Date 27 February 2006
EMPIRE SPIRIT LTD.
INDEPENDENT TRADER LTD.
TRIATHLON INC.
SOLEIL TRUST INC.
JUNGLE INVESTMENT LIMITED AND
NORTHERN YIELD SHIPPING LIMITED
as joint and several Borrowers
-and-
DNB NOR BANK ASA
as Lender
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SUPPLEMENTAL AGREEMENT
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in relation to a Loan Agreement dated
5 December 2005 for a loan facility
of (originally) up to US$50,000,000
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
PIRAEUS
CLAUSE PAGE
------ ----
1 INTERPRETATION 1
2 AGREEMENT OF THE LENDER 5
3 CONDITIONS PRECEDENT 5
4 REPRESENTATIONS AND WARRANTIES 8
5 AMENDMENTS TO LOAN AGREEMENT AND OTHER FINANCE DOCUMENTS 9
6 FURTHER ASSURANCES 12
7 FEES AND EXPENSES 13
8 NOTICES 13
9 SUPPLEMENTAL 13
10 LAW AND JURISDICTION 14
EXECUTION PAGES 15
THIS AGREEMENT is made on 27 February 2006
BETWEEN
(1) EMPIRE SPIRIT LTD., INDEPENDENT TRADER LTD., TRIATHLON INC., SOLEIL TRUST
INC., JUNGLE INVESTMENT LIMITED and NORTHERN YIELD SHIPPING LIMITED
(together, the "BORROWERS" and each a "BORROWER"); and
(2) DNB NOR BANK ASA of Norway acting through its office at ▇▇ ▇▇ ▇▇▇▇▇▇▇'▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ as "LENDER".
BACKGROUND
(A) By a loan agreement dated 5 December 2005 and made between (i) the
Borrowers and (ii) the Lender, the Lender has made available to the
Borrowers a loan facility of (originally) US$50,000,000 (which represents
the outstanding principal amount of the said loan at the date of this
Agreement).
(B) The Borrowers have made a request to the Lender that it makes available a
further tranche (divided into two advances) under the Loan Agreement of up
to US$14,000,000 in aggregate which shall be on-lent by the Borrowers to
two affiliated companies of the Borrowers, Balkan Holding Inc. and Balcan
Profit Limited, to assist such companies in refinancing part of the
acquisition cost of the LPG carriers "GAS CZAR" and "GAS ETERNITY".
(C) This Agreement sets out the terms and conditions on which the Lender
agrees, with effect on and from the Effective Date, at the request of the
Borrowers to make available Tranche C to the Borrowers and the
consequential amendments to the Loan Agreement and the other Finance
Documents.
IT IS AGREED as follows:
1 INTERPRETATION
1.1 DEFINED EXPRESSIONS. Words and expressions defined in the Loan Agreement
and the other Finance Documents shall have the same meanings when used in
this Agreement unless the context otherwise requires.
1.2 DEFINITIONS. In this Agreement, unless the contrary intention appears:
"ADDITIONAL GUARANTEE" means, in relation to each Additional Guarantor,
the guarantee of the obligations of the Borrowers under the Loan Agreement
and the Finance Documents to be made by that Additional Guarantor in
favour of the Lender in such form as the Lender may approve or require
and, in the plural, means both of them;
"ADDITIONAL GUARANTORS" means each of Balkan and Balcan Profit and, in the
plural, means both of them;
"ADDITIONAL SHARES PLEDGE" means, in relation to each Additional
Guarantor, the pledge of all the shares of and in that Additional
Guarantor, executed or to be executed by the Corporate Guarantor in favour
of the Lender in such form as the Lender may approve or require and, in
the plural, means both of them;
"ADDITIONAL SHIP" means each of "GAS CZAR" and "GAS ETERNITY" and in the
plural, means both of them;
"ADDITIONAL SHIP ACCOUNT SECURITY DEED" means, in relation to each
Additional Ship, a deed creating security in respect of the relevant
Additional Ship Earnings Account in such form as the Lender may approve or
require and, in the plural, means both of them;
"ADDITIONAL SHIP EARNINGS ACCOUNT" means, in relation to an Additional
Ship, an account in the name of the Additional Guarantor owning that
Additional Ship with the Lender in England designated "[name of Additional
Guarantor] - Earnings Account" or any other account (with that or another
office of the Lender) which is designated by the Lender as an Earnings
Account for the purposes of the Loan Agreement and, in the plural, means
both of them;
"ADDITIONAL SHIP FINANCE DOCUMENTS" means, together:
(a) the Additional Guarantees;
(b) the Additional Shares Pledge;
(c) the Additional Ship Account Security Deeds;
(d) the Additional Ship General Assignments;
(e) the Additional Ship Mortgages;
(f) the Gas Czar Charter Assignment; and
(g) the Gas Eternity Deed of Covenant,
and, in the singular, means any of them;
