[GRAPHIC]
DATED FEBRUARY 2000
BETWEEN
BOSS LTD.
STAVANGER SUN LTD.
AS BORROWER
CHRISTIANIA BANK OG KREDITKASSE ASA
AS AGENT AND SECURITY TRUSTEE
AND
OTHERS
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AMENDMENT AGREEMENT
RELATING TO A
SENIOR FACILITY AGREEMENT
DATED 30 OCTOBER 1997
JUNIOR FACILITY AGREEMENT
DATED 30 OCTOBER 1997
PRIORITY AGREEMENT
DATED 30 OCTOBER 1997
AND
ASSIGNMENT OF EARNINGS AND INSURANCES
DATED 31 OCTOBER 1997
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XXXXXXXX CHANCE
THIS AGREEMENT is made on February 2000
BETWEEN
(1) BOSS LTD and STAVANGER SUN LTD., both companies duly incorporated in the
Cayman Islands each having its registered office at 3rd Floor, CIBC
Financial Centre, PO Box 1234, Xxxxxx Town, Grand Cayman, Cayman Islands
(the "BORROWERS", and singly a "BORROWER") acting jointly and severally;
(2) CHRISTIANIA BANK OG KREDITKASSE ASA as agent (under both the Senior
Facility Agreement and Junior Facility Agreement) and security trustee
(the "AGENT" and "SECURITY TRUSTEE"); and
(3) THE FINANCIAL INSTITUTIONS who are defined as banks under the Senior
Facility Agreement and senior lenders under the Priority Agreement (the
"SENIOR LENDERS");
(4) THE FINANCIAL INSTITUTIONS defined as banks under the Junior Facility
Agreement and junior lenders under the Priority Agreement (the "JUNIOR
LENDERS" together with the Senior Lenders, the "LENDERS");
(5) CHRISTIANIA BANK OG KREDITKASSE ASA defined as senior swap counterparty
under the Priority Agreement (together with the Senior Lenders, the
"SENIOR CREDITORS"); and
(6) CHRISTIANIA BANK OG KREDITKASSE ASA defined as junior swap counterparty
under the Priority Agreement (together with the Junior Lenders, the
"JUNIOR CREDITORS").
RECITALS
(A) By the Facility Agreements, the Lenders made loan facilities available
to the Borrowers upon the terms and subject to the conditions contained
therein.
(B) The Borrowers have requested and the Lenders have agreed to amend
certain provisions of the Facility Documents to reflect the change of
name of the Vessel "MT Stavanger Boss" to "Genmar Boss" and its
re-registration under a Xxxxxxxx Islands flag.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ASSIGNMENT OF EARNINGS AND INSURANCES" means the assignment of earnings
and insurances relating to the Vessel presently known as MT Stavanger
Boss dated 31 October 1997 between Boss Ltd as Owner and the Security
Trustee.
"EFFECTIVE DATE" means the date on which the Agent confirms to the
Lenders and the Borrower that it has received each of the documents
listed in Schedule 1 (CONDITIONS PRECEDENT) in a form and substance
satisfactory to the Agent.
"FACILITY AGREEMENTS" means the Senior Facility Agreement and the Junior
Facility Agreement.
"JUNIOR FACILITY AGREEMENT" means the Junior Facility Agreement dated 30
October 1997 as amended from time to time between the Borrowers, Agent
and others.
"NEW MORTGAGES" means the first preferred Xxxxxxxx Islands ship mortgage
to be granted by Boss Ltd in its capacity as Borrower under the Senior
Facility Agreement over its Vessel and the second preferred Xxxxxxxx
Islands ship mortgage to be granted by Boss Ltd. in its capacity as
Borrower under the Junior Facility Agreement over its Vessel.
"PRIORITY AGREEMENT" means the Priority Agreement dated 30 October 1997
as amended from time to time between the Borrowers, the Agent and
Security Trustee, the Senior Creditors and the Junior Creditors.
"SECOND AMENDMENT AGREEMENTS" means the amendment agreements to the
Facility Agreements dated 27 December 1999 between the Borrowers, the
Agent and the Lenders.
"SENIOR FACILITY AGREEMENT" means the Senior Facility Agreement dated 30
October 1997 as amended from time to time between the Borrowers, the
Agent, and others.
