THIS AGREEMENT is dated 8 December 2004 and is made BETWEEN:-
(1) STENA INTERNATIONAL B.V. and STENA (SWITZERLAND) AG as Borrowers;
(2) CITIGROUP GLOBAL MARKETS LTD., DNB NOR BANK ASA, HSBC BANK PLC, X. X.
XXXXXX PLC, NORDEA BANK AB (PUBL) and SVENSKA HANDELSBANKEN AB (PUBL) as
Co-Arrangers;
(3) the banks and financial institutions whose names and addresses are set out
in Schedule 1 as Banks;
(4) NORDEA BANK AB (PUBL) and JPMORGAN CHASE BANK, N.A. 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 agree, according to their several obligations, to make available
to the Borrowers a multipurpose corporate facility of up to $970,000,000
and the Standby Lender agrees to provide a $30,000,000 standby facility to
the Borrowers to be used in aggregate for the purpose of enabling the
Borrowers:-
(A) to refinance on the Availability Date all of the Financial
Indebtedness then outstanding under the SIBV $600m Facility Agreement,
the SIBV $275m Facility Agreement, the Stena Discovery Facility
Agreement, the Stena F-Class Facility Agreement, the Mont Ventoux
Facility Agreement and the Svealand Facility Agreement (including, for
this purpose, the amount of any undrawn and available amounts under
the SIBV $600m Facility Agreement and the SIBV $275m Facility
Agreement) and, in connection with the refinancing of the Financial
Indebtedness under the SIBV $600m Facility Agreement, to provide for
the maintenance of the existing bank guarantees issued on behalf of
SIBV and the other relevant members of the Stena AB Group thereunder;
and
(B) thereafter, to provide finance for general corporate purposes of
members of the Stena International Group (including, in the case of
the Standby Lender, a $30,000,000 standby facility) and to provide for
the issuance of new guarantees.
1.2 DEFINITIONS
In this Agreement, unless the context otherwise requires:-
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"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:-
(i) either Borrower or any Subsidiary of either Borrower; 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) is for a liability or Indebtedness in Dollars or any other freely
convertible Eurocurrency;
(C) 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;
(D) 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
(E) 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 Borrowers
under Clause 3 or (as the context may require) the principal amount of such
borrowing for the time being outstanding;
"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;
"AGREED FORM CERTIFICATE"
means the certificate dated of even date herewith executed by the Borrowers
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
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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(J);
"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;
"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 audited annual financial statements of SIBV;
"AUDITED STENA SWITZERLAND FINANCIAL STATEMENTS"
means the audited annual financial statements of SSAG;
"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 Schedule 6 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
Borrowers cancel all of the Commitments under Clause 9.8 or (ii) on which
the Commitments of all the Banks are reduced to zero pursuant to Clauses
9.3, 9.6, 9.7, 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;
"BANK GUARANTEE"
means, with effect from the Availability Date, any Existing Bank Guarantee
issued by an Existing Guarantee Provider and any guarantee issued by the
New Guarantee Provider pursuant to this Agreement;
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"BANK GUARANTEE REQUEST"
means a notice substantially in the terms of Schedule 5;
"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;
"BORROWERS"
means SIBV and SSAG;
"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 (as determined in accordance with
Swedish GAAP), except to the extent that such cash or cash equivalents are
subject to a Lien in favour of any person other than the Security Agent
(but excluding bankers' rights of set-off and possessory liens in favour of
any broker or other person in whose custody any relevant securities are
held, in each case arising in the ordinary course of business);
"CASH COLLATERAL ACCOUNTS"
means each account in the name of the Borrowers (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 held in Sweden, 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 17 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, such pledge to be governed by the law of the jurisdiction in which
the relevant Cash Collateral Account is held);
"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
Borrowers 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
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impair the ability of the Borrowers 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 Borrowers;
"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
11 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 or operates the relevant Ship or
Linkspan under a time charter or a demise or bareboat charter or (in
respect of a rig or a drilling unit) a drilling contract executed or
(as the context may require) to be executed in favour of the Security
Agent by such Stena Charterer pursuant to Clause 15.1 in substantially
the form set out in Schedule 12.1 to the Agreed Form Certificate (in
respect of any charters) and in the form of Schedule 12.2 to the
Agreed Form Certificate (in respect of any drilling contracts); 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 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 Borrowers, 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
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Germanischer Xxxxx or Bureau Veritas or American Bureau of Shipping or such
other classification society which the Agent shall, at the request of the
Borrowers, 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 Citigroup Global Markets Ltd., DnB NOR Bank ASA, HSBC Bank plc, X. X.
Xxxxxx plc, Nordea Bank AB (publ) and Svenska Handelsbanken AB (publ) and
includes their respective successors in title and assignees;
"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);
"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;
"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 and the
terms "CONSOLIDATED" and "CONSOLIDATED" shall be construed accordingly;
"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 the sale or letting of an asset, terms whereby the
whole or part of the consideration for such sale or letting 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;
"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
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in the form set out in Schedule 6 to the Agreed Form Certificate or in
relation to m.v. "STENA CARISMA" and her related Linkspans, in the
form set out in Schedule 7 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 9.3;
"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
(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;
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(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;
(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 $25,000 or the
8
equivalent thereof in any other currency) the date on which the sale
of such Mortgaged Port or part thereof is completed;
(G) in the case of a sale of the shares in the capital of any Port Owner,
the date on which the sale of such shares is completed;
"DOLLARS" and "$"
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 4;
"DUTCH GAAP"
means generally accepted accounting principles in the Kingdom of the
Netherlands, consistently applied;
"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 parts 1 and 2 of Schedule 3 which
have been issued by the Existing Guarantee Providers as "Issuing Banks"
under the SIBV $600m Facility Agreement and which, with effect from the
Availability Date, are to be treated as Bank Guarantees issued respectively
by Nordea Bank AB (publ) (in respect of those bank guarantees listed in
part 1 of Schedule 3) and by JPMorgan Chase Bank, N.A. (in respect of those
bank guarantees listed in part 2 of Schedule 3);
"EXISTING GUARANTEE PROVIDERS"
means Nordea Bank AB (publ) acting through its office at Xxxxx Xxxxxxxxx
00, XX-000 00 Xxxxxxxx, Xxxxxx (in respect of those bank guarantees listed
in part 1 of Schedule 3) and JPMorgan Chase Bank, N.A. acting through its
office at 000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX (in respect of those bank
guarantees listed in part 2 of Schedule 3);
"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
9
Bank Guarantee (other than an Existing Bank Guarantee) is extended pursuant
to Clause 5;
"FINANCIAL INDEBTEDNESS"
means any indebtedness (other than indebtedness owed to another member of
the Stena AB group) for or in respect of:-
(A) moneys borrowed;
(B) any amount raised by any acceptance credit;
(C) any amount raised by any bond, note, debenture, loan stock or similar
instrument;
(D) the amount of any liability in respect of any finance or capital lease
or hire purchase contract which would, in accordance with Swedish
GAAP, be treated as a finance or capital lease;
(E) receivables sold or discounted (other than on a non-recourse basis);
(F) 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);
(G) any derivative transaction protecting against or benefiting from
fluctuations in any rate or price (and, when calculating the value of
any derivative transaction, only the xxxx-to-market value shall be
taken into account);
(H) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing;
(I) any counter-indemnity obligation in respect of a guarantee, indemnity,
bond, standby or documentary letter of credit or any other instrument
issued by a bank or financial institution; and
(J) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (A) to (I) above.
"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;
"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 Financial Indebtedness of any other person (the "PRIMARY
OBLIGOR") in any manner,
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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 Financial Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of
such Financial Indebtedness;
(B) to purchase property, securities or services for the purpose of
assuring the holder of such Financial Indebtedness of the payment of
such Financial Indebtedness; 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 Financial Indebtedness
(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 first 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 15 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;
"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;
"2012 INDENTURE"
means the Indenture dated as of 27 November 2002 made between Stena AB and
JPMorgan Chase Bank as Trustee in relation to the issue of the 2012 Notes
as referred to in the final prospectus of Stena AB relating to the initial
public offering of such Notes, such prospectus having been filed with the
Securities and Exchange Commission in Washington, DC with registration no.
333-102110;
"2013 INDENTURE"
means the Indenture dated as of 2 December 2003 made between Stena AB and
JPMorgan Chase Bank as Trustee in relation to the issue of the 2013 Notes
as referred to in the final prospectus of Stena AB relating to the initial
public offering of such Notes, such prospectus having been filed with the
Securities and Exchange Commission in Washington, DC with registration no.
333-111353;
"2016 INDENTURE"
means the Indenture dated as of 23 November 2004 made between Stena AB and
JPMorgan Chase Bank, N.A. as Trustee in relation to the issue of the 2016
Notes;
"INDENTURES"
means the 2012 Indenture, the 2013 Indenture and the 0000 Xxxxxxxxx or,
where the context so requires, means any of them;
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"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);
"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 and "INSURANCE ASSIGNMENTS" means all of such assignments;
"ISM CODE"
means the International Safety Management Code for the Safe Operation of
Ships and for Pollution Prevention adopted by the International Maritime
Organisation;
"ISPS CODE"
means the International Ship and Port Facility Security Code, as adopted by
the Conference of Contracting Governments to the Safety of Life at Sea
Convention 1974 on 13 December 2002 and incorporated as Chapter XI-2 of the
Safety of Life at Sea Convention 1974;
"ISSUING BANK"
means, in respect of the Existing Bank Guarantees, the relevant Existing
Guarantee Provider as stated in Schedule 3 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 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
12
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 Financial Indebtedness 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 CHATTEL MORTGAGE"
means, in the case of the Linkspan named "STENA 407B", the first priority
English law chattel mortgage 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;
"LINKSPAN MORTGAGE"
means:-
(A) in the case of the two Linkspans named "LINKSPAN I" and "LINKSPAN II",
the first 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 4 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 7 to the Agreed Form Certificate;
(B) in the case of the two Linkspans named "STENA 407A" and "STENA 407B",
the first priority Netherlands ship mortgage on such Linkspan to be
executed and registered by Stena Line Scandinavia in the form or
substantially in the form set out in Schedule 8 to the Agreed Form
Certificate; and
(C) in the case of any other Linkspan over which a 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 paragraphs (A) and (B) 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";
13
(C) the linkspan named "STENA 407A" registered under Dutch flag in the
Register of Ships of the Public Registers in Rotterdam in the name of
Stena Line Scandinavia under official number 23104 B R 1997, which
linkspan is at the date of this Agreement located at Hoek xxx Xxxxxxx,
The Netherlands and used in connection with the operation of m.v.