"ADDITIONAL SHIP GENERAL ASSIGNMENT" means, in relation to each Additional
Ship, a first priority general assignment of the Earnings, the Insurances
and any Requisition Compensation of that Additional Ship, in such form as
the Lender may approve or require and, in the plural, means both of them;
"ADDITIONAL SHIP MOA" means in relation to:
(a) "GAS CZAR", a memorandum of agreement dated 22 December 2005 made
between Islas Gas Carriers, Inc. as seller and Balkan (as nominee of
the Corporate Guarantor) as buyer for a purchase price of $9,830,000;
and
(b) "GAS ETERNITY", a memorandum of agreement dated 22 June 2005 made
between ▇▇▇▇ (as nominee of Brave Maritime Corporation Inc.) as
seller and Balcan Profit as buyer for a purchase price of
$12,912,500,
and, in the plural, means both of them;
"ADDITIONAL SHIP MORTGAGE" means each of the Gas Czar Mortgage and the Gas
Eternity Mortgage and, in the plural, means both of them;
"AMENDMENT DEED OF COVENANT" means, in respect of "GAS CATHAR", an
amendment to the Deed of Covenant in respect of that Ship in such form as
the Lender may approve or require;
"AMENDMENT MORTGAGE" means, in respect of each of "GAS CATHAR", "GAS
MARATHON" and "GAS SINCERITY" an amendment mortgage to the Mortgage in
respect of the relevant Ship in such form as the Lender may approve or
require and in the plural, means all of them;
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"APPROVED FLAG" means, in relation to:
(a) "GAS CZAR", ▇▇▇▇▇▇▇▇ Islands flag; and
(b) "GAS ETERNITY", Cyprus flag,
or, in either case, such other flag as the Lender may approve as the flag
on which an Additional Ship may be registered;
"BALCAN PROFIT" means Balcan Profit Limited, a company incorporated in
Malta having its registered office at ▇▇▇/▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇;
"BALKAN" means Balkan Holding Inc. a corporation incorporated in the
▇▇▇▇▇▇▇▇ Islands having its registered office at Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
"EFFECTIVE DATE" means the date on which all the conditions precedent
referred to in Clauses 3.2 and 3.3 have been fulfilled by the Borrowers,
to be a Business Day not later than 28 February 2006 (or such later date
as the Lender may agree with the Borrowers);
"EXISTING SHIPS" means, together, the New Ships, "GAS ORACLE" and "GAS
MONARCH";
"GAS CZAR" means the 1995-built LPG carrier of 3,500 cubic metres
currently registered in the ownership of Islas Gas Carriers, Inc. under
the Philippines flag with the name "ISLAS GAS" which is to be purchased by
Balkan pursuant to the Additional Ship MOA relative to "GAS CZAR" and to
be registered in its ownership under the ▇▇▇▇▇▇▇▇ Islands flag with the
name "GAS CZAR";
"GAS CZAR ADDITIONAL ADVANCE" means (a) an amount equal to 65 per cent. of
the lesser of (i) the Market Value of "GAS CZAR" and (ii) the Purchase
Price of "GAS CZAR" or (b) if such Advance is the second Tranche C
Additional Advance to be drawn down, an amount equal to the lesser of (i)
an amount which when aggregated with the first Tranche C Additional
Advance is equal to $14,000,000 and (ii) the lesser of the amounts
referred to in paragraph (a), to be made available to the Borrowers under
the Loan Agreement (as amended and supplemented by this Agreement) in
accordance with Clauses 2.2 and 3.2 of the Loan Agreement and upon the
terms and conditions specified in this Agreement;
"GAS CZAR CHARTER" means a time charterparty in respect of "GAS CZAR"
dated 10 December 2003 (as supplemented and amended) and made between
Islas Gas Carriers, Inc. and Shell Gas Trading (Asia-Pacific) Inc. (as the
same has been novated to Balkan pursuant to a novation agreement dated 9
February 2006;
"GAS CZAR CHARTER ASSIGNMENT" means a specific assignment of the rights of
Balkan under the Gas Czar Charter executed or to be executed by Balkan in
favour of the Lender in such form as the Lender may approve or require;
"GAS CZAR MORTGAGE" means a first preferred ▇▇▇▇▇▇▇▇ Islands mortgage in
respect of "GAS CZAR" made or to be made by Balkan in favour of the Lender
in such form as the Lender may approve or require;
"GAS ETERNITY" means the 1998-built LPG carrier of 3,500 cubic metres
currently registered in the ownership of ▇▇▇▇ under Cyprus flag with the
name "GAS ETERNITY" which is to be purchased by Balcan Profit pursuant to
the Additional Ship MOA relative to "GAS ETERNITY" and to be registered in
its ownership under Cyprus flag with the same name;
3