1.2 INCORPORATION OF DEFINED TERMS
Terms defined in the Senior Facility Agreement shall, unless otherwise
defined herein, have the same meaning herein and the principles of
construction set out in the Senior Facility Agreement shall have effect
as if set out in this Agreement.
1.3 CLAUSES
In this Agreement any reference to a "Clause" or "Schedule" is, unless
the context otherwise requires, a reference to a Clause or Schedule
hereof. Clause headings are for ease of reference only.
2. AMENDMENT
With effect from the Effective Date
(i) the Senior Lenders, the Borrowers and the Agent agree that the
Senior Facility Agreement shall be amended as set out in Part 1
of Schedule 2 (AMENDMENTS TO SENIOR FACILITY AGREEMENT).
(ii) the Junior Lenders, the Borrowers and the Agent agree that the
Junior Facility Agreement shall be amended as set out in Part 2
of Schedule 2 (AMENDMENTS TO THE JUNIOR FACILITY AGREEMENT);
(iii) the Senior Creditors, the Junior Creditors, the Borrowers and
the Agent and the Security Trustee agree that the Priority
Agreement shall be amended as set out in Part 3 of Schedule 2
(AMENDMENT TO THE PRIORITY AGREEMENT);
(iv) Boss Ltd and the Security Trustee agree that the Assignment of
Earnings and Insurances shall be amended as set out in Part 4 of
Schedule 2 (AMENDMENT TO THE ASSIGNMENT OF EARNINGS AND
INSURANCES).
3. REPRESENTATIONS
3.1 The Borrowers make the representations set out in Clause 12 of the
Senior Facility Agreement and Clause 12 of the Junior Facility Agreement
as if each reference therein to "this Agreement" or "the Facility
Documents" includes a reference to (a) this Agreement and (b) the
relevant Facility Agreement as amended by this Agreement.
3.2 Boss Ltd makes the representations set out in Clauses 3 and 8 of the
Assignment of Earnings and Insurances as if each reference therein to
"this Agreement" or "this Assignment" includes a reference to (a) this
Agreement and (b) the Assignment of Earnings and Insurances as amended
by this Agreement.
4. CONTINUITY AND FURTHER ASSURANCE
4.1 CONTINUING OBLIGATIONS
The provisions of the Facility Documents shall, save as amended hereby,
continue in full force and effect.
4.2 FURTHER ASSURANCE
Each of the Borrowers shall, at the request of the Agent and at its own
expense, do all such acts and things necessary or desirable to give
effect to the amendments effected or to be effected pursuant to this
Agreement.
5. FEES, COSTS AND EXPENSES
5.1 TRANSACTION EXPENSES
The Borrowers shall, from time to time on demand of the Agent, reimburse
the Beneficiaries (as defined under the Priority Agreement) for all
costs and expenses (including legal fees) together with any VAT thereon
incurred by it in connection with the negotiation, preparation and
execution of this Agreement, any other document referred to in this
Agreement and the completion of the transactions herein contemplated.
5.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrowers shall, from time to time on demand of the Agent, reimburse
the Beneficiaries for all costs and expenses (including legal fees) on a
full indemnity basis together with any VAT thereon incurred in or in
connection with the preservation and/or enforcement of any of the rights
of the Beneficiaries under this Agreement and any other document
referred to in this Agreement.
5.3 STAMP TAXES
The Borrowers shall pay all stamp, registration and other taxes to which
this Agreement, any other document referred to in this Agreement or any
judgment given in connection herewith is or at any time may be subject
and shall, from time to time on demand of the Agent, indemnify the
Beneficiaries against any liabilities, costs, claims and expenses
resulting from any failure to pay or any delay in paying any such tax.
6. MISCELLANEOUS
6.1 INCORPORATION OF TERMS
The provisions of clause 28 (REMEDIES AND WAIVER), clause 29 (PARTIAL
INVALIDITY), clause 31 (LAW) and clause 32 (JURISDICTION) of the Senior
Facility Agreement shall be incorporated into this Agreement as if set
out in full herein and as if references therein to "this Agreement" or
"the Facility Documents" are references to this Agreement.
6.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
7. CONSENT UNDER PRIORITY AGREEMENT
The Senior Creditors hereby consent to the amendment made or to be made
to the Junior Facility Agreement pursuant to this Agreement.