"STENA DISCOVERY";
(D) the linkspan named "STENA 407B" registered under Dutch flag in the
Register of Ships of the Public Registers in Rotterdam in the name of
Stena Line Scandinavia under official number 23105 B R 1997, which
linkspan is at the date of this Agreement located at Harwich, England
and used in connection with the operation of m.v. "STENA DISCOVERY";
(E) 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 during the Security Period directly or indirectly as
security for the obligations of the Borrowers 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 8 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 13 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 zero point seven five per cent (0.75%) (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;
14
"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;
"MONT VENTOUX FACILITY"
means the loan facility in the amount of twenty million one hundred and
fifty thousand Dollars ($20,150,000) made available to SIBV pursuant to the
Mont Ventoux Facility Agreement;
"MONT VENTOUX FACILITY AGREEMENT"
means the loan facility agreement dated 12 March 2004 as amended by a
supplemental letter dated 23 June 2004 made between (1) SIBV as borrower,
(2) Citibank N.A. as arranger, (3) Citibank N.A., HSBC Bank plc,
Skandinaviska Enskilda Xxxxxx XX (publ) and Svenska Handelsbanken AB (publ)
as lenders, (4) Citibank International plc as agent and (5) Stena AB as
guarantor pursuant to which such lenders agreed to make available to SIBV a
secured term loan facility in the amount of twenty million one hundred and
fifty thousand Dollars ($20,150,000);
"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 CASH SALE PROCEEDS"
means:-
(A) in relation to a Mortgaged Ship and (if relevant) its related
Linkspans or share
15
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 AB (publ) acting through its office at Xxxxx Xxxxxxxxx
00, XX-000 00 Xxxxxxxx, Xxxxxx;
"NON-RECOURSE DEBT"
means Financial Indebtedness or that portion of Financial Indebtedness 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 Financial Indebtedness); or
(ii) is directly or indirectly liable (whether pursuant to a guarantee
or
16
otherwise) for such Financial Indebtedness; and
(B) no default with respect to such Financial Indebtedness (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 Financial Indebtedness
of Stena AB or any Subsidiary of Stena AB to declare a default on such
other Financial Indebtedness or cause the payment thereof to be
accelerated or payable prior to its Stated Maturity;
"2012 NOTES"
means the Senior Notes due 2012 issued by Stena AB in an amount of
$200,000,000 pursuant to the 2012 Indenture;
"2013 NOTES"
means the Senior Notes due 2013 issued by Stena AB in an amount of
$175,000,000 pursuant to the 2013 Indenture;
"2016 NOTES"
means the Senior Notes due 2016 issued by Stena AB in an amount of
$250,000,000 pursuant to the 0000 Xxxxxxxxx;
"NOTES"
means the 2012 Notes, the 2013 Notes and the 2016 Notes or, where the
context so requires, means any 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;
"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 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
17
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 Borrowers 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 Borrowers 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 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 Borrowers' 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 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;
18
(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 Xxxxxxxx Xxx 0000 and, in the case of
Stranraer Port or any other Port situated in Scotland, the Town and Country
Planning (Scotland) Act 1997 (including in each case any Act or Acts for
the time being amending or replacing such Acts and any 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;
19
"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;
"RECEIVABLES ASSIGNMENT"
means the assignment to be granted in favour of the Security Agent in
accordance with Clause 9.3(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 18 to the Agreed Form Certificate in relation to a Ship sold
on terms set out in paragraph (A) of the definition of Transferred
Ship;
(B) Schedule 19 to the Agreed Form Certificate in relation to a Ship sold
on terms set out in paragraph (B) of the definition of Transferred
Ship;
"REFERENCE BANKS"
means the principal London offices of Svenska Handelsbanken AB (publ),
JPMorgan Chase Bank, N.A. and Nordea Bank Finland Plc and/or any other Bank
appointed as such pursuant to this Agreement;
"REFINANCE"
means renew, extend, refinance, replace or refund any Financial
Indebtedness and shall be deemed to include successive refinancings;
"RELEVANT INSURED AMOUNT"
means, as at any relevant date in relation to a Mortgaged Ship referred to
in Clause 15.21, an amount in Dollars equal to the relevant fraction as at
such date of the Commitments (excluding any portion thereof which is
suspended pursuant to Clause 9.3(E)(i)), for which purpose the expression
"RELEVANT FRACTION" shall mean a fraction whose numerator is the market
value of the relevant Mortgaged Ship as most recently determined pursuant
to Clause 9.3(G) and whose denominator is the aggregate of the market
values (as so determined) of all the Mortgaged Ships, the Mortgaged
Linkspans and the Mortgaged Ports at that time (including such Mortgaged
Ship itself) as most recently determined pursuant to Clauses 9.3(G) and
(H);
"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;
"RESTRICTED GROUP"
means all members of the Stena AB Group which are not Unrestricted
Subsidiaries;
"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
20
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;
"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;
"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 Linkspan Chattel Mortgage, 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 Execution Date be executed to guarantee and/or secure all
or any part of any moneys from time to time owing by the Borrowers pursuant
to this Agreement (whether or not any such document also secures moneys
from time to time owing pursuant to any other document or agreement);
"SECURITY PARTY"
means 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 or, in respect of any Bank Guarantee expiring
after the Termination Date, the provision to the New Guarantee Provider of
an acceptable counter-indemnity or cash collateral security in the manner
provided in Clause 4.5(B);
"SHIP MORTGAGE"
means, in relation to an Owned Ship:-
(A) in the case of a Designated Ship referred to in 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
21
Shipowner in favour of the Security Agent including the appropriate
narrative text set out in Schedule 3 to the Agreed Form Certificate
(being Schedule 3.1 in respect of Ships owned by a Borrower and
Schedule 3.2 in respect of Ships owned by a non-Borrower which are
registered in a jurisdiction that permits mortgages to be granted by
way of third party charge and Schedule 3.3 in respect of Ships owned
by a non-Borrower which are registered in any other jurisdiction);
(B) in the case of a Ship referred to in 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 4 to the Agreed Form Certificate, which
mortgage and pledge of mortgage in the case of m.v. "STENA GERMANICA"
(the Stena Germanica Mortgage) has been executed and assigned to SIBV
(as assignee from Stena Line Scandinavia (as assignee from Stena
Line)) and is to be on-assigned by SIBV to the Security Agent under
the Stena Germanica Assignment as security for the Outstanding
Indebtedness;
(C) in the case of m.v. "STENA DISCOVERY", the first priority Dutch ship
mortgage on such Ship to be executed by Stena Line Scandinavia in the
form or substantially in the form set out in Schedule 5 to the Agreed
Form Certificate;
(D) 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), (B) 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 6 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 Availability Date, 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;
"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
SIBV 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
22
Period directly or indirectly as security for the obligations of the
Borrowers under this Agreement and "SHIP" means any of them;
"SIBV"
means Stena International B.V., a company incorporated under the laws of
The Netherlands acting through its registered office at World Trade Centre,
Amsterdam Airport, Xxxxxxxx Xxxxxxxxx 000, 0000 XX Xxxxxxxx Airport, The
Netherlands;
"SIBV $275M FACILITY"
means the secured multipurpose corporate facility in the amount of two
hundred and seventy five million Dollars ($275,000,000) made available to
SIBV pursuant to the SIBV $275m Facility Agreement;
"SIBV $275M FACILITY AGREEMENT"
means the facility agreement dated 25 September 2001 as amended by an
amendment dated 6 November 2002 and by supplemental letters dated 6 August
2003 and 24 June 2004 made between (1) SIBV as borrower, (2) X.X. Xxxxxx
plc, Nordea Bank AB (publ) (then called 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 SIBV a secured multipurpose corporate facility
in the amount of two hundred and seventy five million Dollars
($275,000,000);
"SIBV $600M FACILITY"
means the secured multipurpose corporate and standby facilities in the
aggregate amount of six hundred million Dollars ($600,000,000) made
available to SIBV pursuant to the SIBV $600m Facility Agreement;
"SIBV $600M FACILITY AGREEMENT"
means the facility agreement dated 6 November 2002 as amended by
supplemental letters dated 17 April 2003, 6 August 2003 and 24 June 2004
made between (1) SIBV as borrower, (2) X. X. Xxxxxx plc, Nordea Bank AB
(publ) (then called Nordea Bank Sverige AB (publ)) and Svenska
Handelsbanken AB (publ) as co-arrangers, (3) the banks and financial
institutions defined therein as "Banks" as lenders, (4) Nordea Bank AB
(publ) and JPMorgan Chase Bank, N.A. (then called 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 as guarantor pursuant to which
such lenders agreed to make available to SIBV a secured multipurpose
corporate facility and standby facility in the aggregate amount of six
hundred million Dollars ($600,000,000);
"SSAG"
means Stena (Switzerland) AG, a company incorporated under the laws of
Switzerland with registration number CH-170.3.014.441-6 and having its
registered office at Xxxxxxxxxxxx, XX-0000 Xxx, Xxxxxxxxxxx;
"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
Borrowers cancel 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 Borrowers cancel
23
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 Borrowers under Clause 7;
"STANDBY FACILITY"
means the facility made available to the Borrowers 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 Borrowers
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
(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;
24
"STENA DISCOVERY FACILITY"
means the loan facility in the amount of seventy five million Dollars
($75,000,000) made available to SIBV pursuant to the Stena Discovery
Facility Agreement;
"STENA DISCOVERY FACILITY AGREEMENT"
means the facility agreement dated 25 September 2001 made between (1) SIBV
as borrower, (2) Deutsche Bank AG as lender and (3) Stena AB as guarantor
pursuant to which Deutsche Bank AG agreed to make available to SIBV a
secured term loan facility in the amount of seventy five million Dollars
($75,000,000);
"STENA F-CLASS FACILITY"
means the loan facility in the amount of one hundred million Euro
((euro)100,000,000) made available to Stena RoRo AB pursuant to the Stena
F-Class Facility Agreement;
"STENA F-CLASS FACILITY AGREEMENT"
means the loan facility agreement dated 31 March 2000 as amended by a
novation agreement dated 3 May 2002, an amendment agreement dated 11
November 2002, an amendment agreement dated 21 August 2003, an amendment
agreement dated 27 November 2003, a supplemental letter dated 17 February
2004 and a supplemental letter dated 23 June 2004 made between (1) Stena
RoRo AB as borrower, (2) Citibank N.A. as arranger, (3) Citibank
International plc as agent, (4) Citibank N.A., Svenska Handelsbanken AB
(publ), HSBC Bank plc, Skandinaviska Enskilda Xxxxxx XX (publ) and Nedship
Bank N.V acting through its Norwegian branch Nedship Bank (Nordic) as
lenders and (5) Stena AB and SIBV as guarantors pursuant to which such
lenders agreed to make available to Stena RoRo AB a secured term loan
facility in the amount of one hundred million Euro ((euro)100,000,000);
"STENA GERMANICA ASSIGNMENT"
means the first priority assignment of all the right, title and interest of
SSAG in the Stena Germanica Loan Documents to be executed and delivered by
SSAG in favour of the Security Agent in substantially the form set out in
Schedule 14 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 SIBV, as assigned by SIBV to Stena
(Luxembourg) pursuant to the Stena Germanica (Luxembourg) Assignment and as
on-assigned by Stena (Luxembourg) to SSAG pursuant to the Stena Germanica
(Switzerland) Assignment;
"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 SIBV, as assigned by SIBV to Stena
(Luxembourg) pursuant to the Stena Germanica (Luxembourg) Assignment and as
on-assigned by Stena (Luxembourg) to SSAG pursuant to the Stena Germanica
(Switzerland) Assignment;
"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
25
no. 1 thereto dated 28 September 2001 made between Scandlines, Stena Line
Scandinavia and SIBV amending certain provisions thereof and assigning all
of Stena Line Scandinavia's rights, title and interest thereunder to SIBV,
as assigned by SIBV to Stena (Luxembourg) pursuant to the Stena Germanica
(Luxembourg) Assignment and as on-assigned by Stena (Luxembourg) to SSAG
pursuant to the Stena Germanica (Switzerland) Assignment;
"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 SIBV
amending certain provisions thereof and assigning all of Stena Line
Scandinavia's right, title and interest thereunder to SIBV, as assigned by
SIBV to Stena (Luxembourg) pursuant to the Stena Germanica (Luxembourg)
Assignment and as on-assigned by Stena (Luxembourg) to SSAG pursuant to the
Stena Germanica (Switzerland) Assignment and as further amended by an
amendment no. 2 thereto to be made between Scandlines and SSAG on or before
the Availability Date;
"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 (LUXEMBOURG) ASSIGNMENT"
means the assignment of the Stena Germanica Loan Documents dated 6 December
2004 made by SIBV in favour of Stena (Luxembourg);
"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, as assigned by Stena
Line Scandinavia to SIBV on 28 September 2001, as assigned by SIBV to Stena
(Luxembourg) pursuant to the Stena Germanica (Luxembourg) Assignment and as
on-assigned by Stena (Luxembourg) to SSAG pursuant to the Stena Germanica
(Switzerland) Assignment;
"STENA GERMANICA (SWITZERLAND) ASSIGNMENT"
means the assignment of the Stena Germanica Loan Documents dated 7 December
2004 made by Stena (Luxembourg) in favour of SSAG;
"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
26
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 Xxx, Xxxxxxxxx, 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 (LUXEMBOURG)"
means Stena (Luxembourg) S.a.r.l., a company incorporated under the laws of
Luxembourg acting through its office at 0, xxx Xxxxx, X-0000 Xxxxxxxxxx;
"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
(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 first 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 16 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;
"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
27
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 "Lien", "Non-Recourse Debt",
"Unrestricted Subsidiary", "Vessels" and "Wholly Owned Subsidiary" and
Clause 14.7 Unrestricted Subsidiaries shall be deemed not to be
Subsidiaries of Stena AB;
"SVEALAND FACILITY"
means the loan facility in the amount of twenty five million Euro
((euro)25,000,000) made available to Stena Bermuda Line Limited pursuant to
the Svealand Facility Agreement;
"SVEALAND FACILITY AGREEMENT"
means the loan facility agreement dated 3 December 2004 made between (1)
Stena Bermuda Line Limited as borrower and (2) Svenska Handelsbanken AB
(publ) as lender pursuant to which Svenska Handelsbanken AB (publ) agreed
to make available to Stena Bermuda Line Limited a secured term loan
facility in the amount of twenty five million Euro ((euro)25,000,000);
"SWISS GAAP"
means generally accepted accounting principles in Switzerland, consistently
applied;
"SWEDISH GAAP"
means generally accepted accounting principles in the Kingdom of Sweden,
consistently applied;
"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 Clause 11.4, the date falling eighty four (84) 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
28
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, 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 7 (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 AB;
(B) Stena Realty BV;
(C) Stena Adactum AB;
(D) Stena Finanzverwaltungs AG;
(E) 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:-
29
(i) there would be no Default;
(ii) such Subsidiary would have no Financial Indebtedness other than
Non-Recourse Debt, as certified in a written legal opinion signed
by legal counsel, who may be an employee of or counsel to Stena
AB, and who shall be counsel reasonably satisfactory to the
Agent;
(iii) such Subsidiary has no assets which are essential to the
operations of Stena AB and its Subsidiaries, taken as a whole;
and
(iv) 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; and
(z) any such classification or reclassification shall be
evidenced by, and shall become effective upon, the filing
with the Agent 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 written legal opinion required under
paragraph (C)(ii) above, in each case in form and substance
as satisfactory to the Agent;
(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;
"VESSELS"
means the shipping vessels whose primary purpose is the maritime
transportation of cargo
30
and/or passengers or which are otherwise engaged or used in any business
activities of Stena AB and its Subsidiaries permitted under Clause 14.7
(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 which would, in accordance with Swedish GAAP, be
treated as a finance or capital lease, 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 Norwegian terms) means the war risks
described in the Norwegian Marine
31
Insurance Plan of 1996 as amended or (if placed on Swedish terms)
means the Swedish War Insurance Conditions for Ships 2004/01/01.
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 or the consolidated position of the Stena
International Group and Dutch GAAP where used in relation to SIBV and Swiss
GAAP where used in relation to SSAG (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
32
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 Borrowers 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 Bank 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
33
no advance to the Borrowers hereunder and notwithstanding also that the
indebtedness of the Borrowers 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.
1.11 JOINT AND SEVERAL LIABILITY
(A) All obligations, covenants, representations, warranties and
undertakings in or pursuant to the Security Documents assumed, given,
made or entered into by the Borrowers shall, unless otherwise
expressly provided, be assumed, given, made or entered into by the
Borrowers jointly and severally.
(B) Each Borrower agrees that any rights which it may have at any time
during the Security Period by reason of the performance of its
obligations under the Security Documents to be indemnified by the
other Borrower and/or to take the benefit of any security taken by the
Banks, the Standby Lender, the Co-Arrangers, the Issuing Banks, the
Agent and/or the Security Agent pursuant to the Security Documents
shall be exercised in such manner and on such terms as the Majority
Banks may require. Each Borrower agrees to hold any sums received by
it as a result of its having exercised any such right on trust for the
Banks, the Standby Lender, the Co-Arrangers, the Issuing Banks, the
Agent and the Security Agent absolutely.
(C) Each Borrower agrees that it will not at any time during the Security
Period claim any set-off or counterclaim against the other Borrower in
respect of any liability owed to it by that other Borrower under or in
connection with the Security Documents, nor prove in competition with
the Banks, the Standby Lender, the Co-Arrangers, the Issuing Banks,
the Agent and/or the Security Agent in any liquidation of (or
analogous proceeding in respect of) the other Borrower in respect of
any payment made under the Security Documents or in respect of any sum
which includes the proceeds of realisation of any security held by the
Banks, the Standby Lender, the Co-Arrangers, the Issuing Banks, the
Agent and/or the Security Agent for the repayment of the Outstanding
Indebtedness.
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 Providers agree to maintain the Existing Bank
Guarantees for the account of the Borrowers;
(B) the New Guarantee Provider agrees to issue Bank Guarantees to
Beneficiaries for the account of the Borrowers;
(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;
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(D) the Banks agree to lend Advances to the Borrowers 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 Borrowers (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 Borrowers 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 Borrowers against any losses,
costs and expenses which the Borrowers may sustain or incur as a
result of such failure.
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 Borrowers following receipt by the Agent from either 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
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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),
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 made to the Borrowers
under this Agreement after the date falling thirty (30) days 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 Borrowers 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 twenty (20) 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 twenty (20) or such other number as may
be agreed by all the Banks. No more than sixteen (16) Terms of one month
(or, if agreed by the Banks, any shorter period) may be selected by the
Borrowers in respect of Advances during any calendar year.
3.7 APPLICATION OF PROCEEDS
The Borrowers undertake to procure that the proceeds of each Advance shall
be applied for one or more of the purposes specified in Clause 1.1 Without
prejudice to such obligations, 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 Borrowers.