"GAS ETERNITY ADDITIONAL ADVANCE" means (a) an amount equal to 65 per
cent. of the lesser of (i) the Market Value of "GAS ETERNITY" and (ii) the
Purchase Price of "GAS ETERNITY" or (b) if such Advance is the second
Tranche C Additional Advance to be drawn down, an amount equal to the
lesser of (i) an amount which when aggregated with the first Tranche C
Additional Advance is equal to $14,000,000 and (ii) the lesser of the
amounts referred to in paragraph (a), to be made available to the
Borrowers under the Loan Agreement (as amended and supplemented by this
Agreement) in accordance with Clauses 2.2 and 3.2 of the Loan Agreement
and upon the terms and conditions specified in this Agreement;
"GAS ETERNITY DEED OF COVENANT" means a deed of covenant collateral to the
Gas Eternity Mortgage made or to be made by Balcan Profit in favour of the
Lender in such form as the Lender may approve or require;
"GAS ETERNITY MORTGAGE" means the first priority Cyprus statutory mortgage
in respect of "GAS ETERNITY" made or to be made by Balcan Profit in favour
of the Lender in such form as the Lender may approve or require;
"▇▇▇▇" means ▇▇▇▇ Success Limited, a company incorporated in Malta having
its registered office at ▇▇▇/▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇;
"LOAN AGREEMENT" means the loan agreement dated 5 December 2005 referred
to in Recital (A);
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Services Company, a corporation incorporated in the
▇▇▇▇▇▇▇▇ Islands having its registered office at Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, ▇▇▇▇▇▇▇▇ Islands MH96960;
"MORTGAGE ADDENDUM" means, in respect of "GAS ORACLE", an addendum to the
Mortgage in respect of that Ship in such form as the Lender may approve or
require;
"NEW DEED OF COVENANT" means, in relation to each of "GAS LEGACY" and "GAS
MONARCH", a deed of covenant collateral to the New Mortgage in respect of
such Ship in such form as the Lender may approve or require and, in the
plural, means both of them;
"NEW FINANCE DOCUMENTS" means, together:
(a) the Additional Ship Finance Documents;
(b) the New Deeds of Covenant;
(c) the New Mortgages;
(d) the Amendment Mortgages;
(e) the Amendment Deed of Covenant; and
(f) the Mortgage Addendum,
and, in the singular, means any of them;
"NEW MORTGAGE" means, in relation to:
(a) "GAS LEGACY", a first priority Cyprus statutory mortgage in respect
of that Ship; and
(b) "GAS MONARCH", a first priority Bahamas statutory mortgage in respect
of that Ship,
4
executed or to be executed by the Owner of the relevant Ship in favour of
the Lender in such form as the Lender may approve or require and, in the
plural, means both of them;
"ORIGINAL LOAN" means an amount of up to $50,000,000 or (as the context
requires) the aggregate principal amount of Tranche A and Tranche B
advanced and outstanding at any relevant time under the Loan Agreement;
"TRANCHE C" means an amount equal to the lesser of (a) $14,000,000 and (b)
an amount equal to 65 per cent. of the lesser of (i) the aggregate Market
Value of the Additional Ships and (ii) the aggregate Purchase Price of the
Additional Ships to be made available by the Lender to the Borrowers (who
shall on-lend the same to the Additional Guarantors) in up to two Advances
in accordance with clauses 2.2 and 3.2 of the Loan Agreement and upon the
terms and conditions specified in this Agreement;
"TRANCHE C ADDITIONAL ADVANCE" means each of the Gas Czar Additional
Advance and the Gas Eternity Additional Advance and, in the plural, means
both of them; and
"TRANCHE C ADDITIONAL ADVANCE DRAWDOWN DATE" means, in respect of each
Tranche C Additional Advance, the date requested by the Borrowers for that
Tranche C Additional Advance to be made, or (as the context requires) the
date on which that Tranche C Additional Advance is actually made.
1.3 APPLICATION OF CONSTRUCTION AND INTERPRETATION PROVISIONS OF LOAN
AGREEMENT. Clauses 1.2, 1.3, 1.4 and 1.5 of the Loan Agreement apply, with
any necessary modifications, to this Agreement.
2 AGREEMENT OF THE LENDER
2.1 AGREEMENT OF THE LENDER. The Lender agrees, subject to and upon the terms
and conditions of this Agreement, to make available Tranche C to the
Borrowers under the Loan Agreement.
2.2 EFFECTIVE DATE. The agreement of the Lender contained in Clauses 2.1 shall
have effect on and from the Effective Date.
3 CONDITIONS PRECEDENT
3.1 GENERAL. The agreement of the Lender contained in Clauses 2.1 is subject
to the fulfilment of the conditions precedent in Clauses 3.2 and 3.3.