AS WITNESS the hands of duly authorised representatives of the parties hereto
the day and year first before written.
SCHEDULE 1
CONDITIONS PRECEDENT
1. In relation to each Borrower:
(a) a copy, certified as at the date of this Agreement a true and
up-to-date copy by a duly authorised officer of such Borrower,
certifying that, as at the date hereof, there has been no change
to the constitutional documents delivered by such Borrower
pursuant to the Senior Facility Agreement;
(b) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an a duly authorised officer of a board
resolution of such Borrower approving the execution, delivery
and performance of this Agreement and, in the case of Boss Ltd
as the relevant Borrower, the New Mortgages and the terms and
conditions hereof and authorising a named person or persons to
sign this Agreement and, in the case of Boss Ltd as the relevant
Borrower, the New Mortgages and any other documents to be
delivered by such Borrower pursuant hereto; and
(c) a certificate of an duly authorised officer of such Borrower
setting out the names and signatures of the persons authorised
to sign, on behalf of such Borrower, this Agreement and, in the
case of Boss Ltd as the relevant Borrower, the New Mortgages and
any other documents to be delivered by such Borrower pursuant
hereto.
2. A copy, certified a true copy by or on behalf of each Borrower, of each
such law, decree, consent, licence, approval, registration or
declaration as is, in the opinion of counsel to the Lenders, necessary
to render this Agreement and the New Mortgages legal, valid, binding and
enforceable, to make this Agreement and the New Mortgages admissible in
evidence in each Borrower's jurisdiction of incorporation and to enable
each Borrower to perform its obligations thereunder.
3. Confirmation from Xxxxxx & Xxxxxx LLP, the Lenders' Xxxxxxxx Islands
counsel that the New Mortgages have been registered at the Maritime
Administration Registry Office of the Republic of the Xxxxxxxx Islands
in New York in the name of the Vessel "Genmar Boss" (ex "Stavanger
Boss") owned by Boss Ltd.
4. An opinion of the Lenders' Counsel in the jurisdiction of incorporation
of each Borrower and the jurisdiction of the flag of the Vessel "Genmar
Boss" (ex "Stavanger Boss") satisfactory in form and substance to the
Agent and in substantially the form distributed to the Lenders prior to
the signing of this Agreement.
5. Payment of the Lender's legal fees pursuant to Clauses 5.2 of the Second
Amendment Agreements and Clause 5.2 of this Agreement.
SCHEDULE 2
PART 1
AMENDMENTS TO SENIOR FACILITY AGREEMENT
1. The definition of "MORTGAGES" at clause 1.1 of the Senior Facility
Agreement shall be deleted and replaced with the following:
"MORTGAGES" means each of the Norwegian International ship mortgages to
be granted by Stavanger Sun Ltd. as the relevant Borrower over its
Vessel and a first preferred Xxxxxxxx Islands ship mortgage to be
granted by Boss Ltd. as the relevant Borrower over its Vessel, to the
Security Trustee both pursuant to paragraph 1, Part 2 of the First
Schedule and "MORTGAGE" means any of them.
2. A new definition shall be added to Clause 1.1 of the Senior Facility
Agreement as follows:
"XXXXXXXX ISLANDS" means the Republic of the Xxxxxxxx Islands.
3. Clause 12.1(i) of the Senior Facility Agreement shall be deleted and
replaced with the following:
"STATUS It is a limited liability company duly organised under the laws
of the Cayman Islands with power to enter into the Facility Documents
and to exercise its rights and perform its obligations under the
Facility Documents and in respect of Boss Ltd., as the relevant
Borrower, it is duly qualified as a foreign maritime entity in the
Xxxxxxxx Islands and it has the power to register its Vessel at the
Maritime Administration Registry Office of the Republic of the Xxxxxxxx
Islands in New York and, in respect of Stavanger Sun Ltd. as the
relevant Borrower, it has power to register its Vessel in the office of
the Norwegian International Ship Register in Norway."
4. Clause 12.1(iii) of the Senior Facility Agreement shall be deleted and
replaced with the following:
"NO DEDUCTIONS OR WITHHOLDING Under the laws of the Caymen Islands,
Norway and the Xxxxxxxx Islands in force at the date hereof, it will not
be required to make any deduction or withholding from any payment it may
make under any of the Facility Documents."