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4 ISSUE OF BANK GUARANTEES
4.1 AGREEMENT TO ISSUE OR EXTEND 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 Borrowers wish
such Bank Guarantee to be issued, from either 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 falling at least thirty (30) days before 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 nineteen (19) 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 either Borrower unless, at the time the Bank Guarantee
Request is given, the relevant Borrower stipulates that the Bank Guarantee
referred to therein shall only be issued or extended upon such Borrower's
further written request in which case such Bank Guarantee 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.
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).
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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 Borrowers
and require the Borrowers to pay an amount equal to the excess certified by
the Agent to the Cash Collateral Accounts and/or prepay the Outstandings by
an amount equal to the excess within two (2) Banking Days of the Agent's
notice whereupon the Borrowers shall be liable to make such payment within
such period. The Borrowers shall be entitled to the release of amounts paid
to the Cash Collateral Accounts 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 9.3 and/or
any other relevant provisions of this Agreement at the time of the
Borrowers' 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.
4.5 BANK GUARANTEES EXPIRING AFTER THE TERMINATION DATE
(A) On or prior to issuance of any Bank Guarantee whose Expiry Date falls
after, or within thirty (30) days before, the Termination Date (or on
the Availability Date in respect of any Existing Bank Guarantee whose
Expiry Date falls after, or within thirty (30) days before, the
Termination Date), the Borrowers shall open with the Agent a Cash
Collateral Account in the currency of such Bank Guarantee and shall
(i) execute in favour of the Security Agent a Cash Collateral Account
Pledge over that Cash Collateral Account as required by Clause 23.1
and (ii) execute in favour of the New Guarantee Provider a second
priority pledge over that Cash Collateral Account in such form as the
New Guarantee Provider shall reasonably require as security for the
Borrowers' indemnity obligations under Clause 4.5(I). Such Cash
Collateral Account shall be established solely for the purpose of
receiving payments from the Borrowers (including any relevant payments
from a Bank under Clause 4.5(E)) in respect of the relevant Bank
Guarantee and shall not be used in respect of any other Bank Guarantee
whatsoever.
(B) The Borrowers undertake that on the Termination Date they shall, in
respect of each Bank Guarantee (if any) then outstanding, pay to the
credit of the relevant Cash Collateral Account an amount equal to the
Outstanding Guarantee Amount thereof provided that, as an alternative
to making such payment, the Borrowers may instead procure the
immediate release and discharge on the Termination Date of such Bank
Guarantee or provide to the New Guarantee Provider a counter-indemnity
or counter-indemnities from any one or more first class banks or
financial institutions acceptable to the New Guarantee Provider
covering the Outstanding Guarantee Amount thereof, such
counter-indemnity or counter-indemnities to be in form and substance
acceptable to the New Guarantee Provider.
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(C) The Borrowers undertake that not later than thirty (30) days before
the Termination Date they shall, in respect of each Bank Guarantee (if
any) then outstanding, advise the Agent as to whether they intend on
the Termination Date (i) to make payment to the relevant Cash
Collateral Account under Clause 4.5(B) or (ii) to procure the release
and discharge of such Bank Guarantee or (iii) to provide to the New
Guarantee Provider a counter-indemnity or counter-indemnities covering
the Outstanding Guarantee Amount thereof. The Borrowers further
undertake to notify the Agent promptly of any change in their
intention previously notified to the Agent under this Clause.
(D) For the avoidance of doubt, the amount (if any) payable by the
Borrowers on the Termination Date under Clause 4.5(B) forms part of
the Outstanding Indebtedness whose non-payment will constitute an
Event of Default under Clause 19.1(A) if not paid within three (3)
Banking Days of the due date.
(E) In the event of any non-payment as referred to in Clause 4.5(D), the
obligations of the Banks to the New Guarantee Provider in respect of
the relevant Bank Guarantees under Clause 6.2 shall continue in full
force and effect except that a Bank may, if it so wishes, pay into the
relevant Cash Collateral Account its Percentage of the Outstanding
Guarantee Amount of a Bank Guarantee in which case it shall be
released from its obligations under Clause 6.2 in respect of that Bank
Guarantee and the amount paid by it shall constitute a loan in such
amount from that Bank to the Borrowers. Such loan shall be treated as
made at the time of payment into the Cash Collateral Account, shall be
payable at the time it is made and shall constitute part of the
Outstanding Indebtedness. If the Borrowers fail immediately to repay
such loan they shall pay interest thereon to the Agent on behalf of
the relevant Bank at the default rate set out in Clause 8.2.
(F) Upon the payment of all amounts due under Clause 4.5(B) in respect of
a Bank Guarantee (or, as the case may be, the release and discharge of
the relevant Bank Guarantee and/or the provision of any requisite
counter-indemnity in respect thereof) the Banks shall be released from
any further obligation to the New Guarantee Provider under Clause 6.2
in respect of such Bank Guarantee and, subject to the whole of the
Outstanding Indebtedness having been paid in full, the Security Agent
shall release all of the security constituted by the Security
Documents (including the Cash Collateral Account Pledge over the
relevant Cash Collateral Account) and, in the event that the relevant
Bank Guarantee is released and discharged pursuant to Clause 4.5(B) or
the Outstanding Guarantee Amount thereof is fully covered by a
counter-indemnity or counter-indemnities provided under Clause 4.5(B),
the New Guarantee Provider shall release its pledge over the relevant
Cash Collateral Account.
(G) If any Bank Guarantee is to remain in effect after the Termination
Date and the Borrowers have complied with their obligations in respect
thereof under Clause 4.5(B), the Borrowers shall pay to the Agent on
behalf of the Banks on the Termination Date any guarantee commission
which has accrued thereon under Clause 10.2. Thereafter, the Borrowers
shall pay guarantee commission thereon to the New Guarantee Provider
at such times and in such amount as shall be set out in a separate
letter to be made between the New Guarantee Provider and the Borrowers
on or about the date of issue of such Bank Guarantee (or at such later
date as the New Guarantee Provider and the Borrowers shall agree).
39
(H) In the event that any Bank Guarantee remains in effect after the
Termination Date and the Borrowers have failed to comply with their
obligations in respect thereof under Clause 4.5(B), the Borrowers
shall pay to the Agent for the account of the Banks (other than any
Bank which has been released from its obligations under Clause 6.2
pursuant to Clause 4.5(E)) guarantee commission in accordance with
Clause 10.2 except that such commission shall be paid at the rate of
two point five per cent (2.5%) per annum above the Margin and shall be
payable monthly in arrears and on the date on which the Outstanding
Indebtedness is repaid or, if earlier, the date on which payment is
made to the relevant Beneficiary under such Bank Guarantee (after
which the Borrowers shall pay interest on such amount at the rate
specified in Clause 4.5(J)).
(I) If at any time after the Termination Date the New Guarantee Provider
is called upon to make a payment to the relevant Beneficiary under any
Bank Guarantee which is still then in effect, and the Borrowers have
complied with their obligations in respect thereof under Clause
4.5(B), then whether or not such amount has actually been paid by the
New Guarantee Provider thereunder, the Borrowers undertake:-
(i) to pay to the New Guarantee Provider upon the New Guarantee
Provider's first written demand the whole of the amount demanded
by the Beneficiary under that Bank Guarantee (which amount may be
debited from the relevant Cash Collateral Account pursuant to the
pledge thereover made in favour of the New Guarantee Provider);
and
(ii) to hold the New Guarantee Provider harmless and indemnify the New
Guarantee Provider and keep the New Guarantee Provider
indemnified upon the New Guarantee Provider's written demand from
time to time against all actions, proceedings, liabilities,
costs, claims, demands and expenses, losses or damages whatsoever
and whensoever incurred or sustained by the New Guarantee
Provider under or in relation to that Bank Guarantee.
(J) If at any time after the Termination Date the New Guarantee Provider
is called upon to make a payment to the relevant Beneficiary under any
Bank Guarantee which is still then in effect and the Borrowers have
failed to comply with their obligations in respect thereof under
Clause 4.5(B), the Banks (other than any Bank released from such
obligation pursuant to Clause 4.5(E)) shall reimburse the New
Guarantee Provider in accordance with Clause 6.2 and the Borrowers
shall reimburse such Banks in accordance with Clause 6.3. If the
Borrowers fail immediately to reimburse such amount they shall pay
interest thereon to the Agent on behalf of the Banks at the default
rate set out in Clause 8.2.
(K) The Borrowers shall be entitled to the release of the amount paid to
the relevant Cash Collateral Account in respect of a Bank Guarantee
pursuant to Clause 4.5(B) if and to the extent that the amount
standing to the credit thereof at any time exceeds the Outstanding
Guarantee Amount of the relevant Guarantee. In determining the
Outstanding Guarantee Amount of a Bank Guarantee for the purposes of
this Clause the New Guarantee Provider shall in relation to interest
by reference to which its liability under the relevant Bank Guarantee
may be calculated take into account only such amounts as have accrued
to form part of its liability under that Bank Guarantee at the time
its determination is made.
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(L) Except as provided in Clause 4.5(K) the Borrowers shall not withdraw
or attempt to withdraw any moneys from any Cash Collateral Account
opened pursuant to Clause 4.5(A) nor shall they assign, transfer or
suffer any Lien over any such Cash Collateral Account other than as
specifically contemplated in Clause 4.5(A).
(M) Upon the expiry or release of any Bank Guarantee after the Termination
Date, and subject to the Borrowers having fulfilled all of their
obligations under Clauses 4.5(I) and (J), the New Guarantee Provider
shall at the request and cost of the Borrowers release its pledge over
the Cash Collateral Account relating thereto.
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 (who
shall notify the Banks and the Borrowers) 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
Borrowers to extend the Expiry Date of a Bank Guarantee issued on or after
the Availability Date, 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 any such
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, provided that any such Existing Bank Guarantee which is stated
by its terms to renew automatically unless notice of termination is given
by the relevant Existing Guarantee Provider may be renewed in accordance
with such terms.
5.3 RELEASE OF BANK GUARANTEES
On or before the end of the Availability Period the Borrowers 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 Borrowers. Such loan
shall be:-
41
(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 Borrowers 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
Borrowers 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 9.10 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.
6.3 BORROWERS' 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 Borrowers. 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 Borrowers would (if they 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
9.10 or 21.1), the aggregate of such loans by such Banks
42
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
Borrowers 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
9.10 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 Borrowers 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 Borrowers 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 Borrowers
or any Bank may dispute the validity of such claim or demand. The
liabilities of the Borrowers 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 Borrowers 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
to the extent that 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 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 Borrowers at any time during the
Standby Availability Period.
7.2 DRAWINGS
Drawings against the Standby Commitment may be made available to the
Borrowers by written instructions from the Borrowers to the Standby Lender
to make payments or
43
remittances on behalf of the Borrowers. 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 (1), three (3) or six (6) months or such other period
(but not, unless the Standby Lender otherwise agrees, in any case longer
than twelve (12) months) as the Borrowers 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 4 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 Borrowers' 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 Borrowers of the
proceeds of drawings representing Standby Outstandings.
7.4 INTEREST
(A) CALL BASIS
The Borrowers 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 Borrowers 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 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 Borrowers fail 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 Borrowers
shall pay interest on such sum on demand from the due date up to the date
of actual payment (as well after as before 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.
44
(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 Borrowers 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,
the Standby Lender shall forthwith give notice (a "STANDBY FACILITY
DETERMINATION NOTICE") thereof to the Borrowers 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 Standby Facility Determination Notice no
further amounts may be borrowed under the Standby Facility until
notice to the contrary is given to the Borrowers by the Standby
Lender.
(C) During the period of twenty (20) days following the giving of any
Standby Facility Determination Notice, the Borrowers 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 Borrowers and the Standby Lender 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.
45
(D) If the Borrowers and the Standby Lender fail to agree on a Standby
Facility Substitute Basis within such twenty (20) day period, the
Borrowers 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 Borrowers 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 Borrowers 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 Borrowers thereafter.
7.10 VOLUNTARY CANCELLATION OF STANDBY COMMITMENT
The Borrowers may at any time during the Standby Availability Period by
notice to the Standby Lender (effective only on actual receipt) (with a
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
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 Borrowers shall on the date designated in their 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 Borrowers 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
46
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 Borrowers 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 Borrowers. 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 Borrowers 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 Borrowers under this Clause 7.13.
8 INTEREST ON ADVANCES
8.1 NORMAL INTEREST RATE
The Borrowers 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:-
(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) six
thousand two hundred and fifty Dollars ($6,250).
8.2 DEFAULT INTEREST
Except as provided in Clause 7.5 in relation to sums due in respect of the
Standby Facility, if the Borrowers fail 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 Borrowers shall pay
interest on such sum on demand from the due date up to the date of actual
payment (as well after as before 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
47
(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 five per cent (2.5%) 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 9.3, 9.6, 9.7, 9.9 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 five per cent (2.5%) 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 five per cent (2.5%) per annum above the cost of
funds to such Bank. Each Bank shall (without prejudice to the obligation of
the Borrowers 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 Borrowers 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.
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
Contributions aggregating not less than one-half of the total of
the Contributions (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
48
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 Borrowers 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 Borrowers by
the Agent.
(C) During the period of twenty (20) days following the giving of any
Determination Notice, the Borrowers 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 Borrowers 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 Borrowers and the Agent (in consultation with the Banks) fail
to agree on a Substitute Basis within such twenty (20) day period, the
Borrowers shall pay interest on the Advances to each Bank at the rate
certified by each such Bank and notified through the Agent to the
Borrowers 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 Borrowers and the Banks that the Substitute Basis shall
cease to be effective from such date as the Agent shall reasonably
specify.
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 Borrowers 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 Borrowers 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.
49
9.2 SCHEDULED REDUCTION OF COMMITMENTS
Without prejudice to any other provision of this Agreement, the Commitments
shall be reduced in aggregate by the following amounts on the following
dates:-
(A) on the date falling sixty six (66) months after the Execution Date, by
$50,000,000 or, if lower, by an amount in Dollars equal to 5/97ths of
the then aggregate amount of the Commitments;
(B) on the date falling seventy two (72) months after the Execution Date,
by $50,000,000 or, if lower, by an amount in Dollars equal to 5/92nds
of the then aggregate amount of the Commitments;
(C) on the date falling seventy eight (78) months after the Execution
Date, by $50,000,000 or, if lower, by an amount in Dollars equal to
5/87ths of the then aggregate amount of the Commitments; and
(D) on the Termination Date by the whole of the aggregate amount of the
Commitments so that all of the Commitments shall be reduced to zero on
that date.
If, upon any reduction of the Commitments pursuant to this Clause 9.2, the
aggregate of the Outstandings at such time exceeds the Commitments as
thereby reduced, the Borrowers 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.
9.3 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 9.3(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 9.3(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 9.3(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
50
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 Borrowers 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 Borrowers 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
9.3(D) before the end of such fixed term.
