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Deed, including any dispute concerning any non-contractual obligation arising out of or in connection with this Deed, and each of the parties irrevocably submits to the jurisdiction of such courts. |
| 8.3 | Appointment of process agent. |
| (a) | The Seller hereby irrevocably appoints Mitsui O.S.K. Bulk Shipping (Europe) Ltd of Xxxxxx Xxxxx, Xxxxx Xxxx Xxxxx, Xxxxxx XX0X 0XX as its agent for service of process in respect of proceedings before such courts. |
3
| (b) | The Purchaser hereby irrevocably appoints WFW Legal Services Limited of 00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX as its agent for service of process in respect of proceedings before such courts. |
| (c) | HLNG and the Company hereby irrevocably appoint Xxxx Xxxxx UK Ltd of 0 Xxxxx Xxxxxx, Xxxxxx X0 0XX as their agent for service of process in respect of proceedings before such courts. |
| 8.4 | Meaning of proceedings. In this Clause 8, “proceedings” means proceedings of any kind, including an application for a provisional or protective measure. |
IN WITNESS of which this document has been executed as a deed and delivered on the date stated at the beginning of this Deed.
| EXECUTED and DELIVERED as a deed | ) | /s/ XXXXXX XXXX | ||
| by affixing a seal of | ) | |||
| Xx. Xxxxxx Xxxx, | ) | |||
| a Representative Director of: | ) | |||
| MITSUI O.S.K. LINES, LTD. | ) | |||
| EXECUTED and DELIVERED as a deed | ) | /s/ KAZUMASA HIDAI | ||
| by affixing a seal of | ) | |||
| Xx.Xxxxxxxx Xxxxx, | ) | |||
| a Representative Director of: | ) | |||
| TOKYO LNG TANKER CO., LTD | ) | |||
| EXECUTED and DELIVERED as a deed by | ) | /s/ XXXX XXXXXXXX | ||
| an Attorney on behalf of | ) | |||
| HÖEGH LNG LIMITED | ) | |||
In the presence of:
| Witness’ signature: | /s/ XXXXXXX XXXX | |
| Name of witness: | XXXXXXX XXXX | |
| Occupation: | Attorney-at-law | |
| Address: | Xxxxxxxxxxxxx 000, 0000 Xxxx, Xxxxxx |
4
| EXECUTED and DELIVERED | ) | |||
| as a deed by | ) | |||
| SRV JOINT GAS TWO LIMITED | ) | |||
| acting by an Attorney | ) | /s/ ØRJAN HOMME | ||
| Attorney Ørjan Homme |
In the presence of:
| Witness’ signature: | /s/ XXXXXXX XXXX | |
| Name of witness: | XXXXXXX XXXX | |
| Occupation: | Attorney-at-law | |
| Address: | Xxxxxxxxxxxxx 000, 0000 Xxxx, Xxxxxx |
5
SCHEDULE
THE AMENDED LOAN AGREEMENT
6
UP TO USD 50,000,000
AMENDED AND RESTATED
Dated 31 August 2010
Entered into between
Höegh LNG Limited
and
Mitsui O.S.K. Lines, Ltd.
and
Tokyo LNG Tanker Co., Ltd.
as Lenders
and
SRV Joint Gas Two Ltd.