3.2 CONDITIONS PRECEDENT TO FIRST TRANCHE C ADDITIONAL ADVANCE. The conditions
referred to in Clause 3.1 are that the Lender shall have received the
following documents and evidence in all respects in form and substance
satisfactory to the Lender and its lawyers on or before the Effective Date
(or such later date as the Lender may agree with the Borrowers):
(a) documents of the kind specified in paragraphs 3, 4 and 5 of Schedule 2,
Part A of the Loan Agreement in relation to each Borrower updated with
appropriate modifications to refer to this Agreement;
(b) documents of the kind specified in paragraph 3, 4 and 5 of Schedule 2,
Part A of the Loan Agreement in relation to each Additional Guarantor and
the Corporate Guarantor authorising (inter alia) the execution of the New
Finance Documents to which each Additional Guarantor and the Corporate
Guarantor is a party;
(c) originals of this Agreement, the Additional Ship Finance Documents
relating to the Additional Ship to be financed by the first Tranche C
Additional Advance, the New
5
Deeds of Covenants, the New Mortgages, the Amendment Mortgages, the
Amendment Deed of Covenant and the Mortgage Addendum duly executed by the
parties thereto;
(d) the originals of any mandates or other documents required in connection
with the opening or operation of each Additional Ship Earnings Account and
all other information required by the Lender in relation to its "know your
customer" regulations (whether in connection with the opening of the
Additional Ship Earnings Accounts or otherwise);
(e) copies of the MOAs and the Gas Czar Charter (and all addenda thereto) and
of all documents signed or issued by the Additional Guarantors or the
other parties thereto under or in connection with any of them;
(f) documentary evidence that:
(i) the Relevant Additional Ship (being, for the purposes of this
Clause 3.2, the Additional Ship being financed by the first Tranche
C Additional Advance) has been duly delivered to, and accepted by,
the relevant Additional Guarantor in accordance with the relevant
Additional Ship MOA and the full purchase price payable under that
MOA (in addition to the part thereof being financed by the first
Tranche C Additional Advance) has been duly paid;
(ii) the Relevant Additional Ship is definitively and permanently or
provisionally registered in the name of the relevant Additional
Guarantor under the relevant Approved Flag;
(iii) the Relevant Ship is in the absolute and unencumbered ownership of
the relevant Additional Guarantor save as contemplated by the New
Finance Documents relative to that Relevant Ship;
(iv) the Relevant Ship maintains the class as set out in clause 13.3(b)
of the Loan Agreement with the relevant Classification Society free
of all overdue recommendations and conditions of such
Classification Society;
(v) the Additional Ship Mortgage relating to the Relevant Ship (and, if
the Relevant Ship is "GAS ETERNITY", the Gas Eternity Deed of
Covenant) has been duly registered against that Ship as a valid
first preferred or priority (as the case may be) ship mortgage and,
if applicable collateral deed of covenant, in accordance with the
laws of the relevant flag state; and
(vi) the Relevant Ship is insured in accordance with the provisions of
New Finance Documents relative to it and all requirements therein
in respect of insurances have been complied with;
(g) documents establishing that the Relevant Ship will, as from the first
Tranche C Additional Advance Drawdown Date, be managed by the applicable
Approved Manager on terms acceptable to the Lender, together with:
(i) a letter of undertaking executed by the Approved Manager in favour of
the Lender in the terms required by the Lender agreeing certain
matters in relation to the management of the Relevant Ship and
subordinating the rights of the Approved Manager against the relevant
Additional Guarantor to the rights of the Lender under the Finance
Documents; and
(ii) copies of the Approved Manager's Document of Compliance and of the
Relevant Ship's Safety Management Certificate (together with any
other details of the applicable safety management system which the
Lender requires);
6
(h) satisfactory valuations of the Relevant Ship addressed to the Lender,
stated to be for the purposes of this Agreement and dated not earlier than
30 days before the relevant Tranche C Additional Advance Drawdown Date to
be prepared in accordance with the provisions of clause 14.3 of the Loan
Agreement by 2 of the shipbrokers referred to in clause 14.3 of the Loan
Agreement;
(i) the endorsement at the end of this Agreement signed by the Corporate
Guarantor and each Shareholder;
(j) documentary evidence that:
(i) the New Mortgage and the New Deed of Covenant relative to "GAS
LEGACY" have been duly registered against "GAS LEGACY" as
respectively a valid first priority statutory mortgage and
collateral deed of covenant in accordance with the laws of Cyprus;
(ii) the New Mortgage relative to "GAS MONARCH" has been duly registered
against "GAS MONARCH" as a valid first priority statutory mortgage
in accordance with the laws of the Bahamas;
(iii) the Mortgage Addendum has been duly recorded against "GAS ORACLE"
as a valid addendum to the Mortgage in respect of "GAS ORACLE" in
accordance with the laws of the ▇▇▇▇▇▇▇▇ Islands;
(iv) the Amendment Mortgage in respect of each of "GAS MARATHON" and
"GAS SINCERITY" has been duly registered against the relevant Ship
as a valid amendment to the Mortgage in respect of that Ship in
accordance with the laws of Panama; and
(v) the Amendment Mortgage in respect of "GAS CATHAR" has been duly
registered against that Ship as a valid amendment to the Mortgage
in respect of that Ship in accordance with the laws of Malta;
(k) favourable legal opinions from lawyers appointed by the Lender on such
matters concerning the laws of Liberia, ▇▇▇▇▇▇▇▇ Islands, Cyprus, Malta
and Panama and such other relevant jurisdictions as the Lender may
require;
(l) the Lender shall have received the arrangement fee referred to in Clause
7.1;
(m) documentary evidence that the agent for service of process named in clause
30 of the Loan Agreement has accepted its appointment; and
(n) any further opinions, consents, agreements and documents in connection
with this Agreement and the Finance Documents which the Lender may request
by notice to the Borrowers prior to the Effective Date.