(E) SUBSTITUTE SECURITY
(i) Without prejudice to the Borrowers' obligation to make any
payment due under Clause 9.3(D) the Commitments shall be
suspended for a period of up to 270 days from the relevant
Disposal Reduction Date in an amount equal to the relevant
Disposal Reduction Amount. The Borrowers shall on any one or more
dates during such 270 day period (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
Borrowers 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 five-sevenths
(5/7ths) of the value of such substitute security or such lesser
amount as the Borrowers request, 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 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; and
(b) the value of any substitute security shall be the market
value thereof determined in accordance with Clause 9.3(G)
(in respect
51
of any Ship or Linkspan), Clause 9.3(H) (in respect of any
Port) and in accordance with such other basis as the
Security Agent shall require or approve (in respect of any
other asset), unless the Borrowers elect to limit the amount
recoverable under such security to a specified amount in
which case the value thereof shall be the lower of such
amount and the market value of such asset determined as
aforesaid.
(ii) The Borrowers' obligation to provide substitute security in
relation to an amount of the Commitments suspended by virtue of
this Clause 9.3(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 6 and 10
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 Borrowers provide 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 Borrowers do not grant or procure the
grant of additional security as provided in this Clause 9.3(E) or
cancel the whole or part of the suspended amount under paragraph
(iv) of this Clause 9.3(E) within the period of 270 days 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 Borrowers have not granted
or procured the grant of substitute security in accordance with
the preceding provisions of this Clause 9.3(E).
(iv) The Borrowers may, during any period for which a part of the
Commitments is suspended under this Clause 9.3(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.
52
(v) Nothing in this Clause 9.3(E) shall affect the Borrowers'
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.
(F) DEFINED TERMS
For the purposes of this Clause 9.3:-
"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; 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; and
(ii) such amount (if any) as will, after reduction or suspension
of the Commitments and the Standby Commitment pursuant to
Clauses 9.3(A) or 9.3(E) and, if required by Clause 9.3(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 9.3(D) on the
Disposal Reduction Date for such Ship, result in the
Security Value being not less than one hundred and forty per
cent (140%) 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; 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; 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
53
the member of the Stena AB Group which has disposed of
the relevant Ship; 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;
(ii) the amount referred to in paragraph (x)(ii) of this Clause
9.3(F) (as if the reference therein to Clause 9.3(A) were a
reference to Clause 9.3(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; and
(ii) the amount referred to in paragraph (x)(ii) of this Clause
9.3(F) (as if the reference therein to Clause 9.3(A) were a
reference to Clause 9.3(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 Borrowers
demonstrate 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 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;
"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:-
(v) 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 9.3(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
54
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
(w) 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
(x) 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 sale or
letting 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
(y) the market value of the Ports which are then subject to a Port
Mortgage determined in accordance with Clause 9.3(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
(z) 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).
(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.'s "STENA CARISMA" and
"STENA DISCOVERY" 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, or extrapolated from, the then latest
financial
55
statements delivered to the Agent pursuant to Clause 14.2(A) or (B).
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 Borrowers 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 Borrowers 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
Borrowers 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 Borrowers 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 or such later dates as the Agent
may agree) and also, if a Default has occurred which is continuing, at
such other times as the Agent shall request.
The initial valuation of each Mortgaged Ship (including its Mortgaged
Linkspans in the case of "STENA CARISMA" and "STENA DISCOVERY") shall
be the valuation set out against its name in Schedule 2.
(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
56
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(G) multiplied by
six and one half (6.5) provided that if the Agent on the instructions
of the Majority Banks gives notice to the Borrowers 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 SIBV
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 value 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)70,824,000 and (pound)14,501,500 respectively (being
the values determined as at 31 December 2003 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
9.3 shall be reimbursed by the Borrowers 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:-
(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
57
(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 Borrowers shall have complied with Clauses 9.3 and 9.4,
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 9.3) retained by the Agent for application in or towards
making any prepayment and paying any other moneys required under
Clauses 9.3 and 9.4. 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 9.3 and paying related amounts due under Clause 9.4 provided
that in relation to any Transferred Ships the references in this
Clause 9.3(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
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 9.3
and 9.4 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:-
58
(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 6 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 Borrowers 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 sale value that
would be obtained at the time the Ship is sold 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;
9.4 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 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 Borrowers 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.
9.5 NOTICE OF PREPAYMENT
No voluntary prepayment of an Advance may be effected under this Clause 9
unless the Borrowers 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 Borrowers 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 Borrowers may not prepay
any
59
Advance or any part thereof save as expressly provided in this Agreement.
9.6 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) becomes held by members of the Xxxx X. Xxxxxx
Family and/or any Xxxx X. Xxxxxx Family Trusts (a "CHANGE OF CONTROL
EVENT") the Borrowers 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 Borrowers as to the consequences of the change of shareholding. Without
prejudice to Clause 19, not earlier than ninety (90) days after the Change
of Control Event the Agent shall, unless all of the Banks agree otherwise
if the shareholding of the Xxxx X. Xxxxxx Family and/or any Xxxx X. Xxxxxx
Family Trusts in Stena AB does not then exceed seventy five per cent (75%),
give notice to the Borrowers requiring the Borrowers to prepay all the
Outstandings and the Standby Outstandings within thirty (30) days of the
Agent's notice and upon such notice the Borrowers 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.
9.7 CHANGE OF CONTROL OF THE BORROWERS: 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 both Borrowers 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 Borrowers 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.
9.8 VOLUNTARY CANCELLATION OF COMMITMENTS
The Borrowers 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 ten (10) Banking 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 Borrowers shall on the date designated
in their 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 Borrowers' cancellation.
9.9 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 9.6 or 9.7) and the Borrowers are unable to or do not wish to
procure the release and discharge of one or
60
more of the Bank Guarantees then in issue, they may, in relation to such
Bank Guarantees (and without prejudice to their 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
(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).
9.10 ADDITIONAL PARTIAL CANCELLATION
The Borrowers 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 ten (10) 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 Borrowers 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 Borrowers 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 9.10); and
(B) the Borrowers 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 Borrowers have made the payment to the Cash Collateral Account
required of them in respect of a Bank Guarantee under this Clause 9.10, 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 Borrowers have not made such payment, such Bank
shall continue to be liable to the relevant Issuing Bank under Clause
61
6.2 for an amount equal to its Percentage of such Bank Guarantee less the
amount of any such payment by the Borrowers to the Cash Collateral Account
in relation to the relevant Bank Guarantee.
9.11 PREPAYMENT DURING TERM
The Borrowers 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 or, if acceptable to the Agent, any lesser sum) of any Advance
prior to its Maturity Date on not less than ten (10) Banking Days' notice
(whether or not any part of the Commitment is also being cancelled on such
date pursuant to any provision of this Agreement) and the Borrowers shall
when making such prepayment, make such prepayment together with any amounts
as referred to in Clause 9.4.
9.12 TRANSFERRED SHIPS : APPLICATION OF MONEYS RECEIVED
The Borrowers 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.
9.13 APPLICATION OF REDUCTIONS AGAINST SIBV $600M FACILITY REFINANCED AMOUNT
The parties agree that the Financial Indebtedness outstanding as at the
Availability Date under the SIBV $600m Facility Agreement (including, for
this purpose, the amount of any amounts then undrawn and available
thereunder) shall be refinanced hereunder out of the Commitments in the
amount of $600,000,000 (such portion of the Commitments being called the
"SIBV $600M FACILITY REFINANCED AMOUNT"). The parties further agree that
any partial reduction, cancellation or suspension of the Commitments under
this Agreement (whether scheduled, mandatory or voluntary) shall be deemed
to be applied first in reduction, cancellation or suspension of the SIBV
$600m Facility Refinanced Amount.
10 FEES, COMMISSION, MARGIN AND EXPENSES
10.1 AGENCY FEE
The Borrowers 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 of even date
herewith made between Svenska Handelsbanken AB (publ) as Agent and Security
Agent and the Borrowers.
10.2 COMMISSION ON BANK GUARANTEES
The Borrowers shall pay to the Agent for the account of the Banks in
accordance with their respective Percentages quarterly in arrears during
the Availability Period guarantee commission in Dollars calculated on a
daily basis at an annual rate (based on a year of
62
360 days) equal to the Margin on the daily aggregate Outstanding Guarantee
Amounts of all Bank Guarantees since the later of the Availability Date and
the later of the preceding 31 March, 30 June, 30 September and 31 December.
For the purpose of calculating the daily aggregate Outstanding Guarantee
Amount during each such three (3) month 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 2004; thereafter the guarantee 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 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 Borrowers who shall
pay such amount to the Agent not later than five (5) Banking Days after
receiving the Agent's notification thereof.
10.3 ISSUING BANK COMMISSION
The Borrowers shall pay to the Agent for the account of each Issuing Bank
quarterly 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 31 March, 30 June, 30 September 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 three (3)
month 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 2004; thereafter the guarantee provider's 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 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
Borrowers 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 Borrowers shall pay to the Agent for the account of the Banks and the
Standby Lender quarterly in arrears during the Availability Period
commitment commission
63
computed from the Execution Date at an annual rate equal to zero point
three five per cent (0.35%) 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 9.3 (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 2004; 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 Borrowers who shall
pay such amount to the Agent not later than five (5) Banking Days after
receiving the Agent's notification thereof.
10.5 ARRANGEMENT FEE
The Borrowers 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 8 November 2004 made between the Co-Arrangers, the Borrowers
and Stena AB.
10.6 EXPENSES
The Borrowers 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 Borrowers shall not be liable to reimburse the costs of
any external legal advisers under paragraph (A) except the legal fees and
disbursements of Xxxxxxxxxx
64
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 the preparation and/or 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 Borrowers) to the Borrowers that it is not entitled
to credit for such VAT as input tax.
10.8 STAMP AND OTHER DUTIES
The Borrowers 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 Borrowers) imposed on or in
connection with any of 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 Borrowers 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 seventy five per cent (75%) of the daily average of the
Commitments of the Banks during such Calculation Period. If such daily
average for a Calculation Period exceeds seventy five per cent (75%)
an additional amount shall be payable by the Borrowers 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) month 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 2004 and 31 March, 30 June and 30
September and 31 December in each year thereafter up to the date
upon
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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 -
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 applicable to all of the
Outstandings for such Calculation Period will be zero point one two
five per cent (0.125%) where A as so calculated exceeds seventy five
per cent (75%).
(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 Borrowers 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 Borrowers 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 Borrowers acknowledge that in performing their obligations under this
Agreement, the Banks, the Standby Lender and the Issuing Banks will be
incurring liabilities to third
66
parties in relation to the funding of amounts to the Borrowers, such
liabilities matching the liabilities of the Borrowers 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 Borrowers 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 Borrowers under any of the Security Documents
shall be made in full, without any set-off or counterclaim whatsoever and,
subject as provided in Clause 11.7, free and clear of any deductions or
withholdings, in Dollars (except for costs, charges or expenses 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 9.10, 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 Borrowers 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 BORROWERS
All sums to be advanced by the Banks to the Borrowers 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
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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 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 Borrowers 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 Borrowers, send to the Borrowers such details as may
reasonably be required by the Borrowers 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 Borrowers in order to
verify the same.
11.7 GROSSING-UP FOR TAXES - BORROWERS
(A) GROSSING UP
If at any time either 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 such
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 each 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 Borrowers or Stena AB to
68
make any such deduction or withholding or by reason of any increased
payment not being made on the due date for such payment. The relevant
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 a Borrower or Stena AB, the
recipient of that payment shall receive or be granted a credit against
or remission for any Taxes payable by it, such recipient shall,
subject to such 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 such 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 of the Borrowers 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
69
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:-
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 Borrowers 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 Borrowers under this Agreement and the
other Security Documents.
11.12 PLACE OF PAYMENT
All payments to be made by the Borrowers 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, N.A., New York City, USA, SWIFT Address XXXXXX00 by way of
payment order MT103, SWIFT Address XXXXXXXX quoting reference RVC STBNL 753
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 Borrowers 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:-
70
(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 Borrowers 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;
(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 Borrowers to perform any
obligation to be performed by the Borrowers 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,
71
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 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 Borrowers 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 Borrowers 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.
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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 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 Borrowers 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;
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(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 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;
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(H) NO MONEY LAUNDERING
in relation to the utilisation by each 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 it is a party, each
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 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 Borrowers 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 Financial Indebtedness 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 6 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
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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;
(C) ACCURACY OF INFORMATION
all factual information furnished in writing to the Co-Arrangers by
the Borrowers and Stena AB relating to the businesses and affairs of
the Stena AB Group in connection with this Agreement and the other
Security 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 2003 (which accounts were prepared in accordance with
Swedish GAAP) fairly represent the consolidated financial condition of
the Stena AB Group as at 31 December 2003 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
none of the Ports nor any of the Ships or any of their respective
Insurances or Earnings is subject to any Lien other than Permitted
Ship Liens and Liens securing the SIBV $600m Facility, the SIBV $275m
Facility, the Stena Discovery Facility, the Stena F-Class Facility,
the Mont Ventoux Facility and/or the Svealand Facility which will be
released on or before the Availability Date;
(F) 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 Borrowers 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;
(G) LITIGATION
save as disclosed in writing to the Agent, no litigation, arbitration
or administrative proceedings by any entity (private or governmental)
are current or
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pending or, to the knowledge of the Borrowers and/or Stena AB,
threatened, against the Borrowers and/or Stena AB which, if adversely
determined, are likely materially to imperil, delay or prevent the due
fulfilment by any Security Party of all or any of its material payment
obligations under the Security Documents;
(H) 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; and
(I) COMPLETENESS OF DOCUMENTS
the copies of 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 Borrowers 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 Borrowers 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 and the
unaudited consolidated management accounts of the Stena International
Group) or Dutch GAAP (in the case of the Audited Stena International
Financial Statements) 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 Borrowers will provide to the Agent (where appropriate, 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
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Stena International Financial Statements and of the Audited Stena
Switzerland Financial Statements for that financial year;
(B) as soon as practicable, but in any event within ninety (90) days after
31 December 2004 and each of the dates falling quarterly thereafter
(other than the final quarter of each financial year in respect of the
Stena AB Group), certified copies of the unaudited consolidated
management accounts of the Stena AB Group and of the Stena
International Group for the preceding quarter or quarters of the
relevant financial year together with sufficient details of the
financial performance of the Restricted Group for that period to
enable the Banks, the Standby Lender, the Issuing Banks and the Agent
to monitor the compliance by the Borrowers and Stena AB with the
financial covenants contained in Clause 14.13 (it being agreed, for
the avoidance of doubt, that the details of the financial performance
of the Restricted Group accompanying the aforesaid consolidated
management accounts shall include the results of Bostads XX Xxxxx
("DROTT") for so long as it remains a member of the Restricted Group);
(C) promptly, such further information in the possession or control of the
Borrowers 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 one hundred and eighty (180) days after the beginning of each
financial year of Stena AB, a copy of the annual financial projections
for the Restricted Group for that financial year and the four (4)
financial years falling thereafter (it being agreed, for the avoidance
of doubt, that such financial projections shall include the financial
projections for Drott for so long as it remains a member of the
Restricted Group);
(E) promptly after the making of such filing or report, a notice to the
Agent of each filing or report made by Stena AB or any other member of
the Stena AB Group with or to the U.S. Securities and Exchange
Commission ("SEC") together with details of an e-mail link to the
relevant page on "XXXXX" (the SEC's Electronic Data Gathering,
Analysis and Retrieval system) on which a copy of such filing or
report is contained;
(F) within ninety (90) days after the end of each financial year of Stena
AB, an Officer's Certificate substantially in the form of Schedule 10
(one of the signatories of which is the principal executive, financial
or accounting officer of Stena AB), such certificate to attach such
documents as the Agent shall reasonably require to support the
statements made therein as to the compliance (or otherwise) of the
Borrowers and Stena AB with their obligations under Clause 14.13;
(G) 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,
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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 Borrowers 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.