as Borrower
Page 1 of 4
THIS AGREEMENT (the “Agreement”) is dated as of 31st day of August 2010, and entered into between
| (1) | Höegh LNG Limited, a company incorporated pursuant to the laws of Bermuda, having its address at Xxxxxx’x Court, 00 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX00 Bermuda (“HLNG”) |
| (2) | Mitsui O.S.K. Lines, Ltd., a company incorporated pursuant to the laws of Japan, having its principal offices at 0-0, Xxxxxxxxx, 0-Xxxxx, Xxxxxx-xx, Xxxxx, Xxxxx 105-8688 (“MOL”) |
| (3) | Tokyo LNG Tanker Co. Ltd, a company incorporated pursuant to the laws of Japan, having its principal offices at 0-0-00, Xxxxxx, Xxxxxx-xx, Xxxxx, Xxxxx 105-8527 (“TLT”); |
(each the “Lender”, and collectively the “Lenders” or the “Shareholders”)
and
| (4) | SRV Joint Gas Two Ltd., a company incorporated pursuant to the laws of the Cayman Islands, having its registered offices at Xxxxxxx Xxxxx, 00 Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx (the “Company”). |
WHEREAS:
| A. | The Company has entered into a novation agreement pursuant to the terms and conditions of which the rights and obligations pursuant to a ship building contract dated 7 April 2006 with Samsung Heavy Industries Co., Ltd. (the “Builder”) in respect of the construction of one shuttle and regasification vessel with Builder’s hull number 1689 (the “Vessel”) have been novated from SRV Joint Gas Limited to the Company. |
| B. | MOL and HLNG have entered into a shareholders’ loan agreement dated 20 December 2007 and amended as of 25 May 2010 in the amount of up to USD 50,000,0000 (the “Shareholders’ Loan Agreement”). |
| C. | The Vessel was delivered on 1 June 2010 (the “Delivery Date”). |
| D. | TLT acquired 1.5% of the issued share capital of the Company (the “TLT Shares”) from MOL on 31 August 2010. |
| E. | Pursuant to the Novation Deed entered among MOL, TLT, HLNG and the Company on 31 August 2010 (the “Novation Deed”), 3.0% of the principal amount of the loan from MOL to the Company plus accrued interest thereon was transferred to TLT. |
| F. | Following TLT’s acquisition of the TLT Shares, the parties have agreed to amend and restate the term of the Shareholder’s Loan Agreement as further set out herein. |
Terms defined in the Shareholders’ Agreement shall, unless the context requires otherwise, have the same meanings when used in this Agreement.
Page 2 of 4
NOW THEREFORE, the parties hereto have agreed that the Lenders shall provide shareholder loans to the Company on the terms and conditions as follows:
| 1. | LENDERS |
HLNG, MOL and TLT in proportion to their respective relative shareholding in the Company.
| 2. | LOAN AMOUNT |
The total loan amount to be up to USD 50,000,000.
| 3. | ADVANCES |
The Company acknowledges that, as at the date hereof, the Company is indebted to HLNG, MOL and TLT, respectively, in the principal amount of USD 18,371,058, USD 17,819,926.26 and USD 551,131.74 plus accrued interest (which is as of 31 August 2010 USD 253,112, USD 245,518.64 and USD 7,593.36 in favour of HLNG, MOL and TLT respectively).
| 4. | TERM |
The loans shall have a term corresponding to the period prior to the 12th anniversary of the Delivery Date.
| 5. | REPAYMENT |
The principal amount outstanding including accrued interest shall be repaid on “pay you earn” basis within the 12th anniversary of the Delivery Date. It is agreed and acknowledged between the parties, that repayment shall be prioritized to any dividend payments by the Company to the Lenders.
| 6. | INTEREST |
The loans shall bear an interest rate of 8 (eight) % p.a.
Interest shall be accrued quarterly at the last day of June, September, December and March of each year, and capitalised into the loan balance.
| 7. | PREPAYMENT |
The Company shall be free to prepay the outstanding loan amount without penalty in whole or in parts at any time subject to 3 (three) business days prior notice provided that any prepayment shall be made rateably to each Lender.
| 8. | EXPENSES |
Any expenses incurred by the Lenders in relation to entering into this Shareholder Loan Agreement shall be borne by the Company.
| 9. | GOVERNING LAW |
This Agreement shall be governed by and construed in accordance with English Law.
Page 3 of 4
| For and on behalf of Mitsui O.S.K. Lines, Ltd. (as Lender) |
For and on behalf of Höegh LNG Limited (as Lender) | |||
| /s/ XXXXXX XXXX |
/s/ XXXX XXXXXXXX | |||
| Name: Xxxxxx Xxxx Title: Representative Director |
Name: Xxxx Xxxxxxxx Title: Attorney-in-fact | |||
| For and on behalf of Tokyo LNG Tanker Co., Ltd. (as Lender) |
For and on behalf of SRV Joint Gas Two Ltd. (as Borrower) | |||
| /s/ KAZUMASA HIDAI |
/s/ ØRJAN HOMME | |||
| Name: Kazumasa Hidai Title: Representative Director |
Name: Ørjan Homme Title: Attorney-in-fact | |||
Page 4 of 4