3.3 CONDITIONS PRECEDENT TO SECOND TRANCHE C ADDITIONAL ADVANCE. The
conditions referred to in Clause 3.1 are that the Lender shall have
received the following documents and evidence in all respects in form and
substance satisfactory to the Lender and its lawyers on or before the
Effective Date (or such later date as the Lender may agree with the
Borrowers):
(a) originals of the Additional Ship Finance Documents relating to the
Additional Ship to be financed by the second Tranche C Additional Advance
duly executed by the parties thereto;
(b) documentary evidence that:
7
(i) the Relevant Additional Ship (being, for the purposes of this
Clause 3.3, the Additional Ship being financed by the second
Tranche C Additional Advance) has been duly delivered to, and
accepted by, the relevant Additional Guarantor in accordance with
the relevant Additional Ship MOA and the full purchase price
payable under that MOA (in addition to the part thereof financed by
the second Tranche C Additional Advance) has been duly paid;
(ii) the Relevant Ship is in the absolute and unencumbered ownership of
the relevant Additional Guarantor save as contemplated by the New
Finance Documents relative to that Relevant Ship;
(iii) the Relevant Ship maintains the class as set out in clause 13.3(b)
of the Loan Agreement with the relevant Classification Society free
of all overdue recommendations and conditions of such
Classification Society;
(iv) the Additional Ship Mortgage relating to the Relevant Ship (and, if
the Relevant Ship is "GAS ETERNITY", the Gas Eternity Deed of
Covenant) has been duly registered against that Ship as a valid
first preferred or priority (as the case may be) ship mortgage and,
if applicable collateral deed of covenant, in accordance with the
laws of the relevant flag state; and
(v) the Relevant Ship is insured in accordance with the provisions of
New Finance Documents relative to it and all requirements therein
in respect of insurances have been complied with;
(c) documents establishing that the Relevant Ship will, as from the second
Tranche C Additional Advance Drawdown Date, be managed by the applicable
Approved Manager on terms acceptable to the Lender, together with:
(i) a letter of undertaking executed by the Approved Manager in favour
of the Lender in the terms required by the Lender agreeing certain
matters in relation to the management of the Relevant Ship and
subordinating the rights of the Approved Manager against the
relevant Additional Guarantor to the rights of the Lender under the
Finance Documents; and
(ii) copies of the Approved Manager's Document of Compliance and of the
Relevant Ship's Safety Management Certificate (together with any
other details of the applicable safety management system which the
Lender requires);
(d) satisfactory valuations of the Relevant Ship addressed to the Lender,
stated to be for the purposes of this Agreement and dated not earlier than
30 days before the relevant Tranche C Additional Advance Drawdown Date to
be prepared in accordance with the provisions of clause 14.3 of the Loan
Agreement by 2 of the shipbrokers referred to in clause 14.3 of the Loan
Agreement;
(e) favourable legal opinions from lawyers appointed by the Lender on such
matters concerning the laws of Liberia, ▇▇▇▇▇▇▇▇ Islands, Cyprus, Malta
and Panama and such other relevant jurisdictions as the Lender may
require; and
(f) any further opinions, consents, agreements and documents in connection
with this Agreement and the Finance Documents which the Lender may request
by notice to the Borrowers prior to the Effective Date.
4 REPRESENTATIONS AND WARRANTIES
4.1 REPETITION OF LOAN AGREEMENT REPRESENTATIONS AND WARRANTIES. Each Borrower
represents and warrants to the Lender that the representations and
warranties in clause 9 of the Loan Agreement, as amended and supplemented
by this Agreement and updated
8
with appropriate modifications to refer to this Agreement, remain true and
not misleading if repeated on the date of this Agreement with reference to
the circumstances now existing.
4.2 REPETITION OF FINANCE DOCUMENT REPRESENTATIONS AND WARRANTIES. Each
Borrower represents and warrants to the Lender that the representations
and warranties in the Finance Documents (other than the Loan Agreement) to
which it is a party, as amended and supplemented by this Agreement and
updated with appropriate modifications to refer to this Agreement remain
true and not misleading if repeated on the date of this Agreement with
reference to the circumstances now existing.