The Borrowers and Stena AB may satisfy their obligation to provide
information to the Agent under this Clause 14.2 by posting this information
onto an electronic website designated by the Borrowers, Stena AB and the
Agent (the "DESIGNATED WEBSITE") if:-
(a) the Agent expressly agrees (after consultation with each of the Banks)
that it will accept communication of such financial information by
this method;
(b) each of the Borrowers, Stena AB and the Agent are aware of the address
of and any relevant password specifications for the Designated
Website; and
(c) the financial information is in a format previously agreed between the
Borrowers, Stena AB and the Agent.
The Agent shall supply each Bank with the address of and any relevant
password specifications for the Designated Website following designation of
that website by the Borrowers, Stena AB and the Agent.
Each of the Borrowers and Stena AB shall promptly upon becoming aware of
its occurrence notify the Agent if:-
(i) the Designated Website cannot be accessed for any reason;
(ii) the password specifications for the Designated Website change;
(iii) any new information which is required to be provided under this
Clause 14.2 is posted onto the Designated Website;
(iv) any existing information which has been provided under this Clause
14.2 and posted onto the Designated Website is amended; or
(v) the Borrowers and/or Stena AB become aware that the Designated Website
or any information posted onto the Designated Website is or has been
infected by any electronic virus or similar software.
If the Borrowers and/or Stena AB notify the Agent under paragraph (i) or
paragraph (v) above, all information to be provided by the Borrowers and
Stena AB under this Clause 14.2 after the date of that notice shall be
supplied in paper form, unless and until the Agent and each Bank is
satisfied that the circumstances giving rise to the notification are no
longer continuing.
Any Bank may request, through the Agent, one paper copy of any information
required to be provided under this Clause 14.2 which is posted onto the
Designated Website. The Borrowers and Stena AB shall comply with any such
request within ten (10) Banking Days.
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14.3 NOTIFICATION OF DEFAULT
Each of the Borrowers and Stena AB will notify the Agent of any Default
promptly upon its 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 and the unaudited
consolidated management accounts of the Stena International Group) or Dutch
GAAP (in the case of the Audited Stena International Financial Statements)
or Swiss GAAP (in the case of the Audited Stena Switzerland Financial
Statements) consistently applied (or, if not consistently applied,
accompanied by details of the inconsistencies) and shall fairly represent
the financial condition of Stena AB Group, the Stena International Group,
SIBV and SSAG respectively.
14.5 CONSENTS AND REGISTRATIONS AND MAINTENANCE OF STATUS
Each of the Borrowers 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 Availability Date the Borrowers 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 Borrowers
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 NEGATIVE PLEDGE
Except with the prior written consent of the Majority Banks, the Borrowers
and Stena AB will not, and shall procure that no other member of the Stena
AB Group will, create or incur or permit to subsist any Lien 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) nor assign all or any of its right, title and
interest in and to any such Earnings to any person other than Stena AB or a
Borrower or any other member of the Stena AB Group which has guaranteed the
payment of the Outstanding Indebtedness by the Borrowers hereunder.
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14.7 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.
14.8 MERGERS AND CONSOLIDATION
Except with the prior written consent of the Majority Banks, neither of the
Borrowers 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 such
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 such
Borrower or (as the case may be) such other Security Party immediately
prior to such merger or consolidation.
14.9 FINANCIAL YEAR
Except with the prior written consent of the Agent (such consent not to be
unreasonably withheld or delayed), the Borrowers and Stena AB will not
alter their respective financial years.
14.10 OWNERSHIP OF STENA AB GROUP COMPANIES
Stena AB will procure that each of Stena Rederi AB and Stena Line
Scandinavia remains a Wholly Owned Subsidiary 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.
14.11 PAYMENT OF TAXES
The Borrowers and Stena AB will, and will procure that all other members of
the Stena AB Group will, file all requisite tax returns and will pay all
Taxes as shown to be due and payable on such returns or any of the
assessments made against them (other than those being contested in good
faith), provided that the Borrowers and Stena AB shall only be in breach of
their obligations under this Clause if the effect of failing to file any
such tax returns and/or pay any such Taxes 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 and such
circumstances continue unremedied for a period of one hundred and twenty
(120) days after notification from the Agent to the Borrowers requiring the
same to be remedied (provided further that such one hundred and twenty
(120) day remedy period shall only be taken into account if the Agent
certifies to the Borrowers that such circumstances are in the opinion of
the Majority Banks capable of remedy and the Borrowers demonstrate 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).
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14.12 COMPLIANCE WITH LAWS
The Borrowers and Stena AB will, and will procure that all other members of
the Stena AB Group will, manage their business in all material respects in
compliance with all relevant applicable laws and regulations and shall
notify the Agent immediately upon becoming aware of any breach of the same,
provided that the Borrowers and Stena AB shall only be in breach of their
obligations under this Clause if the effect of failing to comply with any
applicable law or regulation 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 and such circumstances
continue unremedied for a period of one hundred and twenty (120) days after
notification from the Agent to the Borrowers requiring the same to be
remedied (provided further that such one hundred and twenty (120) day
remedy period shall only be taken into account if the Agent certifies to
the Borrowers that such circumstances are in the opinion of the Majority
Banks capable of remedy and the Borrowers demonstrate 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).
14.13 FINANCIAL COVENANTS
(A) Stena AB and the Borrowers 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 the Cash Assets of the Stena AB Group shall be
not less than $50,000,000 (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);
and
(iii) the Net Debt shall be no greater than sixty five per cent (65%)
of the Capitalisation.
(B) The requirements contained in this Clause 14.13 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 unaudited financial statements delivered to the
Agent pursuant to Clause 14.2(B) or (as the case may be) the Officer's
Certificate delivered pursuant to Clause 14.2(F) provided however that
no breach shall be deemed to have arisen under this Clause 14.13
unless and until Stena AB shall, within ten (10) Banking Days
following receipt by the Stena AB of written notification from the
Agent that a shortfall has occurred under this Clause 14.13, have
failed to satisfy the Agent that such shortfall has been eliminated.
(C) For the purposes of this Clause 14.13, accounting terms are used and
shall be
82
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) which are made available to
one or more members of the Restricted Group at the date of such
financial statements and which have a scheduled maturity date falling
more than six (6) months after such date;
"CAPITALISATION" means, as at the date of computation, the sum of (a)
the Net Debt on such date plus (b) the Restricted Group's total
stockholders' equity and deferred taxation on such date (as determined
on a consolidated basis in accordance with Swedish GAAP);
"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 on a
consolidated basis in accordance with Swedish GAAP) of the Restricted
Group;
"CONSOLIDATED CURRENT LIABILITIES" means the aggregate at the date of
computation of intercompany payables and other current liabilities (as
determined on a consolidated basis in accordance with Swedish GAAP) of
the Restricted Group;
"NET DEBT" means the aggregate at the date of computation of the
outstanding principal amount of all bank debt, senior notes and
capitalised lease obligations of the Restricted Group less the
aggregate at such date of the Restricted Group's cash and cash
equivalents, short term investments and marketable securities (as
determined on a consolidated basis in accordance with Swedish GAAP).
14.14 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 any of the Indentures
or its rights of defeasance of the Notes under Article XII (Defeasance and
Covenant Defeasance) of any 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 is paid out
of the Cash Assets of the Stena AB Group and/or is financed by drawing all
or any part of the undrawn amount of any committed loan or overdraft
facilities (including the facilities provided under this Agreement) made
available to one or more members of the Stena AB Group at the date thereof
("UNDRAWN COMMITTED FACILITIES") and/or is financed by an Acceptable
Refinancing.
For the purposes of this Clause 14.14:-
"ACCEPTABLE REFINANCING" means Financial Indebtedness incurred by Stena AB
or any other member of the Stena AB Group which:-
(A) if incurred by Stena AB and/or a Borrower and/or any other member of
the Stena AB Group which has guaranteed the payment of the Outstanding
Indebtedness by the Borrowers hereunder, ranks, in right of payment,
pari passu with or subordinate to the Outstanding Indebtedness;
83
(B) is on terms that the scheduled date for repayment or redemption of
such Financial Indebtedness falls after the Termination Date and that
the person or persons to whom such Financial Indebtedness 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;
but excludes any such Financial Indebtedness incurred as a result of
drawing all or any part of the Undrawn Committed Facilities.
"SUCCESSOR FINANCING" means:-
(A) any Acceptable Refinancing 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 Acceptable Refinancing incurred for the purpose of assisting
Stena AB or any other member of the Stena AB Group to redeem or repay
any such Acceptable Refinancing referred to in sub-paragraph (A) or
which, directly or indirectly, refinances any such Acceptable
Refinancing.
14.15 APPLICATION OF PROCEEDS
Stena AB and the Borrowers will procure that the facilities provided under
this Agreement are applied for the purposes specified in Clause 1.1.
15 SHIP AND LINKSPAN COVENANTS : INSURANCE
15.1 DURATION
Stena AB and the Borrowers 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 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
84
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 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 8;
provided that following the occurrence of an Event of Default and for
so long as such Event of Default is continuing Stena AB and the
Borrowers 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), SIBV, 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 and by the sellers of any Transferred Ships (when aggregated to
the value of the insurances taken out pursuant to Clause 17.2 in
respect of the Ports) 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);
85
(B) in the case of any Mortgaged Ship which is not a rig or a drilling
unit (an "OFFSHORE UNIT"), 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 associations, such leading protection and
indemnity association or body as may be selected by the relevant
Shipowner or Stena Charterer and, in the case of any Mortgaged Ship
which is a Offshore Unit (but subject always to the proviso at the end
of this Clause 15.2), protection and indemnity risks (including
pollution) for an amount no less than that which a prudent first class
owner and/or operator of a rig or drilling unit of an equivalent type
to the relevant Offshore Unit would insure its rig or unit, having
regard to all relevant circumstances (including the operation of the
relevant Offshore Unit and the legal regime in that area for
responsibility for pollution damage) (and if there is any material and
adverse change in any of such relevant circumstances the Borrowers and
Stena AB undertake to procure that the relevant Shipowner will
promptly upon becoming aware of such change provide the Security Agent
with information relevant to such change);
(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;
provided always that, in respect of the provisions relating to Offshore
Units contained in Clause 15.2(B), the Security Agent may from time to time
as it feels is reasonably appropriate seek advice from HSBC Insurance
Brokers Ltd. (which advice will be, for the avoidance of doubt, at the
Borrowers' cost), and if the Security Agent relying upon the advice from
HSBC Insurance Brokers Ltd. reasonably considers that any of the Offshore
Units is not insured in accordance with Clause 15.2(B), the Security Agent
may give notice to the relevant Shipowner specifying a new level of
protection and indemnity cover required for the relevant Offshore Unit,
which such Shipowner shall have three (3) Banking Days to arrange at its
own cost and provide written confirmation to the Security Agent of the
revised cover from its protection and indemnity association.
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.
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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).
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
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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 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
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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 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).
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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 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.
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 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
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(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 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 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).
15.19 ASSISTANCE BY THE SHIPOWNER
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.
15.21 MAP COVER
If at any time during the Security Period a tanker becomes a Mortgaged
Ship, its relevant Shipowner will indemnify the Security Agent for the
reasonable costs of taking out a mortgagee's interest insurance -
additional perils (pollution) policy in respect of that Mortgaged Ship upon
such terms and in such amount (not exceeding an amount equal to 110% of the
Relevant Insured Amount for such Mortgaged Ship) as the Security Agent,
acting on the instructions of the Majority Banks, shall reasonably require,
after
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consultation with the Borrowers as to the selection of brokers and
insurance companies through and with whom such insurances are to be
effected with the intention to obtain at each time best possible market
conditions with regard to the terms and premiums, provided further that it
shall only be reasonable for such cover to be taken out at the relevant
Shipowner's expense if its Mortgaged Ship trades to the Exclusive Economic
Zone (as defined in the United States Oil Pollution Act, 1990) or to any
other jurisdiction having laws in respect of pollution liability where
there is a possibility of the Shipowner's liability in respect of a
pollution incident relating to its Mortgaged Ship exceeding the amount of
its protection and indemnity cover and such liability would or may give
rise to a lien or other claim against the Mortgaged Ship ranking in
priority ahead or alongside the Security Agent's rights under its relevant
Ship Mortgage thereon.
16 SHIP AND LINKSPAN COVENANTS : OPERATION AND MAINTENANCE
16.1 DURATION
Stena AB and the Borrowers 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 8;
provided that following the occurrence of an Event of Default and for
so long as such Event of Default is continuing Stena AB and the
Borrowers 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
(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:-
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(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
(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.
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
93
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 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.
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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 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
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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 or
drilling contract 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 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
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(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 Borrowers
pursuant to the Security Documents or (d) by reason of any
bareboat charterer or operator (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 9 or such other form as the Borrowers may
reasonably require which is not materially more onerous on the
Security Agent than that set out in Schedule 9 (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 Mortgaged Ship or Mortgaged Linkspan (other than a
Stena Charterer) if required by the Borrowers in respect of any
charter or drilling contract 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 AND ISPS CODE COMPLIANCE
Each Shipowner and Stena Charterer shall comply, or use its reasonable
endeavours to 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 will comply, in all material respects with
the ISM Code and the ISPS Code (or any replacement thereof).
17 COVENANTS IN RESPECT OF THE PORTS
17.1 DURATION
Stena AB and the Borrowers 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:-
(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
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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) 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 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
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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, 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 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
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 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;
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(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 9.3.
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.
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
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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 XXX 0000
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 Act 2002 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.
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 use
of such Mortgaged Port or any part thereof.
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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 Schedule 6 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:-
(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;
(C) since 30 June 2004, nothing shall have occurred (and neither the Agent
nor any of the Banks shall have become aware of any condition or
circumstance not
102
previously known to it or them) the effect of which is materially to
imperil, delay or prevent the due fulfilment by any Security Party of
all or any of its material payment obligations under the Security
Documents;
(D) no litigation, arbitration or administrative proceedings by any entity
(private or governmental) shall be current or pending against the
Borrowers and/or Stena AB which, if adversely determined, are likely
materially to imperil, delay or prevent the due fulfilment by any
Security Party of all or any of its material payment obligations under
the Security Documents.
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 Borrowers 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 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)
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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 Financial Indebtedness 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
Financial Indebtedness) 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
Financial Indebtedness (other than Financial Indebtedness
referred to in sub-paragraph (i) of this paragraph)
exceeds $30,000,000;
(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;
(G) APPOINTMENT OF LIQUIDATORS ETC.
a liquidator, trustee, administrator, receiver, manager or similar
officer is
104
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 2003
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
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
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Borrowers 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 Borrowers that such
circumstances are in the opinion of the Majority Banks capable of
remedy and the Borrowers demonstrate 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, a 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 such Borrower or Stena
AB to cause certain actions to be taken (or to prohibit the taking of
certain actions) by any Subsidiary of such Borrower or Stena AB if such
Subsidiary shall have taken (or failed to take) such actions, even where
SIBV or SSAG or Stena AB lacks the corporate power and authority under Book
2 of the Netherlands Civil Code or the Swiss Code of Obligations 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 Borrowers:-
(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 Borrowers 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 Borrowers (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 Borrowers 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 Borrowers 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 thereunder; 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, 9.3 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
107
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 (save
to the extent that any such loss or expense has arisen solely as a result
of the gross negligence or wilful misconduct of such Issuing Bank, such
Bank, the Standby Lender, the Security Agent or the Agent, as the case may
be).
20.2 CURRENCY INDEMNITY
If any sum due from the Borrowers 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 Borrowers 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 Borrowers 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 Borrowers 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 SIBV 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;
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(B) causes an Issuing Bank to believe that it has become unlawful for it
to perform its obligations under any Bank Guarantee previously issued;
(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
Borrowers whereupon:-
(i) the relevant Issuing Bank or Bank or Standby Lender (the
"AFFECTED PARTY") shall, following consultation with the
Borrowers, 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 Borrowers
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 Borrowers fail 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
Borrowers 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 Borrowers 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 9.10 or this Clause 21); or
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(c) in the case of paragraph (C) above:-
(i) such Bank's Commitment shall be reduced to zero;
(ii) the Borrowers 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 9.10 or this Clause 21); and
(iii) the Borrowers 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 Borrowers shall
immediately repay all Standby Outstandings.
If the Borrowers have 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
Borrowers have 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 Borrowers 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
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maintaining or funding its Contribution or the Standby Facility or
otherwise in maintaining its obligations under this Agreement; and/or
(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 Borrowers 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 Borrowers 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 Borrowers 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 Borrowers
being required to prepay the Outstandings of a Bank or the Standby
Outstandings pursuant to Clause 21.1; or
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(C) the Borrowers 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
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrowers 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 Borrowers 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
Each of the Borrowers and Stena AB authorises 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 Borrowers or Stena AB:-
(A) to apply any credit balance to which such Borrower or Stena AB is then
entitled standing upon any account of such 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 such 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 Borrowers 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 such
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
Borrowers 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
Borrowers 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, 9.10,
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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 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 Borrowers 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 Borrowers 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
Borrowers 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
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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.
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
Borrowers to any successor in title, assignee or transferee (including a
Transferee Bank) 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
Borrowers 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 Transferee Banks) 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 Borrowers 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 Borrowers agree 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
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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 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 Borrowers
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 Borrowers have paid to the
Agent for credit to a Cash Collateral Account pursuant to Clauses 9.10 or
21.1 shall be applied solely in or towards the discharge of the obligations
of the Borrowers 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 Borrowers 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 Borrowers 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 Borrowers or as they
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
Borrowers under this Agreement shall have been paid or discharged in full,
the Agent shall at the request and cost of the Borrowers reassign to the
Borrowers the property pledged pursuant to the Cash Collateral Account
Pledges and release any moneys standing to the credit of the Cash
Collateral Accounts to the Borrowers.
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 Borrowers 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.
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23.9 AMENDMENTS
The liability of the Borrowers 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, 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 Borrowers or Stena AB.
23.10 WAIVER BY BORROWERS AND STENA AB
The Borrowers 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 Borrowers or Stena AB
or any other person liable to make any claim or file any proof in the
bankruptcy, insolvency or liquidation of the Borrowers 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
Borrowers 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 Borrowers 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 Borrowers 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 Borrowers
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
116
(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
(iii) to transfer ownership of such Ship or Linkspan to the sole
ownership of another member of the Stena AB Group (the "NEW
OWNER") either free of its existing Ship Mortgage or Linkspan
Mortgage (a "TRANSFER OF OWNERSHIP") or subject to its existing
Ship Mortgage or Linkspan Mortgage (a "TRANSFER OF OWNERSHIP
SUBJECT TO MORTGAGE"); 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 Borrowers 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 or Transfer of Ownership
subject to Mortgage, 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, Transfer of Ownership subject to Mortgage and/or Dual
Registration;
(vii) in the case of a Transfer of Ownership or Transfer of Ownership
subject to Mortgage 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 AND/OR TRANSFER OF OWNERSHIP SUBJECT TO MORTGAGE
Subject to fulfilment of the conditions specified in Clause 23.12(F)
or, as the case may be, Clause 23.12(G), the Agent shall instruct the
Security Agent to, and the
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Security Agent shall:-
(i) (except in the case of a Transfer of Ownership subject to
Mortgage) 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;
(ii) release and re-assign the Deed of Covenant or Insurance
Assignment and, if so requested by the Borrowers, any Charterer's
Insurance Assignment executed in respect of such Ship or Linkspan
by a Stena Charterer upon reasonable notice from the Borrowers to
enable the Transfer of Flag of such Ship or Linkspan and/or the
Transfer of Ownership of such Ship or Linkspan and/or the
Transfer of Ownership subject to Mortgage of such Ship or
Linkspan;
(iii) release the Shipowner's Guarantee granted by the relevant
Shipowner, unless (a) the relevant Shipowner is the owner of one
or more other Mortgaged Ships or Mortgaged Linkspans or (b) the
relevant Ship or Linkspan is being transferred by means of a
Transfer of Ownership subject to Mortgage and the relevant Ship
Mortgage or Linkspan Mortgage (as the case may be) is expressed
to secure the Shipowner's obligations thereunder.
(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(H),
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 Borrowers 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
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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 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) and Permitted Ship Liens;
(viii) in the case of a Transfer of Flag, evidence that the New Flag
State shall be an Approved Flag State;
(ix) where the relevant Shipowner or (in the case of a Transfer of
Ownership) the New Owner is incorporated in Sweden, evidence
satisfactory to the agent 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 TRANSFER OF OWNERSHIP SUBJECT TO MORTGAGE
Upon completion of the Transfer of Ownership subject to Mortgage, the
Borrowers shall deliver or procure the delivery to the Agent of :-
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(i) a Shipowner's Guarantee and 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 New Owner collateral to the
existing Ship Mortgage or Linkspan Mortgage (as the case may be);
(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 continued due
validity and enforceability of the relevant Ship Mortgage or (as
the case may be) Linkspan Mortgage subject to which the New Owner
has acquired its title to the Ship or Linkspan, the due execution
and authorisation of any 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 New Owner, 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 existing Ship Mortgage
or existing Linkspan Mortgage (as the case may be) and Permitted
Ship Liens ;
(viii) where the New Owner is incorporated in Sweden, evidence
satisfactory to the agent that such New Owner is able to grant
and/or assume 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 (and under the existing Ship Mortgage or
(as the case may be) Linkspan Mortgage) 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.
(H) 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
Borrowers
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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 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.
(I) COMBINED TRANSACTIONS
Where a combined Transfer of Ownership or Transfer of Ownership
subject to Mortgage and/or Transfer of Flag and/or Dual Registration
is proposed, Clauses 23.12(C), (E), (F), (G) and/or (H) (as the case
may be) shall respectively be read together.
(J) 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) Austria, Belgium, Denmark, Finland, France, Germany, Greece,
Ireland Italy, Luxembourg, The Netherlands, Portugal, Spain,
Sweden and Switzerland;
(iii) Norway (including, without limitation, the Norwegian
International Shipping Register) and any other member of the
European Economic Area;
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(iv) United States of America and Canada;
(v) Australia and New Zealand;
(vi) the Bahamas, Cyprus, Greece, Liberia, the Xxxxxxxx Islands 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.
(K) 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.
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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
140% of the aggregate of (a) the total of the Commitments (excluding
any part thereof suspended under Clause 9.3 and not yet reinstated)
and (b) the Standby Commitment, the Agent (acting on the instructions
of the Majority Banks) may, provided that none of the 2012 Notes or
the 2013 Notes then remain outstanding, require the relevant Shipowner
to 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 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 Borrowers, Stena AB and their respective
successors.
24.2 NO ASSIGNMENT BY BORROWERS
Neither of the Borrowers nor Stena AB may assign or transfer any of its
respective 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 Borrowers (such consent
not to be unreasonably withheld or delayed) 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 Borrowers' consent.
Any transfer by a Bank shall be offered and effected in compliance with all
applicable
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laws and regulations. No such transfer is binding on, or effective in
relation to, the Borrowers, 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 Borrowers 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 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 Borrowers 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
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(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 Borrowers or of any other Security
Party referred to above include, but are not limited to, any right of
set off and any other kind of cross-claim;
(E) the Borrowers, 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 Borrowers, the Security Agent,
the Transferor Bank and the Transferee Bank.
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 Borrowers 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
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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 Borrowers 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 Borrowers (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 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 Borrowers.
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
Borrowers 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 Borrowers to keep secret and
confidential and, not without the prior written consent of the Borrowers,
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
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(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 Borrowers 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 Borrowers 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 Borrowers shall not be obliged to pay that
excess.
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 Borrowers or
any other Security Party in respect of its obligations under any
of the Security Documents.
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(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 Borrowers hereunder or
otherwise in connection therewith following the making of a
declaration by the Agent under Clause 19.2;
(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
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(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 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 Borrowers 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, financial projections, SEC filings
or reports 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 6;
(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);
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(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;
(vi) receive from the Borrowers 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:-
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(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).
(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:-
131
(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 Borrowers 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 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
132
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 Borrowers,
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:-
(i) 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;
(ii) to enter into any quiet enjoyment undertaking as contemplated by
Clause 16.15; and
(iii) to enter into a quadripartite agreement with SIBV as owner,
Stena Ferries Limited as bareboat charterer and P&O Ferries
Limited as sub-bareboat charterer in respect of m.v. "PRIDE OF
AQUITAINE" substantially in the form set out in Schedule 20 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,
Switzerland, Sweden or any other relevant jurisdiction, to the extent
that the law of the Netherlands, Switzerland, Sweden or such other
jurisdiction will apply thereto, the Security Agent will be the joint
and several creditor of each and every obligation of the Borrowers
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
Borrowers 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 Borrowers secured under the
Security Documents have been fully and finally discharged; and
133
(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 Borrowers 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).
(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
134
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:-
(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
135
(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;
(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.
136
(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).
(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 Borrowers, 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 Borrowers, 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 Borrowers 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
Borrowers consent in writing
137
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.
(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.
138
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 five (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 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 SSAG at:-
Xxxxxxxxxxxx
XX-0000 Xxx
Xxxxxxxxxxx
Fax: 00 00 000 0000
Marked for attention: Jan Larsson
to SIBV at:-
World Trade Centre
Amsterdam Airport
Schiphol Xxxxxxxxx 000
0000 XX Xxxxxxxx Xxxxxxx
Xxx Xxxxxxxxxxx
Fax: 00 00 000 0000
Marked for attention: Managing Director
(ii) to Stena AB at:-
Xxxxxxxxxxxxxx
XX-000 00 Xxxxxxxx
Xxxxxx
Fax: 00 00 000000
Marked for attention: Finance Manager
139
(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: RVC STBNL 753
(iv) to Nordea Bank AB (publ) in its capacity as the New Guarantee
Provider and as an Existing Guarantee Provider:-
Nordea Bank 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 JPMorgan Chase Bank, N.A. in its capacity as an Existing
Guarantee Provider at:-
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Fax: 00 00 0000 0000
Marked for attention: Corporate Banking - Transportation
(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 Borrowers 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 Borrowers 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,
140
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 Borrowers 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 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 Borrowers 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 Borrowers or Stena AB or any of
their assets may be brought in the English courts. The Borrowers 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
Borrowers 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
141
determine any claim which the Borrowers 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.
142
SCHEDULE 1
THE BANKS AND THEIR COMMITMENTS
<TABLE>
=========================================================================================
COMMITMENT PERCENTAGE
NAME ADDRESS AND FAX NUMBER $ %
-----------------------------------------------------------------------------------------
ABN AMRO Bank N.V. X.X. Xxx 000 68,000,000 68/970 x 100
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
-----------------------------------------------------------------------------------------
Citibank, N.A. 33 Canada Square 95,000,000 95/970 x 000
Xxxxxx Xxxxx
Xxxxxx X0 0XX
Xxxxxxx
Fax: 00 00 0000 0000
Attention: Xxxxx Xxxxx
-----------------------------------------------------------------------------------------
Deutsche Bank AG Brandstwiete 1 68,000,000 68/970 x 100
In Hamburg X-00000 Xxxxxxx
Xxxxxxx Xxxxxxxx of Germany
Fax: 00 00 0000 0000
Attention: International Ship
Financing, Xxxxxx Xxxx
-----------------------------------------------------------------------------------------
DnB NOR Bank ASA Stranden 21 95,000,000 95/970 x 100
X-0000 Xxxx
Xxxxxx
Fax: 00 00 00 00 00
Attention: Credit
Administration Shipping
-----------------------------------------------------------------------------------------
DVB Bank N.V. Nordic X.X. Xxx 000 Sentrum 45,000,000 45/970 x 100
Xxxxxx 0000 Xxxxxx
Xxxxxx
Fax: x00 00 00 00 00
Attn: Loan Administration
-----------------------------------------------------------------------------------------
HSBC Bank plc CIBM Transport & Logistics 95,000,000 95/970 x 100
Xxxxx 00
0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Fax: 00 00 0000 0000
Attention: Xxxx Dovigen
-----------------------------------------------------------------------------------------
HSH Nordbank XX Xxxxxxx-Xxxxxxxxx-Xxxxx 00 68,000,000 68/970 x 100
00000 Xxxxxxx
Xxxxxxx
Fax: 00 00 00 00 00000
Attention: Xxxxxxx Xxxxxxx
-----------------------------------------------------------------------------------------
</TABLE>
143
<TABLE>
=========================================================================================
COMMITMENT PERCENTAGE
NAME ADDRESS AND FAX NUMBER $ %
-----------------------------------------------------------------------------------------
JPMorgan Chase Bank, 125 London Wall 95,000,000 95/970 x 000
X.X. Xxxxxx XX0X 0XX
Xxxxxxx
Fax: 00 00 0000 0000
Attention: Corporate
Banking-Transportation
-----------------------------------------------------------------------------------------
Nordea Bank Xxxxx Xxxxxxxxx 00 95,000,000 95/970 x 100
AB (publ) XX-000 00 Xxxxxxxx
Xxxxxx
Fax: 00 00 000 0000
Attention: Nordea Shipping Offshore
and Oil Services
-----------------------------------------------------------------------------------------
Skandinaviska Enskilda Xxxxx Xxxxxxxxx 00 68,000,000 68/970 x 100
Xxxxxx XX (publ) X-000 00 Xxxxxxxx
Xxxxxx
Fax: 00 00 00 00 00
Attention: PSF/Shipping
-----------------------------------------------------------------------------------------
Svenska Handelsbanken Xxxxx Xxxxxxxxx 00 65,000,000 65/970 x 100
AB (publ) XX-000 00 Xxxxxxxx
Xxxxxx
Fax: 00 00 000 0000
Attention: RVC STBNL 753
-----------------------------------------------------------------------------------------
Swedbank Xxxxx Xxxxxxxxx 00 68,000,000 68/970 x 100
(Foreningssparbanken XX-000 00 Xxxxxxxxxx
XX (publ)) Sweden
Fax: x00 00 00 00 00
Attn: Shipping Department
-----------------------------------------------------------------------------------------
The Governor and 1st Floor, New Uberior House 45,000,000 45/970 x 100
Company of the Bank of 00 Xxxx Xxxx Xxxxxx
Xxxxxxxx Xxxxxxxxx XX0 0XX
Xxxxxxxx
Fax: 00 000 000 0000
Attention: Marine Finance
-----------------------------------------------------------------------------------------
TOTAL 970,000,000 100
=========================================================================================
</TABLE>
144
SCHEDULE 2
THE SHIPS
<TABLE>
------------------------------------------------------------------------------------------------------------------------------------
CLASSIFICATION OFFICIAL NO./ INITIAL MARKET
NAME SHIPOWNERS CLASSIFICATION SOCIETY CALL SIGN FLAG VALUE
------------------------------------------------------------------------------------------------------------------------------------
MONT VENTOUX Stena International DNV+1a1 ICE-1C General Det norske Veritas 901501 British $33,100,00
B.V. Cargo Carrier Ro/Ro
Container DG-P E0 ICS W1
------------------------------------------------------------------------------------------------------------------------------------
PRIDE OF AQUITAINE Stena International LR + 100A1 Ro-Ro Passenger Lloyds Register of 731221 British $46,100,000
B.V. and Vehicle Ferry LMC UMS Shipping
------------------------------------------------------------------------------------------------------------------------------------
STENA BALTICA Stena Bermuda Line DNV+1A1 R280 Car Ferry A Det norske Veritas 8000475 Bahamian $41,800,000
Limited EO
------------------------------------------------------------------------------------------------------------------------------------
STENA CARISMA Stena Line Scandinavia DNV+1A1 HSLC RI Car Ferry Det norske Veritas SGFV Swedish $27,700,000
AB A EO ICS
------------------------------------------------------------------------------------------------------------------------------------
STENA XXXXX Stena International DNV +1A1 Column Stabilised Det norske Veritas 376547 British $42,300,000
B.V. Drilling Unit
------------------------------------------------------------------------------------------------------------------------------------
STENA XXXXXX Stena Line Scandinavia DNV+1A1 Car Ferry A EO Det norske Veritas SKFH Swedish $31,000,000
AB ICE-1B
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
145
<TABLE>
------------------------------------------------------------------------------------------------------------------------------------
CLASSIFICATION OFFICIAL NO./ INITIAL MARKET
NAME SHIPOWNERS CLASSIFICATION SOCIETY CALL SIGN FLAG VALUE
------------------------------------------------------------------------------------------------------------------------------------
STENA DEE Stena Drilling Limited DNV +1A1 Column Stabilised Det norske Veritas 701160 British $ 98,300,000
Drilling Unit DRILL
------------------------------------------------------------------------------------------------------------------------------------
STENA DISCOVERY Stena Line Scandinavia DNV+1A1 R1, HSLC Car Ferry Det norske Veritas 18969 Dutch $ 62,700,000
AB A/Catamaran, ICS, E0
------------------------------------------------------------------------------------------------------------------------------------
STENA DON Stena Don LLC DNV +1A1 Column Stabilised Det norske Veritas 731709 Bermudian $280,800,000
Unit, Drilling Unit,
Structure (N), DRILL (N),
E0, DYNPOS-AUTRO, CRANE,
HELDK
------------------------------------------------------------------------------------------------------------------------------------
STENA EUROPE 33 shares - Stena Line DNV+1A1 Car Ferry A MCDK Det norske Veritas 905449 British $ 24,200,000
Shipholding B.V. ICE- 1C
31 shares - Stena Line
Scandinavia AB
------------------------------------------------------------------------------------------------------------------------------------
STENA FORECASTER Stena RoRo AB DNV+1A1 ICE-1A General Det norske Veritas SCKZ Swedish $ 42,600,000
Cargo Carrier Ro/Ro
CONTAINER DG-P E0 ICS W1
CLEAN TMON
------------------------------------------------------------------------------------------------------------------------------------
STENA FORERUNNER Stena RoRo AB DNV+1A1 ICE-1A General Det norske Veritas SBJP Swedish $ 42,600,000
Cargo Carrier Ro/Ro
CONTAINER DG-P E0 ICS W1
CLEAN
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
146
<TABLE>
------------------------------------------------------------------------------------------------------------------------------------
CLASSIFICATION OFFICIAL NO./ INITIAL MARKET
NAME SHIPOWNERS CLASSIFICATION SOCIETY CALL SIGN FLAG VALUE
------------------------------------------------------------------------------------------------------------------------------------
STENA FORETELLER Stena RoRo AB DNV+1A1 ICE-1A General Det norske Veritas SHXQ Swedish $41,600,000
Cargo Carrier Ro/Ro
CONTAINER DG-P E0 ICS W1
CLEAN TMON
------------------------------------------------------------------------------------------------------------------------------------
STENA GERMANICA Scandlines AB LR+100 A1 Car Ferry, Ice Lloyds Register of SKPZ Swedish $47,300,000
Class 2+LMC and UMS Shipping
------------------------------------------------------------------------------------------------------------------------------------
STENA NAUTICA Stena Rederi AB BV I + HULL + MACH Ro-Ro Bureau Veritas SCQU Swedish $22,500,000
Passenger Ship
Unrestricted Navigation
Ice Class IB + AUT-UMS
------------------------------------------------------------------------------------------------------------------------------------
STENA SAGA Stena Rederi AB LR + 100A1 Ferry, Ice Lloyds Register of SLVH Swedish $36,700,000
Class 1A Super, +LMC, UMS, Shipping
with descriptive note
ShipRight SCM
------------------------------------------------------------------------------------------------------------------------------------
STENA SCANDINAVICA Stena Line Scandinavia LR+100 A1 Car Ferry, Ice Lloyds Register of XXXX Swedish $47,900,000
AB Class 2+LMC and UMS Shipping
------------------------------------------------------------------------------------------------------------------------------------
STENA SCANRAIL Stena Line Scandinavia BV 1 3/3 E Roll On Roll Bureau Veritas SLBM Swedish $ 3,800,000
AB Off Deepsea ICE III
------------------------------------------------------------------------------------------------------------------------------------
STENA SEARIDER Stena Line Scandinavia DNV+1A1 Car and Train Det norske Veritas 900102 British $ 3,800,000
XX Xxxxx A EO ICE -1B
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
147
<TABLE>
------------------------------------------------------------------------------------------------------------------------------------
CLASSIFICATION OFFICIAL NO./ INITIAL MARKET
NAME SHIPOWNERS CLASSIFICATION SOCIETY CALL SIGN FLAG VALUE
------------------------------------------------------------------------------------------------------------------------------------
STENA SEATRADER Stena Line B.V. DNV+1A1 ICE- A Det norske Veritas 904247 British $ 5,400,000
------------------------------------------------------------------------------------------------------------------------------------
STENA SHIPPER Global Navigation GL +100A5 X0 Xx-Xx Xxxx Xxxxxxxxxxxx Xxxxx 000000 Xxxxxxx $ 7,100,000
Limited Equipped for Carriage of
Containers
------------------------------------------------------------------------------------------------------------------------------------
STENA SPEY Stena HSD Limited DNV +1A1 Column Stabilised Det norske Veritas 703396 British $ 61,700,000
Drilling
------------------------------------------------------------------------------------------------------------------------------------
STENA TAY Stena Tay ANS DNV +1A1 Column Stabilised Det norske Veritas 731247 Bermudian $270,000,000
Drilling Xxxx, X0, HELDK
DYNPOS-AUTR
------------------------------------------------------------------------------------------------------------------------------------
SVEALAND Stena Bermuda Line RINA+100-A- 1.1- Nav IL; RINA 8000837 Bahamas $ 41,800,000
Limited Tr (ro-ro)- TP-Cont
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
148
SCHEDULE 3
EXISTING BANK GUARANTEES
PART 1
Guarantee No: 4
Beneficiary: Commerzbank AG, Kiel
Amount: EUR 1,044,000
Valid from: 30 June 2003
Expiry Date: 30 June 2005
Issuing Bank: Nordea Bank AB (publ)
Guarantee No: 6
Beneficiary: Bank Handlowy w Warzawie
Amount: PLN 200,000
Valid from: 3 June 2004
Expiry Date: 10 June 2005
Issuing Bank: Nordea Bank AB (publ)
Guarantee No: 11
Beneficiary: IATA/IDFS The Netherlands
Amount: EUR 160,000
Valid from: 4 December 2002
Expiry Date: 6 December 2005 (but renews automatically for a further 12
months on each expiry date unless 30 days' prior notice to
terminate is given by the Existing Guarantee Provider
thereunder)
Issuing Bank: Nordea Bank AB (publ)
Guarantee No: 12
Beneficiary: HM Customs & Excise
Amount: (pound)40,000
Valid from: 19 December 2002
Expiry Date: 12 months after a notice of determination has been given by
either the Guarantor or the Beneficiary.
Issuing Bank: Nordea Bank AB (publ)
Guarantee No: 14
Beneficiary: Dalian Shipyard
Amount: $3,021,984
Valid from: 30 April 2003
Expiry Date: Latest 30 April 2006
Issuing Bank: Nordea Bank AB (publ)
Guarantee No: 21
Beneficiary: Swan National Ltd
Amount: (pound)2,040,156.52
Valid from: 14 June 2004
Expiry Date: 31 July 2013
Issuing Bank: Nordea Bank AB (publ)
149
Guarantee No: 23
Beneficiary: Civil Aviation Authority
Amount: (pound)55,500 (Standard Bond)
Valid from: 30 September 2004
Expiry Date: 31 March 2006
Issuing Bank: Nordea Bank AB (publ)
Guarantee No: 24
Beneficiary: Civil Aviation Authority
Amount: (pound)55,500 (Supplemental Bond)
Valid from: 30 September 2004
Expiry Date: 31 March 2006
Issuing Bank: Nordea Bank AB (publ)
Guarantee No: 25
Beneficiary: The Association of British Travel Agents Ltd
Amount: (pound)449,900
Valid from: 1 October 2004
Expiry Date: 31 March 2006
Issuing Bank: Nordea Bank AB (publ)
PART 2
Guarantee No: 5
Beneficiary: HSBC Bank plc
Amount: (pound)550,000
Valid from: 5 October 2001
Expiry Date: 1 October 2005 (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)
Issuing Bank: JPMorgan Chase Bank, N.A.
Guarantee No: 7
Beneficiary: ING Bank NV, Amsterdam
Amount: EUR 147,585
Valid from: 31 July 2002
Expiry Date: 11 August 2005 (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)
Issuing Bank: JPMorgan Chase Bank, N.A.
150
SCHEDULE 4
FORM OF DRAWDOWN NOTICE
To: Svenska Handelsbanken AB (publ)
XX-000 00 Xxxxxxxx
Xxxxxx
Attention: RVC STBNL 753
________ 20 ___
U.S.$1,000,000,000
Facility Agreement dated 8 December 2004
We refer to the above Facility Agreement and on behalf of the Borrowers hereby
give you notice that the Borrowers wish to draw an Advance of $_____ on ____
20____ [and select a Term in respect thereof of _____ months]. The funds should
be credited to [NAME AND NUMBER OF ACCOUNT] with [NEW YORK CITY].
We confirm that, in respect of each Borrower, the borrowing to be effected by
such Advance will be within its corporate powers, has been validly authorised by
appropriate corporate action and will not cause any limit on its 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
[NAME OF BORROWER]
-------------------------------------
151
SCHEDULE 5
FORM OF BANK GUARANTEE REQUEST
To: Svenska Handelsbanken AB (publ)
XX-000 00 Xxxxxxxx
Xxxxxx
Attention: RVC STBNL 753
________ 20 ____
U.S.$1,000,000,000
Facility Agreement dated 8 December 2004
We refer to the above Facility Agreement and hereby request on behalf of the
Borrowers that the New Guarantee Provider [agrees to extend the Expiry Date of
[DESCRIBE RELEVANT BANK GUARANTEE] from _____ to _____] [issues a Bank Guarantee
in the form attached hereto in favour of [INSERT NAME OF BENEFICIARY] on _____
20 ____].
[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
[NAME OF BORROWER]
-------------------------------------
152
SCHEDULE 6
CONDITIONS PRECEDENT
(referred to in Clause 18.1)
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 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 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;
(B) classified 1A1 with its Classification Society; and
(C) technically managed by its Approved Manager (if any).
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 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 an assignment securing the SIBV
$600m Facility, the SIBV $275 Facility, the Stena Discovery Facility, the
Stena F-Class Facility, the Mont Ventoux Facility and/or the Svealand
Facility).
2.3 Originals of the Security Documents to be entered into in respect of each
Ship and Linkspan 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 CARISMA", "LINKSPAN I", "LINKSPAN II",
"STENA XXXXXX", "STENA FORECASTER", "STENA FORERUNNER", "STENA
FORETELLER", "STENA NAUTICA", "STENA SAGA", "STENA SCANDINAVICA" and
"STENA SCANRAIL":-
(i) first priority instruments of pledge in the form set out in
Schedule 4 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 in the following amounts:-
153
SHIP/LINKSPAN AMOUNT
"STENA CARISMA" $ 62,500,000
"LINKSPAN I" $ 4,000,000
"LINKSPAN II" $ 3,000,000
"STENA XXXXXX" $ 57,000,000
"STENA FORECASTER" (euro) 42,000,000
"STENA FORERUNNER" (euro) 42,000,000
"STENA FORETELLER" (euro) 42,000,000
"STENA NAUTICA" $ 32,000,000
"STENA SAGA" $109,000,000
"STENA SCANDINAVICA" $115,000,000
"STENA SCANRAIL" $ 8,000,000
(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 "MONT VENTOUX", "PRIDE OF AQUITAINE", "STENA
BALTICA", "STENA XXXXX", "STENA DEE", "STENA DON", "STENA EUROPE",
"STENA SEARIDER", "STENA SEATRADER", "STENA SHIPPER", "STENA SPEY",
"STENA TAY" and "SVEALAND":-
(i) a first priority statutory ship mortgage thereon incorporating
the relevant 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 DISCOVERY", "STENA 407A", and "STENA
407B":-
(i) first priority Dutch ship mortgages in the form set out in
Schedule 5 to the Agreed Form Certificate (in the case of "STENA
DISCOVERY") and Schedule 8 to the Agreed Form Certificate (in the
case of "STENA 407A" and "STENA 407B") executed by Stena Line
Scandinavia;
(ii) an Insurance Assignment and Notices of Assignment of Insurances
in the form of Schedule 1 thereto each executed by Stena Line
Scandinavia in respect thereof;
(iii) the Linkspan Chattel Mortgage relating to "STENA 407B" executed
by Stena Line Scandinavia;
(D) in the case of m.v. "STENA GERMANICA":-
(i) the Stena Germanica Assignment;
154
(ii) the notice of assignment in the form of Schedule 1 to the Stena
Germanica Assignment executed by SSAG 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 SSAG 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 SSAG;
(E) in the case of each of the Mortgaged Ships and Mortgaged Linkspans:-
(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"),
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.
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.
2.6 A certificate from the Borrowers identifying all of the charters and
drilling contracts in respect of the Mortgaged Ships and Mortgaged
Linkspans to which a member of the Stena AB Group is a party as charterer
or operator as at the Availability Date.
3 HOLYHEAD PORT
3.1 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.
4 STRANRAER PORT
4.1 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.
155
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.
5 CASH COLLATERAL ACCOUNTS
5.1 Evidence that the Borrowers have 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 Borrowers in
respect of the accounts referred to in paragraph 5.1 above.
5.3 An original second priority pledge over any relevant Cash Collateral
Account required to be executed in favour of the New Guarantee Provider
pursuant to Clause 4.5(A).
6 CONSTITUTIONAL DOCUMENTS
Certified copies of the Certificate of Incorporation and Memorandum and
Articles of Association or equivalent constitutive documents of the
Borrowers, each other Security Party and Stena (Luxembourg).
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 Certified copies of resolutions of the Borrowers and Stena (Luxembourg)
approving those of the Stena Germanica (Luxembourg) Assignment and the
Stena Germanica (Switzerland) Assignment to which each such company is a
party and approving the transactions contemplated thereby and authorising
the execution of such documents by an officer or attorney thereof.
7.3 Original or certified copies of the powers of attorney, if any, issued
pursuant to the resolutions referred to in paragraphs 7.1 and 7.2 above.
8 CERTIFICATE OF INCUMBENCY
Certified copies of a certificate of incumbency or extract from the
commercial register in respect of the Borrowers, each other Security Party
and Stena (Luxembourg).
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 Borrowers and
the other Security Parties 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 AND EXPENSES
10.1 The agency fee letter agreement referred to in Clause 10.1 executed by the
Borrowers and Svenska Handelsbanken AB (publ) as Agent and Security Agent.
156
10.2 Evidence that all such fees and expenses referred to in Clause 10 as are
payable on or before the Availability Date have been received by the Agent
(but so that any legal fees to be paid or reimbursed by the Borrowers shall
only be deemed to be payable on the Availability Date if invoiced to the
Borrowers by the Agent at least ten (10) Banking Days before that date).
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. Xxxxxxxxxx Xxxxxxx concerning such matters of Swiss law as the
Agent may reasonably require;
(E) Messrs. Xxxxxx, Xxxxxxxx & Xxxxxxxxx concerning such matters of
Scottish law as the Agent may reasonably require;
(F) Messrs. Xxxxxxxxx Xxxxxxxxxxx & Co. concerning such matters of Manx
law as the Agent may reasonably require;
(G) Messrs. Xxxxxxx Xxxx & Xxxxxxx concerning such matters of Bermudian
law as the Agent may reasonably require;
(H) Messrs. Xxxxxxxx Foyen Advokatfirma DA concerning such matters of
Norwegian law as the Agent may reasonably require;
(I) Messrs. Xxxxx & Xxxxxxx concerning such matters of Bahamian law as the
Agent may reasonably require; and
(J) Messrs. Xxxxxxx & Partners concerning such matters of Luxembourg law
as the Agent may reasonably require.
13 FINANCIAL CONDITION
Evidence that as at 30 September 2004:-
(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
157
Current Liabilities;
(B) the aggregate of the Cash Assets of the Stena AB Group was at least
$50,000,000; and
(C) the Net Debt was no greater than sixty five per cent (65%) of the
Capitalisation.
14 PROCESS AGENT
Written confirmation from Stena (UK) Limited that it will act as the
process agent for service of process in England of the Borrowers and each
other Security Party.
15 STENA GERMANICA DOCUMENTS
15.1 A certified copy of the Stena Germanica Loan Agreement as amended and
transferred out of the name of Stena Line into the name of SSAG as lender
to Scandlines thereunder, such agreement to be on terms whereby the
principal loan amount outstanding thereunder is at least $52,000,000 and
the repayment date thereof falls after the Termination Date hereunder.
15.2 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
SSAG (including all appropriate notices and acknowledges of assignment
given to and/or by Scandlines, Stena Line Scandinavia, SIBV and Stena
(Luxembourg) respectively), all such documents to be in form and substance
acceptable to the Agent.
15.3 Certified copies of the Stena Germanica Charterer's Insurance Assignment
and the Stena Germanica Charterer's Subordination Undertaking together with
certified copies of the agreement or agreements by which such documents
have been assigned from SIBV to SSAG (including all appropriate notices and
acknowledges of assignment given to and/or by Scandlines, Stena Line
Scandinavia, SIBV and Stena (Luxembourg) respectively), all such documents
to be in form and substance acceptable to the Agent.
16 CANCELLATION OF EXISTING FACILITIES
Evidence that, simultaneously with drawdown of the first Advance, all
outstandings in respect of the SIBV $600m Facility, the SIBV $275m
Facility, the Stena Discovery Facility, the Stena F-Class Facility, the
Mont Ventoux Facility and the Svealand Facility will be reduced to zero and
such facilities finally and irrevocably cancelled and that at that time all
of the securities securing such facilities will be finally and
unconditionally released and discharged.
158
SCHEDULE 7
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 Borrowers, 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: RVC STBNL 753
____ 20 __
This certificate ("TRANSFER CERTIFICATE") relates to a US$1,000,000,000 facility
agreement dated 8 December 2004 (as amended, novated and/or restated from time
to time the "FACILITY AGREEMENT") and made between (1) Stena International B.V.
and Stena (Switzerland) AG (the "BORROWERS"), (2) Citigroup Global Markets Ltd.,
DnB NOR Bank ASA, HSBC Bank plc, X. X. Xxxxxx plc, Nordea Bank 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 AB (publ)
and JPMorgan Chase Bank, N.A. 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 $1,000,000,000. 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
159
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 Borrowers, 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
160
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 Borrowers 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
Borrowers, 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:-
161
(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
Borrowers or any other Security Party or any party to any such other
document or for the performance and observance by the Borrowers or any
other Security Party or any party to any such other document (save as
otherwise expressly provided therein) and any and all such conditions
and warranties, whether express or implied by law or otherwise, are
hereby excluded (except as aforesaid).
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 Borrowers, 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.
162
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:
163
SCHEDULE 8
SPECIMEN CHARTER COVENANTS AND LOSS PAYABLE CLAUSES
164
SCHEDULE 9
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][Norway] and we submit to the exclusive jurisdiction of the
courts in [London][Oslo] for all purposes in connection with this undertaking.
SIGNED for an on behalf of
SVENSKA HANDELSBANKEN AB (PUBL)
165
SCHEDULE 10
FORM OF COMPLIANCE CERTIFICATE
OFFICER'S CERTIFICATE ISSUED PURSUANT TO A
$1,000,000,000 FACILITY AGREEMENT DATED 8 DECEMBER 2004 (THE "FACILITY
AGREEMENT")
I, [___], 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 Available Facilities
o Capitalisation
o Cash Assets
o Consolidated Current Assets
o Consolidated Current Liabilities
o Net Debt
as at 31 December [20_____] (the "REFERENCE DATE"), determined in
accordance with Clause 14.13 of the Facility Agreement.
2. As at the Reference Date:-
(A) the aggregate amount of the Consolidated Current Assets and
Available Facilities (SEK[____]) was equal to [____]% of the amount
of the Consolidated Current Liabilities (SEK[____])
REQUIREMENT: AGGREGATE OF (I) CONSOLIDATED CURRENT ASSETS AND (II)
AVAILABLE FACILITIES TO BE NOT LESS THAN 125% OF THE
AMOUNT OF THE CONSOLIDATED CURRENT LIABILITIES
SATISFIED: YES/NO
(B) the aggregate amount of the Cash Assets of the Stena AB Group was
$[____]
REQUIREMENT: AGGREGATE OF THE CASH ASSETS OF THE STENA AB GROUP TO
BE NOT LESS THAN $50,000,000
SATISFIED: YES/NO
(C) the Net Debt (SEK[____]) was equal to [______]% of the
Capitalisation (SEK[_____])
REQUIREMENT: NET DEBT TO BE NO GREATER THAN 65% OF THE
CAPITALISATION
SATISFIED: YES/NO
166
3. To the best of our knowledge, Stena AB is not in default in the
performance and observance of any of the terms, provisions and conditions
of Clauses 14.7 of the Facility Agreement.
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 _____ day of _____
[20__].
STENA AB (PUBL.)
By:
---------------------------------------
[Chief Financial Officer/INSERT OFFICE]
167
THE BORROWERS
SIGNED by )
)
attorney-in-fact for and on behalf of )
STENA INTERNATIONAL B.V. )
SIGNED by )
)
attorney-in-fact for and on behalf of )
STENA (SWITZERLAND) AG )
THE AGENT AND SECURITY AGENT
SIGNED by )
)
attorney-in-fact for and on behalf of )
SVENSKA HANDELSBANKEN AB (PUBL) )
THE BANKS AND CO-ARRANGERS
SIGNED by )
)
attorney-in-fact for and on behalf of )
ABN AMRO BANK N.V. )
SIGNED by )
)
for and on behalf of )
CITIBANK, N.A. )
by its duly authorised signatory )
SIGNED by )
)
for and on behalf of )
CITIBANK GLOBAL MARKETS LTD. )
by its duly authorised signatory )
168
SIGNED by )
)
attorney-in-fact for and on behalf of )
DEUTSCHE BANK AG, IN HAMBURG )
SIGNED by )
)
attorney-in-fact for and on behalf of )
DNB NOR BANK ASA )
SIGNED by )
)
attorney-in-fact for and on behalf of )
DVB BANK N.V. acting through its )
Norwegian branch DVB BANK N.V. NORDIC
BRANCH )
SIGNED by )
)
for and on behalf of )
HSBC BANK PLC )
by its duly authorised signatory )
SIGNED by )
)
attorney-in-fact for and on behalf of )
HSH NORDBANK AG )
SIGNED by )
)
for and on behalf of )
JPMORGAN CHASE BANK, N.A. )
by its duly authorised signatory )
SIGNED by )
)
for and on behalf of )
X.X. XXXXXX PLC )
by its duly authorised signatory )
169
SIGNED by )
)
attorney-in-fact for and on behalf of )
NORDEA BANK AB (PUBL) )
SIGNED by )
)
attorney-in-fact for and on behalf of )
SKANDINAVISKA ENSKILDA XXXXXX
XX (PUBL) )
SIGNED by )
)
attorney-in-fact for and on behalf of )
SVENSKA HANDELSBANKEN AB (PUBL) )
SIGNED by )
)
attorney-in-fact for and on behalf of )
SWEDBANK (FORENINGSSPARBANKEN AB )
(PUBL)) )
SIGNED by )
)
attorney-in-fact for and on behalf of )
THE GOVERNOR AND COMPANY OF THE )
BANK OF SCOTLAND )
THE STANDBY LENDER
SIGNED by )
)
attorney-in-fact for and on behalf of )
SVENSKA HANDELSBANKEN AB (PUBL) )
170
THE ISSUING BANKS
SIGNED by )
)
attorney-in-fact for and on behalf of )
NORDEA BANK AB (PUBL) )
SIGNED by )
)
for and on behalf of )
JPMORGAN CHASE BANK, N.A. )
by its authorised signatory )
STENA AB
SIGNED by )
)
attorney-in-fact for and on behalf of )
STENA AB (PUBL.) )
171
FACILITY AGREEMENT
FOR A
U.S.$1,000,000,000 FACILITY
TO
STENA INTERNATIONAL B.V.
AND
STENA (SWITZERLAND) AG
PROVIDED BY
THE BANKS AND FINANCIAL
INSTITUTIONS LISTED IN
SCHEDULE 1
ARRANGED BY
CITIGROUP GLOBAL MARKETS LTD.
DNB NOR BANK ASA
HSBC BANK PLC
X. X. XXXXXX PLC
NORDEA BANK AB (PUBL)
SVENSKA HANDELSBANKEN AB (PUBL)
AGENT
SVENSKA HANDELSBANKEN AB (PUBL)
SECURITY AGENT
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................................................. 34
3 Advances........................................................ 35
4 Issue of Bank Guarantees........................................ 37
5 Reduction and Extension of Bank Guarantees...................... 41
6 Payments under Bank Guarantees.................................. 41
7 The Standby Facility............................................ 43
8 Interest on Advances............................................ 47
9 Repayment, Reduction and Cancellation........................... 49
10 Fees, Commission, Margin and Expenses........................... 62
11 Payments and Taxes; Accounts and Calculations................... 66
12 Guarantee and Indemnity......................................... 70
13 Representations and Warranties.................................. 73
14 Undertakings.................................................... 77
15 Ship and Linkspan Covenants : Insurance......................... 84
16 Ship and Linkspan Covenants : Operation and Maintenance......... 92
17 Covenants in respect of the Ports............................... 97
18 Conditions...................................................... 102
19 Default......................................................... 103
20 Indemnities..................................................... 107
21 Unlawfulness and Increased Costs................................ 108
22 Set-Off and Pro-Rata Payments................................... 112
23 Security........................................................ 114
24 Assignment, Transfer and Lending Office......................... 123
25 Reference Banks, Co-Arrangers, Agent and Security Agent......... 127
26 Notices and Other Matters....................................... 139
27 Governing Law and Jurisdiction.................................. 141