5. Clause 12.1(iv) of the Senior Facility Agreement shall be deleted and
replaced with the following:
"CLAIMS PARI PASSU Without prejudice to the security constituted or
pursuant to any Facility Documents under the laws of the Cayman Islands,
Norway and the Xxxxxxxx Islands in force at the date hereof, the claims
of the Agent, the Banks and the Security Trustee against it under any
Facility Documents will, to the extent that such claims exceed the
realised value of the security therefore, rank at least pari passu with
the claims of all its other unsecured and non-subordinated creditors
save those whose
claims are preferred solely by any bankruptcy, insolvency or other
similar laws of general application.
6. Clause 12.1(vii) of the Senior Facility Agreement shall be deleted and
replaced with the following:
"VALIDITY AND ADMISSIBILITY IN EVIDENCE Other than the recording of the
Mortgage over its Vessel, in respect of Boss Ltd. as the relevant
Borrower, at the Maritime Administration Registry Offices of the
Republic of the Xxxxxxxx Islands and, in respect of Stavanger Sun Ltd.
as the relevant Borrower, at the office of the Norwegian International
Ship Register and any required registration in the Cayman Islands all
acts, conditions and things required to be done, fulfilled and performed
in order (a) to enable it lawfully to enter into, exercise its rights
under and perform and comply with the obligations expressed to be
assumed by it in the Facility Documents, (b) to ensure that the
obligations expressed to be assumed by it in the Facility Documents are
legal, valid and binding and (c) to make the Facility Documents
admissible in evidence in the Cayman Islands, have been done, fulfilled
and performed."
7. Paragraph 1(ii) of Part 2 of the First Schedule of the Senior Facility
Agreement shall be deleted and replaced with the following:
"in respect of Boss Ltd. as the relevant Borrower, the Xxxxxxxx
Islands ship mortgage granted by such Borrower over its Vessel
in favour of the Security Trustee in a form acceptable to the
Agent."
8. Paragraph 7(ii) of Part 2 of the First Schedule of the Senior Facility
Agreement shall be deleted and replaced with the following:
"in respect of Boss Ltd. as the relevant Borrower, evidence of
re-registration of its Vessel under the Xxxxxxxx Islands flag.
9. The Fourth Schedule of the Senior Facility Agreement shall be amended by
deleting the reference to the "MT Stavanger Boss" and replacing it with
a reference to "Genmar Boss".
SCHEDULE 2
PART 2
AMENDMENTS TO JUNIOR FACILITY AGREEMENT
1. The definition of "MORTGAGES" at clause 1.1 of the Junior Facility
Agreement shall be deleted and replaced with the following:
"MORTGAGES" means each of the Norwegian International ship mortgages to
be granted by Stavanger Sun Ltd. as the relevant Borrower over its
Vessel and a second preferred Xxxxxxxx Islands ship mortgage to be
granted by Boss Ltd. as the relevant Borrower over its Vessel, to the
Security Trustee both pursuant to paragraph 1, Part 2 of the First
Schedule and "MORTGAGE" means any of them.
2. A new definition shall be added to Clause 1.1 of the Junior Facility
Agreement as follows:
"XXXXXXXX ISLANDS" means the Republic of the Xxxxxxxx Islands.
3. Clause 12.1(i) of the Junior Facility Agreement shall be deleted and
replaced with the following:
"STATUS It is a limited liability company duly organised under the laws
of the Cayman Islands with power to enter into the Facility Documents
and to exercise its rights and perform its obligations under the
Facility Documents and in respect of Boss Ltd., as the relevant
Borrower, it is duly qualified as a foreign maritime entity in the
Xxxxxxxx Islands and it has the power to register its Vessel at the
Maritime Administration Registry Offices of the Republic of the Xxxxxxxx
Islands in New York and, in respect of Stavanger Sun Ltd. as the
relevant Borrower, it has power to register its Vessel in the office of
the Norwegian International Ship Register in Norway."
4. Clause 12.1(iii) of the Junior Facility Agreement shall be deleted and
replaced with the following:
"NO DEDUCTIONS OR WITHHOLDING Under the laws of the Caymen Islands,
Norway and the Xxxxxxxx Islands in force at the date hereof, it will not
be required to make any deduction or withholding from any payment it may
make under any of the Facility Documents."