5 AMENDMENTS TO LOAN AGREEMENT AND OTHER FINANCE DOCUMENTS
5.1 SPECIFIC AMENDMENTS TO LOAN AGREEMENT. With effect on and from the
Effective Date the Loan Agreement shall be, and shall be deemed by this
Agreement to be, amended as follows:
(a) by adding in Clause 1.1 thereof each of the definitions in Clause 1.1 of
this Agreement (other than the definitions of "EFFECTIVE DATE", "LOAN
AGREEMENT" and "TRANCHE C ADDITIONAL ADVANCE DRAWDOWN DATE");
(b) by deleting sub-paragraph (b) in the definition of "Approved Manager" in
clause 1.1 thereof in its entirety and replacing it with:
"(b)" GAS MONARCH", Tesma Singapore Pte. Ltd. whose principal office is at
▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, #▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Logistics Centre,
Singapore 597654, Singapore";
(c) by deleting the reference to "GAS LEGACY" in sub-paragraph (c) of the
definition of "Approved Manager" in Clause 1.1 thereof and adding in its
place "each of "GAS CZAR" and "GAS LEGACY,";
(d) by adding a new sub-paragraph (d) in the definition of "Approved Manager"
in Clause 1.1 thereof as follows:
"(d) "GAS ETERNITY", Stealth Maritime Corporation S.A. whose registered
office is at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇";
(e) by adding a new sub-paragraph (iii) in paragraph (a) of the definition of
"Availability Period" in Clause 1.1 thereof as follows:
"(iii) in respect of Tranche C, 28 February 2006";
(f) by replacing the references to "Borrower" in the second and fourth lines
of the definition of "Charter Assignment" in Clause 1.1 thereof with the
words "Owner";
(g) by adding in the first line of the definition of "Deed of Covenant" in
Clause 1.1 thereof after the words "GAS CATHAR", the words ", "GAS
ETERNITY"";
(h) by replacing the references to "Borrower" in the first and second lines of
the definition of "Earnings Account" in Clause 1.1 thereof with the word
"Owner";
(i) by adding in the third line of the definition of "Charter" in Clause 1.1
thereof after the reference to "Gas Oracle Charter", the words "and the
Gas Czar Charter";
(j) by substituting the figure "$50,000,000" with "$64,000,000" in the
definition of "Commitment" in Clause 1.1 thereof;
9
(k) by construing all references in the Loan Agreement and the other Finance
Documents to the Deed of Covenant relative to "GAS CATHAR" to mean that
Deed of Covenant as amended by the Amendment Deed of Covenant;
(l) by adding in the first line of the definition of "Drawdown Date" in Clause
1.1 thereof after the reference to "Tranche B" the words "or Tranche C";
(m) by construing the definition of "Finance Documents" in Clause 1.1 thereof
as if the same included reference to each New Finance Document;
(n) by construing all references in the Loan Agreement and the other Finance
Documents to the Mortgages relative to the Existing Ships to mean:
(i) in the case of each of "GAS LEGACY" and "GAS MONARCH", the New
Mortgage relative to that Existing Ship;
(ii) in the case of each of "GAS CATHAR", "GAS MARATHON" and "GAS
SINCERITY", the Mortgage relative to such Ship as amended by the
Amendment Mortgage relative thereto;
(iii) in the case of "GAS ORACLE", the Mortgage relative to such Ship as
amended by the Mortgage Addendum;
(o) in the definition of "Margin" in Clause 1.1 thereof:
(i) replacing the reference to "Tranche B" in the second line of
sub-paragraph (a) with "Tranche C"; and
(ii) replacing the reference to "Security Cover Ratio" in the first line
of sub-paragraph (b) with "Asset Cover Ratio";
(p) by construing the definition of "Mortgage" in Clause 1.1 thereof to
include reference to each Additional Ship Mortgage;
(q) by adding in the first line of the definition of "Owner" in Clause 1.1
thereof after the word "Borrower" the words "or, as the case may be, the
additional Guarantor";
(r) by adding in the left hand column in the definition of "Owner" in Clause
1.1 thereof reference to "GAS CZAR" and "GAS ETERNITY" and adding opposite
the names of such Additional Ships in the right hand column reference
respectively to Balkan and Balcan Profit;
(s) by deleting the definition of "Purchase Price" in Clause 1.1 thereof and
replacing it with:
""PURCHASE PRICE" means, in relation to a New Ship and an Additional Ship,
the aggregate amount paid or to be paid by the relevant Borrower or, as
the case may be, the relevant Additional Guarantor to the seller of that
New Ship or that Additional Ship pursuant to the MOA or the Additional
Ship MOA which relates thereto;"
(t) by adding in the first line of the definition of "Security Party" in
Clause 1.1 thereof after the reference to "Corporate Guarantor" the words
", each Additional Guarantor";
(u) by adding new sub-paragraphs (g) and (h) in the definition of
"Shareholder" in Clause 1.1 thereof as follows:
"(g) in the case of Balkan, Stealthgas; and
(h) in the case of Balcan Profit, ▇▇▇▇▇▇;";
10
(v) by adding a new sub-paragraph (c) in the definition of "Ships" in Clause
1.2 thereof as follows:
"(c) the Additional Ships,";
(w) by construing all references to "SWEET DREAM" in the Loan Agreement and
other Finance Documents as "GAS MONARCH" (being the new name of such
Ship);
(x) by construing the definition of "Tranche" in Clause 1.2 thereof as if the
same included reference to Tranche C;
(y) by deleting the words and figures in Clause 2.1 thereof "five Advances a
loan facility of up to $50,000,000 divided in two tranches" and replacing
them with "seven Advances a loan facility of up to $64,000,000 divided in
three tranches";
(z) by adding a new sub-paragraph (c) in Clause 2.1 thereof as follows:
"(c) an amount equal to the lesser of (i) $14,000,000 and (ii) an amount
equal to 65 per cent of the lesser of (A) the aggregate Market Value
of the Additional Ships and (B) the aggregate Purchase Price of the
Additional Ships":
(aa) by adding in Clause 3.2(c) after the reference to "Tranche B", the words
"and Tranche C";
(bb) by adding a new paragraph (e) in Clause 3.2 (and re-constituting the
existing paragraph (e) as paragraph (f)) as follows:
"(e) neither Advance made under Tranche C shall exceed 65 per cent. of
the lesser of (i) the Market Value of the Additional Ship to which
it relates on the Drawdown Date of that Advance and (ii) the
Purchase Price of that Additional Ship; and";
(cc) by replacing the reference to "Tranche B" in the second line of Clause
4.12 thereof with "Tranche C";
(dd) by adding a new paragraph (d) in Clause 5.2 thereof (and reconstituting
the existing paragraphs (d) and (e) as respectively paragraphs (e) and
(f)) as follows:
"(d) the first Interest Period in relation to each Advance under Tranche
C shall commence on the Drawdown Date relative thereto and shall
expire on the last day of the Interest Period which is then current
for Tranches A and B (as consolidated pursuant to Clause 5.2(c)) and
thereafter Interest Periods in relation to Tranches A and B and the
Advances under Tranche C which are outstanding at the relevant time
shall commence and expire on the same dates and shall be
consolidated to form one Interest Period;";
(ee) by deleting sub-paragraphs (i), (ii) and (iii) of Clause 7.1(a) and Clause
7.1(b) in their entirety and replacing them with the following:
"(i) in the case of the first and second instalments, $4,608,000
each;
(ii) in the case of the third to sixth instalments (inclusive),
$3,072,000 each;
(iii) in the case of the seventh to twentieth instalments
(inclusive), $2,304,000 each; and
(b) a balloon instalment of $10,240,000 (as such amount may be increased
through the operation of Clause 7.11, the "BALLOON INSTALMENT").";
11
(ff) by deleting sub-paragraphs (i) and (ii) of Clause 7.2(a) thereof in their
entirety and replacing them with:
"(i) the Drawdown Date relating to the first Advance under Tranche C;
and
(ii) 28 February 2006 (or such later date as the Lender may agree with
the Borrowers); and";
(gg) by deleting sub-paragraphs (i) and (ii) of Clause 7.2(b) thereof in their
entirety and replacing them with:
"(i) the date falling on the tenth anniversary of the Drawdown Date
relating to the first Advance under Tranche C; and
(ii) 28 February 2016 (or such later date as the Lender may agree with the
Borrowers).";
(hh) by replacing the figure "$1,800,000" in the third line of Clause 7.11(c)
thereof with "$2,300,000"; and
(ii) by construing references throughout to "this Agreement", "hereunder" and
other like expressions as if the same referred to the Loan Agreement as
amended and supplemented by this Agreement.
5.2 AMENDMENTS TO FINANCE DOCUMENTS. With effect on and from the Effective
Date each of the Finance Documents other than the Loan Agreement, shall
be, and shall be deemed by this Agreement to be, amended as follows:
(a) the definition of, and references throughout each of the Finance Documents
to, the Loan Agreement and any of the other Finance Documents shall be
construed as if the same referred to the Loan Agreement and those Finance
Documents as amended and supplemented by this Agreement;
(b) by construing references throughout each of the Finance Documents to "this
Agreement", "this Deed", "hereunder" and other like expressions as if the
same referred to such Finance Documents as amended and supplemented by
this Agreement.
5.3 FINANCE DOCUMENTS TO REMAIN IN FULL FORCE AND EFFECT. The Finance
Documents shall remain in full force and effect as amended and
supplemented by:
(a) the amendments to the Finance Documents contained or referred to in
Clauses 5.1 and 5.2 ; and
(b) such further or consequential modifications as may be necessary to give
full effect to the terms of this Agreement,
6 FURTHER ASSURANCES
6.1 BORROWERS' OBLIGATION TO EXECUTE FURTHER DOCUMENTS ETC. The Borrowers
shall, and shall procure that any other party to any Security Document
shall:
(a) execute and deliver to the Lender (or as it may direct) any assignment,
mortgage, power of attorney, proxy or other document, governed by the law
of England or such other country as the Lender may, in any particular
case, specify;
(b) effect any registration or notarisation, give any notice or take any other
step,
12
which the Lender may, by notice to the Borrowers or other party, specify
for any of the purposes described in Clause 6.2 or for any similar or
related purpose.
6.2 PURPOSES OF FURTHER ASSURANCES. Those purposes are:
(a) validly and effectively to create any Security Interest or right of any
kind which the Lender intended should be created by or pursuant to the
Loan Agreement or any other Security Document, each as amended and
supplemented by this Agreement; and
(b) implementing the terms and provisions of this Agreement.
6.3 TERMS OF FURTHER ASSURANCES. The Lender may specify the terms of any
document to be executed by a Borrower or any other party under Clause 6.1,
and those terms may include any covenants, powers and provisions which the
Lender considers appropriate to protect its interests.
6.4 OBLIGATION TO COMPLY WITH NOTICE. Each Borrower or any other party shall
comply with a notice under Clause 6.1 by the date specified in the notice.
6.5 ADDITIONAL CORPORATE ACTION. At the same time as a Borrower or any other
party delivers to the Lender any document executed under Clause 6.1(a), a
Borrower or any other party shall also deliver to the Lender a certificate
signed by 2 of that Borrower's or that other party's directors which
shall:
(a) set out the text of a resolution of that Borrower's or that other party's
directors specifically authorising the execution of the document specified
by the Lender; and
(b) state that either the resolution was duly passed at a meeting of the
directors validly convened and held throughout which a quorum of directors
entitled to vote on the resolution was present or that the resolution has
been signed by all the directors and is valid under that Borrower's or
that other party's articles of association or other constitutional
documents.
7 FEES AND EXPENSES
7.1 ARRANGEMENT FEE. The Borrowers shall pay to the Lender on the date of this
Agreement an arrangement fee of $28,000.
7.2 EXPENSES. The provisions of clause 18 (Fees and Expenses) of the Loan
Agreement, as amended and supplemented by this Agreement, shall apply to
this Agreement as if they were expressly incorporated in this Agreement
with any necessary modifications.
8 NOTICES
8.1 GENERAL. The provisions of clause 27 (Notices) of the Loan Agreement, as
amended and supplemented by this Agreement, shall apply to this Agreement
as if they were expressly incorporated in this Agreement with any
necessary modifications.
9 SUPPLEMENTAL
9.1 COUNTERPARTS. This Agreement may be executed in any number of
counterparts.
9.2 THIRD PARTY RIGHTS. A person who is not a party to this Agreement has no
right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce or
to enjoy the benefit of any term of this Agreement.
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10 LAW AND JURISDICTION
10.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with English law.
10.2 INCORPORATION OF THE LOAN AGREEMENT PROVISIONS. The provisions of clause
30 (Law and Jurisdiction) of the Loan Agreement, as amended and
supplemented by this Agreement, shall apply to this Agreement as if they
were expressly incorporated in this Agreement with any necessary
modifications.
THIS AGREEMENT has been duly executed as a Deed on the date stated at the
beginning of this Agreement.
14
EXECUTION PAGES
BORROWERS
EXECUTED as a DEED ) /s/Panteus Vetsikas
by EMPIRE SPIRIT LTD. ) ---------------------------------------
acting by Panteus Vetsikas )
its duly authorised attorney-in-fact )
EXECUTED as a DEED ) /s/Panteus Vetsikas
By INDEPENDENT TRADER ) ---------------------------------------
LTD. acting by Panteus Vetsikas )
its duly authorised attorney-in-fact )
EXECUTED as a DEED ) /s/Panteus Vetsikas
by TRIATHLON INC. ) ---------------------------------------
acting by Panteus Vetsikas )
its duly authorised attorney-in-fact )
EXECUTED as a DEED ) /s/Panteus Vetsikas
by SOLEIL TRUST INC. ) ---------------------------------------
acting by Panteus Vetsikas )
its duly authorised attorney-in-fact )
EXECUTED as a DEED ) /s/Panteus Vetsikas
by JUNGLE INVESTMENT ) ---------------------------------------
LIMITED )
acting by Panteus Vetsikas )
its duly authorised attorney-in-fact )
EXECUTED as a DEED ) /s/Panteus Vetsikas
by NORTHERN YIELD ) ---------------------------------------
SHIPPING LIMITED )
acting by Panteus Vetsikas )
its duly authorised attorney-in-fact )
LENDER
EXECUTED as a DEED ) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
by DNB NOR BANK ASA ) ---------------------------------------
acting by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ )
its duly authorised attorney-in-fact )
Witness to all the above )
signatures: )
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Solicitor
Address: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
2 Defteras ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇ - ▇▇▇▇▇▇
15
We hereby confirm and acknowledge we have read and understood the terms and
conditions of the above Supplemental Agreement and agree in all respects to the
same and confirm that the Finance Documents to which we are a party shall remain
in full force and effect and shall continue to stand as security for the
obligations of the Borrowers under the Loan Agreement (as amended by the
Supplemental Agreement) and shall, without limitation, secure the Loan (as
increased or to be increased by the amount of Tranche C).
for and on behalf of for and on behalf of
▇▇▇▇▇▇ FINANCE INC. QUINTA TRADING CO.
/s/Panteus Vetsikas /s/Panteus Vetsikas
------------------------------------- ---------------------------------------
for and on behalf of for and on behalf of
DREW INTERNATIONAL INC. REINA PROPERTIES CORP.
/s/Panteus Vetsikas /s/Panteus Vetsikas
------------------------------------- ---------------------------------------
for and on behalf of
STEALTHGAS INC.
/s/Panteus Vetsikas
-------------------------------------
16