5. Clause 12.1(iv) of the Junior Facility Agreement shall be deleted and
replaced with the following:
"CLAIMS PARI PASSU Without prejudice to the security constituted or
pursuant to any Facility Documents under the laws of the Cayman Islands,
Norway and the Xxxxxxxx Islands in force at the date hereof, the claims
of the Agent, the Banks and the Security Trustee against it under any
Facility Documents will, to the extent that such claims exceed the
realised value of the security therefore, rank at least pari passu with
the claims of all its other unsecured and non-subordinated creditors
save those whose
claims are preferred solely by any bankruptcy, insolvency or other
similar laws of general application.
6. Clause 12.1(vii) of the Junior Facility Agreement shall be deleted and
replaced with the following:
"VALIDITY AND ADMISSIBILITY IN EVIDENCE Other than the recording of the
Mortgage over its Vessel, in respect of Boss Ltd. as the relevant
Borrower, at the Maritime Administration Registry Offices of the
Republic of the Xxxxxxxx Islands and, in respect of Stavanger Sun Ltd.
as the relevant Borrower, at the office of the Norwegian International
Ship Register and any required registration in the Cayman Islands all
acts, conditions and things required to be done, fulfilled and performed
in order (a) to enable it lawfully to enter into, exercise its rights
under and perform and comply with the obligations expressed to be
assumed by it in the Facility Documents, (b) to ensure that the
obligations expressed to be assumed by it in the Facility Documents are
legal, valid and binding and (c) to make the Facility Documents
admissible in evidence in the Cayman Islands, have been done, fulfilled
and performed."
7. Paragraph 1(ii) of Part 2 of the First Schedule of the Junior Facility
Agreement shall be deleted and replaced with the following:
"in respect of Boss Ltd. as the relevant Borrower, the Xxxxxxxx
Islands ship mortgage granted by such Borrower over its Vessel
in favour of the Security Trustee in a form acceptable to the
Agent."
8. Paragraph 7(ii) of Part 2 of the First Schedule of the Junior Facility
Agreement shall be deleted and replaced with the following:
"in respect of Boss Ltd. as the relevant Borrower, evidence of
re-registration of its Vessel under the Xxxxxxxx Islands flag.
9. The Fourth Schedule of the Junior Facility Agreement shall be amended by
deleting the reference to the "MT Stavanger Boss" and replacing it with
a reference to "Genmar Boss".
SCHEDULE 2
PART 3
AMENDMENTS TO PRIORITY AGREEMENT
1. Clause 1(i) of the Second Schedule to the Priority Agreement shall be
deleted and replaced as follows:
"(a) in respect of the Vessel Stavanger Sun to be owned by Stavanger
Sun Ltd, the Norwegian International ship mortgages over such
Vessel; and
(b) in respect of the Vessel Genmar Boss to be owned by Boss Ltd,
the first preferred and the second preferred Xxxxxxxx Islands
ship mortgages over such Vessel.
SCHEDULE 2
PART 4
AMENDMENTS TO ASSIGNMENTS OF EARNINGS AND INSURANCES
1. Recital G shall be deleted and replaced with the following:
"This Assignment is collateral to the New Mortgages over the Vessel
dated on or about 17 February 2000 and granted by Boss Ltd as Owner in
favour of Christiania Bank og Kreditkasse ASA acting as Security
Trustee".
SIGNATURES
THE BORROWERS
BOSS LTD.
By:
STAVANGER SUN LTD.
By:
THE AGENT
CHRISTIANIA BANK OG KREDITKASSE ASA
By:
THE SECURITY TRUSTEE
CHRISTIANIA BANK OG KREDITKASSE ASA
By:
THE SENIOR LENDERS
CHRISTIANIA BANKS OG KREDITKASSE ASA
By:
UNION BANK OF NORWAY
By:
SKANDINAVISKA ENSKILDA BANKEN
By:
THE JUNIOR LENDERS
CHRISTIANIA BANK OG KREDITKASSE ASA
By:
FOKUS BANK ASA
By:
THE SENIOR SWAP COUNTERPARTY
CHRISTIANIA BANKS OG KREDITKASSE ASA
By:
THE JUNIOR SWAP COUNTERPARTY
CHRISTIANIA BANKS OG KREDITKASSE ASA
By:
