As filed with the Securities and Exchange Commission on February 14, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form F-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EURONAV NV
(Exact name of registrant as specified in its charter)
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The Kingdom of Belgium
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4412
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N/A
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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Euronav NV
De Gerlachekaai 20
2000 Antwerpen
Belgium
Tel: 011-32-3-247-4411
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Gary J. Wolfe, Esq.
Keith Billotti, Esq.
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
(212) 574-1200 (telephone number)
(212) 480-8421 (facsimile number)
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(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
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(Name, address and telephone number of
agent for service)
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Copies to:
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Gary J. Wolfe, Esq.
Keith Billotti, Esq.
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
(212) 574-1200 (telephone number)
(212) 480-8421 (facsimile number)
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Thomas E. Molner, Esq.
Terrence L. Shen, Esq.
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, New York 10036
(212) 715-9100 (telephone number)
(212) 715-8000 (facsimile number)
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John A. Marzulli, Jr., Esq.
George Karafotias, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
(212) 848-4000 (telephone number)
(212) 848-7179 (facsimile number)
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effectiveness of this registration statement and upon completion of the Merger described in the enclosed proxy statement/prospectus.
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards* provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered
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Amount
to be
Registered
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Proposed Maximum
Offering Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common shares, no par value
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60,815,764
(1
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N/A
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$
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475,854,921.91
(2
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$
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59,243.94
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(1)
Represents the estimated maximum number of ordinary shares, no par value per share, of Euronav NV, a corporation organized under the laws of the Kingdom of Belgium (Euronav), to be issuable to holders of common stock, par value of $0.01 per share, of Gener8 Maritime, Inc., a Marshall Islands corporation (Gener8), upon consummation of the merger described herein. The number of Euronav ordinary shares is based upon the product obtained by multiplying (a) the 0.7272 exchange ratio under the merger agreement by (b) the total number of Gener8 shares issued and outstanding (83,630,039) which includes the number of Gener8 shares reserved and issuable upon vesting or settlement of Gener8 outstanding Restricted Stock Units.
(2)
Estimated solely for purposes of calculating the registration fee and calculated pursuant to Rules 457(c) and (f)(1) under the Securities Act. The proposed maximum aggregate offering price of Euronav ordinary shares was calculated based upon the market value of Gener8 shares (the securities to be exchanged in the merger) in accordance with Rule 457(c) under the Securities Act as follows: the product of (a) $5.69 the average of the high and low prices per Gener8 share on February 12, 2018, as quoted on the NYSE and (b) 83,630,039, the estimated number of Gener8 shares issued, outstanding or issuable as described above.
(3)
Calculated pursuant to Rule 457 of the U.S. Securities Act by multiplying the proposed maximum aggregate offering price of securities to be registered by 0.0001245.
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the U.S. Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
*
The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
The information in this proxy statement/prospectus is not complete and may be changed. A registration statement relating to these securities has been filed with the U.S. Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This proxy statement/prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any jurisdiction in which such offer, solicitation or sale is not permitted.
PRELIMINARY — SUBJECT TO COMPLETION — DATED FEBRUARY 14, 2018
MERGER PROPOSED — YOUR VOTE IS VERY IMPORTANT
Dear Shareholders of Gener8 Maritime, Inc.:
I am pleased to inform you that on December 20, 2017, Gener8 Maritime, Inc. (which we refer to as “Gener8”) entered into an Agreement and Plan of Merger (which we refer to as the “Merger Agreement”) with Euronav NV (which we refer to as “Euronav”) and Euronav MI Inc., a corporation organized under the laws of the Republic of the Marshall Islands and a wholly-owned subsidiary of Euronav (which we refer to as “Merger Sub”). Pursuant to the Merger Agreement, among other things, Merger Sub will merge with and into Gener8, with Gener8 continuing as the surviving company (which we refer to as the “Surviving Corporation”) that will continue its corporate existence as a wholly-owned subsidiary of Euronav (which transactions we refer to as the “Merger”). The accompanying notice of Special Meeting (defined below) and this proxy statement/prospectus describe the Merger in greater detail and provide specific information about the Special Meeting. Please read these materials carefully.
At the effective time of the Merger (which we refer to as the “Effective Time”), each common share, par value $0.01 per share, of Gener8 (which we refer to as the “Gener8 common shares”), issued and outstanding immediately prior to such time (other than certain Gener8 common shares that will be canceled as set forth in the Merger Agreement), will be canceled and automatically converted into the right to receive 0.7272 of an ordinary share, no par value per share, of Euronav (which we refer to as the “Euronav ordinary shares,” and such ratio, the “Exchange Ratio”) in the manner described in the Merger Agreement.
Any Gener8 common shares held by Gener8, Euronav, Merger Sub, or their respective subsidiaries will be canceled and no consideration will be delivered for those canceled shares. The Exchange Ratio will not be adjusted to reflect changes in the price of Gener8 common shares or Euronav ordinary shares prior to the Effective Time. Euronav has agreed to apply to list all of the Euronav ordinary shares to be issued in connection with the Merger on the New York Stock Exchange (which we refer to as the “NYSE”), and Euronext Brussels (which we refer to as “Euronext”).
The value of the Euronav ordinary shares to be issued pursuant to the Merger (which we refer to as the “Merger Consideration”) will fluctuate with the market price of Euronav ordinary shares. You should obtain current share price quotations of Euronav ordinary shares, which are listed on the NYSE and Euronext under the symbol “EURN.” Gener8 common shares are listed on the NYSE under the symbol “GNRT.” Based on the closing price of Euronav ordinary shares on the NYSE of $8.10 on December 20, 2017, the last trading day before the public announcement of the Merger before the open of trading on December 21, 2017, the Exchange Ratio represented approximately $5.89 in Euronav ordinary shares for each Gener8 common share. Based on the closing price of Euronav ordinary shares on the NYSE of $[•] on [•], 2018, the latest practicable date before the date of this proxy statement/prospectus, the Exchange Ratio represented approximately $[•] in Euronav ordinary shares for each Gener8 common share.
You are cordially invited to attend a Special Meeting of the shareholders of Gener8 (which we refer to as the “Special Meeting”) to be held at the offices of Kramer Levin Naftalis & Frankel LLP, located at 1177 Avenue of the Americas, New York, New York, 10036 on [•], 2018, at [•] a.m. local time, to vote on the approval of the Merger Agreement and the transactions contemplated hereby including to appoint the Exchange Agent to act as agent solely in the name and on behalf of and for the account and benefit of the shareholders of Gener8, with the right of sub-delegation, to facilitate the execution and implementation of the Contribution in Kind (as such term is defined in the Merger Agreement which is attached to the proxy statement/prospectus of Gener8 and Euronav as Annex A) including but not limited to representing the Contributing Gener8 Shareholders at the Closing (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), contributing the Surviving Corporation Shares (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A) to Euronav by way of a contribution in kind and delivering the Merger Consideration to such Contributing Gener8 Shareholders. As described in the accompanying proxy statement/prospectus, the board of directors of Gener8 (which we refer to as the “Gener8 board of directors”), with Peter C. Georgiopoulos, Chairman of the Gener8 board of directors, Dan Ilany and Nicolas Busch abstaining due to potential conflicts of interest, upon the unanimous recommendation of a transaction advisory committee of the Gener8 board of directors comprised of three
disinterested directors (which we refer to as the “Gener8 Transaction Committee”), has approved the Merger Agreement and determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to and in the best interests of Gener8 and its shareholders.
The Gener8 board of directors (with Peter C. Georgiopoulos, Chairman of the Gener8 board of directors, Dan Ilany and Nicolas Busch abstaining due to potential conflicts of interest), acting upon the unanimous recommendation of the Gener8 Transaction Committee, and after consultation with Gener8’s legal and financial advisors and consideration of a number of factors, including a fairness opinion presented by the Gener8 Transaction Committee’s financial advisor, has determined that the Merger is in the best interests of Gener8 and its shareholders, and has approved, adopted, and declared advisable the Merger Agreement, and all transactions contemplated thereby and recommends that you vote “FOR” the approval of the Merger Agreement.
Gener8 cannot complete the Merger unless Gener8 shareholders representing at least a majority of the issued and outstanding Gener8 common shares approve the Merger Agreement.
Pursuant to a voting agreement (which we refer to as the “Voting Agreement”), certain significant holders of Gener8 common shares representing approximately 42% of the issued and outstanding shares of Gener8 have agreed, subject to the terms and conditions of such Voting Agreement, to (i) appear (in person or by proxy) at any meeting of the shareholders convened for the purpose of approving the Merger and the Merger Agreement and (ii) provided that neither the Gener8 Transaction Committee nor the Gener8 board of directors has made an Adverse Recommendation Change (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), vote all of their Gener8 common shares (which we refer to as the “Covered Shares”) in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger, and against any action that would reasonably be expected to impede the Merger or result in a breach of the Merger Agreement or the Voting Agreement. If either the Gener8 Transaction Committee or the Gener8 board of directors does make an Adverse Recommendation Change, then the Covered Shareholders are each required to vote 50% of their respective Covered Shares in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger, and may vote their remaining Covered Shares in any manner they determine.
In addition, at the request (and expense) of Euronav, certain Gener8 shareholders (the “Proxy Shareholders”) have agreed to grant an irrevocable proxy (which we refer to as the “Proxies”) to a representative of an affiliate of such Proxy Shareholders whereby, subject to the terms and conditions in the Proxies, such representative has the authority to direct the vote of Gener8 common shares owned by the Proxy Shareholders, representing in the aggregate approximately 6% of the issued and outstanding shares of Gener8, at the Special Meeting. In addition, the Proxy Shareholders have agreed, among other things, not to transfer or dispose any of their Gener8 common shares during the term of the Proxies unless the transferee agrees to be bound thereby. Please see the section “The Merger Agreement — Voting Agreement and Proxy”.
As of the date of this proxy statement/prospectus, shareholders representing approximately 48% of the issued and outstanding shares of Gener8, including certain current directors of Gener8, have entered into either the Voting Agreement or the Proxies.
The notice of Special Meeting and the proxy statement/prospectus that accompany this letter provide you with extensive information about the Special Meeting, the Merger Agreement, the Merger and other related matters. You are encouraged to read these materials carefully in their entirety, including all annexes.
In particular, you should read the section in the proxy statement/prospectus entitled “Risk Factors” beginning on page
21
for a discussion of risk factors relating to the proposed transaction, the companies and their industry.
Your vote is very important.
Whether or not you plan to attend the Special Meeting, please read the enclosed proxy statement/prospectus and promptly complete, sign, date and return the enclosed proxy card in the postage-paid envelope provided in accordance with the directions set forth on the proxy card.
Thank you for your support.
Sincerely,
Peter C. Georgiopoulos
Chief Executive Officer
NEITHER THE U.S. SECURITIES AND EXCHANGE COMMISSION, NOR ANY U.S. STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES TO BE ISSUED IN CONNECTION WITH THE MERGER OR HAS DETERMINED IF THIS PROXY STATEMENT/PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This proxy statement/prospectus is dated [•], 2018, and is first being mailed or otherwise delivered, along with the attached proxy card, to holders of Gener8 common shares on or about [•], 2018.
ADDITIONAL INFORMATION
Euronav and Gener8 file annual reports with and furnish other information to the U.S. Securities and Exchange Commission (which we refer to as the “SEC”). This proxy statement/prospectus incorporates by reference important business and financial information about Euronav and Gener8 and their respective subsidiaries from documents that are not included in or delivered with this proxy statement/prospectus. For a listing of the documents incorporated by reference into this proxy statement/prospectus, see the section “Where You Can Find More Information.” You can obtain copies of the documents incorporated by reference into this proxy statement/prospectus, without charge, from the SEC’s website at http://www.sec.gov.
You may also request copies of these documents, without charge by writing or telephoning the appropriate company as follows:
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Euronav NV
De Gerlachekaai 20
2000 Antwerpen
Belgium
Tel: +32 3-247-4411
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Gener8 Maritime, Inc.
299 Park Avenue
2
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Floor
New York, NY
Tel: +1 (212) 763-5600
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In addition, if you have questions about the Merger or the Special Meeting, need additional copies of this proxy statement/prospectus or need to obtain proxy cards or other information related to the proxy solicitation, you may contact Gener8 at the following address and telephone number:
Gener8 Maritime Inc.
299 Park Avenue, 2
nd
Floor
New York, NY 10171
Tel: +1(212) 763-5600
You will not be charged for any of the documents that you request. If you would like to request documents, please do so by [•], 2018 (which is five (5) business days before the date of the Special Meeting) in order to receive them before the Special Meeting.
To reduce the expense of delivering duplicate documents to our shareholders, we are relying on the rules promulgated by the SEC that permit us to deliver only one set of documents to multiple shareholders who share an address unless we receive contrary instructions from any shareholder at that address. This practice, known as “householding,” reduces duplicate mailings, thus saving printing and postage costs as well as natural resources. Each shareholder retains a separate right to vote on all matters presented at the Special Meeting. Once you have received notice from your broker or us that they or we will be householding materials to your address, householding will continue until you are notified otherwise or until you revoke your consent. If, at any time, you wish to receive a separate copy of this proxy statement/prospectus, or other materials free of charge, or if you wish to receive separate copies of future materials, please mail your request to: Gener8 Maritime, Inc., 299 Park Avenue, Second Floor, New York, New York 10171, Attention: Investor Relations, or call us at +1 (212) 763-5633.
ABOUT THIS PROXY STATEMENT/PROSPECTUS
References in this proxy statement/prospectus to “Euronav” refer to Euronav NV and/or one or more of its subsidiaries, as the context requires. References to “Euronav ordinary shares” refer to the ordinary shares, no par value per share, of Euronav NV. References to “Gener8” refer to Gener8 Maritime, Inc. and/or one or more of its subsidiaries, as the context requires. References to “Gener8 common shares” refer to common shares, par value $0.01 per share, of Gener8. References to the Merger Agreement refer to the Agreement and Plan of Merger, dated December 20, 2017, by and among Gener8 Maritime, Inc., Euronav NV and Euronav MI Inc., a corporation organized under the laws of the Republic of the Marshall Islands and a wholly-owned subsidiary of Euronav (which we refer to as “Merger Sub”), pursuant to which, among other things, Merger Sub will merge with and into Gener8, with Gener8 as the surviving company (which we refer to as the “Surviving Corporation”) that will continue its corporate existence as a wholly-owned subsidiary of Euronav.
Unless otherwise indicated, all references to “dollars,” “US dollars” and “$” in this proxy statement/prospectus are to United States dollars. This proxy statement/prospectus uses the term deadweight tons, or dwt, expressed in metric tons, each of which is equivalent to 1,000 kilograms, in describing the size of tankers.
This proxy statement/prospectus, which forms part of a registration statement on Form F-4 (File No. 333- ) filed with the SEC by Euronav, constitutes a prospectus of Euronav under Section 5 of the U.S. Securities Act of 1933, as amended (which we refer to as the “U.S. Securities Act”) with respect to the Euronav ordinary shares to be issued to holders of Gener8 common shares pursuant to the Merger.
This proxy statement/prospectus also constitutes a notice of meeting and a proxy statement of Gener8 with respect to the special Meeting of Gener8 shareholders (which we refer to as the “Special Meeting”) at which holders of Gener8 common shares will be asked to consider and vote on, among other matters, a proposal to approve the Merger Agreement and the transactions contemplated thereby, including the Merger and the appointment of the Exchange Agent (defined herein) for the purposes of giving effect to the Contribution in Kind (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A). Please see “Questions and Answers About the Merger and the Special Meeting.”
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN, OR INCORPORATED BY REFERENCE INTO, THIS PROXY STATEMENT/PROSPECTUS. NO ONE HAS BEEN AUTHORIZED TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT FROM THAT CONTAINED IN, OR INCORPORATED BY REFERENCE INTO, THIS PROXY STATEMENT/PROSPECTUS. THE INFORMATION CONTAINED IN THIS PROXY STATEMENT/PROSPECTUS IS ACCURATE ONLY AS OF THAT DATE OR, IN THE CASE OF INFORMATION IN A DOCUMENT INCORPORATED BY REFERENCE, AS OF THE DATE OF SUCH DOCUMENT, UNLESS THE INFORMATION SPECIFICALLY INDICATES THAT ANOTHER DATE APPLIES. NEITHER THE MAILING OF THIS PROXY STATEMENT/PROSPECTUS TO HOLDERS OF GENER8 COMMON SHARES NOR THE ISSUANCE BY EURONAV OF ITS COMMON SHARES PURSUANT TO THE MERGER WILL CREATE ANY IMPLICATION TO THE CONTRARY.
This proxy statement/prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the solicitation of a proxy, in any jurisdiction in which it is unlawful to make any such offer or solicitation.
The information concerning Euronav contained in, or incorporated by reference into, this proxy statement/prospectus has been provided by Euronav, and information concerning Gener8 contained in, or incorporated by reference into, this proxy statement/prospectus has been provided by Gener8.
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON [•], 2018
To Shareholders of Gener8 Maritime, Inc.:
You are invited to attend a special meeting of shareholders (which we refer to as the “Special Meeting”) of Gener8 Maritime, Inc., a corporation organized under the laws of the Republic of the Marshall Islands (which we refer to as “Gener8”), to be held at the offices of Kramer Levin Naftalis & Frankel LLP, located at 1177 Avenue of the Americas, New York, New York, 10036, on [•], 2018, at [•] a.m. local time, for the following purposes:
1. To consider and vote upon a proposal to approve the Merger Agreement, dated as of December 20, 2017, by and among Gener8, Euronav NV, a corporation organized under the laws of the Kingdom of Belgium (which we refer to as “Euronav”) and Euronav MI Inc., a corporation organized under the laws of the Republic of the Marshall Islands and a wholly-owned subsidiary of Euronav (which we refer to as “Merger Sub”) (which, as may be amended, we refer to as the “Merger Agreement”), pursuant to which, among other things: (i) Merger Sub will merge with and into Gener8 (which we refer to as the “Merger”), with Gener8 continuing its corporate existence as the surviving corporation (which we refer to as the “Surviving Corporation”) and as a wholly-owned subsidiary of Euronav, (ii) at the effective time of the Merger (which we refer to as the “Effective Time”), each common share, par value of $0.01 per share, of Gener8 (which we refer to as the “Gener8 common shares”), issued and outstanding immediately prior to such time (other than certain Gener8 common shares that will be canceled as set forth in the Merger Agreement), will be canceled and automatically converted into the right to receive 0.7272 of an ordinary share, no par value per share, of Euronav (which we refer to as the “Euronav ordinary shares”) (we refer to the Euronav ordinary shares to be issued pursuant to the Merger as the “Merger Consideration”) and (iii) Computershare, Inc. and its subsidiary Computershare Trust Company, N.A. (which we refer to as the “Exchange Agent”) will be appointed to act as agent for the Merger and to, among other things, act as agent solely in the name and on behalf of and for the account and benefit of the Gener8 shareholders immediately prior to the Effective Time (other than Gener8, Euronav, Merger Sub or their respective subsidiaries) including holders of restricted stock units of Gener8 (which we refer to as the “Contributing Gener8 Shareholders), with the right of sub-delegation, for the purpose of facilitating the execution and implementation of the Contribution in Kind (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), including but not limited to representing the Contributing Gener8 Shareholders at the Closing (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), contributing the Surviving Corporation Shares (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A) to Euronav by way of a Contribution In Kind and delivering the Merger Consideration to such Contributing Gener8 Shareholders.
2. To consider and vote upon a proposal to approve adjournments or postponements of the special meeting, if necessary, to permit further solicitation of proxies if there are not sufficient votes at the time of the meeting to approve the Merger Agreement.
As described in the accompanying proxy statement/prospectus, the Gener8 board of directors (with Peter C. Georgiopoulos, Dan Ilany and Nicolas Busch abstaining due to potential conflicts of interest), upon the unanimous recommendation of a transaction advisory committee of the Gener8 board of directors comprised solely of disinterested directors (which we refer to as the “Gener8 Transaction Committee”), has approved the Merger Agreement and the transactions contemplated thereby and has determined that the Merger Agreement and the transactions contemplated thereby, including the Merger,
are fair to and in the best interests of Gener8 and its shareholders.
The Gener8 board of directors (with Peter C. Georgiopoulos, Dan Ilany and Nicolas Busch, abstaining due to potential conflicts of interest), upon the unanimous recommendation of the Gener8 Transaction Committee, recommends that you vote “
FOR
” the approval of the Merger Agreement and the transactions contemplated thereby and “
FOR
” the approval of the proposal to approve adjournments or postponements of the special meeting, if necessary, to permit further solicitation of proxies if there are not sufficient votes at the time of the meeting to approve the Merger Agreement.
The proxy statement/prospectus that accompanies this notice provides extensive information about the Special Meeting, the Merger Agreement, the Merger and other related matters. You are urged to read the accompanying proxy statement/prospectus, including any documents incorporated by reference into the accompanying proxy statement/prospectus, and its annexes carefully and in their entirety. A copy of the Merger Agreement is included in the proxy statement/prospectus as
Annex A.
YOUR VOTE IS VERY IMPORTANT.
Your proxy is being solicited by the Gener8 board. The Merger Agreement must be approved by Gener8 shareholders in order for the Merger to be consummated.
If you do not expect to be present at the Special Meeting, you are requested to promptly vote your shares via the Internet or by telephone by following the instructions on your Notice Regarding the Internet Availability of Proxy Materials, or, if you received your proxy materials by mail, by following the instructions included on your proxy card or voting instruction form, to make sure that your shares are represented at the Special Meeting. Instructions for voting are included in the accompanying proxy statement/prospectus. If you do attend the Special Meeting and wish to vote in person, you may do so notwithstanding the fact that you previously submitted or appointed a proxy. Your vote is very important, regardless of the number of shares you own. Accordingly, please submit your proxy whether or not you plan to attend the Special Meeting in person. Proxies must be received by [•] on [•].
Only holders of record of Gener8 common shares at the close of business on [•], 2018, the record date for the Special Meeting, are entitled to notice of, and to vote at, the Special Meeting and any adjournments or postponements thereof. Each Gener8 common share entitles its holder to one vote on all matters that come before the Special Meeting.
Please note, however, that if your Gener8 common shares are held as of the record date by a broker, bank, trustee or other nominee and you wish to vote at the meeting, you must obtain a legal proxy in your name from your broker, bank, trustee or other nominee and present it to the inspector of election with your ballot when you vote at the Special Meeting. Please also bring to the Special Meeting your account statement or letter from your bank or broker evidencing your beneficial ownership of Gener8 common shares as of the record date and valid government-issued photo identification.
If you have questions about the Merger or the Special Meeting, need additional copies of this proxy statement/prospectus or need to obtain proxy cards or other information related to the proxy solicitation, you may contact Gener8 at: Gener8 Maritime, Inc., 299 Park Avenue, Second Floor, New York, New York 10171, Attention: Investor Relations, or call Gener8 at +1 (212) 763-5633.
By Order of the Board of Directors,
Leonard J. Vrondissis
Chief Financial Officer,
Executive Vice President, and
Secretary
TABLE OF CONTENTS
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149
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150
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150
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151
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151
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153
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A-1
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B-1
|
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C-1
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|
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D-1
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QUESTIONS AND ANSWERS ABOUT THE MERGER AND THE SPECIAL MEETING
The following are answers to some questions that you, as a shareholder of Gener8, may have regarding the Merger and the matters being considered at the Special Meeting. You are urged to read carefully the remainder of this proxy statement/prospectus because the information in this section does not provide all the information that might be important to you with respect to the Merger and the Special Meeting. Additional important information is also contained in the annexes to this proxy statement/prospectus and the section “Where You Can Find More Information” beginning on page
151
. Information presented in this section and otherwise in this proxy statement/prospectus is forward-looking in nature, and, therefore, should be read in light of the factors discussed under the section captioned “Cautionary Statement Regarding Forward-Looking Statements” beginning on page
19
.
Q:
Why am I receiving this proxy statement/prospectus?
A:
Gener8 Maritime, Inc., Euronav NV and Merger Sub have entered into the Merger Agreement, pursuant to which, among other things, Merger Sub will merge with and into Gener8, with Gener8 continuing its corporate existence as the Surviving Corporation in the Merger and as a wholly-owned subsidiary of Euronav. You are receiving this proxy statement/prospectus in connection with the solicitation by the Gener8 board of directors of proxies of holders of Gener8 common shares to vote in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger and to mandate Computershare, Inc. and its subsidiary Computershare Trust Company, N.A. to serve as the exchange agent (which we refer to as the “Exchange Agent”), to act as agent for the Merger and to, among other things, act as agent solely in the name and on behalf of and for the account and benefit of the Gener8 shareholders immediately prior to the effective time of the Merger (which we refer to as the “Effective Time”) (other than Gener8, Euronav, Merger Sub or their respective subsidiaries) including holders of restricted stock units of Gener8 (which we refer to as the “Contributing Gener8 Shareholders”), with the right of sub-delegation, for the purpose of facilitating the execution and implementation of the Contribution in Kind (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), including but not limited to representing the Contributing Gener8 Shareholders at the Closing (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), contributing the Surviving Corporation Shares (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A) to Euronav and delivering the Euronav shares being issued as consideration to the Contributing Gener8 Shareholders (which we refer to as the “Merger Consideration”).
Gener8 is holding a Special Meeting to obtain the approval of the Merger Agreement by Gener8 shareholders. Approval of the Merger Agreement by shareholders representing at least a majority of the issued and outstanding Gener8 common shares is required for the completion of the Merger.
This proxy statement/prospectus constitutes both a proxy statement of Gener8 and a prospectus of Euronav. It is a proxy statement because the Gener8 board of directors is soliciting proxies from its shareholders. It is a prospectus because Euronav will issue its Euronav ordinary shares pursuant to the Merger.
Your vote is very important, regardless of the number of shares you own. Accordingly, please submit your proxy whether or not you plan to attend the Special Meeting in person. Proxies must be received by [•] on [•], 2018.
Q:
What am I being asked to vote on?
A:
You are being asked to vote to approve the Merger Agreement and the transactions contemplated thereby, including the Merger and the appointment of the Exchange Agent to act as agent solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders, with the right of sub-delegation, for the purposes of giving effect to the Contribution in Kind and delivering the Merger Consideration to shareholders. As a condition to the completion of the Merger, holders of a majority of the issued and outstanding Gener8 common shares must approve the Merger Agreement.
If the Merger Agreement is not approved by holders of at least a majority of the issued and outstanding Gener8 common shares, the Merger will not be completed.
Q:
What will I receive for my Gener8 common shares if the Merger is completed?
A:
At the Effective Time, each issued and outstanding Gener8 common share will be canceled and automatically converted into the right to receive 0.7272 of an ordinary share of Euronav (which we refer to as the “Euronav ordinary shares,” and such ratio, the “Exchange Ratio”) in the following manner: (i) each such Gener8 common share will be automatically converted into one share of common stock, par value $0.01 per share, of the Surviving Corporation in the Merger and (ii) each such share of Surviving Corporation will thereafter be contributed to Euronav in exchange for 0.7272 of a Euronav ordinary share (we refer to this as the “Contribution in Kind”).
In order to accomplish this Contribution in Kind, the Exchange Agent will be appointed (and Euronav and Gener8 will enter into an agreement with the Exchange Agent) and will be authorized to act as agent for the Gener8 shareholders, with the right of sub-delegation, for the Merger and to, among other things, act as agent solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders, to effect the Contribution in Kind and the delivery of the Merger Consideration to such shareholders.
The aggregate number of Euronav ordinary shares issued pursuant to the Merger may be adjusted if, prior to the Effective Time, the outstanding number of Euronav ordinary shares has changed into a different number of shares or a different class by reason of any stock dividend or distribution, subdivision, reclassification, recapitalization, stock split, reverse stock split, stock consolidation, combination, exchange of shares or other similar change or event, in accordance with the Merger Agreement). Any Gener8 common shares held by Gener8, Euronav, Merger Sub or their respective subsidiaries will be canceled and no consideration will be delivered for those canceled shares. The Exchange Ratio and the Merger Consideration will not be adjusted to reflect changes in the price of Gener8 common shares or Euronav ordinary shares prior to the Effective Time.
The value of the Merger Consideration will fluctuate with the market price of Euronav ordinary shares. You should obtain current share price quotations of Euronav ordinary shares, which are listed on the NYSE and Euronext under the symbol “EURN.” Gener8 common shares are listed on the NYSE under the symbol “GNRT.” Based on the closing price of Euronav ordinary shares on the NYSE of $8.10 on December 20, 2017, the last trading day before the public announcement of the Merger before the open of trading on December 21, 2017, the Exchange Ratio represented approximately $5.89 in Euronav ordinary shares for each Gener8 common share. Based on the closing price of Euronav ordinary shares on the NYSE of $[•] on [•], 2018, the latest practicable date before the date of this proxy statement/prospectus, the Exchange Ratio represented approximately $[•] in Euronav ordinary shares for each Gener8 common share.
Euronav will not issue any fractional ordinary shares. Instead, each record holder of Gener8 common shares otherwise entitled to a fraction of a Euronav ordinary share will be entitled to receive an amount of cash (without interest, rounded to the nearest whole cent) determined by multiplying the fractional share interest to which the holder would otherwise be entitled by the volume weighted average price per share of Euronav ordinary shares on the NYSE for the three trading days ending on and including the trading day prior to the Effective Time. Holders of Gener8 common shares otherwise entitled to a fraction of a Euronav ordinary share that hold shares through a bank, broker, trustee or other nominee will receive cash in lieu of fractional shares, if any, determined in accordance with the policies of such bank, broker, trustee or other nominee. See “The Merger — Merger Consideration.”
Q:
Where will the Euronav ordinary shares be listed?
A:
Euronav has agreed to apply to list all of the Euronav ordinary shares to be issued in connection with the Merger on the NYSE and on Euronext.
Q:
When and where is the Gener8 Special Meeting?
A:
The Special Meeting of shareholders of Gener8 will be held at the offices of Kramer Levin Naftalis & Frankel LLP, located at 1177 Avenue of the Americas, New York, New York, 10036 on [•], 2018, at [•] a.m. local time, unless adjourned or postponed to a later time and date.
Q:
Who can vote at the Special Meeting?
A:
Shareholders of record as of the close of business on [•], 2018, the record date for the Special Meeting, are entitled to receive notice of and to vote at the Special Meeting. On the record date, there were [•] Gener8 common shares issued and outstanding and entitled to vote at the Special Meeting. You may vote all of the Gener8 common shares you owned as of the close of business on the record date. All Gener8 common shares that were outstanding as of the close of business on the record date are entitled to one vote per share.
Some of the Gener8 shareholders hold their shares through a broker, bank, trustee or other nominee rather than directly in their own names. As summarized below, there are some distinctions between shares held of record and those owned beneficially:
•
If your Gener8 common shares are registered directly in your name in Gener8’s register of shareholders held with Gener8’s transfer agent, Computershare Trust Company, N.A., then you are considered the shareholder of record of those shares and these proxy materials are being sent directly to you by Gener8. As the shareholder of record, you have the right to grant a proxy or vote in person at the meeting.
•
If your Gener8 common shares are held in a stock brokerage account or otherwise by a broker, bank, trustee or other nominee, then you are considered to be the beneficial owner of shares held in “street name” and these proxy materials are being forwarded to you by your broker, bank, trustee or other nominee and you are not considered the shareholder of record of those shares. As the beneficial owner, you have the right to direct your broker, bank, trustee or other nominee on how to vote your Gener8 common shares. You are also invited to attend the Special Meeting. However, because you are not the shareholder of record, you may not vote these shares in person at the meeting unless you obtain a legal proxy in your name from your broker, bank, trustee or other nominee and present it to the inspector of election with your ballot when you vote at the Special Meeting. You would also need to bring to the Special Meeting your account statement or letter from your bank, broker, trustee or other nominee evidencing your beneficial ownership of Gener8 common shares as of the record date and valid government-issued photo identification.
Q:
What shareholder approvals are being sought?
A:
The Merger Agreement is required to be approved by shareholders representing at least a majority of the issued and outstanding Gener8 common shares on the record date for the Special Meeting.
On December 20, 2017, in connection with the entry into the Merger Agreement, Euronav and certain shareholders of Gener8 (which we refer to as the “Covered Shareholders”) representing approximately 42% of the issued and outstanding shares of Gener8 entered into a Shareholder Support and Voting Agreement (which we refer to as the “Voting Agreement”). The Voting Agreement requires the Covered Shareholders to (i) appear (in person or by proxy) at any meeting of the shareholders convened for the purpose of approving the Merger and the Merger Agreement and (ii) provided that neither a transaction advisory committee of the Gener8 board of directors comprised solely of disinterested directors (which we refer to as the “Gener8 Transaction Committee”) nor the Gener8 board has made an Adverse Recommendation Change (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), vote all of their Gener8 common shares (which we refer to as the “Covered Shares”) in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger, and against any action that would reasonably be expected to impede the Merger or result in a breach of the Merger Agreement or the Voting Agreement. If either the Gener8 Transaction Committee or the Gener8 board does make an Adverse
Recommendation Change, then the Covered Shareholders are each required to vote 50% of their respective Covered Shares in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger, and may vote their remaining Covered Shares in any manner they determine.
In addition, at the request (and expense) of Euronav, certain Gener8 shareholders (the “Proxy Shareholders”) have agreed to grant an irrevocable proxy (which we refer to as the “Proxies”) to a representative of an affiliate of such Proxy Shareholders whereby, subject to the terms and conditions in the Proxies, such representative has the authority to direct the vote of Gener8 common shares owned by the Proxy Shareholders, representing in the aggregate approximately 6% of the issued and outstanding shares of Gener8, at the Special Meeting. In addition, the Proxy Shareholders have agreed, among other things, not to transfer or dispose any of their Gener8 common shares during the term of the Proxies unless the transferee agrees to be bound thereby. Please see the section “The Merger Agreement—Voting Agreement and Proxies”.
As of the date of this proxy statement/prospectus, shareholders representing approximately 48% of the issued and outstanding shares of Gener8, including certain current directors of Gener8, have entered into either the Voting Agreement or the Proxies. A copy of the Voting Agreement is included in the proxy statement/prospectus as
Annex B
.
Q:
What if I do not vote or do not fully complete my proxy card?
A:
If you do not vote your Gener8 common shares with respect to the proposal to approve the Merger Agreement, including the transactions contemplated thereby, it will have the same effect as a vote
AGAINST
the proposal. However, if the proposal to approve the Merger Agreement and the transactions contemplated thereby, including the Merger and the appointment of the Exchange Agent to act as agent solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders, with the right of sub-delegation, is approved and the Merger is completed, each of your Gener8 common shares will be canceled and automatically converted into the right to receive 0.7272 of a Euronav ordinary share, even though you did not vote. See “— What will I receive for my Gener8 common shares if the Merger is completed?” If you are a shareholder of record and you properly sign, date and return a proxy card, but without specifying the manner in which you would like your Gener8 common shares to be voted with respect to the Merger Agreement proposal, your Gener8 common shares will be voted “
FOR
” approval of the Merger Agreement.
Q:
What do I need to do now?
A:
If you are a shareholder of record, after carefully reading and considering the information contained in, and incorporated by reference into, this document, please complete, date, sign and return the enclosed proxy card. See “The Special Meeting
—
Voting; Proxies; Revocation.” Your vote is very important, regardless of the number of shares you own. Accordingly, please submit your proxy whether or not you plan to attend the Special Meeting in person. Proxies must be received by Gener8’s proxy solicitor no later than [•] on [•], 2018.
If you are a beneficial owner, you should instruct your bank, broker, trustee or other nominee to vote your Gener8 common shares. If you do not instruct your bank, broker, trustee or other nominee, it will not be able to vote your Gener8 common shares. Please check with your bank, broker, trustee or other nominee and follow the voting procedures it provides. Your bank, broker, trustee or other nominee will advise you whether you may submit voting instructions by telephone or via the Internet. See “The Special Meeting
—
Voting; Proxies.”
Q:
May I change or revoke my vote after I have submitted a proxy?
A:
Yes. If your Gener8 common shares are registered directly in your name, you may change or revoke your vote after you have submitted your proxy by any of the following methods:
•
by writing a letter delivered to Gener8 Maritime, Inc., 299 Park Avenue, Second Floor, New York, New York 10171, attention: Leonard J. Vrondissis, Secretary, stating that the proxy is revoked;
•
by submitting a later proxy that Gener8 receives no later than the conclusion of voting at the Special Meeting;
•
by attending the Special Meeting and voting in person (although attendance at the Special Meeting will not, by itself, revoke a proxy); or
•
voting again via the Internet or by telephone (only the last vote cast by each shareholder of record will be counted), provided that you do so before 11:59 p.m. Eastern Daylight Time on the day before the Special Meeting.
If your Gener8 common shares are held in “street name” by a bank, broker, trustee or other nominee, you must follow the directions you receive from your bank, broker, trustee or other nominee in order to change or revoke your vote and be aware of any deadlines for the receipt of those instructions.
Q:
If I want to attend the Special Meeting, what do I do?
A:
You should come to the offices of Kramer Levin Naftalis & Frankel LLP, located at 1177 Avenue of the Americas, New York, New York, 10036 at [•] a.m. local time, on [•], 2018. If you hold your Gener8 common shares in “street name,” you will need to bring your account statement or letter from your bank, broker, trustee or other nominee evidencing your beneficial ownership of Gener8 common shares as of the record date and valid government-issued photo identification to be admitted to the meeting. Shareholders of record as of the record date for the Special Meeting can vote in person at the Special Meeting. If your Gener8 common shares are held in “street name,” then you are not the shareholder of record and you must bring to the Special Meeting, in addition to the account statement or letter from your bank, broker, trustee or other nominee evidencing your beneficial ownership of Gener8 common shares as of the record date and valid government-issued photo identification, a legal proxy in your name from your broker, bank, trustee or other nominee and present it to the inspector of election with your ballot.
Q:
What happens if I transfer or sell my Gener8 common shares before the Special Meeting or before completion of the Merger?
A:
If you transfer or sell your Gener8 common shares after the record date but before the Special Meeting, you will retain your right to vote at the Special Meeting. However, you will have transferred the right to receive your respective portion of the Merger Consideration. In order to receive the Merger Consideration, you must hold your Gener8 common shares through the Effective Time of the Merger.
Q:
What if I receive more than one set of voting materials?
A:
You may receive more than one set of voting materials, including multiple copies of this proxy statement/prospectus, the proxy card or the voting instruction form. This can occur if you hold your Gener8 common shares in more than one brokerage account, if you hold shares directly as a holder of record and also in “street name,” or otherwise through another holder of record, and in certain other circumstances. If you receive more than one set of voting materials, please vote or return each set separately in order to ensure that all of your Gener8 common shares are voted.
Q:
When is the Merger expected to be completed?
A:
Euronav and Gener8 are working to complete the Merger as quickly as possible. Assuming the satisfaction or waiver of all of the conditions to the Merger set forth in the Merger Agreement, Gener8 and Euronav expect to complete the Merger in the second quarter of 2018. The Merger Agreement contains an end date of June 30, 2018 for the completion of the Merger (which can be extended to July 31, 2018 in certain circumstances as set forth in the Merger Agreement). For a discussion of the conditions to the completion of the Merger, see the sections “The Merger Agreement — Conditions to the Merger Agreement.”
Q:
Following the completion of the Merger, what percentage of outstanding Euronav ordinary shares will Gener8 shareholders and holders of restricted stock units of Gener8 own?
A:
Following the completion of the Merger and the Contribution In Kind, the Contributing Gener8 Shareholders will own approximately 28% of the outstanding Euronav ordinary shares.
Q:
What are the material United States federal income tax consequences of the Merger to holders of Gener8 common shares?
A:
For a U.S. Holder (as defined in “Material Tax Considerations”), the Merger should be treated for United States (“U.S.”) federal income tax purposes as a tax-free exchange of Gener8 common shares for Euronav ordinary shares in the Merger. Generally, for U.S. federal tax purposes, a U.S. Holder should not recognize gain or loss upon the exchange of Gener8 common shares for Euronav ordinary shares. Cash may be paid in lieu of fractional shares, in which case a U.S. Holder (as defined in “Material Tax Considerations”) may recognize taxable gain or loss with respect to such fractional shares.
A Non-U.S. Holder (as defined in “Material Tax Considerations”) should not recognize gain or loss upon the exchange of Gener8 common shares for Euronav ordinary shares for U.S. federal income tax purposes. A Non-U.S. Holder receiving cash in lieu of fractional shares may recognize taxable gain or loss with respect to such fractional shares in certain circumstances.
See the section “Material Tax Considerations” for a discussion of the material U.S. federal income tax consequences of (i) the Merger and (ii) owning and disposing of Euronav ordinary shares.
Q:
Are there risks I should consider in deciding whether to vote for the Merger Agreement?
A:
Yes. There is a non-exhaustive list of risk factors that you should consider carefully in connection with the Merger. See “Risk Factors” beginning on page
21
.
Q:
How will Gener8 common shareholders receive the Merger Consideration?
A:
Following the Merger, if you are a shareholder at the Effective Time of the Merger, you will receive a letter of transmittal and instructions on how to obtain the Merger Consideration. You will receive your respective portion of the Merger Consideration after the Exchange Agent receives your properly completed letter of transmittal and/or such other documents that may be required by the Exchange Agent. See section “The Merger — Conversion of Gener8 common shares; Exchange of Certificates.” See section “— What will I receive for my Gener8 common shares if the Merger is completed?”
Q:
Do I have dissenters’ or appraisal rights for my Gener8 common shares in connection with the Merger?
A:
No. Gener8 shareholders are not entitled to dissenters’ rights under the Business Corporations Act of the Marshall Islands (which we refer to as the “BCA”) as Gener8’s shares are listed on the NYSE.
Q:
What will happen in the Merger to Gener8 share options?
A:
At the Effective Time of the Merger, each then outstanding Gener8 share option (whether or not then vested and exercisable) will terminate and be canceled in exchange for the right to receive the Option Consideration (as defined in “The Merger Agreement — Effect on Gener8 Share Options”), less any applicable withholding taxes. If the exercise price applicable to the Gener8 common shares underlying the Gener8 share option is equal to or greater than the value of the Merger Consideration applicable to such underlying shares, such share option will terminate and be canceled in exchange for no consideration. At the Effective Time of the Merger, each holder of a Gener8 share option will cease to have any rights with respect thereto, except the right to receive the Option Consideration related to such Gener8 share option pursuant to the Merger Agreement. For a full description of the treatment of Gener8 Share Options, please see the section “The Merger Agreement — Effect on Gener8 Share Options.”
Q:
What will happen in the Merger to Gener8 restricted stock units?
A:
At the Effective Time of the Merger, each then outstanding Gener8 restricted stock unit will become fully vested and will terminate and be canceled in exchange for the right to receive 0.7272 of a Euronav ordinary shares, less any applicable withholding taxes in the following manner: (i) each such Gener8 restricted stock unit will be automatically converted into one share of common stock, par value $0.01 per share, of the Surviving Corporation in the Merger and (ii) each such share of Surviving
Corporation will thereafter be contributed to Euronav in exchange for 0.7272 of a Euronav ordinary share as part of the Contribution in Kind. For a full description of the treatment of Gener8 restricted stock units, please see the section “The Merger Agreement — Effect on Gener8 Restricted Stock Units.”
Q:
What will happen if the Merger is not completed?
A:
If the Merger is not completed for any reason, you will not receive any consideration for your Gener8 common shares, and Gener8 will remain an independent company with its common shares traded on the NYSE.
Q:
Who can help to answer my additional questions about the Merger or voting procedures?
A:
If you have more questions about the Merger, including the procedures for voting your Gener8 common shares, you should contact D.F. King & Co., Inc., Gener8’s proxy solicitor at 48 Wall Street New York, NY 10005, or by e-mail to gnrt@dfking.com. If a bank, broker, trustee or other nominee holds your Gener8 common shares, then you should also contact your bank, broker, trustee or other nominee for additional information.
SUMMARY
This summary highlights information contained elsewhere in this proxy statement/prospectus and does not contain all of the information that might be important to you. Euronav NV and Gener8 Maritime Inc. and their respective subsidiaries urge you to read carefully the remainder of this proxy statement/prospectus, including the attached annexes and the documents incorporated by reference into this proxy statement/prospectus. You may obtain the information incorporated by reference in this proxy statement/prospectus without charge by following the instructions in the section “Where You Can Find More Information.” Each item in this summary includes a page reference to direct you to a more complete description of the topic presented in this summary.
Information about the Parties to the Merger Agreement
Euronav NV (page 113)
Euronav NV, a Belgian corporation, is a fully-integrated provider of international maritime shipping and offshore services engaged primarily in the transportation and storage of crude oil. As of January 19, 2018, Euronav owned or operated a modern fleet of 53 vessels (including four chartered-in vessels and four newbuildings expected to be delivered in 2018) with an aggregate carrying capacity of approximately 13.4 million deadweight tons, or dwt, consisting of 28 very large crude carriers, or VLCCs, 1 V-plus, 22 Suezmax vessels (including four under construction), and two floating, storage and offloading vessels, or FSOs (in which Euronav holds a 50% ownership interest). The average age of Euronav’s fleet as of January 19, 2018 was approximately 8.8 years, as compared to an industry average age as of January 19, 2018 of approximately 9.4 years for the VLCC fleet and 9.6 years for the Suezmax fleet.
Euronav’s ordinary shares are listed on the NYSE and Euronext under the symbol “EURN.”
Please see the section “Information About Euronav” contained in Euronav’s Form 6-K filed with the SEC on February 14, 2018 and incorporated by reference into this proxy statement/prospectus. Additional information about Euronav and its subsidiaries can be found on Euronav’s website at https://www.euronav.com/en/. The information contained in, or that can be accessed through, Euronav NV’s website is not incorporated into, and does not constitute part of, this proxy statement/prospectus. For additional information about Euronav, see “Where You Can Find More Information.” The mailing address of Euronav NV is De Gerlachekaai 20, 2000, Antwerpen Belgium, and the telephone number is 001-32-3-247-4411.
Gener8 Maritime Inc. (page 114)
Gener8 Maritime, Inc. a corporation incorporated under the laws of the Republic of the Marshall Islands, is a leading U.S.-based provider of international seaborne crude oil transportation services, resulting from a transformative merger between General Maritime Corporation, a well-known tanker owner, and Navig8 Crude Tankers Inc., a company sponsored by the Navig8 Group, an independent vessel pool manager. General Maritime Corporation was founded in 1997 by Gener8’s Chairman and Chief Executive Officer, Peter Georgiopoulos, and has been an active owner, operator and consolidator in the crude tanker sector. As of January 19, 2018, Gener8 owned a fleet of 30 tankers on the water, consisting of 21 VLCC vessels, six Suezmax vessels, one Aframax vessel and two Panamax vessels, with an aggregate carrying capacity of approximately 7.5 million dwt, which includes 19 “eco” VLCC newbuildings delivered from 2015 through 2017 equipped with advanced, fuel-saving technology, that were constructed at highly reputable shipyards.
Gener8’s common shares are listed on the NYSE under the symbol “GNRT.”
Additional information about Gener8 Maritime, Inc. and its subsidiaries can be found on Gener8 Maritime, Inc.’s website at www.gener8maritime.com. The information contained in, or that can be accessed through, Gener8 Maritime, Inc.’s website is not incorporated into, and does not constitute part of, this proxy statement/prospectus. For additional information about Gener8, see “Where You Can Find More Information.” The mailing address of Gener8 Maritime, Inc. is 299 Park Avenue, Second Floor, New York, New York 10171 and the telephone number at that address is +1 (212) 763-5600.
Risk Factors (page 21)
The Merger and an investment in Euronav ordinary shares involve risks, some of which are related to the Merger. In considering the Merger and the Merger Agreement, you should carefully consider the information about these risks set forth under the section “Risk Factors,” together with the other information included or incorporated by reference in this proxy statement/prospectus.
The Merger (page 39)
On December 20, 2017, Euronav, Gener8, and Merger Sub entered into the Merger Agreement, which is the agreement governing the Merger. Subject to the terms and conditions of the Merger Agreement, Merger Sub will merge with and into Gener8, with Gener8 continuing its corporate existence under the BCA as the Surviving Corporation and as a direct wholly-owned subsidiary of Euronav. Upon completion of the Merger, Gener8 common shares will no longer be publicly traded.
Assumption of Indebtedness (page 39)
If the Merger is completed, Euronav will assume certain existing indebtedness of Gener8. Euronav intends to assume an aggregate amount of $1,358.0 million of existing indebtedness (which was the amount outstanding as of December 31, 2017) in connection with the completion of the Merger.
In connection with the completion of the Merger, Gener8 is required to obtain (i) the consent of the required parties under its applicable credit agreements to (1) permit Euronav’s ownership of Gener8’s equity interests; (2) remove the requirement that each of Peter Georgiopoulos, Gary Brocklesby and Nicolas Busch remain a director of Gener8; (3) permit the Merger; (4) permit the payment in full of Gener8’s indebtedness to certain affiliates of BlueMountain Capital Management, LLC, or BlueMountain, and (5) remove the requirement that Gener8’s common shares remain listed on the New York Stock Exchange; and (ii) such other amendments, consents and waivers under its applicable credit agreements and related transaction documents in order to allow the Merger to be properly entered into and documented without causing a breach of any of the terms of such agreements (we refer to the consents described in this paragraph, collectively, as the “Specified Approvals”). While the parties expect to obtain the Specified Approvals prior to or substantially contemporaneously with the completion of the Merger, if Gener8 is unable to obtain the Specified Approvals, Euronav may obtain alternative financing to refinance such indebtedness. For a full description of the Specified Approvals, please see the section “The Merger — Assumption of Indebtedness.”
Pursuant to a letter agreement among Gener8, Gener8 Maritime Subsidiary V Inc., and certain affiliates of BlueMountain, dated December 20, 2017, or the BlueMountain Agreement, Gener8’s Senior Unsecured Notes due 2020, or the Senior Notes, issued by Gener8 to certain affiliates of BlueMountain, will be prepaid and redeemed in full contemporaneously with the Closing of the Merger. As of December 31, 2017, the Senior Notes have a carrying value of $194.4 million. Euronav expects the prepayment of the Senior Notes to be approximately $207.0 million (which includes a 1% prepayment penalty), which Euronav expects to finance in full with cash on hand and drawings under its credit facilities.
Merger Consideration (page 40)
At the Effective Time, each issued and outstanding Gener8 common share will be canceled and automatically converted into the right to receive 0.7272 of a Euronav ordinary share. The aggregate number of Euronav ordinary shares issued pursuant to the Merger (may be adjusted if, prior to the Effective Time, the outstanding number of Euronav ordinary shares has changed into a different number of shares or a different class by reason of any stock dividend or distribution, subdivision, reclassification, recapitalization, stock split, reverse stock split, stock consolidation, combination, exchange of shares or other similar change or event, in accordance with the Merger Agreement). Additionally, any Gener8 common shares held by Gener8, Euronav, Merger Sub or their respective subsidiaries will be canceled and no Merger Consideration or other consideration will be delivered for those canceled shares. The Exchange Ratio will not be adjusted to reflect changes in the price of Gener8 common shares or Euronav ordinary shares prior to the Effective Time. Euronav has agreed to apply to list all of the Euronav ordinary shares to be issued in connection with the Merger on the NYSE and on Euronext.
Euronav will not issue any fractional ordinary shares. Instead, each record holder of Gener8 common shares otherwise entitled to a fraction of a Euronav ordinary share will be entitled to receive an amount of cash (without interest, rounded to the nearest whole cent) determined by multiplying the fractional share interest to which the holder would otherwise be entitled by the volume weighted average price per share of Euronav ordinary shares on the NYSE for the three trading days ending on and including the trading day prior to the Effective Time. Holders of Gener8 common shares otherwise entitled to a fraction of a Euronav ordinary share that hold shares through a bank, broker, trustee or other nominee shall receive cash in lieu of fractional shares, if any, determined in accordance with the policies of such bank, broker, trustee or other nominee.
Comparative Market Prices and Share Information (page 17)
The value of the Merger Consideration will fluctuate with the market price of Euronav ordinary shares. You should obtain current share price quotations for Euronav ordinary shares, which are listed on the NYSE and Euronext under the symbol “EURN”. Gener8 common shares are listed on the NYSE under the symbol “GNRT.” The last traded value of the Gener8 common shares on the NYSE was $[•] per share on [•], 2018, the latest practicable date before the date of this proxy statement/prospectus. On December 20, 2017, the last trading day before the public announcement of the Merger Agreement before the open of trading on December 21, 2017, the closing price of Euronav ordinary shares on the NYSE was $8.10 per share. Based on the foregoing, the aggregate consideration was $[•] million. Based on the closing price of Euronav ordinary shares on the NYSE of $[•] on [•], 2018, the latest practicable date before the date of this proxy statement/prospectus, the aggregate consideration was $[•] million.
Treatment of Gener8 Share Options (page 41)
Upon the Effective Time of the Merger, by virtue of the Merger and without any action on the part of any holder of Gener8 share options, each then outstanding Gener8 share option (whether or not then vested and exercisable) will terminate and be canceled in exchange for the right to receive the Option Consideration (as defined in “The Merger Agreement — Effect on Gener8 Share Options”), less any applicable withholding taxes. If the exercise price applicable to the Gener8 common shares underlying the Gener8 share option is equal to or greater than the value of the Merger Consideration applicable to such underlying shares, such share option will terminate and be canceled in exchange for no consideration. As of the Effective Time of the Merger, each holder of a Gener8 share option will cease to have any rights with respect thereto, except the right to receive the Option Consideration related to such Gener8 share option pursuant to the Merger Agreement. For a full description of the treatment of Gener8 Share Options, please see the section “The Merger Agreement — Effect on Gener8 Share Options.”
Treatment of Gener8 Restricted Stock Units (page 41)
Upon the Effective Time of the Merger, by virtue of the Merger and without any action on the part of any holder of Gener8 restricted stock units, each then outstanding Gener8 restricted stock unit will become fully vested and will terminate and be canceled in exchange for the right to receive 0.7272 of a Euronav ordinary share, less any applicable withholding taxes. For a full description of the treatment of Gener8 restricted stock units, please see the section “The Merger Agreement — Effect on Gener8 Restricted Stock Units.”
Gener8 Board of Directors’ Recommendation (page 36)
The Gener8 board of directors constituted the Gener8 Transaction Committee comprised of Mr. Steven Smith, Mr. Ethan Auerbach and Mr. Adam Pierce, for the purpose of considering, evaluating, negotiating and making recommendations to the Gener8 board of directors regarding potential financing transactions and/or strategic transactions, including with Euronav, Company A and Company E, as well as alternative strategic transactions and/or financing transactions and considering, evaluating and making recommendations to the Gener8 board of directors regarding the commercial terms, management arrangements, terms of any financing and other matters relating to the foregoing transactions. The Gener8 Transaction Committee has unanimously determined that it is fair to and in the best interests of Gener8 and its shareholders to enter into the Merger, the Merger Agreement and the transactions contemplated
thereby, and recommended to the Gener8 board that the Gener8 board approve the same. In the course of reaching its determination and making the recommendation described above, the Gener8 Transaction Committee considered a number of factors. Those factors are described in the section “Gener8’s Reasons for the Merger; Recommendation of Gener8’s Board of Directors — Gener8 Transaction Committee.”
On the basis of the Gener8 Transaction Committee’s recommendation, the Gener8 board of directors (with Peter C. Georgiopoulos, Dan Ilany and Nicolas Busch abstaining due to potential conflicts of interest), among other things, determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to and in the best interests of Gener8 and its shareholders, declared advisable the Merger Agreement and the transactions contemplated thereby, including the Merger, and resolved to recommend that the Gener8 shareholders vote to approve the Merger Agreement and the transactions contemplated thereby, including the Merger. In the course of reaching its decision to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, and resolving to recommend that the Gener8 shareholders vote to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, the Gener8 board of directors considered a number of factors which are described in the section “Gener8’s Reasons for the Merger; Recommendation of Gener8’s Board of Directors — Gener8 Transaction Committee.”
The Gener8 board of directors recommends that you vote “
FOR
” the approval of the Merger Agreement and the transactions contemplated thereby.
In considering the recommendation of the Gener8 board of directors, Gener8 shareholders should be aware that some of Gener8 directors and executive officers may have interests in the Merger that are different from, or in addition to, their interests as Gener8 shareholders. See “The Merger — Interests of Gener8 Directors and Executive Officers in the Merger.”
Opinion of UBS, Gener8’s Financial Advisor (page 60)
On December 20, 2017, at a meeting of the Gener8 board of directors held to evaluate the Merger, UBS Securities LLC, which we refer to as UBS, delivered to the Gener8 Transaction Committee and the Gener8 board of directors an oral opinion, which opinion was confirmed by delivery of a written opinion dated December 20, 2017, to the effect that, as of that date and based upon and subject to various assumptions, matters considered and limitations described in its opinion, the Exchange Ratio provided for in the Merger was fair, from a financial point of view, to holders of Gener8 common shares. The full text of UBS’ opinion describes the assumptions made, procedures followed, matters considered and limitations on the review undertaken by UBS. The opinion is attached to this proxy statement/prospectus as Annex C and is incorporated herein by reference.
UBS’ opinion was provided for the benefit of the Gener8 Transaction Committee and the Gener8 board of directors in connection with, and for the purpose of, their evaluation of the Merger and addresses only the fairness of the Exchange Ratio in the Merger from a financial point of view and does not address any other aspect of the Merger or any related transaction. The opinion does not address the relative merits of the Merger or any related transaction as compared to other business strategies or transactions that might be available with respect to Gener8 or Gener8’s underlying business decision to effect the Merger or any related transaction. The opinion does not constitute a recommendation to any shareholder as to how to vote or act with respect to the Merger or any related transaction. Holders of shares of Gener8 common shares are encouraged to read UBS’ opinion carefully in its entirety.
See the section captioned “The Merger — Opinion of UBS, Gener8’s Financial Advisor” beginning on page [•].
The Special Meeting (page 36)
The Special Meeting of shareholders of Gener8 will be held at the offices of Kramer Levin Naftalis & Frankel LLP located at 1177 Avenue of the Americas, New York, NY, 10036 on [•], 2018, at [•] a.m. local time, unless adjourned or postponed to a later time. At the Special Meeting, holders of Gener8 common shares will be asked to approve the Merger Agreement and the transactions contemplated thereby, including the Merger and the appointment of the exchange agent to act as agent for the Merger and to, among other things, act as agent solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders, with the right of sub-delegation for the purpose of facilitating the execution and implementation of the Contribution in Kind (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), including but not limited to representing the Contributing Gener8 Shareholders at the Closing (as such term is defined in the Merger Agreement which
is attached to this proxy statement/prospectus as Annex A), contributing the Surviving Corporation Shares (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A) to Euronav by way of a Contribution in Kind and delivering the Merger Consideration to the Contributing Gener8 Shareholders.
The Merger Agreement is required to be approved by shareholders representing at least a majority of the issued and outstanding Gener8 common shares on the record date for the Special Meeting. Shareholders of record as of the close of business on [•], the record date for the Special Meeting, are entitled to receive notice of and to vote at the Special Meeting. On the record date, there were [•] Gener8 common shares issued and outstanding and entitled to vote at the Special Meeting. All Gener8 common shares that were outstanding as of the close of business on the record date are entitled to one vote per share.
Pursuant to the Voting Agreement, the Covered Shareholders, representing approximately 42% of the issued and outstanding shares of Gener8, have agreed, subject to the terms and conditions of the Voting Agreement, to (i) appear (in person or by proxy) at the Special Meeting, and (ii) vote all of their Covered Shares in favor of the Merger, the Merger Agreement and the transactions contemplated thereby at the Special Meeting. In the case of the Covered Securities, if either the Gener8 Transaction Committee or the Gener8 board of directors makes an Adverse Recommendation Change regarding the Merger, then such shareholders will each vote 50% of their respective Covered Shares in favor of the Merger, the Merger Agreement and the transactions contemplated thereby at the Special Meeting, and may vote their remaining Covered Shares in any manner they determine.
In addition, at the request (and expense) of Euronav, the Proxy Shareholders have agreed to grant to a representative of an affiliate of such Proxy Shareholders whereby, subject to the terms and conditions in the Proxies, such representative has the authority to direct the vote of Gener8 common shares owned by the Proxy Shareholders, representing in the aggregate approximately 6% of the issued and outstanding shares of Gener8, at the Special Meeting. In addition, the Proxy Shareholders have agreed, among other things, not to transfer or dispose any of their Gener8 common shares during the term of the Proxies unless the transferee agrees to be bound thereby. Please see the section “The Merger Agreement — Voting Agreement and Proxies”.
As of the date of this proxy statement/prospectus, shareholders representing approximately 48% of the issued and outstanding shares of Gener8, including certain current directors of Gener8, have entered into either the Voting Agreement or the Proxies.
Material Tax Considerations (page 132)
For a U.S. Holder (as defined in “Material Tax Considerations”), the Merger should be treated for United States (“U.S.”) federal income tax purposes as a tax-free exchange of Gener8 common shares for Euronav ordinary shares in the Merger. Generally, for U.S. federal tax purposes, a U.S. Holder should not recognize gain or loss upon the exchange of Gener8 common shares for Euronav ordinary shares. Cash may be paid in lieu of fractional shares, in which case a U.S. Holder (as defined in “Material Tax Considerations”) may recognize taxable gain or loss with respect to such fractional shares.
A Non-U.S. Holder (as defined in “Material Tax Considerations”) should not recognize gain or loss upon the exchange of Gener8 common shares for Euronav ordinary shares for U.S. federal income tax purposes. A Non-U.S. Holder receiving cash in lieu of fractional shares may recognize taxable gain or loss with respect to such fractional shares in certain circumstances.
See “Material Tax Considerations” for a discussion of the material U.S. federal income tax consequences of (i) the Merger and (ii) owning and disposing of Euronav ordinary shares.
Key Terms of the Merger Agreement
Conditions to the Merger Agreement (page 92)
As more fully described in this proxy statement/prospectus and in the Merger Agreement, the obligations of Euronav and Gener8 to complete the Merger are subject to the satisfaction of the following conditions:
•
no applicable law or order preventing or prohibiting the consummation of the Merger shall be in effect;
•
the Gener8 Shareholder Approval shall have been obtained;
•
the registration statement, of which this proxy statement/prospectus forms a part, shall have become effective under the U.S. Securities Act of 1933, as amended (which we refer to as the “U.S. Securities Act”) and shall not be subject to any stop order suspending the effectiveness of the registration statement or any proceedings initiated by the SEC seeking any such stop order; and
•
the Euronav ordinary shares included in the Merger Consideration shall have been approved for listing on the NYSE, subject to completion of the Merger and official notice of issuance.
The obligation of Gener8 to effect the Merger is further subject to the satisfaction or waiver by Gener8 of the following additional conditions:
•
the representations and warranties of Euronav and Merger Sub in the Merger Agreement shall be true and correct as of the closing of the Merger (which we refer to as the “Closing”), subject to certain standards, including materiality and material adverse effect qualifications described in the Merger Agreement;
•
all required filings shall have been made and all required approvals shall have been obtained (or waiting periods expired or terminated) under any antitrust laws applicable to the Merger;
•
receipt by Gener8 of all of the Specified Approvals on or prior to the Closing or Euronav shall have demonstrated to the reasonable satisfaction of the Gener8 Transaction Committee that Euronav has available, or will have available at the Closing, alternative financing sufficient to refinance any indebtedness for which the Specified Approvals are not obtained;
•
Euronav and Merger Sub shall have performed and complied with, in all material respects, all of the covenants and obligations required to be performed or complied with by them under the Merger Agreement on or prior to the date of Closing;
•
from the date of the Merger Agreement through the Closing, no event has occurred that has had a Parent Material Adverse Effect (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A);
•
Euronav shall have delivered to Gener8 a certificate of an executive officer of Euronav that certain of the above conditions have been satisfied and certifying as to the aggregate outstanding indebtedness of Euronav and its subsidiaries, as of the date of the Closing; and
•
Euronav shall have delivered to Gener8 a true and complete copy of each of the special report on the Contribution in Kind drawn up by the Euronav board of directors and unqualified the special report on such Contribution in Kind drawn up by Euronav’s auditors, each in accordance with article 602 of the Belgian Companies Code.
The obligations of Euronav and Merger Sub to effect the Merger are further subject to the satisfaction (or waiver) by Euronav of the following additional conditions:
•
the representations and warranties of Gener8 in the Merger Agreement shall be true and correct as of the Closing, subject to certain standards, including materiality and material adverse effect qualifications described in the Merger Agreement;
•
all required filings shall have been made and all required approvals shall have been obtained under any antitrust laws applicable to the Merger;
•
receipt by Euronav of all of the Specified Approvals on or prior to the Closing;
•
Gener8 shall have performed and complied, in all material respects, with each of the covenants and obligations required to be performed by it under the Merger Agreement on or prior to the date of the Closing
•
from the date of the Merger Agreement through the Closing, no event has occurred that has had a Company Material Adverse Effect (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A); and
•
Gener8 shall have delivered to Euronav a certificate of an executive officer of Gener8 that certain of the above conditions have been satisfied and certifying as to the aggregate outstanding indebtedness of Gener8 and its subsidiaries comprising the total long-term debt as of the date of the Closing.
No Solicitation by Gener8 of Alternative Proposals; Withdrawal of Board Recommendation (page 89)
As more fully described in this proxy statement/prospectus and in the Merger Agreement, and subject to the exceptions summarized below, Gener8 has agreed, subject to certain exceptions, not to (and to cause its subsidiaries and use reasonable best efforts to cause its and their representatives not to), among other things, directly or indirectly:
•
solicit, initiate or knowingly take any action to facilitate or encourage or assist any inquiries or the making of any Acquisition Proposal (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A);
•
enter into or participate in any discussions or negotiations with, or furnish any information relating to Gener8 or its subsidiaries or afford access to the business, properties, assets, personnel books or records of Gener8 to any third-party with respect to inquiries regarding, or the making of, an Acquisition Proposal;
•
qualify, withdraw, or modify or amend in a manner adverse to Euronav, the recommendation of either the Gener8 board of directors or the Gener8 Transaction Committee, or recommend any other Acquisition Proposal, or publicly propose to do any of the foregoing;
•
approve, endorse, recommend or enter into (or agree or publicly propose to do any of the foregoing) any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar agreement relating to an Acquisition Proposal, with the exception of a confidentiality agreement with a permitted third-party; or
•
grant any waiver, amendment or release under any standstill or confidentiality agreement or takeover statute or similar provision contained in Gener8’s charter documents other than a waiver of the obligations of third parties existing as of the date of the Merger Agreement not to seek from Gener8 any waiver of such third parties’ standstill obligations and granting a limited waiver if requested solely to enable such third parties to make an Acquisition Proposal to the Gener8 board of directors.
Under the terms of the Merger Agreement, Gener8 has agreed to (and to cause its subsidiaries to and instruct and use reasonable best efforts to cause its and their representatives to) immediately cease any existing solicitations, discussions or negotiations, if any, with any third-party that may have been ongoing with respect to an Acquisition Proposal conducted prior to December 20, 2017. Gener8 agreed to also request such third parties to promptly return or destroy all confidential information concerning Gener8 and its subsidiaries prior to December 20, 2017.
However, the Gener8 board of directors and the Gener8 Transaction Committee may, subject to certain conditions, qualify, withdraw, or modify or amend in a manner adverse to Euronav, the recommendation of either the Gener8 board of directors or the Gener8 Transaction Committee, or recommend any other Acquisition Proposal or publicly propose to do any of the foregoing if, in connection with the receipt of an Acquisition Proposal, the Gener8 board of directors or the Gener8 Transaction Committee determine in good faith that (i) such Acquisition Proposal constitutes or could reasonably be
expected to lead to a Superior Proposal (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A) and (ii) a failure of the Gener8 board of directors or the Gener8 Transaction Committee to take such action is reasonably likely to be inconsistent with its fiduciary duties to Gener8’s shareholders under applicable law. In addition, the Gener8 board of directors and the Gener8 Transaction Committee may, subject to certain exceptions and conditions, make an Adverse Recommendation Change if, in connection with a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal) affecting the business, assets or operations of Gener8 and occurring after December 20, 2017 that was not known or reasonably foreseeable by the Gener8 board of directors or the Gener8 Transaction Committee as of or prior to December 20, 2017, it determines in good faith that a failure of the Gener8 board of directors or the Gener8 Transaction Committee to take such action is reasonably likely to be inconsistent with its fiduciary duties to Gener8’s shareholders under applicable law.
Termination of the Merger Agreement (page 93)
The Merger Agreement provides for certain termination rights for Euronav and Gener8 (even after the receipt of the Gener8 Shareholder Approval). The Merger Agreement may be terminated at any time prior to the Effective Time of the Merger by mutual written agreement of Euronav and Gener8; or by either Euronav or Gener8, if:
•
the Effective Time of the Merger has not occurred on or before June 30, 2018 (which we refer to, as it may be extended, as the “End Date”); provided, that (1) if the Special Meeting shall not have occurred by such date and all other conditions to the Merger (other than obtaining Gener8 Shareholder Approval) shall have been satisfied or are capable of being satisfied by such date, then Euronav or Gener8 may extend the End Date to July 31, 2018 (unless the failure by the party proposing to extend the End Date to perform its obligations contained in the Merger Agreement is the principal cause of, or resulted in, the failure to consummate the Merger on or prior to the End Date), and (2) if the Special Meeting shall have been adjourned or postponed, the End Date will be extended by the period that the Special Meeting is adjourned or postponed;
•
the Gener8 Shareholder Approval has not been obtained after a vote has been taken and completed; or
•
any law or order prohibits any party from consummating the Merger and such prohibition shall have become final and not appealable.
The Merger Agreement may also be terminated by Euronav, if:
•
an Adverse Recommendation Change has occurred;
•
Gener8 shall have entered into a binding agreement (other than a confidentiality agreement) relating to any Acquisition Proposal;
•
prior to the taking of a vote to obtain the Gener8 Shareholder Approval, Gener8 intentionally and materially breaches any of its non-solicitation obligations under the Merger Agreement; or
•
Gener8 fails to perform any covenant or agreement (other than the non-solicitation obligations) in the Merger Agreement or any representation or warranty of Gener8 is untrue and in either case such failure has resulted or would reasonably be expected to result in a failure of certain conditions and has not been cured by the earlier of the End Date and twenty (20) days after the giving of written notice to Gener8 of such failure.
The Merger Agreement may also be terminated by Gener8 if:
•
Euronav fails to perform any covenant or agreement or any representation or warranty of Euronav or Merger Sub in the Merger Agreement is untrue and in either case such failure has resulted or would reasonably be expected to result in a failure of certain conditions and has not been cured by the earlier of the End Date and twenty (20) days after the giving of written notice to Euronav of such failure.
Voting Agreement and Proxies (page 96)
In connection with the entry into the Merger Agreement, Euronav and the Covered Shareholders entered into the Voting Agreement. The Voting Agreement requires the Covered Shareholders, representing approximately 42% of the issued and outstanding shares of Gener8 to (i) appear (in person or by proxy) at any meeting of the shareholders convened for the purpose of approving the Merger and the Merger Agreement and (ii) so long as neither the Gener8 Transaction Committee nor the Gener8 board of directors has made an Adverse Recommendation Change, vote the Covered Shares in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger, and against any action that would reasonably be expected to impede the Merger or result in a breach of the Merger Agreement or the Voting Agreement. If either the Gener8 Transaction Committee or the Gener8 board of directors does make an Adverse Recommendation Change, then the Covered Shareholders are each required to vote 50% of their respective Covered Shares in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger, and may vote their remaining Covered Shares in any manner they determine.
The Covered Shareholders further agreed during the term of the Voting Agreement not to, among other things, (i) transfer any of the Covered Shares, beneficial ownership thereof or any other interest thereby except to parties that are, or become, party to the Voting Agreement, (ii) take any action that Gener8 is prohibited to take under the non-solicitation provisions of the Merger Agreement, or (iii) directly or indirectly engage in any transaction constituting a Short Sale (as such term is defined in the Voting Agreement which is attached to this proxy statement/prospectus as
Annex B
) relating to Euronav ordinary shares, any security convertible into or exercisable or exchangeable for Euronav ordinary shares, or any other Euronav securities until the earlier of the consummation of the Merger or the termination of the Merger Agreement.
In addition, at the request (and expense) of Euronav, the Proxy Shareholders have agreed to grant to a representative of an affiliate of such Proxy Shareholders whereby, subject to the terms and conditions in the Proxies, such representative has the authority to direct the vote of Gener8 common shares owned by the Proxy Shareholders, representing in the aggregate approximately 6% of the issued and outstanding shares of Gener8, at the Special Meeting. In addition, the Proxy Shareholders have agreed, among other things, not to transfer or dispose any of their Gener8 common shares during the term of the Proxies unless the transferee agrees to be bound thereby. Please see the section “The Merger Agreement—Voting Agreement and Proxies”.
As of the date of this proxy statement/prospectus, shareholders representing approximately 48% of the issued and outstanding shares of Gener8, including certain current directors of Gener8, have entered into either the Voting Agreement or the Proxies.
Interests of Gener8’s Directors and Executive Officers in the Merger (page 74)
When considering your vote, you should be aware that certain Gener8 directors and executive officers have interests in the Merger that are different from, or in addition to, those of Gener8’s shareholders generally. These interests include:
•
the employment of Gener8’s executive officers will be terminated, and these individuals will be entitled to receive certain termination payments, transaction bonuses and prorated portions of minimum annual bonuses, as applicable;
•
the Merger Agreement provides for the termination and cancellation of Gener8 restricted stock units and Gener8 share options, which were previously granted to certain Gener8 executive officers and directors, in exchange for the right to receive certain consideration, including the Merger Consideration; and
•
the following interests of certain Gener8 directors: (i) Nicolas Busch’s interest in various tanker pools managed by entities related to the Navig8 Group, with which Mr. Busch is affiliated, (ii) Dan Ilany’s association with and employment by Avenue Capital Group, which had an investment in Euronav, and (iii) Steven Smith’s nomination to serve as a director of Euronav.
The Gener8 Transaction Committee and the Gener8 board of directors were aware of these interests and considered them, among other matters, in making their recommendations.
Please see the section “The Merger — Interests of Gener8’s Directors and Executive Officers in the Merger.”
Memoranda of Agreement to Purchase Three Vessels (page 98)
Concurrently with the execution of the Merger Agreement, Euronav and Gener8 executed and delivered three memoranda of agreement (“MOAs”) with respect to the
Gener8 Hera
, the
Gener8 Athena
and the
Gener8 Neptune
which contemplate the purchase by Euronav of these three vessels from Gener8 at a total purchase price of $220.9 million if the Merger is not consummated, other than as a result of a breach of the Merger Agreement by Euronav. A portion of the purchase price of each of the three vessels can be offset by up to one-third of the $39 million termination fee contemplated by the Merger Agreement in the case of a termination of the Merger Agreement in circumstances that trigger the termination fee.
Sale of Six VLCC Vessels (page 98)
Subject to the consummation of the Merger, among other conditions, International Seaways, Inc., or International Seaways, an unaffiliated third-party of Euronav, Gener8 and Merger Sub, has agreed to purchase from the Surviving Corporation 100% of the issued and outstanding stock of Gener8’s wholly-owned subsidiary Gener8 Maritime VII Inc., which owns six VLCC vessels, at the Closing for an aggregate purchase price of $434 million.
Rights as a Euronav Shareholder Will Be Different from Rights as a Holder of Gener8 Common Shares (page 119)
As a result of the Merger, holders of Gener8 common shares will become Euronav shareholders and, as such, their rights will be governed principally by Euronav’s articles of incorporation and bylaws. These rights differ from the existing rights of holders of Gener8 common shares, which are governed principally by Gener8’s articles of incorporation and bylaws. Euronav is governed by Belgian law and Gener8 is governed by the BCA. For a summary of the material differences between the rights of Euronav shareholders and the existing rights of holders of Gener8 common shares, see the section “Comparison of Rights of Euronav Shareholders and Holders of Gener8 Common Shares.”
Risk Factors (page 21)
You should consider all the information contained in or incorporated by reference into this proxy statement/prospectus in deciding how to vote for the proposals presented in this proxy statement/prospectus. In particular, you should consider the factors described under “Risk Factors.”
SELECTED HISTORICAL CONSOLIDATED FINANCIAL AND OTHER DATA OF EURONAV
The following selected historical consolidated financial data has been derived from (1) Euronav’s unaudited condensed consolidated financial statements of Euronav for the nine months ended September 30, 2017 and September 30, 2016, and (2) the audited consolidated financial statements of Euronav and related notes for the fiscal years ended December 31, 2016, 2015, 2014, 2013 and 2012, which have been prepared in accordance with International Financial Reporting Standards, or IFRS, as issued by the International Accounting Standards Board, or IASB.
The following information is only a summary and is not necessarily indicative of Euronav’s results of future operations and should be read in conjunction with and is qualified in its entirety by reference to Euronav’s consolidated financial statements, the related notes thereto, and “
Management’s Discussion and Analysis of Financial Condition and Results of Operations
” included in Euronav’s Report on Form 6-K, as filed with the SEC on February 14, 2018 and Annual Report on Form 20-F for the fiscal year ended December 31, 2016, as filed with the SEC on April 14, 2017, each of which is incorporated by reference into this proxy statement/prospectus.
|
|
|
|
Years Ended December 31,
|
|
|
Nine Months Ended
|
|
Consolidated Statement of Profit or
Loss Data
|
|
|
2016
|
|
|
2015
|
|
|
2014
|
|
|
2013
|
|
|
2012
|
|
|
September 30,
2017
|
|
|
September 30,
2016
|
|
|
|
|
|
(US$ in thousands, except per share data)
|
|
|
Revenue
|
|
|
|
|
684,265
|
|
|
|
|
|
846,507
|
|
|
|
|
|
473,985
|
|
|
|
|
|
304,622
|
|
|
|
|
|
320,836
|
|
|
|
|
|
395,390
|
|
|
|
|
|
537,984
|
|
|
|
Gains on disposal of vessels/other tangible assets
|
|
|
|
|
50,397
|
|
|
|
|
|
13,302
|
|
|
|
|
|
13,122
|
|
|
|
|
|
8
|
|
|
|
|
|
10,067
|
|
|
|
|
|
20
|
|
|
|
|
|
13,821
|
|
|
|
Other operating income
|
|
|
|
|
6,996
|
|
|
|
|
|
7,426
|
|
|
|
|
|
11,411
|
|
|
|
|
|
11,520
|
|
|
|
|
|
10,478
|
|
|
|
|
|
3,882
|
|
|
|
|
|
5,533
|
|
|
|
Voyage expenses and
commissions
|
|
|
|
|
(59,560
)
|
|
|
|
|
|
(71,237
)
|
|
|
|
|
|
(118,303
)
|
|
|
|
|
|
(79,584
)
|
|
|
|
|
|
(72,100
)
|
|
|
|
|
|
(47,778
)
|
|
|
|
|
|
(43,077
)
|
|
|
|
Vessel operating expenses
|
|
|
|
|
(160,199
)
|
|
|
|
|
|
(153,718
)
|
|
|
|
|
|
(124,089
)
|
|
|
|
|
|
(105,911
)
|
|
|
|
|
|
(109,538
)
|
|
|
|
|
|
(116,475
)
|
|
|
|
|
|
(122,838
)
|
|
|
|
Charter hire expenses
|
|
|
|
|
(17,713
)
|
|
|
|
|
|
(25,849
)
|
|
|
|
|
|
(35,664
)
|
|
|
|
|
|
(21,031
)
|
|
|
|
|
|
(28,920
)
|
|
|
|
|
|
(23,329
)
|
|
|
|
|
|
(14,794
)
|
|
|
|
Losses on disposal of vessels/other tangible assets
|
|
|
|
|
(2
)
|
|
|
|
|
|
(8,002
)
|
|
|
|
|
|
—
|
|
|
|
|
|
(215
)
|
|
|
|
|
|
(32,080
)
|
|
|
|
|
|
(21,027
)
|
|
|
|
|
|
(2
)
|
|
|
|
Impairment on non-current assets held for sale
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(7,416
)
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Loss on disposal of investments in equity accounted
investees
|
|
|
|
|
(24,150
)
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(24,150
)
|
|
|
|
Depreciation tangible assets
|
|
|
|
|
(227,664
)
|
|
|
|
|
|
(210,156
)
|
|
|
|
|
|
(160,934
)
|
|
|
|
|
|
(136,882
)
|
|
|
|
|
|
(146,881
)
|
|
|
|
|
|
(173,373
)
|
|
|
|
|
|
(168,510
)
|
|
|
|
Depreciation intangible assets
|
|
|
|
|
(99
)
|
|
|
|
|
|
(50
)
|
|
|
|
|
|
(20
)
|
|
|
|
|
|
(76
)
|
|
|
|
|
|
(181
)
|
|
|
|
|
|
(72
)
|
|
|
|
|
|
(75
)
|
|
|
|
General and administrative expenses
|
|
|
|
|
(44,051
)
|
|
|
|
|
|
(46,251
)
|
|
|
|
|
|
(40,565
)
|
|
|
|
|
|
(27,165
)
|
|
|
|
|
|
(30,797
)
|
|
|
|
|
|
(33,132
)
|
|
|
|
|
|
(32,634
)
|
|
|
|
Result from operating
activities
|
|
|
|
|
208,220
|
|
|
|
|
|
351,972
|
|
|
|
|
|
11,527
|
|
|
|
|
|
(54,714
)
|
|
|
|
|
|
(79,117
)
|
|
|
|
|
|
(15,894
)
|
|
|
|
|
|
151,258
|
|
|
|
Finance income
|
|
|
|
|
6,855
|
|
|
|
|
|
3,312
|
|
|
|
|
|
2,617
|
|
|
|
|
|
1,993
|
|
|
|
|
|
5,349
|
|
|
|
|
|
5,258
|
|
|
|
|
|
3,465
|
|
|
|
Finance expenses
|
|
|
|
|
(51,695
)
|
|
|
|
|
|
(50,942
)
|
|
|
|
|
|
(95,970
)
|
|
|
|
|
|
(54,637
)
|
|
|
|
|
|
(55,507
)
|
|
|
|
|
|
(36,662
)
|
|
|
|
|
|
(32,218
)
|
|
|
|
Net finance expense
|
|
|
|
|
(44,840
)
|
|
|
|
|
|
(47,630
)
|
|
|
|
|
|
(93,353
)
|
|
|
|
|
|
(52,644
)
|
|
|
|
|
|
(50,158
)
|
|
|
|
|
|
(31,404
)
|
|
|
|
|
|
(28,753
)
|
|
|
|
Share of profit (loss) of equity accounted investees (net of income tax)
|
|
|
|
|
40,495
|
|
|
|
|
|
51,592
|
|
|
|
|
|
30,286
|
|
|
|
|
|
17,853
|
|
|
|
|
|
9,953
|
|
|
|
|
|
28,029
|
|
|
|
|
|
31,558
|
|
|
|
Profit (loss) before income tax
|
|
|
|
|
203,875
|
|
|
|
|
|
355,934
|
|
|
|
|
|
(51,540
)
|
|
|
|
|
|
(89,505
)
|
|
|
|
|
|
(119,322
)
|
|
|
|
|
|
(19,269
)
|
|
|
|
|
|
154,063
|
|
|
|
Income tax benefit/(expense)
|
|
|
|
|
174
|
|
|
|
|
|
(5,633
)
|
|
|
|
|
|
5,743
|
|
|
|
|
|
(178
)
|
|
|
|
|
|
726
|
|
|
|
|
|
1,297
|
|
|
|
|
|
(301
)
|
|
|
|
Profit (loss) for the period
|
|
|
|
|
204,049
|
|
|
|
|
|
350,301
|
|
|
|
|
|
(45,797
)
|
|
|
|
|
|
(89,683
)
|
|
|
|
|
|
(118,596
)
|
|
|
|
|
|
(17,972
)
|
|
|
|
|
|
153,762
|
|
|
|
Attributable to:
|
|
|
|
|
|
|
|
|
|
Owners of the Company
|
|
|
|
|
204,049
|
|
|
|
|
|
350,301
|
|
|
|
|
|
(45,797
)
|
|
|
|
|
|
(89,683
)
|
|
|
|
|
|
(118,596
)
|
|
|
|
|
|
(17,972
)
|
|
|
|
|
|
153,762
|
|
|
|
Basic earnings per share
|
|
|
|
|
1.29
|
|
|
|
|
|
2.25
|
|
|
|
|
|
(0.39
)
|
|
|
|
|
|
(1.79
)
|
|
|
|
|
|
(2.37
)
|
|
|
|
|
|
-0.11
|
|
|
|
|
|
0.97
|
|
|
|
Diluted earnings per share
|
|
|
|
|
1.29
|
|
|
|
|
|
2.22
|
|
|
|
|
|
(0.39
)
|
|
|
|
|
|
(1.79
)
|
|
|
|
|
|
(2.37
)
|
|
|
|
|
|
-0.11
|
|
|
|
|
|
0.97
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
Nine Months
Ended
September 30,
2017
|
|
Consolidated Statement of Financial Position
Data (at Period End)
|
|
|
2016
|
|
|
2015
|
|
|
2014
|
|
|
2013
|
|
|
2012
|
|
|
|
|
|
(US$ in thousands)
|
|
|
Cash and cash equivalents
|
|
|
|
|
206,689
|
|
|
|
|
|
131,663
|
|
|
|
|
|
254,086
|
|
|
|
|
|
74,309
|
|
|
|
|
|
113,051
|
|
|
|
|
|
97,199
|
|
|
|
Vessels
|
|
|
|
|
2,383,163
|
|
|
|
|
|
2,288,036
|
|
|
|
|
|
2,258,334
|
|
|
|
|
|
1,434,800
|
|
|
|
|
|
1,592,837
|
|
|
|
|
|
2,364,003
|
|
|
|
Assets under construction
|
|
|
|
|
86,136
|
|
|
|
|
|
93,890
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
50,634
|
|
|
|
Current and non-current bank loans
|
|
|
|
|
1,085,562
|
|
|
|
|
|
1,052,448
|
|
|
|
|
|
1,234,329
|
|
|
|
|
|
847,763
|
|
|
|
|
|
911,474
|
|
|
|
|
|
744,736
|
|
|
|
Equity attributable to Owners of the Company
|
|
|
|
|
1,887,956
|
|
|
|
|
|
1,905,749
|
|
|
|
|
|
1,472,708
|
|
|
|
|
|
800,990
|
|
|
|
|
|
866,970
|
|
|
|
|
|
1,826,763
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
Nine Months Ended
|
|
|
Cash flow data
|
|
|
2016
|
|
|
2015
|
|
|
2014
|
|
|
2013
|
|
|
2012
|
|
|
September 30,
2017
|
|
|
September 30,
2016
|
|
|
|
|
|
(US$ in thousands)
|
|
|
Net cash inflow/(outflow)
|
|
|
|
|
|
|
|
|
|
Operating activities
|
|
|
|
|
438,202
|
|
|
|
|
|
450,532
|
|
|
|
|
|
14,782
|
|
|
|
|
|
(8,917
)
|
|
|
|
|
|
69,812
|
|
|
|
|
|
174,669
|
|
|
|
|
|
365,824
|
|
|
|
Investing activities
|
|
|
|
|
(100,615
)
|
|
|
|
|
|
(205,873
)
|
|
|
|
|
|
(1,023,007
)
|
|
|
|
|
|
28,114
|
|
|
|
|
|
(86,986
)
|
|
|
|
|
|
(113,083
)
|
|
|
|
|
|
(224,818
)
|
|
|
|
Financing activities
|
|
|
|
|
(261,160
)
|
|
|
|
|
|
(365,315
)
|
|
|
|
|
|
1,189,021
|
|
|
|
|
|
(57,384
)
|
|
|
|
|
|
(33,117
)
|
|
|
|
|
|
(171,913
)
|
|
|
|
|
|
(181,581
)
|
|
|
SELECTED HISTORICAL CONSOLIDATED FINANCIAL AND OTHER DATA OF GENER8
The following selected historical consolidated financial data has been taken from (1) the unaudited consolidated financial statements of Gener8 for the nine months ended September 30, 2017 and September 30, 2016, and (2) the audited consolidated financial statements of Gener8 and related notes for the fiscal years ended December 31, 2016, 2015, 2014 and 2013, all of which have been prepared in accordance with U.S. GAAP.
The data set forth below is not necessarily indicative of Gener8’s results of future operations and should be read in conjunction with Gener8’s “
Management’s Discussion and Analysis of Financial Condition and Results of Operations
” included in Gener8’s Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2017, as filed with the SEC on November 9, 2017 and Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as filed with the SEC on March 13, 2017, each of which is incorporated by reference into this proxy statement/prospectus.
|
|
|
|
Years Ended December 31,
|
|
|
Nine Months Ended
|
|
|
|
|
|
2016
|
|
|
2015
|
|
|
2014
|
|
|
2013
|
|
|
September 30,
2017
|
|
|
September 30,
2016
|
|
|
|
|
|
(dollars and shares in thousands, except per share data)
|
|
|
Statement of Profit or Loss Data:
|
|
|
|
|
|
|
|
|
Voyage revenues
|
|
|
|
$
|
404,622
|
|
|
|
|
$
|
429,933
|
|
|
|
|
$
|
392,409
|
|
|
|
|
$
|
356,669
|
|
|
|
|
|
248,987
|
|
|
|
|
|
302,261
|
|
|
|
Voyage expenses
|
|
|
|
|
12,490
|
|
|
|
|
|
95,306
|
|
|
|
|
|
239,906
|
|
|
|
|
|
259,982
|
|
|
|
|
|
6,987
|
|
|
|
|
|
9,710
|
|
|
|
Direct vessel operating expenses
|
|
|
|
|
107,308
|
|
|
|
|
|
85,521
|
|
|
|
|
|
84,209
|
|
|
|
|
|
90,297
|
|
|
|
|
|
83,225
|
|
|
|
|
|
77,041
|
|
|
|
Navig8 charterhire expenses
|
|
|
|
|
3,059
|
|
|
|
|
|
11,324
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
6
|
|
|
|
|
|
3,240
|
|
|
|
General and administrative expenses
|
|
|
|
|
27,844
|
|
|
|
|
|
36,379
|
|
|
|
|
|
22,418
|
|
|
|
|
|
21,814
|
|
|
|
|
|
24,988
|
|
|
|
|
|
22,240
|
|
|
|
Depreciation and amortization
|
|
|
|
|
87,191
|
|
|
|
|
|
47,572
|
|
|
|
|
|
46,118
|
|
|
|
|
|
45,903
|
|
|
|
|
|
80,127
|
|
|
|
|
|
60,622
|
|
|
|
Goodwill impairment
|
|
|
|
|
23,297
|
|
|
|
|
|
—
|
|
|
|
|
|
2,099
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
26,291
|
|
|
|
Loss on impairment of vessels held for sale
|
|
|
|
|
—
|
|
|
|
|
|
520
|
|
|
|
|
|
—
|
|
|
|
|
|
2,048
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Goodwill write-off for sales of vessels
|
|
|
|
|
2,994
|
|
|
|
|
|
—
|
|
|
|
|
|
1,249
|
|
|
|
|
|
1,068
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Loss on disposal of vessels, net
|
|
|
|
|
24,169
|
|
|
|
|
|
805
|
|
|
|
|
|
8,729
|
|
|
|
|
|
2,452
|
|
|
|
|
|
114,644
|
|
|
|
|
|
10,177
|
|
|
|
Closing of Portugal office
|
|
|
|
|
—
|
|
|
|
|
|
507
|
|
|
|
|
|
5,123
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
|
|
288,352
|
|
|
|
|
|
277,934
|
|
|
|
|
|
409,851
|
|
|
|
|
|
423,564
|
|
|
|
|
|
309,977
|
|
|
|
|
|
209,321
|
|
|
|
OPERATING INCOME/(LOSS)
|
|
|
|
|
116,270
|
|
|
|
|
|
151,999
|
|
|
|
|
|
(17,442
)
|
|
|
|
|
|
(66,895
)
|
|
|
|
|
|
(60,990
)
|
|
|
|
|
|
92,940
|
|
|
|
Interest expense, net
|
|
|
|
|
(49,627
)
|
|
|
|
|
|
(15,982
)
|
|
|
|
|
|
(29,849
)
|
|
|
|
|
|
(34,643
)
|
|
|
|
|
|
(63,040
)
|
|
|
|
|
|
(31,355
)
|
|
|
|
Other financing costs
|
|
|
|
|
(7
)
|
|
|
|
|
|
(6,044
)
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
(55
)
|
|
|
|
|
|
(8
)
|
|
|
|
Other income (expense), net
|
|
|
|
|
670
|
|
|
|
|
|
(404
)
|
|
|
|
|
|
207
|
|
|
|
|
|
465
|
|
|
|
|
|
936
|
|
|
|
|
|
(75
)
|
|
|
|
Total other expenses
|
|
|
|
|
(48,964
)
|
|
|
|
|
|
(22,430
)
|
|
|
|
|
|
(29,642
)
|
|
|
|
|
|
(34,178
)
|
|
|
|
|
|
(62,159
)
|
|
|
|
|
|
(31,438
)
|
|
|
|
NET INCOME/(LOSS)
|
|
|
|
$
|
67,306
|
|
|
|
|
$
|
129,569
|
|
|
|
|
$
|
(47,084
)
|
|
|
|
|
$
|
(101,073
)
|
|
|
|
|
|
(123,149
)
|
|
|
|
|
|
61,502
|
|
|
|
INCOME/(LOSS) PER COMMON SHARE:
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
$
|
0.81
|
|
|
|
|
$
|
2.06
|
|
|
|
|
$
|
(1.54
)
|
|
|
|
|
$
|
(8.64
)
|
|
|
|
|
|
(1.48
)
|
|
|
|
|
|
0.74
|
|
|
|
Diluted
|
|
|
|
$
|
0.81
|
|
|
|
|
$
|
2.05
|
|
|
|
|
$
|
(1.54
)
|
|
|
|
|
$
|
(8.64
)
|
|
|
|
|
|
(1.48
)
|
|
|
|
|
|
0.74
|
|
|
|
Weighted-average shares outstanding – basic
|
|
|
|
|
|
|
|
|
Common shares
|
|
|
|
|
82,705
|
|
|
|
|
|
62,779
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
82,976
|
|
|
|
|
|
82,681
|
|
|
|
Class A
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
11,270
|
|
|
|
|
|
11,238
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Class B
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
19,223
|
|
|
|
|
|
589
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Weighted-average shares outstanding – diluted
|
|
|
|
|
|
|
|
|
Common shares
|
|
|
|
|
82,705
|
|
|
|
|
|
63,113
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
82,976
|
|
|
|
|
|
82,681
|
|
|
|
Class A
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
30,493
|
|
|
|
|
|
11,827
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
Class B
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
19,223
|
|
|
|
|
|
589
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
December 31,
2016
|
|
|
December 31,
2015
|
|
|
December 31,
2014
|
|
|
December 31,
2013
|
|
|
September 30,
2017
|
|
|
September 30,
2016
|
|
|
|
|
|
(dollars in thousands)
|
|
|
Statement of Financial Position Data, at end of year/period:
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
$
|
94,681
|
|
|
|
|
$
|
157,535
|
|
|
|
|
$
|
147,303
|
|
|
|
|
$
|
97,707
|
|
|
|
|
$
|
184,677
|
|
|
|
|
$
|
94,681
|
|
|
|
Total current assets
|
|
|
|
|
215,285
|
|
|
|
|
|
258,128
|
|
|
|
|
|
230,662
|
|
|
|
|
|
200,688
|
|
|
|
|
|
274,050
|
|
|
|
|
|
215,285
|
|
|
|
Vessels, net of accumulated depreciation
|
|
|
|
|
2,523,710
|
|
|
|
|
|
1,086,877
|
|
|
|
|
|
814,528
|
|
|
|
|
|
873,435
|
|
|
|
|
|
2,322,111
|
|
|
|
|
|
2,523,710
|
|
|
|
Vessels under construction
|
|
|
|
|
177,133
|
|
|
|
|
|
911,017
|
|
|
|
|
|
257,581
|
|
|
|
|
|
—
|
|
|
|
|
|
62,537
|
|
|
|
|
|
177,133
|
|
|
|
Total assets
|
|
|
|
|
2,992,669
|
|
|
|
|
|
2,389,746
|
|
|
|
|
|
1,359,120
|
|
|
|
|
|
1,120,747
|
|
|
|
|
|
2,704,944
|
|
|
|
|
|
2,992,669
|
|
|
|
Current liabilities (including current portion of long-term debt)
|
|
|
|
|
216,566
|
|
|
|
|
|
268,615
|
|
|
|
|
|
52,770
|
|
|
|
|
|
79,508
|
|
|
|
|
|
168,687
|
|
|
|
|
|
216,566
|
|
|
|
Long-term debt less unamortized discount and debt financing costs
|
|
|
|
|
1,337,782
|
|
|
|
|
|
772,723
|
|
|
|
|
|
789,030
|
|
|
|
|
|
675,445
|
|
|
|
|
|
1,222,243
|
|
|
|
|
|
1,337,782
|
|
|
|
Total liabilities
|
|
|
|
|
1,555,258
|
|
|
|
|
|
1,041,985
|
|
|
|
|
|
841,971
|
|
|
|
|
|
755,057
|
|
|
|
|
|
1,392,206
|
|
|
|
|
|
1,555,258
|
|
|
|
Shareholders’ equity
|
|
|
|
|
1,437,411
|
|
|
|
|
|
1,347,761
|
|
|
|
|
|
517,149
|
|
|
|
|
|
365,690
|
|
|
|
|
|
1,312,738
|
|
|
|
|
|
1,437,411
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
Nine Months Ended
|
|
|
|
|
|
2016
|
|
|
2015
|
|
|
2014
|
|
|
2013
|
|
|
2017
|
|
|
2016
|
|
|
|
|
|
(dollars in thousands)
|
|
|
Cash Flow Data:
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) operating activities
|
|
|
|
$
|
258,932
|
|
|
|
|
$
|
155,889
|
|
|
|
|
$
|
(11,797
)
|
|
|
|
|
$
|
(40,472
)
|
|
|
|
|
$
|
142,873
|
|
|
|
|
$
|
237,118
|
|
|
|
Net cash provided by (used in) investing activities
|
|
|
|
|
(902,959
)
|
|
|
|
|
|
(398,858
)
|
|
|
|
|
|
(238,019
)
|
|
|
|
|
|
4,302
|
|
|
|
|
|
132,169
|
|
|
|
|
|
(751,447
)
|
|
|
|
Net cash provided by (used in) financing activities
|
|
|
|
|
581,173
|
|
|
|
|
|
252,863
|
|
|
|
|
|
299,417
|
|
|
|
|
|
104,901
|
|
|
|
|
|
(185,046
)
|
|
|
|
|
|
456,840
|
|
|
SELECTED UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL DATA
The following summary unaudited pro forma condensed combined financial information is as of and for the nine months ended September 30, 2017 and for the fiscal year ended December 31, 2016. The unaudited pro forma condensed combined statement of profit or loss gives effect to the combination as if it happened on January 1, 2016 and the unaudited pro forma condensed combined statement of financial position gives effect to the combination as if it occurred on September 30, 2017. References to the “Combined Company” in this section and throughout this proxy statement/prospectus are to the combined entity resulting from the Merger. The selected unaudited pro forma condensed combined financial data presented below is based on, and should be read together with, the historical financial statements of Euronav and Gener8 that are contained in their respective filings with the SEC and incorporated by reference herein and the unaudited pro forma condensed combined financial statements that appear elsewhere in this proxy statement/prospectus. See “
Unaudited Pro Forma Condensed Combined Financial Statements
.” For purposes of preparing the unaudited pro forma condensed combined financial information, Gener8’s historical audited financial statements prepared under U.S. GAAP were reconciled to IFRS, based on a preliminary IFRS analysis. No material adjustments were identified as a result of this exercise. Neither the reconciliation to IFRS nor the resulting pro forma financial information have been audited.
The unaudited pro forma condensed combined financial statements are not intended to represent or be indicative of the consolidated results of operations or financial position that would have been reported had the Merger been completed as of the dates presented, and should not be taken as representative of the future consolidated results of operations or financial position of the Combined Company. The unaudited pro forma condensed combined financial statements are based upon available information and certain assumptions that Euronav’s management believes are reasonable.
|
|
|
|
For the
nine months
ended
September 30, 2017
|
|
|
For the
year ended
December 31, 2016
|
|
|
|
|
|
(in thousands of U.S. Dollars except
for share and per share amounts)
|
|
|
Unaudited Pro Forma Condensed Combined Statement of Profit or Loss
|
|
|
|
|
Revenue
|
|
|
|
|
583,873
|
|
|
|
|
|
1,040,070
|
|
|
|
Result from operating activities
|
|
|
|
|
(125,339
)
|
|
|
|
|
|
288,073
|
|
|
|
Profit (loss) for the period
|
|
|
|
|
(162,746
)
|
|
|
|
|
|
263,897.31
|
|
|
|
Per Share Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic weighted average shares outstanding
|
|
|
|
|
218,982,298
|
|
|
|
|
|
219,078,032
|
|
|
|
Diluted weighted average shares outstanding
|
|
|
|
|
219,111,485
|
|
|
|
|
|
219,244,821
|
|
|
|
Basic earnings per share
|
|
|
|
|
(0.74
)
|
|
|
|
|
|
1.20
|
|
|
|
Diluted earnings per share
|
|
|
|
|
(0.74
)
|
|
|
|
|
|
1.20
|
|
|
|
|
|
|
As of
September 30, 2017
|
|
|
|
|
|
(in thousands of U.S. Dollars)
|
|
|
Unaudited Pro Forma Condensed Combined Statement of Financial Position
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
|
391,580
|
|
|
|
Vessels and drydock
|
|
|
|
|
3,626,493
|
|
|
|
Assets under construction
|
|
|
|
|
99,091
|
|
|
|
Total assets
|
|
|
|
|
4,589,571
|
|
|
|
Current and non-current debt
|
|
|
|
|
2,031,783
|
|
|
|
Shareholders’ equity
|
|
|
|
|
2,399,684
|
|
|
UNAUDITED COMPARATIVE PER SHARE DATA
The following tables set forth certain historical and pro forma per share financial information for Euronav ordinary shares and Gener8 common shares. The following information should be read in conjunction with the audited financial statements of Euronav and Gener8, which are incorporated by reference in this proxy statement/prospectus, and the financial information contained in “
Selected Historical Financial Information and Other Data
and
Unaudited Pro Forma Condensed Combined Financial Information and Data
” of this proxy statement/prospectus, beginning on page 11 and page 99, respectively. For purposes of preparing the unaudited pro forma condensed combined financial information, Gener8’s historical audited financial statements prepared under U.S. GAAP were reconciled to IFRS, based on a preliminary IFRS analysis. No material adjustments were identified as a result of this exercise. Neither the reconciliation to IFRS nor the resulting pro forma financial information have been audited. The unaudited pro forma information below is presented for informational purposes only and is not necessarily indicative of the operating results or financial position that would have occurred if the transactions had been completed as of the periods presented, nor is it necessarily indicative of the future operating results or financial position of the Combined Company. In addition, the unaudited pro forma information does not purport to indicate statement of financial position data or results of operations data as of any future date or for any future period.
|
|
|
|
As of and
for the
nine months
ended
September 30, 2017
|
|
|
As of and
for the
year ended
December 31, 2016
|
|
|
Euronav Historical Data Per Ordinary Share
|
|
|
|
|
Basic and diluted net income/(loss) per share from continuing operations
|
|
|
|
$
|
(0.11
)
|
|
|
|
|
$
|
1.29
|
|
|
|
Cash dividends declared per share
|
|
|
|
$
|
0.06
|
|
|
|
|
$
|
0.77
|
|
|
|
Book value per share
|
|
|
|
$
|
11.55
|
|
|
|
|
$
|
12.13
|
|
|
|
|
|
|
As of and
for the
nine months
ended
September 30, 2017
|
|
|
As of and
for the
year ended
December 31, 2016
|
|
|
Gener8 Historical Data Per Common Share
|
|
|
|
|
Basic and diluted net income/(loss) per share from continuing operations
|
|
|
|
$
|
(1.48
)
|
|
|
|
|
$
|
0.81
|
|
|
|
Cash dividends declared per share
|
|
|
|
$
|
—
|
|
|
|
|
$
|
—
|
|
|
|
Book value per share
|
|
|
|
$
|
15.82
|
|
|
|
|
$
|
17.38
|
|
|
|
|
|
|
As of and
for the
nine months
ended
September 30, 2017
|
|
|
Combined Unaudited Pro Forma Data Per Share
|
|
|
|
Basic and diluted net income/(loss) per share from continuing operations
|
|
|
|
$
|
(0.74
)
|
|
|
|
Cash dividends declared per share
|
|
|
|
$
|
0.04
|
|
|
|
Book value per share
|
|
|
|
$
|
10.96
|
|
|
COMPARATIVE PER SHARE MARKET PRICE AND DIVIDEND INFORMATION
Euronav’s ordinary shares are listed on the NYSE and Euronext under the symbol “EURN.” Gener8’s common shares are listed on the NYSE under the symbol “GNRT.” The table below sets forth, for the periods indicated, the per share high and low closing prices for Euronav ordinary shares as reported on the NYSE and Euronext and for Gener8 as reported on the NYSE.
|
|
|
|
Euronav
Ordinary Shares
NYSE
|
|
|
Euronav
Ordinary Shares
Euronext
|
|
|
Gener8
Common Shares
NYSE
|
|
|
|
|
|
High
|
|
|
Low
|
|
|
High
|
|
|
Low
|
|
|
High
|
|
|
Low
|
|
|
|
|
|
(in US$)
|
|
|
(in €)*
|
|
|
(in US$)
|
|
|
For the Year Ended
|
|
|
|
|
|
|
|
|
December 31, 2017
|
|
|
|
$
|
9.25
|
|
|
|
|
$
|
6.90
|
|
|
|
|
€
|
8.01
|
|
|
|
|
€
|
6.05
|
|
|
|
|
$
|
6.62
|
|
|
|
|
$
|
4.19
|
|
|
|
December 31, 2016
|
|
|
|
|
13.44
|
|
|
|
|
|
6.70
|
|
|
|
|
|
12.44
|
|
|
|
|
|
6.40
|
|
|
|
|
|
9.08
|
|
|
|
|
|
3.56
|
|
|
|
December 31, 2015
|
|
|
|
|
16.32
|
|
|
|
|
|
10.95
|
|
|
|
|
|
15.10
|
|
|
|
|
|
9.60
|
|
|
|
|
|
14.37
|
|
|
|
|
|
8.70
|
|
|
|
December 31, 2014
|
|
|
|
|
*
|
|
|
|
|
|
*
|
|
|
|
|
|
10.50
|
|
|
|
|
|
7.35
|
|
|
|
|
|
***
|
|
|
|
|
December 31, 2013
|
|
|
|
|
*
|
|
|
|
|
|
*
|
|
|
|
|
|
8.00
|
|
|
|
|
|
3.05
|
|
|
|
|
|
***
|
|
|
|
|
For the Quarter Ended
|
|
|
|
|
|
|
|
|
December 31, 2017
|
|
|
|
|
9.25
|
|
|
|
|
|
8.00
|
|
|
|
|
|
7.73
|
|
|
|
|
|
6.84
|
|
|
|
|
|
6.62
|
|
|
|
|
|
4.19
|
|
|
|
September 30, 2017
|
|
|
|
|
8.10
|
|
|
|
|
|
6.90
|
|
|
|
|
|
6.98
|
|
|
|
|
|
6.05
|
|
|
|
|
|
5.90
|
|
|
|
|
|
4.22
|
|
|
|
June 30, 2017
|
|
|
|
|
8.25
|
|
|
|
|
|
7.20
|
|
|
|
|
|
7.65
|
|
|
|
|
|
6.49
|
|
|
|
|
|
6.12
|
|
|
|
|
|
4.82
|
|
|
|
March 31, 2017
|
|
|
|
|
8.55
|
|
|
|
|
|
7.65
|
|
|
|
|
|
8.01
|
|
|
|
|
|
7.18
|
|
|
|
|
|
5.72
|
|
|
|
|
|
4.29
|
|
|
|
December 31, 2016
|
|
|
|
|
8.26
|
|
|
|
|
|
6.70
|
|
|
|
|
|
7.72
|
|
|
|
|
|
6.40
|
|
|
|
|
|
5.56
|
|
|
|
|
|
3.56
|
|
|
|
September 30, 2016
|
|
|
|
|
9.44
|
|
|
|
|
|
7.43
|
|
|
|
|
|
8.46
|
|
|
|
|
|
6.81
|
|
|
|
|
|
6.30
|
|
|
|
|
|
4.87
|
|
|
|
June 30, 2016
|
|
|
|
|
11.37
|
|
|
|
|
|
8.79
|
|
|
|
|
|
10.07
|
|
|
|
|
|
7.95
|
|
|
|
|
|
8.13
|
|
|
|
|
|
5.84
|
|
|
|
March 31, 2016
|
|
|
|
|
13.44
|
|
|
|
|
|
9.54
|
|
|
|
|
|
12.44
|
|
|
|
|
|
8.67
|
|
|
|
|
|
9.08
|
|
|
|
|
|
5.04
|
|
|
|
December 31, 2015
|
|
|
|
|
16.02
|
|
|
|
|
|
12.65
|
|
|
|
|
|
14.22
|
|
|
|
|
|
11.45
|
|
|
|
|
|
12.18
|
|
|
|
|
|
8.70
|
|
|
|
September 30, 2015
|
|
|
|
|
16.32
|
|
|
|
|
|
12.14
|
|
|
|
|
|
15.10
|
|
|
|
|
|
10.89
|
|
|
|
|
|
14.37
|
|
|
|
|
|
10.95
|
|
|
|
Most Recent Six Months
|
|
|
|
|
|
|
|
|
February 2018 (through and Including February 13, 2018)
|
|
|
|
|
8.45
|
|
|
|
|
|
7.75
|
|
|
|
|
|
6.84
|
|
|
|
|
|
6.33
|
|
|
|
|
|
5.91
|
|
|
|
|
|
5.33
|
|
|
|
January 2018
|
|
|
|
|
9.55
|
|
|
|
|
|
8.80
|
|
|
|
|
|
7.96
|
|
|
|
|
|
6.98
|
|
|
|
|
|
6.82
|
|
|
|
|
|
5.87
|
|
|
|
December 2017
|
|
|
|
|
9.25
|
|
|
|
|
|
8.10
|
|
|
|
|
|
7.73
|
|
|
|
|
|
6.84
|
|
|
|
|
|
6.62
|
|
|
|
|
|
4.19
|
|
|
|
November 2017
|
|
|
|
|
8.90
|
|
|
|
|
|
8.20
|
|
|
|
|
|
7.51
|
|
|
|
|
|
7.07
|
|
|
|
|
|
4.84
|
|
|
|
|
|
4.50
|
|
|
|
October 2017
|
|
|
|
|
8.60
|
|
|
|
|
|
8.00
|
|
|
|
|
|
7.29
|
|
|
|
|
|
6.84
|
|
|
|
|
|
5.09
|
|
|
|
|
|
4.56
|
|
|
|
September 2017
|
|
|
|
|
7.55
|
|
|
|
|
|
8.10
|
|
|
|
|
|
6.96
|
|
|
|
|
|
6.41
|
|
|
|
|
|
4.86
|
|
|
|
|
|
4.35
|
|
|
|
August 2017
|
|
|
|
|
8.05
|
|
|
|
|
|
6.90
|
|
|
|
|
|
6.82
|
|
|
|
|
|
6.05
|
|
|
|
|
|
5.13
|
|
|
|
|
|
4.22
|
|
|
*
As reported in Euros. As of January 31, 2018, the U.S. Dollar/Euro exchange rate was $1.00/€0.80557.
**
Period for the NYSE begins on January 23, 2015.
***
Period for the NYSE begins on June 25, 2015.
The above table shows only historical data. The data may not provide meaningful information to holders of Gener8 common shares in determining whether to approve the Merger Agreement, including the transactions contemplated thereby. Holders of Gener8 common shares are urged to obtain current market quotations for Euronav ordinary shares and Gener8 common shares and to review carefully the other information contained in, or incorporated by reference into, this proxy statement/prospectus, when considering whether to approve the Merger Agreement. For more information, see the section “Where You Can Find More Information.”
On December 20, 2017, the last trading day before the public announcement of the Merger Agreement after the close of trading on December 19, 2017, the closing price of Euronav ordinary shares on the NYSE was $ 8.10 per share. On [•], 2018, the latest practicable date before the date of this proxy statement/prospectus, the closing price of Euronav ordinary shares on the NYSE was $ [•] and on Euronext was €[•].
Holders of Gener8 common shares will not receive their respective portion of the Merger Consideration until the Merger is completed, which may occur a substantial period of time after the Special Meeting, or not at all. There can be no assurance as to the trading prices of Gener8 common shares or Euronav ordinary shares at the time of the completion of the Merger. The market prices of Gener8 common shares and Euronav ordinary shares are likely to fluctuate prior to completion of the Merger and cannot be predicted.
The table below sets forth the dividends declared per Euronav ordinary share for the periods indicated. Gener8 did not declare any dividends during these periods.
|
|
|
|
|
|
|
|
Euronav
Dividends per Share
|
|
|
|
|
|
|
|
|
|
|
(in US$)
|
|
|
|
|
|
|
|
For the Year Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2017
|
|
|
|
|
0.06
|
|
|
|
|
|
|
|
|
December 31, 2016
|
|
|
|
|
0.77
|
|
|
|
|
|
|
|
|
December 31, 2015
|
|
|
|
|
1.69
|
|
|
|
|
|
|
|
|
December 31, 2014
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
December 31, 2013
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement/prospectus, including information incorporated by reference into this proxy statement/prospectus, may contain forward-looking statements, including, for example, but not limited to, statements about management expectations, strategic objectives, strategic opportunities, growth opportunities, business prospects, regulatory proceedings, transaction synergies and other benefits of the Merger, and other similar matters. Forward-looking statements are not statements of historical facts and represent only Euronav’s or Gener8’s beliefs regarding future events, which are inherently uncertain. Forward-looking statements are typically identified by words such as “anticipates,” “believes,” “budgets,” “could,” “estimates,” “expects,” “forecasts,” “foresees,” “goal,” “intends,” “likely,” “may,” “might,” “plans,” “projects,” “schedule,” “should,” “target,” “will,” or “would” and similar expressions, although not all forward-looking information contains these identifying words.
By their very nature, forward-looking statements require Euronav and Gener8 to make assumptions and are subject to inherent risks and uncertainties that give rise to the possibility that Euronav’s or Gener8’s predictions, forecasts, projections, expectations or conclusions will not prove to be accurate, that Euronav’s or Gener8’s assumptions may not be correct and that Euronav’s or Gener8’s objectives, strategic goals and priorities will not be achieved. Gener8 and Euronav caution readers not to place undue reliance on these statements, as a number of important factors could cause actual results to differ materially from the expectations expressed in such forward-looking statements. These factors include, but are not limited to, the possibility that the Merger does not close when expected or at all because required shareholder approval is not received or other conditions to the closing are not satisfied on a timely basis or at all; that Gener8 and Euronav may be required to modify the terms and conditions of the Merger Agreement to achieve shareholder approval, or that the anticipated benefits of the Merger are not realized as a result of such things as the weakness of the economy and competitive factors in the seaborne transportation area in which Euronav and Gener8 do business; the Merger’s effect on the relationships of Euronav or Gener8 with their respective customers and suppliers, whether or not the Merger is completed; Euronav’s shareholders’ and Gener8’s shareholders’ reduction in their percentage ownership and voting power; the challenges presented by the integration of Euronav and Gener8; the uncertainty of third-party approvals; the significant transaction and merger-related integration costs; loss or reduction in business from Euronav’s or Gener8’s significant customers or the significant customers of the commercial pools in which Euronav and Gener8 participate; changes in the values of Euronav’s and Gener8’s vessels, newbuildings or other assets; the failure of Euronav’s or Gener8’s significant customers, shipyards, pool managers or technical managers to perform their obligations owed to Euronav or Gener8; the loss or material downtime of significant vendors and service providers; Euronav’s or Gener8’s failure, or the failure of the commercial pools in which Euronav and Gener8 participate, to successfully implement a profitable chartering strategy; termination or change in the nature of Euronav’s or Gener8’s relationship with any of the commercial pools in which they participate; changes in demand for Euronav’s and Gener8’s services; a material decline or prolonged weakness in rates in the tanker market; changes in production of or demand for oil and petroleum products, generally or in particular regions; greater than anticipated levels of tanker newbuilding orders or lower than anticipated rates of tanker scrapping; adverse weather and natural disasters, acts of piracy, terrorist attacks and international hostilities and instability; changes in rules and regulations applicable to the tanker industry (including changes in the laws and regulations regulating the seaborne transportation or refined petroleum products industries or affecting domestic and foreign operations), including, without limitation, legislation adopted by international organizations such as the International Maritime Organization and the European Union or by individual countries; actions taken by regulatory authorities; actions by the courts, the U.S. Coast Guard, the U.S. Department of Justice or other governmental authorities and the results of the legal proceedings to which Euronav or Gener8 or any of their vessels may be subject; changes in trading patterns significantly impacting overall tanker tonnage requirements; any non-compliance with the U.S. Foreign Corrupt Practices Act of 1977 or other applicable regulations relating to bribery; the highly cyclical nature of Euronav’s and Gener8’s industry; changes in the typical seasonal variations in tanker charter rates; changes in the cost of other modes of oil transportation; changes in oil transportation technology; increases in costs including without limitation: crew wages, fuel, insurance, provisions, operating, repairs and maintenance, bunker prices, dry-docking and insurance costs; the adequacy of insurance to cover Euronav’s and Gener8’s losses, including in connection with maritime accidents or spill events; changes in the condition of Euronav’s and Gener8’s vessels or applicable maintenance or regulatory standards (which
may affect, among other things, Euronav’s and Gener8’s anticipated drydocking or maintenance and repair costs); changes in the itineraries of Euronav’s and Gener8’s vessels; adverse changes in foreign currency exchange rates affecting Euronav’s or Gener8’s expenses; the fulfillment of the closing conditions under, or the execution of customary additional documentation for, Euronav’s and Gener8’s agreements to indirectly acquire vessels and borrow under their existing financing arrangements; Euronav and Gener8’s level of indebtedness and the effect of Euronav’s and Gener8’s indebtedness on their ability to finance operations, pursue desirable business operations and successfully run their business in the future; financial market conditions; sourcing, completion and funding of financing on acceptable terms; Euronav’s and Gener8’s ability to generate sufficient cash to service their indebtedness and comply with the covenants and conditions under their debt obligations; the impact of electing to take advantage of certain exemptions applicable to emerging growth companies; general market conditions, including the market for vessels and fluctuations in spot and charter rates and vessel values; disruption of shipping routes due to accidents or political events; vessel breakdowns and instances of off-hires; the supply of and demand for vessels comparable to the vessels of Euronav and Gener8; delays and cost overruns in construction projects; the availability of skilled workers and the related labor costs; the failure of counterparties to fully perform their contracts; the ability to successfully integrate the two companies; the risk that expected synergies and benefits of the Merger will not be realized within the expected time frame or at all; reputational risks; and other factors that may affect future results of Euronav and Gener8, including changes in trade policies, changes in tax laws, technological and regulatory changes, and adverse developments in general market, business, economic, labor, regulatory and political conditions.
Gener8 and Euronav caution that the foregoing list of important factors is not exhaustive and other factors could also adversely affect the completion of the Merger and the future results of Euronav or Gener8, including factors described in Euronav’s annual report on Form 20-F for the year ended December 31, 2016, which is incorporated by reference herein and other important factors described in Euronav’s filings with the SEC and Gener8’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2017, as filed with the SEC on May 9, 2017, Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2017, as filed with the SEC on August 7, 2017, Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2017, as filed with the SEC on November 9, 2017 and Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as filed with the SEC on March 13, 2017, each of which is incorporated by reference into this proxy statement/prospectus. The forward-looking statements speak only as of the date of this proxy statement/prospectus, in the case of forward-looking statements contained in this proxy statement/prospectus, or the dates of the documents incorporated by reference into this proxy statement/prospectus, in the case of forward-looking statements made in those incorporated documents. When relying on Euronav’s or Gener8’s forward-looking statements to make decisions, investors and others should carefully consider the foregoing factors and other uncertainties and potential events. Except as required by applicable law or regulation, Gener8 and Euronav do not undertake to update any forward-looking statement, whether written or oral, to reflect events or circumstances after the date of this proxy statement/prospectus or to reflect the occurrence of unanticipated events.
RISK FACTORS
You should consider carefully the risks described below, as well as the other information set forth in and incorporated by reference into this proxy statement/prospectus, before making a decision on approval of the Merger Agreement. As a holder of Gener8 common shares, following completion of the Merger you will be subject to all risks inherent in the business of Euronav. For information about the filings incorporated by reference in this proxy statement/prospectus, see the section “Where You Can Find More Information.”
Risks Related to the Merger
Because the aggregate Merger Consideration is fixed and the market price of Euronav ordinary shares may fluctuate, holders of Gener8 common shares cannot be certain of the precise value of the Merger Consideration that they will receive in the Merger.
If the Merger is completed, each Gener8 common share will be canceled and automatically converted (in the manner described in the Merger Agreement) into the right to receive 0.7272 of a Euronav ordinary share (as may be adjusted if, prior to the Effective Time of the Merger, the outstanding number of Euronav ordinary shares has changed into a different number of shares or a different class by reason of any stock dividend or distribution, subdivision, reclassification, recapitalization, stock split, reverse stock split, stock consolidation, combination, exchange of shares or other similar change or event, in accordance with the Merger Agreement). The Exchange Ratio will not be adjusted to reflect changes in the price of Gener8 common shares or Euronav ordinary shares from the time the Exchange Ratio was fixed until the Effective Time of the Merger.
Therefore, holders of Gener8 common shares will receive a fixed number of Euronav ordinary shares based on the Exchange Ratio, and holders of Gener8 common shares will not receive a number of shares that will be determined based on a fixed market value. The market value of Euronav ordinary shares and the market value of Gener8 common shares at the Effective Time of the Merger may vary significantly from their respective values on the date that the Merger Agreement was executed or at other dates, such as the date of this proxy statement/prospectus or the date of the Special Meeting.
See “Comparative Per Share Market Price and Dividend Information” for certain historical market price information about Euronav ordinary shares. Variations in share prices may be the result of various factors, including Euronav’s and Gener8’s respective businesses, operations or prospects, regulatory considerations and general business, market, industry or economic conditions.
At the time of the Special Meeting, holders of Gener8 common shares will not know the precise value of the Merger Consideration they will be entitled to receive for their Gener8 common shares at the Effective Time. Holders of Gener8 common shares are urged to obtain a current market quotation for Euronav ordinary shares on the NYSE and Euronext and Gener8 common shares on the NYSE.
The Exchange Ratio reflects several business considerations extensively negotiated by the parties and therefore are not necessarily reflective of the share price, net asset values or other financial or valuation metrics relating to Gener8 or Euronav.
The Exchange Ratio was determined through extensive negotiations between Gener8 and the Gener8 Transaction Committee and Euronav taking into account many factors. The “Net Asset Value Analysis” of UBS’ opinion and financial analyses discussed on page 63 in the section “The Merger — Opinion of UBS, Gener8’s Financial Advisor” were not the exclusive factors considered by the Gener8 Transaction Committee in evaluating the Merger and the Exchange Ratio. As such, the Exchange Ratio is not necessarily reflective of the share price, net asset values or other financial or valuation metrics relating to Gener8 or Euronav.
The market price of Euronav ordinary shares after the Merger may be affected by factors different from those currently affecting the price of Euronav’s ordinary shares and Gener8’s common shares.
Upon the Effective Time of the Merger, holders of Gener8 common shares will be entitled to become holders of Euronav ordinary shares. Gener8’s businesses differ from those of Euronav, and accordingly the results of operations and market price of Euronav ordinary shares after the Merger may be affected by factors different from those currently affecting the results of operations and market price of Gener8 common shares after the Merger. The market price for Euronav ordinary shares may be affected by, among other factors, actual or anticipated fluctuations in the quarterly and annual results of Euronav and those of other public companies in its industry; mergers and strategic alliances in the tanker industry; market conditions in the tanker industry; changes in government regulation; the failure of securities analysts to publish research about Euronav following completion of the Merger, or shortfalls in its operating results from levels forecast by securities analysts; announcements concerning Euronav or its competitors; and the general state of the securities market. For a discussion of the risks related to Euronav and of certain factors to consider in connection with its business, you should carefully review this document and the documents incorporated by reference, including the risk factors described in Euronav’s annual report on Form 20-F for the year ended December 31, 2016. For a discussion of the risks related to Gener8 and of certain factors to consider in connection with its business, you should carefully review this document and documents incorporated by reference, including the risk factors described in Gener8’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2017, as filed with the SEC on May 9, 2017, Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2017, as filed with the SEC on August 7, 2017, Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2017, as filed with the SEC on November 9, 2017 and its Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as filed with the SEC on March 13, 2017, each of which is incorporated by reference into this proxy statement/prospectus..
The announcement and pendency of the Merger could adversely affect each of Euronav’s and Gener8’s businesses, results of operations and financial condition.
The announcement and pendency of the Merger could cause disruptions in and create uncertainty surrounding Euronav’s and Gener8’s businesses, including affecting Euronav’s and Gener8’s relationships with its existing and future customers, suppliers and employees, which could have an adverse effect on Euronav’s or Gener8’s businesses, results of operations and financial condition, regardless of whether the Merger is completed. In particular, Euronav and Gener8 could potentially lose customers or suppliers, and new customer or supplier contracts could be delayed or decreased. These uncertainties may impair Euronav’s and Gener8’s ability to attract, retain and motivate key personnel until the Merger is consummated and for a period of time thereafter. In addition, each of Euronav and Gener8 has expended, and continues to expend, significant management resources, in an effort to complete the Merger, which are being diverted from Euronav’s and Gener8’s day-to-day operations.
If the Merger is not completed, the price of Euronav ordinary shares and Gener8 common shares may fall to the extent that the current price of their shares reflects a market assumption that the Merger will be completed. In addition, the failure to complete the Merger may result in negative publicity or a negative impression of Euronav and Gener8 in the investment community and may affect Euronav and Gener8’s respective relationships with employees, customers, suppliers and other partners in the business community.
There is no assurance when or if the Merger will be completed.
The completion of the Merger is subject to the satisfaction or waiver of a number of conditions as set forth in the Merger Agreement, including, among others, the approval of the Merger Agreement by holders of a majority of the outstanding Gener8 common shares. There can be no assurance as to when these conditions will be satisfied or waived, if at all, or that other events will not intervene to delay or result in the failure to complete the Merger. Each party’s obligation to complete the Merger is also subject to the accuracy of the representations and warranties of the other party (subject to certain qualifications and exceptions) and the performance in all material respects of the other party’s covenants under the Merger Agreement.
Additionally, Euronav and Gener8 will enter into an agreement with the Exchange Agent which shall authorize the Exchange Agent to act as agent for the Merger and to, among other things, act as agent solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders, with the right of sub-delegation for the purpose of facilitating the execution and implementation of the Contribution in Kind (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), including but not limited to representing the Contributing Gener8 Shareholders at the Closing (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), contributing the Surviving Corporation Shares (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A) to Euronav by way of a Contribution in Kind and delivering the Merger Consideration to the Contributing Gener8 Shareholders. Immediately following the Effective Time of the Merger, and pursuant to the provisions of the Belgian Companies Code, the Exchange Agent (acting as an agent and solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders) shall contribute to Euronav, all of the issued and outstanding shares of the Surviving Corporation that were received by the Exchange Agent pursuant to Merger, as a Contribution in Kind and, in consideration of this Contribution in Kind, Euronav will issue and deliver to the Exchange Agent (solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders) the Merger Consideration for delivery to the Contributing Gener8 Shareholders.
As a result of these conditions, in addition to complexities related to the exchange process and settlement, there is no assurance that the Merger will be completed on the terms or timeline currently contemplated, or at all.
Failure to complete the Merger would prevent Euronav and Gener8 from realizing the anticipated benefits of the merger. Each company would also remain liable for significant transaction costs, including legal, accounting and financial advisory fees. Any delay in completing the Merger may significantly reduce the benefits that Euronav and Gener8 expect to achieve if they successfully complete the Merger within the expected timeframe and integrate their respective businesses.
The Merger may adversely affect the relationships of Euronav or Gener8 with their respective customers and suppliers, whether or not the Merger is completed.
In connection with the pendency of the Merger, existing or prospective customers or suppliers of Gener8 or Euronav may delay, defer or cease purchasing services from or providing goods or services to Gener8 or Euronav, delay or defer other decisions concerning Gener8 or Euronav, or refuse to extend credit to Gener8 or Euronav, raise disputes under their business arrangements with Gener8 or Euronav or assert purported consent or change of control rights, or otherwise seek to change or renegotiate the terms on which they do business with Gener8 or Euronav.
Any such delays, disputes or changes to terms could seriously harm the business of Gener8 or Euronav as well as the market price of their respective common stock regardless of whether or not the Merger is completed.
Certain of Gener8’s directors and executive officers have interests in the Merger that differ from, or are in addition to, the interests of holders of Gener8 common shares.
When considering your vote, you should be aware that certain of Gener8’s directors and executive officers have interests in the Merger that are different from, or in addition to, the interests of the Gener8 shareholders generally. The Gener8 Transaction Committee and the Gener8 board of directors were aware of these interests and considered them, among other matters, in making their recommendations.
These interests are discussed in more detail in the section entitled “The Merger — Interests of Gener8’s Directors and Executive Officers in the Merger”.
Certain rights of Gener8’s shareholders will change as a result of the Merger.
Upon completion of the Merger, holders of Gener8 common shares will no longer be shareholders of Gener8 but will be shareholders of Euronav. There will be certain differences between your current rights as a holder of Gener8 common shares, on the one hand, and the rights to which you will be entitled as a
Euronav shareholder, on the other hand. For a more detailed discussion of the differences in the rights of holders of Gener8 common shares and Euronav shareholders, see the section “Comparison of Rights of Euronav Shareholders and Holders of Gener8 Common Shares.”
The Merger Agreement, the Proxies, the MOAs and the Voting Agreement contain provisions that could discourage a potential competing acquirer of Gener8 or could result in any competing proposal being at a lower price than it might otherwise be.
The Merger Agreement contains “no shop” provisions that, subject to certain exceptions, restrict Gener8’s ability to solicit, encourage, facilitate or discuss competing third-party proposals to acquire all or a significant part of Gener8, see the section entitled “The Merger Agreement — No Solicitation by Gener8 of Alternative Proposals; Withdrawal of Board Recommendation”. Even if the Gener8 board of directors or the Gener8 Transaction Committee withdraws or qualifies its recommendation in favor of approving the Merger Agreement, Gener8 will still be required to submit the matter to a vote of its shareholders at the Special Meeting, unless the Merger Agreement is terminated. In addition, Euronav generally has an opportunity to offer to modify the terms of the Merger in response to any competing Acquisition Proposal that may be made before the Gener8 board of directors or the Gener8 Transaction Committee may withdraw or qualify its recommendation.
The Voting Agreement and Proxies also contain provisions that could deter a potential competing proposal. Pursuant to the Voting Agreement and the Proxies, the Covered Shareholders and the Proxy Shareholders have agreed, subject to the terms and conditions of the Voting Agreement and the Proxies, to (i) appear (in person or by proxy) at the Special Meeting, and (ii) vote all of their Covered Shares, which represent in the aggregate approximately 48% of the issued and outstanding Gener8 common shares in favor of the Merger, the Merger Agreement and the transactions contemplated thereby at the Special Meeting. In the case of the Covered Shareholders, if either the Gener8 Transaction Committee or the Gener8 board of directors makes an Adverse Recommendation Change regarding the Merger, then such shareholders will each vote 50% of their respective Covered Shares in favor of the Merger, the Merger Agreement and the transactions contemplated thereby at the Special Meeting, and may vote their remaining Covered Shares in any manner they determine. In the case of the Proxies, if the Gener8 Transaction Committee or the Gener8 board of directors makes an Adverse Recommendation Change regarding the Merger, the Proxies will terminate with no further obligation on the part of the Proxy Shareholders.
These provisions could discourage a potential competing acquirer that might have an interest in acquiring all or a significant part of Gener8 from considering or proposing an acquisition, even if it were prepared to pay consideration with a higher per share cash or market value than that market value proposed to be received or realized in the Merger, or that might result in a potential competing acquirer proposing to pay a lower price than it might otherwise have proposed to pay because of the added expense of the $39 million termination fee that may become payable, as well as the operational impact as a result of the sale of the three vessels that are the subject of the memoranda of agreement, in the event of a termination of the Merger Agreement as a result of an Adverse Recommendation Change or other circumstances described in the Merger Agreement.
Upon termination of the Merger Agreement Gener8 will, in certain circumstances, be obligated to pay a termination fee and sell three vessels to Euronav.
In some circumstances, upon termination of the Merger Agreement, Gener8 may be required to pay Euronav a termination fee of $39 million in cash to Euronav. In some circumstances, if the Merger Agreement is terminated and prior to the first anniversary of the date of such termination, Gener8 enters into an agreement with respect to certain other mergers, business combinations or other transactions, a termination fee of $39 million in cash to Euronav, see the section entitled “The Merger Agreement — Termination Fee”.
In addition, under the terms of the MOAs, in the event that the Merger Agreement is not consummated, other than as a result of a breach of the Merger Agreement by Euronav, Gener8 is obligated to sell three Gener8 vessels to Euronav at a total purchase price of $220.9 million, which may be different from the market price of these vessels at such time. A portion of the purchase price of each of the three vessels may be offset by up to one-third of the $39 million termination fee, see the section entitled “Related Agreements — Memoranda of Agreement to Purchase Three Vessels”.
The termination of the Merger Agreement could negatively impact Gener8 and Euronav.
If the Merger is not completed for any reason, including as a result of Gener8’s shareholders failing to approve the Merger Agreement, the ongoing business of Gener8 and Euronav may be adversely affected and, without realizing any of the anticipated benefits of having completed the Merger, Gener8 and Euronav may be subject to a number of risks, including the following:
•
Gener8 and Euronav may experience negative reactions from the financial markets, including a decline of its respective stock price (which may reflect a market assumption that the Merger will be completed);
•
Gener8 and Euronav may experience negative reactions from the investment community, its respective customers and employees and other partners in the business community;
•
Gener8 and Euronav may be required to pay certain costs relating to the Merger, whether or not the Merger is completed; and
•
matters relating to the Merger will have required substantial commitments of time and resources by Gener8’s and Euronav’s respective management, which would otherwise have been devoted to day-to-day operations and other opportunities that may have been beneficial had the Merger not been contemplated.
The completion of the Merger could negatively impact Gener8’s relationship with the vessel pools which commercially manage substantially all of Gener8’s vessels. Any withdrawal of Gener8 vessels from the pools or termination of the related pool agreements could result in additional costs.
Substantially all vessels in Gener8’s fleet are contracted to operate in various tanker pools managed by entities affiliated with the Navig8 Group. Gener8 may experience negative reactions from these pools, the Navig8 Group or their affiliates as a result of the Merger and related transactions. It is Euronav’s intention to employ, as soon as commercially practicable, all of the Gener8 vessels, on the spot market, including within the Tankers International Pool, a leading spot market-oriented VLCC pool in which other shipowners with vessels of similar size and quality participate along with us. Accordingly, upon completion of the Merger, the Combined Company may seek to withdraw all or some of these vessels from these pools or terminate the pool agreements, which could result in additional costs, including costs related to recovering working capital from a pool, claims for loss of revenue from a pool, loss of management fees from a pool and loss due to improper notice given to a pool. Additionally, if the Combined Company withdraws a vessel from a pool in the period of time during which such withdrawal is prohibited under the pool agreements or otherwise does not comply with the provisions regarding withdrawal in these pool agreements, the Combined Company could be subject to a damages claim by these pools.
Except in specified circumstances, if the Merger is not completed by June 30, 2018, subject to extension in specified circumstances, either Euronav or Gener8 may choose not to proceed with the Merger.
Either Euronav or Gener8 may terminate the Merger Agreement if the Effective Time has not occurred by June 30, 2018. However, this right to terminate the merger agreement will not be available to Euronav or Gener8 if the failure of such party to perform any of its obligations under the Merger Agreement has been the principal cause of or resulted in the failure of the Merger to be complete on or before such time. Termination of the merger agreement will also result in termination of the Voting Agreement and Proxies. For more information, see the sections entitled “The Merger Agreement — Termination of the Merger Agreement” and “Voting Agreement and Proxies.”
While the Merger Agreement is in effect, Gener8’s and Euronav’s businesses are subject to restrictions on the conduct of their business activities prior to completion of the Merger.
Under the Merger Agreement, Gener8, Euronav and their respective subsidiaries are subject to certain restrictions on the conduct of their respective businesses and generally must operate their respective businesses in the ordinary course consistent with past practice prior to completing the Merger (unless Gener8 or Euronav obtains the other’s consent, as applicable, which is not to be unreasonably withheld, conditioned or delayed), which may restrict Gener8’s and Euronav’s ability to exercise certain of their respective business strategies. These restrictions may prevent Gener8 from pursuing otherwise attractive
business opportunities, making certain investments or acquisitions, selling assets, engaging in capital expenditures in excess of certain agreed limits, incurring indebtedness or making changes to its businesses prior to the completion of the Merger or termination of the Merger Agreement. These restrictions may prevent Euronav from declaring, setting aside or paying dividends under certain circumstances, issuing, transferring or pledging its ordinary shares, incurring certain indebtedness, or making changes to its business prior to the completion of the Merger or termination of the Merger Agreement. These restrictions could have an adverse effect on Gener8’s and Euronav’s respective businesses, financial results, financial condition or stock price.
Holders of Gener8 common shares will have a reduced ownership and voting interest in Euronav after the Merger and will exercise less influence over management.
Holders of Gener8 common shares currently have the right to vote in the election of directors to the Gener8 board of directors and on certain other matters affecting Gener8. Following the Merger, each holder of Gener8 common shares will be entitled to become a shareholder of Euronav with a percentage ownership of Euronav that is much smaller than the shareholder’s percentage ownership of Gener8. Immediately following the Effective Time, Euronav will issue approximately 60,815,764 ordinary shares to former holders of Gener8 common shares, which are estimated to represent approximately 28% of the outstanding Euronav ordinary shares. Because of this, the Gener8 shareholders will have substantially less influence on the management and policies of Euronav than they now have with respect to the management and policies of Gener8.
The Combined Company may not realize all of the anticipated benefits of the Merger.
Euronav and Gener8 believe that the Merger will provide benefits to the Combined Company as described elsewhere in this proxy statement/prospectus. However, there is a risk that some or all of the expected benefits of the Merger may fail to materialize, or may not occur within the time periods anticipated. The realization of such benefits may be affected by a number of factors, many of which are beyond the control of Euronav, including but not limited to the strength or weakness of the economy and competitive factors in the areas where Euronav and Gener8 do business, the effects of competition in the markets in which Euronav or Gener8 operate, and the impact of changes in the laws and regulations regulating the seaborne transportation or refined petroleum products industries or affecting domestic or foreign operations. The challenge of coordinating previously separate businesses makes evaluating the business and future financial prospects of the Combined Company following the Merger difficult. Euronav and Gener8 have operated and, until completion of the Merger, will continue to operate, independently. The success of the Merger, including anticipated benefits and cost savings, will depend, in part, on the ability to successfully integrate the operations of both companies in a manner that results in various benefits, including, among other things, an expanded market reach and operating efficiencies, and that does not materially disrupt existing relationships nor result in decreased revenues or dividends. The past financial performance of each of Euronav and Gener8 may not be indicative of their future financial performance. Realization of the anticipated benefits in the Merger will depend, in part, on the Combined Company’s ability to successfully integrate Euronav’s and Gener8’s businesses. The Combined Company will be required to devote significant management attention and resources to integrating its business practices and support functions. The diversion of management’s attention and any delays or difficulties encountered in connection with the Merger and the coordination of the two companies’ operations could have an adverse effect on the business, financial results, financial condition or the share price of the Combined Company following the Merger. The coordination process may also result in additional and unforeseen expenses.
Failure to realize all of the anticipated benefits of the Merger may impact the financial performance of the Combined Company, the price of Euronav’s ordinary shares and the ability of Euronav to pay dividends on its ordinary shares. The declaration of dividends by Euronav will be at the discretion of its board of directors in accordance with Euronav’s dividend policy.
The Combined Company may not be able to obtain financing for additional capital requirements.
Following completion of the Merger, the Combined Company may require significant ongoing capital expenditures and, although Euronav and Gener8 anticipate that the Combined Company will be able to fund these expenditures through usage of the Combined Company’s cash and cash equivalents, cash
generated from operations, letters of credit and subsequent debt, equity or hybrid offerings, there can be no assurances that the Combined Company will be able to obtain financing on acceptable terms or at all.
The opinion of Gener8’s financial advisor will not reflect changes in circumstances between the signing of the Merger Agreement and the completion of the Merger.
Gener8 will not obtain an updated fairness opinion from its financial advisor as of the date of this proxy statement/prospectus. Changes in the operations and prospects of Euronav or Gener8, general market and economic conditions and other factors that may be beyond the control of Euronav or Gener8, and on which the opinion of the financial advisor of Gener8 were based, may significantly alter the value of Gener8 or the prices of Euronav’s ordinary shares by the time the Merger is completed. The opinion does not speak as of the time the Merger will be completed or as of any date other than the date of such opinion. Because Gener8 currently does not anticipate asking its financial advisor to update its opinion, the opinion will not address the fairness of the Exchange Ratio from a financial point of view at the time the Merger is completed.
Euronav and Gener8 have incurred and expect to incur substantial transaction fees and costs in connection with the Merger and related Gener8 vessel acquisitions, whether or not the Merger is completed.
Euronav and Gener8 have incurred and expect to incur additional material non-recurring expenses in connection with the Merger and completion of the transactions contemplated by the Merger Agreement. Euronav and Gener8 have incurred significant legal, advisory and financial services fees in connection with the process of negotiating and evaluating the terms of the Merger. Additional significant unanticipated costs (including additional unanticipated severance payments) may be incurred in the course of coordinating the businesses of Euronav and Gener8 after completion of the Merger. Even if the Merger is not completed, Euronav and Gener8 will need to pay certain costs relating to the Merger incurred prior to the date the Merger was abandoned, such as legal, accounting, financial advisory, filing and printing fees. Such costs may be significant and could have an adverse effect on the parties’ future results of operations, cash flows and financial condition. As of December 31, 2017, Euronav and Gener8 have each incurred approximately $1.4 million of non-recurring expenses in connection with the Merger. Euronav and Gener8 expect to incur additional, material non-recurring expenses of approximately $8.6 million and $32.3 million, respectively, prior to, or upon the Effective Time.
Gener8 may be unsuccessful in obtaining the Specified Approvals, with respect to the consummation of the Merger.
Consummation of the transactions contemplated under the Merger Agreement constitutes, among other things, a “change of control” under Gener8’s Sinosure Credit Agreement and KEXIM Credit Agreement. The Merger Agreement requires as a condition precedent to the consummation of the Merger by the parties the receipt of the Specified Approvals. There is no assurance that Gener8 will be successful in obtaining the Specified Approvals.
Completion of the Merger may trigger change in control or other provisions in certain agreements to which Gener8 is a party.
In addition to the Specified Approvals, consummation of the transactions contemplated under the Merger Agreement may trigger, among other things, a “change of control” in certain agreements to which Gener8 is a party. If Euronav and Gener8 are unable to negotiate waivers of those provisions, the counterparties may exercise their rights and remedies under the agreements, potentially terminating the agreements or seeking monetary damages. Even if Euronav and Gener8 are able to negotiate waivers, the counterparties may require a fee for such waivers or seek to renegotiate the agreements on terms less favorable to Gener8.
Significant demands will be placed on Euronav as a result of the Merger.
As a result of the pursuit and completion of the Merger, significant demands will be placed on the managerial, operational and financial personnel and systems of Euronav. Euronav cannot assure you that their systems, procedures and controls will be adequate to support the expansion of operations following
and resulting from the Merger. The future operating results of the Combined Company will be affected by the ability of its officers and key employees to manage changing business conditions and to implement and expand its operational and financial controls and reporting systems in response to the Merger.
The unaudited pro forma condensed combined financial information of Euronav and Gener8 is presented for illustrative purposes only and may not be indicative of the results of operations or financial condition of the Combined Company following the Merger.
The unaudited pro forma condensed combined financial information included in this proxy statement/prospectus has been prepared using the consolidated historical financial statements of Euronav and Gener8. It is presented for illustrative purposes only and should not be considered to be an indication of the results of operations or financial condition of the Combined Company following the Merger. In addition, the pro forma combined financial information included in this proxy statement/prospectus is based in part on certain assumptions regarding the Merger that Euronav and Gener8 currently believe are reasonable. These assumptions may not prove to be accurate, and other factors may affect the Combined Company’s results of operations or financial condition following the Merger. Accordingly, the historical and pro forma financial information included in this proxy statement/prospectus does not necessarily represent the Combined Company’s results of operations and financial condition had Euronav and Gener8 operated as a combined entity during the periods presented, or of the Combined Company’s results of operations and financial condition following completion of the Merger. The Combined Company’s potential for future business success and operating profitability must be considered in light of the risks, uncertainties, expenses and difficulties typically encountered by recently combined companies.
In preparing the pro forma financial information contained in this proxy statement/prospectus, Euronav has given effect to, among other items, the completion of the Merger, the payment of the Merger Consideration and estimated transaction costs. The unaudited pro forma financial information does not reflect all of the costs that are expected to be incurred by Euronav and Gener8 in connection with the Merger. For more information, see the section “Unaudited Pro Forma Condensed Combined Financial Information.”
Euronav will assume or repay most of the existing indebtedness of Gener8 if the Merger is completed, which may impose additional operating and financial restrictions on Euronav (beyond those that currently exist) which, together with the resulting debt services obligations, could significantly limit the Combined Company’s ability to execute its business strategy, and increase the risk of default under its debt obligations after the Merger is completed.
As of December 31, 2017, Euronav intends to assume $1,358.0 million of the existing indebtedness of Gener8 in connection with the completion of the Merger. Gener8’s current secured credit facilities require it to maintain specified financial ratios and satisfy financial covenants, including ratios and covenants based on the market value of the vessels in Gener8’s fleet in relation to the indebtedness outstanding.
Because some of the ratios and covenants set minimum values for the vessels in respect of the indebtedness outstanding, should vessel values decline in the future for any reason whatsoever, including due to declines in charter rates, the Combined Company may be required to take action to reduce its debt or to act in a manner contrary to its business objectives to meet any such financial ratios and satisfy any such financial covenants. Additionally, some of the ratios and covenants require the Combined Company to (i) maintain minimum levels of liquidity and interest expense coverage and (ii) not exceed the maximum level of leverage specified therein. Events beyond the Combined Company’s control, including changes in the economic and business conditions in the shipping markets in which the Combined Company will operate, may affect its ability to comply with these covenants. No assurance can be provided that the Combined Company will meet its financial or other covenants or that its lenders will waive any failure to do so.
Additionally, the terms of Gener8’s existing indebtedness place certain restrictions on the operations of the obligors thereunder, including restrictions on incurring additional indebtedness and liens, disposal of assets and chartering arrangements. These covenants, along with the financial covenants discussed above, may adversely affect the Combined Company’s ability to finance future operations or limit its ability to pursue certain business opportunities or take certain corporate actions. The covenants may also restrict the
Combined Company’s flexibility in planning for, or reacting to, changes in its business and the industry and make it more vulnerable to economic downturns and adverse developments. A breach of any of the covenants in, or the Combined Company’s inability to maintain the required financial ratios under, its credit facilities would prevent it from borrowing additional money under its credit facilities and could result in a default under its credit facilities. If a default occurs under the Combined Company’s credit facilities, the lenders could elect to declare the issued and outstanding debt, together with accrued interest and other fees, to be immediately due and payable and foreclose on the collateral securing that debt, which could constitute all or substantially all of the Combined Company’s assets. Furthermore, the Combined Company’s debt agreements contain cross-default provisions, whereby a default by the Combined Company under one of its debt agreements would automatically be an event of default under its other debt agreements. Such cross defaults could result in the acceleration of the maturity of the debt under these agreements and the lenders thereunder may foreclose upon any collateral securing that debt, including the Combined Company’s vessels. In the event of such acceleration or foreclosure, the Combined Company might not have sufficient funds or other assets to satisfy all of its obligations, which would have a material adverse effect on its business, results of operations and financial condition.
Following the completion of the Merger, the Combined Company’s ability to meet its cash requirements, including the Combined Company’s debt service obligations, will be dependent upon its operating performance, which will be subject to general economic and competitive conditions and to financial, business and other factors affecting its operations, many of which are or may be beyond the Combined Company’s control. The Combined Company cannot provide assurance that its business operations will generate sufficient cash flows from operations to fund these cash requirements and debt service obligations. If the Combined Company’s operating results, cash flow or capital resources prove inadequate, it could face substantial liquidity problems and might be required to dispose of material assets or operations to meet its debt and other obligations. If the Combined Company is unable to service its debt, it could be forced to reduce or delay planned expansions and capital expenditures, sell assets, restructure or refinance its debt or seek additional equity capital. The Combined Company may be unable to take any of these actions on satisfactory terms or in a timely manner which could result in the Combined Company entering bankruptcy proceedings. Further, any of these actions may not be sufficient to allow the Combined Company to service its debt obligations or may have an adverse impact on its business. The Combined Company’s debt agreements may limit its ability to take certain of these actions. The Combined Company’s failure to generate sufficient operating cash flow to pay its debts or to successfully undertake any of these actions could have a material adverse effect on the Combined Company. These risks may be increased as a result of the increased amount of indebtedness of the Combined Company following the completion of the Merger.
In addition, the degree to which the Combined Company may be leveraged as a result of the indebtedness assumed in connection with the Merger or otherwise could materially and adversely affect its ability to obtain additional financing for working capital, capital expenditures, acquisitions, debt service requirements or other purposes, could make the Combined Company more vulnerable to general adverse economic, regulatory and industry conditions, and could limit its flexibility in planning for, or reacting to, changes and opportunities in the markets in which it competes.
Resales of Euronav ordinary shares following the Merger may cause the market value of Euronav ordinary shares to decline.
Pursuant to the terms of the Merger Agreement, Euronav will issue approximately 60,815,764 Euronav ordinary shares at the Effective Time of the Merger which Euronav has agreed, pursuant to the Merger Agreement, to list on the NYSE subject to notice of issuance. In addition, Euronav intends to complete the listing of ordinary shares to be issued pursuant to the Merger Agreement on Euronext concurrently with the listing on the NYSE. The issuance of these new shares and the sale of additional shares that may become eligible for sale in the public market from time to time could have the effect of depressing the market value for Euronav ordinary shares. The increase in the number of Euronav ordinary shares may lead to sales of such Euronav ordinary shares or the perception that such sales may occur, either of which may adversely affect the market for, and the market value of, Euronav ordinary shares.
The market value of Euronav ordinary shares may decline as a result of the Merger.
The market value of Euronav ordinary shares may decline as a result of the Merger if, among other things, the Combined Company is unable to achieve the expected growth in earnings, or if the operational cost savings estimates in connection with the integration of Euronav’s and Gener8’s businesses are not realized or if the transaction costs related to the Merger are greater than expected. The market value also may decline if the Combined Company does not achieve the perceived benefits of the Merger as rapidly or to the extent anticipated by the market or if the effect of the Merger on the Combined Company’s financial position, results of operations or cash flows is not consistent with the expectations of financial or industry analysts.
Gener8 and Euronav may be targets of securities class action and derivative lawsuits which could result in substantial costs and may delay or prevent the Merger from being completed.
Securities class action lawsuits and derivative lawsuits are often brought against companies that have entered into merger agreements. Even if the lawsuits are without merit, defending against these claims can result in substantial costs and divert management time and resources. An adverse judgment could result in monetary damages, which could have a negative impact on Euronav’s liquidity and financial condition. Additionally, if a plaintiff is successful in obtaining an injunction prohibiting consummation of the Merger, then that injunction may delay or prevent the Merger from being completed. Neither Gener8 nor Euronav is aware of any securities class action lawsuits or derivative lawsuits being filed in connection with the Merger.
Euronav is organized under the laws of Belgium and a substantial portion of its assets will continue to be, and many of its directors and executive officers will continue to reside, outside of the United States after the Merger and as a result, it may not be possible for shareholders to enforce civil liability provisions of the securities laws of the United States in Belgium.
Euronav is organized under the laws of Belgium. After the Merger, substantially all of the Combined Company’s assets will be located outside the United States and all of the Combined Company’s executive officers and a majority of the Combined Company’s directors will reside outside the United States, provided that Mr. Steven Smith is elected as a director at the next annual meeting of Euronav shareholders. Further, certain of the experts named in this proxy statement/prospectus reside outside of the United States. As a result, it may be difficult for investors to effect service within the United States upon those directors, officers and experts, or to realize in the United States upon judgments of courts of the United States predicated upon civil liability of the Combined Company and such directors, executive officers or experts under the United States federal securities laws.
If the Merger does not qualify as a tax-free reorganization for U.S. federal income tax purposes, shareholders of Gener8 could be subject to significant tax liabilities.
Euronav and Gener8 intend for the Merger to qualify as a tax-free reorganization for U.S. federal income tax purposes. Neither Euronav nor Gener8 has sought, and neither will seek, any ruling from the Internal Revenue Service regarding the Merger, nor will Euronav or Gener8 obtain an opinion of legal counsel as to whether the Merger will constitute a tax-free reorganization for U.S. federal income tax purposes. As a result, there can be no assurance that the Internal Revenue Service will not assert, or that a court would not sustain, a position that the Merger fails to qualify as a tax-free reorganization for U.S. federal income tax purposes. If the Merger were to fail to qualify as a tax-free reorganization for U.S. federal income tax purposes, shareholders of Gener8 could be subject to tax on gain, if any, realized upon the exchange of Gener8 common shares for Euronav ordinary shares. Conversely, if consistent with the intention of Euronav and Gener8, the Merger qualifies as a tax-free reorganization, shareholders of Gener8 will not be permitted to recognize a loss, if any, realized upon the exchange of Gener8 common shares for Euronav ordinary shares (other than with respect to cash received in lieu of fractional shares). See the section “Material Tax Considerations” for a discussion of the material U.S. federal income tax consequences of (i) the Merger and (ii) owning and disposing of Euronav ordinary shares.
Risks Related to Gener8
You should read and consider the risk factors specific to Gener8 that will also affect the Combined Company after completion of the Merger. These risks are described in Gener8’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2017, as filed with the SEC on May 9, 2017, Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2017, as filed with the SEC on August 7, 2017, Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2017, as filed with the SEC on November 9, 2017 and in its Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as filed with the SEC on March 13, 2017, each of which is incorporated by reference herein, and in other documents that are incorporated by reference into this proxy statement/prospectus. See the section “Where You Can Find More Information.”
Risks Related to Euronav
You should read and consider the risk factors specific to Euronav that will also affect the Combined Company after completion of the Merger. These risks are described in Euronav’s Annual Report on Form 20-F for the year ended December 31, 2016, which is incorporated by reference herein, and in other documents that are incorporated by reference into this proxy statement/prospectus. See the section “Where You Can Find More Information.”
Risks Relating to Euronav ordinary shares
The price of Euronav ordinary shares after the Merger may be volatile.
The price of Euronav ordinary shares may fluctuate due to factors such as:
•
actual or anticipated fluctuations in Euronav’s quarterly and annual results and those of other public companies in its industry;
•
mergers and strategic alliances in the tanker industry;
•
market conditions in the tanker industry;
•
changes in government regulation;
•
the failure of securities analysts to publish research about Euronav after the Merger, or shortfalls in Euronav’s operating results from levels forecast by securities analysts;
•
announcements concerning Euronav or its competitors; and
•
the general state of the securities market.
The seaborne transportation industry has been highly unpredictable and volatile. The market for Euronav ordinary shares may be equally volatile.
Euronav may issue additional ordinary shares or other equity securities without your approval, which would dilute your ownership interests and may depress the market price of Euronav’s ordinary shares.
Euronav may issue additional ordinary shares or other equity securities of equal or senior rank in the future in connection with, among other things, future vessel acquisitions, repayment of outstanding indebtedness, or its equity incentive plan, without shareholder approval, in a number of circumstances.
Euronav’s issuance of additional ordinary shares or other equity securities of equal or senior rank would have the following effects, among others:
•
its existing shareholders’ proportionate ownership interest in it will decrease;
•
the amount of cash available for dividends payable on its ordinary shares may decrease; and
•
the relative voting strength of each previously outstanding common share may be diminished; and the market price of its ordinary shares may decline.
INFORMATION ABOUT THE COMBINED COMPANY
In this section, references to “we”, “us” and “our” are references to the Combined Company resulting from the Merger. All statistics and other financial information in this section are presented on a pro-forma basis, giving effect to the Merger.
Overview
We are an independent tanker company engaged in the ocean transportation and storage of crude oil that was incorporated under the laws of Belgium on June 26, 2003. We are headquartered in Antwerp, Belgium, and have offices located in the United Kingdom, France, Greece, Hong Kong and Singapore. Euronav is listed on Euronext Brussels and on the NYSE under the symbol “EURN.” Following the Merger and the sale of six VLCCs to International Seaways, the Combined Company’s fleet of vessels which it owns or operates is expected to have an aggregate carrying capacity of approximately 19.1 million deadweight tons, or dwt and to consist of one V-Plus crude carrier, 43 very large crude carriers, or VLCCs (including four vessels that we charter-in), 28 Suezmax vessels (which include the four newbuildings expected to be delivered in 2018), two Panamax vessels, one Aframax vessel, and two floating, storage and offloading vessels, or FSOs (in which we hold a 50% ownership interest). We refer to the Combined Company’s vessels collectively as the “Combined Fleet.”
The Combined Fleet
The following table summarizes key information about the Combined Fleet giving effect to the completion of the Merger.
|
Owned Vessels
|
|
|
Type
|
|
|
DWT
|
|
|
Built
|
|
|
Shipyard
(1)
|
|
|
TI Europe
|
|
|
|
|
V-Plus
|
|
|
|
|
|
441,561
|
|
|
|
2002
|
|
|
Daewoo
|
|
|
Sandra
|
|
|
|
|
VLCC
|
|
|
|
|
|
323,527
|
|
|
|
2011
|
|
|
STX
|
|
|
Sara
|
|
|
|
|
VLCC
|
|
|
|
|
|
323,183
|
|
|
|
2011
|
|
|
STX
|
|
|
Alsace
|
|
|
|
|
VLCC
|
|
|
|
|
|
320,350
|
|
|
|
2012
|
|
|
Samsung
|
|
|
TI Hellas
|
|
|
|
|
VLCC
|
|
|
|
|
|
319,254
|
|
|
|
2005
|
|
|
Hyundai
|
|
|
Ilma
|
|
|
|
|
VLCC
|
|
|
|
|
|
314,000
|
|
|
|
2012
|
|
|
Hyundai
|
|
|
Simone
|
|
|
|
|
VLCC
|
|
|
|
|
|
313,988
|
|
|
|
2012
|
|
|
STX
|
|
|
Sonia
|
|
|
|
|
VLCC
|
|
|
|
|
|
314,000
|
|
|
|
2012
|
|
|
STX
|
|
|
Ingrid
|
|
|
|
|
VLCC
|
|
|
|
|
|
314,000
|
|
|
|
2012
|
|
|
Hyundai
|
|
|
Iris
|
|
|
|
|
VLCC
|
|
|
|
|
|
314,000
|
|
|
|
2012
|
|
|
Hyundai
|
|
|
Nautic
|
|
|
|
|
VLCC
|
|
|
|
|
|
307,284
|
|
|
|
2008
|
|
|
Dalian
|
|
|
Newton
|
|
|
|
|
VLCC
|
|
|
|
|
|
307,284
|
|
|
|
2009
|
|
|
Dalian
|
|
|
Nectar
|
|
|
|
|
VLCC
|
|
|
|
|
|
307,284
|
|
|
|
2008
|
|
|
Dalian
|
|
|
Noble
|
|
|
|
|
VLCC
|
|
|
|
|
|
307,284
|
|
|
|
2008
|
|
|
Dalian
|
|
|
VK Eddie
|
|
|
|
|
VLCC
|
|
|
|
|
|
305,261
|
|
|
|
2005
|
|
|
Daewoo
|
|
|
Hojo
|
|
|
|
|
VLCC
|
|
|
|
|
|
302,965
|
|
|
|
2013
|
|
|
JMU
|
|
|
Hakone
|
|
|
|
|
VLCC
|
|
|
|
|
|
302,624
|
|
|
|
2010
|
|
|
Universal
|
|
|
Hirado
|
|
|
|
|
VLCC
|
|
|
|
|
|
302,550
|
|
|
|
2011
|
|
|
Universal
|
|
|
Hakata
|
|
|
|
|
VLCC
|
|
|
|
|
|
302,550
|
|
|
|
2010
|
|
|
Universal
|
|
|
Antigone
|
|
|
|
|
VLCC
|
|
|
|
|
|
299,421
|
|
|
|
2015
|
|
|
Hyundai
|
|
|
Anne
|
|
|
|
|
VLCC
|
|
|
|
|
|
299,533
|
|
|
|
2016
|
|
|
Hyundai
|
|
|
Alex
|
|
|
|
|
VLCC
|
|
|
|
|
|
299,445
|
|
|
|
2016
|
|
|
Hyundai
|
|
|
Alice
|
|
|
|
|
VLCC
|
|
|
|
|
|
299,320
|
|
|
|
2016
|
|
|
Hyundai
|
|
|
Aquitaine
|
|
|
|
|
VLCC
|
|
|
|
|
|
298,767
|
|
|
|
2017
|
|
|
Hyundai
|
|
|
Owned Vessels
|
|
|
Type
|
|
|
DWT
|
|
|
Built
|
|
|
Shipyard
(1)
|
|
|
Ardeche
|
|
|
|
|
VLCC
|
|
|
|
|
|
298,642
|
|
|
|
2017
|
|
|
Hyundai
|
|
|
Gener8 Nestor
|
|
|
|
|
VLCC
|
|
|
|
|
|
297,638
|
|
|
|
2017
|
|
|
Hanjin
|
|
|
Gener8 Ethos
|
|
|
|
|
VLCC
|
|
|
|
|
|
298,991
|
|
|
|
2017
|
|
|
Samho
|
|
|
Gener8 Hector
|
|
|
|
|
VLCC
|
|
|
|
|
|
297,363
|
|
|
|
2017
|
|
|
Hanjin
|
|
|
Gener8 Andriotis
(2)
|
|
|
|
|
VLCC
|
|
|
|
|
|
301,014
|
|
|
|
2016
|
|
|
Waigaoqiao
|
|
|
Gener8 Apollo
|
|
|
|
|
VLCC
|
|
|
|
|
|
301,417
|
|
|
|
2016
|
|
|
Daewoo
|
|
|
Gener8 Ares
|
|
|
|
|
VLCC
|
|
|
|
|
|
301,587
|
|
|
|
2016
|
|
|
Daewoo
|
|
|
Gener8 Chiotis
(2)
|
|
|
|
|
VLCC
|
|
|
|
|
|
300,973
|
|
|
|
2016
|
|
|
Waigaoqiao
|
|
|
Gener8 Constantine
|
|
|
|
|
VLCC
|
|
|
|
|
|
299,011
|
|
|
|
2016
|
|
|
Samho
|
|
|
Gener8 Hera
|
|
|
|
|
VLCC
|
|
|
|
|
|
301,619
|
|
|
|
2016
|
|
|
Daewoo
|
|
|
Gener8 Macedon
|
|
|
|
|
VLCC
|
|
|
|
|
|
298,991
|
|
|
|
2016
|
|
|
Samho
|
|
|
Gener8 Miltiades
(2)
|
|
|
|
|
VLCC
|
|
|
|
|
|
301,038
|
|
|
|
2016
|
|
|
Waigaoqiao
|
|
|
Gener8 Nautilus
|
|
|
|
|
VLCC
|
|
|
|
|
|
298,991
|
|
|
|
2016
|
|
|
Samho
|
|
|
Gener8 Oceanus
|
|
|
|
|
VLCC
|
|
|
|
|
|
299,011
|
|
|
|
2016
|
|
|
Samho
|
|
|
Gener8 Perseus
|
|
|
|
|
VLCC
|
|
|
|
|
|
299,392
|
|
|
|
2016
|
|
|
Hyundai
|
|
|
Gener8 Success
(2)
|
|
|
|
|
VLCC
|
|
|
|
|
|
300,932
|
|
|
|
2016
|
|
|
Waigaoqiao
|
|
|
Gener8 Athena
|
|
|
|
|
VLCC
|
|
|
|
|
|
299,999
|
|
|
|
2015
|
|
|
Daewoo
|
|
|
Gener8 Neptune
|
|
|
|
|
VLCC
|
|
|
|
|
|
299,999
|
|
|
|
2015
|
|
|
Daewoo
|
|
|
Gener8 Strength
(2)
|
|
|
|
|
VLCC
|
|
|
|
|
|
300,960
|
|
|
|
2015
|
|
|
Waigaoqiao
|
|
|
Gener8 Atlas
|
|
|
|
|
VLCC
|
|
|
|
|
|
306,005
|
|
|
|
2007
|
|
|
Daewoo
|
|
|
Gener8 Hercules
|
|
|
|
|
VLCC
|
|
|
|
|
|
306,543
|
|
|
|
2007
|
|
|
Daewoo
|
|
|
Gener8 Supreme
(2)
|
|
|
|
|
VLCC
|
|
|
|
|
|
300,933
|
|
|
|
2016
|
|
|
Waigaoqiao
|
|
|
Cap Diamant
|
|
|
|
|
Suezmax
|
|
|
|
|
|
160,044
|
|
|
|
2001
|
|
|
Hyundai
|
|
|
Cap Pierre
|
|
|
|
|
Suezmax
|
|
|
|
|
|
159,083
|
|
|
|
2004
|
|
|
Samsung
|
|
|
Cap Leon
|
|
|
|
|
Suezmax
|
|
|
|
|
|
159,049
|
|
|
|
2003
|
|
|
Samsung
|
|
|
Cap Philippe
|
|
|
|
|
Suezmax
|
|
|
|
|
|
158,920
|
|
|
|
2006
|
|
|
Samsung
|
|
|
Cap Guillaume
|
|
|
|
|
Suezmax
|
|
|
|
|
|
158,889
|
|
|
|
2006
|
|
|
Samsung
|
|
|
Cap Charles
|
|
|
|
|
Suezmax
|
|
|
|
|
|
158,881
|
|
|
|
2006
|
|
|
Samsung
|
|
|
Cap Victor
|
|
|
|
|
Suezmax
|
|
|
|
|
|
158,853
|
|
|
|
2007
|
|
|
Samsung
|
|
|
Cap Lara
|
|
|
|
|
Suezmax
|
|
|
|
|
|
158,826
|
|
|
|
2007
|
|
|
Samsung
|
|
|
Cap Theodora
|
|
|
|
|
Suezmax
|
|
|
|
|
|
158,819
|
|
|
|
2008
|
|
|
Samsung
|
|
|
Cap Felix
|
|
|
|
|
Suezmax
|
|
|
|
|
|
158,765
|
|
|
|
2008
|
|
|
Samsung
|
|
|
Fraternity
|
|
|
|
|
Suezmax
|
|
|
|
|
|
157,714
|
|
|
|
2009
|
|
|
Samsung
|
|
|
Felicity
|
|
|
|
|
Suezmax
|
|
|
|
|
|
157,667
|
|
|
|
2009
|
|
|
Samsung
|
|
|
Captain Michael
|
|
|
|
|
Suezmax
|
|
|
|
|
|
157,648
|
|
|
|
2012
|
|
|
Samsung
|
|
|
Maria
|
|
|
|
|
Suezmax
|
|
|
|
|
|
157,523
|
|
|
|
2012
|
|
|
Samsung
|
|
|
Finesse
|
|
|
|
|
Suezmax
|
|
|
|
|
|
149,994
|
|
|
|
2003
|
|
|
Universal
|
|
|
Filikon
|
|
|
|
|
Suezmax
|
|
|
|
|
|
149,989
|
|
|
|
2002
|
|
|
Universal
|
|
|
Cap Romuald
|
|
|
|
|
Suezmax
|
|
|
|
|
|
146,640
|
|
|
|
1998
|
|
|
Samsung
|
|
|
Cap Jean
|
|
|
|
|
Suezmax
|
|
|
|
|
|
146,643
|
|
|
|
1998
|
|
|
Samsung
|
|
|
Gener8 Spartiate
|
|
|
|
|
Suezmax
|
|
|
|
|
|
164,925
|
|
|
|
2011
|
|
|
Hyundai
|
|
|
Gener8 Maniate
|
|
|
|
|
Suezmax
|
|
|
|
|
|
164,715
|
|
|
|
2010
|
|
|
Hyundai
|
|
|
Gener8 St. Nikolas
|
|
|
|
|
Suezmax
|
|
|
|
|
|
149,876
|
|
|
|
2008
|
|
|
Universal
|
|
|
Owned Vessels
|
|
|
Type
|
|
|
DWT
|
|
|
Built
|
|
|
Shipyard
(1)
|
|
|
Gener8 Kara G
|
|
|
|
|
Suezmax
|
|
|
|
|
|
150,296
|
|
|
|
2007
|
|
|
Universal
|
|
|
Gener8 George T
|
|
|
|
|
Suezmax
|
|
|
|
|
|
149,847
|
|
|
|
2007
|
|
|
Universal
|
|
|
Gener8 Harriet G
|
|
|
|
|
Suezmax
|
|
|
|
|
|
150,296
|
|
|
|
2006
|
|
|
Universal
|
|
|
Gener8 Defiance
|
|
|
|
|
Aframax
|
|
|
|
|
|
105,538
|
|
|
|
2002
|
|
|
Sumitoto
|
|
|
Gener8 Companion
|
|
|
|
|
Pananax
|
|
|
|
|
|
72,749
|
|
|
|
2004
|
|
|
Dalian
|
|
|
Gener8 Compatriot
|
|
|
|
|
Pananax
|
|
|
|
|
|
72,749
|
|
|
|
2004
|
|
|
Dalian
|
|
|
Hull S909
(3)
|
|
|
|
|
Suezmax
|
|
|
|
|
|
156,600
|
|
|
|
2018
|
|
|
Hyundai
|
|
|
Hull S910
(3)
|
|
|
|
|
Suezmax
|
|
|
|
|
|
156,600
|
|
|
|
2018
|
|
|
Hyundai
|
|
|
Hull S911
(3)
|
|
|
|
|
Suezmax
|
|
|
|
|
|
156,600
|
|
|
|
2018
|
|
|
Hyundai
|
|
|
Hull S912
(3)
|
|
|
|
|
Suezmax
|
|
|
|
|
|
156,600
|
|
|
|
2018
|
|
|
Hyundai
|
|
|
Total DWT — Owned
|
|
|
|
|
|
|
|
|
|
|
18,771,822
|
|
|
|
|
|
|
|
|
|
Chartered-In Vessels
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charter-in Date
|
|
|
|
|
|
Nucleus
|
|
|
|
|
VLCC
|
|
|
|
|
|
307,284
|
|
|
|
Dec. 2021
|
|
|
Dalian
|
|
|
Nautilus
|
|
|
|
|
VLCC
|
|
|
|
|
|
307,284
|
|
|
|
Dec. 2021
|
|
|
Dalian
|
|
|
Navarin
|
|
|
|
|
VLCC
|
|
|
|
|
|
307,284
|
|
|
|
Dec. 2021
|
|
|
Dalian
|
|
|
Neptun
|
|
|
|
|
VLCC
|
|
|
|
|
|
307,284
|
|
|
|
Dec. 2021
|
|
|
Dalian
|
|
|
Total DWT — Chartered-In Vessels
|
|
|
|
|
|
|
|
|
|
|
1,229,136
|
|
|
|
|
|
|
|
|
|
FSO Vessels
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Built
|
|
|
|
|
|
FSO Africa
(4)
|
|
|
|
|
FSO
|
|
|
|
|
|
442,000
|
|
|
|
2002
|
|
|
Daewoo
|
|
|
FSO Asia
(4)
|
|
|
|
|
FSO
|
|
|
|
|
|
442,000
|
|
|
|
2002
|
|
|
Daewoo
|
|
|
Total DWT — FSO
|
|
|
|
|
|
|
|
|
|
|
884,000
|
|
|
|
|
|
|
|
|
(1)
As used in this proxy statement/prospectus, “Samsung” refers to Samsung Heavy Industries Co., Ltd, “Hyundai” refers to Hyundai Heavy Industries Co., Ltd., “Universal” refers to Universal Shipbuilding Corporation, “Hanjin” refers to Hanjin Heavy Industries Co. Ltd., ‘Samho” refers to Samho Shipbuilding Co., Ltd., “Daewoo” refers to Daewoo Shipbuilding and Marine Engineering S.A., “JMU” refers to Japan Marine United Corp., Ariake Shipyard, Japan, “Dalian” refers to Dalian Shipbuilding Industry Co. Ltd., “STX” refers to STX Offshore and Shipbuilding Co. Ltd., “Waigaoqiao” refers to Shanghai Waigaoqiao Shipbuilding Co., Ltd., and “Sumitoto” refers to Sumitoto Heavy Industries, Ltd.
(2)
Vessels expected to be sold to International Seaways, subject to the consummation of the Merger and at the Closing thereof. Please see the section “The Merger Agreement — Related Agreements — Sale of Six VLCC Vessels.”
(3)
Vessels expected to be delivered to the Combined Company during the course of 2018.
(4)
Vessels in which we hold a 50% ownership interest.
Chartering Strategy of the Combined Company
It is Euronav’s intention to employ as soon as commercially practicable all of the Gener8 vessels, on the spot market, including within the Tankers International Pool, a leading spot market-oriented VLCC pool in which other shipowners with vessels of similar size and quality participate along with us. Please also see “Information About Euronav — Employment of Euronav’s Fleet — The Tankers International Pool” contained in Euronav’s Form 6-K filed with the SEC on February 14, 2018 and incorporated by reference into this proxy statement/prospectus.
Generally, the Combined Company will operate its vessels in commercial pools, on time charters or in the spot market, consistent with the strategy currently employed by Euronav, as described under “Information About Euronav — Employment of Euronav’s Fleet” contained in Euronav’s Form 6-K filed with the SEC on February 14, 2018 and incorporated by reference into this proxy statement/prospectus.
Management of the Combined Fleet
Generally, the Combined Fleet will be technically and commercially managed as described under “Information About Euronav — Technical and Commercial Management of our Vessels” contained in Euronav’s Form 6-K filed with the SEC on February 14, 2018 and incorporated by reference into this proxy statement/prospectus. As a result of the Merger, a larger proportion of the vessels in the Combined Fleet may be managed by third-party managers than the proportion of vessels in the Euronav fleet that were previously managed by third-party managers prior to the Merger. Prior to completion of the Merger, substantially all vessels in Gener8’s fleet are contracted to operate in various tanker pools managed by entities affiliated with the Navig8 Group. Upon completion of the Merger, the Combined Company may seek to withdraw all or some of these vessels from these pools or terminate the pool agreements, which could result in additional costs.
Board of Directors and Executive Management
After the Merger, members of Euronav’s board of directors and executive management will continue to serve in such positions of the Combined Company. For information about Euronav’s board of directors and executive management, please see “Information About Euronav — Directors and Executive Management” contained in Euronav’s Form 6-K filed with the SEC on February 14, 2018 and incorporated by reference into this proxy statement/prospectus.
In addition, Euronav has agreed, pursuant to the Merger Agreement, to take all actions necessary so that Mr. Steven Smith (a current director of Gener8) (or if Mr. Smith is unavailable, then such other person designated by the Gener8 Transaction Committee who is reasonably satisfactory to Euronav, which acceptance shall not be unreasonably withheld) will, upon recommendation of Euronav’s corporate governance and nomination committee, be proposed for election to serve on Euronav’s board of directors at the next regularly scheduled annual meeting of Euronav’s shareholders.
Biographical information for Mr. Smith is set forth below.
Steven D. Smith —
Steven D. Smith served as a director of Gener8 since January 2014. Mr. Smith is the Managing Partner of Aurora Resurgence (“Resurgence”). Prior to joining Resurgence, Mr. Smith held a variety of leadership positions at UBS Investment Bank, including Global Head of Restructuring, Global Head of Leverage Finance and Americas Head of Financial Sponsors. He also served on the Americas Executive Committee and Global Management Committee. Before joining UBS in 2001, Mr. Smith was a Managing Director at Credit Suisse and DLJ, where he was a member of the restructuring and leveraged finance groups. Mr. Smith began his career in leveraged finance and restructuring as an associate at Latham & Watkins, LLP. Mr. Smith received a BA in English and American Literature from the University of California, San Diego and a JD/MBA from UCLA. He served as a judicial clerk on the Ninth Circuit Court of Appeals following his graduation from UCLA. As a result of these and other professional experiences, we believe Mr. Smith possesses knowledge and experience regarding banking, finance and capital markets that strengthen the Board’s collective qualifications, skills and experience.
THE SPECIAL MEETING
This proxy statement/prospectus is being provided to holders of Gener8 common shares as part of a solicitation of proxies by the Gener8 board of directors for use at the Special Meeting.
Date, Time and Place
The Special Meeting of shareholders of Gener8 will be held at the offices of Kramer Levin Naftalis & Frankel LLP located at 1177 Avenue of the Americas, New York, NY, 10036, on [•], 2018, at [•] a.m. local time, unless adjourned or postponed to a later time.
Purpose of the Special Meeting
At the special meeting, we are asking holders of Gener8 common shares:
•
to consider and vote upon a proposal to approve the Merger Agreement, and the transactions contemplated thereby, including, among other things: (i) the merger of Merger Sub with and into Gener8, with Gener8 continuing its corporate existence as the Surviving Corporation and as a wholly-owned subsidiary of Euronav, (ii) the cancellation, at the Effective Time, of each Gener8 Common Share issued and outstanding immediately prior to such time (other than certain Gener8 common shares that will be canceled as set forth in the Merger Agreement), and the automatic conversion thereof into the right to receive 0.7272 of a Euronav ordinary share, and (iii) the appointment of the Exchange Agent to act as agent for the Merger and to, among other things, act as agent solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders, with the right of sub-delegation, for the purpose of, amongst other things, contributing the Surviving Corporation Shares (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A) to Euronav by way of a Contribution In Kind for which the Exchange Agent shall receive the Merger Consideration in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders; and
•
to consider and vote upon a proposal to approve adjournments or postponements of the special meeting, if necessary, to permit further solicitation of proxies if there are not sufficient votes at the time of the meeting to approve the Merger Agreement.
Approval and Recommendation of the Gener8 Transaction Advisory Committee and the Gener8 Board of Directors
The Gener8 board of directors (with Peter C. Georgiopoulos, Dan Ilany and Nicolas Busch abstaining), upon the unanimous recommendation of the Gener8 Transaction Committee, has approved the Merger Agreement and determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are in the best interests of the Gener8 shareholders. The Gener8 board of directors (with Peter C. Georgiopoulos, Dan Ilany and Nicolas Busch abstaining), upon the unanimous recommendation of the Gener8 Transaction Committee, recommends that you vote “
FOR
” the approval of the Merger Agreement.
Record Date; Outstanding Shares; Shares Entitled to Vote
Only holders of record of Gener8 common shares at the close of business on the record date, [•], are entitled to notice of and to vote at the Special Meeting. As of the close of business on the record date, there were [•] Gener8 common shares issued and outstanding and entitled to vote at the Special Meeting or any and all adjournments or postponements thereof. All Gener8 common shares that were outstanding as of the close of business on the record date are entitled to one vote per share.
Upon the request of any shareholder at the Special Meeting or prior thereto for purposes germane to the Special Meeting, Gener8 will provide at the Special Meeting a list of shareholders as of the record date.
Quorum
At least a majority of the total voting rights of the total issued and outstanding shares of Gener8 common stock entitled to vote present in person or represented by proxy shall constitute a quorum for the purposes of the meeting. If you submit a properly executed proxy card, you will be considered part of the quorum.
Abstentions and broker “non-votes” are counted as present and entitled to vote at the Special Meeting for purposes of determining a quorum. A broker “non-vote” occurs when a nominee holding shares for a beneficial owner does not vote on a particular proposal because the nominee does not have discretionary voting power for that particular item and has not received instructions from the beneficial owner.
If a quorum is not present or if there are not sufficient votes for the approval of the Merger Agreement, Gener8 expects that the Special Meeting will be adjourned to solicit additional proxies. At any subsequent reconvening of the Special Meeting, all proxies will be voted in the same manner as the manner in which such proxies would have been voted at the original convening of the Special Meeting, except for any proxies that have been validly revoked or withdrawn prior to the subsequent meeting.
Vote Required
The Merger Agreement is required to be approved by shareholders representing at least a majority of the issued and outstanding Gener8 common shares on the record date for the Special Meeting. Abstentions and broker non-votes have the same effect as a vote against the proposal. Pursuant to the Voting Agreement, the Covered Shareholders, representing approximately 42% of the issued and outstanding shares of Gener8, have agreed, subject to the terms and conditions of the Voting Agreement, to (i) appear (in person or by proxy) at the Special Meeting, and (ii) vote all of their Covered Shares in favor of the Merger, the Merger Agreement and the transactions contemplated thereby at the Special Meeting. In the case of the Covered Shareholders, if either the Gener8 Transaction Committee or the Gener8 board of directors makes an Adverse Recommendation Change regarding the Merger, then such shareholders will each vote 50% of their respective Covered Shares in favor of the Merger, the Merger Agreement and the transactions contemplated thereby at the Special Meeting, and may vote their remaining Covered Shares in any manner they determine.
In addition, at the request (and expense) of Euronav, the Proxy Shareholders have agreed to grant to a representative of an affiliate of such Proxy Shareholders whereby, subject to the terms and conditions in the Proxies, such representative has the authority to direct the vote of Gener8 common shares owned by the Proxy Shareholders, representing in the aggregate approximately 6% of the issued and outstanding shares of Gener8, at the Special Meeting. In addition, the Proxy Shareholders have agreed, among other things, not to transfer or dispose any of their Gener8 common shares during the term of the Proxies unless the transferee agrees to be bound thereby. Please see the section “The Merger Agreement — Voting Agreement and Proxies”.
As of the date of this proxy statement/prospectus, shareholders representing approximately 48% of the issued and outstanding shares of Gener8, including certain current directors of Gener8, have entered into either the Voting Agreement or the Proxies.
Voting by Directors and Executive Officers
As of the date of this proxy statement/prospectus, directors and executive officers of Gener8 personally owned (directly or indirectly) and had the right to vote approximately 1.96% of the issued and outstanding Gener8 common shares entitled to be voted at the Special Meeting. Entities affiliated with directors and executive officers of Gener8 owned (directly and indirectly) and had the right to vote approximately 36.1% of the issued and outstanding Gener8 common shares entitled to be voted at the Special Meeting.
Voting; Proxies
If you were a holder of record of Gener8 common shares at the close of business on the record date, you may vote in person by attending the Special Meeting or, to ensure that your shares are represented at the Special Meeting, you may authorize a proxy to vote. To vote by proxy, after carefully reading and considering the information contained in, and incorporated by reference into, this document, please fill out, sign and date the proxy card and then mail your signed proxy card in the enclosed envelope, as soon as possible so that your shares may be voted at the Special Meeting.
All Gener8 common shares represented by each properly executed and valid proxy received by [•] p.m. on [•] will be voted in accordance with the instructions given on the proxy. If a holder of Gener8 common shares executes a proxy card without giving instructions, the Gener8 common shares represented by that proxy card will be voted “
FOR
” each of the proposals.
Your vote is very important, regardless of the number of shares you own. Accordingly, please submit your proxy whether or not you plan to attend the Special Meeting in person. Proxies must be received by [•] on [•].
If your Gener8 common shares are held beneficially in “street name,” you should instruct your bank, broker, trustee or other nominee to vote your shares. If you do not instruct your bank, broker, trustee or other nominee, it will not be able to vote your shares. Please check with your bank, broker, trustee or other nominee and follow the voting procedures it provides. Your bank, broker, trustee or other nominee will advise you whether you may submit voting instructions by telephone or via the Internet. Please note that you may not vote shares held in street name by returning a proxy card directly to Gener8 or by voting in person at the Gener8 special meeting unless you provide a “legal proxy,” which you must obtain from your bank or broker.
Revocations
If your Gener8 common shares are registered directly in your name, you may change or revoke your vote after you have submitted your proxy by any of the following methods:
•
by writing a letter delivered to Gener8 Maritime, Inc., 299 Park Avenue, Second Floor, New York, New York 10171, attention: Leonard J. Vrondissis, Secretary, stating that the proxy is revoked;
•
by submitting a later proxy that Gener8 receives no later than the conclusion of voting at the Special Meeting;
•
by attending the Special Meeting and voting in person (although attendance at the Special Meeting will not, by itself, revoke a proxy); or
•
voting again via the Internet or by telephone (only the last vote cast by each shareholder of record will be counted), provided that you do so before 11:59 p.m. Eastern Daylight Time on the day before the Special Meeting.
If your Gener8 common shares are held in “street name” by a bank, broker, trustee or other nominee, you must follow the directions you receive from your bank, broker, trustee or other nominee in order to change or revoke your vote and any deadlines for the receipt of those instructions.
Failure to Vote or Specify Vote
If you do not vote your Gener8 common shares with respect to the proposal to approve the Merger Agreement, including the transactions contemplated thereby, it will have the same effect as a vote against the proposal. However, if the proposal to approve the Merger Agreement, including the transactions contemplated thereby, is approved and the Merger is completed, your Gener8 common shares will be converted into the right to receive the Merger Consideration even though you did not vote.
If you submit a proxy without specifying the manner in which you would like your Gener8 common shares to be voted, your Gener8 common shares will be voted “
FOR
” approval of the Merger Agreement.
Questions and Additional Information
If you have more questions about the Merger, including the procedures for voting your Gener8 common shares you should contact D.F. King & Co., Inc., Gener8’s proxy solicitor at 48 Wall Street New York, NY 10005, or by e-mail to gnrt@dfking.com. If a bank, broker, trustee or other nominee holds your Gener8 common shares, then you should also contact your bank, broker, trustee or other nominee for additional information.
THE MERGER
Transaction Structure
On December 20, 2017, Euronav entered into the Merger Agreement among Gener8, Euronav and Merger Sub and the Voting Agreement among Euronav and the Covered Shareholders, representing approximately 42% of the issued and outstanding shares of Gener8. In connection with entry into the Merger Agreement, Euronav also entered into (i) memoranda of agreement with Gener8 to purchase three specified vessels if the Merger is not consummated and (ii) an agreement to sell six specified VLCCs to International Seaways, subject to the consummation of the Merger.
Pursuant to the Merger Agreement, subject to the satisfaction or waiver of certain conditions, Merger Sub will merge with and into Gener8. Following the Merger, Gener8 will continue its corporate existence under the BCA as the Surviving Corporation and will be a direct wholly-owned subsidiary of Euronav. The terms and conditions of the Merger are contained in the Merger Agreement, which is described in this proxy statement/prospectus and is included in this proxy statement/prospectus as Annex A. You are encouraged to read the Merger Agreement carefully and in its entirety because it is the legal agreement that governs the Merger. All descriptions in this summary and elsewhere in this proxy statement/prospectus of the terms and conditions of the Merger are qualified by reference to the Merger Agreement. In addition to shareholder approval at the Special Meeting, other important conditions to the completion of the Merger exist. Assuming the satisfaction or waiver of all of the conditions in the Merger Agreement, Gener8 and Euronav expect to complete the Merger in the second quarter of 2018. However, Gener8 and Euronav cannot assure you when or if the Merger will occur.
Assumption of Indebtedness
If the Merger is completed, Euronav will assume certain of the existing indebtedness of Gener8. Euronav intends to assume an aggregate amount of $1,358.0 million of existing indebtedness (which was the amount outstanding as of December 31, 2017) in connection with the completion of the Merger.
Furthermore, Gener8 and certain of its affiliates are party to (a) that certain $385,227,495 Facility Agreement, dated as of November 30, 2015 (as supplemented by a Supplemental Agreement, dated as of December 28, 2015, as amended and restated by an Amending and Restating Deed, dated as of June 29, 2016 and as further supplemented by a Second Supplemental Agreement, dated as of November 8, 2017, the “Sinosure Credit Agreement”), among Gener8 Maritime Subsidiary VII Inc., as borrower, Gener8 Maritime Subsidiary V, as shareholder, Gener8, as parent guarantor, the guarantors party thereto, the lenders party thereto and Nordea Bank AB (publ), New York Branch, as facility agent for the lenders, and (b) that certain $963,743,455 Facility Agreement, dated as of August 31, 2015 (as amended by Amendment No. 1, dated as of October 20, 2016, Amendment No. 2, dated as of March 24, 2017, and Amendment No. 3, dated as of June 1, 2017, the “KEXIM Credit Agreement”), among Gener8 Maritime Subsidiary VIII Inc., as borrower, Gener8 Maritime Subsidiary V, as shareholder, Gener8, as parent guarantor, the guarantors party thereto, the lenders party thereto and Nordea Bank AB (publ), New York Branch, as facility agent for the lenders.
In connection with the completion of the Merger, Gener8 is required to obtain (i) the consent of the required parties under its applicable credit agreements to (1) permit Euronav’s ownership of Gener8’s equity interests; (2) remove the requirement that each of Peter Georgiopoulos, Gary Brocklesby and Nicolas Busch remain a director of Gener8; (3) permit the Merger; (4) permit the payment in full of Gener8’s indebtedness to certain affiliates of BlueMountain Capital Management, LLC and (5) remove the requirement that Gener8’s shares remain listed on the NYSE; and (ii) such other amendments, consents and waivers under its applicable credit agreements and related transaction documents in order to allow the Merger to be properly entered into and documented without causing a breach of any of the terms of such agreements. The parties expect to obtain the Specified Approvals prior to or substantially contemporaneous with the consummation of the Merger.
Pursuant to the BlueMountain Agreement, the Senior Notes, issued by Gener8 to certain affiliates of BlueMountain, will be prepaid and redeemed in full contemporaneously with the Closing of the Merger. As of December 31, 2017, the Senior Notes have a carrying value of $194.4 million. Euronav expects the prepayment of the Senior Notes to be approximately $207.0 million (which includes a 1% prepayment penalty), which Euronav expects to finance in full with cash on hand and drawings under its credit facilities.
Gener8 is also a party to that certain $581,000,000 credit agreement, dated as of September 3, 2015, by and among Gener8, as parent, Gener8 Maritime Subsidiary II Inc., as borrower, the lenders party thereto, and Nordea Bank Finland plc, New York Branch, as facility agent and collateral agent, as amended by an Amendment No. 1 thereto dated as of December 15, 2016 (the “Nordea Credit Agreement”). Euronav expects to assume the existing indebtedness under the Nordea Credit Agreement subject to acquiring any necessary amendments, consents and waivers from the lenders.
Merger Consideration
If the Merger is completed, each holder of Gener8 common shares and holders of Gener8 restricted stock units will be entitled to receive 0.7272 of a Euronav ordinary share for each share of Gener8 common stock owned by or issuable to such holder (excluding the Specified Gener8 Shares, as defined below) (as may be adjusted if, prior to the Effective Time of the Merger, the outstanding number of Euronav ordinary shares has changed into a different number of shares or a different class by reason of any stock dividend or distribution, subdivision, reclassification, recapitalization, stock split, reverse stock split, stock consolidation, combination, exchange of shares or other similar change or event, in accordance with the Merger Agreement). Additionally, any Gener8 common shares held by Gener8, Euronav, Merger Sub or their respective subsidiaries (the “Specified Gener8 Shares”) will be canceled and no Merger Consideration or other consideration will be delivered for those canceled shares. Under the Merger Agreement, the Exchange Ratio and the Merger Consideration will not be adjusted to reflect changes in the price of Gener8 common shares or Euronav ordinary shares prior to the Effective Time of the Merger. Euronav has agreed to apply to list all of the Euronav ordinary shares to be issued in connection with the Merger on the NYSE and on Euronext.
The value of the Merger Consideration will fluctuate with the market price of Euronav ordinary shares. Holders of Gener8 common shares should obtain current share price quotations for Euronav ordinary shares, which are listed on the NYSE and Euronext under the symbol “EURN.” Gener8 common shares are listed on the NYSE under the symbol “GNRT.” Based on the closing price of Euronav ordinary shares on the NYSE of $8.10 on December 20, 2017, the last trading day before the public announcement of the Merger before the open of trading on December 21, 2017, the aggregate consideration was $492.6 million. Based on the closing price of Euronav ordinary shares on the NYSE of $[•] on [•], the latest practicable date before the date of this proxy statement/prospectus, the aggregate consideration was $[•] million.
Euronav will not issue any fractional ordinary shares. Instead, each record holder of Gener8 common shares otherwise entitled to a fraction of a Euronav ordinary share will be entitled to receive an amount of cash (without interest, rounded to the nearest whole cent) determined by multiplying the fractional share interest to which the holder would otherwise be entitled by the volume weighted average price per share of Euronav ordinary shares on the NYSE for the three consecutive trading days ending on and including the trading day prior to the Effective Time. Holders of Gener8 common shares otherwise entitled to a fraction of a Euronav ordinary share that hold shares through a bank, broker, trustee or other nominee shall receive cash in lieu of fractional shares, if any, determined in accordance with the policies of such bank, broker, trustee or other nominee.
Conversion of Gener8 Common Shares
The conversion of Gener8 common shares into the right to receive the Merger Consideration will occur in the following manner: (a) first, at the Effective Time, each Gener8 common share issued and outstanding immediately prior to such time will be canceled and automatically converted into one share of the Surviving Corporation’s common stock which shall be delivered to the Exchange Agent acting solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders, and (b) second, as soon as possible thereafter, each such share of Surviving Corporation common stock so issued will be contributed by the Contributing Gener8 Shareholders, represented by the Exchange Agent, acting solely in the name and on behalf of and for the account and benefit of such Contributing Gener8 Shareholders, to Euronav in exchange for 0.7272 of a Euronav ordinary share. Following the Merger, if you are a shareholder of Gener8 at the Effective Time of the Merger, you will receive a letter of transmittal and instructions on how to obtain the Merger Consideration. You will receive your respective portion of the Merger Consideration after the Exchange Agent receives your completed letter of transmittal and/or such other documents that may be required by the Exchange Agent.
In order to accomplish the Contribution in Kind, the Exchange Agent will be appointed (and Euronav and Gener8 will enter into an agreement with the Exchange Agent which shall authorize the Exchange Agent) to act as agent for the Merger and to, among other things, act as agent solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders, with the right of sub-delegation, to facilitate the execution and implementation of the Contribution in Kind, including but not limited to representing the Contributing Gener8 Shareholders at the Closing (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), contributing the Surviving Corporation Shares (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A) to Euronav by way of a Contribution in Kind and delivering the Merger Consideration to such Contributing Gener8 Shareholders.
For each Gener8 common share recorded as held as of the Record Date, each holder of such Gener8 common share will be entitled to receive 0.7272 of a Euronav ordinary share and cash in lieu of fractional shares. Euronav will not issue any fractional ordinary shares. Instead, each record holder of Gener8 common shares otherwise entitled to a fraction of a Euronav ordinary share will be entitled to receive an amount of cash as described above.
Treatment of Gener8 Share Options
At the Effective Time, by virtue of the Merger and without any action on the part of any holder of Gener8 share options, each then outstanding Gener8 share option (whether or not then vested and exercisable) will terminate and be canceled in exchange for the right to receive the Option Consideration (as defined in “The Merger Agreement — Effect on Gener8 Share Options”), less any applicable withholding taxes. If the exercise price applicable to the Gener8 common shares underlying the Gener8 share option is equal to or greater than the value of the Merger Consideration applicable to such underlying shares, such share option will terminate and be canceled in exchange for no consideration. At the Effective Time, each holder of a Gener8 share option will cease to have any rights with respect thereto, except the right to receive the Option Consideration related to such Gener8 share option pursuant to the Merger Agreement. For a full description of the treatment of Gener8 Share Options, please see the section “The Merger Agreement — Effect on Gener8 Share Options.”. Additional information regarding the options to purchase Gener8 common shares is set forth in Gener8’s definitive proxy statement on Schedule 14A filed with the SEC on April 6, 2017.
Treatment of Gener8 Restricted Stock Units
At the Effective Time, by virtue of the Merger and without any action on the part of any holder of Gener8 restricted stock units, each then outstanding Gener8 restricted stock unit will become fully vested and will terminate and be canceled in exchange for the right to receive 0.7272 of a Euronav ordinary share, less any applicable withholding taxes. For a full description of the treatment of Gener8 restricted stock units, please see the section “The Merger Agreement — Effect on Gener8 Restricted Stock Units.” Additional information regarding the restricted stuck units is set forth in Gener8’s definitive proxy statement on Schedule 14A filed with the SEC on April 6, 2017.
Background of the Merger
As part of the continuous evaluation of its business, Gener8 regularly considers opportunities for business combinations and other strategic and commercial relationships to enhance shareholder value. Since its initial public offering in 2015, Gener8 has from time to time engaged in exploratory or preliminary discussions with a number of parties regarding potential strategic opportunities, including Euronav and other public and private strategic and financial counterparties. These opportunities have included potential transactions in which Gener8 would be a buyer and others in which Gener8 would be a seller. In its consideration of strategic opportunities, Gener8 has focused on potential benefits to the company and its shareholders including potential opportunities for increased scale, strengthened liquidity, improved financial profile, reduced leverage, increased public equity float, improved trading premiums, enhanced access to capital and improved flexibility to pay dividends, and the value of the consideration to be paid or received in any potential transaction.
The board of directors and management of Euronav regularly monitor the shipping and financial markets for opportunities that may be available to achieve its long-term operational and financial goals. Regular consideration and analysis is made of various strategic transactions including, among others, business combinations, divestitures, acquisitions and other strategic and commercial relationships.
During 2016 and 2017, Gener8 received unsolicited acquisition proposals from Company A, a publicly traded shipping company, and Company B, a privately held shipping company. During the same period, Gener8 approached Company C, a publicly traded shipping company, regarding a potential strategic opportunity. Gener8 also learned through industry sources of a potential strategic opportunity involving Company D, a publicly traded shipping company. Gener8 engaged in exploratory evaluations of each of these strategic opportunities but none of these explorations resulted in an advanced stage of discussions.
During July, 2016 Euronav first considered the desirability of a combination with Gener8 based on its preliminary analysis of Gener8. As a result of this analysis on July 19, 2016 RMK Maritime (Europe) Ltd., or RMK, was appointed to act as its financial advisor pursuant to an advisory agreement dated July 19, 2016 to consider a potential transaction.
On July 27, 2016, Euronav notified Argo Law, or Argo, who serves as the Company’s outside Belgian counsel, of a potential transaction with Gener8.
On September 13, 2016, the merits of a potential transaction with Gener8 were preliminarily discussed at a regular meeting of Euronav’s Board of Directors. Management presented an analysis on the potential transaction with Gener8 to Euronav’s Board of directors. The Board discussed possible financing structures for the transaction. The Board mandated management to continue analyzing the potential transaction and to prepare a potential legal and financial structure.
During mid-2016, Gener8 was closely monitoring its cash flows, liquidity and financial covenant compliance under its debt instruments in light of the weakness in charter rates and vessel values in the market. During the remainder of the year and 2017, the Gener8 board evaluated potential options, including strategic opportunities, vessel sale leasebacks, financings and equity offerings, to reduce its leverage and improve its liquidity and ability to comply with its financial covenants. In this period, Gener8 sold vessels, repaid outstanding indebtedness, obtained amendments to its credit facilities with respect to amortization payment dates and financial covenant ratios, re-couponed its interest rate swaps and negotiated a purchase price reduction under a newbuilding contract for a VLCC vessel. By the end of the third quarter of 2017, Gener8’s cash had doubled from the amount at the end of 2016. Gener8’s leverage had also been reduced and its covenant compliance margins had improved, although leverage ratios continued to be higher than those of other similarly situated publicly traded companies in the industry. These factors were taken into account in the Gener8 board’s evaluation of Gener8’s ability to continue with its existing business plan without engaging in any strategic transaction.
In October 2016, the Company notified Seward & Kissel LLP or Seward & Kissel, who serves as the Company’s outside U.S. legal counsel, of a potential transaction with Gener8.
On December 8, 2016 a potential transaction with Gener8 was further discussed at a regular meeting of Euronav’s Board of Directors. Management discussed potential financing vehicles for a potential acquisition and elaborated on the potential use of the revolving credit facilities available. Management explained that it is considering several alternative financing scenarios. The Board of directors asked management to continue monitoring the market to determine the best possible deal with regard to the structure and timing of a possible acquisition. These discussions between Euronav’s Board of directors and management continued to be preliminary in nature.
During the course of December 2016, Euronav management entered into confidentiality agreements with representatives of certain companies relating to a possible transaction with Gener8.
Between December 12-13, 2016, Euronav management had preliminary meetings in New York with several investors regarding a potential combination between Euronav NV and Gener8. These included representatives from Company AA, Company BB, Company CC and Company DD.
In February 2017, Gener8 requested UBS Securities LLC, or UBS, to assist it as financial advisor in connection with Gener8’s consideration of potential strategic opportunities. In this connection, on April 6, 2017, Gener8 entered into an indemnification agreement with UBS.
In March 2017, Peter C. Georgiopoulos, Gener8’s Chairman and Chief Executive Officer, discussed with representatives of a private investment firm referred to in this proxy statement/prospectus as Company E a potential equity investment by Company E in Gener8 in connection with a business combination between Gener8 and Euronav. Representatives of Gener8 further discussed the potential transaction with representatives of Company E during a meeting on April 4, 2017 and by conference call on April 6, 2017. During these discussions, representatives of Company E informed representatives of Gener8 that Company E intended to send Gener8 a written proposal for the transaction.
Around the same time, on March 20, 2017, Euronav presented an offer letter to Mr. Georgiopoulos for the purchase of Gener8’s newest VLCC vessels.
On April 13, 2017, Company E sent Mr. Georgiopoulos a letter outlining the terms and conditions of a potential substantial equity investment by Company E, including an equity purchase price at a discount to Gener8’s then stock price that would result in dilution to existing Gener8’s shareholders and a concurrent business combination between Gener8 and Euronav. That same day, representatives of Company A contacted Mr. Georgiopoulos and sent him a letter with a proposal to acquire Gener8 in a stock-for-stock transaction representing a premium to Gener8’s then stock price based on Company A’s stock price at that time.
On April 18, 2017, the Gener8 board met to consider the proposals from Company A, Company E and Euronav and other potential strategic and financing alternatives. Senior management of Gener8 and representatives of UBS and Kramer Levin Naftalis & Frankel LLP, or Kramer Levin, also attended the meeting. During this meeting, the board discussed the two proposals as well as other potential strategic and financing alternatives, including potential transactions with another publicly traded shipping company and a private shipping company. Representatives of Kramer Levin reviewed and discussed with the members of the board their duties in connection with the board’s consideration of the proposed transactions. The board discussed the possibility of forming a transaction advisory committee comprised of disinterested members of the board. Members of the board reviewed relevant interests of board members regarding the proposed transactions, including the interests of Ethan Auerbach, a director who was formerly associated with and formerly an employee of BlueMountain Capital Management, LLC, or BlueMountain, an affiliate of the investment funds holding Gener8’s senior unsecured notes due 2020, the interests of Adam Pierce a director who is associated with and is an employee of Oaktree Capital Management, L.P., or Oaktree, and the interests of Steven D. Smith a director who is associated with and is an employee of Aurora Resurgence Management Partners LLC. Following its consideration of the abilities of members to act on a disinterested basis in connection with the proposed strategic transactions, the board determined to establish a transaction advisory committee, or Gener8 Transaction Committee, comprising Mr. Auerbach, Mr. Pierce and Mr. Smith, with Mr. Smith as Chairman. The Gener8 Transaction Committee subsequently reviewed the disinterestedness of its members and concluded that none of these individuals had any material conflicts of interest. The board authorized the Gener8 Transaction Committee to, among other things, consider, evaluate and negotiate the terms of possible transactions with Company A, Company E and Euronav and any alternative strategic or financing transactions, and to retain legal counsel and other advisors.
During this meeting, the Gener8 board also considered potential responses to the business combination proposed by Company A and the equity investment proposed by Company E, including alternatives involving concurrent and standalone equity investments. The board requested that further discussions with Company A, Company E and Euronav be conducted through the Gener8 Transaction Committee.
On April 24, 2017, the Gener8 Transaction Committee met telephonically to discuss potential strategic transactions involving Company A, Company E and Euronav. Kramer Levin and UBS participated in the discussion. Potential terms, conditions, structures, corporate governance and management arrangements for the transactions were discussed. The Gener8 Transaction Committee reviewed recent discussions between members of the Gener8 Transaction Committee and representatives of Company A and Company E. The Gener8 Transaction Committee discussed the potential retention of UBS as its financial advisor and reviewed discussions between its members and representatives of UBS regarding such retention, the work and reputation of UBS (which was known to members of the Gener8 Transaction Committee) and UBS’s ability to work well with and act independently of Gener8’s management. The Gener8 Transaction Committee reviewed a draft non-binding proposal letter to Euronav for a substantial equity investment in
Gener8 by Company E involving a concurrent stock-for-stock merger between Gener8 and Euronav and a joint management team for the combined company comprising executives from both Gener8 and Euronav. The Gener8 Transaction Committee discussed the structure of the proposed transaction, the transaction rationale, corporate governance and management arrangements. The Gener8 Transaction Committee discussed the potential benefits and risks with respect to the proposed transaction with Euronav and Company E, including the potential impact on Gener8’s liquidity and financial leverage. Representatives of UBS provided background information regarding Euronav and further discussed the proposal letter to Euronav and additional issues to be negotiated with Company E. The Gener8 Transaction Committee approved the proposal letter to Euronav. Following this meeting, Mr. Smith consulted with the other members of the Gener8 Transaction Committee further regarding the proposal letter to Euronav and then, with their approval, instructed Gener8’s management to send the letter to Euronav on April 25, 2017.
On April 26, 2017, the Gener8 Transaction Committee met telephonically to further discuss the potential strategic transactions involving Company A, Company E and Euronav. Kramer Levin and UBS participated in the discussion. The Gener8 Transaction Committee reviewed an analysis prepared by representatives of UBS comparing the potential transactions and various alternative terms and structures for the transactions. The Gener8 Transaction Committee considered the potential effects on, among other things, liquidity, capital structure, debt covenant compliance, price-to-net asset value, or NAV, ratio and public float of the proposed transactions.
During April 2017, members of the Gener8 Transaction Committee and Gener8’s management had further discussions with representatives of Company E regarding its proposal. On April 28, 2017, Company E sent Mr. Georgiopoulos and Mr. Smith a letter modifying the terms of Company E’s prior proposal letter to reflect an increase in the proposed equity purchase price and additional corporate governance requirements. Gener8 and Euronav entered into a confidentiality agreement on May 2, 2017.
On May 3, 2017, the Gener8 board held a regular quarterly meeting during which Mr. Smith provided an update regarding the work performed by the Gener8 Transaction Committee in connection with potential strategic transactions with Company A, Company E and Euronav. He reviewed recent discussions with representatives of Company A, Company E and Euronav and discussed the Gener8 Transaction Committee’s consideration of potential alternatives, including Gener8 continuing with its existing business plan without engaging in any strategic transaction. Mr. Smith informed the board of the Gener8 Transaction Committee’s decision to retain UBS as financial advisor to the Gener8 Transaction Committee and discussed the proposed terms of UBS’ retention. The board approved the retention of UBS by the Gener8 Transaction Committee.
On May 4, 2017, Gener8 and Company A entered into a confidentiality agreement. During the following three weeks, members of the Gener8 Transaction Committee met with representatives of Company A and members of Gener8’s management to discuss a potential acquisition of Gener8 by Company A. On May 12, 2017, Gener8 provided representatives of Company A with access to a virtual data room prepared by Gener8.
On May 9, 2017, Gener8 and Company E entered into a confidentiality agreement. On May 11 and May 12, 2017, representatives of Gener8 and Company E met with representatives of Euronav to discuss a proposed business combination between Gener8 and Euronav and a concurrent equity investment by Company E.
On May 16, 2017, following further meetings and discussions between representatives of Gener8, representatives of Euronav and representatives of Company E, Euronav declined to proceed with respect to the proposal letter submitted by Gener8 involving an equity investment in Gener8 by Company E and a concurrent business combination between Gener8 and Euronav. Nonetheless, representatives of Euronav indicated to members of the Gener8 Transaction Committee that Euronav might present its own proposal for a strategic transaction with Gener8 in which consideration offered to Gener8’s shareholders could consist of one or more forms of Euronav equity. Discussions with Company E regarding an equity investment, however, were terminated in light of Euronav’s rejection of the previous proposal.
On May 17, 2017, representatives of Company A sent representatives of Gener8 a revised draft of an indicative non-binding term sheet summarizing a proposed stock-for-stock merger with an exchange ratio more favorable to Gener8’s shareholders than in Company A’s prior proposal. During the next few days, the
parties exchanged revised drafts of the term sheet in connection with their negotiations regarding, among other things, the terms and conditions of the proposed business combination, the possibility of introducing a concurrent equity investment and debt refinancing.
On May 25, 2017, Mr. Smith met with representatives of Company A (including Company A’s largest shareholder) to discuss the potential business combination with Company A, as well as the structure of the potential transaction and financing matters.
Also during May 2017, members of Gener8’s management, in consultation with the Gener8 Transaction Committee, met with representatives of a publicly traded shipping company referred to in this proxy statement/prospectus as Company F for exploratory discussions regarding a potential business combination.
On June 1, 2017, the Gener8 board met to discuss the status of the potential strategic transactions being considered by Gener8, including potential transactions involving Company A, Company F, Euronav, as well as a potential alternative transaction involving the shipping division of another publicly traded company. Senior management of Gener8 and representatives of UBS and Kramer Levin also attended the meeting. The board considered the potential impact on financial leverage, price-to-NAV ratio, fleet age and trading liquidity of each transaction. The board discussed the status, likelihood and potential benefits and risks of, and alternatives to, these potential strategic transactions. The board also considered alternative financing transactions. The sense of the board was that Gener8 and the Gener8 Transaction Committee should continue to explore the potential strategic transactions involving Company A, Company F and Euronav.
On June 5, 2017, representatives of Company A further discussed with members of the Gener8 Transaction Committee the exchange ratio for the stock-for-stock merger proposed by Company A.
On June 6, 2017, Gener8 and Company F entered into a confidentiality agreement. On June 8, 2017, Gener8 provided representatives of Company F with access to Gener8’s virtual data room.
On June 12, 2017, the Gener8 Transaction Committee determined to retain Shearman & Sterling LLP, or Shearman & Sterling, as counsel to the Gener8 Transaction Committee and Gener8 entered into a financial advisory engagement letter with UBS.
On June 15, 2017, representatives of Gener8, UBS and Company F met for further preliminary discussions regarding a potential business combination between Gener8 and Company F.
On June 26, 2017, following further discussions between members of the Gener8 Transaction Committee and representatives of Company A, Company A informed the Gener8 Transaction Committee of its determination to terminate its discussions with Gener8. Also in June 2017, Euronav expressed to the Gener8 Transaction Committee its continuing interest in the purchase of a number of Gener8’s newest VLCC vessels.
On June 27, 2017, the Gener8 board met to discuss the status of the potential strategic transactions being considered by Gener8. Senior management of Gener8 and representatives of UBS and Kramer Levin also attended the meeting. Mr. Smith provided an update to the board. Mr. Smith informed the board that the Gener8 Transaction Committee did not view Euronav’s proposal to purchase a number of Gener8’s VLCC vessels favorably because these vessels were among Gener8’s most valuable assets and the transaction would increase the average age of Gener8’s fleet. Mr. Georgiopoulos reviewed recent discussions with Company F regarding a potential strategic transaction, including matters relating to the relative NAVs of the companies and corporate governance. The board reviewed potential alternatives to a strategic transaction, including continuing with Gener8’s existing business plan without engaging in any strategic transaction and related liquidity and financial leverage considerations. It was the sense of the board that Gener8 should further consider potential strategic transactions, including continuing to explore potential transactions involving Company F and Euronav, and the Gener8 Transaction Committee was requested to do so with the assistance of Gener8’s management.
Discussions with Company F continued in early July 2017 and, on July 18, 2017, Mr. Smith met with representatives of Company F and discussed a potential transaction. A few days later, on July 20, 2017, Company F delivered a non-binding indication of interest to Gener8, providing for a stock-for-stock merger in which Gener8 shareholders would receive newly registered shares of Company F in exchange for their existing shares using a fixed exchange ratio based on the respective NAV contributions of the two companies to the combined company.
At the same time, discussions were ongoing with representatives of Euronav. On July 6, 2017, at the direction of the Gener8 Transaction Committee, representatives of UBS met with representatives of RMK, Euronav’s retained financial advisor, regarding a potential strategic transaction between the companies. On July 13, 2017, representatives of RMK provided initial NAV estimates for Gener8 in connection with a potential transaction. On July 15, 2017, Mr. Smith met with the Chief Executive Officer of Euronav to discuss the potential strategic transaction with Euronav, including the proposed structure of such transaction. On July 18, 2017, representatives of Euronav contacted Mr. Smith to commence negotiations with the Gener8 Transaction Committee regarding a fixed exchange ratio merger with the exchange ratio based on the parties’ respective NAVs.
The Gener8 Transaction Committee had numerous discussions and meetings with representatives of UBS in late June and July 2017, including on June 27, June 29, July 7, July 18, July 21, and July 23 through July 25, regarding the ongoing consideration of potential transactions with Company F and Euronav, as well as potential alternative transactions.
At the regular quarterly meeting of Gener8’s board of directors on July 25, 2017, Mr. Smith provided an update regarding the work performed by the Gener8 Transaction Committee in connection with potential strategic transactions and focused on developments regarding a potential business combination with Company F. Senior management of Gener8 and representatives of UBS, Kramer Levin and Shearman & Sterling also attended the meeting. Representatives of UBS reviewed the potential transaction with Company F, and explained UBS’s analyses of the relative NAV contributions of each company. The board considered the potential benefits of the potential transaction to Gener8 including increased size of the combined company, improved access to capital markets, enhanced liquidity, and an improved leverage profile. Among the risks discussed were the addition of older Company F vessels to the combined company’s fleet and the possibility of the combined company having to engage in vessel sales during periods of weak market conditions.
Mr. Smith also provided an update regarding the Gener8 Transaction Committee’s consideration of a potential strategic transaction with Company B, involving its tanker business. He informed the board that Gener8 had not engaged in any recent discussions with Company B since Gener8’s board determined that the initial proposal of Company B was not in the best interests of Gener8 because of, among other reasons, Company B’s fleet profile and the potential amount of leverage resulting from a transaction with Company B, and that in light of other potential transactions and alternatives being considered by Gener8, the Gener8 Transaction Committee was not in favor of pursuing a potential strategic transaction with Company B at this time. The board of directors considered the potential benefits and risks to Gener8 and agreed with the recommendation of the Gener8 Transaction Committee.
Mr. Smith discussed the Gener8 Transaction Committee’s consideration of potential alternatives, including Gener8 continuing with its existing business plan without engaging in any strategic transactions. The Gener8 board further discussed the potential strategic transactions and potential alternative transactions, including deleveraging transactions, vessel sales, debt refinancing, raising capital through equity issuances, and continuing with Gener8’s existing business plan without engaging in any strategic transactions.
Also in late July 2017, representatives of each of Gener8, Company F, UBS, Company F’s financial advisor, Shearman & Sterling, Kramer Levin and Company F’s legal advisor reviewed structuring options for a potential transaction between Gener8 and Company F. On August 3, 2017, Mr. Smith met with representatives of Company F and discussed the potential transaction. Discussions of the potential transaction, including structuring considerations, continued, including on August 25, 2017 and September 5, 2017, until Company F terminated such transaction discussions on September 22, 2017.
Separately, from August to October 2017, representatives of the Gener8 Transaction Committee and UBS continued to negotiate with representatives of Euronav and RMK certain components of NAV for purposes of agreeing on a fixed exchange ratio. This included a meeting on August 17, 2017 between Mr. Smith and the Chief Executive Officer and the Chief Financial Officer of Euronav, along with a representative from RMK.
On September 11, 2017, the potential transaction with Gener8 was discussed in detail at a regular meeting of the Euronav’s Board of Directors. Euronav management analyzed the potential transaction with Gener8 and informed the Board of Euronav of developments and continued discussions with the principals of Gener8. The Board of Euronav discussed the different scenarios and considered the various financing related aspects as well as an updated timeline of the transaction and mandated to Euronav management to continue discussions with Gener8.
On September 19, 2017, Mr. Smith met with the Chief Executive Officer of Company A who expressed Company A’s continuing interest in a potential strategic transaction with Gener8.
On October 6, 2017, the Gener8 Transaction Committee, as represented by Mr. Smith, and representatives of Euronav, discussed further the exchange ratio for a potential business combination.
On October 11, 2017, the Gener8 Transaction Committee, as represented by Mr. Smith, representatives of UBS, and representatives of Euronav and RMK negotiated the relative NAVs of Euronav and Gener8 (including calculations of certain components of NAV) as a basis for the potential transaction, subject to due diligence on each company. The parties agreed to discuss with the respective boards of Euronav and Gener8 a proposed fixed exchange ratio of 0.7272, based on the relative NAV contribution of each company.
On October 12, 2017, Euronav sent a draft mutual non-disclosure agreement (which we refer to in this proxy/prospectus statement as the NDA) to Gener8 which included a standstill provision and superseded the confidentiality agreement signed by the parties on May 2, 2017, and, after negotiations during the following week, on October 16, 2017, Gener8 and Euronav entered into the NDA with a standstill period of 12 months.
On October 18, 2017, Seward & Kissel, counsel to Euronav, sent to the Gener8 Transaction Committee’s counsel, Shearman & Sterling and Gener8’s counsel, Kramer Levin, a draft of a mutual 60-day exclusivity agreement together with a draft summary term sheet of contemplated terms of the potential strategic transaction which included, among others, an asset transfer structure which was different from the more traditional business combination structures in the US such as a “reverse triangular merger”, that the board of directors of Euronav would be increased in size by nominating one person to the board of directors of Euronav, and a termination fee for the benefit of Euronav equivalent to 3% of the enterprise value or the right (at Euronav’s option) to purchase five VLCC vessels at market value less a discount equal to the amount of the termination fee (which we refer to in this proxy/prospectus statement as the Exclusivity Agreement). Representatives of each of Shearman & Sterling, Kramer Levin and Seward & Kissel discussed the drafts of the Exclusivity Agreement and term sheet proposed by Euronav.
On October 19, 2017 the potential transaction with Gener8 was further discussed in detail at a meeting of Euronav’s Board of Directors. Euronav management elaborated to the Board of directors on the confidentiality agreement that had been signed with Gener8 and discussed the draft exclusivity agreement and termsheet that had been exchanged between the two sides. Management explained to the Board the updated timeline of the transaction and detailed the due diligence process and key elements of the merger agreement that would be signed with Gener8. Management also discussed rolling over or refinancing the existing debt of Gener8. Management also discussed with Euronav’s Board of directors proposed voting agreements and the need for a shareholder vote by Gener8’s shareholders for approval of the merger. Management and also explained the timing of certain consents required in connection with the proposed merger with Gener8 and the timing of receiving such consents from the various parties. Euronav management also discussed the registration process for the shares to be issued in connection with the merger and the Belgian listing prospectus requirement. The Board of Directors of Euronav deliberated on the presentation and mandated that management move forward with discussion with Gener8 and continue engaging with Gener8’s principals.
On October 20, 2017, Gener8’s board of directors, along with senior management and representatives of each of Kramer Levin, UBS, and Shearman & Sterling met to review potential strategic transactions. The board discussed the status of negotiations with Euronav including the economic terms of the proposed merger, the potential effects on, among other things, liquidity, capital structure, debt covenant compliance, implied fixed exchange ratio based on the relative NAVs of the parties, implied stock price premium to Gener8’s shareholders based on the fixed exchange ratio proposed by Euronav, and public float of the combined company. The board discussed the NAVs of Gener8 and Euronav calculated utilizing estimated NAVs as of approximately September 30, 2017, together with June 30, 2017 balance sheet data adjusted for certain vessel transactions subsequent to June 30, 2017 and agreed that further due diligence had to be performed for purposes of confirming these valuations. The board also reviewed and discussed the draft Exclusivity Agreement and term sheet proposed by Euronav, including the proposed term of the Exclusivity Agreement. In addition, the board reviewed and discussed Gener8’s preliminary discussions with BlueMountain, and Gener8’s senior secured lenders regarding the potential treatment of Gener8’s outstanding indebtedness in connection with any potential strategic transaction, as well as potential alternative transactions considered by Gener8. The Gener8 Transaction Committee recommended that Gener8 further negotiate the proposed business combination with Euronav, that the board authorize the Gener8 Transaction Committee to negotiate the proposed Exclusivity Agreement and term sheet with Euronav, and that the board approve Gener8’s entry into the Exclusivity Agreement and term sheet on terms to be finalized by the Gener8 Transaction Committee. The board noted that Mr. Georgiopoulos is a member of management and an employee of Gener8, the director Dan Ilany is associated with and is an employee of Avenue Capital Group, which had an investment interest in Euronav, and the director Nicolas Busch is associated with the Navig8 Group, a company which commercially manages substantially all of Genner8’s vessels. In light of these interests, Messrs. Georgiopoulos, Ilany and Busch abstained from voting. The board approved the actions recommended by the Gener8 Transaction Committee.
After members of Gener8’s management and Mr. Busch left the board meeting, the board further discussed executive compensation and severance matters, including potential incentives for members of senior management to remain with Gener8 during the transaction process, a potential transition team following the consummation of any transaction, potential incremental compensation to members of senior management and potential waivers of non-compete covenants for members of senior management.
On October 24, 2017, representatives of Shearman & Sterling and Kramer Levin sent revised drafts of the Exclusivity Agreement and summary term sheet of contemplated terms of the potential strategic transaction to representatives of Seward & Kissel which contemplated, among others, that the potential transaction would not be subject to any financing conditions, other than with respect to obtaining the required consents from certain lenders, and that the board of directors of Euronav would be increased in size such that the representation of Gener8 on the board of directors of Euronav would be proportional to the ownership of Euronav’s ordinary shares held by Gener8’s former shareholders. Over the next week, representatives of each of Seward & Kissel, Shearman & Sterling and Kramer Levin, together with representatives of each of Euronav, the Gener8 Transaction Committee, UBS and RMK, engaged in extensive discussions and negotiations concerning, and exchanged several drafts of, the Exclusivity Agreement and summary term sheet of contemplated terms of the potential strategic transaction.
In late October 2017, Gener8 was approached by the financial advisor to a company referred to in this proxy statement/prospectus as Company G and commenced discussions regarding a potential transaction between the companies. On October 30, 2017, a representative of Gener8 received a non-binding indication of interest letter from the financial advisor to Company G to explore a possible acquisition by Company G, an Asia-based company, of a significant stake in Gener8, and received an update of such letter on November 2, 2017. Both letters included a number of conditions for Company G to deliver a binding proposal, including the conduct of customary due diligence, the commitment from Gener8 not to sign an exclusivity agreement with any person or entity other than Company G until December 31, 2017, and the proposed acquisition being subject to the approval of Company G’s board of directors, as well as any regulatory approvals. The updated letter described three different transaction structures that Company G was willing to discuss with Gener8 which included (i) a stock-for-stock transaction and/or an all-cash transaction for all common shares of Gener8 based on an equity value representing a premium to Gener8’s equity market capitalization at that time, (ii) an all cash acquisition of the entire fleet of Gener8 based on fair market value or (iii) an acquisition of more than one third of Gener8’s common shares in exchange for
cash and/or assets. Mr. Smith and senior management of Gener8 had discussions with representatives of the financial advisor to Company G regarding the non-binding indication of interest submitted by Company G.
On November 2, 2017, the Gener8 Transaction Committee met to discuss further a potential transaction with Company G, including the alternative structures proposed by Company G for such transaction, the inherent uncertainty provided by the conditionality and non-binding nature of the proposal, and the impact that declining to grant exclusivity to Euronav would have on the discussions with Euronav. Representatives of Shearman & Sterling also attended the meeting. The Gener8 Transaction Committee considered of Gener8 could consummate a transaction with Company G in the event that a potential business combination with Euronav could not be consummated, including the process and uncertain timing for receiving overseas governmental approvals that would be necessary for a business combination with Company G, in addition to the possible review of the transaction by the Committee on Foreign Investment in the United States (CFIUS). The Gener8 Transaction Committee also further discussed the potential business combination with Euronav, and the comparative potential benefits, risks and costs of the proposed business combinations with Company G and with Euronav. The Gener8 Transaction Committee also noted that Euronav’s proposed business combination was conditioned on signing an exclusivity agreement. Following this discussion, it was the sense of the Gener8 Transaction Committee that it was in the best interests of Gener8 for the Gener8 Transaction Committee to recommend to the board of directors that Gener8 enter into an exclusivity agreement with Euronav.
Also on November 2, 2017, at a meeting of Gener8’s board of directors, representatives of UBS presented discussion materials to Gener8’s board of directors regarding a potential transaction with Company G and the three alternative strategic transactions proposed by Company G both based on the updated non-binding indication of interest letter received on November 2, 2017 from Company G. Senior management of Gener8 and representatives of Shearman & Sterling and Kramer Levin also participated in the discussion. The board discussed the three alternative strategic transactions proposed in Company G’s letter and compared this to the proposed business combination reflected in the Euronav term sheet. The board also discussed the process and uncertain timing resulting from Company G’s overseas regulatory and governmental approvals and the risks of proceeding with Company G on the basis of a conditioned non-binding indication of interest. It was the consensus of the board that the Gener8 Transaction Committee inform Euronav that Gener8 required a period of time to further explore and confirm the alternative transaction recently presented to it and that, although Gener8 would not immediately enter into an exclusivity agreement with Euronav, it would be prepared to continue working with Euronav on a potential business combination during this period. In light of their interests described above, Messrs. Georgiopoulos, Ilany and Busch abstained from voting.
On November 7, 2017, Gener8’s board of directors, along with senior management and representatives of Kramer Levin, as counsel to Gener8, held its regular quarterly board meeting and discussed, among various issues, potential strategic transactions involving Euronav and Company G. Also on November 7, 2017, Gener8 and Company G entered into a mutual non-disclosure agreement with a standstill period of 12 months and on November 10, 2017, Gener8 opened Gener8’s virtual data room to Company G.
On November 9, 2017, Mr. Smith and Mr. Vrondissis met with the representatives of the financial advisor to Company G and were told to expect a “hard” all cash bid on November 13, 2017. Mr. Smith and Mr. Vrondissis indicated the need for the revised proposal to be firm and to provide greater certainty, including clarity around the timing of any proposed transaction including the regulatory and governmental approvals that would be required and the timing and process for obtaining such approvals.
On November 13, 2017, Gener8 received a letter from Company G proposing a cash acquisition of Gener8 common shares at a premium to Gener8’s trading closing share price on November 10, 2017, which represented a greater premium than the implied premium reflected in Euronav’s proposal. Company G’s proposal was subject to the same conditions described in its previous letters. Gener8’s board of directors met that same day to discuss the terms, structure and conditionality of the Company G’s cash offer compared to the stock-for-stock business combination proposed by Euronav. A representative from the financial advisor to Company G was invited to Gener8’s board of directors meeting to outline the terms of the proposal submitted by Company G and explain the potential timeline and approval process expected by
Company G. Senior management of Gener8, as well as representatives of each of UBS, Kramer Levin, and Shearman & Sterling also participated. The board asked Company G’s financial advisor representative about the possible regulatory and governmental approvals that Company G expected would be required to complete a potential strategic transaction with Gener8 and the timing and process required for such approvals. Company G’s financial advisor representative did not provide any details beyond what was included in Company G’s letter. After Company G’s financial advisor representative left the board meeting, the board considered running a parallel transaction process involving Euronav and Company G and concluded that Gener8 should propose a co-exclusivity arrangement for Euronav and Company G. In light of their interests described above, Messrs. Georgiopoulos, Ilany and Busch abstained from voting.
On November 16, 2017, Mr. Smith, Mr. Georgiopoulos and Mr. Vrondissis had further discussions with representatives of the financial advisor to Company G, regarding the potential timeline and approval process expected by Company G in connection with a possible strategic transaction. Also on November 16, 2017, Gener8’s board of directors held a meeting. Senior management of Gener8 and representatives of Kramer Levin, UBS, and Shearman & Sterling attended. Mr. Smith provided an update regarding Gener8’s discussions with Euronav and Mr. Vrondissis provided an update regarding Gener8’s discussions with Company G. Mr. Smith reported that following discussions with Euronav on the matter, Euronav rejected Gener8’s co-exclusivity proposal. The board considered the possibility that Company G could continue to develop a proposal for a strategic transaction with Gener8 during the term of the Exclusivity Agreement with Euronav, and the risk of losing the strategic opportunity with Euronav and following this discussion, upon the Gener8 Transaction Committee’s recommendation, Gener8’s board (with Messrs. Georgiopoulos, Ilany and Busch having abstained from voting for the same reasons described above) approved the entry into the Exclusivity Agreement with Euronav with a term of approximately 30 days.
On November 19, 2017, in accordance with instructions from Gener8’s board, representatives of UBS notified the financial advisor to Company G of Gener8’s intention to pursue exclusive discussions with another party for 30 days, and Gener8 granted a limited release to Company G from its standstill obligation contained in the NDA to permit Company G to make a private proposal to Gener8.
On November 20, 2017, Gener8 and Euronav signed and commenced an exclusivity agreement providing for a 31-day exclusivity period until December 21, 2017, at 5:00 p.m. New York time. On November 27 and 28, 2017, Gener8 and Euronav commenced a mutual due diligence process, and each opened their virtual data room to facilitate the other’s due diligence review.
On November 22, 2017, Euronav entered into a confidentiality agreement with International Seaways Inc. in order to discuss and share certain information relating to a possible transaction with Gener8 including the sale and purchase of certain of Gener8’s vessels.
On November 30, 2017, representatives of Seward & Kissel shared with representatives of Shearman & Sterling and Kramer Levin, a draft of the agreement and plan of merger (which we refer to in this proxy/prospectus statement as the Merger Agreement) and a draft of the shareholder support and voting agreement (which we refer to in this proxy/prospectus statement as the Voting Agreement) to be executed by certain Gener8 shareholders concurrently with the signing of the Merger Agreement.
The Merger Agreement and Voting Agreement contained several provisions that the Gener8 Transaction Committee viewed as problematic, including (i) a “force the vote” provision requiring Gener8 to hold a special meeting of the Gener8 shareholders to vote on the merger, even if the Gener8 Transaction Committee or the Gener8 board of directors changed its recommendation regarding the Merger, combined with an unconditional obligation in the voting agreement for all significant shareholders of Gener8 to vote, among other items, in favor of the Merger and against alternative transactions, (ii) that the closing of the Merger would be conditioned on, among other items, certain representations and warranties of Gener8 being true and correct in any respect, without customary materiality or “Material Adverse Effect” qualifiers, and (iii) that Gener8 would be required to pay Euronav a termination fee in the event of termination of the Merger Agreement in certain circumstances, including if the Gener8 shareholders did not approve the Merger Agreement or sell to Euronav (at Euronav’s option) a number of Gener8’s “eco” VLCC vessels at fair market value less a discount equal to the amount of the termination fee.
Over the next three weeks, representatives of each of Seward & Kissel, Shearman & Sterling and Kramer Levin, together with representatives of each of Euronav, the Gener8 Transaction Committee, UBS
and RMK, engaged in extensive discussions and negotiations concerning, and exchanged numerous drafts of, the proposed Merger Agreement. During this time period, the parties agreed that, with respect to the issues that the Gener8 Transaction Committee deemed problematic, (i) if the Gener8 Transaction Committee or the Gener8 board of directors changed its recommendation, the Gener8 shareholders signing the Voting Agreement would be required to vote only 50% of the outstanding Gener8 common shares in favor of the Merger while the remaining outstanding Gener8 common shares would be voted in any manner the Gener8 shareholder may determine, (ii) the accuracy of Gener8’s representations and warranties would generally be tested using a Material Adverse Effect qualifier standard, and (iii) Gener8 would be required to pay Euronav a termination fee of $39 million if the Merger Agreement was terminated in certain specified circumstances but excluding the event that Gener8 shareholders did not approve the Merger Agreement.
On December 6, 2017, Euronav entered into a new confidentiality agreement with Company BB which extended the term of the original confidentiality agreement between the two parties.
On December 7, 2017, the potential transaction with Gener8 was further discussed in detail at a regular meeting of Euronav’s Board of Directors. Management discussed the exclusivity agreement that had been entered into with Gener8. Management also presented to the Board of directors on the ongoing due diligence process, the potential sale of certain vessels to a suitable buyer following the closing of the merger and the payment of potential incentive bonuses to certain key employees of Gener8. Management also discussed with Euronav’s Board of directors on the topics of fleet integration, the real estate lease held by Gener8 in New York City and the ongoing physical inspection of Gener8’s vessels and due diligence on the class records of certain of Gener8’s vessels. The Euronav Board deliberated on these topics.
Between December 12, 2017 and December 18, 2017, representatives of Shearman & Sterling, and representatives of each of Weil, Gotshal & Manges LLP, on behalf of BlueMountain, and Seward & Kissel, negotiated amendments (which we refer to in this proxy/prospectus statement as the BlueMountain Letter) to the terms of that certain Note and Guarantee Agreement, originally dated as of March 28, 2014, and held by certain affiliates of BlueMountain, which resulted in an agreement that provided, among other things, that the prepayment premium that would otherwise be payable upon a prepayment of the principal amount of the notes issued under the Note and Guarantee Agreement prior to May 13, 2019, would be reduced to an agreed premium equal to 1.00% of the outstanding principal amount of the notes prepaid for any prepayment made contemporaneously with the consummation of the Merger.
On December 13, 2017, the Gener8 Transaction Committee met with representatives of UBS to discuss the Euronav transaction. At this meeting, representatives of UBS reviewed the status of their diligence review of NAVs and their further refinement of NAV calculations and analyses.
On December 14, 2017, at a combined meeting of Gener8’s board of directors and the Gener8 Transaction Committee, representatives of UBS presented the status of their diligence review and their further refinement of NAV calculations and analyses in connection with the proposed transaction with Euronav. In this connection, the board and the Gener8 Transaction Committee discussed updated valuation analyses of Euronav’s time charters, FSO business and other assets and assumptions supporting these analyses. Representatives of Shearman & Sterling summarized the material terms of the proposed Merger Agreement and reported on the resolution of open issues during the course of negotiations with representatives of Seward & Kissel, counsel to Euronav. Representatives of Shearman & Sterling also reviewed outstanding issues that remained subject to negotiation with Euronav. Senior management of Gener8 and representatives of Kramer Levin, UBS, and Shearman & Sterling also attended the meeting.
On December 18 and 19, 2017, senior management of Euronav, including Euronav’s Chief Executive Officer and Chief Financial Officer, Mr. Smith, and representatives of UBS and RMK met to negotiate the remaining commercial issues, including the terms of a pooling arrangement covenant proposed by Euronav and the nomination of a non-executive director of Gener8 as a member of Euronav’s board of directors. Euronav requested such non-executive director to be Mr. Smith.
In parallel, on December 19, 2017, representatives of Seward & Kissel sent to representatives of Shearman & Sterling and Kramer Levin revised drafts of the Voting Agreement and the Merger Agreement reflecting the discussions held the day before between representatives of the Gener8 Transaction Committee and Euronav regarding, among other things, the deal protection measures in the draft Merger Agreement
proposed by Shearman & Sterling expanding the scope to consider alternative proposals that may lead to superior proposals. In addition, on December 17, 18 and 19, 2017, representatives of Seward & Kissel submitted drafts of Euronav’s disclosure letter to the Merger Agreement to representatives of each of Shearman & Sterling and Kramer Levin, and Kramer Levin submitted a draft of Gener8’s disclosure letter to the Merger Agreement to representatives of Seward & Kissel.
On December 19, 2017, a telephonic meeting of the Euronav Board of Directors was called to approve entry into the merger agreement and to consider certain items prepared by Euronav’s management, financial advisers (RMK) and the draft of the merger agreement provided by Seward & Kissel. The Board of Directors received the key transaction documents relating to the proposed merger with Gener8. The Board of Directors of Euronav also received a summary of the aggregate consideration to be paid to common shareholders and certain other security holders of Gener8 pursuant to the Merger Agreement as prepared by Euronav’s financial adviser, RMK. Upon discussion and deliberation, Euronav’s Board of directors approved entry by Euronav into the Merger Agreement and key ancillary documents including the Voting Agreement, Exchange Agent Agreement and payment of the Merger Consideration, including the Contribution in Kind (that is, shares of Euronav) component. Following advanced discussions regarding the transaction with Gener8, Euronav’s Board of Directors voted in favor of approving the transaction, including the Merger Agreement and ancillary documents.
On December 19, 2017, the Gener8 Transaction Committee met to discuss updates on the potential business combination with Euronav. Senior management of Gener8 and representatives of Shearman & Sterling and Kramer Levin also attended this meeting. The Gener8 Transaction Committee discussed, among other items, the pooling arrangement covenant that Euronav included in the draft Merger Agreement which was sent earlier that morning, the proposed ancillary agreements to be entered into by subsidiaries of Gener8 and Euronav pursuant to which Euronav would have the right to purchase three “eco” VLCC vessels from Gener8 if the transaction was not consummated, and remaining open points of the Voting Agreement.
Also on December 19, 2017, at a meeting of Gener8’s board of directors, representatives of UBS presented UBS’ financial analyses relating to the Exchange Ratio to be received by the holders of Gener8 common shares in connection with the proposed transaction with Euronav and representatives of Shearman & Sterling summarized the material terms of the proposed Merger Agreement, Voting Agreement and reported on the resolution of open issues during the course of negotiations with Seward & Kissel. Representatives of Shearman & Sterling also updated the board regarding outstanding issues that remained subject to negotiations with Euronav. The board approved that the non-executive director of Gener8 to be nominated to the board of directors of Euronav be Mr. Smith. Senior management of Gener8 and representatives of Kramer Levin, UBS, and Shearman & Sterling attended the meeting. The board also reviewed the process undertaken by the board and the Gener8 Transaction Committee since the first quarter of 2017 in their review of strategic alternatives for Gener8. Representatives of UBS also updated the board on a call received earlier that day from the financial advisor to Company G who repeated Company G’s interest in a potential strategic transaction but did not provide a revised proposal or address any of the issues relating to conditionality and certainty previously communicated to Company G.
Following the board meeting, the compensation committee of the Gener8 board met to discuss the executive compensation and severance arrangements being considered for Messrs. Georgiopoulos, Vrondissis and Gonzales in connection with the proposed transaction. The compensation committee also considered potential waivers by Gener8 of the non-compete restrictive covenants which Messrs. Georgiopoulos and Vrondissis were subject to and the potential timing of such waivers.
On December 19 and 20, 2017, representatives of each of Norton Rose Fulbright LLP, maritime counsel to Gener8, Seward & Kissel and Kramer Levin also engaged in extensive discussions and negotiations concerning, and exchanged numerous drafts of, the proposed form of memorandum of agreement to be signed in respect of each of the three “eco” VLCC vessels that Euronav would have the right to purchase from Gener8 if the business combination was not consummated. On December 20, 2017, the parties finalized the form of Voting Agreement and the form of memorandum of agreement for the sale of the “eco” VLCC vessels.
On the evening of December 20, 2017, subsequent to the close of trading on the NYSE, Gener8’s board of directors, the Gener8 Transaction Committee and the compensation committee of the board held
a joint meeting to consider the potential Merger Agreement, the transactions contemplated therein, including the Merger, and related matters. The board and the Gener8 Transaction Committee reviewed the terms of the draft Merger Agreement, the status of outstanding issues that remained subject to negotiation between the parties, the proposed terms of the BlueMountain Letter, the proposed terms of the form of memorandum of agreement for the purchase by Euronav of three of Gener8’s “eco” VLCC vessels if the business combination was not consummated and valuation reports for the three vessels. Representatives of Kramer Levin discussed the due diligence review of Euronav to date by Gener8 and its advisors, reviewed the process undertaken by the board in its consideration of the proposed transaction and potential alternatives and discussed the duties of members of the board in connection with the proposed transaction. Representatives of Shearman & Sterling reviewed the process undertaken by the Gener8 Transaction Committee in its consideration of the proposed transaction and potential alternatives. The board and the compensation committee reviewed the proposed compensation and severance arrangements for Gener8’s executive officers and other employees in connection with the proposed merger. The compensation committee discussed these matters and recommended to the board the proposed executive compensation and severance arrangements that are reflected in the definitive Merger Agreement. Representatives of UBS presented UBS’ financial analyses relating to the Exchange Ratio to be received by the holders of Gener8 common shares, and rendered to the Gener8 board of directors and the Gener8 Transaction Committee, UBS’ oral opinion, confirmed by delivery of its written opinion to the Gener8 board of directors and the Gener8 Transaction Committee, dated December 20, 2017, to the effect that, as of that date and based upon and subject to various assumptions, matters considered and limitations described in its opinion, the Exchange Ratio to be received by holders of Gener8 common shares pursuant to the Merger Agreement was fair, from a financial point of view, to holders of Gener8 common shares. The opinion of UBS is more fully described in the section captioned “The Merger — Opinion of UBS”. Following a discussion, the Gener8 Transaction Committee recommended to Gener8’s board of directors that they approve the Merger Agreement and the transactions contemplated therein, including the Merger. After further discussion, on the basis of the Gener8 Transaction Committee’s recommendation, the Gener8 board of directors, with four directors voting in favor, three directors abstaining (such directors being Messrs. Georgiopoulos, Ilany and Busch who abstained from voting for the same reasons as described above), and no directors voting against the merger, among other things, determined that the Merger Agreement and the transactions contemplated therein, including the Merger, were fair to and in the best interests of Gener8 and the Gener8 shareholders, declared advisable the Merger Agreement and the transactions contemplated therein, including the Merger, directed that the Merger Agreement and Merger be submitted to the Gener8 shareholders for approval and resolved to recommend that the Gener8 shareholders vote to approve the Merger Agreement and the transactions contemplated thereby, including the Merger. For further information concerning the factors considered by the Gener8 Transaction Committee and the Gener8 board of directors in reaching their respective determinations, see “Gener8’s Reasons for the Merger; Recommendation of Gener8’s Board of Directors — Gener8 Transaction Committee.” The board, by the same vote, approved the BlueMountain Letter, the memorandum of agreement and the executive compensation and severance arrangements.
On the morning of December 21, 2017, each of Gener8 and Euronav executed and delivered a counterpart of the Merger Agreement. Later that morning, before the opening of Euronext, Gener8 and Euronav issued a joint press release announcing the execution of the Merger Agreement.
On December 22, 2017, Gener8 sent Company A and Company D waivers of the restrictions on making a request to Gener8 or its advisors for a waiver of the standstill provisions contained in their confidentiality agreements with Gener8.
Euronav’s Reasons for the Merger
In the course of reaching its decision to approve the Merger with Gener8, Euronav’s board of directors consulted with members of its management, as well as its financial and legal advisors, and considered a number of factors, including those described below.
Positive Factors
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The fact that the Merger will bring together two complementary fleets of tankers, and create a leader in the tanker segment with a Combined Fleet of 77 vessels (which excludes the six VLCCs to be sold to International Seaways) including four tankers bareboat chartered-in and four newbuildings under construction, as of January 19, 2018.
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The view that the Merger represents a unique opportunity for Euronav to materially increase its size and scale so that it is better positioned to benefit from a cyclical recovery, without ordering new vessels and adding to the total supply of tankers globally.
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The view that Gener8 represents one of the largest and most complementary potential merger partner and that other potential combinations would not provide the scale and potential synergies offered in the Merger.
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The Combined Company will have a significant presence across adjacent tanker segments, which is expected to provide for enhanced customer relationships and increased vessel utilization.
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The Combined Company’s size and market positioning should strengthen its ability to be a leading consolidator in the industry.
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The companies’ complementary businesses and the potential for synergies and cost savings, arising from scale efficiencies.
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The enhanced access to equity and debt capital associated with the Combined Company’s increased size and the maintaining of Euronav’s strong statement of financial position attributable to the all-stock nature of the consideration to Gener8’s shareholders.
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The capital markets benefits associated with a larger market capitalization, including increased free float and stock liquidity, resulting from the all stock combination with Gener8.
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The fact that Gener8’s shareholders that collectively own approximately 48% of Gener8 common shares have reviewed the terms of the Merger and agreed to vote in favor of the transaction.
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The fact that, after completion of the Merger, the executive officers of Euronav will manage the Combined Company, and the Combined Company’s board of directors will consist of the members of the current Euronav’s board of directors and one additional independent board member, designated by the Gener8 Transaction Committee, to be nominated and proposed for election at the next regularly scheduled annual meeting of Euronav shareholders.
Negative Factors
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The risks and costs associated with the Merger not being completed in a timely manner or at all, even if approved by Euronav board of directors and Gener8’s board of directors and shareholders.
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The risks and costs associated with diverting management and employee attention and resources from other strategic opportunities and operational matters while working to implement the Merger.
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Potential litigation arising from the Merger Agreement and/or the Merger.
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The risk that the value of the consideration payable to Gener8’s shareholders would increase in the event that the value of Euronav ordinary shares increased prior to the Effective Time, as the Exchange Ratio is fixed.
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The challenges of completing the Merger and combining the businesses of the two companies, and the risks of not achieving the expected operating efficiencies, growth or cash cost savings from the Merger.
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The assumption of $1,358.0 million (as of December 31, 2017) of Gener8’s existing indebtedness.
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The risk of Gener8’s receiving a proposal that its board of directors would consider superior to the terms agreed with Euronav, and Gener8’s potential termination of the Merger.
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The transactional costs and expenses expected to be incurred by Euronav, as well as by Gener8, in connection with the Merger.
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The dilutive effect of the Merger on the share ownership of Euronav’s shareholders, even though they would retain majority control of Euronav.
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Restrictions under the Merger Agreement on the conduct of Euronav’s business and its ability to pursue other strategic opportunities prior to the completion of the Merger.
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Other applicable risks associated with Euronav, the Merger Agreement and the Merger, including those described under the section captioned “Risk Factors” beginning on page [•].
The above discussion is not exhaustive, but it addresses the material factors considered by Euronav’s board of directors in connection with the Merger. In view of the variety of factors and the amount of information considered, as well as the complexity of that information, the Euronav board of directors does not find it practicable to, and did not, quantify, rank or otherwise assign relative weights to the specific factors it considered in reaching its decision. The Euronav board of directors discussed the factors described above, extensively questioned Euronav’s management and Euronav’s legal and financial advisors, and unanimously determined that the Merger was advisable and fair to and in the best interests of Euronav and its shareholders. This determination was made after the Euronav board of directors considered all of the factors as a whole. In addition, individual members of the Euronav board of directors may have given different weight to different factors. This explanation of the Euronav board of directors reasoning, and all other information presented in this section, is forward- looking in nature and, therefore, should be read in light of the factors discussed under the section captioned “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 19.
Gener8’s Reasons for the Merger; Recommendation of Gener8’s Board of Directors
Gener8 Transaction Committee
On April 18, 2017, the Gener8 board of directors constituted a transaction advisory committee comprised of Mr. Steven Smith, Mr. Ethan Auerbach and Mr. Adam Pierce, for the purpose of considering, evaluating, negotiating and making recommendations to the Gener8 board of directors regarding potential financing transactions and/or strategic transactions, including with Euronav, Company A and Company E, as well as alternative strategic transactions and/or financing transactions, and considering, evaluating and making recommendations to the Gener8 board of directors regarding the commercial terms, management arrangements, terms of any financing and other matters relating to the foregoing transactions. The Gener8 Transaction Committee, with the advice and assistance of its financial and legal advisors (UBS and Shearman & Sterling, respectively), as well as Kramer Levin, acting as legal advisor to Gener8, evaluated and negotiated the Merger, including the terms and conditions of the Merger Agreement, the Voting Agreement and the BlueMountain Agreement. On December 20, 2017, the Gener8 Transaction Committee unanimously determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to and in the best interests of Gener8 and the Gener8 shareholders, declared advisable the Merger Agreement and the transactions contemplated thereby, including the Merger, and recommended to the Gener8 board of directors that the Merger Agreement and the transactions contemplated thereby, including the Merger, be approved by the Gener8 board of directors and submitted to the Gener8 shareholders for approval.
In the course of reaching its determination and making the recommendation described above, the Gener8 Transaction Committee considered a number of factors and a significant amount of information, including substantial discussions with its financial and legal advisors. The principal factors and benefits that the Gener8 Transaction Committee believes support its conclusion are set forth below:
Value of Merger Consideration
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estimates of the then current value of Gener8’s assets and Euronav’s assets, and the historical trading prices of Gener8 common shares and Euronav ordinary shares compared to such estimates of asset value;
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the fact that, as a result of the Merger, the Gener8 shareholders will own approximately 28% of the ordinary shares of Euronav, which the Gener8 Transaction Committee believes is a favorable equity interest in the Combined Company relative to the respective companies’ NAVs;
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the fact that the Merger Consideration represented an implied premium of 38.5% on the market value of Gener8 common shares based on the closing share prices of Gener8 common shares and Euronav ordinary shares on December 19, 2017;
•
the financial analyses and presentation prepared by UBS and the oral opinion of UBS, delivered to the Gener8 board of directors and the Gener8 Transaction Committee, subsequently confirmed by delivery of its written opinion to the Gener8 board of directors and the Gener8 Transaction Committee, dated December 20, 2017, to the effect that, as of that date and based upon and subject to various assumptions, matters considered and limitations described in its opinion, the Exchange Ratio provided for in the Merger was fair, from a financial point of view, to holders of Gener8 common shares, which opinion is described in the section captioned “Opinion of UBS, Gener8’s Financial Advisor”;
•
that, in receiving Euronav ordinary shares in the Merger, the holders of Gener8 common shares will be provided an opportunity to participate in a Combined Company that, among other things, is significantly larger than Gener8, will have an improved credit profile and greater financial flexibility due to lower leverage, larger cash liquidity and lower cost of capital, will have improved access to financial markets and will be capable of pursuing significantly larger growth opportunities and will participate in the increased diversification of the assets and operations of the Combined Company, in each case as compared to Gener8 as a standalone company;
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the benefit of anticipated increased liquidity resulting from an increased interest from the investment community in investing in the Combined Company, which will likely be the largest independent listed tanker company (by market capitalization and number of vessels) as well as Gener8 shareholders receiving Euronav ordinary shares listed on both the NYSE and Euronext, which shares will not be subject to a contractual lock-up;
•
the fact that the Merger Consideration is based on a fixed exchange ratio and therefore the Gener8 shareholders will benefit in the event that the market price of Euronav ordinary shares increases relative to the price of Gener8 common shares prior to the Effective Time of the Merger;
•
the dividend per share the Gener8 shareholders would receive in the Merger, assuming Euronav maintains its current dividend policy; and
•
the benefit of cost savings synergies of the Combined Company and higher earnings potential given increased scheduling flexibility of a larger fleet.
Capital Structure of Gener8
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the Gener8 Transaction Committee’s understanding of Gener8 and its business as well as its financial performance, results of operations and future prospects, and the Gener8 Transaction Committee’s resulting consideration that the benefit of continuing as an independent company would not be as valuable as the Merger Consideration being offered because of the potential risks and uncertainties associated with the future prospects of Gener8, in light of, among other things, Gener8’s projected operating cash flows, leverage, liquidity requirements and cost of capital and the requirement that Gener8 comply with certain financial covenants set forth in its credit facilities.
History of Negotiations
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that the Gener8 Transaction Committee successfully negotiated the transaction from an initial offer by Euronav to purchase 13 of Gener8’s newest VLCC vessels to a strategic transaction, pursuant to which the Gener8 shareholders will own approximately 28% of the ordinary shares of Euronav, and also successfully negotiated a decrease of the termination fee from $50 million to $39 million;
•
the fact that the financial and other terms and conditions of the Merger Agreement and the Merger were the product of arm’s length negotiations between the parties and provided reasonable assurances that the Merger would ultimately be consummated on a timely basis; and
•
the belief that the Merger is more favorable to Gener8 shareholders than remaining an independent company or than the other alternative strategic transactions available, including those alternative strategic transactions described in the section entitled “Background to the Merger”.
Terms of the Merger Agreement
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the requirement that the Merger Agreement be approved by the affirmative vote of a majority of the outstanding Gener8 common shares at a Special Meeting;
•
a closing condition that a material adverse effect with respect to Euronav must not have occurred prior to the Closing Date (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), and that certain other representations and warranties regarding Euronav’s conduct of business be true and correct in all respects at the Closing;
•
the inclusion of a provision that permits Gener8, under specified circumstances, to respond to and engage in discussions with, and provide information to, third parties regarding unsolicited proposals to acquire Gener8, as more fully described in the section titled “The Merger Agreement — No Solicitation by Gener8 of Alternative Proposals; Withdrawal of Board Recommendation”;
•
the inclusion of a provision that permits the Gener8 board of directors and the Gener8 Transaction Committee, under specified circumstances, to change its recommendation that Gener8 shareholders vote in favor of the adoption of the Merger Agreement, as more fully described under “The Merger Agreement — No Solicitation by Gener8 of Alternative Proposals; Withdrawal of Board Recommendation”;
•
that an additional independent director, who is currently an independent director of Gener8, would be appointed to the Euronav board of directors, which enhances the likelihood that the benefits that Gener8 expects to achieve as a result of the Merger will be realized;
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the fact that Euronav’s obligation to complete the Merger is not conditioned on obtaining Euronav’s shareholders approval or receiving any financing, other than with respect to obtaining the required consents from certain lenders, as further described in the section entitled The Merger; and
•
the other terms and conditions of the Merger Agreement, as discussed in the section entitled “The Merger Agreement,” which the Gener8 Transaction Committee, after consulting with its legal advisors, considered to be reasonable and consistent with precedents it deemed relevant.
The Gener8 Transaction Committee also considered a variety of risks and other potential negative factors concerning the Merger and the Merger Agreement, including, the following:
•
the risks and costs to Gener8 if the Merger is not completed, including uncertainty about the effect of the Merger on Gener8’s customers, potential customers, suppliers and other parties, which could cause customers, potential customers and suppliers to seek to change or not enter into business relationships with Gener8. Reasons the transaction may not be completed include, among others, the failure of the parties to obtain the requisite approval of Gener8 shareholders (See “The Merger Agreement — Conditions to the Merger Agreement”);
•
the fact that the Merger Consideration is based on a fixed exchange ratio and therefore the Gener8 shareholders will not be compensated in the event of a decline in the price of Euronav ordinary shares relative to the price of Gener8 shares prior to the Effective Time of the Merger;
•
the fact that the Merger Consideration will not be paid in cash (except for the cash received by certain record holders of Gener8 common shares in lieu of fractional Euronav shares);
•
the Merger Agreement’s restrictions on the conduct of Gener8’s business prior to the completion of the Merger, generally requiring Gener8 not to take certain actions with respect to the conduct of its business without the prior consent of Euronav, and that such restrictions may delay or prevent Gener8 from undertaking business opportunities that may arise pending completion of the Merger;
•
certain provisions of the Merger Agreement that could have the effect of discouraging third-party offers for Gener8, including the restriction on Gener8’s ability to solicit third-party proposals for alternative transactions, the requirement to hold a vote of the Gener8 shareholders even if the Gener8 Transaction Committee or Gener8 board of directors changes its recommendation and the fact that, even if either the Gener8 Transaction Committee or Gener8 board of directors changes its recommendation, certain shareholders of Gener8 will still be required to vote a portion of their shares in favor of the Merger pursuant to the Voting Agreement, as further described in the section entitled “Voting Agreement and Proxies”;
•
the reduced influence that the Gener8 shareholders will exercise over the board of directors, management and policies of Euronav as compared to the influence Gener8 shareholders have over the board of directors, management and policies of Gener8;
•
the expectation that the pro forma dividend per share the Gener8 shareholders would receive in the Merger, assuming Euronav maintains its current dividend policy, will generally be taxable to Gener8 shareholders, as more fully described under “The Merger — Material U.S. Federal Income Tax Consequences”;
•
the fact that the Combined Company’s fleet would be older and have a lesser concentration of “eco” VLCCs as compared with Gener8 on a standalone basis;
•
the possibility that, under specified circumstances under the Merger Agreement, Gener8 may be required to pay a termination fee of $39 million, as more fully described in the section entitled “The Merger Agreement — Termination Fee”;
•
the fact that, if the Merger Agreement is terminated, other than as a result of a breach of the Merger Agreement by Euronav, Euronav will have the right to purchase 3 VLCCs from Gener8, as more fully described in the section entitled “Related Agreements”;
•
the risk of incurring expenses in connection with the Merger, including in connection with any litigation that may result from the announcement or pendency of the Merger;
•
the potential risk of diverting management attention and resources from the operation of Gener8’s business and toward completion of the Merger; and
•
various other risks associated with the Merger, Euronav ordinary shares and the business of Euronav and the Combined Company described in the section entitled “Risk Factors.”
In addition to considering the factors described above, the Gener8 Transaction Committee was aware of and considered the following additional factors:
•
the fact that some of Gener8’s directors and executive officers have other interests in the Merger that are different from, or in addition to, their interests as Gener8 shareholders, as more fully described in the section entitled “Interests of Gener8’s Directors and Officers in the Merger”; and
•
Gener8’s prospects for a merger or sale transaction with a company other than Euronav, as further described in the section entitled “Background of the Merger.”
The above discussion is not intended to be exhaustive, but Gener8 believes it addresses the material information and factors considered by the Gener8 Transaction Committee in its consideration of the Merger Agreement and the transactions contemplated thereby, including factors that may support the Merger Agreement and the transactions contemplated thereby, as well as factors that may weigh against the Merger Agreement and the transactions contemplated thereby. In view of the variety of factors and the amount of information considered, as well as the complexity of that information, the Gener8 Transaction Committee does not find it practicable to, and did not, quantify, rank or otherwise assign relative weights to
the specific factors it considered in reaching its determination. In addition, individual members of the Gener8 Transaction Committee may have given different weight to different factors. The above factors are not listed in any particular order of priority. In the judgement of the Gener8 Transaction Committee, the potential risks associated with the Merger Agreement and the transactions contemplated thereby were favorably offset by the potential benefits of the Merger Agreement and the transactions contemplated thereby. This explanation of the Gener8 Transaction Committee’s reasoning, and all other information presented in this section, is forward-looking in nature and, therefore, should be read in light of the factors discussed under the section entitled “Cautionary Statement Regarding Forward-Looking Statements.”
Gener8 Board of Directors
On the basis of the Gener8 Transaction Committee’s recommendations and the other factors described below, on December 20, 2017, the Gener8 board of directors unanimously with Peter C. Georgiopoulos, Chairman of the Gener8 board of directors, Dan Ilany and Nicolas Busch abstaining due to potential conflicts of interest, among other things, determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to and in the best interests of Gener8 and the Gener8 shareholders, declared advisable the Merger Agreement and the transactions contemplated thereby, including the Merger, and resolved to recommend that the Gener8 shareholders vote to approve the Merger Agreement and the transactions contemplated thereby, including the Merger. In the course of reaching its decision to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, and resolving to recommend that the Gener8 shareholders vote to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, the Gener8 board of directors consulted with Gener8 management, the Gener8 Transaction Committee as well as legal advisors and other advisors and, at its December 19 and 20, 2017 meetings, and at other meetings at which it considered the proposed Merger, the Gener8 board of directors considered a number of factors including, among others, the following:
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the unanimous determination and recommendation of the Gener8 Transaction Committee;
•
the financial analyses and presentation prepared by UBS and the oral opinion of UBS, delivered to the Gener8 board of directors and the Gener8 Transaction Committee, subsequently confirmed by delivery of its written opinion to the Gener8 board of directors and the Gener8 Transaction Committee, dated December 20, 2017, to the effect that, as of that date and based upon and subject to various assumptions, matters considered and limitations described in its opinion, the Exchange Ratio provided for in the Merger was fair, from a financial point of view, to holders of Gener8 common shares, which opinion is described in the section captioned “Opinion of UBS, Gener8’s Financial Advisor”;
•
the fact that some of Gener8’s directors and executive officers have other interests in the Merger that are different from, or in addition to, their interests as Gener8 shareholders, as more fully described in the section entitled “Interests of Gener8’s Directors and Officers in the Merger”; and
•
the other factors considered by the Gener8 Transaction Committee as described in “Gener8’s Reasons for the Merger; Recommendation of Gener8’s Board of Directors — Gener8 Transaction Committee,” including the positive factors and potential benefits of the Merger and the risks and potentially negative factors relating to the Merger.
The above discussion is not intended to be exhaustive, but Gener8 believes it addresses the material information and factors considered by the Gener8 board of directors in its consideration of the Merger Agreement and the transactions contemplated thereby, including factors that may support the Merger Agreement and the transactions contemplated thereby, as well as factors that may weigh against the Merger Agreement and the transactions contemplated thereby. In view of the variety of factors and the amount of information considered, as well as the complexity of that information, the Gener8 board of directors does not find it practicable to, and did not, quantify, rank or otherwise assign relative weights to the specific factors it considered in reaching its determination. In addition, individual members of the Gener8 board of directors may have given different weight to different factors. The above factors are not listed in any particular order of priority. In the judgement of the Gener8 board of directors, the potential risks associated with the Merger Agreement and the transactions contemplated thereby were favorably offset by
the potential benefits of the Merger Agreement and the transactions contemplated thereby, including the Merger Agreement. This explanation of the Gener8 board of directors’ reasoning, and all other information presented in this section, is forward-looking in nature and, therefore, should be read in light of the factors discussed under the section entitled “Cautionary Statement Regarding Forward-Looking Statements.”
Opinion of UBS, Gener8’s Financial Advisor
On December 20, 2017, at a meeting of the Gener8 board of directors held to evaluate the Merger, UBS Securities LLC, which we sometimes refer to as UBS, delivered to the Gener8 Transaction Committee and the Gener8 board of directors an oral opinion, which opinion was confirmed by delivery of a written opinion dated December 20, 2017, to the effect that, as of that date and based upon and subject to various assumptions, matters considered and limitations described in its opinion, the Exchange Ratio to be received by holders of Gener8 common shares pursuant to the Merger Agreement was fair, from a financial point of view, to holders of Gener8 common shares.
The full text of UBS’ opinion describes
the assumptions made, procedures followed, matters considered and limitations on the review undertaken by UBS. The opinion is attached as Annex C and is incorporated herein by reference.
UBS’ opinion was provided for the benefit of the Gener8 Transaction Committee and the Gener8 board of directors in connection with, and for the purpose of, their evaluation of the Merger and addresses only the fairness of the Exchange Ratio in the Merger from a financial point of view and does not address any other aspect of the Merger or any related transaction. The opinion does not address the relative merits of the Merger or any related transaction as compared to other business strategies or transactions that might be available with respect to Gener8 or Gener8’s underlying business decision to effect the Merger or any related transaction. The opinion does not constitute a recommendation to any shareholder as to how to vote or act with respect to the Merger or any related transaction. Holders of shares of Gener8 common shares are encouraged to read UBS’ opinion carefully in its entirety.
The following summary of UBS’ opinion should be read in conjunction with the full text of UBS’ opinion.
In arriving at its opinion, UBS, among other things:
•
reviewed certain publicly available business and financial information relating to Gener8 and Euronav;
•
reviewed certain internal financial information and other data relating to the business and financial prospects of Gener8 that were not publicly available, including financial forecasts and estimates prepared by management of Gener8 that the Gener8 Transaction Committee and the Gener8 board of directors directed UBS to utilize for purposes of its analysis;
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reviewed certain internal financial information and other data relating to the business and financial prospects of Euronav that were not publicly available, including financial forecasts and estimates (a) relating to Euronav’s business (other than its joint ventures) prepared by management of Euronav, as adjusted by management of Gener8, and (b) relating to Euronav’s joint ventures prepared by management of Euronav, that, in each case, the Gener8 Transaction Committee and the Gener8 board of directors directed UBS to utilize for purposes of its analysis;
•
reviewed certain estimates of cost savings and the costs and payments to achieve such cost savings, referred to collectively as “Net Cost Savings”, prepared by the management of Gener8 that were not publicly available that the Gener8 Transaction Committee and the Gener8 board of directors directed UBS to utilize for purposes of its analysis;
•
conducted discussions with members of the senior managements of Gener8 and Euronav concerning the businesses and financial prospects of Gener8 and Euronav;
•
reviewed certain information relating to the maritime vessel values and maritime vessel charter values of each of Gener8 and Euronav, in each case, as issued by certain third-party appraisers;
•
reviewed publicly available financial and stock market data with respect to certain other companies UBS believed to be generally relevant;
•
compared the financial terms of the Merger with the publicly available financial terms of certain other transactions UBS believed to be generally relevant;
•
reviewed current and historical market prices of Gener8 common shares and Euronav ordinary shares;
•
reviewed a draft of the Merger Agreement; and
•
conducted such other financial studies, analyses and investigations, and considered such other information, as UBS deemed necessary or appropriate.
In connection with its review, with the consent of the Gener8 Transaction Committee and the Gener8 board of directors, UBS assumed and relied upon, without independent verification, the accuracy and completeness in all material respects of the information provided to or reviewed by UBS for the purpose of its opinion. In addition, with the consent of the Gener8 Transaction Committee and the Gener8 board of directors, UBS did not make any independent evaluation or appraisal of any of the assets or liabilities (contingent or otherwise) of Gener8 or Euronav, and was not furnished with any such evaluation or appraisal, other than the third-party appraisals referred to above. With respect to the financial forecasts, estimates and Net Cost Savings referred to above, UBS assumed, at the direction of the Gener8 Transaction Committee and the Gener8 board of directors, that they had been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of Gener8 as to the future financial performance of Gener8, Euronav and such Net Cost Savings. UBS also assumed, with the consent of the Gener8 Transaction Committee and the Gener8 board of directors, that the Merger would qualify for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”). UBS’ opinion was necessarily based on economic, monetary, market and other conditions as in effect on, and the information available to UBS as of, the date of its opinion. At the request of the Gener8 Transaction Committee, UBS held discussions with certain third parties to discuss indications of interest in a possible transaction with Gener8.
At the direction of the Gener8 Transaction Committee and the Gener8 board of directors, UBS was not asked to, nor did it, offer any opinion as to the terms, other than the Exchange Ratio to the extent expressly specified in UBS’ opinion, of the Merger Agreement or any related documents or the form of the Merger or any related transaction. In addition, UBS expressed no opinion as to the fairness of the amount or nature of any compensation to be received by any officers, directors or employees of any parties to the Merger, or any class of such persons, relative to the Exchange Ratio. UBS expressed no opinion as to what the value of Euronav ordinary shares would be when issued pursuant to the Merger or the prices at which Euronav ordinary shares or Gener8 common shares would trade at any time. In rendering its opinion, UBS assumed, with the consent of the Gener8 Transaction Committee and the Gener8 board of directors, that (i) the final executed form of the Merger Agreement would not differ in any material respect from the draft that UBS reviewed, (ii) the parties to the Merger Agreement would comply with all material terms of the Merger Agreement and (iii) the Merger would be consummated in accordance with the terms of the Merger Agreement without any adverse waiver or amendment of any material term or condition thereof. UBS also assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the Merger would be obtained without any material adverse effect on Gener8, Euronav or the Merger. Except as described above, there were no other instructions to, or limitations on, UBS with respect to the investigations made or the procedures followed by UBS in rendering its opinion. The issuance of UBS’ opinion was approved by an authorized committee of UBS.
In connection with rendering its opinion to the Gener8 Transaction Committee and the Gener8 board of directors, UBS performed a variety of financial and comparative analyses which are summarized below. The following summary is not a complete description of all analyses performed and factors considered by UBS in connection with its opinion. The preparation of a financial opinion is a complex process involving subjective judgments and is not necessarily susceptible to partial analysis or summary description. With respect to the selected public company analysis and selected transactions analysis summarized below, no company or transaction used as a comparison was identical to Gener8 or Euronav or the Merger. These analyses necessarily involved complex considerations and judgments concerning financial and operating characteristics and other factors that could affect the public trading or acquisition values of the companies concerned.
UBS believes that its analysis and the summary below must be considered as a whole and that selecting portions of its analysis and factors or focusing on information presented in tabular format, without considering all analyses and factors or the full narrative description of the analyses, could create a misleading or incomplete view of the processes underlying UBS’ analyses and opinion. UBS did not draw, in isolation, conclusions from or with regard to any one factor or method of analysis for purposes of its opinion, but rather arrived at its ultimate opinion based on results of all analyses undertaken by it and assessed as a whole.
The estimates of the future performance of Gener8 and Euronav, and of the Net Cost Savings, provided by Gener8’s management, and the estimates of the future financial performances reflecting such estimates, in or underlying UBS’ analyses are not necessarily indicative of future results or values, which may be significantly more or less favorable than those estimates. In performing its analyses, UBS considered industry performance, general business and economic conditions and other matters, many of which were beyond the control of Gener8 or Euronav. Estimates of the financial value of companies do not purport to be appraisals or necessarily reflect the prices at which companies may actually be sold or acquired.
The Exchange Ratio was determined through negotiation between Gener8 and the Gener8 Transaction Committee and Euronav, and the decision by the Gener8 board of directors to enter into the Merger Agreement was solely that of the Gener8 board of directors. UBS’ opinion and financial analyses were only one of many factors considered by the Gener8 board of directors in its evaluation of the Merger and should not be viewed as determinative of the views of the Gener8 Transaction Committee and the Gener8 board of directors with respect to the Merger or the Exchange Ratio.
The following is a brief summary of the material financial analyses performed by UBS and reviewed with the Gener8 Transaction Committee and the Gener8 board of directors on December 20, 2017 in connection with UBS’ opinion relating to the Merger.
The financial analyses summarized below include information presented in tabular format. In order to fully understand UBS’ financial analyses, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the financial analyses. Considering the data below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of UBS’ financial analyses.
For purposes of its analyses, UBS reviewed a number of financial and operating metrics, including:
•
Enterprise Value, defined as equity value (calculated as the value of the company’s outstanding equity securities based on the company’s closing stock price as of a specified date), plus debt, including capitalized lease obligations, at book value, less cash and cash equivalents (“net debt”), plus minority interests at book value, as of a specified date, and, in certain cases, joint venture interests describe below;
•
EBITDA, defined as earnings before interest, taxes, depreciation, amortization; and
•
Adjusted EBITDA, defined as EBITDA, adjusted for certain non-cash, one-time, or non-recurring items.
Unless the context indicates otherwise, (i) equity values derived from the selected companies analysis described below were calculated using the closing price of the common stock of the selected publicly traded companies in the crude oil tanker sector of the seaborne transportation industry listed below as of December 19, 2017, (ii) transaction values for the target companies derived from the selected transactions analysis described below were calculated based on implied Enterprise Values as of the public announcement date of the relevant transaction, assuming equity values equal to the estimated purchase prices paid for the common equity of the target companies in the selected transactions and (iii) each of cash and cash equivalents, net working capital and outstanding debt for each of Gener8 and Euronav were based on such amounts as of September 30, 2017, pro forma for contracted vessel sales as of such date, and, in the case of Gener8, the release of pool working capital related to such contracted vessel sales and anticipated debt amortization since September 30, 2017. Accordingly, this information may not reflect current or future market conditions.
In addition, unless the context indicates otherwise, (a) per share amounts for each of Gener8 common shares and Euronav ordinary shares were calculated on a diluted basis, using the treasury stock method,
based on shares, options and warrants outstanding as of September 30, 2017 (and, in the case of Gener8, updated for the vesting of certain restricted stock units as of December 19, 2017), as provided by the respective managements of Gener8 and Euronav, and (b) the Enterprise Value for Euronav was based on an estimated present value of distributions from its equity accounted investees (i.e., joint ventures) of $277 million, as more fully described below under “Net Asset Value Analysis”.
Historical Trading Ratio Analysis.
UBS reviewed, for illustrative purposes, the ratio of the volume weighted average price (“VWAP”) per Gener8 common share to the VWAP per Euronav ordinary share for certain periods since the initial public offering (“IPO”) of Gener8 common shares. For each of the periods set forth in the table below, each such period ending December 19, 2017, UBS calculated the average daily trading ratio, which represents the average of the ratio of the VWAP per Gener8 common share to the VWAP per Euronav ordinary share for each trading day over such period. UBS compared the results of this calculation to (i) the product of (a) the Exchange Ratio of 0.7272 shares of the Combined Company ordinary shares per Gener8 common share provided for in the Merger and (b) such VWAP for Euronav ordinary shares over such time period, and (ii) the closing price of Gener8 common shares on December 19, 2017. The following table presents the results of these calculations:
|
Period
|
|
|
Average Daily
Trading Ratio
(x)
|
|
|
Implied Value of
0.7272x Euronav
Ordinary shares
based on VWAP
($)
|
|
|
Gener8 VWAP
($)
|
|
|
Premium/
(Discount) to
Gener8 Common
Share Closing
Price on
December 19,
2017 of $4.28
(%)
|
|
|
Current (as of 12/19/17)
|
|
|
|
|
0.53
|
|
|
|
|
|
5.93
|
|
|
|
|
|
4.28
|
|
|
|
|
|
38.5
|
|
|
|
2-weeks
|
|
|
|
|
0.52
|
|
|
|
|
|
6.00
|
|
|
|
|
|
4.32
|
|
|
|
|
|
40.1
|
|
|
|
1-month
|
|
|
|
|
0.53
|
|
|
|
|
|
6.17
|
|
|
|
|
|
4.46
|
|
|
|
|
|
44.3
|
|
|
|
6-months
|
|
|
|
|
0.63
|
|
|
|
|
|
5.81
|
|
|
|
|
|
5.04
|
|
|
|
|
|
35.6
|
|
|
|
1-year
|
|
|
|
|
0.63
|
|
|
|
|
|
5.78
|
|
|
|
|
|
5.03
|
|
|
|
|
|
35.1
|
|
|
|
Since IPO
|
|
|
|
|
0.65
|
|
|
|
|
|
7.36
|
|
|
|
|
|
6.55
|
|
|
|
|
|
71.9
|
|
|
Net Asset Value Analysis.
UBS performed an analysis of the NAVs of each of Gener8 and Euronav, using information from Gener8 and Euronav, as well as two internationally known maritime vessel appraisal companies, Clarkson Valuations Limited (“Clarkson”) and VesselsValue Ltd. (“VesselsValue”). The market value estimates for the tanker fleets of each of Gener8 and Euronav, as provided by each of Clarkson and VesselsValue, are included as Annex D and were as of the dates indicated therein. In addition, with respect to Euronav, UBS used the contracted price amounts of certain newly built vessels that have yet to be delivered to Euronav (which were vessels Hulls S909 / Cap Quebec, S910, S911 and S912). UBS calculated NAVs of each of Gener8 and Euronav using (i) total fleet value, which was comprised of the averages of the tanker fleet appraisals of each of Clarkson and VesselsValue, and, in the case of Euronav, remaining capital expenditures related to contracted vessel purchases, and the estimated value of Euronav’s charters, as provided by Clarkson (and included in Annex D), excluding Nautic, Nectar and Flandre which were on subject for sale as of the date indicated therein, and, in the case of Gener8, excluding Pericles, Horn, Argus, Zeus and Poseidon which were on subject for sale, (ii) in the case of Euronav, other assets, which included the estimated net present value (as of September 30, 2017) of the projected cash flows from Euronav’s joint ventures, assuming 50%–100% probability of renewal of its existing contract in 2022 through 2032, discounted at 6.0%for 2017–2022 (through the end of the existing contract), and discounted at 9.0% thereafter, as well as certain other vessel related assets, (iii) net debt and net working capital, as described above, adjusted for expected net proceeds from sale of vessels which were on subject for sale, and (iv) estimated Merger related expenses. The amounts used in these analyses, as well as the resultant NAVs, were as follows:
The amounts used in UBS’ analyses, as well as the resultant NAVs, were as follows:
|
($mm)
|
|
|
Gener8
|
|
|
Euronav
|
|
|
Total Fleet Value
|
|
|
|
|
1,686
|
|
|
|
|
|
1,859
|
|
|
|
Other
|
|
|
|
|
—
|
|
|
|
|
|
317
|
|
|
|
Total Asset Value
|
|
|
|
|
1,686
|
|
|
|
|
|
2,176
|
|
|
|
Adjusted Net Debt
|
|
|
|
|
1,157
|
|
|
|
|
|
706
|
|
|
|
Adjusted Net Working Capital
|
|
|
|
|
55
|
|
|
|
|
|
68
|
|
|
|
Estimated Transaction Expenses
|
|
|
|
|
(20
)
|
|
|
|
|
|
(10
)
|
|
|
|
NAV
|
|
|
|
|
564
|
|
|
|
|
|
1,528
|
|
|
|
Diluted Shares Outstanding (mm in shares)
|
|
|
|
|
83.8
|
|
|
|
|
|
158.5
|
|
|
|
NAV / Share ($)
|
|
|
|
|
6.74
|
|
|
|
|
|
9.64
|
|
|
|
Gener8 NAV Contribution (%)
|
|
|
|
|
27.0
%
|
|
|
|
|
|
—
|
|
|
|
Euronav NAV Contribution (%)
|
|
|
|
|
—
|
|
|
|
|
|
73.0
%
|
|
|
|
Exchange Ratio (x)
|
|
|
|
|
0.7272
|
|
|
|
|
|
|
|
|
|
Implied NAV / share of Offer ($)
|
|
|
|
|
7.01
|
|
|
|
|
|
|
|
|
|
Premium / (Discount) (%)
|
|
|
|
|
4.1
%
|
|
|
|
|
|
|
|
|
Contribution Analyses.
To compare the relative contribution of each of Gener8 and Euronav to the Combined Company, without giving effect to the estimated Net Cost Savings, based on the various financial metrics described below, to the percentage of ordinary shares of the Combined Company pro forma for the Merger to be received by holders of Gener8 common shares as a result of the Merger, UBS performed the levered and unlevered contribution analyses described below. UBS used the internal forecasts and estimates referred to above for Gener8, prepared by Gener8 management, and internal forecasts and estimates for Euronav referred to above, prepared by Euronav management, as adjusted by Gener8 management.
Levered Analysis.
UBS performed an analysis of the relative contributions from each of Gener8 and Euronav to the Combined Company, without giving effect to the estimated Net Cost Savings, with respect to selected levered financial metrics. UBS reviewed:
•
implied equity value, based on the closing price of Euronav ordinary shares on December 19, 2017 and the implied value of Gener8 common shares, based on the closing price of Euronav ordinary shares on December 19, 2017 and the Exchange Ratio;
•
equity value, based on the closing price of each of Gener8 common shares and Euronav ordinary shares on December 19, 2017;
•
NAV;
•
estimated net income, for each of the calendar years 2018 through 2020;
Unlevered Analysis.
In addition, UBS performed an analysis of the relative contributions from each of Gener8 and Euronav to the Combined Company, without giving effect to the estimated Net Cost Savings, with respect to selected unlevered financial metrics. Enterprise Value calculations, as well as calculations relating to revenue and Adjusted EBITDA, excluded the estimated impact of Euronav’s joint ventures. UBS reviewed:
•
implied Enterprise Value, based on the closing price of Euronav ordinary shares on December 19, 2017 and the implied value of Gener8 common shares, based on the closing price of Euronav ordinary shares on December 19, 2017 and the Exchange Ratio;
•
Enterprise Value, based on the closing price of each of Gener8 common shares and Euronav ordinary shares on December 19, 2017;
•
total asset value, calculated as set forth above under “Net Asset Value Analysis”;
•
estimated revenue, for each of the calendar years 2018 through 2020; and
•
estimated Adjusted EBITDA, for each of the calendar years 2018 through 2020.
The table below presents the results of the levered and unlevered contribution analyses.
|
|
|
|
Percentage
Contribution
|
|
|
|
|
|
Gener8
|
|
|
Euronav
|
|
|
Levered Analyses
|
|
|
|
|
Implied Equity Value based on Euronav Closing Share Price on December 19, 2017 and Exchange Ratio
|
|
|
|
|
28
%
|
|
|
|
|
|
72
%
|
|
|
|
Equity Value at December 19, 2017 Closing Share Prices
|
|
|
|
|
22
%
|
|
|
|
|
|
78
%
|
|
|
|
Net Asset Value
|
|
|
|
|
27
%
|
|
|
|
|
|
73
%
|
|
|
|
Net Income
|
|
|
|
|
2018E
|
|
|
|
|
0
%
|
|
|
|
|
|
100
%
|
|
|
|
2019E
|
|
|
|
|
43
%
|
|
|
|
|
|
57
%
|
|
|
|
2020E
|
|
|
|
|
40
%
|
|
|
|
|
|
60
%
|
|
|
|
Unlevered Analyses
|
|
|
|
|
Implied Enterprise Value based on Euronav Closing Share Price on December 19, 2017 and Exchange Ratio
|
|
|
|
|
49
%
|
|
|
|
|
|
51
%
|
|
|
|
Enterprise Value at December 19, 2017 Closing Share Prices
|
|
|
|
|
47
%
|
|
|
|
|
|
53
%
|
|
|
|
Total Asset Value
|
|
|
|
|
44
%
|
|
|
|
|
|
56
%
|
|
|
|
Revenue
|
|
|
|
|
2018E
|
|
|
|
|
39
%
|
|
|
|
|
|
61
%
|
|
|
|
2019E
|
|
|
|
|
39
%
|
|
|
|
|
|
61
%
|
|
|
|
2020E
|
|
|
|
|
39
%
|
|
|
|
|
|
61
%
|
|
|
|
Adjusted EBITDA
|
|
|
|
|
2018E
|
|
|
|
|
44
%
|
|
|
|
|
|
56
%
|
|
|
|
2019E
|
|
|
|
|
42
%
|
|
|
|
|
|
58
%
|
|
|
|
2020E
|
|
|
|
|
41
%
|
|
|
|
|
|
59
%
|
|
|
As indicated in the table above, the percentage contributions by Gener8 to the pro forma combined entity (i) for the levered financial metrics set forth in the table above ranged from approximately 0% to approximately 43%, as compared to Gener8 shareholders receiving approximately 28% of the equity in the pro forma combined entity in the Merger, and (ii) for the unlevered financial metrics set forth in the table above ranged from approximately 39% to approximately 47%, as compared to Gener8 accounting for approximately 49% of the Enterprise Value of the pro forma combined entity.
Selected Public Company Analysis.
UBS compared selected multiples and percentages related to Enterprise Value and equity value for each of Gener8 and Euronav on a standalone basis, and for Gener8 in the Merger, to the corresponding multiples and percentages for the selected publicly traded companies in the crude oil tanker sector of the seaborne transportation services industry identified below. For purposes of this analysis, UBS calculated the implied equity value percentages and implied Enterprise Value multiples for Gener8 in the Merger using an implied value per share of Gener8 common shares equal to the closing price per share of Euronav ordinary shares as of December 19, 2017, multiplied by the Exchange Ratio. Although none of these companies is directly comparable to Gener8 or to Euronav, these companies were selected because their equity is publicly traded in the United States, they are focused on the crude oil tanker sector of the seaborne transportation services industry and they have aggregate equity values in excess of $300 million.
For each of the companies selected by UBS, UBS reviewed, among other things (i) multiples of Enterprise Values to estimated calendar year 2017 (“CY2017E”) and estimated calendar year (“CY2018E”)
Adjusted EBITDA, and (ii) percentage of common equity value, based on current share price, to NAV. Estimated financial data for the selected companies were based on publicly available research analysts’ consensus estimates, public filings and other publicly available information. Estimated financial data for Gener8 were based on internal forecasts and estimates referred to above for Gener8, prepared by Gener8 management. Estimated financial data for Euronav were based on internal forecasts and estimates for Euronav referred to above, prepared by Euronav management, as adjusted by Gener8 management. NAV calculations for the selected companies were based on the mean of the NAVs as estimated by selected Wall Street research analysts’ estimates. NAV calculations for each of Gener8 and Euronav were as describe above under “Net Asset Value Analysis”. Estimates of Euronav Enterprise Value and Adjusted EBITDA excluded the estimated impact of Euronav’s joint ventures.
The results of these analyses are summarized in the following table:
|
|
|
|
Enterprise
Value/Adjusted EBITDA
|
|
|
|
|
|
|
CY2017E
|
|
|
CY2018E
|
|
|
P/NAV
(%)
|
|
|
Selected Companies
|
|
|
|
|
|
Frontline Ltd.
|
|
|
|
|
12.7
|
|
|
|
|
|
10.8
|
|
|
|
|
|
91.3
|
|
|
|
DHT Holdings, Inc.
|
|
|
|
|
7.5
|
|
|
|
|
|
6.4
|
|
|
|
|
|
75.5
|
|
|
|
International Seaways, Inc.
|
|
|
|
|
8.3
(
1
)
|
|
|
|
|
|
4.8
(
2
)
|
|
|
|
|
|
48.7
|
|
|
|
Nordic American Tankers Limited
|
|
|
|
|
11.7
|
|
|
|
|
|
7.3
|
|
|
|
|
|
120.9
|
|
|
|
Teekay Tankers Ltd.
(
3
)
|
|
|
|
|
12.9
|
|
|
|
|
|
7.8
|
|
|
|
|
|
73.7
|
|
|
|
Mean
|
|
|
|
|
10.6
|
|
|
|
|
|
7.4
|
|
|
|
|
|
82.0
|
|
|
|
Median
|
|
|
|
|
11.7
|
|
|
|
|
|
7.3
|
|
|
|
|
|
75.5
|
|
|
|
High
|
|
|
|
|
12.9
|
|
|
|
|
|
10.8
|
|
|
|
|
|
120.9
|
|
|
|
Low
|
|
|
|
|
7.5
|
|
|
|
|
|
4.8
|
|
|
|
|
|
48.7
|
|
|
|
Gener8 at Closing Share Price on December 19, 2017
|
|
|
|
|
9.0
|
|
|
|
|
|
9.4
|
|
|
|
|
|
63.5
|
|
|
|
Gener8 at Implied Merger Value, based on Euronav Closing Share Price on December 19, 2017 and Exchange Ratio
|
|
|
|
|
9.8
|
|
|
|
|
|
10.2
|
|
|
|
|
|
88.0
|
|
|
|
Euronav at Closing Share Price on December 19, 2017
|
|
|
|
|
7.7
|
|
|
|
|
|
8.1
|
|
|
|
|
|
84.5
|
|
|
(1)
Excludes value of interests in joint ventures.
(2)
Excludes value of interests in joint ventures.
(3)
Pro forma for merger with Tanker Investments Limited.
UBS then noted that (i) for calendar year 2017, (a) Gener8 estimates for Enterprise Value as a multiple of Adjusted EBITDA, based on the implied Merger value, were above the low multiples, but below the mean and median multiples, for the selected companies, and (b) Euronav estimates for Enterprise Value as a multiple of Adjusted EBITDA were above the low multiple, but below the mean and median multiples, for the selected companies, (ii) for calendar year 2018, (a) Gener8 estimates for Enterprise Value as a multiple of Adjusted EBITDA, based on the implied Merger value, were above the mean and median multiples, but below the high multiple, for the selected companies, and (b) Euronav estimates for Enterprise Value as a multiple of Adjusted EBITDA were above the mean and median multiples, but below the high multiple, for the selected companies, and (iii) for current share price as a percentage of NAV, (a) Gener8 estimates, based on the implied Merger value, were above the mean and median percentages, but below the high percentage, for the selected companies, and (b) Euronav estimates were above the mean and median percentages, but below the high percentage, for the selected companies.
Selected Transactions Analysis.
UBS reviewed the purchase prices paid in the seven transactions set forth below, which involved target companies in the tanker sector of the seaborne transportation services industry that were announced after January 1, 2008, involved a U.S. stock exchange listed target company and that had implied transaction values greater than $200 million. UBS calculated and compared (i) the
implied Enterprise Value for each target company, based on the implied purchase price paid for the common equity of the target company, as a multiple of the target company’s Adjusted EBITDA for the last twelve month period for which financial information was publicly available (“LTM”) immediately preceding the announcement of the relevant transaction, and (ii) the implied equity value for each target company, based on the implied purchase price for the common equity of the target company, as a percentage of NAV, in each case, based on publicly reported financial information. NAV calculations were based on the midpoint of each respective target company’s NAV range as set forth in public filings related to the proposed transactions describing financial advisors’ analyses related to such transactions.
Selected Precedent Tanker Sector Transactions
|
|
Announcement
Date
|
|
|
Acquiror
|
|
|
Target
|
|
|
EV/LTM
Adjusted
EBITDA (x)
|
|
|
P/NAV
(%)
|
|
|
|
05/31/17
|
|
|
Teekay Tankers Ltd.
|
|
|
Tanker Investments Ltd.
|
|
|
|
|
7.1
|
|
|
|
|
|
83.3
|
|
|
|
|
07/02/15
|
|
|
Frontline Ltd.
|
|
|
Frontline 2012 Ltd.
|
|
|
|
|
14.3
|
|
|
|
|
|
123.3
|
|
|
|
|
04/07/15
|
|
|
Genco Shipping & Trading Limited
|
|
|
Baltic Trading Limited
|
|
|
|
|
nm
(
1
)
|
|
|
|
|
|
79.5
|
|
|
|
|
10/07/14
|
|
|
Knightsbridge Shipping Ltd.
|
|
|
Golden Ocean Group Ltd.
|
|
|
|
|
11.5
|
|
|
|
|
|
n/a
(
2
)
|
|
|
|
|
07/26/11
|
|
|
DryShips Inc.
|
|
|
OceanFreight Inc.
|
|
|
|
|
4.9
|
|
|
|
|
|
87.6
|
|
|
|
|
08/06/08
|
|
|
General Maritime Corporation
|
|
|
Arlington Tankers Ltd.
|
|
|
|
|
10.5
|
|
|
|
|
|
82.1
|
|
|
|
|
01/29/08
|
|
|
Excel Maritime Carriers Ltd.
|
|
|
Quintana Maritime Limited
|
|
|
|
|
11.8
|
|
|
|
|
|
81.1
|
|
|
|
|
Gener8 — at Implied Merger Value
|
|
|
|
|
|
|
|
8.6
|
|
|
|
|
|
88.0
|
|
|
|
|
Mean
|
|
|
|
|
|
|
|
|
|
|
10.0
|
|
|
|
|
|
89.5
|
|
|
|
|
Median
|
|
|
|
|
|
|
|
|
|
|
11.0
|
|
|
|
|
|
82.7
|
|
|
|
|
High
|
|
|
|
|
|
|
|
|
|
|
14.3
|
|
|
|
|
|
123.3
|
|
|
|
|
Low
|
|
|
|
|
|
|
|
|
|
|
4.9
|
|
|
|
|
|
79.5
|
|
|
(1)
“nm” means not meaningful.
(2)
“n/a” means not applicable.
UBS noted that (i) for Enterprise Value as a multiple of LTM Adjusted EBITDA, Gener8 at the implied Merger value was above the low multiple, but below the mean and median multiples, of the selected transactions, and (ii) for implied equity values as a percentage of NAV, Gener8 at the implied Merger value was between the mean and median of the selected transaction percentages.
Discounted Cash Flow Analyses.
Gener8.
UBS performed a discounted cash flow analysis of Gener8 on a standalone basis using financial forecasts and estimates prepared by Gener8’s management for the fourth quarter of 2017 and calendar years 2018 through 2022 referred to above that the Gener8 Transaction Committee and the Gener8 board of directors directed UBS to utilize for purposes of its analysis. UBS calculated a range of implied present values as of September 30, 2017 of the standalone after-tax unlevered free cash flows that Gener8 was forecasted to generate from October 1, 2017 through December 31, 2022 using discount rates ranging between 11.5% and 12.5%. UBS also calculated estimated terminal values for Gener8 as of December 31, 2022, based on the estimated standalone after-tax unlevered free cash flow for fiscal year 2022, as adjusted to reflect Gener8’s normalized capital expenditures, using growth rates into perpetuity of Gener8’s after-tax unlevered free cash flows for fiscal years after 2022 ranging between 0.0% and 2.0%. The estimated terminal values were then discounted to present value as of September 30, 2017 using discount rates ranging between 11.5% and 12.5%. This discounted cash flow analysis resulted in a reference range of implied equity value per share of Gener8 common shares of approximately $5.40 to $9.35.
Euronav.
UBS performed a discounted cash flow analysis of Euronav on a standalone basis using financial forecasts and estimates prepared by Euronav’s management, as adjusted by Gener8’s management, for the fourth quarter of 2017 and calendar years 2018 through 2022 referred to above that the Gener8
Transaction Committee and the Gener8 board of directors directed UBS to utilize for purposes of its analysis, which included estimated proceeds from the sales of certain vessels. UBS calculated a range of implied present values as of September 30, 2017 of the standalone after-tax unlevered free cash flows that Euronav was forecasted to generate from October 1, 2017 through December 31, 2022 using discount rates ranging between 9.5% and 10.5%, except with respect to Euronav’s joint ventures. Euronav’s interests in its joint ventures, including use of applicable discount rates, were valued as described above under “Net Asset Value Analysis”. UBS also calculated estimated terminal values for Euronav as of December 31, 2022, based on the estimated standalone after-tax unlevered free cash flow for fiscal year 2022, as adjusted to reflect Euronav’s normalized capital expenditures, using growth rates into perpetuity of Euronav’s after-tax unlevered free cash flows for fiscal years after 2022 ranging between 0.0% and 2.0%. The estimated terminal values were then discounted to present value as of September 30, 2017 using discount rates ranging between 9.5% and 10.5%. This discounted cash flow analysis resulted in a reference range of implied equity value per share of Euronav ordinary shares of approximately $10.85 to $14.00.
Combined Company Pro Forma for the Merger.
UBS performed a discounted cash flow analysis of the Combined Company pro forma for the Merger using financial forecasts and estimates for each of Gener8 and Euronav as described above, inclusive of estimated Net Cost Savings described above prepared by Gener8’s management, that the Gener8 Transaction Committee and the Gener8 board of directors directed UBS to utilize for purposes of its analysis. UBS calculated a range of implied present values as of September 30, 2017 of the after-tax unlevered free cash flows that the Combined Company pro forma for the Merger was forecasted to generate from October 1, 2017 through December 31, 2022 using discount rates ranging between 10.4% and 11.4%, except with respect to Euronav’s joint ventures. Euronav’s interests in its joint ventures, including use of applicable discount rates, were valued as described above under “Net Asset Value Analysis”. UBS also calculated estimated terminal values for the Combined Company pro forma for the Merger as of December 31, 2022, based on the estimated after-tax unlevered free cash flow of the Combined Company pro forma for the Merger for calendar year 2022, as adjusted to reflect Euronav’s normalized level of capital expenditures, using growth rates into perpetuity of the adjusted after-tax unlevered free cash flows of the Combined Company pro forma for the Merger for calendar years after 2022 ranging between 0.0% and 2.0%. The estimated terminal values were then discounted to present value as of September 30, 2017 using discount rates ranging between 10.4% and 11.4%. This discounted cash flow analysis resulted in a reference range of implied equity value, per Gener8 common share, of the Combined Company pro forma for the Merger to be issued to holders of Gener8 common shares, based on the Exchange Ratio, of approximately $8.00 to $10.95.
Other Information
UBS also noted for the Gener8 Transaction Committee and the Gener8 board of directors certain additional factors that were not relied upon in rendering its opinion, but were provided for informational purposes, including the following review:
Share Price Performance.
UBS reviewed certain historical share price information for each of Gener8 common shares and Euronav ordinary shares based on closing share price information over certain periods during calendar year 2017 and ending December 19, 2017. This review indicated the following:
|
|
|
|
|
Change (%)
|
|
|
YTD
|
|
|
6 Months
|
|
|
3 Months
|
|
|
1 Month
|
|
|
1 Week
|
|
|
|
|
|
|
Gener8 Maritime
|
|
|
|
|
(4.5
)
|
|
|
|
|
|
(22.5
)
|
|
|
|
|
|
(11.8
)
|
|
|
|
|
|
(8.0
)
|
|
|
|
|
|
(1.6
)
|
|
|
|
|
|
|
|
Euronav
|
|
|
|
|
2.5
|
|
|
|
|
|
10.1
|
|
|
|
|
|
1.9
|
|
|
|
|
|
(3.6
)
|
|
|
|
|
|
(2.4
)
|
|
|
Miscellaneous
Under the terms of UBS’ engagement by the Gener8 Transaction Committee, Gener8 has agreed to pay UBS for its financial advisory services in connection with the proposed transaction an aggregate fee of $15.25 million, $1.0 million of which was payable in connection with UBS’ opinion and remainder of which is contingent upon consummation of the Merger. In addition, Gener8 has agreed to reimburse UBS for its reasonable expenses, including fees, disbursements and other charges of its counsel, and to indemnify UBS and related parties against liabilities, including liabilities under federal securities laws, relating to, or arising out of, its engagement.
In the ordinary course of business, UBS and its affiliates may hold or trade, for their own accounts and the accounts of their customers, securities of Gener8 and Euronav and, accordingly, may at any time hold a long or short position in such securities.
Gener8 selected UBS as its financial advisor in connection with the proposed transaction because UBS is an internationally recognized investment banking firm with substantial experience in similar transactions. UBS is continually engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, leveraged buyouts, negotiated underwritings, competitive bids, secondary distributions of listed and unlisted securities and private placements.
Unaudited Prospective Financial Information
Neither Euronav nor Gener8 generally publishes its business plans and strategies or makes external disclosures of its anticipated financial position or results of operations as a matter of course due to, among other reasons, the inherent difficulty of accurately predicting future periods and the uncertainty of the underlying assumptions and estimates, other than, in each case, providing, from time to time, estimates of certain expected financial results and operational metrics for the current year and certain future years in their respective regular earnings press releases, SEC filings and other investor materials. The inclusion of the parties’ respective projections in this proxy statement/prospectus should not be regarded as an indication that any of Euronav, Gener8 or their respective affiliates, officers, directors, employees, advisors or other representatives considered either party’s projections to be predictive of actual future events, and the parties’ respective projections should not be relied on as such. The following prospective financial information was prepared in accordance with IFRS.
General
The summaries of the parties’ respective projections (as adjusted by Gener8 in the case of Euronav’s projections) included above are provided to give Euronav’s stockholders and Gener8’s shareholders access to certain non-public information that was made available to Euronav, Gener8 and their respective boards of directors and financial advisors in connection with the parties’ evaluation of the Merger. The parties’ projections were, in general, prepared solely for internal use and are subjective in many respects and thus subject to interpretation. While presented with numerical specificity, the parties’ projections reflect numerous assumptions and estimates that the parties preparing such projections made in good faith at the time such projections were prepared with respect to industry performance, general business, economic, regulatory, market and financial conditions and other future events, as well as matters specific to the applicable party. These assumptions are inherently uncertain, were made as of the date the parties’ projections were prepared, may not be reflective of actual results, either since the date such projections were prepared, now or in the future, in light of changed circumstances, economic conditions, or other developments and may be beyond the control of Euronav or Gener8, as applicable. Some or all of the assumptions that have been made regarding, among other things, the timing of certain occurrences or impacts, may have changed since the date the parties’ projections were prepared.
Important factors that may affect actual results and cause the parties’ projections not to be achieved include risks and uncertainties relating to Euronav’s and Gener8’s businesses, including their abilities to achieve their respective strategic goals, objectives and targets over applicable periods; industry conditions; the regulatory environment; general business and economic conditions; and other factors described under “Risk Factors” and “Cautionary Statement Regarding Forward-Looking Statements” beginning on pages 21 and 19, respectively, of this proxy statement/prospectus, as well as the risk factors with respect to Euronav’s and Gener8’s respective businesses contained in their most recent SEC filings, which readers are urged to review, which may be found as described under “Where You Can Find More Information” beginning on page 151 of this proxy statement/prospectus). In addition, the parties’ projections cover multiple future years, and such information by its nature is less reliable in predicting each successive year. The parties’ projections also do not take into account any circumstances or events occurring after the date on which they were prepared, and do not give effect to the transactions contemplated by the Merger Agreement, including the Merger, except that, as described above, the Combined Company projections give effect to the completion of the Merger. The parties’ projections also reflect assumptions as to certain business decisions that are subject to change. As a result, actual results may differ materially from those contained in the parties’ projections. Accordingly, there is no assurance that the parties’ projections will be realized or that actual results will not be significantly lower than projected.
The parties’ projections were not prepared with a view toward complying with IFRS (including because certain metrics are non-IFRS measures as discussed above), the published guidelines of the SEC regarding projections or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information. Neither Euronav’s nor Gener8’s independent registered public accounting firm, nor any other independent accountants, have compiled, examined or performed any procedures with respect to either party’s projections, nor has any of them expressed any opinion or any other form of assurance on either party’s projections or the achievability of the results reflected in either party’s projections, and none of them assumes any responsibility for, and each of them disclaims any association with, either party’s projections. The reports of Euronav’s and Gener8’s independent registered public accounting firms incorporated by reference into this proxy statement/prospectus relate to Euronav’s and Gener8’s historical financial information, respectively, and no such report extends to either party’s projections or should be read to do so.
None of Euronav, Gener8 or their respective affiliates, officers, employees, directors, advisors or other representatives can give you any assurance that actual results will not differ from the parties’ respective projections, and none of Euronav, Gener8 or their respective affiliates, officers, employees or directors undertakes any obligation to update or otherwise revise or reconcile either party’s projections to reflect circumstances existing after the date the parties’ respective projections were prepared or to reflect the occurrence of future events even in the event that any or all of the assumptions underlying the parties’ respective projections are not realized. Neither Euronav nor Gener8 intends to publicly update or make any other revision to either party’s projections. None of Euronav, Gener8 or any of their respective affiliates, officers, employees, directors, advisors or other representatives has made or makes any representation to any Euronav stockholder, Gener8 shareholder or any other person regarding Euronav’s or Gener8’s ultimate performance compared to either party’s projections or that the results reflected therein will be achieved. Neither Euronav nor Gener8 has made any representation to the other, in the Merger Agreement or otherwise, concerning the parties’ respective projections. For the reasons described above, readers of this proxy statement/prospectus are cautioned not to place undue, if any, reliance on either party’s projections.
Gener8 Projections
In connection with Gener8’s evaluation of the Merger, Gener8 made available to Euronav and to UBS, certain financial forecasts and unaudited prospective financial information relating to Gener8 on a stand-alone basis, assuming Gener8 would continue as an independent company, which are referred to in this proxy statement/prospectus as the Gener8 management projections. Gener8 directed UBS to use and rely upon the Gener8 projections (defined below), which include the Gener8 management projections, for purposes of its financial analysis and opinion (see “— Opinion of UBS, Gener8’s Financial Advisor” beginning on page [•] of this proxy statement/prospectus).
The Gener8 management projections reflect numerous assumptions and estimates that Gener8 made in good faith, including, without limitation:
•
Improving tanker market fundamentals including steady growth in demand for vessels and shrinking order book
•
Spot rates for VLCC, Suezmax, Panamax and Aframax tankers would return to rates consistent with long term averages in the medium term
•
ECO VLCCs spot rates to earn a premium over non-ECO VLCC spot rates
•
Vessel utilization, rechartering and pricing consistent with historical performance
•
Operating costs consistent with historical performance
•
Dry dock expenditure as scheduled for each vessel in Gener8’s fleet
•
The impact of regulations and likely changes in regulation
•
Other general business, market and financial assumptions
The following table presents a summary of the Gener8 projections:
|
|
|
|
Year Ending December 31,
|
|
|
|
|
|
2017P
|
|
|
2018P
|
|
|
2019P
|
|
|
2020P
|
|
|
2021P
|
|
|
2022P
|
|
|
|
|
|
(dollars in millions, except for TCE)
|
|
|
Gener8 VLCC TCE
(1)
|
|
|
|
$
|
28,822
|
|
|
|
|
$
|
28,250
|
|
|
|
|
$
|
36,500
|
|
|
|
|
$
|
40,000
|
|
|
|
|
$
|
40,000
|
|
|
|
|
$
|
40,000
|
|
|
|
Gener8 net voyage revenues
(2)
|
|
|
|
$
|
309
|
|
|
|
|
$
|
292
|
|
|
|
|
$
|
362
|
|
|
|
|
$
|
392
|
|
|
|
|
$
|
382
|
|
|
|
|
$
|
392
|
|
|
|
Gener8 adjusted EBITDA
(3)
|
|
|
|
$
|
176
|
|
|
|
|
$
|
169
|
|
|
|
|
$
|
237
|
|
|
|
|
$
|
265
|
|
|
|
|
$
|
253
|
|
|
|
|
$
|
261
|
|
|
|
Gener8 unlevered free cash flow
(4)
|
|
|
|
$
|
344
|
|
|
|
|
$
|
166
|
|
|
|
|
$
|
233
|
|
|
|
|
$
|
251
|
|
|
|
|
$
|
222
|
|
|
|
|
$
|
243
|
|
|
(1)
Time Charter Equivalent, or “TCE,” is a measure of the average daily revenue performance of a vessel. Gener8 calculates TCE by dividing net voyage revenue by total operating days for its fleet. Net voyage revenues are voyage revenues minus voyage expenses.
(2)
Gener8 evaluates its performance using net voyage revenues. Gener8 believes that presenting voyage revenues, net of voyage expenses, neutralizes the variability created by unique costs associated with particular voyages or deployment of vessels on time charter or on the spot market and presents a more accurate representation of the revenues generated by its vessels.
(3)
Gener8 adjusted EBITDA means income before income taxes, gains (losses) on vessel sales, interest expense (including commitment fees), impact of interest rate swaps fair value, professional fees related to interest rate swaps, depreciation, non-cash G&A such as stock compensation, other financing costs, loss on litigation, and other items, if any, that neither relate to the ordinary course of Gener8’s business nor reflect Gener8’s underlying business performance.
(4)
Gener8 unlevered free cash flow means Gener8 adjusted EBITDA as described above, plus proceeds from vessel sales and less changes in working capital, drydock capital expenditures and capital expenditures for newbuild vessels.
Each of Gener8 net voyage revenues, Gener8 adjusted EBITDA and Gener8 unlevered free cash flow, as presented above in the Gener8 projections, is a non-IFRS financial measure. Non-IFRS financial measures should not be considered a substitute for, or superior to, financial measures determined or calculated in accordance with IFRS. Gener8 prepared the net voyage revenues adjusted EBITDA and the assumptions underlying the and unlevered free cash flow information as part of its ordinary course internal business and strategic planning process, and not for external disclosure, using methodologies that may be different than the methodologies used by other companies. Gener8 does not provide a reconciliation of Gener8 net voyage revenues, Gener8 adjusted EBITDA and Gener8 unlevered free cash flow to comparable IFRS financial measures because it is unable to reasonably predict certain items contained in the IFRS measures, including non-recurring and infrequent items that are not indicative of Gener8’s ongoing operations.
Certain other unaudited prospective financial information relating to Gener8 on a stand-alone basis, assuming Gener8 would continue as an independent company, was calculated based on the Gener8 management projections and was used, and relied upon, by UBS in connection with its financial analysis and opinion in connection with the Merger, including, in the case of the unlevered free cash flow estimates presented above (which other prospective information, together with the Gener8 management projections, are referred to in this proxy statement/prospectus as the Gener8 projections), UBS’ discounted cash flow analysis as described under “— Opinion of UBS, Gener8’s Financial Advisor” beginning on page [•] of this proxy statement/prospectus. Such other prospective information was also not prepared for external disclosure.
Adjusted Euronav Projections
In connection with its evaluation of the Merger and the preparation of the Combined Company projections described below (see “— Combined Company Projections” beginning on page [•] of this proxy statement/prospectus), Gener8 received projections regarding Euronav on a stand-alone basis prepared by Euronav management in conjunction with Euronav’s financial advisers. Gener8 management made certain
adjustments to the assumptions and estimates underlying the projections received from Euronav in light of, among other things, Gener8 management’s views of future tanker spot rates. Gener8’s adjusted version of the projections received from Euronav are referred to in this proxy statement/prospectus as the adjusted Euronav projections. The adjusted Euronav projections were made available by Euronav management in conjunction with Euronav’s financial advisers to UBS for purposes of its financial analysis and opinion. Gener8 directed UBS to use and rely upon the adjusted Euronav projections for purposes of its financial analysis and opinion (see “— Opinion of UBS, Gener8’s Financial Advisor” beginning on page [•] of this proxy statement/prospectus).
The following table presents a summary of the adjusted Euronav projections:
|
|
|
|
Year Ending December 31,
|
|
|
|
|
|
2017P
|
|
|
2018P
|
|
|
2019P
|
|
|
2020P
|
|
|
2021P
|
|
|
2022P
|
|
|
|
|
|
(dollars in millions, except for TCEs)
|
|
|
Euronav VLCC TCE
(1)
|
|
|
|
$
|
27,375
|
|
|
|
|
$
|
28,250
|
|
|
|
|
$
|
36,500
|
|
|
|
|
$
|
40,000
|
|
|
|
|
$
|
40,000
|
|
|
|
|
$
|
40,000
|
|
|
|
Euronav total revenue
(2)
|
|
|
|
$
|
458
|
|
|
|
|
$
|
450
|
|
|
|
|
$
|
568
|
|
|
|
|
$
|
618
|
|
|
|
|
$
|
623
|
|
|
|
|
$
|
564
|
|
|
|
Euronav adjusted EBITDA
(3)
|
|
|
|
$
|
230
|
|
|
|
|
$
|
217
|
|
|
|
|
$
|
326
|
|
|
|
|
$
|
375
|
|
|
|
|
$
|
379
|
|
|
|
|
$
|
364
|
|
|
|
Euronav unlevered free cash flow
(4)
|
|
|
|
$
|
258
|
|
|
|
|
$
|
155
|
|
|
|
|
$
|
360
|
|
|
|
|
$
|
389
|
|
|
|
|
$
|
399
|
|
|
|
|
$
|
388
|
|
|
(1)
In general, Euronav management believes TCE revenues (as disclosed in Euronav’s public filings), a measure of the average daily revenue performance of a vessel calculated by subtracting voyage expenses from voyage revenues, serves as an industry standard for measuring and managing fleet revenue and for comparing results between geographical regions and among competitors.
(2)
Euronav total revenue includes aggregate pool TCE revenues, or TCE revenue earned by vessels operating in the TI pool, time- and bareboat charter revenues and spot voyages recognized rateably on a daily basis over the estimated length of each voyage.
(3)
Euronav adjusted EBITDA means income before income taxes, income from equity accounted investees, amortization of debt financing fees, gains (losses) on vessel sales/other tangible assets, interest expense (including commitment fees), depreciation, and other items, if any, that neither relate to the ordinary course of Euronav’s business nor reflect Euronav’s underlying business performance.
(4)
Euronav unlevered free cash flow means Euronav adjusted EBITDA as described above, plus proceeds from vessel sales and dividends received from joint ventures and less changes in working capital, drydock capital expenditures and capital expenditures for newbuild vessels.
Each of Euronav total revenue, Euronav adjusted EBITDA and Euronav unlevered free cash flow, as presented above in the adjusted Euronav projections, is a non-IFRS financial measure. Non-IFRS financial measures should not be considered a substitute for, or superior to, financial measures determined or calculated in accordance with IFRS. Gener8 prepared the revenue and adjusted EBITDA information and the assumptions underlying the unlevered free cash flow information as part of its evaluation of the Merger, and not for external disclosure, using methodologies than may be different than the methodologies used by other companies. Gener8 does not provide a reconciliation of Euronav total revenue, Euronav adjusted EBITDA and Euronav unlevered free cash flow to comparable IFRS financial measures because it is unable to reasonably predict certain items contained in the IFRS measures, including non-recurring and infrequent items that are not indicative of Euronav’s ongoing operations.
Combined Company Projections
In connection with its evaluation of the Merger, Gener8 management made available to UBS certain financial forecasts and unaudited prospective financial information relating to the Combined Company, giving effect to the Merger, which is referred to in this proxy statement/prospectus as the Combined Company projections. The Combined Company projections were made available by Gener8 to UBS for purposes of its financial analysis and opinion. Gener8 directed UBS to use and rely upon the Combined Company projections for purposes of its financial analysis and opinion (see “— Opinion of UBS, Gener8’s Financial Advisor” beginning on page [•] of this proxy statement/prospectus).
The Combined Company projections reflect numerous assumptions and estimates that Gener8 made in good faith in connection with the preparation of the adjusted Euronav projections and the Gener8 management projections as more fully described above under “— Adjusted Euronav Projections” and “— Gener8 Projections” beginning on pages [•] and [•], respectively, of this proxy statement/prospectus. Additionally, the Combined Company projections reflect estimated synergies of $27 million by the first full year following completion of the Merger (which is assumed to be completed in the first half of 2018 for purposes of calculating the estimated synergies), which increase by 1.5% per year thereafter.
The following table presents a summary of the Combined Company projections:
|
|
|
|
Year Ending December 31,
|
|
|
|
|
|
2018P
|
|
|
2019P
|
|
|
2020P
|
|
|
2021P
|
|
|
2022P
|
|
|
|
|
|
(dollars in millions, except for TCEs)
|
|
|
Combined Company VLCC TCE
(1)
|
|
|
|
$
|
28,250
|
|
|
|
|
$
|
36,500
|
|
|
|
|
$
|
40,000
|
|
|
|
|
$
|
40,000
|
|
|
|
|
$
|
40,000
|
|
|
|
Combined Company total revenue
(2)
|
|
|
|
$
|
747
|
|
|
|
|
$
|
934
|
|
|
|
|
$
|
1,011
|
|
|
|
|
$
|
1,006
|
|
|
|
|
$
|
957
|
|
|
|
Combined Company adjusted EBITDA
(3)
|
|
|
|
$
|
389
|
|
|
|
|
$
|
594
|
|
|
|
|
$
|
668
|
|
|
|
|
$
|
662
|
|
|
|
|
$
|
655
|
|
|
|
Combined Company unlevered free cash flow
(4)
|
|
|
|
$
|
328
|
|
|
|
|
$
|
624
|
|
|
|
|
$
|
670
|
|
|
|
|
$
|
650
|
|
|
|
|
$
|
661
|
|
|
(1)
Gener8’s and Euronav’s management believes TCE revenues, a measure of the average daily revenue performance of a vessel calculated by subtracting voyage expenses from voyage revenues, serves as an industry standard for measuring and managing fleet revenue and for comparing results between geographical regions and among competitors.
(2)
Combined Company total revenue reflects the assumed transfer of Gener8’s standalone fleet from the Navig8 Pool to the TI Pool on June 30, 2018 (and December 31, 2018 for the
Gener8 Nestor
), at which point vessels are projected to earn net revenue in similar fashion to Euronav aggregate pool TCE revenues for the TI pool.
(3)
Combined Company adjusted EBITDA reflects the estimated synergies of $27mm of projected Combined Company G&A expenses by the first full year following the completion of the Merger (which is assumed to completed in the first half of 2018 for purposes of calculating the estimated synergies), which increase by 1.5% per annum thereafter.
(4)
Combined Company unlevered free cash flow means Combined Company adjusted EBITDA as described above, plus proceeds from vessel sales/other tangible assets and dividends received from joint venture and less changes in working capital, drydock capital expenditures and capital expenditures for newbuild vessels.
Each of Combined Company total revenue, Combined Company adjusted EBITDA and Combined Company unlevered free cash flow, as presented above in the Combined Company projections (as defined below), is a non-IFRS financial measure. Non-IFRS financial measures should not be considered a substitute for, or superior to, financial measures determined or calculated in accordance with IFRS. Gener8 prepared the total revenue and adjusted EBITDA information and the assumptions underlying the unlevered free cash flow information as part of its evaluation of the Merger, and not for external disclosure, using methodologies than may be different than the methodologies used by other companies. Gener8 does not provide a reconciliation of Combined Company total revenue, Combined Company adjusted EBITDA and Combined Company unlevered free cash flow to comparable IFRS financial measures because it is unable to reasonably predict certain items contained in the IFRS measures, including non-recurring and infrequent items that are not indicative of the Combined Company’s ongoing operations.
Board of Directors and Management of Euronav after the Merger
After the Merger, members of Euronav board of directors and executive management will continue to serve in such positions of the Combined Company. For information about Euronav’s board of directors and Executive Management, please see Section “Information About Euronav — Fleet Management.” In addition, Euronav has agreed, pursuant to the Merger Agreement, to take all actions necessary so that Mr. Steven Smith (a current director of Gener8) (or if Mr. Smith is unavailable, then such other person
designated by the Gener8 Transaction Committee who is reasonably satisfactory to Euronav, which acceptance shall not be unreasonably withheld) will, upon recommendation by Euronav’s corporate governance and nomination committee, be proposed for election to serve on Euronav’s board of directors at the next regularly scheduled annual meeting of Euronav’s shareholders. For information on Mr. Smith as director nominee, see section “Information About the Combined Company — Board of Directors and Executive Management.”
Interests of Gener8’s Directors and Executive Officers in the Merger
Certain of the members of the Gener8 board of directors and certain of Gener8’s executive officers have financial interests in the Merger that are in addition to, and/or different from, the interests of holders of Gener8 common shares. The members of the Gener8 Transaction Committee and board of directors were aware of these additional and/or differing interests and potential conflicts and considered them, among other matters, in evaluating, negotiating and approving the Merger Agreement. Interests of directors and executive officers that may differ from or be in addition to the interests of the Gener8 shareholders include the following:
Gener8 Employment Agreements
In June 2015, Gener8 (i) entered into employment agreements with each of Peter Georgiopoulos, Chairman, Chief Executive Officer and a director of Gener8 and Sean Bradley, Manager and Commercial Director of Gener8 Maritime Management LLC, and (ii) amended the employment agreements previously entered into in May 2012 with each of John P. Tavlarios, Chief Operating Officer of Gener8; Leonard J. Vrondissis, Executive Vice President and Chief Financial Officer of Gener8 and Milton H. Gonzales, Manager and Technical Director of Gener8 Maritime Management LLC.
Peter Georgiopoulos
Mr. Georgiopoulos’s employment agreement with the company provides for the following:
•
Base Salary: Not less than $750,000
•
Bonus: An annual discretionary cash bonus based on a target of 150% of base salary upon the attainment of pre-established annual performance goals established by the Gener8 board or any committee thereof after consultation with Mr. Georgiopoulos
•
Restricted Stock Units: A grant of 1,081,379 Gener8 restricted stock units (which was made on June 24, 2015)
•
Termination of Employment: The following payments are due to Mr. Georgiopoulos if he is terminated without “cause” or resigns for “good reason”: (i) any unpaid salary and earned and unpaid bonus, (ii) any accrued vacation and employee benefits, (iii) an amount equal to two times Mr. Georgiopoulos’s then current annual salary, payable over a twelve month period, (iv) an amount equal to two times Mr. Georgiopoulos’s target bonus for the last fiscal year, payable over a twelve month period and (v) continuation of Mr. Georgiopoulos’s health plan for 18 months following such termination or resignation (including any dependents of Mr. Georgiopoulos). If Mr. Georgiopoulos resigns without “good reason” the following payments are due: (a) any unpaid salary and earned and unpaid bonus and (b) any accrued vacation and employee benefits. If Mr. Georgiopoulos is terminated for “cause” the following payments are due: (1) any unpaid salary and (2) any accrued vacation and employee benefits. Any payments due to Mr. Georgiopoulos cease in the event of any material willful violation by him of the non-competition or other restrictive covenants described below. In the event Mr. Georgiopoulos is terminated by Gener8 as a result of the completion of the Merger, such termination would constitute a termination without “cause” under his employment agreement. As a result, Mr. Georgiopoulos will be entitled to receive the amounts described in (i) – (v) above.
•
Restrictive Covenants: Mr. Georgiopoulos is (i) prohibited from engaging in competitive activities involving the international maritime transportation of crude oil or refined products derived from crude oil (excluding bunkering operations) for 12 months after the termination of his
employment, (ii) subject to an indefinite confidentiality obligation, (iii) prohibited from (x) soliciting or interfering with customers, vendors and employees of Gener8 and (y) disparaging Gener8 or its officers, directors, employees, shareholders agents or products, in each case for 12 months after termination and (iv) obligated to cooperate with Gener8 for two years after his termination with regard to matters to which he has direct knowledge as a result of his employment with Gener8.
•
Release: Certain amounts payable, and certain benefits and other rights of Mr. Georgiopoulos under the employment agreement are subject to his delivery and non-revocation of a general release.
•
Code Section 280G: If any payments or benefits constitute parachute payments, Mr. Georgiopoulos will be entitled to receive either (i) the full amount of the such payments and benefits or (ii) a portion thereof having a value equal to $1 less than 3x his “base amount” (as defined in Section 280G of the Code), whichever results in the receipt by him of the greatest portion of such payments and benefits on an after-tax basis.
John P. Tavlarios
•
Base Salary: (i) Not less than $550,000
•
Bonus: An annual discretionary cash bonus based on a target of 100% of base salary upon the attainment of pre-established annual performance goals established by the Gener8 board or any committee thereof after consultation with Mr. Tavlarios.
•
Termination of Employment: The following payments are due to Mr. Tavlarios if he is terminated without “cause” or resigns for “good reason”: (i) any unpaid salary and earned and unpaid bonus, (ii) any accrued vacation and employee benefits, (iii) an amount equal to 1.5 times Mr. Tavlarios’s then current annual salary, payable over an eighteen-month period, provided that if Mr. Tavlarios is terminated within 60 days prior to or 6 months following a change in control, an amount equal to two times Mr. Tavlarios’s then current annual salary is payable over a two-year period and (iv) continuation of Mr. Tavlarios’s health plan (including any dependents of Mr. Tavlarios). The Merger constitutes a change in control for purposes of clause (iii) above, accordingly, Mr. Tavlarios would be entitled to the additional six-months’ severance pay if terminated within 60 days prior to or 6 months following the Merger. Any payments due to Mr. Tavlarios cease in the event of any material willful violation by him of the non-competition or other restrictive covenants described below.
•
Restrictive Covenants: Mr. Tavlarios is (i) prohibited from engaging in competitive activities involving the international or domestic maritime transport of petroleum or petroleum-based products, including but not limited to crude oil and refined petroleum products for eighteen months after the termination of his employment, provided that in the event Mr. Tavlarios is entitled to additional severance due to termination in connection with a change in control, the restriction terminates after twelve months, (ii) subject to an indefinite confidentiality obligation, (iii) prohibited from (x) soliciting customers of Gener8 for six months following termination and (y) soliciting Gener8’s employees and interfering with Gener8’s vendors for twelve months following termination, (iv) prohibited from disparaging Gener8 or its officers, directors, employees, shareholders agents or products for twelve months after termination and (v) obligated to cooperate with Gener8 indefinitely after his termination with regard to matters to which he has direct knowledge as a result of his employment with Gener8.
•
Release: Certain amounts payable, and certain benefits and other rights of Mr. Tavlarios under the employment agreement are subject to his delivery and non-revocation of a general release.
•
Code Section 280G: If any payments or benefits constitute parachute payments, Mr. Tavlarios will be entitled to receive either (i) the full amount of the such payments and benefits or (ii) a portion thereof having a value equal to $1 less than 3x his “base amount” (as defined in Section 280G of the Code), whichever results in the receipt by him of the greatest portion of such payments and benefits on an after-tax basis.
Leonard J. Vrondissis
•
Base Salary: (i) Not less than $425,000
•
Bonus: An annual discretionary cash bonus based on a target of 100% of base salary upon the attainment of pre-established annual performance goals established by the Gener8 board or any committee thereof after consultation with Mr. Vrondissis.
•
Termination of Employment: The following payments are due to Mr. Vrondissis if he is terminated without “cause” or resigns for “good reason”: (i) any unpaid salary and earned and unpaid bonus, (ii) any accrued vacation and employee benefits, (iii) an amount equal to Mr. Vrondissis’s then current annual salary, payable over a twelve month period, and (iv) continuation of Mr. Vrondissis’s health plan for 12 months following such termination or resignation (including any dependents of Mr. Vrondissis). If Mr. Vrondissis resigns without “good reason” the following payments are due: (a) any unpaid salary and earned and unpaid bonus and (b) any accrued vacation and employee benefits. If Mr. Vrondissis is terminated for “cause” the following payments are due: (1) any unpaid salary and (2) any accrued vacation and employee benefits. Any payments due to Mr. Vrondissis cease in the event of any material willful violation by him of the non-competition or other restrictive covenants described below. In the event Mr. Vrondissis is terminated by Gener8 as a result of the completion of the Merger, such termination would constitute a termination without “cause” under his employment agreement. As a result, Mr. Vrondissis will be entitled to receive the amounts described in (i)-(iv) above
•
Restrictive Covenants: Mr. Vrondissis is (i) prohibited from engaging in competitive activities involving the international or domestic maritime transport of petroleum or petroleum-based products, including but not limited to crude oil and refined petroleum products for 6 months after the termination of his employment, (ii) subject to an indefinite confidentiality obligation, (iii) prohibited from (x) soliciting or interfering with customers, vendors and employees of Gener8 and (y) disparaging Gener8 or its officers, directors, employees, shareholders agents or products, in each case for six months after termination and (iv) obligated to cooperate with Gener8 indefinitely after his termination with regard to matters to which he has direct knowledge as a result of his employment with Gener8.
•
Release: Certain amounts payable, and certain benefits and other rights of Mr. Vrondissis under the employment agreement are subject to his delivery and non-revocation of a general release.
•
Code Section 280G: If any payments or benefits constitute parachute payments, Mr. Vrondissis will be entitled to receive either (i) the full amount of the such payments and benefits or (ii) a portion thereof having a value equal to $1 less than 3x his “base amount” (as defined in Section 280G of the Code), whichever results in the receipt by him of the greatest portion of such payments and benefits on an after-tax basis.
Milton H. Gonzales and Sean Bradley
•
Base Salary: (i) Not less than $275,000
•
Bonus: An annual discretionary cash bonus based on a target of 100% of base salary upon the attainment of pre-established annual performance goals established by the Gener8 board or any committee thereof after consultation with the applicable executive.
•
Termination of Employment: The following payments are due to the applicable executive if such executive is terminated without “cause” or resigns for “good reason”: (i) any unpaid salary and earned and unpaid bonus, (ii) any accrued vacation and employee benefits, (iii) an amount equal to such executive’s then current annual salary, payable over a twelve month period, and (iv) continuation of such executive’s health plan for 12 months following such termination or resignation (including any dependents of such executive). If the applicable executive resigns without “good reason” the following payments are due: (a) any unpaid salary and earned and unpaid bonus and (b) any accrued vacation and employee benefits. If the applicable executive is terminated for “cause” the following payments are due: (1) any unpaid salary and (2) any accrued vacation and employee benefits. Any payments due to the applicable executive cease in the event
of any material willful violation by him of the non-competition or other restrictive covenants described below. In the event the applicable executive is terminated by Gener8 as a result of the completion of the Merger, such termination would constitute a termination without “cause” under the executive’s employment agreement. As a result, such executive will be entitled to receive the amounts described in (i) – (iv) above.
•
Restrictive Covenants: Each executive is (i) prohibited from engaging in competitive activities involving the international or domestic maritime transport of petroleum or petroleum-based products, including but not limited to crude oil and refined petroleum products for 6 months after the termination of his employment, (ii) subject to an indefinite confidentiality obligation, (iii) prohibited from (x) soliciting customers of Gener8 for six months following termination and (y) soliciting Gener8’s employees and interfering with Gener8’s vendors for twelve months following termination, (iv) prohibited from disparaging Gener8 or its officers, directors, employees, shareholders agents or products for twelve months after termination and (v) obligated to cooperate with Gener8 indefinitely after his termination with regard to matters to which he has direct knowledge as a result of his employment with Gener8.
•
Release: Certain amounts payable, and certain benefits and other rights of each executive under the applicable employment agreement are subject to the executive’s delivery and non-revocation of a general release.
•
Code Section 280G: If any payments or benefits constitute parachute payments, the executive will be entitled to receive either (i) the full amount of the such payments and benefits or (ii) a portion thereof having a value equal to $1 less than 3x his “base amount” (as defined in Section 280G of the Code), whichever results in the receipt by him of the greatest portion of such payments and benefits on an after-tax basis.
Incentive Payments to Gener8’s Executive Officers
The Merger Agreement permits Gener8 to enter into the following compensation arrangements with its directors and officers:
Peter Georgiopoulos, Chairman, Chief Executive Officer and a director of Gener8 is permitted to receive, in addition to any severance payments to which he is entitled under his existing agreements with the Company, a transaction bonus of $3,250,000 upon closing of the Merger (subject to reduction so that the “present value,” as determined under Section 280G of the Internal Revenue Code, of such payments plus any other “parachute payments” under Section 280G of the Internal Revenue Code will not, in the aggregate, exceed one dollar less than three times Mr. Georgiopoulos’ “base amount” as defined in Section 280G of the Internal Revenue Code) and a pro rata bonus for 2018 through the date of his termination based on an annualized amount of $1,125,000. Gener8 is permitted to enter into a consulting services agreement with Mr. Georgiopoulos terminating on the first anniversary of his termination from the Company under which he will receive base compensation of $750,000 and a bonus of $1,125,000 minus the pro rata bonus described in the previous sentence. Gener8 is permitted to waive any non-competition provisions in any agreement between the Company and Mr. Georgiopoulos, as of the signing of the Merger Agreement.
Leonard Vrondissis, Executive Vice President and Chief Financial Officer of Gener8 is permitted to receive in addition to any severance payments to which he is entitled under his existing agreements with the Company, a transaction bonus of $2,500,000 upon closing of the Merger. Gener8 is permitted to enter into a consulting services agreement with Mr. Vrondissis under which he will receive base compensation of $425,000 (annualized) and a bonus equal to the pro rata portion of $575,000 (annualized). Gener8 is permitted to waive any non-competition provisions in any agreement between the Company and Mr. Vrondissis, as of the closing of the Merger.
Milton Gonzales, Manager and Technical Director of Gener8 Maritime Management LLC is permitted to receive in connection with the Merger a severance payment of $275,000 in accordance with the terms of his employment agreement with Gener8. In addition, Mr. Gonzales will receive a transaction bonus of $250,000 and Gener8 has entered into an agreement with Mr. Gonzales waiving any non-competition provisions in any agreement between him and Gener8, upon the closing of the Merger.
John Tavalarios, Chief Operating Officer of the Company, is permitted to receive in connection with the Merger a severance payment of $1.1 million in accordance with the terms of his employment agreement with Gener8. In addition, Gener8 has entered into an agreement with Mr. Tavlarios waiving any non-competition provisions in any agreement between Gener8 and Mr. Tavalarios, as of the closing of the Merger.
Sean Bradley, Manager and Commercial Director of Gener8 Maritime Management LLC, is permitted to receive in connection with the Merger a payment of $275,000 in accordance with the terms of his employment agreement with Gener8. In addition, Gener8 has entered into an agreement with Mr. Bradley waiving any non-competition provisions in any agreement between Gener8 and Mr. Bradley, as of the closing of the Merger.
Indemnification
The Merger Agreement contains provisions relating to indemnification and directors and officers insurance for the directors and officers of Gener8 after the completion of the Merger. See “The Merger — Indemnification and Insurance.”
Euronav Board of Directors
Euronav has agreed to take all actions necessary so that Mr. Steven Smith (a current director Gener8) (or if Mr. Smith is unavailable, then such other person designated by the Gener8 Transaction Committee who is reasonably satisfactory to Euronav, which acceptance shall not be unreasonably withheld) will, upon recommendation by Euronav’s corporate governance and nomination committee be proposed for election to serve on the board of directors of Euronav at the next regularly scheduled annual meeting of Euronav shareholders.
Ownership of Gener8 Common Shares by Gener8’s Directors and Executive Officers
Certain of Gener8’s directors and executive officers are beneficial owners of Gener8 common shares and will receive consideration pursuant to the Merger Agreement, including Merger Consideration based on the Exchange Ratio. See “Beneficial Ownership of Gener8 Common Shares.”
Treatment of Gener8 Share Options and Restricted Stock Units held by Gener8’s Directors and Executive Officers
The Merger Agreement provides for the termination and cancellation of Gener8 restricted stock units and Gener8 share options, which were previously granted to certain Gener8 directors and executive officers, in exchange for the right to receive certain consideration, including the Merger Consideration based on the Exchange Ratio. See “The Merger Agreement — Effect on Gener8 Share Options” and “The Merger Agreement — Effect on Gener8 Restricted Stock Units.’’
Gener8 Pools and Management Agreements
Gener8’s fleet is contracted to operate in various tanker pools managed by entities related to the Navig8 Group, with which Mr. Busch is affiliated.
Avenue Capital Investments
Mr. Ilany is associated with and an employee of Avenue Capital Group, which had an investment in Euronav.
BlueMountain Capital Management
Ethan Auerbach was previously associated with and an employee of BlueMountain Capital Management, LLC, or BlueMountain, which (i) had an investment in Gener8’s senior unsecured notes due 2020 (ii) had, and may in the future have, discussions with Company A regarding potential vessel sales, (iii) had an investment interest in Company B and (iii) is an investor and has an interest in Company C. Additionally, a member of Company B’s board of directors is affiliated and/or associated with BlueMountain. The Gener8 board also considered that Mr. Auerbach no longer performed any services for
or had any control over BlueMountain, its funds or its investments, that BlueMountain’s investments in Gener8’s senior unsecured notes due 2020 constituted a de minimis percentage of BlueMountain’s total assets under management and that Mr. Auerbach’s interests in BlueMountain were limited to passive pecuniary equity and limited partnership interests. After considering these factors, the Gener8 board appointed Mr. Auerbach to the Gener8 Transaction Committee. The Gener8 Transaction Committee subsequently reviewed the disinterestedness of its members and concluded that none of these individuals had any material conflicts of interest.
Listing of Euronav’s ordinary shares and Delisting of Gener8’s common shares
It is a condition to the completion of the Merger that the Euronav ordinary shares issued pursuant to the Merger Agreement are approved for listing on the NYSE. In addition, Euronav intends to complete the listing of ordinary shares to be issued pursuant to the Merger Agreement on Euronext concurrently with the listing on the NYSE. In connection with the Merger, Gener8 common shares will cease to be listed on the NYSE.
Accounting Treatment
The combination of Euronav and Gener8 will be accounted for as a business combination using the acquisition method of accounting under the provisions of IFRS 3, “Business Combinations”, with Euronav determined as the accounting acquirer under this guidance. The factors that were considered in determining that Euronav should be treated as the accounting acquirer in the Merger were the relative voting rights in the Combined Company, the composition of the board of directors in the Combined Company, the relative sizes of Euronav and Gener8 and the composition of senior management of the Combined Company. The relative sizes of Euronav and Gener8 were also considered to be factors that supported that conclusion that Euronav is the accounting acquirer. Total assets of Euronav and Gener8 at December 31, 2017 were approximately $2.8 billion and $2.7 billion, respectively. It should also be noted that the carrying value of Euronav’s and Gener8’s equity at December 31, 2017 was $1.8 billion and $1.3 billion, respectively.
THE MERGER AGREEMENT
The following is a summary of the material terms of the Merger Agreement, including the effects of those provisions. While Euronav and Gener8 believe that this description covers the material terms of the Merger Agreement, it may not contain all of the information that is important to you and is qualified in its entirety by reference to the Merger Agreement, which is included as
Annex A
to, and is incorporated by reference in, this proxy statement/prospectus. We urge you to read the Merger Agreement carefully and in its entirety. In the event of any discrepancy between the terms of the Merger Agreement and the following summary, the Merger Agreement shall prevail.
Explanatory Note Regarding the Merger Agreement
The Merger Agreement has been included in this proxy statement/prospectus to provide you with information regarding its terms. It is not intended to provide any other factual information about Euronav, Gener8 or Merger Sub and their respective affiliates. The Merger Agreement contains representations and warranties by Euronav and Merger Sub, on the one hand, and by Gener8, on the other hand, made solely for the benefit of the other. The assertions embodied in those representations and warranties are qualified by information in confidential disclosure letters delivered by each party in connection with the signing of the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were made as of a specified date, may be subject to a contractual standard of materiality different from what might be viewed as material to shareholders, or may have been used for the purpose of allocating risk between Euronav and Merger Sub, on the one hand, and Gener8, on the other hand. Accordingly, the representations and warranties in the Merger Agreement should not be relied on by any persons as characterizations of the actual state of facts about Euronav, Merger Sub or Gener8 at the time they were made or otherwise. In addition, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in Euronav’s or Gener8’s public disclosures. The Merger Agreement should not be read alone, but should instead be read in conjunction with the other information regarding the Merger Agreement, the Merger, Euronav, Gener8, their respective affiliates and their respective businesses incorporated by reference herein, as well as in the Form 20-F, Forms 6-K and other filings that Euronav makes with the SEC and the Form 10-K, Forms 8-K and other filings that Gener8 makes with the SEC.
The Merger
Upon the terms and subject to the conditions of the Merger Agreement Merger Sub will be merged with and into Gener8. Following the Merger, the separate existence of Merger Sub will cease and Gener8 will continue its corporate existence under the BCA as the as the Surviving Corporation and will be a direct wholly-owned subsidiary of Euronav.
At the Effective Time: (i) each Gener8 common share (excluding the Specified Gener8 Shares) will be converted into one share of the Surviving Corporation’s common stock for each share of Gener8 common stock and such Surviving Corporation common stock will be delivered to the Exchange Agent, acting on behalf of and for the account and benefit of the former holders of Gener8 shares, (ii) the Surviving Corporation Shares so issued will be exchanged by the Exchange Agent for the aggregate Merger Consideration and each holder of Gener8’s common stock will have the right to receive the Exchange Ratio, (iii) any Specified Gener8 Shares will be canceled and no Merger Consideration or other consideration will be delivered for those canceled shares; and (iv) each share of common stock of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the Surviving Corporation.
Effect on Gener8 Share Options
At the Effective Time, by virtue of the Merger and without any action on the part of any holder of Gener8 share options, each then outstanding Gener8 share option (whether or not then vested and exercisable) will terminate and be canceled in exchange for the right to receive the Option Consideration, less any applicable withholding taxes. If the exercise price applicable to the Gener8 common shares subject to such Gener8 share option is equal to or greater than the Transaction Value Per Share, such Gener8 share option will terminate and be canceled in exchange for no consideration. As of the closing of the Merger,
each holder of a Gener8 share option will cease to have any rights with respect thereto, except the right to receive the Option Consideration related to such Gener8 share option pursuant to the Merger Agreement. The following table shows for each executive officer (i) the number of Gener8 shares subject to options held by such executive officer as of the date of this proxy statement/prospectus and (ii) the estimated value of such Gener8 options.
|
|
|
|
|
Name of Executive Officer
|
|
|
Number of
Gener8 shares
subject to options
|
|
|
Estimated value
(1)
|
|
|
|
|
|
|
Peter C. Georgiopoulos
|
|
|
|
|
500,000
|
|
|
|
|
$
|
—
|
|
|
|
|
|
|
|
Leonard J. Vrondissis
|
|
|
|
|
25,000
|
|
|
|
|
$
|
—
|
|
|
(1)
Estimated value to be calculated by reference to the Option Consideration.
“Option Consideration” means, with respect to each Gener8 share option issued and outstanding immediately prior to the Closing Date, an amount of cash equal to the product of (i) the number of Gener8 common shares subject to such Gener8 share option immediately prior to the Closing Date, and (ii) the excess, if any, of the Transaction Value Per Share over the exercise price applicable to such Gener8 common shares subject to such Gener8 share option.
“Transaction Value Per Share” means the product of (i) the closing price per Euronav share on the NYSE on the last trading day prior to the Effective Time and (ii) an amount equal to (a) the aggregate Merger Consideration of 60,815,764 Euronav shares divided by (b) the aggregate number of Gener8 common shares, without duplication, issued and outstanding immediately prior to the Effective Time or subject to Gener8 restricted stock units issued and outstanding immediately prior to the Effective Time (excluding the Specified Gener8 Shares).
Effect on Gener8 Restricted Stock Units
Certain executive officers of Gener8 received grants of restricted stock units which will be subject to accelerated vesting upon the completion of the Merger. Certain Gener8 directors have received grants of restricted stock units which will vest at the earliest of (i) the time of the next annual meeting of Gener8’s shareholders, (ii) the first anniversary of the grant of the restricted stock units or (iii) the completion of the Merger. At the Effective Time, by virtue of the Merger and without any action on the part of any holder of Gener8 restricted stock units, each then outstanding Gener8 restricted stock unit will become fully vested and will terminate and be canceled in exchange for the right to receive the Merger Consideration based on the Exchange Ratio, less any applicable withholding taxes. At the Effective Time, each holder of a restricted stock unit will cease to have any rights with respect thereto, except the right to receive the Merger Consideration based on the Exchange Ratio. The following table shows for each executive officer and director (i) the number of Gener8 shares subject to restricted stock units held by such executive officer or director as of the date of this proxy statement/prospectus and (ii) the estimated value of such Gener8 restricted stock units.
|
|
|
|
|
Name of Executive Officer or Director
|
|
|
Number of Gener8
shares subject to
restricted stock units
|
|
|
Estimated value
(1)
|
|
|
|
|
|
|
Peter C. Georgiopoulos (Executive Officer and Director)
|
|
|
|
|
216,276
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
Leonard J. Vrondissis (Executive Officer)
|
|
|
|
|
41,591
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
John P. Tavlarios (Executive Officer)
|
|
|
|
|
26,618
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
Milton H. Gonzales Jr. (Executive Officer)
|
|
|
|
|
16,636
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
Sean Bradley (Executive Officer)
|
|
|
|
|
16,636
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
Nicolas Busch (Director)
(2)
|
|
|
|
|
11,214
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
Adam Pierce (Director)
(2)
|
|
|
|
|
11,214
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
Ethan Auerbach (Director)
(2)
|
|
|
|
|
11,214
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
Roger Schmitz (Director)
(2)
|
|
|
|
|
11,214
|
|
|
|
|
$
|
|
|
|
(1)
Estimated value to be calculated by multiplying the Exchange Ratio by closing price per Euronav share on the NYSE on the last trading day prior to the Effective Time.
(2)
RSUs will vest on the earlier to occur of (i) the closing of the Merger, (ii) the next regularly scheduled annual meeting of Gener8 shareholders, and (iii) thirty days after May 16, 2018.
Withholding
The Exchange Agent, the Surviving Corporation and Euronav shall be entitled to deduct and withhold from any consideration otherwise payable under the Merger Agreement to any person such amounts as it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”) or any provision of applicable state, local or foreign tax law and shall timely pay such withholding amount to the appropriate governmental authority. If the Exchange Agent, the Surviving Corporation or Euronav, as the case may be, so withholds amounts, to the extent timely remitted to the appropriate governmental authority, such amounts shall be treated for all purposes of the Merger Agreement as having been paid to such person in respect of which the Exchange Agent, the Surviving Corporation or Euronav, as the case may be, made such deduction and withholding.
Effective Time of the Merger; Closing
The Closing shall take place: (i) in New York City at the offices of Seward & Kissel LLP, One Battery Park Plaza, New York, NY 10004 and at the Belgian notary public’s office of Mr. Patrick Van Ooteghem, Cauwerburg 5, 9140 Temse, Belgium, as soon as possible, but in any event no later than the date that is five (5) business days after the date the conditions to the Merger Agreement (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permissible, waiver of those conditions at the Closing) have been satisfied or, to the extent permissible, waived by the party or parties entitled to the benefit of such conditions; or (ii) at such other place, at such other time or on such other date as Euronav and Gener8 may mutually agree in writing. The date on which the Closing actually takes place is referred to as the “Closing Date.” At the Closing, and immediately following the filing of the Articles of Merger (as set forth below), Gener8 and Euronav will execute the notarial deed to be enacted by a Belgian notary public with respect to the capital increase within the framework of the authorized capital resulting from the Contribution in Kind (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A) by the Gener8 shareholders, represented by the Exchange Agent of the shares of the Surviving Corporation, before such Belgian notary public.
In order to accomplish the exchange, Euronav and Gener8 will enter into an agreement with the Exchange Agent which shall authorize the Exchange Agent to act in the name of and on behalf of and for the account and benefit of Gener8’s former shareholders, with the right of sub-delegation, to contribute the Surviving Corporation Shares to Euronav and accept in the name and on behalf of and for the account and benefit of Gener8’s former shareholders for such contribution, the aggregate Merger Consideration. Immediately following the Effective Time of the Merger, and pursuant to the provisions of the Belgian Companies Code, the Exchange Agent (acting as agent and solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders) shall contribute to Euronav, all of the issued and outstanding shares of the Surviving Corporation that were received by the Exchange Agent pursuant to Merger, as a Contribution in Kind and, in consideration of this Contribution in Kind, Euronav will issue and deliver to the Exchange Agent (solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders) the Merger Consideration for delivery to the Contributing Gener8 Shareholders.
At the Closing, Gener8 and Merger Sub shall cause to be filed Articles of Merger with the Registrar or Deputy Registrar of Corporations of the Republic of the Marshall Islands and make all other filings or recordings required by the BCA in connection with the Merger. The Merger shall become effective at such time as the Articles of Merger are duly filed with the Registrar or Deputy Registrar of Corporations of the Republic of the Marshall Islands (or at such later time as may be mutually agreed upon by Euronav, Merger Sub and Gener8 and specified in the Articles of Merger in accordance with the BCA) (the time the Merger becomes effective, being the “Effective Time,” as used throughout this proxy statement/prospectus).
At the Effective Time, by virtue of the Merger, the articles of incorporation of Gener8, as in effect immediately prior to the Effective Time and as amended as set forth in, and substantially in the form of, Exhibit A of the Merger Agreement, which is included in this proxy statement/prospectus as Annex A, will become the articles of incorporation of the Surviving Corporation upon their filing with the Registrar or Deputy Registrar of Corporations of the Republic of the Marshall Islands. The bylaws of Merger Sub, as in effect prior to the Effective time, will be the bylaws of the Surviving Corporation, which will be renamed Euronav MI II. Article K of the Surviving Corporation’s articles of incorporation specifies the role of the Exchange Agent as acting as agent for the Merger and, among other things, acting as agent solely in the name and on behalf of and for the account and benefit of the Contributing Gener8 Shareholders, with the right of sub-delegation, pursuant to the provisions of the Belgian Companies Code for the purpose of facilitating the execution and implementation of the Contribution in Kind, including but not limited to representing the Contributing Gener8 Shareholders at the Closing (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A), contributing the Surviving Corporation (as such term is defined in the Merger Agreement which is attached to this proxy statement/prospectus as Annex A) to Euronav by way of a Contribution In Kind and delivering the Merger Consideration to such Contributing Gener8 Shareholders.
Representations and Warranties
Gener8 made representations and warranties generally qualified by, among other things, filings by Gener8 with the SEC since January 1, 2017 that are publicly available during the period beginning on the date the Merger Agreement as signed and a confidential disclosure letter containing non-public information. Some of these representations and warranties were made as of specified dates. The representations and warranties made by Gener8, relate to, among other things:
•
organization, qualification and good standing;
•
power and authorization to enter into the Merger Agreement and the transactions contemplated thereby;
•
the enforceability of the Merger Agreement;
•
consents required by governmental authorities;
•
the absence of breaches, violations or conflicts with, or any consents required by, the governing documents of Gener8, applicable laws or orders, or certain material contracts of Gener8 as a result of entering into the Merger Agreement and consummating the transactions contemplated thereby and the performance of their obligations thereunder;
•
the consummation of the Merger Agreement and the transactions contemplated thereby will not result in the loss of, or creation or imposition of any lien other than certain permitted liens, on any asset of Gener8;
•
capitalization, including preferred stock, stock options and restricted stock units;
•
subsidiaries of Gener8;
•
SEC filings of Gener8;
•
outstanding indebtedness of Gener8 for borrowed money and cash and cash equivalents;
•
delivery of, and compliance with GAAP in the creation of, certain of Gener8’s financial statements;
•
certain disclosure documents of Gener8 required to be provided in connection with the Registration Statement (as defined below), the Proxy Statement (as defined below) or other disclosure requirements;
•
compliance with tax requirements;
•
compliance with laws, orders and permits;
•
absence of certain changes of Gener8 since the date of Gener8’s last audited balance sheet;
•
the absence of undisclosed liabilities of Gener8;
•
ownership, classification and proper title of vessels, tangible personal assets and other property;
•
leases for real property by Gener8 and its subsidiaries;
•
compliance with all maritime guidelines and laws;
•
material contracts, agreements and instruments, and the performance of obligations and absence of any material default thereunder;
•
the absence of pending or threatened litigation;
•
employee benefits;
•
compliance with employment and labor laws;
•
environmental matters;
•
insurance matters;
•
receipt of an opinion from the financial advisor UBS;
•
absence of investment banker, broker or other intermediary fees;
•
takeover statutes;
•
interested party transactions; and
•
certain business practices and matters relating to anti-corruption laws.
Many of Gener8’s representations and warranties are qualified by the absence of a “material adverse effect” which means, for purposes of the Merger Agreement, when used with respect to Gener8, any change effect, event, occurrence, or development that, individually or in the aggregate with all such other changes, events, occurrences or developments, (i) has or would reasonably be expected to have a material adverse effect on the financial condition, business, assets (including its owned and leased vessels) and liabilities (taken as a whole) or results of operations of Gener8 and its subsidiaries, taken as a whole; provided, that none of the changes, effects, events, occurrences or developments to the extent attributable to the following shall be taken into account in determining whether there has been a “material adverse effect”: (A) changes or proposed changes in applicable law, GAAP or IFRS, or authoritative interpretations thereof, in each case, after the date of the Merger Agreement, (B) changes in the global financial or securities markets or general global economic or political conditions, (C) changes or conditions generally affecting the industry in which Gener8 and its subsidiaries operate, (D) acts of war, sabotage or terrorism, or any escalation or worsening of the foregoing, or natural disasters, (E) the execution or performance of the Merger Agreement or the announcement or consummation of the transactions contemplated thereby (with certain exceptions) (F) any failure by Gener8 and its subsidiaries to meet any internal or published projections, forecasts or predictions in respect of financial or operating performance for any future period (provided that the underlying cause of any such failure may be taken into account in determining whether there has been a “material adverse effect”), (G) the taking of any action required or permitted by, or the failure to take any action prohibited by the Merger Agreement (with certain exceptions), or (H) the Specified Approvals having not been obtained at the Closing; provided, that the effect of any matter referred to in clauses (A), (B), (C), or (D) shall only be excluded to the extent that such matter does not disproportionately affect Gener8 and its subsidiaries, taken as a whole, relative to other entities operating in the oil tanker shipping industry, or (ii) has or would reasonably be expected to materially impair the ability of Gener8 to perform its obligations under the Merger Agreement or materially delay the consummation of the transactions contemplated thereby.
Euronav and Merger Sub made representations and warranties generally qualified by, among other things filings by Euronav with the SEC since January 1, 2017 that are publicly available during the period beginning on the date the Merger Agreement was signed and a confidential disclosure letter containing non-public information. Some of these representations and warranties were made as of specified dates. The representations and warranties made by Euronav and Merger Sub relate to, among other things:
•
organization, qualification and good standing;
•
power and authorization to enter into the Merger Agreement and the transactions contemplated thereby;
•
the enforceability of the Merger Agreement;
•
consents required by governmental authorities;
•
the absence of breaches, violations or conflicts with, or any consents required by, the governing documents of Euronav and Merger Sub, applicable laws or orders, or certain material contracts of Euronav and Merger Sub as a result of entering into the Merger Agreement and consummating the transactions contemplated thereby and the performance of their obligations thereunder;
•
the consummation of the Merger Agreement and the transactions contemplated thereby will not result in the loss of, or creation or imposition of any lien other than certain permitted liens, on any asset of Euronav and Merger Sub;
•
capitalization, including preferred stock, stock options and restricted stock units;
•
subsidiaries of Euronav;
•
SEC filings of Euronav;
•
delivery of, and compliance with IFRS in the creation of, certain of Euronav’s financial statements;
•
certain disclosure documents of Euronav and its subsidiaries required to be provided in connection with the Registration Statement, the Proxy Statement or other disclosure requirements;
•
compliance with tax requirements;
•
compliance with laws, orders and permits;
•
absence of certain changes of Euronav and its subsidiaries since the date of Euronav’s last audited statement of financial position;
•
the absence of undisclosed liabilities of Euronav and any of its subsidiaries;
•
ownership, classification and proper title of vessels;
•
leases for real property by Euronav and its subsidiaries;
•
compliance with all maritime guidelines and laws;
•
material contracts, agreements and instruments, and the performance of obligations and absence of any material default thereunder;
•
the absence of pending or threatened litigation;
•
employee benefits;
•
compliance with employment and labor laws;
•
environmental matters;
•
insurance matters;
•
the absence of investment banker, broker or other intermediary fees;
•
exemption from takeover statutes;
•
operations of Merger Sub;
•
interested party transactions; and
•
certain business practices and matters relating to anti-corruption laws.
Many of Euronav’s representations and warranties are qualified by the absence of a “material adverse effect” which means, for purposes of the Merger Agreement, when used with respect to Euronav, any change, effect, event, occurrence, or development that, individually or in the aggregate with all such other changes, events, occurrences or developments, (i) has or would reasonably be expected to have a material adverse effect on the financial condition, business assets (including vessels owned or leased by Euronav) and liabilities (taken as a whole) or results of operations of Euronav and its subsidiaries taken as a whole; provided, that none of the changes, effects, events, occurrences or developments to the extent attributable to the following shall be taken into account in determining whether there has been a “material adverse effect”: (A) changes or proposed changes in applicable law, GAAP or international financial reporting standards adopted by the International Accounting Standards Board from time to time, or authoritative interpretation thereof, in each case, after the date hereof, (B) changes in the global financial or securities markets or general global economic or political conditions, (C) changes or conditions generally affecting the industry in which Euronav and its subsidiaries operate, (D) acts of war, sabotage, terrorism, or any escalation or worsening of the foregoing, or natural disasters, (E) the execution or performance of the Merger Agreement or the announcement or consummation of the transactions contemplated thereby (with certain exceptions), (F) any failure by Euronav and its subsidiaries to meet any internal or published projections, forecasts or predictions in respect of financial or operating performance for any future period (provided that the underlying cause of any such failure may be taken into account in determining whether there has been a “material adverse effect”), or (G) the taking of any action required or permitted by, or the failure to take any specific action prohibited by the Merger Agreement (with certain exceptions); provided, that the effect of any matter referred to in clauses (A), (B), (C) or (D) shall only be excluded to the extent that such matter does not disproportionately affect Euronav and its subsidiaries, taken as a whole, relative to other entities operating in the oil tanker shipping industry, or (ii) has or would reasonably be expected to materially impair the ability of Euronav to perform its obligations under the Merger Agreement or materially delay the ability of Euronav to consummate the Transactions.
Conduct of Gener8 Pending the Merger
Under the Merger Agreement, Gener8 has agreed that, except, among other things, as expressly required by the Merger Agreement, as required by applicable law or order or with Euronav’s prior written consent, during the period from the date of the Merger Agreement until the Closing, Gener8 shall, and shall cause each of its subsidiaries to, carry on its business in the ordinary course and in a manner consistent with past practice in all material respects and use reasonable best efforts to:
•
preserve intact its present business organization, goodwill and assets;
•
maintain in effect all governmental authorizations required to carry on its business as being conducted as of the date of the Merger Agreement;
•
keep available the services of its present officers and other employees (provided that it shall not be obligated to increase the compensation of, or make any other payments or grant any concessions to, such officers and employees); and
•
preserve its present relationships with material customers, suppliers and other persons or entities with which it has a business relationship (provided that it shall not be obligated to make any payments or grant any concessions to such persons other than payments in the ordinary course consistent with past practice).
Until the Closing, Gener8 has also agreed to comply with a series of customary negative covenants (subject to certain exceptions), agreeing not to take the following actions unless otherwise set forth in Gener8’s disclosure letter, expressly required by the Merger Agreement, as required by applicable law or with Euronav’s prior written consent:
•
amend its articles of incorporation, bylaws or other comparable charter or organizational documents;
•
(A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any Gener8 common shares, other than from a wholly-owned subsidiary to its parent, (B) split, combine or reclassify any Gener8 common shares,
(C) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, any Gener8 common shares, (D) purchase, redeem or otherwise acquire any Gener8 common shares, or (E) amend, modify or change any term of, or take any action that would result in a default under, any indebtedness of Gener8 or any of its subsidiaries;
•
(A) issue, sell, pledge or transfer any Gener8 common shares, or (B) amend any term of any security issued by Gener8 or any of its subsidiaries;
•
accelerate or delay (A) the payment of any accounts payable or other liability or (B) the collection of notes or accounts receivable, other than in the ordinary course of business consistent with past practice;
•
incur more than $200,000 of capital expenditures in the aggregate in excess of amounts budgeted for by Gener8 or its subsidiaries, other than capital expenditures relating to the maintenance of the vessels owned or leased by Gener8 in the ordinary course of business consistent with past practice;
•
acquire or commit to acquire (A) all or any substantial portion of a business or person or division thereof (whether by purchase of stock, purchase of assets, merger, consolidation, or otherwise), or (B) any assets or properties involving a price in excess of $200,000 in the aggregate, except (1) acquisitions by Gener8 or any of its wholly-owned subsidiaries of or from an existing wholly-owned subsidiary of Gener8, (2) acquisitions of assets, materials and supplies in the ordinary course of business consistent with past practice, (3) the purchase of bunkers in the ordinary course of business, or (4) pursuant to contracts for newbuildings in effect on the date of this Agreement;
•
enter into any contract that, if in existence on the date hereof, would be a material contract or qualify as an interested party transaction, or amend, modify, extend or terminate any material contract or interested party transaction (other than the expiration of any such contract in accordance with its terms, and the termination of any such contract in connection with any breach by the applicable counterparty);
•
sell, lease, license, transfer, or subject to any lien, any of its assets or properties except (A) sales of used equipment in the ordinary course of business consistent with past practice, and (B) certain permitted liens;
•
adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or recapitalization of Gener8 or any of its subsidiaries, or enter into any agreement with respect to the voting of their capital stock;
•
except as required pursuant to the terms of any company benefit plan existing as of the date hereof or to the extent required under applicable law, (A) grant to any director, officer, employee or consultant of Gener8 or any of its subsidiaries any increase or enhancement in compensation, bonus or other benefits, (B) grant to any director, officer or employee of Gener8 or any of its subsidiaries any right to receive severance, change in control, retention or termination pay or benefits or any increase in severance, change of control or termination pay or benefits or (C) adopt, enter into or amend or commit to adopt, enter into or amend any company benefit plan except for amendments required under applicable law;
•
except as required by GAAP (or any interpretation thereof) or a governmental authority, make any change in any method of accounting principles, method or practices;
•
(A) incur or issue any indebtedness (other than accrual of interests, drawdowns, premiums, penalties, fees, expenses and breakage costs under any material contracts existing as of the date hereof), (B) make any loans, advances or capital contributions to, or investments in, any other person (including in connection with any pool in which a vessel owned or leased by Gener8 is entered), other than to Gener8 or any of its subsidiaries or (C) repay or satisfy any Indebtedness (other than scheduled payments of indebtedness when due);
•
change any material method of tax accounting, make or change any material tax election, file any material amended return (except as required by applicable law), settle or compromise any material tax liability, enter into any closing agreement with respect to any material amount of taxes, surrender any right to claim a material tax refund or offset or otherwise reduce a material tax liability or take into account on any tax return required to be filed prior to the Closing any adjustment or benefit arising from the transactions contemplated by the Merger Agreement;
•
institute or settle any action, suit, litigation, investigation or proceeding (other than actions, suits, litigations, investigations or proceedings where Euronav is adverse to Gener8) pending or threatened before any arbitrator, court or other governmental authority, in each case in excess of $100,000 (exclusive of any amounts covered by insurance) or that imposes injunctive or other non-monetary relief on Gener8 or its subsidiaries;
•
disclose, or consent to the disclosure of, any trade secrets or other proprietary information, other than in the ordinary course of business consistent with past practice;
•
waive, release or assign any claims or rights having a value in excess of $100,000;
•
fail to use commercially reasonable efforts to cause the current material insurance (or re-insurance) policies maintained by Gener8 or any of its subsidiaries, including directors’ and officers’ insurance, not to be canceled or terminated or any of the coverage thereunder to lapse, unless, simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance or re-insurance companies of nationally recognized standing having comparable deductions and providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums or less are in full force and effect;
•
directly or indirectly (A) purchase or construct any vessel or enter into any contract for the purchase or construction of any vessel, (B) sell or otherwise dispose of any vessel owned or leased by Gener8 or enter into any contract for the sale or disposal of any vessel owned or leased by Gener8, (C) to the extent that Gener8 shall have the right to consent to such action under the terms of the contracts between Gener8 and the service provider or manager of such vessel, enter into any contract for the bareboat or spot or time charter-out of any vessel owned or leased by Gener8 in excess of sixty (60) calendar days, (D) change any manager of any vessel owned or leased by Gener8, (E) defer scheduled maintenance of any vessel owned or leased by Gener8, or (F) depart from any normal drydock and maintenance practices or discontinue replacement of spares in operating Gener8 Vessels; or
•
authorize or enter into a contract to take any of the actions described above.
Conduct of Euronav Pending the Merger
Under the Merger Agreement, Euronav has agreed that, except, among other things, as expressly permitted by the Merger Agreement, as required by applicable law or order or with Gener8’s prior written consent, during the period from the date of the Merger Agreement until the Closing, Euronav shall, and shall cause each of its subsidiaries to, carry on its business in the ordinary course and in a manner consistent with past practice in all material respects and use reasonable best efforts to:
•
preserve intact its present business organization, goodwill and assets;
•
maintain in effect all governmental authorizations required to carry on its business as being conducted as of the date of the Merger Agreement;
•
keep available the services of its present officers and other employees (provided that it shall not be obligated to increase the compensation of, or make any other payments or grant any concessions to, such officers and employees); and
•
preserve its present relationships with material customers, suppliers and other persons or entities with which it has a business relationship (provided, that it shall not be obligated to make any payments or grant any concessions to such persons other than payments in the ordinary course consistent with past practice).
Until the Closing, Euronav has also agreed to comply with a series of negative covenants (subject to certain exceptions), agreeing not to take the following actions unless otherwise set forth in Euronav’s disclosure letter, expressly required by the Merger Agreement, as required by applicable law or with Gener8’s prior written consent:
•
amend its articles of incorporation, bylaws or other comparable charter or organizational documents;
•
(A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any Euronav ordinary shares, other than (1) from a wholly-owned subsidiary to its parent, or (2) an annual cash dividend consistent with past practice (including with respect to declaration, record and payment dates) by Euronav in aggregate amount (interim and final dividend) not to exceed $0.12 per Euronav ordinary share, (B) split, combine or reclassify any Euronav ordinary shares, (C) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, any Euronav ordinary shares, (D) purchase, redeem or otherwise acquire any Euronav ordinary shares, or (E) amend, modify or change any term of, or take any action that would result in a default under, any indebtedness of Euronav or any of its subsidiaries;
•
(A) issue, sell, pledge or transfer any Euronav ordinary shares, or (B) amend any term of any security issued by Euronav or any of its subsidiaries;
•
adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or recapitalization of Euronav, or enter into any agreement with respect to the voting of their capital stock;
•
take any action that might reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated by the Merger Agreement; or
•
authorize or enter into a contract to take any of the actions described above.
No Solicitation by Gener8 of Alternative Proposals; Withdrawal of Board Recommendation
Subject to the exceptions summarized below, Gener8 has agreed, subject to certain exceptions, not to (and to cause its subsidiaries and use reasonable best efforts to cause its and their representatives not to), among other things, directly or indirectly:
•
solicit, initiate or knowingly take any action to facilitate or encourage or assist any inquiries or the making of any Acquisition Proposal or offer that constitutes or would reasonably be expected to lead to the submission of any Acquisition Proposal;
•
enter into or participate in any discussions or negotiations with, or furnish any information relating to Gener8 or its subsidiaries or afford access to the business, properties, assets, personnel books or records of Gener8 to any third-party with respect to inquiries regarding, or the making of, an Acquisition Proposal;
•
qualify, withdraw, or modify or amend in a manner adverse to Euronav, the recommendation of either the Gener8 board of directors or the Gener8 Transaction Committee, or recommend any other Acquisition Proposal or publicly propose to do any of the foregoing;
•
approve, endorse, recommend, enter into (or agree or publicly propose to any of the foregoing) any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar agreement relating to an Acquisition Proposal, with the exception of a confidentiality agreement with a permitted third-party; or
•
grant any waiver, amendment or release under any standstill or confidentiality agreement or takeover statute or provision contained in Gener8’s charter documents other than a waiver of the obligations of third parties existing as of the date of the Merger Agreement not to seek from Gener8 any waiver of such third parties’ standstill obligations and granting a limited waiver if requested solely to enable such third parties to make an Acquisition Proposal to the Gener8 board of directors.
Under the terms of the Merger Agreement, Gener8 has agreed to (and to cause its subsidiaries to and instruct and use reasonable best efforts to cause its and their representatives to) immediately cease any existing solicitations, discussions or negotiations, if any, with any third-party that may have been ongoing with respect to an Acquisition Proposal conducted prior to December 20, 2017. Gener8 agreed to also request such third parties to promptly return or destroy all confidential information concerning Gener8 and its subsidiaries prior to December 20, 2017.
However, the Gener8 board of directors and the Gener8 Transaction Committee may, subject to certain conditions, qualify, withdraw, or modify or amend in a manner adverse to Euronav, the recommendation of either the Gener8 board of directors or the Gener8 Transaction Committee, or recommend any other Acquisition Proposal or publicly propose to do any of the foregoing if, in connection with the receipt of an Acquisition Proposal, the Gener8 board of directors or the Gener8 Transaction Committee determine in good faith that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) a failure of the Gener8 board of directors or the Gener8 Transaction Committee to take such action is reasonably likely to be inconsistent with its fiduciary duties to Gener8’s shareholders under applicable law. In addition, the Gener8 board of directors and the Gener8 Transaction Committee may, subject to certain exceptions and conditions, make an Adverse Recommendation Change if, in connection with a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal) affecting the business, assets or operations of Gener8 and occurring after December 20, 2017 that was not known or reasonably foreseeable by the Gener8 board of directors or the Gener8 Transaction Committee as of or prior to December 20, 2017, it determines in good faith that a failure of the Gener8 board of directors or the Gener8 Transaction Committee to take such action is reasonably likely to be inconsistent with its fiduciary duties to Gener8’s shareholders under applicable law.
Proxy Statement; Registration Statement and Company Shareholders’ Meeting
Euronav and Gener8 agreed to use their respective reasonable best efforts to cause the filing of a registration statement on Form F-4 with the SEC to register, under the Securities Act, the shares of Euronav’s ordinary shares issuable as a result of the Merger (which we refer to as the “Registration Statement”), which includes a prospectus with respect to the Euronav ordinary shares issuable in the Merger and a proxy statement to be sent to the shareholders of Gener8 (and, as applicable, to holders of Gener8 restricted stock units) relating to the meeting of Gener8’s shareholders (together with any amendments or supplements thereto, the “Proxy Statement”), and to cause such Registration Statement to be declared effective under the U.S. Securities Act as soon as reasonably practicable after such filing. Euronav and Gener8 have agreed to cooperate to supplement and update the Registration Statement and Proxy Statement as necessary in the event that new information is required to be added.
Gener8 will, as soon as reasonably practicable, duly call, give notice of, convene and hold a meeting of Gener8’s shareholders for the sole purpose of seeking the affirmative vote of the holders of at least a majority of the outstanding Gener8 common shares for the Merger Agreement, and has agreed not to submit any other proposals in connection with such meeting of Gener8’s shareholders without the prior written consent of Euronav (other than proposals relating to executive compensation a may be required by Rule 14a-21(c) of the Exchange Act of 1934, as amended, or the Exchange Act; provided that Gener8 (i) will cause the Proxy Statement to be mailed to Gener8’s shareholders (and, to the extent applicable, the holders of any outstanding Gener8 stock options or restricted stock units) as promptly as reasonably practicable after Registration Statement is declared effective under the U.S. Securities Act, and (ii) shall use its reasonable best efforts to hold the meeting of Gener8’s shareholders on the twentieth (20) business day following the first mailing of the Proxy Statement to Gener8’s shareholders. Gener8’s obligations to hold the meeting of Gener8’s shareholders will not be affected by the commencement, public proposal, public disclosure or communication to Gener8 of any Acquisition Proposal or the making of any Adverse Recommendation Change. Gener8 will not adjourn or postpone the meeting of Gener8’s shareholders without the prior written consent of Euronav (subject to certain exceptions).
Litigation
Gener8 has agreed to promptly advise Euronav of any action commenced or, to the knowledge of Gener8, threatened against or involving Gener8 or any of its subsidiaries, any of their respective officers or directors, the Gener8 Transaction Committee, or any Gener8 vessel, relating to the Merger Agreement or
the transactions contemplated thereby and to keep Euronav informed and consult with Euronav regarding the status of such action on an ongoing basis. Gener8 has agreed to, and to cause its subsidiaries to, cooperate with and give Euronav the opportunity to consult with respect to the defense or settlement of any such action, and not agree to any settlement without the prior written consent of Euronav, such consent not to be unreasonably withheld, conditioned or delayed.
Euronav has agreed to promptly advise Gener8 of any action commenced or, to the knowledge of Euronav, threatened against or involving Euronav or Merger Sub, any of its subsidiaries, any of their respective officers or directors, or any Euronav vessels, relating to the Merger Agreement or the transactions and to keep Gener8 informed and consult with Gener8 regarding the status of the action on an ongoing basis. Euronav has agreed to, and to cause its subsidiaries to, cooperate with and give Gener8 the opportunity to consult with respect to the defense or settlement of any such action and not agree to any settlement without the prior written consent of Gener8, such consent not to be unreasonably withheld, conditioned or delayed.
Company Management
The directors and officers of Merger Sub as of the date of the Merger Agreement will be the initial directors and officers, respectively, of the Surviving Corporation and shall hold office in accordance with the articles of incorporation and bylaws of the Surviving Corporation until their successors are duly elected or appointed and qualified or until their earlier death, resignation or removal.
Appointment to Board
Mr. Steven Smith (a current Gener8 director and member of the Gener8 Transaction Committee) has been designated to serve on the board of directors of the Combined Company as an additional independent director and Euronav has, pursuant to the Merger Agreement, agreed to take all actions necessary so that Mr. Smith (or if Mr. Smith is unavailable, then such other person designated by the Gener8 Transaction Committee who is reasonably satisfactory to Euronav, which acceptance shall not be unreasonably withheld) will, upon recommendation by the Corporate Governance and Nomination Committee of Euronav, be proposed by the board of directors for election to serve on the board of directors of Euronav at the next regularly scheduled annual general meeting of Euronav shareholders.
Director and Officer Liability
In addition to the rights of the Indemnified Persons (defined below) set out in Gener8’s (and its subsidiaries’) charter documents or under applicable law, for six years after the Effective Time, Euronav and the Surviving Corporation will indemnify and hold harmless the present and former officers and directors of Gener8 and its subsidiaries (each, together with such person’s heirs, executors or administrators, an “Indemnified Person”) against all losses arising out of or pertaining to the fact that the Indemnified Person is or was an officer or director of Gener8 or one of its subsidiaries, to the fullest extent permitted by applicable law or provided under Gener8’s or its subsidiaries’ (as applicable) charter documents in effect on the date of the Merger Agreement; provided that such indemnification will be subject to any limitation imposed from time to time under applicable law or provided under the applicable charter documents in effect on the date of the Merger Agreement. Euronav and the Surviving Corporation have agreed to reasonably cooperate with the Indemnified Person in the defense of any such action. Euronav will also cause to be maintained in effect any exculpation, indemnification and advancement of expenses provisions in Gener8’s charter documents in effect as of immediately prior to the Closing or in any other agreement to which Gener8 or any of its subsidiaries is a party, and shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any individual who immediately before the Closing was an Indemnified Person.
Euronav will cause the Surviving Corporation to either (i) continue to maintain in effect for a period of no less than six years after the Effective Time, Gener8’s directors’ and officers’ insurance policies (which we refer to as the “D&O Insurance”) in place as of the date of the Merger Agreement or (ii) purchase comparable D&O Insurance for such six-year period, with terms and conditions at least as favorable (in the aggregate) to the insured individuals as Gener8’s existing D&O Insurance; provided, that Surviving Corporation is not obligated to expend for such policies an aggregate premium amount in excess of 250%
of the amount per annum Gener8 paid in its last full fiscal year. Notwithstanding the previous sentence, if the aggregate premiums exceed such amount, the Surviving Corporation is obligated to obtain a policy with the greatest coverage available for a cost not exceeding 250% of the amount per annum Gener8 paid in its last full fiscal year.
At Gener8’s option and in lieu of the obligations of Euronav and the Surviving Corporation to purchase D&O Insurance, Gener8 may purchase, prior to the Effective Time, a prepaid “tail policy” for a period of no more than six years after the Closing with coverage for the persons who are covered by Gener8’s existing D&O Insurance, with terms, conditions, retentions and levels of coverage at least as favorable to the insured individuals as Gener8’s existing D&O Insurance with respect to matters existing or occurring at or prior to the Effective Time; provided, that the aggregate premium for such policies shall not exceed 250% of the amount per annum Gener8 paid in its last full fiscal year. In the event Gener8 elects to purchase such a “tail policy,” the Surviving Corporation will (and Euronav will cause the Surviving Corporation to) maintain such “tail policy” in full force and effect and continue to honor its obligations thereunder. Gener8 intends to purchase a “tail policy” and has obtained quotes of primary runoff insurance for a policy period of six years from the closing date of the Merger at a premium within the amount provided for in the Merger Agreement (subject to modification should any information forthcoming evidence a material change in risk).
Stock Exchange Listing
Euronav has agreed to use its reasonable best efforts to take all actions, and do all things, reasonably necessary, proper or advisable on its part under applicable laws and rules and policies of the NYSE and Euronext to ensure that the Euronav ordinary shares comprising the aggregate Merger Consideration are approved for listing on the NYSE prior to or as of the Closing, and Gener8 has agreed to cooperate with Euronav with respect to such approval. Euronav has agreed to use its reasonable best efforts to ensure that the listing of such shares on Euronext is effected as soon as practicable following the Closing.
Conditions to the Merger Agreement
The obligations of Euronav and Gener8 to complete the Merger are subject to the satisfaction of the following conditions:
•
no applicable law or order preventing or prohibiting the consummation of the Merger shall be in effect;
•
the Gener8 Shareholder Approval shall have been obtained;
•
the registration statement, of which this proxy statement/prospectus forms a part, shall have become effective under the U.S. Securities Act and shall not be subject to any stop order suspending the effectiveness of the registration statement or any proceedings initiated by the SEC; and
•
the Euronav ordinary shares included in the Merger Consideration shall have been approved for listing on the NYSE, subject to completion of the Merger and official notice of issuance.
The obligations of Gener8 to effect the Merger are further subject to the satisfaction or waiver by Gener8 of the following additional conditions:
•
the representations and warranties of Euronav and Merger Sub in the Merger Agreement shall be true and correct as of the Closing, subject to certain standards, including materiality and material adverse effect qualifications described in the Merger Agreement;
•
all required filings shall have been made and all required approvals shall have been obtained (or waiting periods expired or terminated) under any antitrust laws applicable to the Merger;
•
receipt by Gener8 of all of the Specified Approvals on or prior to the Closing or Euronav shall have demonstrated to the reasonable satisfaction of the Gener8 Transaction Committee that Euronav has available, or will have available at the Closing, alternative financing sufficient to refinance any indebtedness for which the Specified Approvals are not obtained;
•
Euronav and Merger Sub shall have performed and complied with, in all material respects, all of the covenants and obligations required to be performed or complied with by them under the Merger Agreement on or prior to the date of Closing;
•
from the date of the Merger Agreement through the Closing, no event has occurred that has had a Parent Material Adverse Effect;
•
Euronav shall have delivered to Gener8 a certificate of an executive officer of Euronav that certain of the above conditions have been satisfied and certifying as to the aggregate outstanding indebtedness of Euronav and its subsidiaries, as of the date of the Closing; and
•
Euronav shall have delivered to Gener8 a true and complete copy of each of the special report on the Contribution in Kind drawn up by the Euronav board of directors and the unqualified special report on such Contribution in Kind drawn up by Euronav’s auditors, each in accordance with article 602 of the Belgian Companies Code.
The obligations of Euronav and Merger Sub to effect the Merger are further subject to the satisfaction or waiver by Euronav of the following additional conditions:
•
the representations and warranties of Gener8 in the Merger Agreement shall be true and correct as of the Closing, subject to certain standards, including materiality and material adverse effect qualifications described in the Merger Agreement;
•
all required filings shall have been made and all required approvals shall have been obtained under any antitrust laws applicable to the Merger;
•
receipt by Euronav of all of the Specified Approvals on or prior to the Closing;
•
Gener8 shall have performed and complied, in all material respects, with each of the covenants and obligations required to be performed by it under the Merger Agreement on or prior to the date of the Closing;
•
from the date of the Merger Agreement through the Closing, no event has occurred that has had a Company Material Adverse Effect; and
•
Gener8 shall have delivered to Euronav a certificate of an executive officer of Gener8 that certain of the above conditions have been satisfied and certifying as to the aggregate outstanding indebtedness of Gener8 and its subsidiaries comprising the total long-term debt as of the date of the Closing.
Termination of the Merger Agreement
The Merger Agreement provides for certain termination rights for Euronav and Gener8 (even after the receipt of the Gener8 Shareholder Approval). The Merger Agreement may be terminated at any time prior to the Effective Time of the Merger by mutual written agreement of Euronav and Gener8; or by either Euronav or Gener8, if:
•
the Effective Time of the Merger has not occurred on or before the End Date; provided, that (1) if the Special Meeting shall not have occurred by such date and all other conditions to the Merger (other than obtaining Gener8 Shareholder Approval) shall have been satisfied or are capable of being satisfied by such date, then Euronav or Gener8 may extend the End Date to July 31, 2018 (unless the failure by the party proposing to extend the End Date to perform its obligations contained in the Merger Agreement is the principal cause of, or resulted in, the failure to consummate the Merger on or prior to the End Date), and (2) if the Special Meeting shall have been adjourned or postponed, the End Date will be extended by the period that the Special Meeting is adjourned or postponed;
•
the Gener8 Shareholder Approval has not been obtained after a vote has been taken and completed; or
•
any law or order prohibits any party from consummating the Merger and such prohibition shall have become final and not appealable.
The Merger Agreement may also be terminated by Euronav, if:
•
an Adverse Recommendation Change has occurred;
•
Gener8 shall have entered into a binding agreement (other than a confidentiality agreement) relating to any Acquisition Proposal;
•
prior to the taking of a vote to obtain the Gener8 Shareholder Approval, Gener8 intentionally and materially breaches any of its non-solicitation obligations under the Merger Agreement; or
•
Gener8 fails to perform any covenant or agreement (other than the non-solicitation obligations) in the Merger Agreement or any representation or warranty of Gener8 is untrue and in either case such failure has resulted or would reasonably be expected to result in a failure of certain conditions and has not been cured by the earlier of the End Date and twenty (20) days after the giving of written notice to Gener8 of such failure.
The Merger Agreement may also be terminated by Gener8 if:
•
Euronav fails to perform any covenant or agreement or any representation or warranty of Euronav or Merger Sub in the Merger Agreement is untrue and in either case such failure has resulted or would reasonably be expected to result in a failure of certain conditions and has not been cured by the earlier of the End Date and twenty (20) days after the giving of written notice to Euronav of such failure.
Termination Fee
If the Merger Agreement is terminated (i) by Euronav or Gener8 because the Merger has not closed by the End Date (as it may be extended pursuant to the Merger Agreement) at a time when Euronav could have terminated the Merger Agreement because (A) of the occurrence of an Adverse Recommendation Change, (B) Gener8 has entered into a binding agreement (other than a confidentiality agreement) relating to any Acquisition Proposal, or (C) Gener8 has intentionally and materially breached any of its obligations under Section 6.4 of the Merger Agreement prior to the Special Meeting, or (ii) by Euronav due to the occurrence of any of clause (i)(A)-(C) above, then Gener8 will be required to pay a termination fee of $39 million in cash to Euronav.
If the Merger Agreement is terminated (i) by Euronav or Gener8 because (a) the Gener8 Shareholders Approval has not been obtained after the Special Meeting and prior to the Special Meeting an Acquisition Proposal has been publicly disclosed for the first time after the date of the Merger Agreement and has not been withdrawn, or (b) by Euronav if Gener8 has breached or failed to perform any of its covenants or obligations set forth in the Merger Agreement (other than the covenants and obligations set forth in Section 6.4 of the Merger Agreement) or any representation or warranty of Gener8 shall have become untrue, and prior to termination an Acquisition Proposal has been made and not withdrawn and (ii) prior to the first anniversary of the date of such termination, Gener8 enters into a definitive agreement with respect to any Acquisition Proposal or any Acquisition Proposal has been consummated, then Gener8 will be required to pay a termination fee of $39 million. For purposes of this paragraph, all references to 15% in the definition of “Acquisition Proposal” set forth in the Merger Agreement shall be replaced with 50%. A portion of the purchase price of each of the three vessels which Euronav has agreed to purchase from Gener8 in the event that the Merger is not consummated may be offset by up to one-third of the $39 million termination fee contemplated by the Merger Agreement in the case of a termination of the Merger Agreement in circumstances that trigger the termination fee.
Amendments and Waivers
Any provision of the Merger Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to the Merger Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective; provided that (i) any such
amendment or waiver on behalf of Gener8 requires the approval of the Gener8 Transaction Committee, and (ii) after Gener8 Shareholder Approval has been obtained there will be no amendment or waiver that would require the further approval of the shareholders of Gener8 under the BCA unless such amendment is subject to shareholder approval.
The parties have agreed that no waiver will be construed as a waiver of any subsequent breach or failure of the same term or condition, or a waiver of any other term or condition of the Merger Agreement, and no failure or delay by any party in exercising any right, power or privilege under the Merger Agreement will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in the Merger Agreement are cumulative and not exclusive of any rights or remedies provided by applicable law.
Subject to the foregoing two paragraphs, at any time prior to the Effective Time, whether before or after the meeting of Gener8’s shareholders to approve the Merger Agreement, the parties (and Euronav on behalf of itself and Merger Sub) may (a) extend the time for the performance of any of the covenants, obligations or other acts of the other party, or (b) waive any inaccuracy of any representations or warranties or compliance with any of the agreements or covenants of the other party or with any conditions to its own obligations.
Governing Law and Venue; Waiver of Jury Trial
The Merger Agreement will be deemed to be made in and in all respects will be interpreted, construed and governed by and in accordance with the laws of the State of New York without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of New York, except (a) to the extent that the law of the Republic of the Marshall Islands or of the Kingdom of Belgium are mandatorily applicable to the Merger and (b) all matters relating to the fiduciary duties of the Gener8 board of directors and transaction committee are subject to the laws of the Republic of the Marshall Islands.
Each of the parties to the Merger Agreement consented to the jurisdiction of any state or federal court sitting in Manhattan in New York City or in the Federal Southern District in the State of New York and any appellate court therefrom located in New York, New York and irrevocably agreed that all actions or proceedings relating to the Merger Agreement, the Merger or the other transactions contemplated by the Merger Agreement may be litigated in such courts.
Each of the parties to the Merger Agreement irrevocably waived any and all right to trial by jury in any legal proceeding arising out of or related to the Merger Agreement or the transactions contemplated by the Merger Agreement.
VOTING AGREEMENT AND PROXIES
The Voting Agreement
The following is a summary of material terms of the Voting Agreement, including the effects of those provisions. While Euronav and Gener8 believe this description covers the material terms of the Voting Agreement, it may not contain all of the information that is important to you and is qualified in its entirety by reference to the Voting Agreement, which is included as
Annex B
to, and is incorporated by reference in, this proxy statement/prospectus. We urge you to read the Voting Agreement carefully and in its entirety. In the event of any discrepancy between the terms of the Voting Agreement and the following summary, the Voting Agreement shall prevail.
Agreement to Attend; Vote.
Pursuant to the Voting Agreement, the Covered Shareholders are required to (i) appear (in person or by proxy) at any meeting of the shareholders convened for the purpose of approving the Merger and the Merger Agreement and (ii) provided that neither the Gener8 Transaction Committee nor the Gener8 board of directors has made an Adverse Recommendation Change, vote the Covered Shares in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger, and against any action that would reasonably be expected to impede the Merger or result in a breach of the Merger Agreement or the Voting Agreement. If either the Gener8 Transaction Committee or the Gener8 board of directors does make an Adverse Recommendation Change, then the Covered Shareholders are each required to vote 50% of their respective Covered Shares in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger, and may vote their remaining Covered Shares in any manner they determine. As of the date of this Proxy Agreement/Prospectus shareholders representing approximately 48% of the issued and outstanding shares of Gener8, including certain current directors of Gener8, have entered into the Voting Agreement with Euronav.
Prohibition on Transfers.
Each of the Covered Shareholders agreed that during the term of the Voting Agreement, the Covered Shareholders will not transfer any of the shares beneficially owned by such Covered Shareholder, beneficial ownership thereof or any other interest thereby except for a transfer of such shares (which transfer includes all beneficial ownership, voting rights and other interests thereby) to (i) another Covered Shareholder or (ii) a third-party that, prior to the effectiveness of the transfer, executes a joinder to the Voting Agreement.
Short Sales
. Each Covered Shareholder agreed that, from the date of the Voting Agreement until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, it will not, without the prior written consent of Euronav, engage in any transaction constituting a Short Sale relating to Euronav ordinary shares, any security convertible into or exercisable or exchangeable for Euronav ordinary shares, or any other Euronav securities.
No Solicitation.
Each Covered Shareholder agreed that it will not (and any Covered Shareholder that is not an investment fund (including a fund managed by an investment manager) or other institutional investor shall cause its affiliates, including its subsidiaries, and its and their representatives not to), directly or indirectly, take any action that Gener8 is prohibited to take under the non-solicitation provisions of the Merger Agreement.
Termination.
The Voting Agreement will automatically terminate upon and have no further force or effect on the earliest to occur of (i) the conclusion of the Special Meeting has occurred and the shares covered by the Voting Agreement have been voted as specified thereby, (ii) the date of any amendment, waiver or modification of the Merger Agreement without such Covered Shareholder’s prior written consent that has the effect of (1) decreasing or changing the form of the Merger Consideration or (2) otherwise amending, waiving or modifying the Merger Agreement in a manner materially adverse to such Covered Shareholder, (iii) the Effective Time of the Merger, and (iv) the date of termination of the Merger Agreement in accordance with its terms (including after any extension thereof).
Fees and Expenses
. All costs and expenses (including all fees and disbursements of counsel, accountants, investment bankers, experts and consultants) incurred in connection with the Voting Agreement will be paid by the party incurring such costs and expenses.
Governing Law
. The Voting Agreement will be deemed to be made in and in all respects will be interpreted, construed and governed by and in accordance with the laws of the State of New York without
giving effect to any choice of law or conflict of law provision or rule that would cause the applications of the laws of any jurisdiction other than the State of New York, except to the extent that the law of the Republic of the Marshall Islands is mandatorily applicable to the Merger.
Proxies
At the request (and expense) of Euronav, certain shareholders of Gener8, or the “Proxy Shareholders”, have agreed to grant an irrevocable proxy, which we refer to as the “Proxies”, to a representative of an affiliate of such Proxy Shareholders whereby, subject to the terms and conditions in the Proxies, such representative has the authority to direct the vote of Gener8 common shares owned by the Proxy Shareholders, representing in the aggregate approximately 6% of the issued and outstanding shares of Gener8, at the Special Meeting: (i) for the adoption and approval of the Merger Agreement and the Merger, (ii) against any Acquisition Proposal other than the Merger, and (iii) against any other action that under applicable law requires the approval of Gener8’s shareholders, which is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, or materially adversely affect the consummation of the Merger or the transactions contemplated by the Merger Agreement or this Agreement. In addition, the Proxy Shareholders have agreed not transfer or dispose of their Gener8 common shares subject to the Proxies during the term of the Proxies unless the transferee agrees to be bound thereby. The Proxies will terminate upon the earliest to occur of: (i) the occurrence of the Special Meeting, (ii) the consummation of the Merger, (iii) the occurrence of an Adverse Recommendation Change, (iv) Gener8 having entered into a binding agreement with respect to an Acquisition Proposal that constitutes a Superior Proposal, and (v) the termination of the Merger Agreement in accordance with its terms (such earliest event, the “Termination”). At the Termination, the Proxies will become void and will be of no further force and effect; provided that nothing therein will relieve any party from liability for willful and intentional breaches of a Proxy occurring prior to its termination.
As of the date of this proxy statement/prospectus, shareholders representing approximately 48% of the issued and outstanding shares of Gener8, including certain current directors of Gener8, have entered into either the Voting Agreement or the Proxies.
RELATED AGREEMENTS
Memoranda of Agreement to Purchase Three Vessels
Concurrently with the execution of the Merger Agreement, Euronav and Gener8 executed and delivered three memoranda of agreement with respect to the
Gener8 Hera
, the
Gener8 Athena
and the
Gener8 Neptune
which contemplate the purchase by Euronav of these three vessels from Gener8 at a total purchase price of $220.9 million if the Merger is not consummated, other than as a result of a breach of the Merger Agreement by Euronav. A portion of the purchase price of each of the three vessels may be offset by up to one-third of the $39 million termination fee contemplated by the Merger Agreement in the case of a termination of the Merger Agreement in circumstances that trigger the termination fee.
Sale of Six VLCC Vessels
Subject to the consummation of the Merger, among other conditions, International Seaways, an unaffiliated third-party, has agreed with Euronav to purchase from the Surviving Corporation 100% of the issued and outstanding stock of Gener8’s wholly-owned subsidiary, Gener8 Maritime VII Inc., which owns six VLCC vessels,
Gener8 Andriotis
,
Gener8 Chiotis
,
Gener8 Militiades
,
Gener8 Strength, Gener8 Success
and
Gener8 Supreme
, at the closing of the Merger for an aggregate purchase price of $434 million. International Seaways is expected to assume the debt secured by the vessels to be acquired which consists of a $311 million credit facility with maturity between 2027 and 2028. The six vessels, which have an average age of 1.7 years as of the date the Merger Agreement was signed, are expected to be delivered to the buyer in the second quarter of 2018.
BlueMountain Agreement
For a description of the BlueMountain Agreement, please see the section “The Merger — Assumption of Indebtedness.”
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
Introduction
The following unaudited pro forma condensed combined financial information of the Combined Company is presented to illustrate the proposed combination of Euronav NV, and Gener8 Maritime. Inc., which was announced on December 21, 2017.
On December 20, 2017, Euronav entered into a Merger Agreement with Gener8 and Merger Sub, a wholly-owned subsidiary of Euronav, pursuant to which Merger Sub will merge with and into Gener8, and Gener8 will continue as the Surviving Corporation that will continue its corporate existence as a wholly-owned subsidiary of Euronav. Upon the Closing of the Merger, the Gener8 shareholders and the Gener8 holders of Restricted Stock Units will receive the Euronav ordinary shares that comprise the Merger Consideration.
In connection with the Merger, the following related transactions are expected take effect at the Closing Date of the Merger and the information contained in this discussion assumes these transactions will be consummated:
•
Repayment of the Senior Notes at its principal amount plus accrued interest plus a repayment premium of 1% to certain affiliates of BlueMountain Capital Management Inc. LLC.
•
Sale by Gener8 of the wholly-owned subsidiary Gener8 Maritime VII Inc., which owns six vessels, to International Seaways, which is subject to certain conditions. Please see the section “The Merger Agreement — Related Agreements — Sale of Six VLCC Vessels.”
The unaudited pro forma condensed combined balance sheet as of September 30, 2017, and the unaudited pro forma condensed combined statement of profit or loss for the year ended December 31, 2016 and the nine months ended September 30, 2017 are based upon, derived from, and should be read in conjunction with the following: (i) the historical audited financial statements of Euronav, which are available in Euronav’s Form 20-F for the year ended December 31, 2016, as filed with the SEC on April 14, 2017, (ii) the historical audited financial statements of Gener8, which are available in Gener8’s Annual Report on Form 10-K for the year ended December 31, 2016, as filed with the SEC on March 13, 2017, (iii) Euronav’s unaudited condensed consolidated interim financial statements for the nine month period ended September 30, 2017, which are available in Euronav’s Form 6-K, as filed with the SEC on February 14, 2018, and (iv) Gener8’s unaudited condensed consolidated interim financial statements available in Gener8’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2017, as filed with the SEC on May 9, 2017, Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2017, as filed with the SEC on August 7, 2017, Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2017, as filed with the SEC on November 9, 2017, each of which is incorporated by reference into this proxy statement/prospectus. Euronav’s historical audited financial statements were prepared in accordance with IFRS as issued by the IASB and presented in thousands of U.S. dollars. Gener8’s historical audited financial statements were prepared in accordance with U.S. GAAP and presented in thousands of U.S. dollars. For purposes of preparing the unaudited pro forma condensed combined financial information, Gener8’s historical audited financial statements prepared under U.S. GAAP were reconciled to IFRS, based on a preliminary IFRS analysis. No material adjustments were identified as a result of this exercise. Neither the reconciliation to IFRS nor the resulting pro forma financial information have been audited.
The accompanying unaudited pro forma condensed combined financial information give effect to adjustments that are (i) directly attributable to the combination, (ii) factually supportable, and (iii) with respect to the unaudited condensed combined statement of profit or loss, are expected to have a continuing impact on the consolidated results. The unaudited condensed combined statement of financial position gives effect to the combination as if it occurred on September 30, 2017 and the unaudited condensed combined statements of profit or loss gives effect to the combination as if it happened on January 1, 2016.
The combination of Euronav and Gener8 will be accounted for as a business combination using the acquisition method of accounting under the provisions of International Financial Reporting Standard 3, “Business Combinations,” (which we refer to as “IFRS 3”), with Euronav selected as the accounting acquirer under this guidance. Refer to Note 3 below for further details surrounding the combination.
The unaudited pro forma condensed combined financial information has been prepared by management of Euronav in accordance with Article 11 of Regulation S-X under the Exchange Act, as amended. The pro forma adjustments are preliminary and are based upon available information and certain assumptions which management believes are reasonable under the circumstances and which are described in the accompanying notes to the unaudited pro forma condensed combined financial information. Actual results may differ materially from the assumptions within the accompanying unaudited pro forma condensed combined financial information. Under IFRS 3, generally all assets acquired and liabilities assumed are recorded at their acquisition date fair value. For pro forma purposes, the fair value of Gener8’s identifiable tangible and intangible assets acquired and liabilities assumed are based on a preliminary estimate of fair value. Occasionally, an acquirer will make a bargain purchase, which is a business combination in which the consideration amount is less than the aggregate of the assets acquired and the liabilities assumed. Before recognizing a gain on a bargain purchase, the acquirer shall reassess whether it has correctly identified all of the assets acquired and all of the liabilities assumed and shall recognize any additional assets or liabilities that are identified in that review. If that shortfall remains, the acquirer shall recognize the resulting gain in earnings on the acquisition date. The gain shall be attributed to the acquirer. Certain current market based assumptions were used that will be updated in purchase accounting upon completion of the combination. Euronav’s management believes the estimated fair values utilized for the assets to be acquired and liabilities to be assumed are based on reasonable estimates and assumptions. Preliminary fair-value estimates may change as additional information becomes available and such changes could be material, as certain valuations and other studies have yet to commence or progress to a stage at which there is sufficient information for a definitive measurement. In addition, a preliminary review of U.S. GAAP to IFRS differences and related accounting policies has been completed based on information made available to date. However, following the consummation of the combination, management of Euronav will conduct a final review. As a result of that review, management of Euronav may identify further differences that, when finalized, could have a material impact on this unaudited pro forma condensed combined financial information.
The unaudited pro forma condensed combined financial statements have been prepared for illustrative purposes only. The unaudited pro forma condensed combined financial information has been prepared by management of Euronav in accordance with the regulations of the SEC and is not necessarily indicative of the combined financial position or results of operations that would have been realized had the combination occurred as of the dates indicated, nor is it meant to be indicative of any anticipated combined financial position or future results of operations that the Combined Company will experience after the combination. In addition, the unaudited pro forma condensed combined financial information does not purport to project the future financial position or operating results of the Combined Company. The accompanying unaudited pro forma condensed combined statement of profit or loss does not include any expected cost savings or operating synergies, which may be realized subsequent to the combination or the impact of any non-recurring activity and one-time transaction-related or integration-related items. Moreover, the pro forma adjustments represent best estimates based upon the information available to date and are preliminary and subject to change after more detailed information is obtained.
Subsequent to the Closing Date of the Merger, any transactions occurring between Euronav and Gener8 will be considered intercompany transactions and eliminated. Euronav and Gener8 did not have any relationship that could be considered as intercompany transactions as of and for the nine months ended September 30, 2017 and for the year ended December 31, 2016. Therefore, no eliminations have been made in the unaudited pro forma financial information.
This unaudited pro forma condensed combined financial information should be read in conjunction with the accompanying notes and assumptions as well as the above referenced historical audited consolidated financial statements of both Euronav and Gener8 and management’s discussion and analysis of financial condition and results of operations of Gener8.
Unaudited Pro Forma Condensed Combined Statement of Financial Position
As of September 30, 2017
|
|
|
|
Historical
Euronav NV
|
|
|
Historical
Gener8
|
|
|
Pro Forma
Adjustments
|
|
|
Notes
|
|
|
Pro Forma
Combined
|
|
|
|
|
|
(in thousands of USD)
|
|
|
ASSETS
|
|
|
|
|
|
|
|
Non-current assets
|
|
|
|
|
|
|
|
Vessels
|
|
|
|
|
2,364,003
|
|
|
|
|
|
2,334,261
|
|
|
|
|
|
(1,071,771
)
|
|
|
|
(a),(b)
|
|
|
|
|
3,626,493
|
|
|
|
Assets under construction
|
|
|
|
|
50,634
|
|
|
|
|
|
62,537
|
|
|
|
|
|
(14,080
)
|
|
|
|
(a)
|
|
|
|
|
99,091
|
|
|
|
Other tangible assets
|
|
|
|
|
676
|
|
|
|
|
|
1,440
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
2,116
|
|
|
|
Intangible assets
|
|
|
|
|
86
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
86
|
|
|
|
Receivables
|
|
|
|
|
173,916
|
|
|
|
|
|
26,950
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
200,866
|
|
|
|
Restricted cash
|
|
|
|
|
—
|
|
|
|
|
|
1,464
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
1,464
|
|
|
|
Goodwill
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
—
|
|
|
|
Derivative financial instruments
|
|
|
|
|
—
|
|
|
|
|
|
1,259
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
1,259
|
|
|
|
Investments in equity accounted investees
|
|
|
|
|
29,221
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
29,221
|
|
|
|
Other noncurrent assets
|
|
|
|
|
—
|
|
|
|
|
|
2,983
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
2,983
|
|
|
|
Deferred tax assets
|
|
|
|
|
2,414
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
2,414
|
|
|
|
Total non-current assets
|
|
|
|
|
2,620,950
|
|
|
|
|
|
2,430,894
|
|
|
|
|
|
(1,085,851
)
|
|
|
|
|
|
|
|
|
3,965,993
|
|
|
|
Current assets
|
|
|
|
|
|
|
|
Trade and other receivables
|
|
|
|
|
142,489
|
|
|
|
|
|
57,843
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
200,332
|
|
|
|
Current tax assets
|
|
|
|
|
136
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
136
|
|
|
|
Cash and cash equivalents
|
|
|
|
|
97,199
|
|
|
|
|
|
184,677
|
|
|
|
|
|
109,704
|
|
|
|
(b),(c)
|
|
|
|
|
391,580
|
|
|
|
Non-current assets held for sale
|
|
|
|
|
—
|
|
|
|
|
|
31,530
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
31,530
|
|
|
|
Total current assets
|
|
|
|
|
239,824
|
|
|
|
|
|
274,050
|
|
|
|
|
|
109,704
|
|
|
|
|
|
|
|
|
623,578
|
|
|
|
TOTAL ASSETS
|
|
|
|
|
2,860,774
|
|
|
|
|
|
2,704,944
|
|
|
|
|
|
(976,147
)
|
|
|
|
|
|
|
|
|
4,589,571
|
|
|
|
EQUITY and LIABILITIES
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
Share capital
|
|
|
|
|
173,046
|
|
|
|
|
|
830
|
|
|
|
|
|
65,271
|
|
|
|
(d)
|
|
|
|
|
239,147
|
|
|
|
Share premium
|
|
|
|
|
1,215,227
|
|
|
|
|
|
1,518,969
|
|
|
|
|
|
(1,043,810
)
|
|
|
|
(d)
|
|
|
|
|
1,690,386
|
|
|
|
Translation reserve
|
|
|
|
|
528
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
528
|
|
|
|
Treasury shares
|
|
|
|
|
(16,102
)
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(16,102
)
|
|
|
|
Retained earnings
|
|
|
|
|
454,064
|
|
|
|
|
|
(207,061
)
|
|
|
|
|
|
238,722
|
|
|
|
(d)
|
|
|
|
|
485,725
|
|
|
|
Equity attributable to owners of the Company
|
|
|
|
|
1,826,763
|
|
|
|
|
|
1,312,738
|
|
|
|
|
|
(739,817
)
|
|
|
|
|
|
|
|
|
2,399,684
|
|
|
|
Non-current liabilities
|
|
|
|
|
|
|
|
Bank loans
|
|
|
|
|
697,375
|
|
|
|
|
|
1,222,243
|
|
|
|
|
|
(280,005
)
|
|
|
|
(b),(e)
|
|
|
|
|
1,639,613
|
|
|
|
Other notes
|
|
|
|
|
147,482
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
147,482
|
|
|
|
Other payables
|
|
|
|
|
553
|
|
|
|
|
|
1,110
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
1,663
|
|
|
|
Employee benefits
|
|
|
|
|
3,314
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
3,314
|
|
|
|
Provisions
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
—
|
|
|
|
Derivatives non-current
|
|
|
|
|
|
|
|
|
|
|
166
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
166
|
|
|
|
Total non-current liabilities
|
|
|
|
|
848,724
|
|
|
|
|
|
1,223,519
|
|
|
|
|
|
(280,005
)
|
|
|
|
|
|
|
|
|
1,792,238
|
|
|
|
Current liabilities
|
|
|
|
|
|
|
|
Trade and other payables
|
|
|
|
|
78,778
|
|
|
|
|
|
26,907
|
|
|
|
|
|
43,675
|
|
|
|
(f)
|
|
|
|
|
149,360
|
|
|
|
Current tax liabilities
|
|
|
|
|
39
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
39
|
|
|
|
Bank loans
|
|
|
|
|
47,361
|
|
|
|
|
|
138,297
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
185,658
|
|
|
|
Other borrowings
|
|
|
|
|
59,030
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
59,030
|
|
|
|
Derivative financial instruments
|
|
|
|
|
—
|
|
|
|
|
|
3,483
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
3,483
|
|
|
|
Provisions
|
|
|
|
|
79
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
79
|
|
|
|
Total current liabilities
|
|
|
|
|
185,287
|
|
|
|
|
|
168,687
|
|
|
|
|
|
43,675
|
|
|
|
|
|
|
|
|
397,649
|
|
|
|
TOTAL EQUITY and LIABILITIES
|
|
|
|
|
2,860,774
|
|
|
|
|
|
2,704,944
|
|
|
|
|
|
(976,147
)
|
|
|
|
|
|
|
|
|
4,589,571
|
|
|
|
|
Unaudited Pro Forma Condensed Combined Statement of Profit or Loss
For the year ended December 31, 2016
|
|
|
|
Historical
Euronav NV
|
|
|
Historical
Gener8
|
|
|
Pro Forma
Adjustments
|
|
|
Notes
|
|
|
Pro Forma
Combined
|
|
|
Shipping income
|
|
|
|
|
|
|
|
Revenue
|
|
|
|
|
684,265
|
|
|
|
|
|
404,622
|
|
|
|
|
|
(48,817
)
|
|
|
|
(a)
|
|
|
|
|
1,040,070
|
|
|
|
Gains on disposal of vessels/other tangible assets
|
|
|
|
|
50,397
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
50,397
|
|
|
|
Other operating income
|
|
|
|
|
6,996
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
6,996
|
|
|
|
Total shipping income
|
|
|
|
|
741,658
|
|
|
|
|
|
404,622
|
|
|
|
|
|
(48,817
)
|
|
|
|
|
|
|
|
|
1,097,463
|
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
Voyage expenses and commissions
|
|
|
|
|
(59,560
)
|
|
|
|
|
|
(12,490
)
|
|
|
|
|
|
24
|
|
|
|
(b)
|
|
|
|
|
(72,026
)
|
|
|
|
Vessel operating expenses
|
|
|
|
|
(160,199
)
|
|
|
|
|
|
(107,308
)
|
|
|
|
|
|
12,388
|
|
|
|
(c)
|
|
|
|
|
(255,119
)
|
|
|
|
Charter hire expenses
|
|
|
|
|
(17,713
)
|
|
|
|
|
|
(3,059
)
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(20,772
)
|
|
|
|
Loss on disposal of vessels/other tangible assets
|
|
|
|
|
(2
)
|
|
|
|
|
|
(24,169
)
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(24,171
)
|
|
|
|
Goodwill impairment
|
|
|
|
|
—
|
|
|
|
|
|
(26,291
)
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(26,291
)
|
|
|
|
Loss on disposal of investments in equity accounted investees
|
|
|
|
|
(24,150
)
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(24,150
)
|
|
|
|
Depreciation tangible assets
|
|
|
|
|
(227,664
)
|
|
|
|
|
|
(87,191
)
|
|
|
|
|
|
(11
)
|
|
|
|
(d)
|
|
|
|
|
(314,866
)
|
|
|
|
Depreciation intangible assets
|
|
|
|
|
(99
)
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(99
)
|
|
|
|
General and administrative expenses
|
|
|
|
|
(44,051
)
|
|
|
|
|
|
(27,844
)
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(71,895
)
|
|
|
|
Total operating expenses
|
|
|
|
|
(533,438
)
|
|
|
|
|
|
(288,352
)
|
|
|
|
|
|
12,401
|
|
|
|
|
|
|
|
|
(809,389
)
|
|
|
|
RESULT FROM OPERATING ACTIVITIES
|
|
|
|
|
208,220
|
|
|
|
|
|
116,270
|
|
|
|
|
|
(36,417
)
|
|
|
|
|
|
|
|
|
288,073
|
|
|
|
Finance income
|
|
|
|
|
6,855
|
|
|
|
|
|
670
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
7,525
|
|
|
|
Finance expenses
|
|
|
|
|
(51,695
)
|
|
|
|
|
|
(49,634
)
|
|
|
|
|
|
28,959
|
|
|
|
(e)
|
|
|
|
|
(72,370
)
|
|
|
|
Net finance expenses
|
|
|
|
|
(44,840
)
|
|
|
|
|
|
(48,964
)
|
|
|
|
|
|
28,959
|
|
|
|
|
|
|
|
|
(64,845
)
|
|
|
|
Share of profit (loss) of equity accounted investees (net of income tax)
|
|
|
|
|
40,495
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
40,495
|
|
|
|
PROFIT (LOSS) BEFORE INCOME
TAX
|
|
|
|
|
203,875
|
|
|
|
|
|
67,306
|
|
|
|
|
|
(7,458
)
|
|
|
|
|
|
|
|
|
263,723
|
|
|
|
Income tax benefit (expense)
|
|
|
|
|
174
|
|
|
|
|
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
174
|
|
|
|
PROFIT (LOSS) FOR THE PERIOD
|
|
|
|
|
204,049
|
|
|
|
|
|
67,306
|
|
|
|
|
|
(7,458
)
|
|
|
|
|
|
|
|
|
263,897
|
|
|
|
Attributable to:
|
|
|
|
|
|
|
|
Owners of the company
|
|
|
|
|
204,049
|
|
|
|
|
|
67,306
|
|
|
|
|
|
(7,458
)
|
|
|
|
|
|
|
|
|
263,897
|
|
|
|
Basic earnings per share
|
|
|
|
|
1.29
|
|
|
|
|
|
0.81
|
|
|
|
|
|
(0.12
)
|
|
|
|
|
|
|
|
|
1.20
|
|
|
|
Diluted earnings per share
|
|
|
|
|
1.29
|
|
|
|
|
|
0.81
|
|
|
|
|
|
(0.12
)
|
|
|
|
|
|
|
|
|
1.20
|
|
|
|
Weighted average number of shares (basic)
|
|
|
|
|
158,262,268
|
|
|
|
|
|
|
|
|
|
|
|
60,815,764
|
|
|
|
|
|
|
|
|
219,078,032
|
|
|
|
Weighted average number of shares
(diluted)
|
|
|
|
|
158,429,057
|
|
|
|
|
|
|
|
|
|
|
|
60,815,764
|
|
|
|
|
|
|
|
|
219,244,821
|
|
|
Unaudited Pro Forma Condensed Combined Statement of Profit or Loss
For the nine months ended September 30, 2017
|
|
|
|
Historical
Euronav NV
|
|
|
Historical
Gener8
|
|
|
Pro Forma
Adjustments
|
|
|
Notes
|
|
|
Pro Forma
Combined
|
|
|
Shipping income
|
|
|
|
|
|
|
|
Revenue
|
|
|
|
|
395,390
|
|
|
|
|
|
248,987
|
|
|
|
|
|
(60,504
)
|
|
|
|
(a)
|
|
|
|
|
583,873
|
|
|
|
Gains on disposal of vessels/other tangible assets
|
|
|
|
|
20
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
20
|
|
|
|
Other operating income
|
|
|
|
|
3,882
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
3,882
|
|
|
|
Total shipping income
|
|
|
|
|
399,292
|
|
|
|
|
|
248,987
|
|
|
|
|
|
(60,504
)
|
|
|
|
|
|
|
|
|
587,775
|
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
Voyage expenses and commissions
|
|
|
|
|
(47,778
)
|
|
|
|
|
|
(6,987
)
|
|
|
|
|
|
559
|
|
|
|
(b)
|
|
|
|
|
(54,206
)
|
|
|
|
Vessel operating expenses
|
|
|
|
|
(116,475
)
|
|
|
|
|
|
(83,225
)
|
|
|
|
|
|
10,839
|
|
|
|
(c)
|
|
|
|
|
(188,861
)
|
|
|
|
Charter hire expenses
|
|
|
|
|
(23,329
)
|
|
|
|
|
|
(6
)
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(23,335
)
|
|
|
|
Loss on disposal of vessels/other tangible assets
|
|
|
|
|
(21,027
)
|
|
|
|
|
|
(114,644
)
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(135,671
)
|
|
|
|
Goodwill impairment
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
—
|
|
|
|
Loss on disposal of investments in equity accounted investees
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
—
|
|
|
|
Depreciation tangible assets
|
|
|
|
|
(173,373
)
|
|
|
|
|
|
(80,127
)
|
|
|
|
|
|
651
|
|
|
|
(d)
|
|
|
|
|
(252,849
)
|
|
|
|
Depreciation intangible assets
|
|
|
|
|
(72
)
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(72
)
|
|
|
|
General and administrative expenses
|
|
|
|
|
(33,132
)
|
|
|
|
|
|
(24,988
)
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(58,120
)
|
|
|
|
Total operating expenses
|
|
|
|
|
(415,186
)
|
|
|
|
|
|
(309,977
)
|
|
|
|
|
|
12,049
|
|
|
|
|
|
|
|
|
(713,114
)
|
|
|
|
RESULT FROM OPERATING ACTIVITIES
|
|
|
|
|
(15,894
)
|
|
|
|
|
|
(60,990
)
|
|
|
|
|
|
(48,455
)
|
|
|
|
|
|
|
|
|
(125,339
)
|
|
|
|
Finance income
|
|
|
|
|
5,258
|
|
|
|
|
|
936
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
6,194
|
|
|
|
Finance expenses
|
|
|
|
|
(36,662
)
|
|
|
|
|
|
(63,095
)
|
|
|
|
|
|
26,830
|
|
|
|
(e)
|
|
|
|
|
(72,927
)
|
|
|
|
Net finance expenses
|
|
|
|
|
(31,404
)
|
|
|
|
|
|
(62,159
)
|
|
|
|
|
|
26,830
|
|
|
|
|
|
|
|
|
(66,733
)
|
|
|
|
Share of profit (loss) of equity accounted investees (net of income tax)
|
|
|
|
|
28,029
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
28,029
|
|
|
|
PROFIT (LOSS) BEFORE INCOME
TAX
|
|
|
|
|
(19,269
)
|
|
|
|
|
|
(123,149
)
|
|
|
|
|
|
(21,625
)
|
|
|
|
|
|
|
|
|
(164,043
)
|
|
|
|
Income tax benefit (expense)
|
|
|
|
|
1,297
|
|
|
|
|
|
—
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
1,297
|
|
|
|
PROFIT (LOSS) FOR THE PERIOD
|
|
|
|
|
(17,972
)
|
|
|
|
|
|
(123,149
)
|
|
|
|
|
|
(21,625
)
|
|
|
|
|
|
|
|
|
(162,746
)
|
|
|
|
Attributable to:
|
|
|
|
|
|
|
|
Owners of the company
|
|
|
|
|
(17,972
)
|
|
|
|
|
|
(123,149
)
|
|
|
|
|
|
(21,625
)
|
|
|
|
|
|
|
|
|
(162,746
)
|
|
|
|
Basic earnings per share
|
|
|
|
|
(0.11
)
|
|
|
|
|
|
—
|
|
|
|
|
|
(0.36
)
|
|
|
|
|
|
|
|
|
(0.74
)
|
|
|
|
Diluted earnings per share
|
|
|
|
|
(0.11
)
|
|
|
|
|
|
—
|
|
|
|
|
|
(0.36
)
|
|
|
|
|
|
|
|
|
(0.74
)
|
|
|
|
Weighted average number of shares (basic)
|
|
|
|
|
158,166,534
|
|
|
|
|
|
|
|
|
|
|
|
60,815,764
|
|
|
|
|
|
|
|
|
218,982,298
|
|
|
|
Weighted average number of shares
(diluted)
|
|
|
|
|
158,295,721
|
|
|
|
|
|
|
|
|
|
|
|
60,815,764
|
|
|
|
|
|
|
|
|
219,111,485
|
|
|
1.
Description of transaction
On December 20, 2017, Euronav entered into a Merger Agreement with Gener8 and Merger Sub, a wholly-owned subsidiary of Euronav, pursuant to which Merger Sub will merge with and into Gener8, and Gener8 will continue as the Surviving Corporation that will continue its corporate existence as a wholly-owned subsidiary of Euronav. As a result of the Merger and after the proposed sale of six VLCCs to International Seaways, the Combined Company is expected to become the leading independent large crude tanker operator, with a combined fleet of 77 vessels with an aggregate carrying capacity of approximately 19.1 million dwt. The Merger will result in Euronav shareholders owning approximately 72% of the issued share capital of the Combined Company and Gener8 shareholders owning approximately 28% (based on the fully diluted share capital of Euronav and the fully diluted share capital of Gener8). The Merger is subject to the approval of Gener8’s shareholders, the consent of certain of Gener8’s lenders to assign certain debt facilities to the Combined Company and the effectiveness of a registration statement to be filed by Euronav with the SEC to register the Euronav shares to be issued in the Merger as the Merger Consideration. The Merger is expected to close in the second quarter of 2018. Completion of the Merger is also subject to the execution of certain definitive documents, customary closing conditions and regulatory approvals.
The shareholders of Gener8 and the holders of the Gener8 restricted stock units will receive at the time the Merger is completed shares in Euronav as the Merger Consideration. Pursuant to the Merger Agreement, Euronav will issue approximately 60.8 million new shares to shareholders and holders of Gener8 restricted stock units as Merger Consideration, which gives holders of Gener8 common shares and restricted stock units the right to receive 0.7272 shares in Euronav for each Gener8 common share or restricted stock unit held. Immediately following the Closing of the Merger, 60,815,764 new shares issued as the Merger Consideration will represent approximately 28% of the outstanding shares of the Combined Company on a pro forma basis.
The Merger values the entire issued share capital of Gener8 (including restricted stock units) at approximately $541.3 million at a closing share price of $8.90 on January 19, 2018 (the latest practicable date used for preparation of the pro forma condensed combined financial information). The value of the Merger Consideration received by holders of Gener8 common share and restricted stock units will ultimately be based on closing price of Euronav ordinary shares on the Closing Date of the Merger, and could materially change.
Euronav ordinary shares are currently listed for trading on the NYSE and Euronext, and Gener8 common shares are currently listed for trading on NYSE. Following the Closing of the Merger, Euronav ordinary shares will continue to be listed on the NYSE and Euronext Brussels and Gener8 common shares will be delisted from NYSE.
2.
Accounting Policies
During the preparation of this unaudited pro forma condensed combined financial information, management of Euronav has performed a preliminary review and comparison of Gener8 U.S. GAAP accounting policies with Euronav’s IFRS accounting policies. For purposes of preparing the unaudited pro forma condensed combined financial information, Gener8’s historical audited financial statements prepared under U.S. GAAP were reconciled to IFRS, based on a preliminary IFRS analysis. No material adjustments were identified as a result of this exercise. Neither the reconciliation to IFRS nor the resulting pro forma financial information has been audited.
Following the consummation of the combination, management will conduct a final review of Gener8’s accounting policies in an effort to determine if differences in accounting policies require further adjustment or reclassification of Gener8’s statement of profit or loss or reclassification of assets or liabilities to conform to Euronav’s accounting policies and classifications, as required by acquisition accounting rules. As a result of that review, management may identify differences that, when conformed, could have a material impact on this unaudited pro forma condensed combined financial information.
3.
Accounting for the Combination
The unaudited pro forma condensed combined financial information was prepared using the acquisition method of accounting and was based on the historical financial information of Euronav and
Gener8. The acquisition method of accounting, based on IFRS 3, uses the fair value concepts defined in IFRS 13, “Fair Value Measurement” (which we refer to as “IFRS 13”). Acquisition accounting is dependent upon certain valuations and other studies that have yet to commence or progress to a stage where there is sufficient information for a definitive measurement. Accordingly, the purchase price allocation included herein is preliminary and has been presented solely for the purpose of providing pro forma financial information and will be revised as additional information becomes available and as additional analyses are performed. The process for estimating the fair values of identifiable intangible assets and certain tangible assets requires the use of judgment in determining the appropriate assumptions and estimates. Euronav’s management’s approach to deriving these estimates is described below. Differences between preliminary estimates in the unaudited pro forma condensed combined financial information and the final acquisition accounting will occur and could have a material impact on the accompanying pro forma condensed combined financial information and the Combined Company’s future consolidated financial statements.
The combination of Euronav and Gener8 will be accounted for as a business combination using the acquisition method of accounting under the provisions of IFRS 3, “Business Combinations”, with Euronav determined as the accounting acquirer under this guidance. The factors that were considered in determining that Euronav should be treated as the accounting acquirer in the Merger were the relative voting rights in the Combined Company, the composition of the board of directors in the Combined Company, the relative sizes of Euronav and Gener8 and the composition of senior management of the Combined Company. With respect to the relative voting rights in the Combined Company, it is noted that after the completion of the Merger, the current Euronav shareholders and the current holders of Gener8 common shares will own approximately 72% and 28% of the Combined Company, respectively. Euronav management believes that the relative voting rights in the Combined Company along with the composition of the board of directors and senior management in the Combined Company were the most significant factors in determining that Euronav is the accounting acquirer.
With respect to the composition of the board of directors in the Combined Company, after the Merger, members of Euronav’s board of directors will continue to serve in such positions of the Combined Company. In addition, Euronav has agreed, pursuant to the Merger Agreement, to take all actions necessary so a current director of Gener8 is nominated by Euronav’s corporate governance and nomination committee and proposed for election to serve on Euronav’s board of directors at the next regularly scheduled annual meeting of Euronav’s shareholders. The composition of the board of directors points to Euronav as the accounting acquirer.
The relative sizes of Euronav and Gener8 were also considered to be factors that supported that conclusion that Euronav is the accounting acquirer. Total assets of Euronav and Gener8 at September 30, 2017 were approximately $2.8 billion and $2.7 billion, respectively. It should also be noted that the carrying value of Euronav’s and Gener8’s equity at September 30, 2017 was $1.8 billion and $1.3 billion, respectively.
The composition of the board of directors and senior management of the Combined Company, wherein all of Euronav’s directors and officers will be retained while no directors or senior management of Gener8 will be retained also played a role in the determination of the accounting acquirer (other than one current director of Gener8 to be nominated by Euronav’s corporate governance and nomination committee and proposed for election to serve on Euronav’s board of directors at the next regularly scheduled annual meeting of Euronav’s shareholders as described above).
The date of the Merger Agreement is December 20, 2017. For pro forma purposes, the valuation of consideration transferred is based on the number of ordinary shares to be issued by Euronav and Euronav’s closing share price of $8.90 on January 19, 2018, the latest practicable date used for preparation of the pro forma condensed combined financial information. The value of the Merger Consideration that holders of Gener8’s common shares and restricted stock units will receive when the Merger is completed will ultimately be based on the closing price of Euronav’s ordinary shares on the Closing Date of the Merger, which could materially change.
The following represents the preliminary purchase price calculation (in thousands, except per share data, total amounts may not recalculate due to rounding):
|
|
|
|
|
Gener8 outstanding shares as of December 31, 2017
|
|
|
|
|
83,267
|
|
|
|
|
|
|
|
Accelerated vesting of RSUs
|
|
|
|
|
363
(a)
|
|
|
|
|
|
|
|
Gener8 outstanding shares pro forma for closing
|
|
|
|
|
83,630
|
|
|
|
|
|
|
|
Exchange ratio
|
|
|
|
|
0.7272
|
|
|
|
|
|
|
|
Euronav common stock issued to Gener8 shareholders
|
|
|
|
|
60,816
|
|
|
|
|
|
|
|
Closing price per share on January 19, 2018
|
|
|
|
$
|
8.90
|
|
|
|
|
|
|
|
Estimated purchase prices paid in shares
|
|
|
|
$
|
541,260
|
|
|
|
|
|
|
|
Stock option cancellation paid in cash
|
|
|
|
$
|
793
(b)
|
|
|
|
|
|
|
|
Total estimated purchase price
|
|
|
|
$
|
542,053
|
|
|
(a)
In June 2015, September 2016 and May 2017, Gener8 granted restricted stock units to certain executive officers and non-employee directors of which a total of 680,374 are outstanding on September 30, 2017. In December 2017, 317,761 of the executives RSUs vested. These units convert into common shares upon a change of control. Accordingly, these have been included as part of the estimated closing share count.
(b)
Gener8 granted a total of 525,000 stock options to two executive officers in 2017. These options are exercisable to the extent that they are in the money and any unvested options vest upon a change of control. No shares have been assumed to be issued under these option agreements upon the change of control as, pursuant to the Merger Agreement, they are settled in cash equal to the product of (i) the number of shares of Gener8 Common Stock subject to such stock options immediately prior to the Closing Date, and (ii) the excess, if any, of the Transaction Value per Share over the exercise price applicable to such shares of Genere8 common stock subject to such stock option. The stock options have an exercise price in the range of $4.69. These stock options are in the money and will result in cash payment of $793,000. The stock options were included in the determination of the estimated purchase price as the number of outstanding options was considered in the Exchange Ratio.
The following represents the calculation of the bargain purchase price and the allocation of the total purchase price based on management’s preliminary valuation of Gener8 identifiable tangible and intangible assets acquired and liabilities assumed as of September 30, 2017 (in thousands of USD):
|
|
|
|
|
Total estimated purchase price consideration
|
|
|
|
|
542,053
|
|
|
|
|
|
|
|
Fair value of net assets acquired and liabilities assumed
|
|
|
|
|
583,714
|
|
|
|
|
|
|
|
Goodwill/(Bargain purchase)
|
|
|
|
|
(41,661
)
|
|
|
|
|
|
|
|
Vessels
|
|
|
|
|
1,735,682
|
|
|
|
|
|
|
|
Drydocks
|
|
|
|
|
37,978
|
|
|
|
|
|
|
|
Current assets
|
|
|
|
|
274,050
|
|
|
|
|
|
|
|
Other fixed assets, net
|
|
|
|
|
1,440
|
|
|
|
|
|
|
|
Working capital Pool
|
|
|
|
|
26,950
|
|
|
|
|
|
|
|
Restricted cash
|
|
|
|
|
1,464
|
|
|
|
|
|
|
|
Derivative financial instruments – non-current
|
|
|
|
|
1,259
|
|
|
|
|
|
|
|
Other noncurrent assets
|
|
|
|
|
2,983
|
|
|
|
|
|
|
|
Trade and other payables
|
|
|
|
|
(60,582
)
|
|
|
|
|
|
|
|
Current and noncurrent bank debt
|
|
|
|
|
(1,403,293
)
|
|
|
|
|
|
|
|
Other current liabilities
|
|
|
|
|
(1,110
)
|
|
|
|
|
|
|
|
Derivative financial instruments – current
|
|
|
|
|
(3,649
)
|
|
|
|
|
|
|
|
Remaining yard payments
|
|
|
|
|
(29,458
)
|
|
|
|
|
|
|
|
Fair value of net assets acquired and liabilities assumed
|
|
|
|
|
583,714
|
|
|
For pro forma purposes, the fair value of Gener8’s identifiable tangible and intangible assets acquired and liabilities assumed are based on a preliminary estimate of fair value and this is in excess of the
consideration amount. Euronav’s management has reassessed whether Euronav’s management has correctly identified all of the assets acquired and all of the liabilities assumed and this excess remains. Based on these calculations, Euronav shall recognize the resulting gain in earnings on the acquisitions date. The calculation of the bargain purchase or goodwill will also be based on the Closing Date share price of Euronav ordinary shares on the Closing Date of the Merger, which could materially change.
The fair value of assets acquired and liabilities assumed will be determined in accordance with the principles set forth under IFRS 13, Fair Value Measurement. As of September 30, 2017, approximately 88% of Gener8’s total assets were comprised of vessels or vessels under construction. Upon Closing, the carrying value of these assets will be adjusted to reflect management’s best estimates of fair value which will consider current market values obtained from at least two independent ship brokers.
The following provides sensitivities to changes in the fair value of the vessels and vessels under construction:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjustment Depreciations
|
|
|
|
|
|
Valuation
|
|
|
Goodwill/
(Bargain Purchase)
|
|
|
For the
year ended
December 31,
2016
|
|
|
For the nine
months ended
September 30,
2017
|
|
|
Valuations September 30, 2017
|
|
|
|
|
1,773,660
|
|
|
|
|
|
(41,661
)
|
|
|
|
|
|
(18,530
)
|
|
|
|
|
|
(16,437
)
|
|
|
|
Decrease of 5%
|
|
|
|
|
1,688,177
|
|
|
|
|
|
43,822
|
|
|
|
|
|
(14,867
)
|
|
|
|
|
|
(12,672
)
|
|
|
|
Increase of 5%
|
|
|
|
|
1,859,143
|
|
|
|
|
|
(127,144
)
|
|
|
|
|
|
(22,193
)
|
|
|
|
|
|
(20,201
)
|
|
|
|
Valuations VesselValue.com January 22, 2018
|
|
|
|
|
1,753,270
|
|
|
|
|
|
(21,271
)
|
|
|
|
|
|
(17,725
)
|
|
|
|
|
|
(15,567
)
|
|
|
The remaining assets mostly include working capital type items and will be adjusted to their net realizable value, if necessary.
Furthermore, as of September 30, 2017, 98% of Gener8’s total liabilities consisted of secured indebtedness and other financial notes. The fair value of such arrangements will be determined using the income approach, which will consider the future cash flows that a market participant would expect to receive from holding the liability as an asset. In applying this approach, an estimate will be made for the effective cost of financing that could be obtained by Gener8 in the market at or near the closing date of the Merger. This estimate will consider the terms of recently executed credit facilities in addition to Euronav’s assessment of prevailing market conditions for financing arrangements under similar terms, conditions and Gener8 creditworthiness. The fair value of the Senior Notes gives effect to the repayment of the Senior Notes at or near the Closing Date of the Merger as agreed among Gener8 and certain affiliates of BlueMountain Capital Management LLC in the BlueMountain Agreement which equals the principal amount outstanding plus all accrued interest plus the repayment premium of 1.00%.
Should the above valuation exercise of Gener8’s assets, liabilities result in a bargain purchase gain on the Closing Date, Euronav shall reassess whether it has correctly identified all of the assets acquired or liabilities assumed and it will review the procedures used to measure such amounts.
Euronav’s closing share price on the day prior to the Merger announcement, December 20, 2017, was $8.10 per share and Euronav agreed to issue approximately 60.8 million shares (valuing the announced consideration at $492.6 million). For purposes of the pro forma information, the closing share price on January 19, 2018 (the latest practicable date used for preparation of the pro forma condensed combined financial information) of $8.90 has been used and has been compared with a fair valuation of Gener8 net assets as of September 30, 2017 which we have estimated to be $583.7 million, implying that Euronav would record a bargain purchase gain of $41.7 million. The terms of the transaction, however, were largely based on the net asset valuations of Euronav and Gener8 at September 30, 2017.
The following provides sensitivities to changes in the purchase price due to changes in Euronav’s share price.
|
|
|
|
|
|
|
|
Price per
Euronav
share
|
|
|
Gener8
exchanged
shares
|
|
|
Total
purchase price
consideration
in shares
|
|
|
(Bargain
purchase gain)/
goodwill
|
|
|
|
|
|
|
|
|
|
(in thousands except per share data)
|
|
|
|
|
|
|
January 19, 2018
|
|
|
|
|
8.90
|
|
|
|
|
|
60,816
|
|
|
|
|
|
541,260
|
|
|
|
|
|
(41,661
)
|
|
|
|
|
|
|
|
Decrease of 20%
|
|
|
|
|
7.12
|
|
|
|
|
|
60,816
|
|
|
|
|
|
433,008
|
|
|
|
|
|
(149,913
)
|
|
|
|
|
|
|
|
Increase of 20%
|
|
|
|
|
10.68
|
|
|
|
|
|
60,816
|
|
|
|
|
|
649,512
|
|
|
|
|
|
66,591
|
|
|
Occasionally, an acquirer will make a bargain purchase, which is a business combination in which the consideration amount is less than the aggregate of the assets acquired and the liabilities assumed. Before recognizing a gain on a bargain purchase, the acquirer shall reassess whether it has correctly identified all of the assets acquired and all of the liabilities assumed and shall recognize any additional assets or liabilities that are identified in that review. If that shortfall remains, the acquirer shall recognize the resulting gain in earnings on the acquisition date. The gain shall be attributed to the acquirer.
4.
Unaudited Pro Forma Condensed Combined Statement of Financial Position Adjustments as of September 30, 2017
A.
Adjustments and reclassifications from U.S. GAAP to IFRS
Gener8’s historical audited and unaudited financial statements were prepared in accordance with U.S. GAAP and presented in thousands of U.S. dollars. For purpose of preparing the unaudited pro forma condensed combined financial information, Gener8’s historical audited financial statements prepared under U.S. GAAP were reconciled to IFRS, as applicable, based on preliminary IFRS analysis. No material adjustments were identified as a result of this exercise.
This reconciliation from U.S. GAAP to IFRS has not been audited. Furthermore, this is not intended to be a complete reconciliation from U.S. GAAP to IFRS as certain differences are adjusted for as part of the fair value adjustments included in the preliminary pro forma purchase price allocation.
B.
Pro Forma Adjustments
(a) Vessels and Vessels under construction — fair value adjustment:
(i)
Vessels and drydock
. As of September 30, 2017, the estimated fair value and the carrying value of the Gener8 vessels was $1,695.7 million and $2,334.2 million, respectively, giving rise to a preliminary purchase price allocation adjustment reducing the carrying value by $638.5 million. The estimated fair value is based on management’s estimates after considering market values obtained from independent ship brokers, which are inherently uncertain, and based on charter free vessels. In addition, vessel values are highly volatile, as such, these estimates may not be indicative of the current and future basic market value of the vessels or prices that could be achieved if the vessels were sold.
(ii)
Vessels under construction.
As of September 30, 2017, the estimated fair value and the carrying value of the Gener8 vessels under construction was $78 million and $62.5 million, respectively, which, when taking into account a remaining yard payment of $29.5 million, giving rise to a preliminary purchase price allocation adjustment reducing the carrying value by $14.0 million. The estimated fair value is based on management’s estimates after considering market values obtained from independent ship brokers, which are inherently uncertain, and based on charter free vessels. In addition, vessel values are highly volatile, as such, these estimates may not be indicative of the current and future basic market value of the vessels or prices that could be achieved if the vessels were sold.
(b)
Vessels — Sale of six VLCC vessels to International Seaways
. Subject to the consummation of the Merger, Euronav and International Seaways have entered into a binding letter of
intent, pursuant to which Euronav agreed to sell and International Seaways agrees to purchase all of the issued and outstanding shares of Gener8 Maritime Subsidiary VII, Inc. (a wholly owned subsidiary of Gener8), net of assumed debt, for a net purchase price of $110.5 million. The sale is contingent on certain conditions, including, the Closing of the Merger, International Seaways’ receipt of financing necessary to consummate the acquisition, amendment of International Seaways’ credit facility as required to consummate the transaction, completion of International Seaways’ due diligence to its reasonable satisfaction, execution of a definitive stock purchase agreement between the parties and receipt of all required third-party consents, third-party approvals and regulatory approvals. Gener8 Maritime Subsidiary VII, Inc. owns six VLCC vessels which have an aggregate fair value of $433.3 million and debt for a total value of $322.8. As result of this transaction, the carrying value of the Vessels have been reduced by $433.3 million, the cash and cash equivalent have been increased by $110.5 million and the bank loans have been reduced by $322.8 million.
(c)
Stock Options.
A total of 525,000 stock options with exercise price $4.69 are assumed to be exercised at the Closing Date of the Merger in exchange of an amount of $(0.793) million in cash which is the number of shares of Gener8 Common Stock subject to such stock option immediately prior to the Closing Date, and, the excess, if any, of the Transaction Value per Share over the exercise price applicable to such shares of Gener8 Common Stock subject to such stock option.
(d)
Equity.
the following adjustments have been made to equity
|
|
|
|
|
|
|
|
Share
capital
|
|
|
Share
premium
|
|
|
Retained
earnings
|
|
|
Shareholders’
Equity
|
|
|
|
|
|
|
Share consideration to Gener8
|
|
|
|
|
66,101
|
|
|
|
|
|
475,159
|
|
|
|
|
|
|
|
|
|
|
|
541,260
(i)
|
|
|
|
|
|
|
|
Elimination of Gener8 historic equity
balance
|
|
|
|
|
(830
)
|
|
|
|
|
|
(1,518,969
)
|
|
|
|
|
|
207,061
|
|
|
|
|
|
(1,312,738
)
|
|
|
|
|
|
|
|
Estimated Euronav transaction costs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(10,000
)
|
|
|
|
|
|
(10,000
)
|
|
|
|
|
|
|
|
Bargain purchase gain arising from the
Merger
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41,661
|
|
|
|
|
|
41,661
|
|
|
|
|
|
|
|
|
|
|
|
|
65,271
|
|
|
|
|
|
(1,043,810
)
|
|
|
|
|
|
238,722
|
|
|
|
|
|
(739,817
)
|
|
|
|
|
(i)
Represents the ordinary shares of Euronav issued to Gener8 shareholders and RSU holders as consideration for the Merger. This amount is based on the issuance of 60.8 million common shares, par value $1.087 per share, at a price of $8.90 per share, which is the closing price on the NYSE on January 19, 2018 (the latest practicable date used for preparation of the pro forma condensed combined financial information).
(e)
Long-term debt.
Gener8’s long-term debt consists of secured borrowings, the Senior Notes and unamortized discount and debt financing costs (which have been recorded as a contra-liability).
(i)
Secured borrowings
. The preliminary purchase price allocation estimates the fair value of Gener8’s secured borrowings, all of which will be assumed as part of the Merger. Fair value was measured using the income approach, which takes into account the future cash flows that a market participant would expect to receive from holding the liability as an asset. The carrying amount of the variable rate borrowings under the secured debt facilities as of September 30, 2017 approximates the fair value estimated based on current market rates and Gener8’s credit spreads. Gener8’s credit spread is estimated as the spread over LIBOR which varies from 1.5% to 3.75% (depending on the facility) which is Euronav’s management best estimate. Accordingly, no fair value adjustment has yet been made.
(ii)
Senior Notes
. As part of the Merger Agreement and the Letter agreement between Gener8 and certain affiliates of BlueMountain Capital Management LLC, the Senior Note with a carrying value of $194.4 million (as of December 31, 2017) will be prepaid
at or near the Closing Date for an estimated amount of $207.0 million (including the 1% prepayment). In determining the fair value of the Senior Notes, the income approach was applied and the Senior Notes expected redemption amount at the Closing Date of the Merger was discounted to September 30, 2017. The Gener8’s credit spread is estimated at 13.84% which is Euronav’s management best estimate. The repayment of the Senior Notes will be financed in full by Euronav under its existing liquidity (cash at hands and credit facilities). As such, the pro forma adjustment is limited to the decrease of the carrying value of the Senior Notes by $1.3 million.
(iii)
Unamortized discount and debt financing costs
. Given the determination of fair value of Gener8’s secured debt and senior notes above, all unamortized discount and debt financing costs of $52.4 million were eliminated as part of the fair value measurement. Additionally, we expect to pay an aggregate of $8.3 million in debt financing costs to obtain various consents from Gener8’s lenders. These amounts have been reflected as debt financing costs on a pro-forma basis.
(f) Trade payables and other payables — estimated transaction costs.
(i)
A total of $10.0 million has been estimated as Euronav’s transaction costs to completing the Merger. The actual transaction costs incurred could differ materially from this estimate. These costs mainly consist of advisory and other professional fees and have been recorded to accrued expenses and retained earnings.
(ii)
A total of $33.7 million has been estimated as Gener8’s transaction costs to completing the Merger. The actual transaction costs incurred could differ materially from this estimate. These costs include an estimate of $22.1 million of advisory and other professional fees and $11.6 million of costs related to executive termination costs. These amounts have been recorded as part of the purchase price allocation.
5.
Unaudited Pro Forma Condensed Combined Statements of Profit or Loss Adjustments for the nine months Ended September 30, 2017 and the Year Ended December 31, 2016
A.
Adjustments from U.S. GAAP to IFRS
Gener8’s historical audited financial statements were prepared in accordance with U.S. GAAP and presented in thousands of U.S dollars. For purpose of preparing the unaudited pro forma condensed combined financial information, Gener8’s historical audited financial statements prepared under U.S. GAAP were reconciled to IFRS, as applicable, based on preliminary IFRS analysis. No material adjustments were identified as a result of this exercise.
This reconciliation from U.S. GAAP to IFRS has not been audited. Furthermore, this is not intended to be a complete reconciliation from U.S. GAAP to IFRS as certain differences are adjusted for as part of the fair value adjustments included in the preliminary pro forma purchase price allocation.
B.
Pro Forma Adjustments
(a)
Revenue
. The impact of the intended sale of Gener8 Maritime VII, which includes six vessels, at Closing has been included as a pro forma adjustment resulting in an adjustment of the total sales generated from these vessels for the year ended December 31, 2016 and the nine months ending September 30, 2017 by $48.8 million and $60.5 million respectively.
(b)
Voyage expenses and commissions
. The impact of the intended sale of Gener8 Maritime VII, which includes six vessels, at Closing Date has been included as a pro forma adjustment resulting in an adjustment of these expenses for the year ended December 31, 2016 and the nine months ending September 30, 2017 by $ 0.02 million and $ 0.6 million respectively.
(c)
Vessel operating expenses.
The impact of the intended sale of Gener8 Maritime VII, which includes six vessels, at Closing has been included as a pro forma adjustment resulting in an adjustment of these expenses for the year ended December 31, 2016 and the nine months ending September 30, 2017 by $12.4 million and $10.8 million respectively.
(d)
Depreciation
.
(i)
Depreciation expense for the year ended December 31, 2016 and the nine months ending September 30, 2017 have been increased by $18.5 million and $16.4 million respectively as a consequence of the fair value adjustment to the carrying balance of these vessels as part of the preliminary purchase price allocation. For the Pro forma depreciation expense, Euronav’s management has applied its accounting policy for the depreciation of vessels and drydock whereby (i) depreciation is calculated on a straight-line basis over the anticipated useful life of the vessel from date of delivery to zero and (ii) for an acquired or newly built vessel, a notional drydock component is allocated from the vessel’s cost and depreciated on a straight-line basis to the next estimated drydock.
(ii)
The impact of the intended sale of Gener8 Maritime VII, which includes six vessels, at Closing has been included as a pro forma adjustment. The depreciation expense for the year ended December 31, 2016 and the nine months ending September 30, 2017 have therefore been reduced by $18.5 million and $17.1 million respectively.
(e)
Finance expenses.
(i)
Deferred financing fee amortization — Unamortized deferred charges relating to Gener8’s secured debt were eliminated and reflected in the fair value assessment of the debt. Gener8 recognized $11.3 million and $11.9 million as amortization expense in connection with these deferred charges during the year ended December 31, 2016 and for the nine months ending September 30, 2017 respectively and accordingly, these amounts are included as a reduction to finance expense on a pro forma basis.
(ii)
New refinancing fees amortization — The amortization of the new refinancing fees have been reflected in the finance expenses for the year ended December 31, 2016 and the nine months ending September 30, 2017 for $1.8 million and $1.5 million respectively. These refinancing fees are related to the secured debts and Senior Notes. The total amount of refinancing fee is $8.3 million.
(iii)
Senior Notes: The finance expenses relating to the senior notes for the year ended December 31, 2016 and the nine months ending September 30, 2017 have been adjusted for $11.2 million and $9.8 million, respectively, to reflect the elimination of the finance expense for the Senior Notes payable by Gener8 under the BlueMountain Agreement (fixed rate 11%) and the new finance expense payable under the new credit facility (3.59%, which is Euronav average cost of debt).
(iv)
The impact of the intended sale of Gener8 Maritime VII, which includes six vessels, at Closing has been included as a pro forma adjustment. The related finance expenses for the assumed debt for the year ended December 31, 2016 and the nine months ending September 30, 2017 have been reduced by $8.2 million and $6.6 million, respectively.
6.
Earnings per share
The unaudited pro forma condensed combined basic and diluted earnings per share calculations are based on the consolidated basic and diluted weighted average shares of the Combined Company. The pro forma basic and diluted weighted average shares outstanding are a combination of historic Euronav ordinary shares and the shares issued as part of the combination to holders of Gener8 common shares and restricted stock units at the Exchange Ratio of 0.7272 of a Euronav ordinary share per Gener8 common share and RSU.
The weighted average numbers of common shares outstanding were calculated as follows for the year ended December 31, 2016 and the nine months ended September 30, 2017:
|
|
|
|
For the year
ended
December 31,
2016
|
|
|
For the nine
months ended
September 30,
2017
|
|
|
Weighted average number of common shares – historical
|
|
|
|
|
158,262,268
|
|
|
|
|
|
158,166,534
|
|
|
|
Pro forma number of common shares issued to Gener8 Shareholders
|
|
|
|
|
60,552,072
|
|
|
|
|
|
60,552,072
|
|
|
|
Pro forma number of common shares issued to Gener8 RSU holders
|
|
|
|
|
263,692
|
|
|
|
|
|
263,692
|
|
|
|
Pro forma weighted average number of common shares – basic
|
|
|
|
|
219,078,032
|
|
|
|
|
|
218,982,298
|
|
|
|
Effect of dilutive securities:
|
|
|
|
|
Share-based payment arrangements
|
|
|
|
|
166,789
|
|
|
|
|
|
129,187
|
|
|
|
Pro forma weighted average number of common shares – diluted
|
|
|
|
|
219,244,821
|
|
|
|
|
|
219,111,485
|
|
|
|
|
INFORMATION ABOUT EURONAV
Euronav
Euronav NV was incorporated under the laws of Belgium on June 26, 2003 for an indefinite term and grew out of the combination of certain tanker businesses carried out by three companies that had a strong presence in the shipping industry: Compagnie Maritime Belge NV, or CMB, formed in 1895, Compagnie Nationale de Navigation SA, or CNN, formed in 1938, and Ceres Hellenic Shipping Enterprises Ltd., or Ceres Hellenic, formed in 1950. Euronav’s predecessor started doing business under the name “Euronav” in 1989. Euronav’s Company has the legal form of a public limited liability company (naamloze vennootschap/société anonyme).
Euronav’s principal shareholder is Marc Saverys, individually or through Saverco NV, or Saverco, an entity controlled by him. The Saverys family has had a continuous presence in the shipping industry since the early nineteenth century. The Saverys family owned a shipyard that was founded in 1829, owned and operated various shipowning companies since the 1960s, and acquired CMB in 1991.
Euronav’s ordinary shares have traded on Euronext Brussels since December 2004. In January 2015, Euronav completed its underwritten initial public offering in the United States of 18,699,000 ordinary shares at $12.25 per share, and Euronav’s ordinary shares commenced trading on the New York Stock Exchange, or NYSE. In March 2015, Euronav completed its offer to exchange unregistered ordinary shares that were previously issued in Belgium (other than ordinary shares owned by Euronav’s affiliates) for ordinary shares that were registered under the U.S. Securities Act or the Exchange Act, in which an aggregate of 42,919,647 ordinary shares were validly tendered and exchanged. Euronav’s ordinary shares currently trade on the NYSE and Euronext under the symbol “EURN.”
Euronav is a fully-integrated provider of international maritime shipping and offshore services engaged primarily in the transportation and storage of crude oil. As of January 19, 2018, Euronav owned or operated a modern fleet of 53 vessels (including four chartered-in vessels and four newbuildings expected to be delivered in 2018) with an aggregate carrying capacity of approximately 13.4 million deadweight tons, or dwt, consisting of 28 very large crude carriers, or VLCCs, 1 V-plus, 22 Suezmax vessels (including four under construction), and two floating, storage and offloading vessels, or FSOs (in which Euronav holds a 50% ownership interest). The average age of Euronav’s fleet as of January 19, 2018 was approximately 8.8 years, as compared to an industry average age as of January 19, 2018 of approximately 9.4 years for the VLCC fleet and 9.6 years for the Suezmax fleet.
Additional information concerning Euronav is included in reports filed or furnished to the SEC by Euronav under the Exchange Act that are incorporated by reference into this proxy statement/prospectus. For additional information, please see the sections entitled “Where You Can Find More Information” and “Information Incorporated by Reference” beginning on page
151
of this proxy statement/prospectus.
INFORMATION ABOUT GENER8
Gener8 Maritime, Inc. is a leading U.S.-based provider of international seaborne crude oil transportation services, resulting from a transformative merger between General Maritime Corporation, a well-known tanker owner, and Navig8 Crude Tankers Inc., a company sponsored by the Navig8 Group, an independent vessel pool manager. General Maritime Corporation was founded in 1997 by its Chairman and Chief Executive Officer, Peter Georgiopoulos, and has been an active owner, operator and consolidator in the crude tanker sector. As of January 19, 2018, Gener8 owned a fleet of 30 tankers on the water, consisting of 21 VLCCs, six Suezmax vessels, one Aframax vessel and two Panamax vessels, with an aggregate carrying capacity of approximately 7.5 million dwt. The weighted average age of Gener8’s fleet as of January 19, 2018 was approximately 4.2 years.
Gener8’s ordinary shares currently trade on the NYSE under the symbol “GNRT.”
Recent Developments
Gener8 Lender Consents
In connection with the consummation of the Merger, Gener8 is required to obtain (i) the consent of the required parties under its applicable credit agreements to (1) permit Euronav’s ownership of Gener8’s equity interests; (2) remove the requirement that each of Peter Georgiopoulos, Gary Brocklesby and Nicolas Busch remain a director of Gener8; (3) permit the Merger; (4) permit the payment in full of Gener8’s indebtedness to certain affiliates of BlueMountain Capital Management, LLC and (5) remove the requirement that Gener8’s shares remain listed on the New York Stock Exchange; and (ii) such other amendments, consents and waivers under its applicable credit agreements and related transaction documents in order to allow the Merger to be properly entered into and documented without causing a breach of any of the terms of such agreements (the consents described in this paragraph, collectively, the “Specified Approvals”). The parties expect to obtain the Specified Approvals prior to or substantially contemporaneous with the consummation of the Merger.
BENEFICIAL OWNERSHIP OF GENER8 COMMON SHARES
The following table sets forth the beneficial ownership of Gener8 common shares, as of February 12, 2018, held by each person or entity that Gener8 knows beneficially owns 5% or more of Gener8’s common shares and each of Gener8’s executive officers and directors.
Beneficial ownership is determined in accordance with the Commission’s rules. All holders of Gener8 common shares, including the shareholders listed in the table below, are entitled to one vote for each common share held.
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Name
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Number of Shares
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Percentage Owned
(17)
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Certain funds managed by Oaktree
(1)
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13,062,118
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15.7
%
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BlueMountain Capital Management, LLC
(2)
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7,842,904
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9.4
%
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Certain funds managed by Avenue Capital Group
(3)
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7,212,814
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8.7
%
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Certain funds affiliated with Aurora
(4)
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6,264,594
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7.6
%
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BlackRock, Inc.
(5)
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7,968,633
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10.7
%
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Executive Officers and Directors:
(6)
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Peter C. Georgiopoulos
(7)
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1,365,103
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1.6
%
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Leonard J. Vrondissis
(8)
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83,495
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*
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John P. Tavlarios
(9)
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67,110
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*
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Milton H. Gonzales, Jr.
(10)
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41,944
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*
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Sean Bradley
(11)
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41,944
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*
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Ethan Auerbach
(2)(12)
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3,228,512
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2.9
%
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Nicolas Busch
(13)
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9,584
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*
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Dan Ilany
(14)
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—
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—
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Adam Pierce
(15)
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9,584
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*
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Roger Schmitz
(16)
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9,584
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*
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Steven D. Smith
(4)
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6,264,594
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7.6
%
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All Directors and named executives as a group
(11 persons)
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11,121,346
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13.4
%
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*
Less than 1% of the outstanding shares of common stock.
(1)
Based on the Schedule 13G/A filed by Oaktree Capital Management, L.P., dated as of February 9, 2018, the shares listed consist of 11,923,244 shares held directly by OCM Marine Holdings TP, L.P. (“OCM Marine”), 1,129,290 shares held directly by Opps Marine Holdings TP, L.P. (“Opps Marine”) and 9,584 shares held directly by OCM FIE, LLC (“OCM FIE”).
The Schedule 13G/A reports that OCM Marine, OCM FIE, OCM Marine GP CTB, Ltd., Oaktree Principal Fund V, L.P., Oaktree Principal Fund V GP, L.P., Oaktree Principal Fund V GP Ltd., Oaktree Fund GP I, L.P., Oaktree Capital I, L.P., OCM Holdings I, LLC, Oaktree Holdings, LLC, Oaktree Capital Management, L.P., Oaktree Holdings, Inc., Oaktree Capital Group, LLC and Oaktree Capital Group Holdings GP, LLC each have sole voting and dispositive power with respect to, and thus may be deemed to indirectly beneficially own, the shares held directly by OCM Marine.
The Schedule 13G/A reports that Opps Marine, OCM FIE, Oaktree Fund GP 2A Ltd., Oaktree Capital Management, L.P., Oaktree Holdings, Inc., Oaktree Capital Group, LLC and Oaktree Capital Group Holdings GP, LLC each has sole voting and dispositive power with respect to, and thus may be deemed to indirectly beneficially own, the shares held directly by Opps Marine.
The address of these beneficial owners is c/o Oaktree Capital Group Holdings GP, LLC, 333 South Grand Avenue, 28th Floor, Los Angeles, California 90071. Does not include 11,214 shares which may be issuable in settlement of restricted stock units granted to Adam Pierce on May 16, 2017.
(2)
Based on the Schedule 13D filed by BlueMountain Capital Management, LLC (“BMCM”), dated as of December 20, 2017, the shares listed consist of 3,069,447 shares beneficially owned by BMCM; 405,334 shares held directly by BlueMountain Kicking Horse Fund L.P. (“BMKH”); 1,179,786 shares held directly by BlueMountain Credit Opportunities Master Fund I L.P. (“BMCO”); 1,589,135 shares held directly by BlueMountain Montenvers Master Fund SCA SICAV-SIF (“BMM”); 58,045 shares held directly by BlueMountain Distressed Master Fund L.P. (“BMD”); 101,020 shares held directly by BlueMountain Summit Trading L.P. (“BMST”); 332,991 shares held directly by BlueMountain Guadalupe Peak Fund L.P. (“BMGP”); 928,882 shares held directly by BlueMountain Timberline Ltd (“BMT”); and 178,264 shares held directly by BlueMountain Strategic Credit Master Fund L.P. (“BMSC”) (collectively, the “BlueMountain Funds”). BlueMountain Capital Management, LLC is the investment manager of each BlueMountain Fund, and has shared voting and dispositive power with respect to the 7,842,904 shares directly owned by the BlueMountain Funds. BlueMountain Kicking Horse Fund GP, LLC (BMKH GP”) has shared voting and dispositive power with respect to the 405,334 shares directly owned by BlueMountain Kicking Horse Fund L.P. Blue Mountain Credit Opportunities GP I, LLC (“BMCO GP”) has shared voting and dispositive power with respect to the 1,179,786 shares held directly by BMCO. BlueMountain Montenvers GP s.à.r.l. (“BMM GP”) has shared voting and dispositive power with respect to the 1,589,135 shares held directly by BMM. BlueMountain Distressed GP, LLC (“BMD GP”) has shared voting and dispositive power with respect to the 58,045 shares held directly by BMD. BlueMountain Summit Opportunities GP II (“BMST GP”) has shared voting and dispositive Power with respect to the 101,020 shares held directly by BMST. BlueMountain Long/Short Credit GP, LLC (“BMGP GP”) has shared voting and dispositive power with respect to the 332,991 shares held directly by BMGP. BlueMountain Strategic Credit GP, LLC (“BMSC GP”) has shared voting and dispositive power with respect to the 178,264 shares held directly by BMSC. BlueMountain GP Holdings, LLC is the sole owner of each of BMKH GP, BMCO GP, BMD GP, BMST GP, BMGP GP and BMSC and has shared voting and dispositive power with respect to 5,324,887 shares directly owned by the BlueMountain Funds.
The address of these beneficial owners is c/o BlueMountain Capital Management, LLC, 280 Park Avenue, 12th Floor, New York, NY 10017.
(3)
Based on the Schedule 13D filed by Avenue Capital Management II, L.P., dated as of January 3, 2018, the shares listed consist of shares directly held by (a) Avenue Investments, L.P., Avenue COPPERS Opportunities Fund, L.P., Avenue US/Europe Distressed Segregated Portfolio, a segregated portfolio of Avenue EnTrust Customized Portfolio SPC, Avenue International Master, LP, Managed Accounts Master Fund Services — MAP 10, Avenue PPF Opportunities Fund, L.P., and Avenue Special Situations Fund VI (Master), L.P. (collectively, the “U.S. Avenue Funds”); and (b) Avenue Europe Opportunities Master Fund, L.P., Avenue-SLP European Opportunities Fund, L.P., Avenue Europe Special Situations Fund II (Euro), L.P., and Avenue Europe Special Situations Fund II (U.S.), (collectively, the “Europe Avenue Funds,” and together with the U.S. Avenue Funds, the “Avenue Funds”).
Avenue Capital Management II, L.P. (“Avenue Capital Management”) is an investment adviser to each of the U.S. Avenue Funds, and the Schedule 13D reports that Avenue Capital Management has shared voting and dispositive power as to the 4,810,325 shares held by such entities, representing 5.8% of Gener8’s outstanding common stock. Avenue Europe International Management, L.P. (“Avenue Europe International”) is an investment adviser to each of the Europe Avenue Funds, which collectively own less than 5% of Gener8’s outstanding common stock. Avenue Capital Group is comprised of four affiliated SEC registered investment advisers, including Avenue Capital Management and Avenue Europe International.
Avenue Capital Management II GenPar, LLC (“ACM GenPar”) is the general partner of Avenue Capital Management. Marc Lasry is a managing member of ACM GenPar. Avenue Europe International Management GenPar, LLC (“Avenue Europe GenPar”) is the general partner of Avenue Europe International. Mr. Lasry is a managing member of Avenue Europe GenPar. The Schedule 13D reports that Mr. Lasry is an indirect beneficial owner of the 7,212,814 shares directly held by the Avenue Funds by reason of his ability to direct the vote and/or disposition of such shares, and that his pecuniary interest in such shares is a fractional interest in such amount.
(4)
Based on the Schedule 13G filed by Gerald L. Parsky, dated as of December 31, 2017, the shares listed consist of 4,054,054 shares held directly by ARF II Maritime Holdings LLC (“ARF II MH”); 48,378 shares held directly by ARF II Maritime Equity Partners LP (“ARF II MEP”); and 2,162,162 shares held directly by ARF II Maritime Equity Co-Investors LLC (“ARF II ME CO”).
The Schedule 13G reports that (a) Aurora Resurgence Fund II L.P. and Aurora Resurgence Capital Partners II LLC each has sole voting and dispositive power with respect to, and thus may be deemed to beneficially own, the shares directly held by ARF II MH, (b) Aurora Resurgence Advisors II LLC has sole voting and dispositive power with respect to, and thus may be deemed to beneficially own, the shares directly held by ARF II MEP, and (c) Aurora Resurgence Advisors II LLC has sole voting and dispositive power with respect to, and thus may be deemed to beneficially own, the shares directly held by ARF II ME CO.
The Schedule 13G reports that Gerald L. Parsky and Steven D. Smith, who are the managing members of each of Aurora Resurgence Advisors II LLC and Aurora Resurgence Capital Partners II LLC have shared voting and dispositive power with respect to the shares directly held by ARF II MH, ARF II MEP, and ARF II ME CO, and are deemed to share beneficial ownership of these shares. The Schedule 13G reports that each of Gerald L. Parsky and Steven D. Smith disclaim beneficial ownership of any shares held by ARF II MH, ARF II MEP and ARF II ME CO.
The address of these beneficial owners is c/o Aurora Capital Group, 10877 Wilshire Blvd., Suite 2100, Los Angeles, CA 90024.
(5)
Based on a Schedule 13G filed by BlackRock, dated as of February 1, 2018, the shares listed consist of 8,884, 887 shares held directly by BlackRock and its subsidiaries, of which such holders have sole voting power as to 8,803,940 shares and sole dispositive power as to 8,884,887 shares.
(6)
Unless otherwise indicated the business address of each beneficial owner identified is c/o Gener8 Maritime, Inc., 299 Park Avenue, Second Floor, New York, New York 10171.
(7)
Does not include 216,276 shares which may be issuable in settlement of restricted stock units granted on June 24, 2015. Includes 500,000 stock options granted on January 5, 2017.
(8)
Does not include 41,591 shares which may be issuable in settlement of restricted stock units granted on June 24, 2015. Includes 25,000 stock options granted on January 5, 2017.
(9)
Does not include 26,619 shares which may be issuable in settlement of restricted stock units granted on June 24, 2015.
(10)
Does not include 16,636 shares which may be issuable in settlement of restricted stock units granted on June 24, 2015.
(11)
Does not include 16,636 shares which may be issuable in settlement of restricted stock units granted on June 24, 2015.
(12)
Does not include 11,214 shares which may be issuable in settlement of restricted stock units granted to Mr. Auerbach on May 16, 2017.
Ethan Auerbach is a Retired Partner and former Portfolio Manager at BlueMountain Capital Management, LLC. See note (2). Mr. Auerbach disclaims beneficial ownership of Gener8 common stock held by BlueMountain Capital Management, LLC and its investment entities.
The shares listed consist of 3,069,447 shares held directly by BMCM; 58,045 shares held directly by BlueMountain Distressed Master Fund L.P.; and 101,020 shares held directly by BlueMountain Summit Trading L.P. Mr. Auerbach may be deemed to have an indirect pecuniary interest in such shares through his proportionate ownership of certain limited partnership interests in such entities indirectly held by Mr. Auerbach.
(13)
Does not include 11,214 shares which may be issuable in settlement of restricted stock units granted to Mr. Busch on May 16, 2017.
Navig8 Limited indirectly holds 3,569,131 of Gener8 common shares. Nicolas Busch is a director and minority beneficial owner of Navig8 Limited. The address of Nicolas Busch is c/o Navig8 Europe Limited, 2nd Floor, Kinnaird House, 1 Pall Mall East, London SW1Y 5AU, United Kingdom.
(14)
Dan Ilany is a Senior Vice President at Avenue Capital Group. See note (3). Mr. Ilany disclaims beneficial ownership of Gener8 common stock held by Avenue Capital Group, its funds and its managed accounts. The address of Dan Ilany is c/o Avenue Capital Group, 399 Park Avenue, 6th Floor, New York, NY 10022.
(15)
Does not include 11,214 shares which may be issuable in settlement of restricted stock units granted to Mr. Pierce on May 16, 2017.
Adam Pierce a Managing Director of Oaktree Capital Management, L.P. See note (1). Mr. Pierce disclaims beneficial ownership of Gener8 common stock held by Oaktree Capital Management, L.P., its related investment entities and any funds managed by it. The address of Adam Pierce is c/o Oaktree Capital Management, L.P., 333 S. Grand Avenue, 28th Floor, Los Angeles, California 90071.
(16)
Does not include 11,214 shares which may be issuable in settlement of restricted stock units granted to Mr. Schmitz on May 16, 2017. The address of Mr. Schmitz is c/o Smith Cove Capital Management, 200 Greenwich Ave., 3rd Floor, Greenwich, CT 06830.
(17)
Based on 83,267,426 shares outstanding as of November 3, 2017 plus the number of shares of common stock underlying equity securities of such beneficial owner which are exercisable or which become exercisable within 60 days of such date.
COMPARISON OF RIGHTS OF EURONAV NV SHAREHOLDERS
AND HOLDERS OF GENER8 COMMON SHARES
As a result of the Merger, holders of Gener8 common shares will receive Euronav ordinary shares in exchange for their Gener8 common shares and will thereafter have the rights of Euronav shareholders. Gener8 is incorporated under the laws of the Marshall Islands and is subject to the laws of the Marshall Islands, including the BCA. Euronav is incorporated under the laws of Belgium and is subject to the Belgian Companies Code. The rights of Gener8 shareholders are governed by the Marshall Islands law and the respective articles of incorporation and bylaws of Gener8 and Euronav, as such have been amended. The rights of Euronav shareholders are governed by Belgian law and the articles of association of Euronav, as such have been amended. The rights of holders of Gener8 common shares are also governed by the shareholders’ agreement of Gener8.
The following is a summary comparison of material differences between the rights of holders of Gener8 common shares and the rights of Euronav shareholders. This summary is qualified in its entirety by reference to the full text of Euronav’s articles of incorporation and bylaws and Gener8’s articles of incorporation and bylaws, each as amended and currently in effect and as will be in effect at the completion of the Merger, and the full text of the Belgian Companies Code and the BCA, respectively.
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Gener8 Maritime, Inc.
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Euronav NV
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Authorized Capital Stock
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Under the amended and restated articles of incorporation of Gener8 (the “Gener8 Charter”), Gener8 authorized capital stock consists of 225 million shares of common stock, par value $0.01 per share and 25 million shares of preferred stock, par value $0.01 per share.
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Euronav does not have Authorized Capital Stock However, pursuant to the Belgian Companies Code and subject to the conditions set forth therein and in article 5 of the articles of association of Euronav, the Board of Directors of Euronav is allowed to issue shares through the use of authorized capital in one or several times by a total maximum amount of one hundred fifty million (150,000,000) U.S. dollars. Within the limits set forth in the Belgian Companies Code and the articles of association of Euronav, the Board of Directors of Euronav may decide to increase the share capital. In accordance with the provisions of the Belgian Companies Code, the Board of Directors of Euronav has the authority to limit or abolish the preferential right of the shareholders in the interest of the company; this limitation or abolition can also be decided upon in favor of one or more particular persons other than members of the personnel of Euronav or one of its subsidiaries. The Board of Directors of Euronav is also competent to make use of the authorization to increase the company’s share capital after the date on which the company has been notified by the Financial Services and Markets Authority that a public purchase offer has been launched on its securities, provided that the decision to increase the capital was taken by the Board of Directors of Euronav before the thirteenth of May 2018. In effectuating the Merger, the Board of Directors of Euronav will use its authorization under the authorized capital for the Merger Consideration up to a total amount of $66,101,383.68.
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Gener8 Maritime, Inc.
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Euronav NV
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Shareholders Agreement
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None
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The Board of Directors of Euronav is not aware of any agreements among major shareholders or any other shareholders that may result in restrictions on the transfer of securities or the exercise of voting rights. The major shareholders have not entered into a shareholders’ agreement or a voting agreement, nor do they act in concert.
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Directors
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The Gener8 Charter prohibits cumulative voting in the election of directors. The Gener8 amended and restated bylaws (the “Gener8 Bylaws”) require parties other than the board of directors to give advance written notice of nominations for the election of directors. The Gener8 Charter provides that Gener8 directors may be removed only for cause and only upon the affirmative vote of at least 80% of the outstanding shares of Gener8 capital stock entitled to vote for those directors.
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Euronav is managed by a board of directors of at least five and maximum twelve directors, whether shareholders or not, appointed for a term of maximum four years by the general shareholders’ meeting and at any time removable by it.
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Quorum and Action by the Board of Directors
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The Gener8 Bylaws provide that a majority of directors then in office (and specifically excluding any vacancies) and holding a majority of the votes of all directors (or such greater number required by applicable law) constitutes a quorum for the transaction of business and that when a quorum is present, the acts of a majority of the directors present at any board meeting are considered the valid acts of the board of directors, except as may be otherwise specified by the BCA. Unless otherwise restricted by the Gener8 Charter, any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board.
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The Board of Directors of Euronav is the ultimate decision-making body with the exception of the matters reserved for the general shareholders’ meeting as provided by the Belgian Companies Code or by the articles of association of Euronav. The Board of Directors of Euronav is responsible for the general strategy and values determined on the basis of corporate, social, economic and ecological responsibility, gender diversity and diversity in general.
Except for cases or circumstances beyond one’s control, the Board of Directors of Euronav can only deliberate and decide validly when at least half of its members are present or represented. However, this requisite has not to be met in the cases where the legal provisions concerning conflicting interests of a financial nature are applicable.
All decisions of the Board of Directors of Euronav are taken by absolute majority of the votes. In case of equality of votes he who chairs the meeting of the board has a casting vote.
The Euronav Board of Directors, in accordance with Article 524bis of the Belgian Companies Code, delegates day to day management responsibilities to the Executive Committee, whose members are appointed by the Board of Directors. The Executive Committee is chaired by Euronav’s Chief Executive Officer, who reports to the Board of Directors on behalf of the Executive Committee. The Executive
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Gener8 Maritime, Inc.
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Euronav NV
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Committee is empowered to take responsibility for the daily operations of the Euronav and the implementation of the policy and strategy articulated by the Board of Directors.
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Director and Officer Limitation on Liability and Indemnification
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Limitation on Liability.
Under Marshall Islands law, directors and officers shall discharge their duties in good faith and with that degree of diligence, care and skill which ordinarily prudent people would exercise under similar circumstances in like positions. In discharging their duties, directors and officers may rely upon financial statements of the corporation represented to them to be correct by the president or the officer having charge of its books or accounts or by independent accountants.
The BCA provides that the articles of incorporation of a Marshall Islands company may include a provision for the elimination or limitation of liability of a director to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director: (i) for any breach of the director’s duty of loyalty to the corporation or its shareholders; (ii) for acts or omissions not undertaken in good faith or which involve intentional misconduct or a knowing violation of law; or (iii) for any transaction from which the director derived an improper personal benefit.
Gener8 directors will not be personally liable to Gener8 or its shareholders for monetary damages for any breach of duty in such capacity, except that the liability of a director will not be eliminated or limited: (i) for any breach of the director’s duty of loyalty to the corporation or its shareholders; (ii) for acts or omissions not undertaken in good faith or which involve intentional misconduct or a knowing violation of law; or (iii) for any transaction from which the director derived an improper personal benefit.
The Gener8 Charter provides that if the BCA is amended to authorize the further elimination or limitation of the liability of directors for actions taken or omitted to be taken then the liability of a director of Gener8, in addition to the limitation on personal liability provided for in the Gener8 Charter, shall be limited to the fullest extent permitted by the amended BCA in respect of actions or omissions to act which occur during any period to which the amended BCA’s amended provisions pertain.
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The Belgian Companies Code does not contain a limitation on liability of directors and officers. Euronav has entered into Indemnification Agreements for its directors and officers, subject to the limitations imposed by Belgian Law and to the fullest extent permitted by the law applicable to the specific agreements (i) from and against any costs, expenses or fees paid, suffered or incurred by the indemnitee in connection with any claim or proceeding, including proceedings under the U.S. Securities Act or the Exchange Act or any other U.S. federal law, state law, statute or regulation, that the indemnitee is, was, or may be threatened to be involved as a party, or otherwise, by reason of his or her capacity as director or officer of the Euronav and (ii) from and against the financial consequences of directors’ liability claims related to pollution.
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Gener8 Maritime, Inc.
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Euronav NV
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Indemnification.
Under the BCA, for actions not by or in the right of a Marshall Islands corporation, a corporation may indemnify any person who was or is a party to any threatened or pending action or proceeding by reason of the fact that such person is or was a director or officer of the corporation against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if such person acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that such conduct was unlawful.
In addition, under the BCA, in actions brought by or in right of a Marshall Islands corporation, any person who is or is threatened to be made party to any threatened or pending action or proceeding by reason of the fact that such person is or was a director or officer of the corporation can be indemnified for expenses (including attorney’s fees) actually and reasonably incurred in connection with the defense or settlement of the action if such person acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, provided that indemnification is not permitted with respect to any claims in which such person has been found liable for negligence or misconduct with respect to the corporation unless the appropriate court determines that despite the adjudication of liability such person is fairly and reasonably entitled to indemnity.
Gener8 will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative (other than an action by or in the right of us) by reason of the fact that such person is or was a director or officer of Gener8’s, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to Gener8’s best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that such person’s conduct was unlawful.
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Gener8 Maritime, Inc.
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Euronav NV
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Gener8 will also indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of Gener8 to procure judgment in its favor by reason of the fact that such person is or was a director or officer of Gener8, or is or was serving at the request of Gener8 as a director or officer of (or in a similar capacity in respect of) another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorney’s fees) actually and reasonably incurred by such person or in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to Gener8’s best interests and except that no indemnification will be made in respect of any claim, issue or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of such person’s duty to Gener8 unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
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Shareholder Meetings
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The Gener8 Charter and Gener8 Bylaws provide that any action required or permitted to be taken by Gener8’s shareholders must be effected at an annual or special meeting of shareholders or by the unanimous written consent of Gener8’s shareholders. The Gener8 Charter and Gener8 Bylaws provide that, subject to certain exceptions, only the Gener8 board of directors may call special meetings of shareholders and the business transacted at the special meeting is limited to the purposes stated in the notice.
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The annual general shareholders’ meeting is held at the registered office of Euronav or at the location indicated in the notice convening the meeting. This meeting is held annually on the second Thursday of May at 11 a.m. (Central European Time). If this day is a legal holiday, the meeting is held on the preceding working day.
The Board of Directors of Euronav or the statutory auditor (or, as the case may be, the liquidators) can convene a special or extraordinary general shareholders’ meeting at any time if the interests of Euronav so require. Such general meetings must also be convened whenever requested by the shareholders who together represent a fifth of Euronav’s share capital within three weeks of their request, provided that the reason of convening a special or extraordinary general shareholders’ meeting is given.
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Quorum of Shareholder
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Under the Gener8 Bylaws, a quorum at annual or special meetings shall be constituted by at least a majority of the outstanding shares of capital entitled to vote, present in person or represented by proxy.
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In general, there is no quorum requirement for the general shareholders’ meeting and decisions are taken with a simple majority of the votes, except as provided by law on certain matters.
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Gener8 Maritime, Inc.
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Euronav NV
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Capital increases which are not decided by the Board of Directors of Euronav within the scope of the authorized capital, decisions with regard to the dissolution, merger, demerger and certain other reorganizations of Euronav, amendments to the articles of association (other than a change of the corporate purpose) and certain other decisions set out in the Belgian Companies Code require the presence or representation of at least 50 percent of the share capital of Euronav, and also the approval of at least 75 percent of the votes cast. If the quorum requirements are not satisfied during the first meeting, a second general shareholders’ meeting may be convened. This second general meeting can validly discuss and decide on the matter irrespective of the number of shares that are in attendance or represented. However, the special majority requirement remains applicable. The change of the corporate purpose of Euronav and the buyback of its own shares requires the approval of at least 80 per cent. of the votes cast at a general shareholders’ meeting that, in principle, can only validly make this decision if at least 50 percent of the share capital of Euronav and at least 50 percent of the profit-participating certificates, if any, are present or represented. If these quorum requirements are not satisfied during the first meeting, a second general meeting may be convened. The second general meeting can validly discuss and decide on any matter, irrespective of the number of shares that are in attendance or represented. However, the special majority requirement remains applicable.
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Voting Rights
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Each outstanding share of common stock entitles the holder to one vote on all matters submitted to a vote of shareholders, and will not be entitled to cumulate votes for the election of directors. Election of directors will be by plurality of votes cast, and, except as described below, all other matters will be by a majority of the votes cast. Except as required by law and by the terms of any series of preferred stock designated by the board of directors pursuant to the Gener8 Charter, Gener8 common shares have the exclusive right to vote for the election of directors and for all other purposes. Gener8 common shares vote together as a single class.
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All shareholders have the same voting rights. Each share carries one vote.
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Shareholder Proposals and Nominations
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The Gener8 Bylaws provide that shareholders seeking to nominate candidates for election as directors or to bring business before an annual
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Shareholders who, alone or jointly, hold at least 3 percent of Euronav’s share capital may add items to the agenda of shareholders’ meetings and file
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Gener8 Maritime, Inc.
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Euronav NV
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meeting of shareholders must provide timely notice of their proposal in writing to the corporate secretary. Generally, to be timely, a shareholder’s notice must be received at Gener8’s principal executive offices not less than 150 days nor more than 180 days before the first anniversary of the preceding year’s annual meeting of shareholders. The Gener8 Bylaws also specify requirements as to the form and content of a shareholder’s notice.
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resolution proposals in relation to items put or to be put on the agenda of such meetings. Requests thereto must be sent in writing and must be received by the Board of Directors of Euronav at least 22 days before the date of the general meeting.
This right does not apply to shareholders’ meetings convened following a first shareholders’ meeting which could not validly deliberate because the required attendance quorum was not reached.
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Shareholder Action Without a Meeting
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Under the Gener8 Bylaws, any action required to be permitted or to be taken at a meeting may be taken without a meeting if a consent in writing, setting forth the action is taken, is signed by all of the shareholders entitled to vote with respect to the subject matter thereof.
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The shareholders may take action by written consent of all shareholders.
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Amendments of Governing Instruments
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The Gener8 Charter requires the affirmative vote of the holders of not less than 80% of the shares entitled to vote in an election of directors to amend, alter, change or repeal the following provisions in the Gener8 Charter: (i) the classified board and director removal provisions; (ii) the requirement that action by written consent of the shareholders be taken by unanimous written consent; (iii) limitations on the power of Gener8’s shareholders to amend the Gener8 Bylaws or to call special meetings of shareholders; (iv) the ability to remove a director for cause; and (v) the limitation on business combinations between us and interested shareholders.
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A resolution to amend the provisions of the articles of association of Euronav must be passed in a general meeting of shareholders in which at least half of the issued share capital is represented and by at least three-quarters of the votes cast (or four-fifths of the votes cast in the event of an amendment to the provisions of the articles of association dealing with the corporate purpose). Should the required proportion of the capital not be represented in a meeting called for this purpose, a new meeting shall be convened, which meeting may pass the resolution to amend the provisions of the articles of association of Euronav irrespective of the proportion of the issued share capital represented, but with at least three-quarters of the votes cast (or four-fifths for amendments to the provisions of the articles of association dealing with the corporate purpose).
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Preemptive Rights
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Holders of Gener8 common shares do not have preemptive rights to subscribe to any of Gener8’s securities.
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The shareholders do not have preemptive rights. However, in the event of an increase of capital in cash through the issue of new shares or in the case of the issue of convertible bonds or warrants, the (existing) shareholders have a preferential subscription right with regard to new shares, convertible bonds or warrants, pro rata to their existing shareholding. This preferential subscription right is transferable during the period of subscription and within the limits of transferability of the securities to which they relate. The general shareholders’ meeting can resolve to limit or cancel the preferential subscription right. The same quorum and majority requirements apply to such a
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Gener8 Maritime, Inc.
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Euronav NV
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resolution as to a resolution for any amendment to the articles of association and is subject to special reporting circumstances.
The shareholders have authorized the Board of Directors to restrict or cancel the preferential subscription right in the context of the authorized capital.
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Derivative Actions
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Under the BCA, any of Gener8’s shareholders may bring an action in Gener8’s name to procure a judgment in its favor, also known as a derivative action, provided that the shareholder bringing the action is a holder of common shares both at the time the derivative action is commenced and at the time of the transaction to which the action relates.
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An
actio mandati
, a derivative suit instituted on behalf of a company by its shareholders against the company’s directors for breaches of the law, the articles of association or faults in their management are generally available to shareholders. The decision to bring a suit must be made by the vote at a shareholders’ meeting of a simple majority unless a company’s articles of association provide differently.
Minority shareholders are permitted to bring a suit against the company’s directors on behalf of the company provided that (i) such shareholders jointly hold at least 1 percent of the outstanding shares of the company or hold at least EUR 1,250,000.00 of the company’s capital on the date on which release from liability is granted to a director and (ii) the shareholders instituting the suit voted against the release from liability, abstained from voting or were not present at the relevant meeting at which a director’s release from liability was decided.
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Anti-Takeover Provisions
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Blank Check Preferred Shares.
Under the terms of the Gener8 Charter, the Gener8 board of directors has the authority, without any further vote or action by Gener8 shareholders, to authorize an issuance of up to 25 million shares of blank check preferred stock. The Gener8 board of directors may issue shares of preferred stock on terms calculated to discourage, delay or prevent a change of control of Gener8 or the removal of its management.
Classified Board of Directors.
The Gener8 Charter provides for the division of Gener8’s board of directors into three classes of directors, with each class as nearly equal in number as possible, serving staggered, three-year terms beginning upon the expiration of the initial term for each class. Approximately one-third of Gener8’s board of directors will be elected each year. This classified board provision could discourage a third-party from making a tender offer for Gener8 shares or attempting to obtain control of Gener8. It could also delay shareholders who do not agree with the policies of the Gener8 board of directors from
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The Board of Directors of Euronav is competent to make use of the authorization to increase the company’s share capital after the date on which the company has been notified by the Financial Services and Markets Authority that a public purchase offer has been launched on its securities, provided that the decision to increase the capital was taken by the Board of Directors of Euronav before the thirteenth of May 2018.
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Gener8 Maritime, Inc.
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Euronav NV
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removing a majority of Gener8 board of directors for up to two years.
Business Combinations.
Although the BCA does not contain specific provisions regarding “business combinations” between corporations organized under the laws of the Republic of the Marshall Islands and “interested shareholders,” the Gener8 Charter includes these provisions. The Gener8 Charter contains provisions which prohibit them from engaging in a business combination with an interested shareholder for a period of three years after the date of the transaction in which the person became an interested shareholder, unless: (i) prior to the date of the transaction that resulted in the shareholder becoming an interested shareholder, Gener8’s board approved the business combination or the transaction that resulted in the shareholder becoming an interested shareholder; (ii) upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of the voting stock of Gener8 outstanding at the time the transaction commenced, other than certain excluded shares; (iii) on or subsequent to the date of the transaction that resulted in the shareholder becoming an interested shareholder, the business combination is approved by the board and authorized at an annual or special meeting of shareholders by the affirmative vote of at least 66
2
∕
3
% of the outstanding voting stock that is not owned by the interested shareholder; (iv) the shareholder is Peter C. Georgiopoulos or an affiliate or associate thereof; or (v) the shareholder is the owner of 15% or more of the outstanding voting stock of Gener8 at the time of the consummation of this offering.For purposes of these provisions, a “business combination” includes mergers, consolidations, exchanges, asset sales, leases and other transactions resulting in a financial benefit to the interested shareholder and an “interested shareholder” is any person or entity that beneficially owns 15% or more of Gener8’s outstanding voting stock and any person or entity affiliated with or controlling or controlled by that person or entity.
Additionally, the provisions of the Gener8 Charter and the Gener8 Bylaws, which are summarized under the headings “Directors,” “Shareholder Meetings,” “Shareholder Proposals and Nominations,” and “Amendments of Governing Instruments” in this Comparison of Rights of Euronav NV Shareholders and Holders of Gener8 Common Shares section may have anti-takeover effects.
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REPUBLIC OF THE MARSHALL ISLANDS COMPANY CONSIDERATIONS
Comparison of the Republic of the Marshall Islands and Belgian corporate law
The following table provides a comparison between some statutory provisions of the BCA and the Belgian Companies Code.
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Marshall Islands
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Belgium
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Shareholder Meetings
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Held at a time and place as designated in the bylaws.
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An annual shareholders’ meeting will be held at such time and place as designated in the articles of association, or if not so designated, as determined in the notice for the meeting.
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Special meetings of the shareholders may be called by the Board of Directors or by such person or persons as may be authorized by the articles of incorporation or by the bylaws.
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Special or extraordinary meetings of shareholders may be called by the Board of Directors or the statutory auditor (or liquidators, if appropriate) or must be called when one or more shareholders holding at least one-fifth of the share capital so demands.
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May be held in or outside of the Marshall Islands.
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In general, meetings must be held in Belgium. Extraordinary shareholders’ meeting before a Belgian notary public must be held in Belgium.
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Notice:
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Notice:
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•
Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, unless it is an annual meeting, shall indicate that it is being issued by or at the direction of the person calling the meeting.
•
A copy of the notice of any meeting shall be given personally or sent by mail not less than 15 nor more than 60 days before the meeting.
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•
The invitations to the general meeting shall state the agenda and shall be sent at least fifteen (15) days beforehand to the holders of shares, convertible bonds and warrants, to the directors and to the statutory auditor(s), if any, by means of a registered postal letter or any other means of communication.
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Shareholders’ Voting Rights
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Any action required to be taken by a meeting of shareholders may be taken without a meeting if consent is in writing and is signed by all the shareholders entitled to vote.
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Unless otherwise provided for in the articles of association of a company, and except for decisions that need to be enacted by a Belgian notary public, shareholders may take action by written consent of all shareholders.
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Any person authorized to vote may authorize another person or persons to act for him by proxy.
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Unless otherwise provided in the articles of incorporation, a majority of shares entitled to vote constitutes a quorum. In no event shall a quorum consist of fewer than one third of the shares entitled to vote at a meeting.
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The articles of incorporation may provide for cumulative voting in the election of directors. Any two or more domestic corporations may merge into a single corporation if approved by the board and if authorized by a majority vote of the holders of outstanding shares at a shareholder meeting.
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Marshall Islands
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Belgium
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Any sale, lease, exchange or other disposition of all or substantially all the assets of a corporation, if not made in the corporation’s usual or regular course of business, once approved by the board, shall be authorized by the affirmative vote of two-thirds of the shares of those entitled to vote at a shareholder meeting.
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Any domestic corporation owning at least 90% of the outstanding shares of each class of another domestic corporation may merge such other corporation into itself without the authorization of the shareholders of any corporation.
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Any mortgage, pledge of or creation of a security interest in all or any part of the corporate property may be authorized without the vote or consent of the shareholders, unless otherwise provided for in the articles of incorporation.
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Directors
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The board of directors must consist of at least one member.
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The Board of Directors must consist of at least three members (except in the event that there are no more than two shareholders, in which case the Board of Directors may consist of two members).
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Number of board members can be changed by an amendment to the bylaws, by the shareholders, or by action of the board of directors under the specific provisions of a bylaw.
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Number of directors shall be fixed in a manner provided in the articles of association. If no number is specified therein, the number of directors is decided at a shareholders’ meeting in accordance with the provisions of the articles of association on this matter, if any. Any deviation from a stipulated minimum or maximum number of directors may only be made by amendment of the articles of association.
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If the board of directors is authorized to change the number of directors, it can only do so by a majority of the entire Board of Directors and so long as no decrease in the number shortens the term of any incumbent director.
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Dissenter’s Rights of Appraisal
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Under the BCA, Gener8 shareholders have the right to dissent from various corporate actions, including certain mergers or consolidations and the sale of all or substantially all of Gener8’s assets not made in the usual course of business, and receive payment of the fair value of their shares. Among other things, the right of a dissenting shareholder to receive payment of the fair value of his or her shares shall not be available if for the shares of any class or series of stock, which shares or depository receipts in respect thereof, at the record date fixed to determine the shareholders entitled to receive notice of and to vote at the meeting of shareholders to act upon the agreement of merger or consolidation,
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No such rights are provided for under Belgian law.
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Marshall Islands
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Belgium
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were either (i) listed on a securities exchange or admitted for trading on an interdealer quotation system or (ii) held of record by more than 2,000 holders. In the event of any further amendment of the Gener8 Charter, a shareholder also has the right to dissent and receive payment for his or her shares if the amendment alters certain rights in respect of those shares. The dissenting shareholder must follow the procedures set forth in the BCA to receive payment. In the event that Gener8 and any dissenting shareholder fail to agree on a price for the shares, the BCA procedures involve, among other things, the institution of proceedings in the High Court of the Republic of the Marshall Islands or in any appropriate court in any jurisdiction in which our shares are primarily traded on a local or national securities exchange.
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•
Excludes or limits the right of such holder to vote on any matter, except as such right may be limited by the voting rights given to new shares then being authorized of any existing or new class.
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Shareholder’s Derivative Actions
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An action may be brought in the right of a corporation to procure a judgment in its favor, by a holder of shares or of voting trust certificates or of a beneficial interest in such shares or certificates. It shall be made to appear that the plaintiff is such a holder at the time of bringing the action and that he was such a holder at the time of the transaction of which he complains, or that his shares or his interest therein devolved upon him by operation of law.
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An
actio mandati
, a derivative suit instituted on behalf of a company by its shareholders against the company’s directors for breaches of the law, the articles of association or faults in their management are generally available to shareholders. The decision to bring a suit must be made by the vote at a shareholders’ meeting of a simple majority unless a company’s articles of association provide differently.
Minority shareholders are permitted to bring a suit against the company’s directors on behalf of the company provided that (i) such shareholders jointly hold at least 1% of the outstanding shares of the company or hold at least EUR 1,250,000.00 of the company’s capital on the date on which release from liability is granted to a director and (ii) the shareholders instituting the suit voted against the release from liability, abstained from voting or were not present at the relevant meeting at which a director’s release from liability was decided.
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A complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the Board of Directors or the reasons for not making such effort.
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Marshall Islands
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Belgium
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Such action shall not be discontinued, compromised or settled without the approval of the High Court of the Republic of The Marshall Islands.
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Attorneys’ fees may be awarded if the action is successful.
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A corporation may require a plaintiff to bring a derivative suit to give security for reasonable expenses if the plaintiff owns less than 5% of any class of stock and the shares have a value of less than $50,000.
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MATERIAL TAX CONSIDERATIONS
For purposes of this discussion, a “U.S. Holder” is a beneficial owner of Gener8 common shares or Euronav ordinary shares that is (i) an individual who is a citizen or resident of the United States, (ii) a corporation (or other entity taxable as a corporation for U.S. federal income tax purposes) created or organized under the laws of the United States or any state thereof, (iii) an estate the income of which is subject to U.S. federal income taxation regardless of the source of that income or (iv) a trust if it (A) is subject to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all substantial decisions of the trust or (B) was in existence on August 20, 1996 and has properly elected under applicable U.S. Treasury regulations to be treated as a U.S. person. A “Non-U.S. Holder” is a beneficial owner of Gener8 shares or Euronav shares that is not a U.S. Holder and is not an entity or arrangement treated as a partnership or other type of pass-through entity for U.S. federal income tax purposes. If an entity or arrangement treated as a partnership or other type of pass-through entity for U.S. federal income tax purposes holds Gener8 shares or Euronav shares, the tax treatment of a partner or beneficial owner of such entity or arrangement may depend on the status of the partner or beneficial owner and the activities of the partnership or entity. Partners and beneficial owners in such entities or arrangements holding Gener8 shares or Euronav shares are urged to consult their own advisors as to the particular U.S. federal income tax consequences applicable to them.
Unless otherwise noted, this discussion is based upon the Code, applicable United States Treasury Regulations, IRS rulings and judicial decisions, all as in effect as of the date hereof. Subsequent developments in the tax laws of the United States, including changes in or differing interpretations of the foregoing authorities, which may be applied retroactively, could have a material effect on the tax consequences described below. This discussion only applies to shareholders who hold their Gener8 or Euronav shares as a “capital asset” within the meaning of Code Section 1221(a)(1). This is not a complete description of all the tax consequences of the Merger and may not address U.S. federal income tax considerations applicable to holders of Gener8 common shares or Euronav ordinary shares subject to special treatment under U.S. federal income tax law. This summary does not discuss the net investment income tax or state and local tax consequences. Shareholders subject to special treatment include, for example, financial institutions, dealers in securities, traders in securities who elect to apply a mark-to-market method of accounting, insurance companies, tax-exempt entities, entities or arrangements treated as partnerships and other pass-through entities for U.S. federal income tax purposes and holders who hold Gener8 shares as part of a “hedge,” “straddle,” “conversion” or “constructive sale” transaction. This discussion does not apply to shareholders who or that are the beneficial owner of more than 10% of Gener8 shares or Euronav shares.
Material U.S. Federal Income Tax Considerations
In the opinion of Seward & Kissel LLP, Euronav’s U.S. counsel, the following are the material U.S. federal income tax consequences relevant to the Merger, Euronav’s operation and the operation of its vessels and the ownership of Euronav’s ordinary shares. The following discussion of U.S. federal income tax matters is based on the Code, judicial decisions, administrative pronouncements, and existing and proposed regulations issued by the U.S. Department of the Treasury, all of which are subject to change, possibly with retroactive effect.
Material United States Federal Income Tax Consequences of the Merger
The following discussion summarizes material U.S. federal income tax consequences of the Merger to a U.S. Holder (defined above) and a Non-U.S. Holder (defined above) of Gener8 shares.
Gener8 did not obtain a ruling from the IRS or an opinion of counsel with respect to the tax consequences of the Merger. This summary is not binding upon the IRS, and no assurance can be given that IRS would not assert, or that a court would not sustain, a position contrary to any of the tax aspects set forth herein. In addition, this discussion does not address the tax consequences of these transactions under applicable U.S. federal estate, gift or alternative minimum tax laws, or any U.S. state, local or non-U.S. tax laws.
Each holder of Gener8 common shares is urged to consult with its own tax advisors to determine the U.S. federal income tax consequences to it of the Merger, as well as the effects of U.S. state, local and non-U.S. tax laws.
U.S. Holders
Gener8 and Euronav expect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. It is possible that the IRS may disagree with this position and recharacterize the Merger as a taxable transaction. This discussion assumes that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Subject to the qualifications and limitations described above and below, as a result of the Merger:
•
A U.S. Holder should not recognize gain or loss on the exchange of Gener8 shares for Euronav shares (except for gain or loss with respect to cash received in lieu of fractional shares);
•
A U.S. Holder’s adjusted tax basis in the Euronav shares that such holder receives in the Merger should equal to the U.S. Holder’s adjusted tax basis in the Gener8 shares surrendered in the Merger, reduced by the tax basis allocable to any fractional shares of Gener8 common stock for which cash is received; and
•
A U.S. Holder’s holding period for the Euronav shares that such holder receives in the Merger should include the U.S. Holder’s holding period in the Gener8 shares.
If a Holder of Gener8 shares would receive fractional shares in the Merger, such Holder will receive a whole number of Euronav shares and cash in lieu of fractional shares. A U.S. Holder who receives cash in lieu of a fractional share of Gener8 common stock in the Merger will recognize capital gain or loss in an amount equal to the difference between the amount of cash received instead of a fractional share and the U.S. Holder’s tax basis allocable to such fractional share.
A holder of Gener8 shares may be subject to “backup withholding” at a rate of 24% with respect to the amount of cash received in the Merger, unless such holder provides proof of an applicable exemption or a correct taxpayer identification number, and otherwise complies with the requirements of the backup withholding rules. Corporations and Non-U.S. Holders will generally be exempt from backup withholding, but may be required to provide a certification to establish their entitlement to the exemption. Backup withholding does not constitute an additional tax, but is merely an advance payment that may be refunded or credited against a holder’s U.S. federal income tax liability if the required information is supplied to the IRS in a timely manner.
Non-U.S. Holders
As discussed above, Gener8 and Euronav expect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Therefore, a Non-U.S. Holder should not recognize gain or loss on the exchange of Gener8 shares for Euronav shares. Any gain realized on the receipt of Euronav shares and cash in lieu of fractional shares in the Merger by a Non-U.S. Holder generally will not be subject to U.S. federal income or withholding tax unless: (i) such gain is effectively connected with the conduct by such Non-U.S. Holder of a trade or business in the United States, or (ii) in the case of any gain realized by an individual Non-U.S. Holder, such holder is present in the United States for 183 days or more in the taxable year in which the Merger is completed and certain other conditions are met.
This summary is of a general nature only and is not intended to be, nor should it be construed to be, tax-advice to any particular holder of Gener8 shares. This summary does not purport to be a complete analysis or discussion of all potential tax consequences relevant to holders of Gener8 common shares.
Each holder of Gener8 common share is urged to consult with its own tax advisors to determine the U.S. federal income tax consequences to it of the Merger, as well as the effects of U.S. state, local and non-U.S. tax laws.
Material U.S. Federal Income Tax Considerations with Respect to the Taxation of Euronav and its Operations
United States Federal Income Taxation of Operating Income: In General
Euronav earns and anticipates that it will continue to earn substantially all of its income from the hiring or leasing of vessels for use on a time charter basis, from participation in a pool or from the performance of services directly related to those uses, all of which is referred to as Shipping Income.
Unless exempt from United States federal income taxation under the rules of Section 883 of the Code (“Section 883”), as discussed below, Euronav will be subject to United States federal income taxation on its Shipping Income that is treated as derived from sources within the United States, which is referred to as “United States Source Shipping Income.” For United States federal income tax purposes, “United States Source Shipping Income” includes 50% of shipping income that is attributable to transportation that begins or ends, but that does not both begin and end, in the United States.
Shipping Income attributable to transportation exclusively between non-United States ports will be considered to be 100% derived from sources entirely outside the United States. Shipping Income derived from sources outside the United States will not be subject to any United States federal income tax.
Shipping Income attributable to transportation exclusively between United States ports is considered to be 100% derived from United States sources. However, we are not permitted by United States law to engage in the transportation of cargoes that produces 100% United States Source Shipping Income.
Unless exempt from tax under Section 883, our gross United States Source Shipping Income would be subject to a 4% tax imposed without allowance for deductions, as described more fully below.
Exemption of Operating Income from United States Federal Income Taxation
Under Section 883 and the Treasury Regulations thereunder, a foreign corporation will be exempt from United States federal income taxation on its United States Source Shipping Income if:
(1)
it is organized in a “qualified foreign country,” which is one that grants an “equivalent exemption” from tax to corporations organized in the United States in respect of each category of shipping income for which exemption is being claimed under Section 883; and
(2)
one of the following tests is met:
(A)
more than 50% of the value of its shares is beneficially owned, directly or indirectly, by “qualified shareholders,” which as defined includes individuals who are “residents” of a qualified foreign country, which we refer to as the “50% Ownership Test”;
(B)
its shares are “primarily and regularly traded on an established securities market” in a qualified foreign country or in the United States, to which we refer as the “Publicly-Traded Test”; or
(C)
it is a “controlled foreign corporation” and one or more qualified U.S. persons own more than 50 percent of the total value of all the outstanding stock, to which we refer as the “CFC Test”.
Belgium, the jurisdiction where Euronav is incorporated, the Republic of the Marshall Islands, the jurisdiction where Gener8 and certain of its vessel-owning subsidiaries are incorporated, and the jurisdictions where Euronav’s other vessel-owning subsidiaries are incorporated have been officially recognized by the IRS as qualified foreign countries that grant the requisite “equivalent exemption” from tax in respect of each category of shipping income that it earns and currently expects to earn in the future. Therefore, Euronav will be exempt from United States federal income taxation with respect to its United States Source Shipping Income if it satisfies either the 50% Ownership Test or the Publicly-Traded Test.
Euronav does not currently anticipate a circumstance under which it would be able to satisfy the 50% Ownership Test and assumes that Euronav will not be able to satisfy the CFC Test. For its 2017 taxable tax year, Euronav intends to take the position that it satisfied the Publicly-Traded Test and Euronav anticipates that it will continue to satisfy the Publicly-Traded Test for future taxable years. However, as discussed below, this is a factual determination made on an annual basis.
Publicly-Traded Test
The Treasury Regulations under Section 883 provide, in pertinent part, that shares of a foreign corporation will be considered to be “primarily traded” on an established securities market in a country if the number of shares of each class of stock that are traded during any taxable year on all established
securities markets in that country exceeds the number of shares in each such class that are traded during that year on established securities markets in any other single country. Euronav’s ordinary shares are “primarily traded” on Euronext for this purpose even though the ordinary shares are also listed and traded in the NYSE.
Under the Treasury Regulations, Euronav ordinary shares will be considered to be “regularly traded” on an established securities market if one or more classes of its stock representing more than 50% of its outstanding stock, by both total combined voting power of all classes of stock entitled to vote and total value, are listed on such market, which is referred as the “Listing Threshold.” Because its ordinary shares are listed on the NYSE, Euronav expects to satisfy the Listing Threshold.
It is further required that with respect to each class of stock relied upon to meet the Listing Threshold, (i) such class of stock is traded on the market, other than in minimal quantities, on at least 60 days during the taxable year or one-sixth of the days in a short taxable year, or the “Trading Frequency Test”; and (ii) the aggregate number of shares of such class of stock traded on such market during the taxable year is at least 10% of the average number of shares of such class of stock outstanding during such year or as appropriately adjusted in the case of a short taxable year, or the “Trading Volume Test.” Euronav currently satisfies and anticipates that it will continue to satisfy the Trading Frequency Test and Trading Volume Test. Even if this were not the case, the Treasury Regulations provide that the Trading Frequency Test and Trading Volume Tests will be deemed satisfied if, as is the case with Euronav ordinary shares, such class of stock is traded on an established securities market in the United States and such class of stock is regularly quoted by dealers making a market in such stock.
Notwithstanding the foregoing, the Treasury Regulations provide, in pertinent part, that a class of stock will not be considered to be “regularly traded” on an established securities market for any taxable year during which 50% or more of the vote and value of the outstanding shares of such class are owned, actually or constructively under specified attribution rules, on more than half the days during the taxable year by persons who each own 5% or more of the vote and value of such class of outstanding shares, which is referred as the “5% Override Rule.”
For purposes of being able to determine the persons who actually or constructively own 5% or more of the vote and value of Euronav ordinary shares, or “5% Shareholders,” the Treasury Regulations permit us to rely on those persons that are identified on Schedule 13G and Schedule 13D filings with the SEC as owning 5% or more of Euronav ordinary shares. The Treasury Regulations further provide that an investment company which is registered under the Investment Company Act of 1940, as amended, will not be treated as a 5% Shareholder for such purposes.
In the event that the 5% Override Rule is triggered, the Treasury Regulations provide that the 5% Override Rule will nevertheless not apply if Euronav can establish that within the group of 5% Shareholders, there are sufficient qualified shareholders for purposes of Section 883 to preclude non-qualified shareholders in such group from owning 50% or more of Euronav ordinary shares for more than half the number of days during the taxable year. In order to benefit from this exception to the 5% Override Rule, Euronav must satisfy certain substantiation requirements in regards to the identity of its 5% Shareholders.
Euronav believes that it currently satisfies the Publicly-Traded Test and it intends to take this position on its United States federal income tax return for the 2017 taxable year. However, there are factual circumstances beyond Euronav’s control that could cause it to lose the benefit of the Section 883 exemption. There is no assurance, after the Merger or in any future taxable year, that Euronav will have sufficient qualified 5% Shareholders to preclude nonqualified 5% Shareholders from owning 50% or more of Euronav ordinary shares for more than half the number of days during such taxable year, or that Euronav will be able to satisfy the substantiation requirements in regard to it 5% Shareholders.
United States Federal Income Taxation in Absence of Section 883 Exemption
If Euronav is not exempt from tax under Section 883, Euronav’s gross United States Source Shipping Income generally would be subject to a 4% tax imposed without allowance for deductions, pursuant to Section 887 of the Code (the “4% Gross Basis Tax Regime”), unless such income is “effectively connected” with the conduct of a U.S. trade or business, as described below. Because under the sourcing rules described
above, no more than 50% of our shipping income would be treated as being United States source shipping income, the maximum effective rate of United States federal income tax on United States Source Shipping Income would never exceed 2% under the 4% Gross Basis Tax Regime.
To the extent Euronav’s or any of its subsidiaries’ United States Source Shipping Income is considered to be “effectively connected” with the conduct of a United States trade or business, as described below, any such “effectively connected” United States Source Shipping Income, net of applicable deductions, would be subject to United States federal income tax, currently imposed at a rate of 21%. In addition, Euronav or its subsidiaries would generally be subject to the 30% “branch profits” tax on earnings effectively connected with the conduct of such trade or business, as determined after allowance for certain adjustments, and on certain interest paid or deemed paid attributable to the conduct of our United States trade or business.
Euronav’s United States Source Shipping Income would be considered “effectively connected” with the conduct of a United States trade or business only if:
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Euronav. has, or is considered to have, a fixed place of business in the United States involved in the earning of United States Source Shipping Income; and
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substantially all of Euronav or its subsidiaries’ United States Source Shipping Income is attributable to regularly scheduled transportation, such as the operation of a vessel that follows a published schedule with repeated sailings at regular intervals between the same points for voyages that begin or end in the United States.
We do not currently have, intend to have, or permit circumstances that would result in having, any vessel sailing to or from the United States on a regularly scheduled basis. Based on the foregoing and on the expected mode of our shipping operations and other activities, it is anticipated that none of our United States source shipping income will be “effectively connected” with the conduct of a United States trade or business.
United States Federal Income Taxation of Gain on Sale of Vessels
If Euronav qualifies for exemption from tax under Section 883 in respect of the shipping income derived from the international operation of its vessels, then gain from the sale of any such vessel should likewise be exempt from United States federal income tax under Section 883. If, however, our shipping income from such vessels does not for whatever reason qualify for exemption under Section 883, then any gain on the sale of a vessel may be treated as effectively connected income (determined under rules different from those discussed above) and subject to the net income and branch profits tax regime described above. To the extent possible, Euronav intends to structure the sales of our vessels so that the gain therefrom is not subject to United States federal income tax. However, there is no assurance Euronav will be able to do so.
Material U.S. Federal Income Tax Considerations with Respect to the Ownership and Disposition of Euronav Ordinary Shares
U.S. Federal Income Taxation of U.S. Holders
Distributions
Subject to the discussion of PFICs below, any distributions made by Euronav with respect to its ordinary shares to a U.S. Holder, will generally constitute dividends, to the extent of Euronav’s current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Distributions in excess of Euronav’s earnings and profits will be treated first as a nontaxable return of capital to the extent of the U.S. Holder’s tax basis in its Euronav ordinary shares on a dollar-for-dollar basis and thereafter as capital gain. Because Euronav is not a U.S. corporation, U.S. Holders that are corporations will not be entitled to claim a dividends received deduction with respect to any distributions they receive from Euronav. Dividends paid with respect to the Euronav ordinary shares will generally be treated as “passive category income” or, in the case of certain types of U.S. Holders, “general category income” for purposes of computing allowable foreign tax credits for U.S. foreign tax credit purposes.
Dividends paid on Euronav ordinary shares to a U.S. holder who is an individual, trust or estate, or a “non-corporate U.S. holder,” will generally be treated as “qualified dividend income” that is taxable to such non-corporate U.S. holder at preferential tax rates, provided that (1) Euronav’s ordinary shares are readily tradable on an established securities market in the U.S. (such as the NYSE, on which Euronav’s ordinary shares are traded); (2) Euronav is not a passive foreign investment company, or a “PFIC,” for the taxable year during which the dividend is paid or the immediately preceding taxable year (which Euronav does not believe it has been, are, or will be); (3) the non-corporate U.S. holder’s holding period of the ordinary shares includes more than 60 days in the 121-day period beginning 60 days before the date on which the shares becomes ex-dividend; and (4) the non-corporate U.S. holder is not under an obligation to make related payments with respect to positions in substantially similar or related property. If Euronav were to be a PFIC, as discussed below, for any year, dividends paid on its ordinary shares in such year or in the following year would not be qualified dividends. A non-corporate U.S. holder will be able to take qualified dividend income into account in determining its deductible investment interest (which is generally limited to its net investment income) only if it elects to do so; in such case, the dividend will be taxed at ordinary income rates. Non-corporate U.S. holders also may be required to pay a 3.8% surtax on all or part of such holder’s “net investment income,” which includes, among other items, dividends on Euronav shares, subject to certain limitations and exceptions. Prospective investors are encouraged to consult their own tax advisors regarding the effect, if any, of this surtax on their ownership of Euronav ordinary shares.
Amounts taxable as dividends generally will be treated as passive income from sources outside the U.S. However, if (a) Euronav is 50% or more owned, by vote or value, by U.S. persons and (b) at least 10% of Euronav’s earnings and profits are attributable to sources within the U.S., then for foreign tax credit purposes, a portion of its dividends would be treated as derived from sources within the U.S. With respect to any dividend paid for any taxable year, the U.S. source ratio of our dividends for foreign tax credit purposes would be equal to the portion of Euronav’s earnings and profits from sources within the U.S. for such taxable year divided by the total amount of Euronav’s earnings and profits for such taxable year. The rules related to U.S. foreign tax credits are complex and U.S. holders should consult their tax advisors to determine whether and to what extent a credit would be available.
Special rules may apply to any “extraordinary dividend” — generally, a dividend in an amount which is equal to or in excess of 10% of a shareholder’s adjusted basis (or fair market value in certain circumstances) in a share of Euronav ordinary shares — paid by Euronav. If Euronav pays an “extraordinary dividend” on its common shares that is treated as “qualified dividend income” then any loss derived by a non-corporate U.S. holder from the sale or exchange of such ordinary shares will be treated as long-term capital loss to the extent of such dividend.
Dividends will be generally included in the income of U.S. Holders at the U.S. dollar amount of the dividend (including any non-U.S. taxes withheld therefrom), based upon the exchange rate in effect on the date of the distribution. In the case of foreign currency received as a dividend that is not converted by the recipient into U.S. dollars on the date of receipt, a U.S. Holder will have a tax basis in the foreign currency equal to its U.S. dollar value on the date of receipt. Any gain or loss recognized upon a subsequent sale or other disposition of the foreign currency, including the exchange for U.S. dollars, will be ordinary income or loss. However an individual whose realized foreign exchange gain does not exceed U.S. $200 will not recognize that gain, to the extent that there are not expenses associated with the transaction that meet the requirement for deductibility as a trade or business expense (other than travel expenses in connection with a business trip or as an expense for the production of income).
Sale, Exchange or other Disposition of Euronav ordinary shares
Assuming Euronav does not constitute a PFIC for any taxable year, a U.S. Holder generally will recognize taxable gain or loss upon a sale, exchange or other disposition of the Euronav ordinary shares in an amount equal to the difference between the amount realized by the U.S. Holder from such sale, exchange or other disposition and the U.S. Holder’s tax basis in such stock. Such gain or loss will be treated as long-term capital gain or loss if the U.S. Holder’s holding period is greater than one year at the time of the sale, exchange or other disposition. Such capital gain or loss will generally be treated as U.S. source income or loss, as applicable, for U.S. foreign tax credit purposes. A U.S. Holder’s ability to deduct capital losses is subject to certain limitations.
In the case of any proceeds paid in foreign currency to a U.S. Holder in connection with the sale, exchange or other taxable disposition of the Euronav ordinary shares that is not converted by the recipient into U.S. dollars on the settlement date (in the case of a cash method taxpayer or an accrual method taxpayer that elects to use the settlement date) or trade date (in the case of an accrual method taxpayer), a U.S. Holder will have a tax basis in the foreign currency equal to its U.S. dollar value on the settlement date or trade date, respectively. Any gain or loss recognized upon a subsequent sale or other disposition of the foreign currency, including the exchange for U.S. dollars, will be ordinary income or loss. However, an individual whose realized foreign exchange gain does not exceed U.S. $200 will not recognize that gain, to the extent that there are not expenses associated with the transaction that meet the requirement for deductibility as a trade or business expense (other than travel expenses in connection with a business trip or as an expense for the production of income).
Passive Foreign Investment Company Status and Significant Tax Consequences
Special U.S. federal income tax rules apply to a U.S. Holder that holds stock in a foreign corporation classified as a PFIC for U.S. federal income tax purposes. In general, a foreign corporation will be treated as a PFIC with respect to a U.S. shareholder in such foreign corporation, if, for any taxable year in which such shareholder holds stock in such foreign corporation, either:
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at least 75% of the corporation’s gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or
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at least 50% of the average value of the assets held by the corporation during such taxable year produce, or are held for the production of, passive income.
For purposes of determining whether a foreign corporation is a PFIC, it will be treated as earning and owning its proportionate share of the income and assets, respectively, of any of its subsidiaries that have made special U.S. tax elections to be disregarded as separate entities as well as any of its subsidiary corporations in which it owns at least 25% of the value of the subsidiary’s stock. If Euronav is treated as a PFIC, then a U.S. person would be treated as indirectly owning shares of its foreign corporate subsidiaries for purposes of the PFIC rules.
Income earned by a foreign corporation in connection with the performance of services would not constitute passive income. By contrast, rental income would generally constitute “passive income” unless the foreign corporation is treated under specific rules as deriving its rental income in the active conduct of a trade or business.
Based on Euronav’s and Gener8’s existing operations and Euronav’s view that income from time and spot chartered vessels is services income rather than rental income, Euronav intends to take the position that it is not now and have never been a PFIC with respect to any taxable year. Although Euronav intends to conduct its affairs in the future in a manner to avoid being classified as a PFIC, Euronav cannot assure you that the nature of its operations will not change in the future.
As discussed more fully below, if Euronav were to be treated as a PFIC for any taxable year, a U.S. Holder would be subject to different taxation rules depending on whether the U.S. Holder makes an election to treat Euronav as a “Qualified Electing Fund,” which election Euronav refers to as a “QEF election,” or makes a Market-to-Market election, both of which are described below. In addition, if Euronav were to be treated as a PFIC for any taxable year, a U.S. Holder would be required to file an annual report with the IRS for that year with respect to such holder’s Euronav ordinary shares.
Taxation of U.S. Holders Making a Timely QEF Election
If a U.S. Holder makes a timely QEF election, which U.S. Holder is referred to as an “Electing Holder,” the Electing Holder must report each year for U.S. federal income tax purposes his pro rata share of Euronav’s ordinary earnings and net capital gain, if any, for Euronav’s taxable year that ends with or within the taxable year of the Electing Holder, regardless of whether or not distributions were received from Euronav by the Electing Holder. The Electing Holder’s adjusted tax basis in his Euronav ordinary shares will be increased to reflect taxed but undistributed earnings and profits. Distributions of earnings and
profits that had been previously taxed will result in a corresponding reduction in the adjusted tax basis in his Euronav ordinary shares and will not be taxed again once distributed. An Electing Holder would generally recognize capital gain or loss on the sale, exchange or other disposition of Euronav ordinary shares. A U.S. Holder would make a QEF election with respect to any year that Euronav is a PFIC by filing IRS Form 8621 with his U.S. federal income tax return. If Euronav was aware that it was to be treated as a PFIC for any taxable year, Euronav would, if possible, provide each U.S. Holder with all necessary information in order to make the QEF election described above. It should be noted that Euronav may not be able to provide such information if it did not become aware of its status as a PFIC in a timely manner.
Taxation of U.S. Holders Making a “Mark-to-Market” Election
Alternatively, if Euronav were to be treated as a PFIC for any taxable year and the Euronav ordinary shares, as anticipated, are treated as “marketable stock,” a U.S. Holder would be allowed to make a Mark-to-Market election with respect to the Euronav ordinary shares. If that election is made, the U.S. Holder generally would include as ordinary income in each taxable year that Euronav is a PFIC the excess, if any, of the fair market value of the Euronav ordinary shares at the end of each taxable year over such holder’s adjusted tax basis in the Euronav ordinary shares. The U.S. Holder would also be permitted an ordinary loss for each such taxable year in respect of the excess, if any, of the U.S. Holder’s taxable basis in the Euronav ordinary shares over their fair market value at the end of the taxable year, but only to the extent of the net amount previously included in income as a result of the Mark-to-Market election. A U.S. Holder’s tax basis in the Euronav ordinary shares would be adjusted to reflect any such income or loss amount. In any taxable year that Euronav is a PFIC, gain realized on the sale, exchange or other disposition of the Euronav ordinary shares would be treated as ordinary income, and any loss realized on the sale, exchange or other disposition of the Euronav ordinary shares would be treated as ordinary loss to the extent that such loss does not exceed the net mark-to-market gains previously included in income of the U.S. Holder.
Taxation of U.S. Holders Not Making a Timely QEF or Mark-to-Market Election
Finally, if Euronav was to be treated as a PFIC for any taxable year, a U.S. Holder who does not make a QEF or Mark-to-Market election for that year, whom Euronav refers to as a “Non-Electing Holder,” would be subject to special rules with respect to (1) any excess distribution (i.e., the portion of any distributions received by the Non-Electing Holder on the Euronav ordinary shares in a taxable year in excess of 125% of the average annual distributions received by the Non-Electing Holder in the three preceding taxable years, or, if shorter, the Non-Electing Holder’s holding period for the Euronav ordinary shares) and (2) any gain realized on the sale, exchange or other disposition of the Euronav ordinary shares. Under these special rules:
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the excess distribution or gain would be allocated ratably over the Non-Electing Holder’s aggregate holding period for his Euronav ordinary shares;
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the amount allocated to the current taxable year and any taxable year before Euronav became a PFIC would be taxed as ordinary income; and
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the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
These penalties would not apply to a pension or profit sharing trust or other tax-exempt organization that did not borrow funds or otherwise utilize leverage in connection with its acquisition of Euronav ordinary shares. If a Non-Electing Holder who is an individual dies while owning Euronav ordinary shares, such holder’s successor generally would not receive a step-up in tax basis with respect to such stock.
U.S. Federal Income Taxation of Non-U.S. Holders
Non-U.S. holders generally will not be subject to U.S. federal income tax or withholding tax on dividends received from Euronav on its ordinary shares unless the income is effectively connected income (and, if an applicable income tax treaty so provides, the dividends are attributable to a permanent establishment maintained by the non-U.S. holder in the U.S.).
Non-U.S. holders generally will not be subject to U.S. federal income tax or withholding tax on any gain realized upon the sale, exchange or other disposition of Euronav ordinary shares, unless either:
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the gain is effectively connected income (and, if an applicable income tax treaty so provides, the gain is attributable to a permanent establishment maintained by the non-U.S. holder in the U.S.); or
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the non-U.S. holder is an individual who is present in the U.S. for 183 days or more during the taxable year of disposition and certain other conditions are met, in which case such gain (net of certain U.S. source losses) generally will be taxed at a 30% rate (unless an applicable income tax treaty provides otherwise).
Effectively connected income (or, if an income tax treaty applies, income attributable to a permanent establishment maintained in the U.S.) generally will be subject to regular U.S. federal income tax in the same manner as discussed in the section above relating to the taxation of U.S. holders. In addition, earnings and profits of a corporate non-U.S. holder that are attributable to such income, as determined after allowance for certain adjustments, may be subject to an additional branch profits tax at a rate of 30%, or at a lower rate as may be specified by an applicable income tax treaty.
Non-U.S. holders may be subject to tax in jurisdictions other than the United States on dividends received from Euronav on its ordinary shares and on any gain realized upon the sale, exchange or other disposition of ordinary shares.
Backup Withholding and Information Reporting
In general, dividend payments, or other taxable distributions, made within the United States to a U.S. Holder will be subject to information reporting requirements. Such payments will also be subject to backup withholding tax if paid to a non-corporate U.S. Holder who:
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fails to provide an accurate taxpayer identification number;
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is notified by the IRS that he or she has failed to report all interest or dividends required to be shown on his federal income tax returns; or
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in certain circumstances, fails to comply with applicable certification requirements.
Backup withholding tax is not an additional tax. Rather, a taxpayer generally may obtain a refund of any amounts withheld under backup withholding rules that exceed the taxpayer’s income tax liability by filing a refund claim with the IRS.
Non U.S. Material Tax Considerations
Marshall Islands Tax Considerations
In the opinion of Seward & Kissel LLP, Euronav’s Marshall Islands counsel, the following are the material Marshall Islands tax consequences of Euronav’s activities to Euronav and Euronav’s shareholders. Euronav MI is incorporated in the Marshall Islands. Under current Marshall Islands law, Euronav is not subject to tax on income or capital gains, and no Marshall Islands withholding tax will be imposed upon payments of dividends by Euronav to its shareholders.
Belgian Tax Considerations
In the opinion of Argo Law, Euronav’s Belgian counsel, the following are the material Belgian federal income tax considerations relevant to the Merger and the ownership and disposal of Euronav ordinary shares.
The summary is based on laws, treaties and regulatory interpretations in effect in Belgium on the date of this proxy statement/prospectus, all of which are subject to change, including changes that could have retroactive effect.
Investors should appreciate that, as a result of evolutions in law or practice, the eventual tax consequences may be different from what is stated below.
This summary does not purport to address all tax consequences of an investment in the Euronav Ordinary, and does not take into account the specific circumstances of particular investors, some of which may be subject to special rules, or the tax laws of any country other than Belgium. This summary does not describe the tax treatment of investors that are subject to special rules, such as banks, insurance companies, collective investment undertakings, dealers in securities or currencies, persons that hold, or will hold, Euronav ordinary shares as a position in a straddle, share-repurchase transaction, conversion transactions, synthetic security or other integrated financial transactions. This summary does not address the tax regime applicable to shares held by Belgian tax residents through a fixed basis or a permanent establishment situated outside Belgium. This summary does principally not address the local taxes that may be due in connection with an investment in the Euronav ordinary shares.
For purposes of this summary, a Belgian resident is:
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an individual subject to Belgian personal income tax, i.e., an individual who is domiciled in Belgium or has his seat of wealth in Belgium or a person assimilated to a resident for purposes of Belgian tax law;
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a company (as defined by Belgian tax law) subject to Belgian corporate income tax, i.e., a corporate entity that has its statutory seat, its main establishment, its administrative seat or seat of management in Belgium;
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an Organization for Financing Pensions subject to Belgian corporate income tax, i.e., a Belgian pension fund incorporated under the form of an Organization for Financing Pensions; or
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a legal entity subject to Belgian income tax on legal entities, i.e., a legal entity other than a company subject to Belgian corporate income tax, that has its statutory seat, its main establishment, its administrative seat or seat of management in Belgium.
A non-resident is any person that is not a Belgian resident.
Investors should consult their own advisers regarding the tax consequences of an investment in the Euronav ordinary shares in the light of their particular circumstances, including the effect of any state, local or other national laws.
Belgian Taxation of dividends on Euronav Ordinary Shares
For Belgian income tax purposes, the gross amount of all benefits paid on or attributed to the Euronav ordinary shares is generally treated as a dividend distribution. By way of exception, the repayment of capital carried out in accordance with the Belgian Companies Code is not treated as a dividend distribution to the extent that such repayment is imputed to the fiscal capital. This fiscal capital includes, in principle, the actual paid-up statutory share capital and, subject to certain conditions, the paid-up issuance premiums and the cash amounts subscribed to at the time of the issue of profit sharing certificates. However, as of 1 January 2018, a repayment of capital is partly considered to be a distribution of the existing taxed reserves (irrespective of whether they are incorporated into the capital) and/or of the tax-free reserves incorporated into the capital whereby such portion is determined on the basis of the ratio of the taxed reserves and tax-free reserves incorporated into the capital versus the aggregate of such reserves and the fiscal capital.
Belgian withholding tax of 30% is normally levied on dividends, subject to such relief as may be available under applicable domestic or tax treaty provisions.
If Euronav redeems its own shares, the redemption distribution (after deduction of the portion of fiscal capital represented by the redeemed shares) will be treated as a dividend subject to a Belgian withholding tax of 30%, subject to such relief as may be available under applicable domestic or tax treaty provisions. No withholding tax will be triggered if such redemption is carried out on a stock exchange and meets certain conditions.
In case of liquidation of Euronav, any amounts distributed in excess of the fiscal capital will in principle be subject to withholding tax at a rate of 30%, subject to such relief as may be available under applicable domestic or tax treaty provisions.
As mentioned above any dividends or other distributions made by Euronav to shareholders owning Euronav ordinary shares will, in principle, be subject to withholding tax in Belgium at a rate of 30%, except for shareholders which qualify for an exemption of withholding tax such as, among others, qualifying pension funds or a company qualifying as a parent company in the sense of the Council Directive (90/435/EEC) of July 23, 1990, or the Parent-Subsidiary Directive, or that qualify for a lower withholding tax rate or an exemption by virtue of a tax treaty. Various conditions may apply and shareholders residing in countries other than Belgium are advised to consult their advisers regarding the tax consequences of dividends or other distributions made by us. Euronav shareholders residing in countries other than Belgium may not be able to credit the amount of such withholding tax to any tax due on such dividends or other distributions in any other country than Belgium. As a result, such shareholders may be subject to double taxation in respect of such dividends or other distributions.
Belgium and the United States have concluded a double tax treaty concerning the avoidance of double taxation, or the U.S.-Belgium Tax Treaty. The U.S.-Belgium Tax Treaty reduces the applicability of Belgian withholding tax to 15%, 5% or 0% for U.S. taxpayers, provided that the U.S. taxpayer meets the limitation of benefits conditions imposed by the U.S.-Belgium Tax Treaty. The Belgian withholding tax is generally reduced to 15% under the U.S.-Belgium Tax Treaty. The 5% withholding tax applies in case where the U.S. shareholder is a company which holds at least 10% of the shares in the company. A 0% Belgian withholding tax applies when the shareholder is a U.S. company which has held, directly, at least 10% of the shares in the company for at least 12 months, or is, subject to certain conditions, a U.S. pension fund. The U.S. shareholders are encouraged to consult their own tax advisers to determine whether they can invoke the benefits and meet the limitation of benefits conditions as imposed by the U.S.-Belgium Tax Treaty.
For Belgian resident individuals who acquire and hold the Euronav Ordinary Shares as a private investment, the Belgian dividend withholding tax fully discharges their personal income tax liability. They may nevertheless elect to report the dividends in their personal income tax return. Where such individual opts to report them, dividends will normally be taxable at the lower of the generally applicable 30% withholding tax rate on dividends or at the progressive personal income tax rates applicable to the taxpayer’s overall declared income. If the beneficiary reports the dividends, the income tax due on such dividends will not be increased by local surcharges. In addition, if the dividends are reported, the Belgian withholding tax levied on the dividends may, in both cases, be credited against the personal income tax due and is reimbursable to the extent that it exceeds the personal income tax due.
For Belgian resident individuals who acquire and hold the Euronav Ordinary Shares for professional purposes, the Belgian withholding tax does not fully discharge their income tax liability. Dividends received must be reported by the investor and will, in such case, be taxable at the investor’s personal income tax rate increased with local surcharges. Withholding tax withheld at source may be credited against the income tax due and is reimbursable to the extent that it exceeds the income tax due, subject to two conditions: (1) the taxpayer must own the Euronav Ordinary Shares in full legal ownership at the time the dividends are paid or attributed and (2) the dividend distribution may not result in a reduction in value of or a capital loss on the Euronav Ordinary Shares. The latter condition is not applicable if the investor can demonstrate that (i) he has held the Euronav Ordinary Shares in full legal ownership for an uninterrupted period of 12 months prior to the attribution of the dividends, or (ii) during that period, the Euronav Ordinary Shares have never been held in full legal ownership at any point in time by a taxpayer other than a) a company subject to Belgian corporate tax or b) a non-resident company having, in an uninterrupted manner, invested the Euronav Ordinary Shares in a Belgian establishment.
For Belgian resident companies, the dividend withholding tax does not fully discharge the corporate income tax liability. For such companies, the gross dividend income (including the Belgian withholding tax) must be declared in the corporate income tax return and will be subject to a corporate income tax rate of 29%, unless the reduced corporate income tax rates apply. The corporate income tax rate will be reduced to 25% as of 1 January 2020. The 2% surcharge applicable to said corporate income tax rate (which currently results in an aggregate corporate income tax rate of 29.58%) will be abolished as of 2020.
Any Belgian dividend withholding tax levied at source may be credited against the corporate income tax due and is reimbursable to the extent that it exceeds the corporate income tax due, subject to two conditions: (1) the taxpayer must own the Euronav Ordinary Shares in full legal ownership at the time the
dividends are paid or attributed; and (2) the dividend distribution may not result in a reduction in value of or a capital loss on the Euronav Ordinary Shares. The latter condition is not applicable if the investor can demonstrate that (i) he has held the Euronav Ordinary Shares in full legal ownership for an uninterrupted period of 12 months prior to the attribution of the dividends, or (ii) during that period, the Euronav Ordinary Shares have never been held in full legal ownership at any point in time by a taxpayer other than a) a company subject to Belgian corporate tax or b) a non-resident company having, in an uninterrupted manner, invested the Euronav Ordinary Shares in a Belgian establishment.
As a general rule, Belgian resident companies can (as of assessment year 2019, linked to a taxable period that does not start prior to 1 January 2018, and subject to certain limitations) deduct 100% of gross dividends received from their taxable income (“
dividend received deduction”
), provided that at the time of a dividend payment or attribution: (1) the Belgian resident company holds the Euronav Ordinary Shares representing at least 10% of the share capital of Euronav or a participation in Euronav with an acquisition value of at least EUR 2,500,000, (2) the Euronav Ordinary Shares have been held or will be held in full ownership for an uninterrupted period of at least one year, (3) the conditions relating to the taxation of the underlying distributed income, as described in Article 203 of the Income Tax Code (the “
Article 203 ITC Taxation Condition”
) are met, and (4) the anti-abuse provision is not applicable (together, the “
Conditions for the application of the dividend received deduction regime”
). Under certain circumstances the conditions referred to under (1) and (2) do not need to be fulfilled in order for the dividend received deduction to apply.
The Conditions for the application of the dividend received deduction regime depend on a factual analysis, upon each dividend distribution, and for this reason the availability of this regime should be verified upon each dividend distribution.
Dividends distributed to a Belgian resident company will be exempt from Belgian withholding tax provided that the Belgian resident company holds, upon payment or attribution of the dividends, at least 10% of the share capital of Euronav and such minimum participation is held or will be held during an uninterrupted period of at least one year.
In order to benefit from this exemption, the Belgian resident company must provide Euronav or its paying agent with a certificate confirming its qualifying status and the fact that it meets the required conditions. If the Belgian resident company holds the required minimum participation for less than one year, at the time the dividends are paid on or attributed to the Euronav ordinary shares, Euronav will levy the withholding tax but will not transfer it to the Belgian Treasury provided that the Belgian resident company certifies its qualifying status, the date from which it has held such minimum participation, and its commitment to hold the minimum participation for an uninterrupted period of at least one year.
The Belgian resident company must also inform Euronav or its paying agent if the one-year period has expired or if its shareholding will drop below 10% of the share capital of Euronav before the end of the one-year holding period. Upon satisfying the one-year shareholding requirement, the dividend withholding tax which was temporarily withheld, will be refunded to the Belgian resident company.
Please note that the above described dividend received deduction regime and the withholding tax exemption will not be applicable to dividends which are connected to an arrangement or a series of arrangements (“
rechtshandeling of geheel van rechtshandelingen”
/”
acte juridique ou un ensemble d’actes juridiques”
) for which the Belgian tax administration, taking into account all relevant facts and circumstances, has proven, unless evidence to the contrary, that this arrangement or this series of arrangements is not genuine (“
kunstmatig”
/”
non authentique”
) and has been put in place for the main purpose or one of the main purposes of obtaining the dividend received deduction, the above dividend withholding tax exemption or one of the advantages of the EU Parent-Subsidiary Directive of November 30, 2011 (2011/96/EU) (“Parent-Subsidiary Directive”) in another EU Member State. An arrangement or a series of arrangements is regarded as not genuine to the extent that they are not put into place for valid commercial reasons which reflect economic reality.
For organizations for financing pensions (“OFPs”), i.e., Belgian pension funds incorporated under the form of an OFP (
organismen voor de financiering van pensioenen / organismes de financement de pensions
) within the meaning of Article 8 of the Belgian Act of October 27, 2006, the dividend income is generally tax exempt.
Subject to certain limitations, any Belgian dividend withholding tax levied at source may be credited against the corporate income tax due and is reimbursable to the extent that it exceeds the corporate income tax due.
For taxpayers subject to the Belgian income tax on legal entities, the Belgian dividend withholding tax in principle fully discharges their income tax liability.
For non-resident individuals and companies, the dividend withholding tax will be the only tax on dividends in Belgium, unless the non-resident holds the Euronav ordinary shares in connection with a business conducted in Belgium through a fixed base in Belgium or a Belgian permanent establishment.
If the Euronav Ordinary Shares are acquired by a non-resident in connection with a business in Belgium, the investor must report any dividends received, which will be taxable at the applicable non-resident personal or corporate income tax rate, as appropriate. Belgian withholding tax levied at source may be credited against non-resident personal or corporate income tax and is reimbursable to the extent that it exceeds the income tax due, subject to two conditions: (1) the taxpayer must own the Euronav Ordinary Shares in full legal ownership at the time the dividends are paid or attributed and (2) the dividend distribution may not result in a reduction in value of or a capital loss on the Euronav Ordinary Shares. The latter condition is not applicable if the investor can demonstrate (i) that he has held the Euronav Ordinary Shares in full legal ownership for an uninterrupted period of 12 months prior to the attribution of the dividends or (ii) that, during that period, the Euronav Ordinary Shares have never been held in full legal ownership at any point in time by a taxpayer other than a) a company subject to Belgian corporate tax or b) a non-resident company having, in an uninterrupted manner, invested the Euronav Ordinary Shares in a Belgian establishment.
Non-resident companies whose Euronav Ordinary Shares are invested in a Belgian establishment may, as of assessment year 2019, linked to a financial year that did not start prior to January 1, 2018, deduct 100% of the gross dividends received from their taxable income if, at the date the dividends are paid or attributed, the Conditions for the application of the dividend received deduction regime are met. Application of the dividend received deduction regime depends, however, on a factual analysis to be made upon each distribution and its availability should be verified upon each dividend distribution.
Under Belgian tax law, withholding tax is not due on dividends paid to a foreign pension fund which satisfies the following conditions: (i) it is a non-resident saver in the meaning of Article 227, 3° of the Belgian Income Tax Code (“ITC”) which implies that it has separate legal personality and fiscal residence outside of Belgium, (ii) whose corporate purpose consists solely in managing and investing funds collected in order to pay legal or complementary pensions, (iii) whose activity is limited to the investment of funds collected in the exercise of its statutory mission, without any profit making aim, (iv) which is exempt from income tax in its country of residence, and (v) except in specific circumstances, provided that it is not contractually obligated to redistribute the dividends to any ultimate beneficiary of such dividends for whom it would manage the Euronav Ordinary Shares, nor obligated to pay a manufactured dividend with respect to the Euronav Ordinary Shares under a securities borrowing transaction. The exemption will only apply if the foreign pension fund provides a certificate confirming that it is the full legal owner or usufruct holder of the Euronav Ordinary Shares and that the above conditions are satisfied. The organization must then forward that certificate to Euronav or its paying agent.
Dividends distributed to non-resident qualifying parent companies established in a Member State of the EU or in a country with which Belgium has concluded a double tax treaty that includes a qualifying exchange of information clause, will, under certain conditions, be exempt from Belgian withholding tax provided that the Euronav Ordinary Shares held by the non-resident company, upon payment or attribution of the dividends, amount to at least 10% of the share capital of Euronav and such minimum participation is held or will be held during an uninterrupted period of at least one year. A non-resident company qualifies as a parent company provided that (i) for companies established in a Member State of the EU, it has a legal form as listed in the annex to the EU Parent-Subsidiary Directive of July 23, 1990 (90/435/EC), as amended by Directive 2003/123/EC of December 22, 2003, or, for companies established in a country with which Belgium has concluded a qualifying double tax treaty, it has a legal form similar to the ones listed in such
annex; (ii) it is considered to be a tax resident according to the tax laws of the country where it is established and the double tax treaties concluded between such country and third countries; and (iii) it is subject to corporate income tax or a similar tax without benefiting from a tax regime that derogates from the ordinary tax regime.
In order to benefit from this exemption, the non-resident company must provide Euronav or its paying agent with a certificate confirming its qualifying status and the fact that it meets the three abovementioned conditions.
If the non-resident company holds a minimum participation for less than one year at the time the dividends are attributed to the Euronav ordinary shares, Euronav must deduct the withholding tax but does not need to transfer it to the Belgian Treasury provided that the non-resident company provides Euronav or its paying agent with a certificate confirming, in addition to its qualifying status, the date as of which it has held the Euronav ordinary shares, and its commitment to hold the Euronav ordinary shares for an uninterrupted period of at least one year. The non-resident company must also inform Euronav or its paying agent when the one-year period has expired or if its shareholding drops below 10% of Euronav’s share capital before the end of the one-year holding period. Upon satisfying the one-year shareholding requirement, the deducted dividend withholding tax which was temporarily withheld, will be refunded to the non-resident company.
Dividends distributed by a Belgian company to a non-resident company will be exempt from withholding tax, provided that (i) the non-resident company is established in the European Economic Area or in a country with whom Belgium has concluded a tax treaty that includes a qualifying exchange of information clause, (ii) the non-resident company is subject to corporate income tax or a similar tax without benefiting from a tax regime that derogates from the ordinary tax regime, (iii) the non-resident company does not satisfy the 10%-participation threshold but has a participation in the Belgian company with an acquisition value of at least € 2,500,000 upon the date of payment or attribution of the dividend, (iv) the dividends relate to shares which are or will be held in full ownership for at least one year without interruption; (v) the non-resident company has a legal form as listed in the Annex I, Part A, to the Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, as amended by Directive 2014/86/EU of 8 July 2014, or, has a legal form similar to the ones listed in such annex and that is governed by the laws of another Member State of the EEA, or, by the law of a country with whom Belgium has concluded a qualifying double tax treaty, (vi) the ordinary Belgian withholding tax is, in principle, neither creditable nor reimbursable in the hands of the non-resident company and (vii) if the dividends concerned were received by a Belgian company, the Article 203 ITC Taxation Condition would be applicable and the dividends received deduction anti-abuse provision would not be applicable.
In order to benefit from the exemption of withholding tax, the non-resident company must provide the Belgian company or its paying agent with a certificate confirming (i) it has the above described legal form, (ii) it is subject to corporate income tax or a similar tax without benefiting from a tax regime that deviates from the ordinary domestic tax regime, (iii) it holds a participation of less than 10% in the capital of the Belgian company but with an acquisition value of at least € 2,500,000 upon the date of payment or attribution of the dividend, (iv) the dividends relate to shares in the Belgian company which it has held or will hold in full legal ownership for an uninterrupted period of at least one year, (v) to which extent it could in principle, would this exemption not exist, credit the levied Belgian withholding tax or obtain a reimbursement according to the legal provisions applicable upon 31 December of the year preceding the year of the payment or attribution of the dividends, and (vi) its full name, legal form, address and fiscal identification number, if applicable.
Belgian dividend withholding tax is subject to such relief as may be available under applicable double tax treaty provisions. Belgium has concluded double tax treaties with more than 95 countries, reducing the dividend withholding tax rate to 20%, 15%, 10%, 5% or 0% for residents of those countries, depending on conditions, among others, related to the size of the shareholding and certain identification formalities.
Prospective holders should consult their own tax advisors to determine whether they qualify for a reduction in withholding tax upon payment or attribution of dividends, and, if so, to understand the procedural requirements for obtaining a reduced withholding tax upon the payment of dividends or for making claims for reimbursement.
Belgian Taxation of capital gains and losses on Euronav Ordinary Shares
In principle, Belgian resident individuals acquiring the Euronav ordinary shares as a private investment should not be subject to Belgian capital gains tax on a later disposal of the Euronav ordinary shares and capital losses will not be tax deductible.
Capital gains realized by a Belgian resident individual are however taxable at 33% (plus local surcharges) if the capital gain on the Euronav ordinary shares is deemed to be realized outside the scope of the normal management of its private estate. Capital losses are, however, not tax deductible. Moreover, capital gains realized by Belgian resident individuals on the disposal of the Euronav ordinary shares to a non-resident company (or body constituted in a similar legal form), to a foreign State (or one of its political subdivisions or local authorities) or to a non-resident legal entity, each time established outside the European Economic Area, are in principle taxable at a rate of 16.5% (plus local surcharges) if, at any time during the five years preceding the sale, the Belgian resident individual has owned, directly or indirectly, alone or with his/her spouse or with certain relatives, a substantial shareholding in Euronav (i.e., a shareholding of more than 25% in Euronav). Capital losses arising from such transactions are, however, not tax deductible.
Capital gains realized by Belgian resident individuals in case of redemption of the Euronav ordinary shares or in case of liquidation of Euronav will generally be taxable as a dividend. See “Taxation of dividends on Shares — Belgian resident individuals”.
Belgian resident individuals who hold the Euronav ordinary shares for professional purposes are taxable at the ordinary progressive personal income tax rates (plus local surcharges) on any capital gains realized upon the disposal of the Euronav ordinary shares, except for the Euronav ordinary shares held for more than five years, which are taxable at a separate rate of, in principle, 10% (capital gains realized in framework of cessation of activities in certain circumstances) or 16.5% (other occasions), both plus local surcharges. Capital losses on the Euronav ordinary shares incurred by Belgian resident individuals who hold the Euronav ordinary shares for professional purposes are in principle tax deductible.
Belgian resident companies are normally not subject to Belgian capital gains taxation on gains realized upon the disposal of the Euronav Ordinary Shares provided that the Conditions for the application of the dividend received deduction regime are met. With respect to capital gains realized upon the disposal of the Euronav Ordinary Shares during a financial year that started prior to January 1, 2018 or a financial year ending prior to December 31, 2018, the condition that the Belgian resident company must hold Euronav Ordinary Shares representing at least 10% of the share capital of Euronav or having an acquisition value of at least EUR 2,500,000 does not apply, and such capital gains may be subject to a minimum tax of 0.412% if the Belgian resident company does not qualify as a small company within the meaning of Article 15, §1 to §6 of the Belgian Companies Code.
If the one-year minimum holding period condition is not met (but the other Conditions for the application of the dividend received deduction regime are met), the capital gains realized upon the disposal of the Euronav Ordinary Shares by Belgian resident companies are taxable at a separate corporate income tax rate of 25.50%. From assessment year 2019 (financial years starting from January 1, 2018) this separate rate for the non-fulfillment of the one-year detention condition does not apply to SMEs, insofar as the capital gain qualifies for the reduced rate of 20.40% (this is, with a taxable basis up to 100,000 EUR). This separate rate will be fully abolished as of the assessment year 2021 (financial years starting from January 1, 2020), since at that time the standard corporate tax rate will be reduced to 25% (or 20% for qualifying SMEs).
If the Conditions for the application of the dividend received deduction regime would not be met, any capital gain realized would be taxable at the standard corporate income tax rate of 29.58%, unless the reduced corporate income tax rates apply.
Capital losses on the Euronav ordinary shares incurred by Belgian resident companies are as a general rule not tax deductible.
Euronav ordinary shares held in the trading portfolios of Belgian qualifying credit institutions, investment enterprises and management companies of collective investment undertakings are subject to a different regime. The capital gains on such Euronav ordinary shares are taxable at the ordinary corporate
income tax rate of 29.58% and the capital losses on such Euronav ordinary shares are tax deductible. Internal transfers to and from the trading portfolio are assimilated to a realization.
Capital gains realized by Belgian resident companies in case of redemption of the Euronav ordinary shares or in case of liquidation of Euronav will, in principle, be subject to the same taxation regime as dividends.
Capital gains on the Euronav ordinary shares realized by OFPs within the meaning of Article 8 of the Belgian Act of October 27, 2006 are exempt from corporate income tax and capital losses are not tax deductible.
Belgian resident legal entities subject to the legal entities income tax are, in principle, not subject to Belgian capital gains taxation on the disposal of the Euronav Ordinary Shares. Capital losses on Shares incurred by Belgian resident legal entities are not tax deductible.
Capital gains realized upon disposal of (part of) a substantial participation in a Belgian company (i.e., a participation representing more than 25% of the share capital of Euronav at any time during the last five years prior to the disposal) may, however, under certain circumstances be subject to income tax in Belgium at a rate of 16.5% (plus crisis surcharge of 2%; such surcharge will however be abolished as of 1 January 2020).
Capital gains realized by Belgian resident legal entities in case of redemption of the Euronav ordinary shares or in case of liquidation of Euronav will, in principle, be subject to the same taxation regime as dividends.
Non-resident individuals or companies are, in principle, not subject to Belgian income tax on capital gains realized upon disposal of the Euronav ordinary shares, unless the Euronav ordinary shares are held as part of a business conducted in Belgium through a fixed base in Belgium or a Belgian PE. In such a case, the same principles apply as described with regard to Belgian individuals (holding the Euronav ordinary shares for professional purposes) or Belgian companies.
Non-resident individuals who do not use the Euronav ordinary shares for professional purposes and who have their fiscal residence in a country with which Belgium has not concluded a tax treaty or with which Belgium has concluded a tax treaty that confers the authority to tax capital gains on the Euronav ordinary shares to Belgium, might be subject to tax in Belgium if the capital gains arise from transactions which are to be considered speculative or beyond the normal management of one’s private estate or in case of disposal of a substantial participation in a Belgian company as mentioned in the tax treatment of the disposal of the Euronav ordinary shares by Belgian individuals. See “Taxation of capital gains and losses on Euronav ordinary shares — Belgian Resident Individuals”. Such non-resident individuals might therefore be obliged to file a tax return and should consult their own tax advisor.
Annual tax on securities accounts
Holders (full or bare ownership and usufruct) of one or more securities accounts — either Belgian resident individuals holding one or more securities accounts with Belgian or foreign financial intermediaries (financial institutions and investment companies licensed to hold financial instruments for the account of clients) or non-resident individuals holding one or more securities accounts with a Belgian financial intermediary — with total assets equal to or exceeding EUR 500,000 (EUR 1,000,000 for married couples) will be subject to (withholding) tax at a rate of 0.15% on their total share of the average value of the total amount of taxable assets. The taxable financial instruments are the following: rights of participation in collective investment funds and shares in investment companies (listed or not), listed and non-listed bonds, “
kasbons
” / “
bons de caisse
”, warrants, certificates of shares and bonds, listed and non-listed shares and trackers registered in securities accounts. Registered shares registered in the share register, pension savings arrangements, life insurance contracts, options, futures and swaps are excluded.
Investors should consult their own professional advisors in relation to the annual tax on securities accounts.
Belgian Tax on stock exchange transactions
The purchase and the sale and any other acquisition or transfer for consideration of existing Euronav Ordinary Shares (secondary market transactions) is subject to the Belgian tax on stock exchange
transactions (“
taks op de beursverrichtingen
” / “
taxe sur les opérations de bourse
”) if (i) it is executed in Belgium through a professional intermediary, or (ii) deemed to be executed in Belgium, which is the case if the order is directly or indirectly made to a professional intermediary established outside of Belgium, either by private individuals with habitual residence in Belgium, or legal entities for the account of their seat or establishment in Belgium (both referred to as a “Belgian Investor”). The tax on stock exchange transactions is not due upon the issuance of new Euronav Ordinary Shares.
The tax on stock exchange transactions is levied at a rate of 0.35% of the purchase price, capped at €1,600 per transaction and per party. Contrary to what applies to the selling party, the broker’s remuneration is not included in the taxable basis for the purchaser.
A separate tax is due by each party to the transaction, and both taxes are collected by the professional intermediary. However, if the intermediary is established outside of Belgium, the tax will in principle be due by the Belgian Investor, unless that Belgian Investor can demonstrate that the tax has already been paid. Professional intermediaries established outside of Belgium can, subject to certain conditions and formalities, appoint a Belgian stock exchange tax representative (“Stock Exchange Tax Representative”), which will be liable for the tax on stock exchange transactions in respect of the transactions executed through the professional intermediary. If such a Stock Exchange Tax Representative would have paid the tax on stock exchange transactions due, the Belgian Investor will, as per the above, no longer be the debtor of the tax on stock exchange transaction.
No tax on stock exchange transactions is due on transactions entered into by the following parties, provided they are acting for their own account: (i) professional intermediaries described in Article 2.9° and 10° of the Belgian Law of August 2, 2002 on the supervision of the financial sector and financial services; (ii) insurance companies described in Article 2, §1 of the Belgian Law of July 9, 1975 on the supervision of insurance companies; (iii) pension institutions referred to in Article 2,1° of the Belgian Law of October 27, 2006 concerning the supervision of pension institutions; (iv) undertakings for collective investment; (v) regulated real estate companies; and (vi) Belgian non-residents provided they deliver a certificate to their financial intermediary in Belgium confirming their non-resident status.
The proposed Financial Transaction Tax (FTT)
On February 14, 2013 the EU Commission adopted a Draft Directive on a common Financial Transaction Tax (the “FTT”). Earlier negotiations for a common transaction tax among all 28 EU Member States had failed. The current negotiations between Austria, Belgium, France, Germany, Greece, Italy, Portugal, Slovakia, Slovenia and Spain (the Participating Member States) are seeking a compromise under “enhanced cooperation” rules, which require consensus from at least nine nations. Earlier Estonia dropped out of the negotiations by declaring it would not introduce the FTT.
The Draft Directive currently stipulates that once the FTT enters into force, the Participating Member States shall not maintain or introduce taxes on financial transactions other than the FTT (or VAT as provided in the Council Directive 2006/112/EC of November 28, 2006 on the common system of value added tax). For Belgium, the tax on stock exchange transactions should thus be abolished once the FTT enters into force.
However, the Draft Directive on the FTT remains subject to negotiations between the Participating Member States. It may therefore be altered prior to any implementation, of which the eventual timing and outcome remains unclear. Additional EU Member States may decide to participate or drop out of the negotiations. If the number of Participating Member States would fall below nine, it would put an end to the project.
Prospective investors should consult their own professional advisors in relation to the FTT.
Other Tax Considerations
In addition to the tax consequences discussed above, Euronav may be subject to tax in one or more other jurisdictions where Euronav conducts activities. The amount of any such tax imposed upon Euronav’s operations may be material.
ENFORCEABILITY OF EURONAV CIVIL LIABILITIES
After the Merger, the Combined Company will be a Belgian Company and its principal executive office will be located outside of the United States in Belgium. Substantially all of the Combined Company’s assets will be located outside the United States and all of the Combined Company’s executive officers and a majority of the Combined Company’s directors will reside outside the United States, provided that Mr. Steven Smith is elected as a director at the next annual meeting of Euronav shareholders. Further, all of the experts named in this proxy statement/prospectus reside outside of the United States.
As a result, you may have difficulty serving legal process within the United States upon the Combined Company or any of these persons. You may also have difficulty enforcing, both in and outside the United States, judgments you may obtain in United States courts against Combined Company or these persons.
Furthermore, there is substantial doubt that courts in the countries in which Combined Company is incorporated or where Combined Company’s assets, directors or officers and such experts are located (i) would enforce judgments of U.S. courts obtained in actions against the Combined Company, directors or officers and such experts based upon the civil liability provisions of applicable U.S. federal and state securities laws or (ii) would enforce, in original actions, liabilities against the Combined Company, directors or officers and such experts based on those laws.
LEGAL MATTERS
Matters relating to United States law will be passed upon for us by Seward & Kissel LLP, One Battery Park Plaza, New York, New York 10004. The validity of the Euronav ordinary shares and certain other matters relating to Belgian law will be passed upon for us by ARGO LAW CVBA, Posthofbrug 12 – 5, 2600 Berchem, Belgium.
EXPERTS
The consolidated financial statements incorporated in this prospectus by reference from Gener8 Maritime, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2016, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements of Euronav NV and subsidiaries as of December 31, 2016 and 2015 and for each of the years in the three-year period ended December 31, 2016, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2016 have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG Bedrijfsrevisoren – Réviseurs d’Entreprises civil CVBA/SCRL, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
APPRAISERS
The appraisers, Clarksons Valuations and Vessel Values, provided valuations of the vessels contained in the fleets of both Euronav and Gener8. The Appraisers are internationally recognized shipbroking and appraisal firms not affiliated with Euronav or Gener8. The appraisers were engaged to provide the valuations based on their qualifications, experience, and reputations. These valuations were used as basis together with other elements for the NAV calculations by the management team of each company and to assist independent financial advisors in drafting fairness opinions. The valuations were not prepared in connection with or in contemplation of the Merger, and they do not purport to analyze the fairness of the merger consideration or provide any opinion regarding the Merger. The companies did not pay any additional transaction-based fees for the valuations. The full text of the valuations, which sets forth the assumptions made and limitations on the review undertaken in connection with the valuations, is included as Annex D to this proxy statement/prospectus
The charter-free valuations prepared by Clarksons Valuations are based on recent transactions, negotiations and broker’s market knowledge and assume charter-free delivery on a willing buyer, willing seller basis. The with charter valuations assume the charters will be fully performed. The valuations relate to June 30, 2017, September 21, 2017 and September 26, 2017 and are not a guide to the market value of the vessels at any other time. Market values in the shipping industry are volatile. Neither the vessels nor the charterparties have been inspected by Clarksons Valuations. The full valuation certificates of Clarksons Valuations and VesselValues.com that outline the assumptions used are reproduced in full in this proxy statement/prospectus as
Annex D
.
OTHER MATTERS
As of the date of this proxy statement/prospectus, the Gener8 board of directors knows of no matters that will be presented for consideration at the Special Meeting, other than as described in this proxy statement/prospectus. If any other matters properly come before holders of Gener8 common shares at the Special Meeting, or any adjournment or postponement thereof, and are voted upon, the enclosed proxy will be deemed to confer discretionary authority on the individuals that are named as proxies to vote the shares represented by the proxy as to any of these matters. The individuals named as proxies intend to vote in accordance with the recommendation of the Gener8 board of directors.
SHAREHOLDER PROPOSALS FOR NEXT ANNUAL MEETING
For shareholder proposals (either for nominations of directors or for other business) to be considered at Gener8’s next annual meeting, written notice of such proposal or nomination must be delivered to or mailed and received at the principal executive offices of Gener8, to the Secretary, not less than one hundred and fifty (150) days nor more than one hundred and eighty (180) days prior to the one-year anniversary of the date of the immediately preceding annual meeting of shareholders (which would be between November 17, 2017 and December 17, 2017). If the annual meeting is held more than thirty (30) days from such anniversary date, notice by the shareholder must be delivered no earlier than the one hundred and eightieth (180
th
) day prior to such annual meeting and no later than the close of business on the later of the one hundred and fiftieth (150
th
) day prior to the annual meeting or the tenth (10
th
) day following the day on which public announcement of the date of such meeting is first made by Gener8.
A shareholder’s notice to the Secretary with respect to other business to be brought before the annual meeting must be in such form as complies with the requirements of Gener8 Maritime, Inc.’s bylaws, including, with respect to nominations of directors, setting forth, among other things, the name, age, business and residence address of the nominee, the principal occupation of the nominee, and the number of shares of capital stock held beneficially or of record by the nominee. The notice must be accompanied by the written consent of the nominee to being named as a nominee and to serve as a director if elected.
A shareholder’s notice to the Secretary with respect to other business to be brought before the annual meeting must be in such form as complies with the requirements of Gener8’s bylaws, including setting forth, among other things, a brief description of the business to be brought before the annual meeting, the name, record address and tax identification number of the shareholder, the number of shares of capital stock beneficially owned or owned of record by the shareholder, a description of arrangements between the shareholder and any other persons in connection with the proposal and a representation that the shareholder intends to appear in person or by proxy to bring such business before the meeting.
WHERE YOU CAN FIND MORE INFORMATION
As required by the U.S. Securities Act, Euronav filed a registration statement relating to the securities offered by this proxy statement/prospectus with the SEC. This proxy statement/prospectus is a part of that registration statement, which includes additional information.
Government Filings
Euronav and Gener8 file annual and other reports with the SEC. You may read and copy any of this information and obtain copies at prescribed rates from the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling 1 (800) SEC-0330. The SEC maintains a website (http://www.sec.gov) that contains reports, proxy and information statements and other information regarding registrants that file electronically with the SEC. Further information about Euronav is available on its website at https://www.euronav.com/en/. Further information about Gener8 is available on its website at http://www.gener8maritime.com/. The information on these websites does not constitute a part of this proxy statement/prospectus.
Information Incorporated by Reference
The SEC allows Euronav and Gener8 to “incorporate by reference” information into this proxy statement/prospectus from information that Euronav and Gener8, respectively, files with the SEC This means that important information can be disclosed to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this proxy statement/prospectus, and certain information that Euronav or Gener8 files later with the SEC prior to the date of the Special Meeting, as it may be adjourned, will also be considered to be part of this proxy statement/prospectus and will automatically update and supersede previously filed information, including information contained in this document.
Euronav incorporates by reference the documents listed below:
•
Euronav’s annual report on Form 20-F for the year ended December 31, 2016, filed with the SEC on April 14, 2017, which contains its audited consolidated financial statements for the most recent fiscal year for which those statements have been filed;
•
Euronav’s Reports of Foreign Private Issuer on Form 6-K (excluding any management commentary contained therein) furnished to the SEC on April 27, 2017, May 9, 2017, May 11, 2017, May 16, 2017, May 17, 2017, June 1, 2017, August 11, 2017, October 23, 2017, November 2, 2017, November 27, 2017, November 30, 2017, December 5, 2017, December 22, 2017, January 26, 2018 and February 14, 2018; and
•
The description of Euronav’s ordinary shares contained in its Registration Statement on Form 8-A, filed with the SEC on January 21, 2015, including any subsequent amendments or reports filed for the purpose of updating such description.
Gener8 incorporates by reference the documents listed below:
•
annual report on Form 10-K for the fiscal year ended December 31, 2016, filed with the SEC on March 13, 2017;
•
quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2017, filed with the SEC on May 9, 2017, quarterly report on Form 10-Q for the fiscal quarter ended June 30, 2017, filed with the SEC on August 7, 2017, quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2017, filed with the SEC on November 9, 2017;
•
definitive proxy statement on Schedule 14A filed with the SEC on April 6, 2017; and
•
Gener8’s reports on Form 8-K filed with the SEC on each of March 28, 2017, April 14, 2017, May 9, 2017, May 18, 2017, June 6, 2017, August 1, 2017, October 2, 2017, November 9, 2017, December 21, 2017, and December 22, 2017.
A copy of each of these documents is being furnished together with the copy of this proxy statement/prospectus that is being sent to security holders.
Euronav and Gener8 are also incorporating by reference any document that is filed by Euronav or Gener8 after the date of the filing of the initial registration statement of which this proxy statement/prospectus forms a part and prior to the effectiveness of that registration statement, any future filings they make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, all subsequent annual reports on Form 20-F or Form 10-K that it files with the SEC and certain reports on Form 6-K and Form 8-K that it furnishes to the SEC after the date of this proxy statement/prospectus (if they state that they are incorporated by reference into the registration statement of which this proxy statement/prospectus forms a part) until prior to the date of the Special Meeting, as it may be adjourned. In all cases, you should rely on the later information over different information included in this proxy statement/prospectus or any prospectus supplement.
You should rely only on the information contained or incorporated by reference in this proxy statement/prospectus and any accompanying prospectus supplement. Euronav and Gener8 have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. Euronav and Gener8 are not making an offer to sell securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this proxy statement/prospectus and any accompanying prospectus supplement as well as the information Euronav filed with the SEC and is incorporated by reference, is accurate as of the dates on the front cover of those documents only. Euronav’s business, financial condition and results of operations and prospects may have changed since those dates.
You may request a free copy of the above mentioned filings or any subsequent filing Euronav incorporates by reference to this proxy statement/prospectus by writing or telephoning Euronav at the following address:
Euronav
De Gerlachekaai 20
2000 Antwerpen, Belgium
You may request a free copy of the above mentioned filings or any subsequent filing Gener8 incorporates by reference to this proxy statement/prospectus by writing or telephoning Gener8 at the following address
Gener8 Maritime, Inc.
299 Park Avenue
2nd Floor
New York, NY
Tel: +1 (212) 763-5600
You will not be charged for any of the documents that you request. If you would like to request documents, please do so by [•] (which is [•] business days before the date of the Special Meeting) in order to receive them before the Special Meeting.
SEC POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the U.S. Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the U.S. Securities Act and is therefore unenforceable.
Annex A
CONFIDENTIAL
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
dated as of December 20, 2017,
among
EURONAV NV
EURONAV MI INC.
and
GENER8 MARITIME, INC.
TABLE OF CONTENTS
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ARTICLE I
CERTAIN DEFINITIONS
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A-1
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ARTICLE II
THE MERGER
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A-11
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ARTICLE III
EFFECT OF THE MERGER
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A-12
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A-13
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A-13
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A-16
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A-16
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A-16
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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A-17
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A-17
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A-17
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A-18
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A-19
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A-20
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A-20
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A-21
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A-21
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A-22
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A-22
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A-23
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A-23
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A-23
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A-23
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A-24
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A-25
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A-25
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A-26
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A-26
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A-26
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A-26
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A-26
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A-26
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A-27
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A-27
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
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A-28
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A-28
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A-28
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A-29
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A-30
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A-31
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A-31
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A-32
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A-32
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A-33
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A-33
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A-33
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A-33
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A-34
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A-34
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A-35
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A-35
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A-36
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A-36
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A-36
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A-37
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A-37
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A-37
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A-37
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A-37
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A-37
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ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
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A-38
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A-41
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A-41
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A-42
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A-45
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A-45
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A-45
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A-46
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ARTICLE VII
COVENANTS OF PARENT
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A-46
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A-47
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A-47
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A-47
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A-47
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ARTICLE VIII
COVENANTS OF PARENT AND THE COMPANY
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A-48
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A-50
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A-51
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A-51
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A-51
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A-51
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A-52
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A-52
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A-53
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ARTICLE IX
CONDITIONS TO THE MERGER
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A-53
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A-53
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A-54
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A-54
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ARTICLE X
TERMINATION
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A-55
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A-56
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ARTICLE XI
MISCELLANEOUS
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A-56
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A-57
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A-57
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A-57
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A-58
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A-58
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A-59
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A-59
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A-59
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A-59
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A-59
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A-60
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A-60
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A-60
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A-60
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A-60
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A-60
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A-1
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Sch-1
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 20, 2017 (this “
Agreement
”), among Euronav NV, a corporation organized under the laws of the Kingdom of Belgium (“
Parent
”), Euronav MI Inc., a corporation organized under the laws of the Republic of the Marshall Islands and a direct wholly-owned subsidiary of Parent (“
Merger Sub
”), and Gener8 Maritime, Inc., a corporation organized under the laws of the Republic of the Marshall Islands (the “
Company
”). Parent, Merger Sub and the Company are each referred to herein as a “
Party
” and collectively as the “
Parties
”. Capitalized terms used herein shall have the meanings ascribed to such terms in
Section 1.1
and elsewhere in this Agreement.
RECITALS
WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, the Parties wish to merge Merger Sub with and into the Company (the “
Merger
”), with the Company continuing as the surviving corporation and a direct wholly-owned subsidiary of Parent;
WHEREAS, a transaction advisory committee (the “
Transaction Committee
”) established by the board of directors of the Company (the “
Company Board
”) has unanimously (i) determined that this Agreement and the Transactions, including the Merger, are fair to and in the best interests of the Company and its shareholders, (ii) declared advisable this Agreement and the Transactions, including the Merger, and (iii) recommended to the Company Board that this Agreement and the Transactions, including the Merger, be approved by the Company Board and submitted to the Company Shareholders Meeting for approval;
WHEREAS, the Company Board, upon the recommendation of the Transaction Committee, has (i) determined that this Agreement and the Transactions, including the Merger, are fair to and in the best interests of the Company and its shareholders, (ii) approved, adopted and declared advisable this Agreement and the Transactions, including the Merger, and (iii) recommended that this Agreement and the Transactions, including the Merger, be submitted to the Company Shareholders Meeting for approval;
WHEREAS, each of the board of directors of Parent (the “
Parent Board
”) (on its own behalf and as the sole shareholder of Merger Sub) and the board of directors of Merger Sub has approved this Agreement and the Transactions, including the Merger;
WHEREAS, for U.S. federal income tax purposes, it is intended that (i) the Merger, including the receipt of Parent Shares by Company Common Shareholders, qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations thereunder, and (ii) this Agreement constitutes, and is adopted as, a “plan of reorganization” for purposes of Section 368 of the Code and the Treasury Regulations thereunder; and
WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions thereto;
NOW, THEREFORE, in consideration of the foregoing and the representations and warranties, covenants and agreements contained herein, the Parties hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1.
Certain Definitions
.
(a) When used in this Agreement, the following terms will have the meanings assigned to them in this
Section 1.1(a)
:
“
1933 Act
” means the Securities Act of 1933, as amended.
“
1934 Act
” means the Securities Exchange Act of 1934, as amended.
“
Acquisition Proposal
” means any offer, proposal, inquiry or indication of interest or any public announcement of intention to enter into any agreement or of (or intention to make) any offer, proposal, inquiry or indication of interest by a Third Party relating to any transaction or series of related transactions involving (i) any direct or indirect acquisition, lease or other disposition of assets of the Company or its
Subsidiaries (including any Company Vessels or voting securities of the Company’s Subsidiaries) equal to, individually or in the aggregate, 15% or more of the fair market value of the consolidated assets of the Company and its Subsidiaries or to which 15% or more of the consolidated net income or revenues of the Company and its Subsidiaries for the then most recently completed four-quarter period are attributable, (ii) any direct or indirect acquisition of 15% or more of the total outstanding equity or voting securities of the Company, including by way of tender offer or exchange offer, (iii) a merger, consolidation, spin-off, share exchange (including a split-off), business combination, sale of substantially all the assets, reorganization, recapitalization, liquidation, extraordinary dividend, dissolution or other similar transaction involving the Company or any of its Subsidiaries involving (A) 15% or more of the consolidated assets of the Company and its Subsidiaries or assets of the Company and/or any of its Subsidiaries that represented, individually or in the aggregate, 15% or more of the consolidated net income or revenues of the Company for the then most recently completed four-quarter period or (B) 15% or more of the total outstanding equity or voting securities of the Company, or (iv) any other transaction or series of transactions having a similar effect to those described in
clauses (i)
,
(ii)
or
(iii)
.
“
Action
” means any litigation, claim, action, suit, hearing, arbitration, audit, inspection, investigation or other proceeding (whether civil, criminal, administrative, labor or investigative) by or before a Governmental Authority or arbitrator(s).
“
Affiliate
” means, with respect to a Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control with, such Person. For purposes of this definition and as used otherwise in this Agreement, “
Control
” (including the terms “Controlled by” and “under common Control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, as trustee or executor, by Contract or otherwise;
provided
, that in no event shall any portfolio company of a private equity investor or asset management investor in a Party be deemed an Affiliate of such Party.
“
Antitrust Laws
” means any antitrust, competition or trade regulatory Laws of any jurisdiction, including the HSR Act.
“
BCC
” means the Belgian Companies Code adopted by the Act of May 7, 1999, as amended and replaced from time to time.
“
Book-Entry Share
” means a share of Company Common Stock outstanding immediately prior to the Effective Time represented by book-entry.
“
Business Day
” means (except as otherwise expressly set forth herein) a day other than Saturday, Sunday or other day on which commercial banks located in New York, New York or in Brussels, Belgium are authorized or required by applicable Law to close.
“
Certificate
” means each certificate which, immediately prior to the Effective Time, represented outstanding shares of Company Common Stock.
“
Closing Parent Price
” means the closing price per Parent Share on the NYSE (as reported on Bloomberg or, if not reported thereby, another alternative source as reasonably agreed by Parent and the Company) on the last trading day prior to the Effective Date.
“
Code
” means the Internal Revenue Code of 1986, as amended.
“
Company Balance Sheet
” means the audited consolidated balance sheet of the Company as of December 31, 2016, and the footnotes thereto, audited by the Company’s auditors Deloitte & Touche LLP.
“
Company Balance Sheet Date
” means December 31, 2016.
“
Company Benefit Plan
” means any employee benefit plan, including any (i) deferred compensation or retirement plan or arrangement, (ii) defined contribution retirement plan or arrangement, (iii) defined benefit retirement plan or arrangement, (iv) employee welfare benefit plan or material fringe benefit plan or program, or (v) stock purchase, stock option, severance pay, employment, change-in-control, retention, vacation pay, salary continuation, sick leave, excess benefit, bonus or other incentive compensation, life insurance, employee loan or other employee benefit plan, practice, contract,
program, policy or other arrangement, whether written or oral, formal or informal, whether or not subject to ERISA, under which any present or former employee, director, officer, consultant or independent contractor of the Company or any of its Subsidiaries has any present or future right to compensation, payments or benefits and that is sponsored or maintained or contributed to by the Company or any of its Subsidiaries.
“
Company Common Shareholders
” means those Persons holding outstanding shares of Company Common Stock immediately prior to the Effective Time.
“
Company Common Stock
” means common stock of the Company, $0.01 par value per share.
“
Company Disclosure Documents
” means any form, report, schedule, statement or other document required to be filed or provided with or to the SEC, NYSE, Euronext or other Governmental Authority by the Company or distributed or otherwise disseminated by the Company to the Company’s shareholders or the holders of any outstanding Company Stock Options or Company RSUs in connection with the Transactions, including the Registration Statement or the Proxy Statement.
“
Company Disclosure Letter
” means the Disclosure Letter dated the date hereof regarding this Agreement that has been provided by the Company to Parent.
“
Company Incentive Plan
” means the Company’s 2012 Equity Incentive Plan (as amended and restated, effective June 22, 2015).
“
Company Material Adverse Effect
” means any change, effect, event, occurrence, or development that, individually or in the aggregate with all such other changes, events, occurrences or developments, (i) has or would reasonably be expected to have a material adverse effect on the financial condition, business, assets (including Company Vessels), and liabilities (taken as a whole) or results of operations of the Company and its Subsidiaries, taken as a whole;
provided
, that none of the changes, effects, events, occurrences or developments to the extent attributable to the following shall be taken into account in determining whether there has been a Company Material Adverse Effect: (A) changes in applicable Law, GAAP or IFRS or authoritative interpretations thereof, in each case, after the date hereof, (B) changes in the global financial or securities markets or general global economic or political conditions, (C) changes or conditions generally affecting the industry in which the Company and its Subsidiaries operate, (D) acts of war, sabotage or terrorism, or any escalation or the worsening of the foregoing, or natural disasters, (E) other than for purposes of
Section 4.3
and
Section 4.17(g)
(and, to the extent related thereto, the conditions set forth in
Section 9.3(a)(iii)
), the execution or performance of this Agreement or the announcement or consummation of the Transactions, (F) any failure by the Company and its Subsidiaries to meet any internal or published projections, forecasts or predictions in respect of financial or operating performance for any future period (
provided
that, in the case of this clause (F), the underlying cause of any such failure may be taken into account in determining whether a Company Material Adverse Effect has occurred), (G) the taking of any action required or permitted by this Agreement (
provided
, that the exception in this clause (G) shall not apply to any representation or warranty contained in
Section 4.3
or
Section 4.17(g)
(and, to the extent related thereto, the conditions set forth in
Section 9.3(a)(iii)
), or (H) the Specified Approvals having not been obtained at Closing;
provided
, that the effect of any matter referred to in
clauses (A)
,
(B)
,
(C)
, or
(D)
shall only be excluded to the extent that such matter does not disproportionately affect the Company and its Subsidiaries, taken as a whole, relative to other entities operating in the oil tanker shipping industry, or (ii) has or would reasonably be expected to materially impair the ability of the Company to perform its obligations under this Agreement or materially delay the ability of the Company to consummate the Transactions.
“
Company Permitted Liens
” means (i) Liens disclosed on the Company Balance Sheet, (ii) Liens for Taxes that are not yet due and payable or that are being contested in good faith by appropriate proceedings (and for which adequate accruals or reserves have been established on the Company Balance Sheet), (iii) statutory Liens of landlords and workers’, carriers’ and mechanics’ or other like Liens incurred in the ordinary course of business consistent with past practices for amounts that are not yet due and payable or that are being contested in good faith, (iv) Liens on Company Vessels for crews’ wages and salvage, for claims covered by insurance, and for maritime liens arising in the ordinary course of business which secure obligations not yet due and payable or not more than thirty (30) days overdue, (v) other Liens
incidental to the conduct of the business of the Company and its Subsidiaries or the ownership of the Company’s or its Subsidiaries’ property and assets and arising by operation of law which secure obligations not yet due or payable or not more than thirty (30) days overdue, (vi) restrictions on transfer of securities under applicable securities Laws, (vii) Liens that will be released on or prior to the Closing Date, and (viii) Liens incurred in the ordinary course of business consistent with past practice that are not reasonably likely to adversely interfere in a material way with the use of the property or assets encumbered thereby.
“
Company Preferred Stock
” means the preferred stock of the Company, $0.01 par value per share.
“
Company RSU
” means a restricted stock unit representing the right to earn one (1) share of Company Common Stock issued pursuant to the Company Incentive Plan or otherwise issued or granted by the Company.
“
Company Stock Option
” means an option to purchase shares of Company Common Stock issued pursuant to the Company Incentive Plan or otherwise issued or granted by the Company.
“
Company Vessels
” means Company Owned Vessels and Company Leased Vessels.
“
Contract
” means any contract, agreement, note, bond, indenture, mortgage, guarantee, option, derivative, lease, license, sales or purchase order, warranty, commitment or other instrument, obligation or binding arrangement or understanding of any kind, whether written or oral.
“
Contribution in Kind
” means the Belgian legal concept of a capital increase following an “
inbreng in natura/apports en nature
” as set out in articles 601 and 602 of the BCC.
“
Control
” has the meaning specified in the definition of Affiliate.
“
Environmental Laws
” means applicable Laws, any agreement with any Governmental Authority and Maritime Guidelines, in each case, relating to human health and safety, the environment or to pollutants, natural resources, contaminants, wastes or chemicals or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substances, wastes or materials (including the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. §9601
et seq
., the Oil Pollution Act of 1990, the Federal Water Pollution Control Act, 33 U.S.C. § 1251
et seq.
, the Hazardous Material Transportation Act, 49 U.S.C. § 1801
et seq.
, the Occupational Safety and Health Act, 29 U.S.C. § 651
et seq.
, and any state and local or foreign counterparts or equivalents).
“
EU Listing Prospectus
” means the prospectus issued by Parent with respect to the admission to trading of the Merger Consideration in accordance with the European Prospectus Regulation 2017/1129 and the Belgian Law of 16 June 2006 on the public offering of securities and the admission of securities to trading on a regulated market, to be approved by the FSMA.
“
Euronext
” means Euronext Brussels, i.e., the Brussels Stock Exchange.
“
Exchange Agent
” means Computershare, Inc. and its subsidiary Computershare Trust Company, N.A. or such other bank or independent financial institution in the United States (or non-Belgian Affiliate thereof) reasonably acceptable to the Company and Parent, the appointment of which shall have been approved by the shareholders of the Company at the Company Shareholders Meeting.
“
FSMA
” means the Belgian Financial Services and Markets Authority.
“
GAAP
” means generally accepted accounting principles in the United States, consistently applied.
“
Governmental Authority
” means any entity or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to United States federal, state or local government or other non-United States (including the Republic of the Marshall Islands and the Kingdom of Belgium), international, multinational, supranational (including the European Union or the European Central Bank) or other government or body, including any department, commission, board, agency, instrumentality, political subdivision, bureau, official or other regulatory, administrative or judicial authority thereof and any self-regulatory organization, including the NYSE and Euronext.
“
Governmental Authorizations
” means, with respect to any Person, all licenses, permits (including construction permits), certificates, waivers, consents, franchises, accreditations, exemptions, variances, easements, expirations and terminations of any waiting period requirements and other authorizations and approvals issued to such Person by or obtained by such Person from any Governmental Authority, or of which such Person has the benefit under any applicable Law.
“
HSR Act
” means the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder.
“
IFRS
” means the international financial reporting standards adopted by the International Accounting Standards Board from time to time, consistently applied.
“
Indebtedness
” means, with respect to any Person as of any date of determination, without duplication, any (i) obligation of such Person with respect to any indebtedness for borrowed money as of such date (including all obligations for principal, accrued interest, and any premiums, penalties, fees, expenses and breakage costs that are payable by such Person as of such date), (ii) obligation of such Person with respect to any indebtedness evidenced by any bond, debenture, note, mortgage, indenture or other debt instrument or debt security as of such date (including all obligations for principal, accrued interest, and any premiums, penalties, fees, expenses and breakage costs that are payable by such Person as of such date), (iii) obligation of such Person with respect to any sale/leaseback or similar arrangement in respect of a vessel (including all obligations for principal, accrued interest, and any premiums, penalties, fees, expenses and breakage costs that are payable by such Person as of such date), (iv) all reimbursement obligations with respect to outstanding banker’s acceptances or letters of credit, but in the case of letters of credit only to the extent drawn as of such date, (v) liability of such Person as of such date with respect to any hedging obligations, including interest rate or currency exchange swaps, collars, caps or similar hedging obligations, (vi) responsibility or liability of such Person as of such date directly or indirectly as obligor, guarantor, surety or otherwise of any of the foregoing, and (vii) obligations of the type referred to in
clauses (i)
through
(vi)
of other Persons secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person).
“
Intervening Event
” means a material fact, event, change, development, or set of circumstances (other than an Acquisition Proposal) affecting the business, assets or operations of the Company and occurring or arising after the date of this Agreement that was not known or reasonably foreseeable by the Transaction Committee or the Company Board as of or prior to the date of this Agreement;
provided
, that no fact, event, change, development or set of circumstances shall constitute an Intervening Event if such fact, event, change, development or set of circumstances (a) affects the oil tanker shipping industry generally (including events that generally affect the market value of vessels or charter hire rates), or (b) resulted from or arose out of the announcement or consummation of the Transactions or the compliance by the Company with its covenants and agreements hereunder;
provided
,
further
, that no such affect on the Company shall be considered to be material and thus an Intervening Event if the economic impact on the Company is less than $50,000,000.
“
KEXIM Credit Agreement
” means the $963,743,455 Facility Agreement, dated as of 31 August 2015 (as amended by Amendment No. 1, dated as of 20 October 2016, Amendment No. 2, dated as of 24 March 2017, and Amendment No. 3, dated as of 1 June 2017), among Gener8 Maritime Subsidiary VIII Inc., as borrower, Gener8 Maritime Subsidiary V, as shareholder, the Company, as parent guarantor, the guarantors party thereto, the lenders party thereto and Nordea Bank AB (publ), New York Branch, as facility agent for the lenders.
“
Knowledge of Parent
” or any similar phrase means the actual knowledge of the following persons: Paddy Rodgers, Hugo De Stoop, Alex Staring and Egied Verbeeck.
“
Knowledge of the Company
” or any similar phrase means the actual knowledge of the following persons: Peter Georgiopoulos, Leonard Vrondissis, John Tavlarios, Milton Gonzalez, Sean Bradley and George Fikaris.
“
KPMG
” means KPMG Bedrijfsrevisoren-Reviseurs d’Enterprises Burg. CVBA.
“
Law
” means any foreign, supranational, federal, state, provincial or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, Order or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority.
“
Lien
” means, with respect to any property or asset, any mortgage, lien, pledge, hypothecation, charge, security interest, infringement, interference, right of first refusal, right of first offer, preemptive right, option, community property right or other adverse claim or encumbrance of any kind in respect of such property or asset.
“
Maritime Guidelines
” means any United States, international or non-United States (including the Marshall Islands, Liberia and Bermuda) rule, code of practice, convention, protocol, guideline or similar requirement or restriction concerning or relating to a Company Vessel or Parent Vessel, as applicable, and to which a Company Vessel or Parent Vessel, as applicable, is subject and required to comply with, imposed, published or promulgated by any relevant Governmental Authority, the International Maritime Organization, such Company Vessel’s or Parent Vessel’s, as applicable, classification society or the insurer(s) of such Company Vessel or Parent Vessel, as applicable.
“
Material Contracts
” means each Contract set forth on, or required to be set forth on,
Section 4.15(a) of the Company Disclosure Letter
or
Section 5.15(a) of the Parent Disclosure Letter
.
“
Merger Consideration
” means the Parent Shares to be issued pursuant to
Section 3.1(a)
and
Section 3.2(b)
.
“
MIBCA
” means the Marshall Islands Business Corporations Act.
“
Newbuildings
” means vessels contracted to be constructed, under construction or newly constructed for, but not yet delivered to, (i) the Company or any of its Subsidiaries, other than Company Vessels or (ii) Parent or any of its Subsidiaries, other than Parent Vessels, in each case, as applicable.
“
Notarial Deed
” means the notarial deed to be enacted by a Belgian notary public with respect to the capital increase within the framework of the authorized capital resulting from the Contribution in Kind by the Exchange Agent of the Surviving Corporation Shares in the name and on behalf of and for the account and benefit of the former Company Common Shareholders to Parent in return for being issued the Merger Consideration (new Parent Shares) in the name and on behalf of and for the account and benefit of the former Company Common Shareholders and the holders of any outstanding Company Stock Options or Company RSUs.
“
NYSE
” means the New York Stock Exchange.
“
Option Consideration
” means, with respect to each Company Stock Option issued and outstanding immediately prior to the Closing Date, an amount in cash equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Closing Date, and (ii) the excess, if any, of the Transaction Value Per Share over the exercise price applicable to such shares of Company Common Stock subject to such Company Stock Option. If the exercise price applicable to shares of Company Common Stock subject to a Company Stock Option is equal to or greater than the Transaction Value Per Share, no Option Consideration shall be payable hereunder.
“
Order
” means any injunction, judgment, decree, order, ruling, writ, assessment, subpoena or verdict or other decision issued, promulgated or entered by or with any Governmental Authority of competent jurisdiction.
“
Parent Audit Report
” means the unqualified special report on the Contribution in Kind of the Surviving Corporation Shares drawn up by Parent’s auditors KPMG in accordance with article 602 of the BCC.
“
Parent Balance Sheet
” means the audited consolidated balance sheet of Parent as of December 31, 2016, and the footnotes thereto, audited by Parent’s auditors KPMG.
“
Parent Balance Sheet Date
” means December 31, 2016.
“
Parent Benefit Plan
” means any employee benefit plan, including any (i) deferred compensation or retirement plan or arrangement, (ii) defined contribution retirement plan or arrangement, (iii) defined benefit retirement plan or arrangement, (iv) employee welfare benefit plan or material fringe benefit plan or program, or (v) stock purchase, stock option, severance pay, employment, change-in-control, retention, vacation pay, salary continuation, sick leave, excess benefit, bonus or other incentive compensation, life insurance, employee loan or other employee benefit plan, practice, contract, program, policy or other arrangement, whether written or oral, formal or informal, whether or not subject to ERISA, under which any present or former employee, director, officer, consultant or individual independent contractor of Parent or any of its Affiliates has any present or future right to compensation, payments or benefits and that is sponsored or maintained or contributed to by Parent or any of its Affiliates.
“
Parent Disclosure Documents
” means any form, report, schedule, statement or other document required to be filed or provided with or to the SEC, NYSE, Euronext or other Governmental Authority by Parent or distributed or otherwise disseminated by Parent to Parent’s shareholders, the Company’s shareholders or the holders of any outstanding Company Stock Options or Company RSUs in connection with the Transactions, including the Registration Statement, the Proxy Statement, the EU Listing Prospectus, the Parent Special Board Report and the Parent Audit Report.
“
Parent Disclosure Letter
” means the Disclosure Letter dated the date hereof regarding this Agreement that has been provided by Parent to the Company.
“
Parent Material Adverse Effect
” means any change, effect, event, occurrence, or development that, individually or in the aggregate with all such other changes, events, occurrences or developments, (i) has or would reasonably be expected to have a material adverse effect on the financial condition, business, assets (including Parent Vessels), and liabilities (taken as a whole) or results of operations of Parent and Parent’s Subsidiaries, taken as a whole;
provided
, that none of the changes, effects, events, occurrences or developments to the extent attributable to the following shall be taken into account in determining whether there has been a Parent Material Adverse Effect: (A) changes in applicable Law, GAAP or IFRS or authoritative interpretations thereof, in each case, after the date hereof, (B) changes in the global financial or securities markets or general global economic or political conditions, (C) changes or conditions generally affecting the industry in which Parent and its Subsidiaries operate, (D) acts of war, sabotage or terrorism, or any escalation or worsening of the foregoing, or natural disasters, (E) other than for purposes of
Section 5.3
and
Section 5.17(f)
(and, to the extent related thereto, the conditions set forth in
Section 9.2(a)(iii)
), the execution or performance of this Agreement or the announcement or consummation of the Transactions, (F) any failure by the Parent and its Subsidiaries to meet any internal or published projections, forecasts or predictions in respect of financial or operating performance for any future period (
provided
that, in the case of this clause (F), the underlying cause of any such failure may be taken into account in determining whether a Parent Material Adverse Effect has occurred), or (G) the taking of any action required or permitted by this Agreement (
provided
, that the exception in this clause (G) shall not apply to any representation or warranty contained in
Section 5.3
or
Section 5.17(f)
(and, to the extent related thereto, the conditions set forth in
Section 9.2(a)(iii)
);
provided
, that the effect of any matter referred to in
clauses (A)
,
(B)
,
(C)
or
(D)
shall only be excluded to the extent that such matter does not disproportionately affect Parent and its Subsidiaries, taken as a whole, relative to other entities operating in the oil tanker shipping industry, or (ii) has or would reasonably be expected to materially impair the ability of Parent to perform its obligations under this Agreement or materially delay the ability of Parent to consummate the Transactions.
“
Parent Permitted Liens
” means (i) Liens disclosed on the Parent Balance Sheet, (ii) Liens for Taxes that are not yet due and payable or that are being contested in good faith by appropriate proceedings (and for which adequate accruals or reserves have been established on the Parent Balance Sheet), (iii) statutory Liens of landlords and workers’, carriers’ and mechanics’ or other like Liens incurred in the ordinary course of business consistent with past practices for amounts that are not yet due and payable or that are being contested in good faith, (iv) Liens on Parent Vessels for crews’ wages and salvage, for claims covered by insurance, and for maritime liens arising in the ordinary cause of business which secure obligations not yet due and payable or not more than thirty (30) days overdue, (v) other Liens incidental to the conduct of the business of Parent and its Subsidiaries or the ownership of Parent’s or its Subsidiaries’ property and assets and arising by operation of law which secure obligations not yet due and payable or not
more than thirty (30) days overdue, (vi) restrictions on transfer of securities under applicable securities Laws, (vii) Liens that will be released on or prior to the Closing Date, and (viii) Liens incurred in the ordinary course of business consistent with past practice that are not reasonably likely to adversely interfere in a material way with the use of the property or assets encumbered thereby.
“
Parent Shares
” means the ordinary shares of Parent, no par value per share.
“
Parent Special Board Report
” means the special report on the Contribution in Kind of the Surviving Corporation Shares drawn up by the Parent Board in accordance with article 602 of the BCC.
“
Parent Vessels
” the Parent Owned Vessels and the Parent Leased Vessels.
“
Parent VWAP
” means the volume weighted average price per Parent Share on the NYSE (as reported on Bloomberg or, if not reported thereby, another alternative source as reasonably agreed by Parent and the Company) for the three (3) consecutive trading days ending on the trading day before the Effective Date.
“
Per Share Merger Consideration
” means 0.7272 Parent Shares for each share of Company Common Stock (excluding the Specified Company Shares).
“
Person
” means an individual, corporation, partnership, limited liability company, a trust, an unincorporated association, or other entity or organization, including a Governmental Authority.
“
Representatives
” means, with respect to any Person, the respective directors, officers, employees, consultants, counsel, accountants, agents, advisors, investment bankers and other representatives of, or Persons retained by, such Person.
“
SEC
” means the United States Securities and Exchange Commission.
“
Sinosure Credit Agreement
” means the $385,227,495 Facility Agreement, dated as of 30 November 2015 (as supplemented by a Supplemental Agreement, dated as of 28 December 2015, as amended and restated by an Amending and Restating Deed, dated as of 29 June 2016 and as further supplemented by a Second Supplemental Agreement, dated as of 8 November 2017), among Gener8 Maritime Subsidiary VII Inc., as borrower, Gener8 Maritime Subsidiary V, as shareholder, the Company, as parent guarantor, the guarantors party thereto, the lenders party thereto and Nordea Bank AB (publ), New York Branch, as facility agent for the lenders.
“
Specified Approvals
” means the (i) the amendment, consent and waiver of all lenders, the “Required Lenders” (as defined in the Sinosure Credit Agreement) and/or China Export & Credit Insurance Corporation, as applicable, under the Sinosure Credit Agreement in respect of the provisions of the Sinosure Credit Agreement identified on
Schedule 1
hereto and under the Sinosure Insurance Policy (as defined in the Sinosure Credit Agreement); (ii) the amendment, consent and waiver of all lenders, the “Majority Lenders” (as defined in the KEXIM Credit Agreement) and/or Korea Trade Insurance Corporation, as applicable under the KEXIM Credit Agreement in respect of the provisions of the KEXIM Credit Agreement identified on
Schedule 1
hereto and under the K-Sure Insurance Policy (as defined in the KEXIM Credit Agreement); and (iii) such other amendments, consents and waivers under the Sinosure Credit Agreement or KEXIM Credit Agreement or any of the Transaction Documents (as defined in each of the Sinosure Credit Agreement and KEXIM Credit Agreement) in order to allow the Merger to be properly entered into and documented without causing a breach of any of the terms of the Sinosure Credit Agreement, the KEXIM Credit Agreement or the Transaction Documents thereunder.
“
Specified Company Shares
” means any shares of Company Common Stock to be canceled in accordance with
Section 3.1(b)
.
“
Subsidiary
” means, with respect to any Person, any corporation, limited liability company, partnership, joint venture or other legal entity of which such Person (either alone or through or together with any other Subsidiary), owns, directly or indirectly, more than 50% of the stock or other equity interests, the holders of which are generally entitled to vote for the election of the board of directors or other governing body of a non-corporate Person.
“
Surviving Corporation Shares
” means shares of common stock of the Surviving Corporation, $0.01 par value per share.
“
Tax Returns
” means any return, declaration, report, claim for refund, election, disclosure, estimate or information return or statement required to be supplied to a taxing authority in connection with Taxes, including any schedule or attachment thereto, and including any amendment thereof.
“
Taxes
” means all federal, state, local and foreign income, profits, tonnage, franchise, gross receipts, environmental, customs duty, capital stock, severance, stamp, payroll, sales, transfer, employment, unemployment, disability, use, property, withholding, excise, production, value added, occupancy and other taxes, duties or assessments of any nature whatsoever (whether payable directly or by withholding and whether or not requiring the filing of a Tax Return), including all estimated taxes, deficiency assessments, additions to tax, penalties and interest, whether disputed or not and including any obligations to indemnify or otherwise assume or succeed to the Tax liability of any other Person.
“
Third Party
” means any Person, including as defined in Section 13(d) of the 1934 Act, other than Parent or any of its Affiliates.
“
Transaction Value Per Share
” means the product of (i) the Closing Parent Price, and (ii) an amount equal to (A) the aggregate Merger Consideration
divided
by
(B) the aggregate number of shares of Company Common Stock, without duplication, issued and outstanding immediately prior to the Effective Time or subject to Company RSUs issued and outstanding immediately prior to the Effective Time (excluding the Specified Company Shares).
“
Transactions
” means the transactions contemplated by this Agreement, including the Merger.
(b) For purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires: (i) the meaning assigned to each term defined herein will be equally applicable to both the singular and the plural forms of such term and vice versa, and words denoting any gender will include all genders as the context requires; (ii) where a word or phrase is defined herein, each of its other grammatical forms will have a corresponding meaning; (iii) the terms “hereof”, “herein”, “hereunder”, “hereby” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement; (iv) when a reference is made in this Agreement to an Article, Section, paragraph, Exhibit or Schedule without reference to a document, such reference is to an Article, Section, paragraph, Exhibit or Schedule to this Agreement; (v) a reference to a subsection without further reference to a Section is a reference to such subsection as contained in the same Section in which the reference appears, and this rule will also apply to paragraphs and other subdivisions; (vi) the word “include”, “includes” or “including” when used in this Agreement will be deemed to include the words “without limitation”, unless otherwise specified; (vii) a reference to any party to this Agreement or any other agreement or document will include such party’s predecessors, successors and permitted assigns; (viii) a reference to any Law means such Law as amended, modified, codified, replaced or reenacted, and all rules and regulations promulgated thereunder; (ix) a reference to any Contract will include such Contract as amended, supplemented or modified (including any waiver thereto) in accordance with the terms thereof, except that with respect to any Contract listed in the Company Disclosure Letter or the Parent Disclosure Letter, all such amendments, supplements or modifications must also be listed in the Company Disclosure Letter or the Parent Disclosure Letter; (x) all accounting terms used and not defined herein have the respective meanings given to them under GAAP (if relating to the Company) or IFRS (if relating to Parent); (xi) all references to “day” or “days” are to calendar days; and (xii) any references in this Agreement to “dollars” or “$” shall be to U.S. dollars.
(c)
Additional Terms
. Each of the following terms is defined in the Section set forth opposite such term:
|
Term
|
|
|
Section
|
|
|
Adjournment Period
|
|
|
Section 8.1(d)
|
|
|
Adverse Recommendation Change
|
|
|
Section 6.4(a)
|
|
|
Agreement
|
|
|
Preamble
|
|
|
Term
|
|
|
Section
|
|
|
Articles of Merger
|
|
|
Section 2.1(c)
|
|
|
BlueMountain
|
|
|
Section 3.2(d)
|
|
|
Closing
|
|
|
Section 2.1(b)
|
|
|
Closing Date
|
|
|
Section 2.1(b)
|
|
|
Company
|
|
|
Preamble
|
|
|
Company Board
|
|
|
Recitals
|
|
|
Company Board Recommendation
|
|
|
Section 4.2(b)
|
|
|
Company Charter Documents
|
|
|
Section 4.1
|
|
|
Company Disclosure Information
|
|
|
Section 4.8
|
|
|
Company Group Charter Documents
|
|
|
Section 4.5(b)
|
|
|
Company Interested Party Transaction
|
|
|
Section 4.24(a)
|
|
|
Company Leased Vessels
|
|
|
Section 4.14(a)
|
|
|
Company Owned Vessels
|
|
|
Section 4.14(a)
|
|
|
Company SEC Documents
|
|
|
Section 4.6(a)
|
|
|
Company Securities
|
|
|
Section 4.4(b)
|
|
|
Company Shareholders Approval
|
|
|
Section 4.2(a)
|
|
|
Company Shareholders Meeting
|
|
|
Section 8.1(d)
|
|
|
Company Subsidiary Charter Documents
|
|
|
Section 4.5(b)
|
|
|
Company Subsidiary Securities
|
|
|
Section 4.5(c)
|
|
|
Company Termination Fee
|
|
|
Section 11.4(b)
|
|
|
Confidentiality Agreement
|
|
|
Section 6.3
|
|
|
D&O Insurance
|
|
|
Section 7.1(c)
|
|
|
Effective Time
|
|
|
Section 2.1(c)
|
|
|
End Date
|
|
|
Section 10.1(b)(i)
|
|
|
Equitable Exceptions
|
|
|
Section 4.2(a)
|
|
|
ERISA
|
|
|
Section 4.17(e)
|
|
|
Exchange Fund
|
|
|
Section 3.3(a)
|
|
|
Indemnified Person
|
|
|
Section 7.1(a)
|
|
|
intentional breach
|
|
|
Section 10.2
|
|
|
Kramer Levin
|
|
|
Section 8.8
|
|
|
Letter of Transmittal
|
|
|
Section 3.3(b)(i)
|
|
|
Material Company Breach
|
|
|
Section 10.1(e)
|
|
|
Material Parent Breach
|
|
|
Section 10.1(d)
|
|
|
Merger
|
|
|
Recitals
|
|
|
Merger Sub
|
|
|
Preamble
|
|
|
Note and Guarantee Amendment
|
|
|
Section 3.2(d)
|
|
|
Notice Period
|
|
|
Section 6.4(b)(ii)
|
|
|
OFAC
|
|
|
Section 4.25
|
|
|
Parent
|
|
|
Preamble
|
|
|
Parent Board
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Recitals
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Parent Charter Documents
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Section 5.1
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Parent Disclosure Information
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Section 5.8
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Parent Group Charter Documents
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Section 5.5(b)
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Term
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Section
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Parent Leased Vessels
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Section 5.14(a)
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Parent Owned Vessels
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Section 5.14(a)
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Parent SEC Documents
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Section 5.6(a)
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Parent Securities
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Section 5.4(b)
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Parent Subsidiary Charter Documents
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Section 5.5(b)
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Parent Subsidiary Securities
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Section 5.5(c)
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Party or Parties
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Preamble
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Policies
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Section 4.20
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Premium Cap
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Section 7.1(c)
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Proxy Statement
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Section 8.1(a)
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Registration Statement
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Section 8.1(a)
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Superior Proposal
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Section 6.4(d)
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Surviving Corporation
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Section 2.1(a)
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Takeover Statute
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Section 4.23
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Transaction Committee
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Recitals
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Transaction Committee Recommendation
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Section 4.2(b)
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Transfer Taxes
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Section 8.7
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Undistributed Parent Shares
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Section 3.3(a)
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SECTION 2.1.
The Merger
.
(a)
The Merger
. Upon the terms and subject to the conditions of this Agreement and in accordance with the MIBCA, at the Effective Time, Merger Sub shall be merged with and into the Company. Following the Merger, the separate existence of Merger Sub will cease and the Company will continue its corporate existence under the MIBCA as the surviving corporation in the Merger (the “
Surviving Corporation
”).
(b)
Closing
. Subject to the provisions of
Article IX
, the closing of the Merger (the “
Closing
”) shall take place: (i) in New York City at the offices of Seward & Kissel LLP, One Battery Park Plaza, New York, NY 10004 and at the Belgian notary public’s office of Mr. Patrick Van Ooteghem, Cauwerburg 5, 9140 Temse, Belgium, as soon as possible, but in any event no later than the date that is five (5) Business Days after the date the conditions set forth in
Article IX
(other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permissible, waiver of those conditions at the Closing) have been satisfied or, to the extent permissible, waived by the Party or Parties entitled to the benefit of such conditions; or (ii) at such other place, at such other time or on such other date as the Parties may mutually agree in writing. The date on which the Closing actually takes place and is completed (including the Contribution in Kind and issuance of the Merger Consideration to the Exchange Agent in the name and on behalf of and for the account and benefit of the Company Common Shareholders and the holders of Company RSUs) is referred to as the “
Closing Date
”. At the Closing, and immediately following the filing of the Articles of Merger as contemplated by
Section 2.1(c)
, the Parties shall duly execute the Notarial Deed before the Belgian notary public.
(c)
Effective Time
. At the Closing, the Company and Merger Sub shall cause to be filed articles of merger (the “
Articles of Merger
”) with the Registrar or Deputy Registrar of Corporations of the Republic of the Marshall Islands and make all other filings or recordings required by the MIBCA in connection with the Merger. The Merger shall become effective at such time as the Articles of Merger are duly filed with the Registrar or Deputy Registrar of Corporations of the Republic of the Marshall Islands (or at such later time as may be mutually agreed upon by the Parties and specified in the Articles of Merger in accordance with the MIBCA) (the time the Merger becomes effective, the “
Effective Time
”).
(d)
Effects of the Merger
. The Merger will have the effects set forth in this Agreement and in the MIBCA. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the properties, rights, privileges, immunities, powers and purposes of the Company and Merger Sub shall vest in the Surviving Corporation and all debts, claims, obligations, liabilities, restrictions, duties and penalties of the Company and Merger Sub shall become the debts, claims, obligations, liabilities, restrictions, duties and penalties of the Surviving Corporation.
(e)
Articles of Incorporation and Bylaws
. At the Effective Time, by virtue of the Merger, (i) the articles of incorporation of the Company, as in effect immediately prior to the Effective Time, but as amended as set forth on
Exhibit A
hereto, shall be the articles of incorporation of the Surviving Corporation until thereafter amended in accordance with such articles of incorporation and applicable Law, and (ii) the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Corporation, except the references to Merger Sub’s name shall be replaced by references to “Euronav MI II Inc.”, until thereafter amended in accordance with the articles of incorporation and applicable Law.
(f)
Directors and Officers of Surviving Corporation
. The directors and officers of Merger Sub at the Effective Time shall be the initial directors and officers, respectively, of the Surviving Corporation and shall hold office in accordance with the articles of incorporation and bylaws of the Surviving Corporation until their successors are duly elected or appointed and qualified or until their earlier death, resignation or removal.
ARTICLE III
EFFECT OF THE MERGER
SECTION 3.1.
Effect on Capital Stock
. At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent, Merger Sub, any Company Common Shareholder or the holder of any shares of common stock of Merger Sub:
(a) each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any Specified Company Shares) shall be canceled and automatically converted into the right to receive the Per Share Merger Consideration, in the following manner:
first
, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any Specified Company Shares) shall be automatically converted into one (1) Surviving Corporation Share and to effect such conversion the Surviving Corporation shall deliver to the Exchange Agent, solely in the name and on behalf of and for the account and benefit of the former Company Common Shareholders (other than the holders of Specified Company Shares), a number of Surviving Corporation Shares equal to the total number of shares of Company Common Stock outstanding immediately prior to the Effective Time (reduced by the number of Specified Company Shares), and
second
, each such Surviving Corporation Share shall be automatically exchanged for the right to receive the Per Share Merger Consideration, in accordance with the procedures set forth in
Section 3.3
. As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and shall thereafter represent only the right to receive the Per Share Merger Consideration in the manner contemplated by
Section 3.3
;
(b) each share of Company Common Stock that is owned by (i) the Company or its Subsidiaries, or (ii) Parent, Merger Sub or their respective Subsidiaries, shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(c) each share of common stock of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and become one Surviving Corporation Share; and
(d) notwithstanding the foregoing, if, between the date of this Agreement and the Effective Time, the outstanding Parent Shares shall have changed into a different number of shares or a different class by reason of any stock dividend or distribution, subdivision, reclassification, recapitalization, stock split, reverse stock split, stock consolidation, combination, exchange of shares or other similar change or event then, the Merger Consideration and the Per Share Merger Consideration shall be correspondingly adjusted to reflect such stock dividend or distribution, subdivision, reclassification, recapitalization, stock split, reverse stock split, stock consolidation, combination, exchange of shares or other similar change or event.
SECTION 3.2.
Effect on Company Stock Options, Company RSUs and Note
.
(a) At the Effective Time, by virtue of the Merger and without any action on the part of any holder of a Company Stock Option, each then outstanding Company Stock Option (whether or not then vested and exercisable) shall terminate and be canceled in exchange for the right of the holder to be paid by the Surviving Corporation, immediately after the Effective Time (and in no event later than five (5) calendar days following the Effective Time), the Option Consideration payable in respect of such Company Stock Option, less any applicable withholding Taxes;
provided
,
however
, that if the exercise price applicable to shares of Company Common Stock subject to such Company Stock Option is equal to or greater than the Transaction Value Per Share, such Company Stock Option shall terminate and be canceled in exchange for no consideration. The Option Consideration paid or payable in accordance with the terms of this
Article III
shall be deemed to have been paid in full satisfaction of all rights pertaining to such Company Stock Options. From and after the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Company Stock Options that were outstanding immediately prior to the Effective Time.
(b) At the Effective Time, by virtue of the Merger and without any action on the part of any holder of Company RSUs, each then outstanding Company RSU shall become fully vested (including with respect to dividends and other distributions) in accordance with its terms and shall terminate and be canceled and Surviving Corporation Shares equal to the number of shares of Company Common Stock issuable under such Company RSU shall be issued to the Exchange Agent (solely in the name and on behalf of for the account and benefit of the former Company RSU holder), and such Surviving Corporation Shares shall be automatically exchanged for the right to receive the Per Share Merger Consideration, less any applicable withholding Taxes, as set forth in
Section 3.3(a)
. As of the Effective Time, each holder of a Company RSU shall cease to have any rights with respect thereto, except the right to receive, in accordance with
Section 3.3(d)
, the Per Share Merger Consideration for the number of shares of Company Common Stock which were issuable to such holder under such Company RSU.
(c) The Company shall take all actions necessary to effectuate the provisions of
Section 3.2(a)
and
Section 3.2(b)
, including obtaining the requisite board or committee consents and taking all actions necessary or appropriate under the Company Incentive Plan and/or applicable award agreements.
(d) On or prior to the date hereof, the Company has entered into a letter agreement with certain Affiliates of BlueMountain Capital Management, LLC (collectively, “
BlueMountain
”) providing that (i) the repayment premium that would otherwise be payable upon a prepayment of the notes issued under that certain Note and Guarantee Agreement, originally dated as of March 28, 2014, by and among the Company, Gener8 Maritime Subsidiary V Inc. (formerly known as VLCC Acquisition I Corporation) and BlueMountain (as the purchasers of notes thereunder) (the “
Note and Guarantee Agreement
”) shall be reduced to a premium equal to 1.00% of the principal amount of the notes prepaid to the holders, and (ii) the principal outstanding amount and all accrued interest and such repayment penalty on the Note and Guarantee Agreement shall be repaid in full to BlueMountain in cash on or prior to the Closing Date of the Merger in accordance with the terms of the Note and Guarantee Agreement (as modified by such letter agreement). From and after the date hereof until the Closing Date, the Company agrees to give proper notices to elect to pay any interest payments falling due under the Note and Guarantee Agreement in cash (not in kind);
provided
,
however
, that in the event that the Company Board reasonably concludes that making any such cash interest payment is reasonably likely to leave the Company without adequate operating liquidity or is otherwise not in the best interest of the Company, then the Company Board may determine that the Company instead elect to make a payment-in-kind of interest otherwise due and payable.
SECTION 3.3.
Contribution in Kind to Parent and Delivery of Consideration
.
(a)
Contribution in Kind
. The appointment of the Exchange Agent to act as agent for the Merger and to, among other things, act as agent in the name and on behalf of and for the account and benefit of the Company Common Shareholders (other than the holders of Specified Company Shares) for the purpose of giving effect to the Contribution in Kind contemplated by this
Section 3.3
and delivering the Per Share Merger Consideration to the Company Common Shareholders (other than the holders of Specified Company Shares) and holders of Company RSUs pursuant to the terms of this
Article III
shall be approved by the shareholders of the Company at the Company Shareholders Meeting. Parent and the
Company shall appoint the Exchange Agent as promptly as practicable after such approval is obtained (but in no event later than the Effective Time). The exchange agent agreement to be entered into with the Exchange Agent, as directed by the terms of the Agreement and authorized by the approval of the shareholders of the Company at the Company Shareholders Meeting, shall authorize the Exchange Agent to act in the name and on behalf of and for the account and benefit of the Company Common Shareholders (other than the holders of Specified Company Shares) and the holders of Company RSUs to (i) contribute Surviving Corporation Shares to Parent and (ii) accept in their name and on their behalf, in return for such contribution, the Merger Consideration. As soon as possible on the Closing Date following the Effective Time, and pursuant to the provisions of the BCC, the Exchange Agent (acting as an exchange agent and solely in the name and on behalf of and for the account and benefit of the Company Common Shareholders (other than the holders of Specified Company Shares) and the holders of Company RSUs), shall contribute solely in the name and on behalf of and for the account and benefit of the Company Common Shareholders (other than the holders of Specified Company Shares) and the holders of Company RSUs), all of the issued and outstanding Surviving Corporation Shares that were issued to the Exchange Agent pursuant to
Section 3.1(a)
and
Section 3.2(b)
to Parent as a Contribution in Kind and, in consideration of this Contribution in Kind, Parent shall issue and deliver to the Exchange Agent (solely in the name and on behalf of and for the account and benefit of the Company Common Shareholders (other than the holders of Specified Company Shares) and the holders of Company RSUs), the Merger Consideration (such Parent Shares constituting the Merger Consideration received by the Exchange Agent and other cash or assets received by the Exchange Agent pursuant to the terms hereof for payment to Company Common Shareholders (other than the holders of Specified Company Shares) and holders of Company RSUs are referred to herein as the “
Exchange Fund
”). The exchange agent agreement with the Exchange Agent shall provide that, to the extent that there is any shareholders meeting of Parent with a record date occurring during the period of time that the Exchange Agent holds any undistributed Parent Shares in the Exchange Fund (“
Undistributed Parent Shares
”), the Exchange Agent will not vote any of such Undistributed Parent Shares on any matter presented for a vote at such Parent shareholders meeting or any postponement or adjournment thereof. Whenever a dividend or other distribution is declared or made with respect to Parent Shares with a record date for such dividend or distribution after the Closing Date, it shall be paid by Parent to the Exchange Agent with respect to all Undistributed Parent Shares on such record date (and such dividends or distributions shall be added to the Exchange Fund and shall be paid over by the Exchange Agent to the Company Common Shareholders (other than the holders of Specified Company Shares) to which the corresponding Parent Shares receiving such dividends or distributions are distributed by the Exchange Agent upon such Company Common Shareholders’ proper delivery pursuant to
Section 3.3(b)
of a letter of transmittal and Certificate or Book-Entry Shares).
(b)
Company Common Stock
.
(i) As soon as reasonably practicable after the Closing Date, the Exchange Agent shall mail or otherwise deliver to each Company Common Shareholder whose Company Common Stock was converted into Surviving Corporation Shares and who has the right to receive Per Share Merger Consideration hereunder: (A) a letter of transmittal (the “
Letter of Transmittal
”), which shall specify that, in respect of any Certificate, risk of loss and title shall pass only upon receipt thereof (or of an affidavit in accordance with
Section 3.5
) by the Exchange Agent or, in the case of Book-Entry Shares, upon adherence to the procedures set forth in the Letter of Transmittal, and shall be in such form and have such other customary provisions as Parent and the Company may reasonably specify, (B) any notice required pursuant to the MIBCA, and (C) instructions for use in effecting the surrender of the Certificates or transfer of the Book-Entry Shares, as applicable, held by such Company Common Shareholder. In the event a Company Common Shareholder does not deliver to the Exchange Agent a duly executed and completed Letter of Transmittal and does not deliver the Certificate(s) or surrender the Book-Entry Shares held by such Company Common Shareholder, such Person shall not be entitled to receive the Per Share Merger Consideration relating to such Certificate or Book-Entry Share unless and until such Person delivers a duly executed and completed Letter of Transmittal and Certificate(s) or Book-Entry Shares (or an affidavit in accordance with
Section 3.5
), as applicable, to the Exchange Agent. Exchange of any Book-Entry Shares shall be effected in accordance with the Exchange Agent’s customary procedures with respect to securities
represented by book entry. Until surrendered as contemplated by this
Section 3.3(b)
, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Per Share Merger Consideration pursuant to
Section 3.1(a)
and this
Section 3.3
.
(ii) Upon the Exchange Agent’s receipt of a duly executed and completed Letter of Transmittal and the surrender of the Certificates or transfer of the Book-Entry Shares held by any Company Common Shareholder, the Exchange Agent shall deliver, in accordance with
Section 3.1(a)
, to such Company Common Shareholder an aggregate number of such Parent Shares equal to the sum of such Company Common Shareholder’s Per Share Merger Consideration for each share of Company Common Stock properly surrendered by such Company Common Shareholder pursuant hereto.
(iii) The Per Share Merger Consideration paid or payable and issued or issuable upon the surrender of Company Common Stock in accordance with the terms of this
Article III
shall be paid or payable and issued or issuable in full satisfaction of all rights pertaining to the shares of Company Common Stock.
(c)
Transfer Books Closed
. From and after the Effective Time, the transfer books of the Company shall be closed, and there shall be no further registration of transfers on the transfer books of the Surviving Corporation of the Company Common Stock that was outstanding immediately prior to the Effective Time.
(d)
Company RSUs
. In the case of Company RSUs, the holder of any such Company RSUs shall receive in exchange therefor the applicable Per Share Merger Consideration into which such Company RSUs have been converted pursuant to
Section 3.2(b)
, to be paid by the Exchange Agent to such holder of Company RSUs on or as soon as practicable after the Effective Time. The Per Share Merger Consideration paid or payable in accordance with the terms of this
Article III
shall be deemed to have been paid in full satisfaction of all rights pertaining to such Company RSUs. Immediately after the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Company RSUs that were outstanding immediately prior to the Effective Time.
(e)
No Fractional Shares
. No fractional Parent Shares shall be issued in connection with the Merger, but in lieu thereof, any Person who would otherwise be entitled to a fraction of a Parent Share (after aggregating for each particular Certificate or Book-Entry Share all fractional shares of Parent Shares to be received by such Person) shall receive from the Exchange Agent an amount in cash (rounded to the nearest whole cent), without interest, equal to the product of (i) such fraction and (ii) the Parent VWAP. Following the Closing Date, the Exchange Agent shall sell at then-prevailing prices on the NYSE such number of Parent Shares constituting a portion of the Exchange Fund as represents the aggregate of all fractional entitlements of all Company Common Shareholders (other than the holders of Specified Company Shares) and holders of Company RSUs, with the cash proceeds of such sales to be used by the Exchange Agent to fund the foregoing payments in lieu of fractional shares (and if the proceeds of such share sales by the Exchange Agent are insufficient for such purpose, then Parent shall promptly deliver to the Exchange Agent additional funds in an amount equal to the deficiency required to make all such payments in lieu of fractional shares). The Parties acknowledge that payment of the cash consideration in lieu of delivering fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the delivery of fractional Parent Shares.
(f)
Undistributed Exchange Fund
. Any portion of the Exchange Fund which remains undistributed to the Company Common Shareholders (other than the holders of Specified Company Shares) or the holders of any outstanding Company Stock Options or Company RSUs, for six (6) months after the Closing Date shall be delivered to Parent, and any such Person, to the extent such Person has not theretofore complied with this
Section 3.3
shall thereafter look only to Parent for, and Parent shall remain liable for, the Per Share Merger Consideration or the Option Consideration, as the case may be, to which such Person is entitled pursuant to this Agreement. Any such portion of the Exchange Fund remaining unclaimed by the Company Common Shareholders (other than the holders of Specified Company Shares) or the holders of any outstanding Company Stock Options or Company RSUs for five (5) years after the Closing Date (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Authority) shall, to the extent permitted by Law, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g)
No Liability
. None of Parent, Merger Sub, the Company, the Surviving Corporation, the Exchange Agent or any employee, officer, director, agent or Affiliate of any of them, shall be liable to any holder or former holder of shares of Company Common Stock or to any other Person with respect to any Parent Shares (or dividends or distributions with respect thereto), or for any cash amounts, properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts remaining unclaimed by holders of any such shares immediately prior to the time at which such amounts would otherwise escheat to, or become property of, any Governmental Authority shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of any claims or interest of any such holders, their successors, assigns or personal representatives previously entitled thereto or any other Person.
(h)
Dispute Resolution
. Prior to the Closing Date, any disputes regarding this
Section 3.3
shall be addressed and resolved jointly by the Company and Parent, and any amendments to or waivers of any provision of this
Section 3.3
shall be made jointly by the Company and Parent. After the Closing, any such disputes shall be addressed and resolved by the Parent Board, and any amendments to or waivers of this
Section 3.3
shall be made in the sole discretion of the Parent Board.
SECTION 3.4.
Withholding Rights
. Notwithstanding any provision contained herein to the contrary, each of the Exchange Agent, the Surviving Corporation and Parent shall be entitled to deduct and withhold from any consideration otherwise payable under this Agreement to any Person such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code or any provision of applicable state, local or foreign Tax Law and shall timely pay such withholding amount to the appropriate Governmental Authority. If the Exchange Agent, the Surviving Corporation or Parent, as the case may be, so withholds amounts, to the extent timely remitted to the appropriate Governmental Authority, such amounts shall be treated for all purposes of this Agreement as having been paid to such Person in respect of which the Exchange Agent, the Surviving Corporation or Parent, as the case may be, made such deduction and withholding.
SECTION 3.5.
Lost Certificates
. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Company Common Shareholder claiming such Certificate to be lost, stolen or destroyed (in form and substance reasonably satisfactory to Parent) and, if required by Parent, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it or the Exchange Agent, as the case may be, with respect to such Certificate, the Exchange Agent shall pay, in exchange for such lost, stolen or destroyed Certificate, the Per Share Merger Consideration to be paid in respect of the shares of Company Common Stock, as the case may be, represented by such Certificate, as contemplated by this
Article III
.
SECTION 3.6.
Parent Capital Increase
. Parent shall take, or cause to be taken, all actions as may be necessary for Parent to issue the Parent Shares required to be issued pursuant to
Section 3.1(a),
Section 3.2(b)
and
Section 3.3(a)
, including (a) the due preparation, drafting, execution and filing (as the case may be) of the Parent Special Board Report, the Notarial Deed and any other instruments of issuance, and (b) to cause the delivery of the Parent Audit Report (a copy of which shall be made available to the Company Board as promptly as possible after the same is delivered to Parent) confirming that the value of the Surviving Corporation Shares contributed to Parent pursuant to
Section 3.3(a)
amounts to at least the number and (fractional) value and, as the case may be, the issue premium of Parent Shares to be exchanged therefor. As promptly as practicable after the date of this Agreement, and in any event prior to January 31, 2018, Parent shall provide to the Company drafts of the Parent Special Board Report and Notarial Deed.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (i) as set forth in the Company Disclosure Letter, or (ii) as disclosed in Company SEC Documents filed or furnished and made publicly available on or after January 1, 2017 through the date of this Agreement to the extent such disclosure on its face appears to constitute information that would reasonably be deemed a qualification or exception to the following representations and warranties (other than any forward looking disclosures set forth in any risk factor section, any disclosures in any section related to forward looking statements included in any such reports, schedules, forms or documents and any other disclosures included therein to the extent that such statements are primarily cautionary, predictive or forward-looking in nature), the Company represents and warrants to Parent and Merger Sub that:
SECTION 4.1.
Organization, Qualification and Corporate Power
. The Company is a corporation duly organized, validly existing and in good standing under the Laws of the Republic of the Marshall Islands, and has all requisite corporate power and authority and all Governmental Authorizations, directly or indirectly, to own, lease and operate its properties and assets and to carry on its business as it is now being conducted. The Company is duly qualified or licensed as a foreign corporation to do business, and is in good standing (where applicable) or has equivalent status, in each jurisdiction where the character of its properties or assets owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except where the failure to be so qualified or licensed and in good standing or to have equivalent status would not have a Company Material Adverse Effect. The Company has heretofore made available to Parent true and complete copies of the articles of incorporation, bylaws and any other governing documents of the Company (the “
Company Charter Documents
”) as currently in effect as of the date hereof.
SECTION 4.2.
Authorization
.
(a) The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Transactions are within the Company’s corporate powers and, except for the Company Shareholders Approval, have been duly authorized by all necessary corporate action on the part of the Company. The affirmative vote of the holders of at least a majority of the outstanding shares of Company Common Stock is the only vote of the holders of any of the Company’s capital stock required to complete the Transactions, including the Merger (the “
Company Shareholders Approval
”). This Agreement constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws from time to time in effect affecting generally the enforcement of creditors’ rights or remedies; and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at Law) (
clauses (i)
and
(ii)
, collectively, the “
Equitable Exceptions
”).
(b) At a meeting duly called and held, the Transaction Committee has unanimously (i) determined that this Agreement and the Transactions are fair to and in the best interests of the Company and the Company’s shareholders, (ii) declared advisable this Agreement and the Transactions, and (iii) recommended to the Company Board that this Agreement and the Transactions be approved by the Company Board and submitted to the Company Shareholders Meeting for approval by the shareholders of the Company (such recommendation, which as of the date of this Agreement has not been rescinded, modified or amended in any respect, the “
Transaction Committee Recommendation
”). At a meeting duly called and held, the Company Board has (A) determined that this Agreement and the Transactions are fair to and in the best interests of the Company and the Company’s shareholders, (B) approved, adopted and declared advisable this Agreement and the Transactions, (C) recommended that this Agreement and the Transactions be submitted to the Company Shareholders Meeting for approval by the shareholders of the Company, and (D) adopted the recommendation by the Transaction Committee for approval and adoption of this Agreement and the Transaction by the shareholders of the Company (such recommendation, which as of the date of this Agreement has not been rescinded, modified or amended in any respect, the “
Company Board Recommendation
”).
(c) Assuming the accuracy of the representations and warranties set forth in
Section 5.2(b)
, the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Transactions require no action by or in respect of, or filing with, any Governmental Authority, other than (i) the filing and recordation of appropriate merger or other documents as required by the MIBCA and by relevant authorities of other jurisdictions in which the Company is qualified to do business (including the Articles of Merger), (ii) compliance with any applicable requirements of the 1933 Act, the 1934 Act, any other applicable U.S. state or federal securities laws and the rules and requirements of the NYSE and Euronext, including the filing of the Registration Statement, the Proxy Statement or any other Company Disclosure Documents or Parent Disclosure Documents with the SEC, the NYSE, Euronext or the FSMA, and (iii) such approvals as may be required under any Antitrust Laws that are applicable to the Transactions.
SECTION 4.3.
Noncontravention
. Except as set forth in
Section 4.3 of the Company Disclosure Letter
, the execution, delivery and performance by the Company of this Agreement and the consummation
of the Transactions do not and will not (i) violate any provision of the Company Charter Documents or the comparable organizational documents, as applicable, of any of the Company’s Subsidiaries, (ii) assuming compliance with the matters referred to in
Section 4.2(c)
, contravene, conflict with or result in a violation or breach of any provision of any applicable Law, (iii) assuming compliance with the matters referred to in
Section 4.2(c)
, require any consent or other action by any Person under, result in a violation or breach of, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit of the Company or any of its Subsidiaries under any provision of any Material Contract or any Governmental Authorization of the Company or any of its Subsidiaries, or (iv) result in the loss of, or creation or imposition of any Lien (other than Company Permitted Liens) on, any asset of the Company or any of its Subsidiaries, except, in the case of
clauses (ii)
,
(iii)
and
(iv)
, as would not have a Company Material Adverse Effect.
SECTION 4.4.
Capitalization
.
(a) The authorized capital stock of the Company consists of (i) 225,000,000 shares of Company Common Stock, and (ii) 5,000,000 shares of Company Preferred Stock. As of the date of this Agreement, (i) 83,267,426 shares of Company Common Stock are issued and outstanding, (ii) no shares of Company Preferred Stock are issued and outstanding, (iii) 525,000 shares of Company Common Stock are issuable upon exercise of vested and unvested outstanding Company Stock Options, (iv) 362,613 shares of Company Common Stock are issuable upon the vesting or settlement of outstanding Company RSUs, and (v) no shares of Company Common Stock or Company Preferred Stock are held in the treasury of the Company. All outstanding shares of capital stock of the Company have been duly authorized and validly issued and fully paid and nonassessable, and are free of preemptive or similar rights under any provision of the MIBCA and the Company Charter Documents or any agreement to which the Company is a party or otherwise bound.
Section 4.4(a) of the Company Disclosure Letter
sets forth a list of all outstanding Company Stock Options and Company RSUs, indicating with respect to each such Company Stock Option or Company RSU, the name of the holder thereof, the number of shares of Company Common Stock subject to such Company Stock Option or Company RSU that are vested and unvested, the exercise price, the date of grant, and the expiration date thereof.
(b) Except as set forth in
Section 4.4(a)
above,
Section 4.4(a) of the Company Disclosure Letter
, or
Section 4.4(b) of the Company Disclosure Letter
, there are no issued, reserved for issuance or outstanding (i) shares of capital stock of or other voting securities of or ownership interests in the Company, (ii) securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of or ownership interests in the Company, (iii) warrants, calls, options or other rights to acquire from the Company or any of its Subsidiaries, or other obligation of the Company or any of its Subsidiaries to issue, any capital stock or other voting securities or ownership interests in or any securities convertible into or exchangeable or exercisable for capital stock or other voting securities or ownership interests in the Company, or (iv) restricted shares, stock appreciation rights, restricted stock units, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or voting securities of the Company (the items in clauses (i) through (iv) being referred to collectively as the “
Company Securities
”). Except as set forth in
Section 4.4(b) of the Company Disclosure Letter
, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Securities. The Company and its Subsidiaries are not a party to any voting agreements, voting trusts, proxies or other similar agreements or understandings with respect to the voting of any shares of Company Common Stock, Company Preferred Stock or other Company Securities. Except as set forth in
Section 4.4(b) of the Company Disclosure Letter
or as may be required by applicable securities Laws and regulations, the Company and its Subsidiaries are not bound by any obligations or commitments of any character restricting the transfer of, or requiring the registration for sale of, any shares of Company Common Stock, Company Preferred Stock or other Company Securities. The Company Board and/or the Company’s incentive committee has passed all resolutions and taken all actions necessary or appropriate under the Company Incentive Plan, the award agreements for all outstanding Company Stock Options and the restricted stock unit agreements for all
outstanding Company RSUs to interpret and/or amend the Company Incentive Plan and/or such award agreements and/or restricted stock unit agreements to cause the effect of the Merger with respect to all outstanding Company Stock Options and Company RSUs to be as described in
Section 3.2(a)
and
Section 3.2(b)
.
(c) There is no outstanding Indebtedness of the Company or any of its Subsidiaries having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which shareholders of the Company may vote.
(d) Except as set forth in this
Section 4.4
, none of (i) the shares of Company Common Stock or Company Preferred Stock, or (ii) any other Company Securities is owned by any Subsidiary of the Company.
SECTION 4.5.
Subsidiaries
.
(a)
Section 4.5(a) of the Company Disclosure Letter
sets forth a complete and correct list of each Subsidiary of the Company, together with the jurisdiction of incorporation or formation of each such Subsidiary, the form of organization of each such Subsidiary, the authorized and issued capital stock, voting securities or other ownership interests of each such Subsidiary and the name of each holder thereof. All outstanding ownership interests of such Subsidiaries are validly issued and fully paid and nonassessable (to the extent such concepts apply), and free of preemptive or similar rights under any provision of applicable Law, the Company Subsidiary Charter Documents (as defined below), or any agreement to which the Subsidiaries are a party or otherwise bound.
(b) Each Subsidiary of the Company has been duly organized, is validly existing and in good standing (except with respect to jurisdictions that do not recognize the concept of good standing) under the Laws of the jurisdiction of its incorporation or formation, and has all requisite power, Governmental Authorizations and authority to own, lease and operate its properties and to carry on its business as now conducted, except where the failure to be in good standing or possess such Governmental Authorizations would not have a Company Material Adverse Effect. Each such Subsidiary of the Company is duly qualified or licensed as a foreign corporation, limited liability company or other applicable entity to do business, and is in good standing in each jurisdiction where the character of its properties or assets owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except where the failure to be so qualified or licensed and in good standing would not have a Company Material Adverse Effect. The Company has heretofore made available to Parent true and complete copies of the articles of incorporation or bylaws (or comparable organization documents, as applicable) of each of the Subsidiaries of the Company (the “
Company Subsidiary Charter Documents
”, and, together with the Company Charter Documents, the “
Company Group Charter Documents
”) as currently in effect.
(c) All of the outstanding shares of capital stock of, or voting securities of, or other ownership interests in, each Subsidiary of the Company, are owned by the Company directly or indirectly, free and clear of any Liens (other than Company Permitted Liens). There are no issued, reserved for issuance or outstanding (i) securities of the Company or any of its Subsidiaries convertible into, or exchangeable or exercisable for, shares of capital stock or other voting securities of, or ownership interests in, any Subsidiary of the Company, (ii) warrants, calls, options or other rights to acquire from the Company or any of its Subsidiaries, or other obligations of the Company or any of its Subsidiaries to issue, any capital stock or other voting securities of, or ownership interests in, or any securities convertible into, or exchangeable or exercisable for, any capital stock or other voting securities of, or ownership interests in, any Subsidiary of the Company, or (iii) restricted shares, stock appreciation rights, restricted stock units, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or other voting securities of, or ownership interests in, any Subsidiary of the Company (the items in
clauses (i)
through
(iii)
, together with all of the outstanding capital stock of, or other voting securities of, or ownership interests in, each Subsidiary of the Company, being referred to collectively as the “
Company Subsidiary Securities
”). Neither the Company nor any of its Subsidiaries owns, directly or indirectly, any equity or other ownership interests in any Person, except for the Subsidiaries of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Subsidiary Securities. Except as set forth in
Section 4.5(c) of the Company Disclosure Letter
, the Company
is not subject to any obligation or requirement to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person (including in connection with any pool in which a Company Vessel is entered).
(d) There is no outstanding Indebtedness of the Subsidiaries of the Company having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which equity holders of such Subsidiaries may vote.
(e) None of the Subsidiaries of the Company has any class of equity securities that is subject to registration with the SEC under Section 12(g) of the 1934 Act. At no time has any class of securities issued by any such Subsidiary been held of record by five hundred (500) or more Persons.
SECTION 4.6.
Company SEC Filings
.
(a) The Company has filed with or furnished to the SEC, all reports, schedules, forms, statements, prospectuses, registration statements and other documents, as such documents may be amended, supplemented or restated, required to be filed with or furnished to the SEC by the Company since January 1, 2016 (collectively, together with any exhibits and schedules thereto and other information incorporated therein, the “
Company SEC Documents
”).
(b) As of its filing date (or, if amended, by a filing prior to the date hereof, on the date of such filing), each Company SEC Document complied, and each Company SEC Document filed subsequent to the date hereof and prior to the earlier of the Closing Date and the termination of this Agreement will comply on its face, as to form in all material respects with the applicable requirements of the 1933 Act and the 1934 Act, as the case may be, at the time of such filing. As of the date of this Agreement, there are no outstanding unresolved comments received from the staff of the SEC with respect to any of the Company SEC Documents. To the Knowledge of the Company, none of the Company SEC Documents is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. No Subsidiary of the Company is subject to the periodic reporting requirements of Section 13(a) and Section 15(d) of the 1934 Act.
(c) As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), each Company SEC Document filed pursuant to the 1934 Act did not, and each Company SEC Document filed subsequent to the date hereof and prior to the earlier of the Closing Date and the date of the termination of this Agreement will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, that the foregoing does not apply to statements in or omissions from any such document based upon the Company Disclosure Information.
(d) Each Company SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the 1933 Act, as of the date such registration statement or amendment became effective, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
provided
,
however
, that the foregoing does not apply to statements in or omissions from any such document based upon the Parent Disclosure Information.
SECTION 4.7.
Financial Statement; Indebtedness
.
(a) The audited consolidated financial statements (including the related notes and schedules) included or incorporated by reference in the Company SEC Documents complied, and the audited consolidated financial statements (including the related notes and schedules) included or incorporated by reference in the Company SEC Documents filed after the date hereof will comply, in all material respects with applicable accounting requirements and the published regulations of the SEC, which have been prepared in all material respects in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present, in all material respects, the consolidated financial condition, results of operations, shareholders’ equity and cash flows of the Company and its Subsidiaries as of the indicated dates and for the indicated periods.
(b) The unaudited consolidated interim financial statements (including the related notes and schedules) included or incorporated by reference in the Company SEC Documents complied, and unaudited consolidated interim financial statements (including the related notes and schedules) included or incorporated by reference in the Company SEC Documents filed after the date hereof will comply, in all material respects with applicable accounting requirements and the published regulations of the SEC, which have been prepared in all material respects in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present, in all material respects, the consolidated financial condition, results of operations, shareholders’ equity and cash flows of the Company and its Subsidiaries as of the indicated dates and for the indicated periods, subject to normal and recurring year-end audit adjustments and the absence of full footnote disclosure.
(c) The aggregate amount of outstanding Indebtedness of the Company and its Subsidiaries comprising the total long-term debt (as such term is used in the Company Balance Sheet) as of the date of this Agreement is set forth in
Section 4.7(c) of the Company Disclosure Letter
. Neither the Company nor its Subsidiaries are in material default under, nor has any event occurred that, with or without notice or lapse of time or both, would constitute a material default or cause or permit the acceleration of, any Indebtedness of the Company or its Subsidiaries.
SECTION 4.8.
Disclosure Documents
. The information with respect to the Company and its Subsidiaries that the Company has supplied or will supply in writing to Parent specifically for use in the Registration Statement, the Proxy Statement or in any other Parent Disclosure Documents (the “
Company Disclosure Information
”) at the time of the filing thereof or any amendment or supplement thereto and at the time of any distribution or dissemination of such Registration Statement, Proxy Statement or any other Parent Disclosure Documents, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
SECTION 4.9.
Taxes
.
(a) All material Tax Returns required by applicable Law to have been filed by the Company and each of its Subsidiaries have been filed when due (taking into account any extensions), and each such Tax Return is complete and accurate and correctly reflects the liability for Taxes in all material respects. All material Taxes that are due and payable have been paid.
(b) There is no audit or other proceeding pending against or with respect to the Company or any of its Subsidiaries, with respect to any material amount of Taxes. There are no material Liens on any of the assets of the Company or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax, other than Liens for Taxes not yet due and payable.
(c) The Company and each of its Subsidiaries have withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any Third Party.
(d) Neither the Company nor any of its Subsidiaries has waived any statute of limitations in respect of a material amount of Taxes or agreed to any extension of time with respect to any such Taxes.
(e) Neither the Company nor any of its Subsidiaries is a party to any Tax allocation or sharing agreement.
(f) Neither the Company nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under the Law with respect to Taxes for any taxable period for which the statute of limitations has not expired (other than a group of which the Company and/or its Subsidiaries are the only members).
(g) Neither the Company nor any of its Subsidiaries has any material liability for the Taxes of any Person (other than any of the Company or its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of any state, local, or foreign Law), as a transferee or successor, by contract, or otherwise.
(h) Neither the Company nor any of its Subsidiaries is or has been a party to any “listed transaction” as defined in Section 6707A(c)(2) of the Code and Treasury Regulations Section 1.6011-4(b)(2).
(i) Neither the Company nor any of its Subsidiaries has taken or agreed to take any action or has knowledge of any fact or circumstance that could reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(j) Neither the Company nor any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” in a distribution in which the Parties to such distribution treated the distribution as one to which Section 355 of the Code is applicable within the prior three (3) years.
(k) Neither the Company nor any of its Subsidiaries has, or since its formation has had, a permanent establishment in any country other than the country of its organization.
(l) The Company and its Subsidiaries have complied in all material respects with the intercompany transfer pricing provisions of each applicable Law relating to Taxes, including the contemporaneous documentation and disclosure requirements thereunder.
(m) Each of the Company and its Subsidiaries is, and has been since December 31, 2015, exempt from U.S. federal income taxation on its U.S.-source shipping income under Section 883 of the Code and has satisfied the stock ownership test of Treasury Regulation Section 1.883-1(c)(2).
(n) No written claim has ever been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that the Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
SECTION 4.10.
Compliance with Laws; Governmental Authorizations
.
(a) The Company and each of its Subsidiaries is, and since January 1, 2016 has been, in compliance in all material respects with all Laws and Governmental Authorizations to which the Company or such Subsidiary, or any of its or their Company Vessels or other assets, is subject (including Maritime Guidelines).
(b) The Company and each of its Subsidiaries owns, holds, possesses or lawfully uses in the operation of its business all material Governmental Authorizations (including those required by Maritime Guidelines) that are necessary or required for it to conduct its business as now conducted.
SECTION 4.11.
Absence of Certain Changes; No Undisclosed Liabilities
.
(a) Except as set forth on
Section 4.11(a) of the Company Disclosure Letter
, since the Company Balance Sheet Date through the date of this Agreement, (i) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course of business and (ii) there has not been a Company Material Adverse Effect.
(b) Other than as expressly required by this Agreement or set forth on
Section 4.11(b) of the Company Disclosure Letter
, from the Company Balance Sheet Date until the date hereof, there has not been any action taken by the Company or any of its Subsidiaries or event that had such action occurred after the date of this Agreement without Parent’s consent, would constitute a breach of
clauses (i)
,
(ii)
,
(iv)
,
(viii)
,
(x)
,
(xii)
,
(xiii)
,
(xiv)
or
(xvii)
of
Section 6.1(b)
.
(c) Except as set forth on
Section 4.11(c) of the Company Disclosure Letter
, there are no liabilities of the Company or any of its Subsidiaries of any kind whatsoever (including in connection with any pool in which a Company Vessel is entered), whether accrued, contingent, absolute, determined, determinable or otherwise, other than: (i) liabilities disclosed and provided for in the Company Balance Sheet or in the notes thereto, (ii) liabilities and obligations arising out of this Agreement or the Transactions, (iii) liabilities incurred in the ordinary course of business since the Company Balance Sheet Date, and (iv) liabilities which are not, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. Neither the Company nor any of its Subsidiaries is a party to, nor do the Company or any of its Subsidiaries have any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract relating to any transaction or relationship between the Company, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the SEC)), where the results, purpose or effect of such Contract is to avoid disclosure of any transaction involving, or liabilities of, the Company.
SECTION 4.12.
Tangible Personal Assets
. The Company and its Subsidiaries, in the aggregate, have good and valid title to, or a valid interest in, all of their respective material tangible personal assets, free and clear of all Liens, other than Company Permitted Liens.
SECTION 4.13.
Real Property
. Neither the Company nor any of its Subsidiaries owns any real property.
Section 4.13 of the Company Disclosure Letter
sets forth a true, correct and complete list of all real property leases under which the Company or any of its Subsidiaries is a lessee. All such leases are valid and binding, and are in full force and effect; there are no material defaults by the Company or any of its Subsidiaries thereunder; no event has occurred which (whether with or without notice, lapse of time, or both) would constitute a material default thereunder by the Company or any of its Subsidiaries. The Company has made available to Parent true and complete copies of all such leases.
SECTION 4.14.
Vessels; Maritime Matters
.
(a)
Section 4.14(a) of the Company Disclosure Letter
contains a list, as of the date of this Agreement, of all vessels owned by the Company or any of its Subsidiaries (the “
Company Owned Vessels
”) or chartered-in by the Company or any of its Subsidiaries pursuant to charter arrangements (the “
Company Leased Vessels
”), including the name, registered owner, capacity (gross tonnage or deadweight tonnage, as specified therein), year built, classification society, official number, flag state, charterer (and whether such charterer is currently operating in the spot or time charter market), the pool in which entered, and manager (commercial or technical), of each Company Owned Vessel and Company Leased Vessel. Each Company Vessel is operated in compliance in all material respects with all applicable Maritime Guidelines and Laws. The Company and each of its Subsidiaries are qualified to own and operate the Company Owned Vessels under applicable Laws in all material respects, including the Laws of each Company Owned Vessel’s flag state. Each Company Vessel has all national and international operating and trading certificates, each of which is valid, that are required for the operation of such Company Vessel in the trades and geographic areas in which it is operated.
(b) Each Company Vessel is classed by a classification society which is a member of the International Association of Classification Societies and possesses class and trading certificates free from overdue conditions or recommendations affecting class and valid through the date of this Agreement and, to the Knowledge of the Company, no event has occurred and no condition exists that would cause such Company Vessel’s class to be suspended or withdrawn.
(c) With respect to each of the Company Owned Vessels, either the Company or one of its Subsidiaries, as applicable, is the sole owner of each such Company Vessel and has good title to such Company Vessel free and clear of all Liens other than Company Permitted Liens.
(d) Prior to the date of this Agreement, the Company has made available to Parent true and complete copies of the most recent SIRE inspection reports relating to each Company Vessel.
SECTION 4.15.
Contracts
.
(a)
Section 4.15(a) of the Company Disclosure Letter
lists the following Contracts to which the Company or any of its Subsidiaries is a party:
(i) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to which the Company or any of its Subsidiaries is a party to or bound;
(ii) each Contract not contemplated by this Agreement that limits the ability of the Company or any of its Subsidiaries or Affiliates to engage in or compete with any line of business in any location or with any Person in any material manner;
(iii) each Contract that creates a partnership, joint venture or any strategic alliance with respect to the Company or any of its Subsidiaries;
(iv) each employment, consulting, services or similar Contract with any employee or independent contractor of the Company or any of its Subsidiaries involving more than $100,000 of annual compensation;
(v) each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for Indebtedness individually in excess of $1,000,000;
(vi) each Contract entered into since January 1, 2016 that relates to the acquisition or disposition, directly or indirectly, of any business (whether by merger, sale of stock, sale of assets or otherwise) or any material assets, including any vessel (other than (A) this Agreement or (B) acquisitions or dispositions of supplies, inventory, merchandise or products (other than vessels) in the ordinary course of business or that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries), including also any such Contract whenever entered into that includes provisions that remain in effect in respect of “earn-outs” or deferred or contingent consideration;
(vii) each ship-sales, memorandum of agreement, bareboat charter, or other vessel acquisition Contract entered into since January 1, 2016 for Newbuildings and secondhand vessels contracted for by the Company or any of its Subsidiaries (other than Company Owned Vessels) and other Contracts entered into since January 1, 2016 with respect to Newbuildings of the Company or any of its Subsidiaries and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(viii) each pool agreement, management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Company Vessel;
(ix) any Contract with a Third Party for the charter of any Company Vessel;
(x) each collective bargaining agreement or other Contract with a labor union to which the Company or any of its Subsidiaries is a party or otherwise bound;
(xi) each Contract that provides for indemnification by the Company or any of its Subsidiaries to any Person other than a Contract entered into in the ordinary course of business;
(xii) each Contract pursuant to which the Company or any of its Subsidiaries spent or received, in the aggregate, more than $500,000 during the twelve (12) months prior to the date hereof or could reasonably be expected to spend or receive, in the aggregate, more than $500,000 during the twelve (12) months immediately after the date hereof;
(xiii) each Contract to which the Company or any of its Subsidiaries is a party or otherwise bound that contains a so-called “most favored nations” provision or similar provisions requiring the Company or its Affiliates to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons; and
(xiv) each Contract involving a standstill or similar obligation of the Company or any of its Subsidiaries.
(b) The Company has heretofore made available to Parent true and complete copies of the Material Contracts as in effect as of the date hereof. Except as set forth on
Section 4.15(b) of the Company Disclosure Letter
or would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) each of the Material Contracts is valid, binding, enforceable and in full force and effect with respect to the Company and its Subsidiaries, and to the Knowledge of the Company, the other parties thereto, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions and except for any Material Contracts that have expired or been terminated after the date hereof in accordance with its terms, and (ii) neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a breach or default under, or give rise to any right of cancellation or termination of or consent under, such Material Contract, and neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Material Contract.
SECTION 4.16.
Litigation
. Except as set forth in
Section 4.16 of the Company Disclosure Letter
or as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, as of the date of this Agreement, there is no Action pending or, to the Knowledge of the Company,
threatened against the Company, any of its Subsidiaries or any Company Vessels (including in connection with any pool in which a Company Vessel is entered). No officer or director of the Company or any of its Subsidiaries is, as of the date of the Agreement, a defendant in any Action commenced by any equityholder of the Company or any of its Subsidiaries with respect to the performance of his duties as an officer or a director of the Company or any such Subsidiary under any applicable Law. There is no unsatisfied judgment, penalty or award against the Company, any of its Subsidiaries or any Company Vessels (including in connection with any pool in which a Company Vessel is entered). Except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, as of the date of this Agreement, neither the Company nor any of its Subsidiaries nor any Company Vessel is subject to any Orders.
SECTION 4.17.
Employee Benefits
.
(a)
Section 4.17(a) of the Company Disclosure Letter
includes a list of all material Company Benefit Plans. The Company has delivered or made available to Parent copies of each Company Benefit Plan or, in the case of any unwritten Company Benefit Plans, a summary thereof.
(b)
Section 4.17(b) of the Company Disclosure Letter
includes a list of all employees of the Company and its Subsidiaries and independent contractors who perform substantially all of their personal services for the Company and its Subsidiaries pursuant to agreements to which the Company and its Subsidiary are parties and the amount of wages earned by each such individual and their place of employment.
(c) Each Company Benefit Plan has been administered in accordance with its terms and is in compliance in all material respects with all applicable Laws.
(d) Except as set forth in
Section 4.17(d) of the Company Disclosure Letter
or as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) each Company Benefit Plan that is intended to qualify for favorable tax benefits under the Laws of any jurisdiction is so qualified, and (ii) to the Knowledge of the Company, no condition exists and no event has occurred that could reasonably be expected to result in the loss or revocation of such status. All material benefits, contributions and premiums relating to each Company Benefit Plan have been timely paid or made in accordance with the terms of such Company Benefit Plan and any related agreement and in compliance with all applicable Laws.
(e) None of the Company nor any of its Subsidiaries has during the past six (6) years maintained or contributed to, or had any obligation to contribute to any “employee benefit plan,” within the meaning of Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974 (“
ERISA
”), that is covered by ERISA.
(f) None of the Company nor any of its Subsidiaries has incurred during the past six (6) years, and no event has occurred and no condition or circumstance exists that could reasonably be expected to result in, any unsatisfied liability of the Company and its Subsidiaries under Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA arising in connection with any employee benefit plan covered or previously covered by Title IV of ERISA or such sections of the Code or ERISA.
(g) Except as set forth in
Section 4.17(g) of the Company Disclosure Letter
the execution and performance of the Transactions will not (either alone or upon the occurrence of any additional or subsequent events) result in (i) any payment, compensation or benefits (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former, director, officer, employee, consultant or independent contractor or trigger the right of any current director, officer, employee, consultant or independent contractor to terminate any employment or contractual relationship with the Company and its Subsidiaries, or (ii) the triggering or imposition of any restrictions or limitations on the right of the Company, or any of its Subsidiaries, to amend or terminate any Company Benefit Plan.
SECTION 4.18.
Labor and Employment Matters
. The Company and all of its Subsidiaries have complied in all material respects with all labor and employment Laws, including, all labor and employment provisions included in the Maritime Guidelines, and those relating to wages, hours, workplace safety and
health, immigration, individual and collective termination, discrimination and data privacy. There are no pending or, to the Knowledge of the Company, threatened, labor disputes, work stoppages, requests for representation, pickets, work slow-downs due to labor disagreements or any legal actions or arbitrations that involve the labor or employment relations of the Company or any of its Subsidiaries. Since January 1, 2016, there has been no labor strike, dispute, work stoppage, request for representation, picket or work slow-down in respect of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is party to any collective bargaining agreement or any other type of collective agreement with any type of local, national or supranational workers’ representatives, other than those required by applicable Law. To the Knowledge of the Company there is not pending or underway any union, or any other type of workers’ representatives, organizational activities or requests or elections for representation with respect to employees of the Company or any of its Subsidiaries.
SECTION 4.19.
Environmental
. Except as set forth on
Section 4.19 of the Company Disclosure Letter
, (a) the Company and each of its Subsidiaries is and has been in compliance in all material respects with all Environmental Laws, (b) the Company and each of its Subsidiaries possesses and is and has been in compliance in all material respects with all Governmental Authorizations required under Environmental Law for the conduct of their respective operations, (c) there are no actions pending against the Company or any of its Subsidiaries alleging a violation of or liability under any Environmental Law, and (d) the Company and its Subsidiaries have provided to Parent all material documents in its possession related to compliance with or liability under Environmental Laws.
SECTION 4.20.
Insurance
. The Company and its Subsidiaries maintain (i) insurance policies and fidelity bonds covering the Company, its Subsidiaries or their respective businesses, properties, assets, directors, officers or employees, and (ii) protection and indemnity, hull and machinery and war risks insurance policies and club entries covering the Company Vessels in such amounts and types as are customary in the shipping industry (collectively, the “
Policies
”).
Section 4.20 of the Company Disclosure Letter
includes a list of all such Policies. Except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries is in violation or breach of or default under any of its obligations under any such Policy. Neither the Company nor any of its Subsidiaries has received any written notice that any Policy has been canceled or cover prejudiced or suspended. There are no material claims individually or in the aggregate by the Company or any of its Subsidiaries pending under any of the Policies as to which coverage has been questioned, denied or disputed by the underwriters of such Policy, as applicable, in writing or in respect of which such underwriters have reserved their rights in writing.
SECTION 4.21.
Opinion of Financial Advisor
. The Company Board and the Transaction Committee have received the written opinion of UBS Securities LLC, financial advisor to the Transaction Committee, to the effect that, based upon and subject to the assumptions and limitations set forth therein, as of the date of this Agreement, the Per Share Merger Consideration to be received by the holders of the Company Common Stock pursuant to the Merger is fair, from a financial point of view, to such holders. The Company has made available to Parent a true and complete copy of such opinion.
SECTION 4.22.
Fees
. Except for UBS Securities LLC, there is no (and will not prior to Closing be any) investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of the Company or its Subsidiaries who might be entitled to any fee or commission in connection with this Agreement or the Transactions or the rendering of any fairness opinion. The Company has furnished to Parent true, correct and complete copies of engagement letters relating to any such services, and there have been no amendments or revisions to such engagement letters.
SECTION 4.23.
Takeover Statutes
. The Company and its Subsidiaries have taken all action required to be taken by them (if any) in order to exempt this Agreement and the Transactions from the requirements of any “moratorium”, “control share”, “fair price”, “affiliate transaction”, “business combination” or other anti-takeover laws and regulations of any Governmental Authority (each, a “
Takeover Statute
”) or similar provision contained in the Company Group Charter Documents.
SECTION 4.24.
Interested Party Transactions
. Except as set forth in
Section 4.24 of the Company Disclosure Letter
, any Company Benefit Plan or any travel or expense reimbursement of officers or directors in the ordinary course, (a) there are no Contracts or arrangements between the Company or any
of its Subsidiaries, on the one hand, and any current officer or director of the Company or any of its Subsidiaries or any of such officer’s or director’s immediate family members or Affiliates, or any current or former record or beneficial owner of 5% or more of the outstanding shares of Company Common Stock or any of such owner’s Affiliates, on the other hand (any such Contract or arrangement, a “
Company Interested Party Transaction
”), and (b) no current officer or director of the Company or its Subsidiaries possesses, directly or indirectly, any financial interest in, or is a director, officer or employee of, any Person which is a supplier, customer, lessor, lessee or competitor of the Company or any of its Subsidiaries.
SECTION 4.25.
Certain Business Practices
. Since December 31, 2012, neither the Company nor any of its Subsidiaries nor (to the Knowledge of the Company), any director, officer, agent or employee of the Company or any of its Subsidiaries (a) used any funds for unlawful contributions, gifts, entertainment or other expenses relating to the business of the Company or any of its Subsidiaries, (b) made any illegal bribe or kickback, illegal political contribution, unlawful payment from corporate funds which was incorrectly recorded on the books and records of the Company or any of its Subsidiaries, unlawful payment from corporate funds to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns or violated any provision of the Foreign Corrupt Practices Act of 1977 or other anti-corruption Laws, in each case relating to the business of the Company and its Subsidiaries, or (c) made any other unlawful payment relating to the business of the Company and its Subsidiaries. Since December 31, 2012, neither the Company nor, to the Knowledge of the Company, any director, officer, agent, employee, Affiliate or Person acting on behalf of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“
OFAC
”). Since December 31, 2012, neither the Company nor any of its Subsidiaries has engaged in transactions with, or exported any of its products or associated technical data (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Russia, Syria, or any other country to which the United States has embargoed goods to or has proscribed economic transactions with, in breach of such embargoes or proscriptions, or (ii) to the Knowledge of the Company, to any Person included on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List.
SECTION 4.26.
No Other Representations or Warranties
. The Company has conducted its own independent investigation, review and analysis of the business, operations, assets, liabilities, results of operations, condition (financial or otherwise) and prospects of Parent and its Subsidiaries, which investigation, review and analysis was done by the Company and its Representatives. In entering into this Agreement, the Company acknowledges that it has relied solely upon the aforementioned investigation, review and analysis and not on any representations or opinions (whether written or oral) of Parent or its Affiliates (except the specific representations made in
Article V
). Except for the representations and warranties contained in
Article V
and in the certificate delivered by the Parent pursuant to
Section 9.2(f)
, the Company acknowledges that (a) neither Parent, Merger Sub nor any other Person on their behalf makes any other representation or warranty, express or implied, written or oral, at law or in equity, with respect to Parent, its Subsidiaries, or the business, operations, assets, liabilities, results of operations, condition (financial or otherwise) or prospects, including with respect to (i) merchantability or fitness for any particular use or purpose, or (ii) the probable success or profitability of Parent, its Subsidiaries or the business thereof after the Closing Date, and (b) except (subject to
Section 4.26
and
Section 5.26
) in the case of common law fraud, neither Parent, Merger Sub nor any other Person will have or be subject to any liability or indemnification obligation to the Company or any other Person resulting from the distribution to the Company or any other Person, or their use, of any information provided in connection with the Transactions, including any information, documents, projections, forecasts or other material made available to them in certain “data rooms” or management presentations or in any other form in expectation of, or in connection with, the Transactions.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except (i) as set forth in the Parent Disclosure Letter, or (ii) as disclosed in Parent SEC Documents filed or furnished and made publicly available on or after January 1, 2017 through the date of this Agreement to the extent such disclosure on its face appears to constitute information that would reasonably be deemed a qualification or exception to the following representations and warranties (other than any
forward looking disclosures set forth in any risk factor section, any disclosures in any section related to forward looking statements included in any such reports, schedules, forms or documents and any other disclosures included therein to the extent that such statements are primarily cautionary, predictive or forward-looking in nature), Parent and Merger Sub, jointly and severally, represent and warrant to the Company that:
SECTION 5.1.
Organization, Qualification and Corporate Power
. Each of Parent and Merger Sub is a corporation duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Each of Parent and Merger Sub has all requisite corporate power and authority and all Governmental Authorizations, directly or indirectly, to own, lease and operate its properties and assets and to carry on its business as it is now being conducted. Parent is duly qualified or licensed as a foreign corporation to do business, and is in good standing (where applicable) or has equivalent status, in each jurisdiction where the character of its properties or assets owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except where the failure to be so qualified or licensed and in good standing or to have equivalent status would not have a Parent Material Adverse Effect. Parent has heretofore made available to the Company true and complete copies of the articles of association and any other governing documents of Parent (the “
Parent Charter Documents
”) and of Merger Sub as currently in effect as of the date hereof.
SECTION 5.2.
Authorization
.
(a) The execution, delivery and performance by Parent and Merger Sub of this Agreement and the consummation by Parent and Merger Sub of the Transactions are within the corporate powers of Parent and Merger Sub and have been duly authorized by all necessary corporate action on the part of Parent and Merger Sub. This Agreement constitutes a valid and binding agreement of each of Parent and Merger Sub enforceable against each of them in accordance with its terms, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions. No vote of the holders of Parent Shares is required to consummate the Transactions.
(b) Assuming the accuracy of the representations and warranties set forth in
Section 4.2(c)
, the execution, delivery and performance by Parent and Merger Sub of this Agreement and the consummation by Parent and Merger Sub of the Transactions require no action by or in respect of, or filing with, any Governmental Authority, other than (i) the filing and recordation of appropriate merger or other documents as required by the MIBCA and by relevant authorities of other jurisdictions in which Parent is qualified to do business (including the Articles of Merger), (ii) compliance with any applicable requirements of the 1933 Act, the 1934 Act, any other applicable U.S. state or federal securities laws and the rules and requirements of the NYSE and Euronext, including the filing of the Registration Statement, the Proxy Statement or any other Company Disclosure Documents or Parent Disclosure Documents with the SEC, the NYSE, Euronext or the FSMA, and (iii) such approvals as may be required under any Antitrust Laws that are applicable to the Transactions.
SECTION 5.3.
Noncontravention
. Except as set forth in
Section 5.3 of the Parent Disclosure Letter
, the execution, delivery and performance by Parent and Merger Sub of this Agreement, and the consummation by Parent and Merger Sub of the Transactions do not and will not (i) violate any provision of the Parent Charter Documents or the comparable organizational documents, as applicable, of any of Merger Sub or any of Parent’s other Subsidiaries, (ii) assuming compliance with the matters referred to in
Section 5.2(b)
, contravene, conflict with, or result in a violation or breach of any provision of any applicable Law, (iii) assuming compliance with the matters referred to in
Section 5.2(b)
, require any consent or other action by any Person under, result in a violation or breach of, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default under or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to Parent or Merger Sub or any of Parent’s other Subsidiaries under any provision of any Material Contract of Parent, Merger Sub or any of Parent’s other Subsidiaries or any Governmental Authorization of Parent, Merger Sub or any of Parent’s other Subsidiaries, or (iv) result in the loss of, or creation or imposition of any Lien (other than Parent Permitted Liens) on any asset of Parent, Merger Sub or any of Parent’s other Subsidiaries, except, in the case of
clauses (ii)
,
(iii)
and
(iv)
, as would not have a Parent Material Adverse Effect.
SECTION 5.4.
Capitalization
.
(a) The share capital of Parent amounts to $173,046,122.14 and is represented by 159,208,949 Parent Shares. As of the date of this Agreement, (i) 159,208,949 Parent Shares are issued and outstanding, (ii) 586,590 Parent Shares are issuable upon exercise of vested and unvested outstanding Parent stock options, (iii) 65,433 Parent Shares are issuable upon the vesting of outstanding restricted stock units and which are scheduled to vest in 2018; and (iv) 1,042,415 Parent Shares are held in the treasury of Parent. All outstanding shares of capital stock of Parent have been duly authorized and validly issued and fully paid and nonassessable, and are free of preemptive or similar rights under any provision of the Laws of the Kingdom of Belgium and the Parent Charter Documents or any agreement to which Parent is a party or otherwise bound. Parent’s shareholders have duly and validly granted an authorization to the Parent Board with respect to the authorized capital of Parent for a period of five (5) years, ending June 19, 2020, by which the Parent Board is authorized to increase the share capital of Parent in one or more times by an amount of $150,000,000 corresponding to a maximum of 138,005,652 new Parent Shares that may be issued by the Parent Board at any time prior to June 19, 2020.
(b) Except as set forth in
Section 5.4(a)
above or
Section 5.4(b) of the Parent Disclosure Letter
, there are no issued, reserved for issuance or outstanding (i) shares of capital stock of or other voting securities of or ownership interests in Parent, (ii) securities of Parent or any of Parent’s Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of or ownership interests in Parent, (iii) warrants, calls, options or other rights to acquire from Parent or any of Parent’s Subsidiaries, or other obligation of Parent or any of Parent’s Subsidiaries to issue, any capital stock or other voting securities or ownership interests in or any securities convertible into or exchangeable or exercisable for capital stock or other voting securities or ownership interests in Parent, or (iv) restricted shares, stock appreciation rights, restricted stock units, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or voting securities of Parent (the items in
clauses (i)
through
(iv)
being referred to collectively as the “
Parent Securities
”). There are no outstanding obligations of Parent or any of Parent’s Subsidiaries to repurchase, redeem or otherwise acquire any of the Parent Securities. Parent and Parent’s Subsidiaries are not a party to any voting agreements, voting trusts, proxies or other similar agreements or understandings with respect to the voting of any Parent Shares or other Parent Securities. Except as may be required by applicable securities Laws and regulations and other than the Parent Charter Documents, Parent and Parent’s Subsidiaries are not bound by any obligations or commitments of any character restricting the transfer of, or requiring the registration for sale of, any Parent Shares or other Parent Securities.
(c) Except as set forth on
Section 5.4(c) of the Parent Disclosure Letter
, there is no outstanding Indebtedness of Parent or any of its Subsidiaries having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which shareholders of Parent may vote.
(d) Except as set forth in this
Section 5.4
, none of (i) the Parent Shares or (ii) any other Parent Securities is owned by any Subsidiary of Parent.
(e) The Parent Shares to be issued pursuant to the Merger in accordance with
Section 3.1
(i) will be duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights or similar rights under any provision of any applicable Laws, Parent Charter Documents or any agreement to which Parent is a party or is otherwise bound, (ii) will, when issued, be registered under the 1933 Act and the 1934 Act and registered or exempt from registration under applicable “blue sky” Laws, and (iii) will be approved for listing on the NYSE, subject to completion of the Merger and official notice of issuance, prior to the Closing Date.
(f) As of the date of this Agreement, one hundred (100) shares of capital stock of Merger Sub are issued and outstanding. All outstanding shares of capital stock of Merger Sub have been duly authorized and validly issued and fully paid and nonassessable, and free of preemptive or similar rights under any provision of the Laws of the Marshall Islands, the organizational documents of Merger Sub or any agreement to which Parent or Merger Sub are a party or are otherwise bound.
SECTION 5.5.
Subsidiaries
.
(a)
Section 5.5(a) of the Parent Disclosure Letter
sets forth a complete and correct list of each Subsidiary of the Parent, together with the jurisdiction of incorporation or formation of each such Subsidiary, the form of organization of each such Subsidiary, the authorized and issued capital stock, voting securities or other ownership interests of each such Subsidiary and the name of each holder thereof. All outstanding ownership interests of such Subsidiaries are validly issued and fully paid and nonassessable (to the extent such concepts apply), and free of preemptive or similar rights under any provision of applicable Law, the Parent Subsidiary Charter Documents (as defined below), or any agreement to which the Subsidiaries are a party or otherwise bound.
(b) Each Subsidiary of Parent has been duly organized, is validly existing and in good standing (except with respect to jurisdictions that do not recognize the concept of good standing) under the Laws of the jurisdiction of its incorporation or formation, and has all requisite power, Governmental Authorizations and authority to own, lease and operate its properties and to carry on its business as now conducted, except where the failure to be in good standing or possess such Governmental Authorizations would not have a Parent Material Adverse Effect. Each such Subsidiary of Parent is duly qualified or licensed as a foreign corporation, limited liability company or other applicable entity to do business, and is in good standing in each jurisdiction where the character of its properties or assets owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except where the failure to be so qualified or licensed and in good standing would not have a Parent Material Adverse Effect. Parent has heretofore made available to the Company true and complete copies of the articles of incorporation or bylaws (or comparable organization documents, as applicable) of each of the Subsidiaries of Parent (the “
Parent Subsidiary Charter Documents
,” and, together with the Parent Charter Documents, the “
Parent Group Charter Documents
”) as currently in effect.
(c) All of the outstanding shares of capital stock of, or voting securities of, or other ownership interests in, each Subsidiary of Parent, is owned by Parent directly or indirectly, free and clear of any Liens (other than Parent Permitted Liens). There are no issued, reserved for issuance or outstanding (i) securities of Parent or any Subsidiary of Parent convertible into, or exchangeable or exercisable for, shares of capital stock or other voting securities of, or ownership interests in, any Subsidiary of Parent, (ii) warrants, calls, options or other rights to acquire from Parent or any of Parent’s Subsidiaries, or other obligations of Parent or any of its Subsidiaries to issue any capital stock or other voting securities of, or ownership interests in, or any securities convertible into, or exchangeable or exercisable for, any capital stock or other voting securities of, or ownership interests in, any Subsidiary of Parent or (iii) restricted shares, stock appreciation rights, restricted stock units, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or other voting securities of, or ownership interests in, any Subsidiary of Parent (the items in
clauses (i)
through
(iii)
, together with all of the outstanding capital stock of, or other voting securities of, or ownership interests in, each Subsidiary of Parent, being referred to collectively as the “
Parent Subsidiary Securities
”). Except as set forth in
Section 5.5(c) of the Parent Disclosure Letter
, none of the Subsidiaries of Parent owns, directly or indirectly, any equity or other ownership interests in any Person, except for other Subsidiaries of Parent. There are no outstanding obligations of Parent or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Parent Subsidiary Securities. Except as set forth in
Section 5.5(c) of the Parent Disclosure Letter
, Parent is not subject to any obligation or requirement to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of Parent or any other Person (including in connection with any pool in which a Parent Vessel is entered).
(d) There is no outstanding Indebtedness of the Subsidiaries of Parent having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which equity holders of such Subsidiaries may vote.
(e) None of the Subsidiaries of Parent has any class of equity securities that is subject to registration with the SEC under Section 12(g) of the 1934 Act. At no time has any class of securities issued by any such Subsidiary been held of record by five hundred (500) or more Persons.
SECTION 5.6.
Parent SEC Filings
.
(a) Parent has filed with or furnished to the SEC, all reports, schedules, forms, statements, prospectuses, registration statements and other documents, as such documents may be amended, supplemented or restated, required to be filed with or furnished to the SEC by Parent since January 1, 2016 (collectively, together with any exhibits and schedules thereto and other information incorporated therein, the “
Parent SEC Documents
”).
(b) As of its filing date (or, if amended, by a filing prior to the date hereof, on the date of such filing), each Parent SEC Document complied, and each Parent SEC Document filed subsequent to the date hereof and prior to the earlier of the Closing Date and the termination of this Agreement will comply on its face, as to form in all material respects with the applicable requirements of the 1933 Act and the 1934 Act, as the case may be, at the time of such filing. As of the date of this Agreement, there are no outstanding unresolved comments received from the staff of the SEC with respect to any of the Parent SEC Documents. To the Knowledge of Parent, none of the Parent SEC Documents is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. No Subsidiary of Parent is subject to the periodic reporting requirements of Section 13(a) and Section 15(d) of the 1934 Act.
(c) As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), each Parent SEC Document filed pursuant to the 1934 Act did not, and each Parent SEC Document filed subsequent to the date hereof and prior to the earlier of the Closing Date and the date of the termination of this Agreement will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, that the foregoing does not apply to statements in or omissions from any such document based upon the Company Disclosure Information.
(d) Each Parent SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the 1933 Act, as of the date such registration statement or amendment became effective, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
provided
,
however
, that the foregoing does not apply to statements in or omissions from any such document based upon the Company Disclosure Information.
SECTION 5.7.
Financial Statements; Indebtedness
.
(a) The audited consolidated financial statements (including the related notes and schedules) included or incorporated by reference in the Parent SEC Documents complied, and audited consolidated financial statements (including the related notes and schedules) included or incorporated by reference in the Parent SEC Documents filed after the date hereof will comply, in all material respects with applicable accounting requirements and the published regulations of the SEC, have been prepared in all material respects in accordance with IFRS applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present, in all material respects, the consolidated financial condition, results of operations, shareholders’ equity and cash flows of Parent and its Subsidiaries as of the indicated dates and for the indicated periods.
(b) The unaudited consolidated interim financial statements (including the related notes and schedules) included or incorporated by reference in the Parent SEC Documents complied, and unaudited consolidated interim financial statements (including the related notes and schedules) included or incorporated by reference in the Parent SEC Documents filed after the date hereof will comply, in all material respects with applicable accounting requirements and the published regulations of the SEC, have been prepared or will be prepared in all material respects in accordance with IFRS applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present, in all material respects, the consolidated financial condition, results of operations, shareholders’ equity and cash flows of Parent and its Subsidiaries as of the indicated dates and for the indicated periods, subject to normal and recurring year-end audit adjustments and the absence of full footnote disclosure.
(c) The aggregate amount of outstanding Indebtedness of Parent and its Subsidiaries comprising the total long-term debt (as such term is defined in the Parent Balance Sheet) as of the date of this Agreement is set forth in
Section 5.7(c) of the Parent Disclosure Letter
. Neither Parent nor its
Subsidiaries are in material default under, nor has any event occurred that, with or without notice or lapse of time or both, would constitute a material default or cause or permit the acceleration of, any Indebtedness of Parent or its Subsidiaries.
SECTION 5.8.
Disclosure Documents
. The information with respect to Parent and its Subsidiaries that Parent has supplied or will supply in writing to the Company specifically for use in the Registration Statement, the Proxy Statement or in any other Company Disclosure Documents (the “
Parent Disclosure Information
”) at the time of the filing thereof or any amendment or supplement thereto and at the time of any distribution or dissemination of such Registration Statement, Proxy Statement or any other Company Disclosure Documents, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
SECTION 5.9.
Taxes
.
(a) All material Tax Returns required by applicable Law to have been filed by Parent or any of its Subsidiaries have been filed when due (taking into account any extensions), and each such Tax Return is complete and accurate and correctly reflects the liability for Taxes in all material respects. All material Taxes that are due and payable have been paid.
(b) There is no audit or other proceeding pending against or with respect to Parent or any of its Subsidiaries, with respect to any material amount of Taxes. There are no material Liens on any of the assets of Parent or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax, other than Liens for Taxes not yet due and payable.
(c) Parent and each of its Subsidiaries have withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any Third Party.
(d) Neither Parent nor any of its Subsidiaries has waived any statute of limitations in respect of a material amount of Taxes or agreed to any extension of time with respect to any such Taxes.
(e) Neither Parent nor any of its Subsidiaries is a party to any Tax allocation or sharing agreement.
(f) Neither Parent nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under the Law with respect to Taxes for any taxable period for which the statute of limitations has not expired (other than a group of which Parent and/or its Subsidiaries are the only members).
(g) Neither Parent nor any of its Subsidiaries has any material liability for the Taxes of any Person (other than any of Parent and its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of any state, local, or foreign Law), as a transferee or successor, by contract, or otherwise.
(h) Neither Parent nor any of its Subsidiaries is or has been a party to any “listed transaction” as defined in Section 6707A(c)(2) of the Code and Treasury Regulations Section 1.6011-4(b)(2).
(i) Neither Parent nor any of its Subsidiaries has taken or agreed to take any action or has knowledge of any fact or circumstance that could reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(j) Neither Parent nor any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” in a distribution in which the Parties to such distribution treated the distribution as one to which Section 355 of the Code is applicable within the prior three (3) years.
(k) Neither Parent nor any of its Subsidiaries has, or since its date of formation has had, a permanent establishment in any country other than the country of its organization.
(l) Each of Parent and its Subsidiaries have complied in all material respects with the intercompany transfer pricing provisions of each applicable Law relating to Taxes, including the contemporaneous documentation and disclosure requirements thereunder.
(m) Each of Parent and its Subsidiaries is, and has been for the last five (5) years, exempt from U.S. federal income taxation on its U.S.-source shipping income under Section 883 of the Code and has obtained all “ownership statements” required to establish such exemption in accordance with the Treasury Regulations interpreting Section 883 of the Code.
(n) No written claim has ever been made by any Governmental Authority in a jurisdiction where Parent or any of its Subsidiaries does not file Tax Returns that Parent or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
SECTION 5.10.
Compliance with Laws; Governmental Authorizations
.
(a) Parent and each of its Subsidiaries is, and since January 1, 2016 has been, in compliance in all material respects with all Laws and Governmental Authorizations to which Parent or such Subsidiary, or any of its or their Parent Vessels or other assets, is subject (including Maritime Guidelines).
(b) Parent and each of its Subsidiaries owns, holds, possesses or lawfully uses in the operation of its business all material Governmental Authorizations (including those required by Maritime Guidelines) that are necessary or required for it to conduct its business as now conducted.
SECTION 5.11.
Absence of Certain Changes; No Undisclosed Liabilities
.
(a) Except as set forth on
Section 5.11(a) of the Parent Disclosure Letter
, since the Parent Balance Sheet Date through the date of this Agreement, (i) Parent and its Subsidiaries have conducted their respective businesses only in the ordinary course of business, and (ii) there has not been any Parent Material Adverse Effect.
(b) Other than as expressly required by this Agreement or set forth on
Section 5.11(b) of the Parent Disclosure Letter
, from the Parent Balance Sheet Date until the date hereof, there has not been any action taken by Parent or any of its Subsidiaries or event that had such action occurred after the date of this Agreement without the Company’s consent, would constitute a breach of
Section 6.2(b)
.
(c) Except as set forth on
Section 5.11(c) of the Parent Disclosure Letter
, there are no liabilities of Parent or any of its Subsidiaries of any kind whatsoever (including in connection with any pool in which a Parent Vessel is entered), whether accrued, contingent, absolute, determined, determinable or otherwise, other than: (i) liabilities disclosed and provided for in the Parent Balance Sheet or in the notes thereto, (ii) liabilities and obligations arising out of this Agreement or the Transactions, (iii) liabilities incurred in the ordinary course of business since the Parent Balance Sheet Date, and (iv) liabilities which are not, individually or in the aggregate, material to Parent and its Subsidiaries, taken as a whole. Neither Parent nor its Subsidiaries is a party to, nor does Parent or its Subsidiaries have any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract relating to any transaction or relationship between Parent on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the SEC)), where the results, purpose or effect of such Contract is to avoid disclosure of any transaction involving, or liabilities of, Parent.
SECTION 5.12.
Tangible Personal Assets
. Parent and its Subsidiaries, in the aggregate, have good and valid title to, or a valid interest in, all of their respective material tangible personal assets, free and clear of all Liens, other than Parent Permitted Liens.
SECTION 5.13.
Real Property
. Neither Parent nor any of its Subsidiaries owns any real property.
Section 5.13 of the Parent Disclosure Letter
sets forth a true, correct and complete list of all real property leases under which Parent or any of its Subsidiaries is a lessee. All such leases are valid and binding, and are in full force and effect; there are no material defaults by Parent or any of its Subsidiaries thereunder; no event has occurred which (whether with or without notice, lapse of time, or both) would constitute a material default thereunder by Parent or any of its Subsidiaries. Parent has made available to the Company true and complete copies of all such leases.
SECTION 5.14.
Vessels; Maritime Matters
.
(a)
Section 5.14(a) of the Parent Disclosure Letter
contains a list, as of the date of this Agreement, of all vessels owned by Parent or any of its Subsidiaries (the “
Parent Owned Vessels
”) or chartered-in by Parent or any of its Subsidiaries pursuant to charter arrangements (the “
Parent Leased Vessels
”), including the name, registered owner, capacity (gross tonnage or deadweight tonnage, as specified therein), year built, classification society, official number, flag state, charterer (and whether such charterer is currently operating in the spot or time charter market), the pool in which entered, and manager (commercial or technical), of each Parent Owned Vessel and Parent Leased Vessel. Each Parent Vessel is operated in compliance in all material respects with all applicable Maritime Guidelines and Laws. Parent and each of its Subsidiaries are qualified to own and operate the Parent Owned Vessels under applicable Laws in all material respects, including the Laws of each Parent Owned Vessel’s flag state. Each Parent Vessel has all national and international operating and trading certificates, each of which is valid, that are required for the operation of such Parent Vessel in the trades and geographic areas in which it is operated.
(b) Each Parent Vessel is classed by a classification society which is a member of the International Association of Classification Societies and possesses class and trading certificates free from overdue conditions or recommendations affecting class and valid through the date of this Agreement and, to the Knowledge of Parent, no event has occurred and no condition exists that would cause such Parent Vessel’s class to be suspended or withdrawn.
(c) With respect to each of the Parent Owned Vessels, either Parent or one of its Subsidiaries, as applicable, is the sole owner of each such Parent Vessel and has good title to such Parent Vessel free and clear of all Liens other than Parent Permitted Liens.
(d) Prior to the date of this Agreement, Parent has made available to the Company true and complete copies of the most recent SIRE inspection reports relating to each Parent Vessel.
SECTION 5.15.
Contracts
.
(a)
Section 5.15(a) of the Parent Disclosure Letter
lists the following Contracts to which Parent or any of its Subsidiaries is a party:
(i) each “material contract” (as such term is defined in Item 10.C and in Instructions As To Exhibits of Form 20-F) to which Parent or any of its Subsidiaries is a party to or bound;
(ii) each Contract not contemplated by this Agreement that limits the ability of Parent or any of its Subsidiaries or Affiliates to engage in or compete with any line of business in any location or with any Person in any material manner;
(iii) each Contract that creates a partnership, joint venture or any strategic alliance with respect to the Company or any of its Subsidiaries;
(iv) each employment, consulting, services or similar Contract with any employee or independent contractor of Parent or any of its Subsidiaries involving more than $250,000 of annual compensation;
(v) each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for Indebtedness individually in excess of $1,000,000;
(vi) each Contract entered into since January 1, 2016 that relates to the acquisition or disposition, directly or indirectly, of any business (whether by merger, sale of stock, sale of assets or otherwise) or any material assets, including any vessel (other than (A) this Agreement or (B) acquisitions or dispositions of supplies, inventory, merchandise or products (other than vessels) in the ordinary course of business or that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of Parent or its Subsidiaries), including also any such Contract whenever entered into that includes provisions that remain in effect in respect of “earn-outs” or deferred or contingent consideration;
(vii) each ship-sales, memorandum of agreement, bareboat charter, or other vessel acquisition Contract entered into since January 1, 2016 for Newbuildings and secondhand vessels contracted for by Parent or any of its Subsidiaries (other than Company Owned Vessels) and other
Contracts entered into since January 1, 2016 with respect to Newbuildings of Parent or any of its Subsidiaries and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(viii) each pool agreement, management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Parent Vessel;
(ix) any Contract with a Third Party for the charter of any Parent Vessel;
(x) each collective bargaining agreement or other Contract with a labor union to which Parent or any of its Subsidiaries is a party or otherwise bound;
(xi) each Contract that provides for indemnification by Parent or any of its Subsidiaries to any Person other than a Contract entered into in the ordinary course of business;
(xii) each Contract pursuant to which Parent or any of its Subsidiaries spent or received, in the aggregate, more than $500,000 during the twelve (12) months prior to the date hereof or could reasonably be expected to spend or receive, in the aggregate, more than $500,000 during the twelve (12) months immediately after the date hereof;
(xiii) each Contract to which Parent or any of its Subsidiaries is a party or otherwise bound that contains a so-called “most favored nations” provision or similar provisions requiring Parent or its Affiliates to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons; and
(xiv) each Contract involving a standstill or similar obligation of Parent or any of its Subsidiaries.
(b) Parent has heretofore made available to the Company true and complete copies of the Material Contracts as in effect as of the date hereof. Except as set forth on
Section 5.15(b) of the Parent Disclosure Letter
or as would not reasonably be expected to be material to Parent and its Subsidiaries, taken as a whole, (i) each of the Material Contracts is valid, binding, enforceable and in full force and effect with respect to Parent and its Subsidiaries, and to the Knowledge of Parent, the other parties thereto, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions and except for any Material Contracts that have expired or been terminated after the date hereof in accordance with its terms, and (ii) neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent any other party to a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a breach or default under, or give rise to any right of cancellation or termination of or consent under, such Material Contract, and neither Parent nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Material Contract.
SECTION 5.16.
Litigation
. Except as set forth in
Section 5.16 of the Parent Disclosure Letter
or as would not reasonably be expected to be material to the Parent and its Subsidiaries, taken as a whole, as of the date of this Agreement (a) there is no Action pending or, to the Knowledge of Parent, threatened against Parent, any of its Subsidiaries or any Parent Vessels (including in connection with any pool in which a Parent Vessel is entered). No officer or director of Parent or any of its Subsidiaries is, as of the date of the Agreement, a defendant in any Action commenced by any equityholder of Parent or any of Parent’s Subsidiaries with respect to the performance of his duties as an officer or a director of Parent or any such Subsidiary under any applicable Law. There is no unsatisfied judgment, penalty or award against Parent, any of Parent’s Subsidiaries or any Parent Vessels (including in connection with any pool in which a Parent Vessel is entered). Except as would not reasonably be expected to be material to the Parent and its Subsidiaries, taken as a whole, as of the date of this Agreement, neither Parent nor any of its Subsidiaries nor any Parent Vessel is subject to any Orders.
SECTION 5.17.
Employee Benefits
.
(a)
Section 5.17(a) of the Parent Disclosure Letter
includes a list of all material Parent Benefit Plans. Parent has delivered or made available to the Company copies of each Parent Benefit Plan or, in the case of any unwritten Parent Benefit Plans, a summary thereof.
(b) Each Parent Benefit Plan has been administered in accordance with its terms and is in compliance in all material respects with all applicable Laws.
(c) Except as set forth in
Section 5.17(c) of the Parent Disclosure Letter
or as would not reasonably be expected to be material to Parent and its Subsidiaries, taken as a whole, (i) each Parent Benefit Plan that is intended to qualify for favorable tax benefits under the Laws of any jurisdiction is so qualified, and (ii) to the Knowledge of Parent, no condition exists and no event has occurred that could reasonably be expected to result in the loss or revocation of such status. All material benefits, contributions and premiums relating to each Parent Benefit Plan have been timely paid or made in accordance with the terms of such Parent Benefit Plan and any related agreement and in compliance with all applicable Laws.
(d) None of Parent nor any of its Subsidiaries has ever maintained or contributed to, or had any obligation to contribute to any “employee benefit plan,” within the meaning of Section 3(3) of ERISA, that is covered by ERISA.
(e) None of Parent nor any of its Subsidiaries has incurred, and no event has occurred and no condition or circumstance exists that could reasonably be expected to result in, any unsatisfied liability of Parent and its Subsidiaries under Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA arising in connection with any employee benefit plan covered or previously covered by Title IV of ERISA or such sections of the Code or ERISA.
(f) Except as set forth in
Section 5.17(f) of the Parent Disclosure Letter
the execution and performance of the Transactions will not (either alone or upon the occurrence of any additional or subsequent events) result in (i) any payment, compensation or benefits (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former director, officer, employee, consultant or independent contractor or trigger the right of any current director, officer, employee, consultant or independent contractor to terminate any employment or contractual relationship with Parent and its Subsidiaries, or (ii) the triggering or imposition of any restrictions or limitations on the right of Parent, or any of its Subsidiaries, to amend or terminate any Parent Benefit Plan.
SECTION 5.18.
Labor and Employment Matters
. Parent and all of its Subsidiaries have complied in all material respects with all labor and employment Laws, including all labor and employment provisions included in the Maritime Guidelines, and those relating to wages, hours, workplace safety and health, immigration, individual and collective termination, discrimination and data privacy. There are no pending or, to the Knowledge of Parent, threatened, labor disputes, work stoppages, requests for representation, pickets, work slow-downs due to labor disagreements or any legal actions or arbitrations that involve the labor or employment relations of Parent or any of its Subsidiaries. Since January 1, 2016, there has been no labor strike, dispute, work stoppage, request for representation, picket or work slow-down in respect of Parent or any of its Subsidiaries. To the Knowledge of Parent there is not pending or underway any union, or any other type of workers’ representatives, organizational activities or requests or elections for representation with respect to employees of Parent or any of its Subsidiaries.
SECTION 5.19.
Environmental
. Except as set forth on
Section 5.19 of the Parent Disclosure Letter
, (a) Parent and each of its Subsidiaries is and has been in compliance in all material respects with all Environmental Laws, (b) Parent and each of its Subsidiaries possesses and is and has been in compliance in all material respects with all Governmental Authorizations required under Environmental Law for the conduct of their respective operations, (c) there are no actions pending against Parent or any of its Subsidiaries alleging a violation of or liability under any Environmental Law, and (d) Parent and its Subsidiaries have provided to the Company all material documents in its possession related to compliance with or liability under Environmental Laws.
SECTION 5.20.
Insurance
. Parent and its Subsidiaries maintain (i) Policies covering Parent, its Subsidiaries or their respective businesses, properties, assets, directors, officers or employees, and (ii) Policies covering the Parent Vessels in such amounts and types as are customary in the shipping industry.
Section 5.20 of the Parent Disclosure Letter
includes a list of all such Policies. Except as would not reasonably be expected to be material to Parent and its Subsidiaries, taken as a whole, neither Parent nor any of its Subsidiaries is in violation or breach of or default under any of its obligations under any such
Policy. Neither Parent nor any of its Subsidiaries has received any written notice that any Policy has been canceled or cover prejudiced or suspended. There are no material claims individually or in the aggregate by Parent or any of its Subsidiaries pending under any of the Policies as to which coverage has been questioned, denied or disputed by the underwriters of such Policy, as applicable, in writing or in respect of which such underwriters have reserved their rights in writing.
SECTION 5.21.
Fees
. Except for RMK Maritime LLP, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Parent or its Subsidiaries who might be entitled to any fee or commission in connection with this Agreement or the Transactions or the rendering of any fairness opinion. Parent has furnished to the Company true, correct and complete copies of engagement letters relating to any such services, and there have been no amendments or revisions to such engagement letters.
SECTION 5.22.
Takeover Statutes
. Parent and its Subsidiaries have taken all action required to be taken by them (if any) in order to exempt this Agreement and the Transactions from the requirements of any Takeover Statute or similar provision contained in the Parent Group Charter Documents.
SECTION 5.23.
Operations of Merger Sub
. Merger Sub is a direct, wholly-owned Subsidiary of Parent, was formed solely for the purpose of engaging in the Transactions, has engaged in no other business activities and has conducted its operations only as specifically contemplated by this Agreement.
SECTION 5.24.
Interested Party Transactions
. Except as set forth in
Section 5.23 of the Parent Disclosure Letter
, any Parent Benefit Plan or any travel or expense reimbursement of officers or directors in the ordinary course, (a) there are no Contracts or arrangements between Parent or any of its Subsidiaries, on the one hand, and any current officer or director of Parent or any of its Subsidiaries or any of such officer’s or director’s immediate family members or Affiliates, or any current or former record or beneficial owner of 5% or more of the outstanding Parent Shares or any of such owner’s Affiliates, on the other hand, and (b) no current officer or director of Parent or its Subsidiaries possesses, directly or indirectly, any financial interest in, or is a director, officer or employee of, any Person which is a supplier, customer, lessor, lessee or competitor of Parent or any of its Subsidiaries.
SECTION 5.25.
Certain Business Practices
. Since December 31, 2012, none of Parent, its Subsidiaries nor (to the Knowledge of Parent), any director, officer, agent or employee of Parent or any of its Subsidiaries (a) used any funds for unlawful contributions, gifts, entertainment or other expenses relating to the business of Parent or any of its Subsidiaries, (b) made any illegal bribe or kickback, illegal political contribution, unlawful payment from corporate funds which was incorrectly recorded on the books and records of Parent or any of its Subsidiaries, unlawful payment from corporate funds to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns or violated any provision of the Foreign Corrupt Practices Act of 1977 or other anti-corruption Laws, in each case relating to the business of Parent and its Subsidiaries or (c) made any other unlawful payment relating to the business of Parent and its Subsidiaries. Since December 31, 2012, neither Parent nor, to the Knowledge of Parent, any director, officer, agent, employee, Affiliate or Person acting on behalf of Parent is currently subject to any U.S. sanctions administered by OFAC. Since December 31, 2012, neither Parent nor any of its Subsidiaries has engaged in transactions with, or exported any of its products or associated technical data (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Russia, Syria, or any other country to which the United States has embargoed goods to or has proscribed economic transactions with, in breach of such embargoes or proscriptions, or (ii) to the Knowledge of Parent, to any Person included on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List.
SECTION 5.26.
No Other Representations or Warranties
. Parent and Merger Sub have conducted their own independent investigation, review and analysis of the business, operations, assets, liabilities, results of operations, condition (financial or otherwise) and prospects of the Company and its Subsidiaries, which investigation, review and analysis was done by Parent, Merger Sub and their Representatives. In entering into this Agreement, Parent and Merger Sub acknowledge that they have relied solely upon the aforementioned investigation, review and analysis and not on any representations or opinions (whether written or oral) of the Company or its Affiliates (except the specific representations made in
Article IV
). Except for the representations and warranties contained in
Article IV
and in the certificate delivered by the
Company pursuant to
Section 9.3(f)
, Parent and Merger Sub acknowledge that (a) neither the Company nor any other Person on behalf of the Company makes any other representation or warranty, express or implied, written or oral, at law or in equity, with respect to the Company, its Subsidiaries, or the business, operations, assets, liabilities, results of operations, condition (financial or otherwise) or prospects thereof, including with respect to (i) merchantability or fitness for any particular use or purpose, or (ii) the probable success or profitability of the Company, its Subsidiaries or the business thereof after the Closing Date, and (b) except (subject to
Section 4.26
and
Section 5.26
) in the case of common law fraud, neither the Company nor any other Person will have or be subject to any liability or indemnification obligation to Parent, Merger Sub or any other Person resulting from the distribution to Parent, Merger Sub or any other Person, or their use, of any information provided in connection with the Transactions, including any information, documents, projections, forecasts or other material made available to them in certain “data rooms” or management presentations or in any other form in expectation of, or in connection with, the Transactions.
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 6.1.
Operation of the Company’s Business
.
(a) Except (A) as set forth in
Section 6.1(a) of the Company Disclosure Letter
, (B) as expressly permitted or required by this Agreement or required by applicable Law, or (C) with the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned), from the date hereof until the Closing Date, the Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course and in a manner consistent with past practice in all material respects and use its reasonable best efforts to (i) preserve intact its present business organization, goodwill and assets, (ii) maintain in effect all Governmental Authorizations required to carry on its business as now conducted, (iii) keep available the services of its present officers and other employees (
provided
,
that the Company shall not be obligated to, or to cause its Subsidiaries to, increase the compensation of, or make any other payments or grant any concessions to, such officers and employees), and (iv) preserve its present relationships with material customers, suppliers and other Persons with which it has a business relationship (
provided
, that they shall not be obligated to make any payments or grant any concessions to such Persons other than payments in the ordinary course consistent with past practice).
(b) Without limiting the generality of
Section 6.1(a)
, except (A) as set forth in
Section 6.1(b) of the Company Disclosure Letter
, (B) as expressly permitted or required by this Agreement or required by applicable Law, or (C) with the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned other than any consent with respect to
Section 6.1(b)(vi)
which Parent may withhold in its sole discretion), from the date hereof until the Closing Date, the Company shall not, nor shall it permit any of its Subsidiaries (or, with respect to any Company Vessels that are entered into a pool, any applicable pool management company to the extent that the Company shall have the right to consent to such action pursuant to the Contracts between such pool management company and the Company or its Subsidiaries) to, do any of the following:
(i) amend its articles of incorporation, bylaws or other comparable charter or organizational documents (whether by merger, consolidation or otherwise);
(ii) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any shares of Company Common Stock, other Company Securities or Company Subsidiary Securities, other than from a wholly-owned Subsidiary to its parent, (B) split, combine or reclassify any shares of Company Common Stock, other Company Securities or Company Subsidiary Securities, (C) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, any shares of Company Common Stock, other Company Securities or Company Subsidiary Securities (D) purchase, redeem or otherwise acquire any shares of Company Common Stock, other Company Securities or Company Subsidiary Securities, or (E) amend, modify or change any term of, or take any action that would result in a default under, any Indebtedness of the Company or any of its Subsidiaries;
(iii) (A) issue, deliver, sell, grant, pledge, transfer, subject to any Lien or otherwise encumber or dispose of any shares of Company Common Stock, other Company Securities or Company Subsidiary Securities, or (B) amend any term of any Company Securities or any Company Subsidiary Securities (in each case, whether by merger, consolidation or otherwise);
(iv) accelerate or delay (A) the payment of any accounts payable or other liability or (B) the collection of notes or accounts receivable, other than in the ordinary course of business consistent with past practice;
(v) incur more than $200,000 of capital expenditures in the aggregate in excess of amounts budgeted for by the Company or its Subsidiaries as described in
Section 6.1(b)(v) of the Company Disclosure Letter
, other than capital expenditures relating to the maintenance of the Company Vessels in the ordinary course of business consistent with past practice;
(vi) acquire or commit to acquire (A) all or any substantial portion of a business or Person or division thereof (whether by purchase of stock, purchase of assets, merger, consolidation, or otherwise), or (B) any assets or properties involving a price in excess of $200,000 in the aggregate, except (1) acquisitions by the Company or any of its wholly-owned Subsidiaries of or from an existing wholly-owned Subsidiary of the Company, (2) the acquisitions described on
Section 6.1(b)(vi) of the Company Disclosure Letter
, (3) acquisitions of assets, materials and supplies in the ordinary course of business consistent with past practice, (4) the purchase of bunkers in the ordinary course of business, or (5) pursuant to Contracts for Newbuildings in effect on the date of this Agreement;
(vii) enter into any Contract that, if in existence on the date hereof, would be a Material Contract or Company Interested Party Transaction, or amend, modify, extend or terminate any Material Contract or Company Interested Party Transaction (other than the expiration of any such Contract in accordance with its terms, and the termination of any such Contract in connection with any breach by the applicable counterparty);
(viii) sell, lease, license, transfer, subject to any Lien or otherwise dispose of, any of its assets or properties except (A) sales of used equipment in the ordinary course of business consistent with past practice, and (B) Company Permitted Liens (it being agreed that if the Company or any of its Subsidiaries shall desire to sell any Company Vessel or to charter out any Company Vessel for a period of more than seven (7) months (excluding charters of Company Vessels made by the pools where the charterer has a right, if at the end of this period the vessel is on a ballast voyage to a port of redelivery or is upon a laden voyage, to continue to have use of the vessel for as long as necessary to complete such ballast voyage, or to complete such laden voyage and to return to a port of redelivery), Parent shall have a right of first refusal to purchase or charter each and any such Company Vessel on the same terms the Company or its Subsidiary intends to accept from a Third Party and if Parent fails to exercise such right of first refusal within two (2) Business Days of Parent’s receipt of written notice from the Company, then Parent shall be deemed to have consented to such sale or charter of such Company Vessel by the Company to such Third Party);
(ix) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, or enter into any agreement with respect to the voting of its capital stock or other securities held by the Company or any of its Subsidiaries;
(x) except as required pursuant to the terms of any Company Benefit Plan existing as of the date hereof or to the extent required under applicable Law, (A) grant to any director, officer, employee or consultant of the Company or any of its Subsidiaries any increase or enhancement in compensation, bonus or other benefits, (B) grant to any director, officer or employee of the Company or any of its Subsidiaries any right to receive severance, change in control, retention or termination pay or benefits or any increase in severance, change of control or termination pay or benefits or (C) adopt, enter into or amend or commit to adopt, enter into or amend any Company Benefit Plan except for amendments required under applicable Law;
(xi) except as required by GAAP (or any interpretation thereof) or a Governmental Authority, make any change in any method of accounting principles, method or practices;
(xii) (A) incur or issue any Indebtedness (other than accrual of interests, drawdowns, premiums, penalties, fees, expenses and breakage costs under any Material Contracts existing as of the date hereof), (B) make any loans, advances or capital contributions to, or investments in, any other Person (including in connection with any pool in which a Company Vessel is entered), other than to the Company
or any of its Subsidiaries or (C) repay or satisfy any Indebtedness (other than scheduled payments of Indebtedness when due);
provided
that this
clause (xii)
shall not limit the issuance or incurrence of any intercompany Indebtedness or the repayment or satisfaction of such intercompany Indebtedness;
provided
,
further
, notwithstanding anything in this
clause (xii)
to the contrary, the Company and its Subsidiaries may incur Indebtedness in an aggregate principal amount not to exceed $300,000 at any one time outstanding and may repay or satisfy any such Indebtedness from time to time;
(xiii) change any material method of Tax accounting, make or change any material Tax election, file any material amended return (except as required by applicable Law), settle or compromise any material Tax liability, enter into any closing agreement with respect to any material amount of Taxes, surrender any right to claim a material Tax refund or offset or otherwise reduce a material Tax liability or take into account on any Tax Return required to be filed prior to the Closing any adjustment or benefit arising from the Transactions;
(xiv) institute, settle, or agree to settle any action, suit, litigation, investigation or proceeding (other than actions, suits, litigations, investigations or proceedings where Parent is adverse to the Company) pending or threatened before any arbitrator, court or other Governmental Authority, in each case in excess of $100,000 (exclusive of any amounts covered by insurance) or that imposes injunctive or other non-monetary relief on the Company or its Subsidiaries;
(xv) disclose, or consent to the disclosure of, any trade secrets or other proprietary information, other than in the ordinary course of business consistent with past practice;
(xvi) waive, release or assign any claims or rights having a value in excess of $100,000;
(xvii) fail to use commercially reasonable efforts to cause the current material insurance (or re-insurance) policies maintained by the Company or any of its Subsidiaries, including directors’ and officers’ insurance, not to be canceled or terminated or any of the coverage thereunder to lapse, unless, simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance or re-insurance companies of nationally recognized standing having comparable deductions and providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums or less are in full force and effect;
provided
, that neither the Company nor any of its Subsidiaries shall obtain or renew any insurance (or reinsurance) policy for a term exceeding three (3) months;
(xviii) directly or indirectly (A) purchase or construct any vessel or enter into any Contract for the purchase or construction of any vessel, (B) sell or otherwise dispose of any Company Vessel or enter into any contract for the sale or disposal of any Company Vessel, (C) to the extent that the Company shall have the right to consent to such action under the terms of the Contracts between the Company and the service provider or manager of such Company Vessel, enter into any contract for the bareboat or spot or time charter-out of any Company Vessel in excess of sixty (60) calendar days, (D) change any manager of any Company Vessel, (E) defer scheduled maintenance of any Company Vessel, or (F) depart from any normal drydock and maintenance practices or discontinue replacement of spares in operating the Company Vessels;
provided
, that, to the extent that the Company shall have the right to consent to such action under the terms of the Contracts between the Company and the service provider or manager of such Company Vessel, and subject to actions permitted under
clause (v)
of this
Section 6.1(b)
, the Company will not, and will cause its Subsidiaries not to enter into any Contract for the drydocking or repair of any Company Vessel where the estimated cost thereof is in excess of $200,000 unless, in the case of this
clause (F)
, such work cannot prudently be deferred and is required to preserve the safety and seaworthiness of such Company Vessel, or
(xix) authorize or enter into a Contract to take any of the actions described in
clauses (i)
through
(xviii)
of this
Section 6.1(b)
.
(c) Notwithstanding anything herein to the contrary, from and after the date hereof and until the Closing, each employee of the Company shall be permitted and is hereby authorized to remove the items listed in
Section 6.1(c) of the Company Disclosure Letter
and any other property which such employee can establish is the personal property of such employee from the Company’s premises at no cost, expense or liability to the Company, Parent, the Surviving Corporation or Merger Sub.
SECTION 6.2.
Operation of Parent’s Business
.
(a) Except (A) as set forth in
Section 6.2(a) of the Parent Disclosure Letter
, (B) as expressly permitted or required by this Agreement or required by applicable Law, or (C) with the prior written consent of the Company (such consent not to be unreasonably withheld, delayed or conditioned), from the date hereof until the Closing Date, Parent shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course and in a manner consistent with past practice in all material respects and use its reasonable best efforts to (i) preserve intact its present business organization, goodwill and assets, (ii) maintain in effect all Governmental Authorizations required to carry on its business as now conducted, (iii) keep available the services of its present officers and other employees (
provided
that Parent shall not be obligated to, or to cause its Subsidiaries to, increase the compensation of, or make any other payments or grant any concessions to, such officers and employees), (iv) preserve its present relationships with material customers, suppliers and other Persons with which it has a business relationship (
provided
, that they shall not be obligated to make any payments or grant any concessions to such Persons other than payments in the ordinary course consistent with past practice), (v) not issue any Parent Securities or Parent Subsidiary Securities;
provided
, that this
Section 6.2(a)
shall not prohibit issuances of Parent Shares reserved for issuance of equity awards in accordance with
Section 5.4(a)
, or (vi) any purchase, sale, sale/leaseback or similar transaction or arrangement involving a vessel in the ordinary course and in a manner consistent with past practice.
(b) Without limiting the generality of
Section 6.2(a)
, except (A) as set forth in
Section 6.2(b) of the
Parent Disclosure Letter
, (B) as expressly permitted or required by this Agreement or required by applicable Law, or (C) with the prior written consent of Company (such consent not to be unreasonably withheld, delayed or conditioned), from the date hereof until the Closing Date, Parent shall not, nor shall it permit Merger Sub or any of its Subsidiaries to, do any of the following:
(i) amend its articles of incorporation, bylaws or other comparable charter or organizational documents (whether by merger, consolidation or otherwise);
(ii) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any Parent Shares, other Parent Securities or Parent Subsidiary Securities, other than (1) from a wholly-owned Subsidiary to its parent, or (2) an annual cash dividend consistent with past practice (including with respect to declaration, record and payment dates) by Parent in aggregate amount (interim and final dividend) not to exceed $0.12 per Parent Share, (B) split, combine or reclassify any Parent Shares, other Parent Securities or Parent Subsidiary Securities, (C) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, any Parent Shares, other Parent Securities or Parent Subsidiary Securities, (D) purchase, redeem or otherwise acquire any Parent Shares or other Parent Securities, or (E) amend, modify or change any term of, or take any action that would result in a default under, any Indebtedness of Parent or any of its Subsidiaries;
(iii) (A) issue, deliver, sell, grant, pledge, transfer, subject to any Lien or otherwise encumber or dispose of any Parent Shares, other Parent Securities or Parent Subsidiary Securities, or (B) amend any term of any Parent Securities (in each case, whether by merger, consolidation or otherwise);
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent, or enter into any agreement with respect to the voting of its capital stock or other securities held by Parent or any of its Subsidiaries;
(v) take any action that might reasonably be expected to prevent, impede or materially delay the consummation of the Transactions; or
(vi) authorize or enter into a Contract to take any of the actions described in
clauses (i)
through
(v)
of this
Section 6.2(b)
.
SECTION 6.3.
Access to Information
. After the date hereof until the Closing Date and subject to applicable Law and the Mutual Confidentiality Agreement dated as of October 16, 2017 between the Company and Parent (the “
Confidentiality Agreement
”), the Company shall: (i) give to Parent and its Representatives, upon reasonable prior written notice, reasonable access to the offices, properties, books and records of the Company and its Subsidiaries as may be reasonably requested in connection with the
Parties’ efforts to consummate the Transactions and for baseline inventory and planning assessments by Parent;
provided
,
however
, that any such access shall be conducted during normal business hours in a manner not to interfere with the businesses or operations of the Company and its Subsidiaries; (ii) furnish to Parent and its Representatives such financial and operating data and other information as such Persons may reasonably request in writing from time to time in connection with the Parties’ efforts to consummate the Transactions; and (iii) instruct the Representatives of the Company and its Subsidiaries and the ship managers and pool managers of Company Vessels to cooperate with Parent in the matters described in
clauses (i)
and
(ii)
above. In accordance with the foregoing, the Company shall permit Parent and its Representatives reasonable access to a sample of Company Vessels when at a port upon reasonable prior written notice and in accordance with reasonable procedures agreed upon by the Company and Parent for baseline inventory and planning assessments by Parent. When accessing any of the Company Vessels, Parent shall, and shall cause its Representatives to, comply with all safety and security policies or requirements for the applicable Company Vessel. With respect to this
Section 6.3
, Parent’s “Representatives” shall be deemed to include the Third Parties disclosed to the Company in connection with the Confidentiality Agreement with whom Parent is negotiating to purchase from the Surviving Corporation or its Subsidiaries up to six Company Vessels for purpose of due diligence on such Company Vessels covering the matters described in
Section 6.3 of the Parent Disclosure Letter
, including inspections thereof. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to provide such access or disclose any information if doing so is reasonably likely to (A) result in a waiver of attorney-client privilege, work product doctrine or similar privilege or (B) violate any Contract to which it is a party or to which it is subject or applicable Law.
SECTION 6.4.
No Solicitation
.
(a)
General Prohibitions
. Except as expressly permitted pursuant to
Section 6.4(b)
, from and after the date hereof and prior to the earlier of the termination of this Agreement in accordance with
Section 10.1
and the Closing Date, the Company shall not (and the Company shall (A) cause its Subsidiaries not to and (B) not authorize or permit and shall instruct and use reasonable best efforts to cause its Representatives and any of its Subsidiaries’ Representatives not to), directly or indirectly, (i) solicit, initiate or knowingly take any action to facilitate or encourage or assist any inquiries or the making of any proposal or offer that constitutes or would reasonably be expected to lead to the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, or furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to any Third Party with respect to inquiries regarding, or the making of, an Acquisition Proposal, (iii) qualify, withdraw, or modify or amend in a manner adverse to Parent, the Transaction Committee Recommendation or the Company Board Recommendation (or recommend an Acquisition Proposal), or publicly propose to do any of the foregoing (any of the foregoing in this
clause (iii)
, an “
Adverse Recommendation Change
”), (iv) approve, endorse, recommend or enter into (or agree or publicly propose to do any of the foregoing) any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal (other than a confidentiality agreement with a Third Party to whom the Company is permitted to provide information in accordance with
Section 6.4(b)(i)
), or (v) grant any waiver, amendment or release under any standstill or confidentiality agreement or any Takeover Statute or similar provision contained in the Company Charter Documents other than a waiver of the obligations of Third Parties existing as of the date of this Agreement not to seek from the Company any waiver of such Third Parties’ standstill obligations and granting a limited waiver if requested solely to enable such Third Parties to make an Acquisition Proposal to the Company Board. The Company shall (and the Company shall (1) cause its Subsidiaries to and (2) instruct and use reasonable best efforts to cause its Representatives and any of its Subsidiaries’ Representatives to) cease immediately and cause to be terminated any and all existing activities, solicitations, encouragements, discussions or negotiations, if any, with any Third Party and its Representatives and its financing sources conducted prior to the date hereof with respect to any Acquisition Proposal or efforts to obtain an Acquisition Proposal, and shall also request such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries prior to the date hereof.
(b)
Exceptions
.
(i) Prior to (but not at any time from or after) obtaining the Company Shareholders Approval, if the Company receives a bona fide, written Acquisition Proposal from a Third Party after the date hereof (that has not been withdrawn) that did not result from a breach or violation of the provisions of
Section 6.4(a)
and, prior to taking any action described in
clauses (A)
and
(B)
below, (1) the Transaction Committee determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with its financial advisors of nationally recognized reputation, such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and (2) the Company shall have complied with
Section 6.4(c)
, then the Company may, in response to such Acquisition Proposal, directly or indirectly through its Representatives, (A) engage in negotiations or discussions with such Third Party and its Representatives or financing sources with respect to such Acquisition Proposal and (B) thereafter furnish to such Third Party or its Representatives or financing sources non-public information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement (a copy of which shall be promptly (and in any event within twenty-four (24) hours) provided for informational purposes only to Parent) with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement;
provided
that all written materials provided or made available to such Third Party (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent promptly (and in any event within twenty-four (24) hours) after the time it is provided or made available to such Third Party.
(ii) Prior to (but not at any time from or after) obtaining the Company Shareholders Approval, the Transaction Committee or the Company Board may, following receipt of or on account of a Superior Proposal, make an Adverse Recommendation Change in connection with such Superior Proposal, if such Superior Proposal did not result from a breach or violation of the provisions of
Section 6.4(a)
, and the Transaction Committee or the Company Board, as applicable, determines in good faith, after consultation with outside legal counsel and financial advisors of nationally recognized reputation that, in light of such Superior Proposal, the failure of the Transaction Committee or the Company Board, as applicable, to take such action is reasonably likely to be inconsistent with its fiduciary duties to the Company’s shareholders under applicable Law;
provided
,
however
, that the Transaction Committee and the Company Board shall not be entitled to effect an Adverse Recommendation Change in connection with a Superior Proposal unless (A) the Transaction Committee promptly notifies Parent, in writing at least five (5) Business Days before making an Adverse Recommendation Change (the “
Notice Period
”), of the intention of the Transaction Committee or the Company Board, as applicable, to take such action with respect to such Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Transaction Committee or the Company Board, as applicable, has determined to be a Superior Proposal and that the Transaction Committee or the Company Board, as applicable, intends to make an Adverse Recommendation Change; (B) the Transaction Committee attaches to such notice the proposed transaction agreements and the identity of the Third Party making such Superior Proposal; (C) during the Notice Period, if requested (orally or in writing) by Parent, the Transaction Committee has engaged, and has directed its Representatives to engage, in negotiations with Parent in good faith (to the extent Parent desires to negotiate) to amend this Agreement in such a manner that such Superior Proposal ceases to constitute a Superior Proposal; and (D) following the Notice Period, the Transaction Committee or the Company Board, as applicable, shall have considered in good faith any proposed amendments to this Agreement and determined in good faith, after consultation with its outside legal counsel and financial advisors of nationally recognized reputation, taking into account any changes to this Agreement made or proposed in writing by Parent, that such Superior Proposal continues to constitute a Superior Proposal;
provided
,
however
, that, with respect to any applicable Superior Proposal, any amendment to the financial terms or any other material amendment to a term of such Superior Proposal shall require a new written notice by the Transaction Committee and a new Notice Period (except that the Notice Period shall be reduced to seventy-two (72) hours, or if there are less than seventy-two (72) hours prior to the Company Shareholders Meeting, as much notice as is reasonably practicable, and in no event shall the new Notice Periods exceed nine (9) days in the aggregate), and no such Adverse Recommendation Change in connection with such Superior Proposal may be made during any Notice Period.
(iii) Prior to (but not at any time from or after) obtaining the Company Shareholders Approval, the Transaction Committee or the Company Board may, if there has been an Intervening Event,
make an Adverse Recommendation Change in connection with such Intervening Event if the Transaction Committee or the Company Board, as applicable, determines in good faith, after consultation with outside legal counsel and financial advisors of nationally recognized reputation that, in light of such Intervening Event, the failure of the Transaction Committee or the Company Board, as applicable, to take such action is reasonably likely to be inconsistent with its fiduciary duties to the Company’s shareholders under applicable Law;
provided
,
however
, that the Transaction Committee and the Company Board shall not be entitled to effect an Adverse Recommendation Change in connection with an Intervening Event unless (A) the Company promptly notifies Parent in writing at least three (3) Business Days before making an Adverse Recommendation Change of the intention of the Transaction Committee or Company Board, as applicable, to take such action with respect to such Intervening Event, which notice shall include the material facts underlying the Transaction Committee’s or the Company Board’s determination that an Intervening Event has occurred, and state the reasons that the Transaction Committee or the Company Board, as applicable, intends to make an Adverse Recommendation Change, in reasonable detail, (B) during such three (3)-Business Day period, if requested (orally or in writing) by Parent, the Company has engaged, and has directed its Representatives to engage, in negotiations with Parent in good faith (to the extent Parent desires to negotiate) to amend this Agreement in such a manner that an Adverse Recommendation Change is no longer warranted as a result of the Intervening Event, and (C) following such three (3)-Business Day period, the Transaction Committee or the Company Board, as applicable, shall have considered in good faith any proposed amendments to this Agreement and determined in good faith, after consultation with its outside legal counsel and financial advisors of nationally recognized reputation, taking into account any changes to this Agreement made or proposed in writing by Parent, that the failure of the Transaction Committee or the Company Board, as applicable, to make an Adverse Recommendation Change in connection with such Intervening Event is reasonably likely to be inconsistent with its fiduciary duties to the Company’s shareholders under applicable Law;
provided
, that the Company shall not be required to negotiate with Parent in connection with an Adverse Recommendation Change that the Company Board intends to effect in response to an Intervening Event if the Company has already negotiated with Parent in accordance with this
Section 6.4(b)(iii)
in connection with an Adverse Recommendation Change by the Transaction Committee or the Company Board, as applicable, in response to the same Intervening Event.
(iv) In addition, nothing contained herein shall prevent the Transaction Committee or the Company Board from complying with Rule 14e-2(a) under the 1934 Act with regard to an Acquisition Proposal, or from (A) making legally required disclosures;
provided
that any Adverse Recommendation Change may only be made in a manner consistent with this
Section 6.4
, or (B) granting any waiver, amendment or release under any standstill or confidentiality agreement or any Takeover Statute or similar provision contained in the Company Charter Documents.
(c)
Required Notices
. The Company and the Company Board shall not take any of the actions referred to in
Section 6.4(b)
unless the Company shall have first complied with the applicable requirements of this
Section 6.4(c)
. The Company shall notify Parent promptly (but in no event later than 24 hours) after receipt by the Company (or, if received by any of the Company’s Representatives, after the Company is informed by such Representative) of any Acquisition Proposal or of any inquiries or other communication regarding the making of an Acquisition Proposal, including the material terms and conditions thereof and providing a copy, if applicable, of any written requests, proposals or offers, including proposed agreements, and the identity of the Person making (or inquiry or communications about) such Acquisition Proposal and its proposed financing sources, if any, and shall keep Parent reasonably informed on a prompt basis (but in any event no later than 24 hours) as to the status (including changes or proposed changes to the material terms) of such Acquisition Proposal. The Company shall also notify Parent promptly (but in no event later than 24 hours) after receipt by the Company of any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries by any Third Party that has informed the Company that it is considering making, or has made, an Acquisition Proposal. The Company shall also notify Parent promptly of the Company’s intention to take the actions set forth in
clauses (A)
or
(B)
of
Section 6.4(b)(i)
. The Company agrees that it and its Subsidiaries will not enter into any confidentiality agreement with any Third Party subsequent to the date hereof which prohibits the Company from providing any information to Parent in accordance with this
Section 6.4
.
(d)
Definition of Superior Proposal
. For purposes of this Agreement, “
Superior Proposal
” means a bona fide, written Acquisition Proposal (
provided
that, for the purposes of this definition, references to “15%” in the definition of Acquisition Proposal shall be deemed replaced with references to “50%”) that (i) was not solicited by the Company or any of its Representatives from and after November 20, 2017, (ii) is not subject to any additional financing conditions that are not already contemplated by this Agreement and for which financing has been fully committed or is on hand or the Company Board or the Transaction Committee, as applicable, determines in good faith after considering the advice of its financial advisor of nationally recognized reputation is reasonably probable to be fully financed, and (iii) the Company Board or the Transaction Committee, as applicable, has determined in good faith, after considering the advice of its outside legal counsel and financial advisors of nationally recognized reputation and taking into consideration all of the applicable terms, conditions, impacts and all legal, financial, regulatory, fiduciary and other aspects of such Acquisition Proposal that the Company Board or the Transaction Committee, as applicable, deems in good faith to be relevant, including, to the extent the Company Board or the Transaction Committee, as applicable, deems relevant, the identity of the Person making the Acquisition Proposal, financing, regulatory approvals, shareholder litigation, termination fees, expense reimbursement provisions and the expected timing and risk and likelihood of consummation, would result in a transaction more favorable, from a financial point of view, to the Company’s shareholders than the Transactions provided hereunder (after taking into account and giving effect to any adjustments or amendment to this Agreement proposed by Parent).
(e) The Company acknowledges and agrees that any violation of the restrictions set forth in this
Section 6.4
by any Subsidiary or Representative of the Company shall be deemed to be a breach of this
Section 6.4
by the Company.
SECTION 6.5.
Litigation
.
(a) The Company shall promptly advise Parent of any Action commenced or, to the Knowledge of the Company, threatened against or involving the Company, any of its Subsidiaries, any of their respective officers or directors, the Transaction Committee, or any Company Vessel, relating to this Agreement or the Transactions and shall keep Parent informed and consult with Parent regarding the status of such Action on an ongoing basis. The Company shall, and shall cause its Subsidiaries to, cooperate with and give Parent the opportunity to consult with respect to the defense or settlement of any such Action, and shall not agree to any settlement without the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned).
(b) Parent shall promptly advise the Company of any Action commenced or, to the Knowledge of Parent, threatened against or involving Parent or Merger Sub, any of its Subsidiaries, any of their respective officers or directors, or any Parent Vessels, relating to this Agreement or the Transactions and shall keep the Company informed and consult with the Company regarding the status of such Action on an ongoing basis. Parent shall, and shall cause its Subsidiaries to, cooperate with and give the Company the opportunity to consult with respect to the defense or settlement of any such Action and shall not agree to any settlement without the prior written consent of the Company (such consent not to be unreasonably withheld, delayed or conditioned).
SECTION 6.6.
Takeover Provisions
. If any Takeover Statute or similar provision contained in the Company Charter Documents shall become or is deemed to be applicable to the Transactions after the date of this Agreement, each of the Company, Parent, Merger Sub and the respective members of their boards of directors and the Transaction Committee shall grant such approvals and take such actions as are necessary so that the Transactions may be consummated as promptly as practicable on the terms contemplated herein and otherwise act to eliminate if possible, and otherwise to minimize, the effects of such Takeover Statute, or such similar provision contained in Company Charter Documents, as applicable, on the Transactions.
SECTION 6.7.
Resignation of Company Officers and Directors
. To the extent requested in writing by Parent no less than five (5) Business Days prior to the Closing Date, the Company shall use reasonable best efforts to cause to be delivered to Parent prior to the Closing written resignations of each officer, director and manager of the Company and its Subsidiaries, which resignations shall be effective as of, and subject to the occurrence of, the Closing.
SECTION 6.8.
Interested Party Transactions
. At or prior to the Closing, (a) the Company shall take all commercially reasonable actions the Company is permitted to take under (and shall use its reasonable best efforts to cause its controlled-Affiliates to take all commercially reasonable actions such controlled-Affiliates are permitted to take under) the Contracts set forth on
Section 6.8 of the Company Disclosure Letter
to terminate such Contracts, effective as of the Effective Time, or amend such Contracts so as to eliminate any further liability or obligation of the Company or its Subsidiaries thereunder arising after the Effective Time; and (b) the Company shall use its reasonable best efforts to obtain a formal written sublease with respect to a currently sub-let portion of its New York offices on substantially the same terms than those contained in the expired sublease, including the right to terminate the sublease upon ninety (90) days’ prior notice.
ARTICLE VII
COVENANTS OF PARENT
SECTION 7.1.
Director and Officer Liability
. Parent shall cause the Surviving Corporation to do the following:
(a) Until the later of the (i) sixth (6th) anniversary of the Effective Time and (ii) date of the final disposition of any Action of a nature described in this
Section 7.1(a)
asserted against any Indemnified Person prior to the sixth anniversary of the Effective Time, Parent and the Surviving Corporation shall indemnify and hold harmless the present and former officers and directors of the Company or any Company’s Subsidiaries (each, together with such person’s heirs, executors or administrators, an “
Indemnified Person
”) against any costs or expenses (including, subject to receipt of any undertaking required by applicable Law, advancing attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Person), judgments, fines, losses, fees, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened Action arising out of or pertaining to the fact that the Indemnified Person is or was an officer or director of the Company or any Company’s Subsidiaries, or is or was an officer or director of the Company or any Company Subsidiary or is or was serving at the request of the Company as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, whether asserted or claimed prior to, at or after the Effective Time to the fullest extent permitted by the MIBCA or any other applicable Law or provided under the Company Charter Documents in effect on the date hereof;
provided
that such indemnification shall be subject to any limitation imposed from time to time under applicable Law or under the Company Charter Documents in effect on the date hereof. Parent and the Surviving Corporation shall reasonably cooperate with the Indemnified Person in the defense of any such Action.
(b) For a period of no less than six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, to the fullest extent permitted under applicable Law, cause to be maintained in effect the provisions in the Company Group Charter Documents of the Surviving Corporation and each Subsidiary of the Company (or in such documents of any successor to the business of the Surviving Corporation or any Subsidiary of the Company if any such Subsidiary shall not continue in existence) regarding exculpation, indemnification and advancement of expenses in effect as of the date hereof or in any agreement, a complete copy of which agreement has been provided by the Company to Parent prior to the date hereof, to which the Company or any of its Subsidiaries is a party, in each case in effect immediately prior to the Effective Time, and shall not amend, repeal or otherwise modify any such provisions or the exculpation, indemnification or advancement of expenses provisions of the Company Group Charter Documents (or successor company documents) or any such agreement in any manner that would adversely affect the rights thereunder of any individual who, at or before the Effective Time, was an Indemnified Person;
provided
, that all rights to indemnification in respect of any Action pending or asserted or any claim made within such period shall continue until the final disposition of such Action or resolution of such claim.
(c) Parent shall cause the Surviving Corporation to either (i) continue to maintain in effect for a period of no less than six (6) years after the Effective Time the Company’s directors’ and officers’ insurance policies (the “
D&O Insurance
”) in place as of the date hereof or (ii) purchase or provide comparable D&O Insurance for such six (6)-year period from a carrier with comparable or better credit ratings to the Company’s existing directors’ and officers’ insurance policies, in each case, with coverage for
the persons who are covered by the Company’s existing D&O Insurance, with terms, conditions, retentions and levels of coverage at least as favorable (in the aggregate) to the insured individuals as the Company’s existing D&O Insurance with respect to matters existing or occurring at or prior to the Effective Time;
provided
, that in no event shall Parent or the Surviving Corporation be required to expend for such policies pursuant to this sentence an aggregate premium amount in excess of 250% of the amount per annum the Company paid in its last full fiscal year, which amount is set forth in
Section 7.1(c) of the Company Disclosure Letter
(the “
Premium Cap
”);
provided
,
further
, that if the aggregate premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available, with respect to matters occurring prior to the Effective Time, for a cost not exceeding the Premium Cap. Notwithstanding the foregoing, at the Company’s option and in lieu of the obligations of Parent and the Surviving Corporation under the first sentence of this
Section 7.1(c)
, the Company may purchase prior to the Effective Time, a prepaid “tail policy” for a period of no more than six (6) years after the Effective Time with coverage for the persons who are covered by the Company’s existing D&O Insurance, with terms, conditions, retentions and levels of coverage at least as favorable to the insured individuals as the Company’s existing D&O Insurance with respect to matters existing or occurring at or prior to the Effective Time, in which event Parent shall cease to have any obligations under the first sentence of this
Section 7.1(c)
;
provided,
that the aggregate premium for such policies shall not exceed the Premium Cap. In the event the Company elects to purchase such a “tail policy,” Parent shall cause the Surviving Corporation to maintain such “tail policy” in full force and effect and continue to honor its obligations thereunder.
(d) If either Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties, rights and other assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, succeed to or assume the applicable obligations of such party set forth in this
Section 7.1
.
(e) The rights of each Indemnified Person under this
Section 7.1
shall be in addition to any rights such Person may have under the Company Group Charter Documents (or successor company documents), under the MIBCA or any other applicable Law or under any agreement of any Indemnified Person with the Company or any of its Subsidiaries. These rights shall survive consummation of the Merger and are intended to benefit, and shall be enforceable by, each Indemnified Person.
SECTION 7.2.
Stock Exchange Listing
. Parent shall use its reasonable best efforts to take all actions, including drafting the EU Listing Prospectus and the NYSE Supplemental Listing Application, and do all things, reasonably necessary, proper or advisable on its part under applicable Laws and rules and policies of the NYSE and Euronext to ensure that the Parent Shares comprising the Merger Consideration are approved for listing, subject to completion of the Merger and official notice of issuance, on the NYSE prior to or as of the Closing Date and on Euronext as of or as soon as practicable after the Closing Date, and the Company shall cooperate with Parent with respect to such approvals.
SECTION 7.3.
Parent Board Seat
. Parent shall take all actions necessary so that Mr. Steve Smith (a current director of the Company) or, if Mr. Steve Smith is unavailable then another Person designated by the Transaction Committee that is reasonably satisfactory to Parent, is nominated and proposed for election by Parent’s corporate governance and nomination committee to the Parent Board at the next annual Parent shareholders meeting.
SECTION 7.4.
Merger Sub
. Parent shall take all actions necessary to (a) cause Merger Sub to perform its obligations under this Agreement and to consummate the Transaction on the terms and conditions set forth in this Agreement and (b) ensure that, prior to the Effective Time, Merger Sub shall not conduct any business or make any investments other than as specifically contemplated by this Agreement.
SECTION 7.5.
Employees
. Promptly after the Parties first publicly announce the execution of this Agreement, the Company shall assist Parent to deliver (and Parent shall deliver) to each employee of Parent and its Subsidiaries a letter concerning intended employment arrangements containing the language set forth in
Section 7.5 of the Parent Disclosure Letter
.
ARTICLE VIII
COVENANTS OF PARENT AND THE COMPANY
SECTION 8.1.
Proxy Statement; Registration Statement; Company Shareholders Meeting
.
(a) As soon as reasonably practicable following the date of this Agreement, Parent and the Company shall jointly prepare, and Parent shall file with the SEC, a registration statement on Form F-4 to register, under the 1933 Act, the Parent Shares issuable in the Transactions (together with all amendments supplements and exhibits thereto, the “
Registration Statement
”), which shall include a prospectus with respect to the Parent Shares issuable in the Transactions and a proxy statement to be sent to the shareholders of the Company (and, to the extent applicable, the holders of any outstanding Company RSUs) relating to the Company Shareholders Meeting (together with any amendments, supplements and exhibits thereto, the “
Proxy Statement
”). Parent and the Company shall use their respective reasonable best efforts to cause the Registration Statement to be declared effective under the 1933 Act as soon as reasonably practicable after such filing. The Company shall use its reasonable best efforts to furnish to Parent all information concerning the Company and its Affiliates to be included in the Registration Statement and the Proxy Statement as may be reasonably requested by Parent as promptly as reasonably practicable following the date of such request, and shall provide such other reasonable assistance, in each case as may be reasonably requested by Parent in connection with the preparation, filing and distribution of the Registration Statement and the Proxy Statement. Notwithstanding the foregoing, prior to filing the Registration Statement (or any amendment or supplement thereto) or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company and Parent shall (i) provide the other an opportunity to review and comment on such document or response (including the proposed final version of such document or response), and (ii) consider in good faith all comments reasonably proposed by the other Party within a reasonable time after having been provided such document or response for its review;
provided
, that none of the Parties shall be responsible for any delay in furnishing the Registration Statement or the Proxy Statement to the SEC (or a response to any comment of the SEC in connection therewith) to the extent arising from a Party’s review of the foregoing or a Party’s good faith consideration and incorporation of any comments thereto proposed by the other Party. Parent shall advise the Company, promptly after receiving notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order, or of any request by the SEC for amendment of the Registration Statement or Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information, and Parent shall use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated.
(b) If prior to the Company Shareholders Meeting, any event occurs with respect to Parent or any of its Subsidiaries, or any change occurs with respect to other information supplied by Parent for inclusion in the Proxy Statement or Registration Statement, in each case which is required by applicable Law to be described in an amendment of, or a supplement to, the Proxy Statement or Registration Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, Parent shall promptly notify the Company of such event or information, and the Company and Parent shall reasonably cooperate in the prompt, and in any event within the earlier of (i) five (5) Business Days following the receipt of such notice and (ii) the date of the Company Shareholders Meeting, preparation and furnishing to the SEC of any necessary amendment or supplement to the Proxy Statement or Registration Statement and, as required by applicable Law, in disseminating the information contained in such amendment or supplement to the Company’s shareholders (and, to the extent applicable, the holders of any outstanding Company RSUs). Nothing in this
Section 8.1(b)
shall limit the obligations of any Party under
Section 8.1(a)
;
provided
, that none of the Parties shall be responsible for any delay in furnishing any such amendment or supplement to the Proxy Statement or Registration Statement to the SEC to the extent arising from a Party’s review of the foregoing or a Party’s good faith consideration and incorporation of any comments thereto proposed by the other Party.
(c) If prior to the Company Shareholders Meeting, any event occurs with respect to the Company or any of its Subsidiaries, any Acquisition Proposal is received by the Company or any Adverse Recommendation Change is made in connection with an Acquisition Proposal or Intervening Event as
permitted by
Section 6.4(b)
, or any change occurs with respect to other information supplied by the Company for inclusion in the Proxy Statement or Registration Statement, in each case which is required by applicable Law to be described in an amendment of, or a supplement to, the Proxy Statement or Registration Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company shall promptly notify Parent of such event, and Parent shall reasonably cooperate in the prompt, and in any event within the earlier of (i) five (5) Business Days following the happening of such event requiring an amendment or supplement and (ii) the date of the Company Shareholders Meeting, preparation and furnishing to the SEC of any necessary amendment or supplement to the Proxy Statement or Registration Statement and, as required by applicable Law, in disseminating the information contained in such amendment or supplement to the Company’s shareholders (and, to the extent applicable, the holders of any outstanding Company RSUs). Nothing in this
Section 8.1(c)
shall limit the obligations of any party under
Section 8.1(a)
;
provided
, that none of the Parties shall be responsible for any delay in furnishing any such amendment or supplement to the Proxy Statement or Registration Statement to the SEC to the extent arising from a Party’s review of the foregoing or a Party’s good faith consideration and incorporation of any comments thereto proposed by the other Party.
(d) The Company shall, as soon as reasonably practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of the shareholders (the “
Company Shareholders Meeting
”) for the sole purpose of seeking the Company Shareholders Approval, and shall not submit any other proposals in connection with such Company Shareholders Meeting (other than proposals relating to executive compensation as may be required by Rule 14a-21(c) under the 1934 Act, and in connection with the appointment of the Exchange Agent in a manner consistent with
Article III
), without the prior written consent of Parent;
provided
that the Company (i) shall cause the Proxy Statement to be mailed to the Company’s shareholders (and, to the extent applicable, the holders of any outstanding Company RSUs) as promptly as reasonably practicable after the Registration Statement is declared effective under the 1933 Act, and (ii) shall use its reasonable best efforts to hold the Company Shareholders Meeting on the twentieth (20th) Business Day following the first mailing of the Proxy Statement to the Company’s shareholders. Subject to
Section 6.4(b)
, the Company shall use its reasonable best efforts to solicit the Company Shareholders Approval. The Company shall include in the Proxy Statement the recommendation of the Transaction Committee and the Company Board that the Company’s shareholders give the Company Shareholders Approval, except to the extent that the Transaction Committee or the Company Board shall have made an Adverse Recommendation Change as permitted by
Section 6.4(b)
. Notwithstanding anything herein to the contrary, the Company shall not make or file any amendment, supplement or change to the Proxy Statement without the written consent of Parent, except in connection with an Adverse Recommendation Change or as otherwise required by applicable Law;
provided
, that, if, at any time prior to the Company Shareholders Meeting, any information relating to the Company, Parent or any of their respective Affiliates, officers or directors should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the Party which discovers such information shall promptly notify the other Parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the Company’s shareholders. The Company agrees that its obligations to hold the Company Shareholders Meeting pursuant to this
Section 8.1
shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposal, or by the making of any Adverse Recommendation Change. The Company shall not adjourn or postpone the Company Shareholders Meeting without the prior written consent of Parent;
provided
, that the Company shall have the right to adjourn or postpone the Company Shareholders Meeting if: (i) after consultation with Parent, for a single period not to exceed ten (10) Business Days from the date on which the Company Shareholders Meeting is originally scheduled (as set forth in the Proxy Statement), the Company has not received proxies representing a sufficient number of shares of Company Common Stock to obtain the Company Shareholders Approval; (ii) on the date on which the Company Shareholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of Company Common Stock
represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Shareholders Meeting; or (iii) after consultation with Parent, the failure to adjourn or postpone the Company Shareholders Meeting would reasonably be expected to be a violation of applicable Law for the distribution of any required amendment or supplement to the Proxy Statement to be timely provided to the Company’s shareholders (the period that the Company Shareholders Meeting is adjourned or postponed, the “
Adjournment Period
”).
SECTION 8.2.
Regulatory and Other Undertakings
.
(a) Subject to the terms and conditions of this Agreement, the Parties shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Merger, including (i) preparing and filing as promptly as practicable with any Governmental Authority or other Third Party all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents that are necessary, proper or advisable to consummate the Merger, including certain Parent Disclosure Documents, (ii) obtaining and maintaining any approvals, consents, registrations, waivers, amendments, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other Third Party that are necessary, proper or advisable to consummate the Merger (including those set forth in
Section 9.2(b)
and
Section 9.3(b)
, as applicable); (iii) making any other submissions required in connection with the consummation of the Transaction under the 1933 Act, the 1934 Act, the MIBCA, applicable state, federal or foreign securities Laws or the NYSE or Euronext rules and regulations, and (iv) taking or causing to be taken all other actions necessary, proper or advisable consistent with this
Section 8.2
to cause the expiration of the applicable waiting periods, or receipt of required consents, approvals or authorizations under such Laws as soon as practicable;
provided
that the obligations set forth in this sentence shall not be deemed to have been breached as a result of actions by the Company or its Subsidiaries expressly permitted by Sections
6.4(b)
or
8.1
. In furtherance and not in limitation of the foregoing, each of the Parties shall as promptly as reasonably practicable after the date hereof file or supply, or cause to be filed or supplied, all notifications and information required to be filed or supplied pursuant to any Antitrust Laws that are applicable to the Transactions.
(b) Subject to the terms hereof, the Company and Parent agree, and shall cause each of their respective Subsidiaries, to cooperate and to use their respective reasonable best efforts to obtain any government clearances or approvals required for Closing under any Antitrust Laws, to respond to any government requests for information under any Antitrust Laws, and to contest and resist any Action, including any legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits the consummation of the Transactions under any Antitrust Laws. The Parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to any Antitrust Laws. Parent and the Company agree to provide the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between Parent or the Company or any of their Representatives, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the Transactions.
(c) Notwithstanding anything in this
Section 8.2
or otherwise in this Agreement, none of Parent, Merger Sub or the Company shall be required or permitted to consent to any requirement, condition, limitation, understanding, agreement or order of a Governmental Authority (i) to sell, divest, license, assign, transfer, hold separate or otherwise dispose of any portion of the assets or business of the Company, the Surviving Corporation, Parent or Merger Sub, or any of their respective Subsidiaries, (ii) that limits the freedom of action with respect to, or ability to retain, any of the businesses, services, or assets that would be material to the Company, the Surviving Corporation, Parent or Merger Sub and their respective Subsidiaries, taken as a whole, after giving effect to the Merger, in order to be permitted by such Governmental Authority to consummate the Transactions, or (iii) that modifies or waives any material terms and conditions of this Agreement.
(d) Each of Parent and the Company shall not, and shall cause its Affiliates not to, take any action or enter into any transaction, or any agreement to effect any transaction (including any merger or
acquisition) that might reasonably be expected to make it more difficult, or to increase the time required, to: (i) obtain the expiration or termination of the waiting period under any Antitrust Law applicable to the Transactions; (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order that would materially delay or prevent the consummation of the Transactions; or (iii) obtain all authorizations, consents, orders and approvals of Governmental Authorities necessary for the consummation of the Transactions;
provided
,
however
, that nothing in this
Section 8.2(d)
shall restrict or limit the Company Board, the Transaction Committee, the Company or any of its Subsidiaries from taking any action permitted under or required by
Section 6.4
,
Section 8.1
or
Article X
.
SECTION 8.3.
Certain Filings
. The Parties shall reasonably cooperate with one another (i) in connection with the preparation of the Registration Statement, the Proxy Statement, the EU Listing Prospectus, the Parent Audit Report or any other required Parent Disclosure Documents or Company Disclosure Documents, (ii) in determining whether any action by or in respect of, or filing with, any Governmental Authority is required, or any actions, consents, approvals or waivers are required to be obtained from parties to any contracts, in connection with the consummation of the Transactions, and (iii) in taking such actions or making any such filings, furnishing information required in connection therewith or with the Registration Statement, the Proxy Statement or any other Parent Disclosure Documents or Company Disclosure Documents and seeking timely to obtain any such actions, consents, approvals or waivers. No Party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the Transactions at the behest of any Governmental Authority without the consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned.
SECTION 8.4.
Public Announcements
. Subject to
Section 6.4
, the Parties shall consult with each other before issuing any press release, having any communication with the press (whether or not for attribution) or making any other public statement, or scheduling any press conference or conference call with investors or analysts, with respect to this Agreement or the Transactions and none of the Parties nor any of their Affiliates shall issue any such press release or make any such other public statement or schedule any such press conference or conference call without the consent of Parent (in the case of the Company and its Affiliates) or the Company (in the case of Parent, Merger Sub and their Affiliates), which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, (a) the Parties each hereby consent to the filing of Parent’s Form 6-K and the Company’s Form 8-K on the date of this Agreement in the form previously provided by Parent or the Company to the other Party, as applicable, and to the distribution or dissemination of any Parent Disclosure Documents by Parent and any Company Disclosure Documents by the Company, and (b) nothing herein shall prohibit the making of any public statement or press release by a Party to the extent that in the judgment of such Party upon the advice of its outside counsel such public statement or press release is required by applicable Law or any listing agreement with or rule of any national securities exchange or association, in which case, the Party making such determination will, if practicable in the circumstances, allow the other Parties reasonable time to comment on such public statement or press release in advance of its issuance.
SECTION 8.5.
Further Assurances
. At and after the Closing Date, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of the Company or Merger Sub, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of the Company or Merger Sub, any other actions and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets of the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger.
SECTION 8.6.
Notices of Certain Events
. Prior to the Closing Date or the earlier termination of this Agreement in accordance with
Section 10.1
, each of the Company and Parent shall promptly notify the other if to the Knowledge of the Company or the Knowledge of Parent, as the case may be:
(a) any written notice or other written communication is received from any Person alleging that the consent of such Person (or another Person) is or may be required in connection with the Transactions;
(b) any written notice or other written communication is received from any Governmental Authority in connection with the Transactions;
(c) any action, suit, claim, investigation or proceeding is commenced or, to the Knowledge of the Company or the Knowledge of Parent, as the case may be, threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries or Company Vessels or Parent and any of its Subsidiaries or Parent Vessels, as applicable, that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to any Section of this Agreement;
(d) any inaccuracy of any representation or warranty of such party contained in this Agreement at any time during the term hereof that could reasonably be expected to cause any of the conditions set forth in
Article IX
not to be satisfied;
(e) any failure of such party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder occurs that would or would reasonably be expected to cause any of the conditions set forth in
Article IX
not to be satisfied; and
(f) any event occurs that has had a Company Material Adverse Effect or Parent Material Adverse Effect, as applicable.
Notwithstanding anything in this
Section 8.6
to the contrary, the failure by a Party to comply with this
Section 8.6
shall not constitute a breach of or non-compliance with any covenant or agreement by such Party for determining the satisfaction of the conditions to the obligations of the Parties set forth in
Section 9.2(d)
or
Section 9.3(d)
.
SECTION 8.7.
Transfer Taxes
. The Parties shall cooperate in the preparation, execution and filing of all returns, questionnaires, applications or other documents regarding any property transfer or gains, sales, use, transfer, value added, stock transfer or stamp taxes, any transfer, recording, registration and other fees and any similar taxes that become payable in connection with the Transactions (together with any related interests, penalties or additions to Tax, “
Transfer Taxes
”), and shall cooperate in attempting to minimize the amount of Transfer Taxes. From and after the Effective Time, Parent shall pay or cause to be paid all Transfer Taxes.
SECTION 8.8.
Waiver of Conflicts
. Recognizing that Kramer Levin Naftalis & Frankel LLP (“
Kramer Levin
”) has acted as legal counsel to the Company, its Subsidiaries, certain of the direct and indirect holders of Company Common Stock and certain of their respective Affiliates prior to date hereof, and that Kramer Levin intends to act as legal counsel to certain of the direct and indirect holders of Company Common Stock and their respective Affiliates (which will no longer include the Company and its Subsidiaries) after the Effective Time, each of Parent, Merger Sub and the Company hereby waives, on its own behalf and agrees to cause its Affiliates, the Surviving Corporation and its Subsidiaries to waive, any conflicts that may arise in connection with Kramer Levin representing any direct or indirect holders of the Company Common Stock or their Affiliates after the Effective Time as such representation may relate to Parent, Merger Sub, the Company, the Surviving Corporation or its Subsidiaries or the transactions contemplated hereby. In addition, all communications involving attorney-client confidences between direct and indirect holders of Company Common Stock, the Company and its Subsidiaries and their respective Affiliates, on the one hand, and Kramer Levin, on the other hand, in the course of the negotiation, documentation and consummation of the transactions contemplated hereby shall be deemed to be attorney-client confidences that belong solely to the direct and indirect holders of Company Common Stock and their respective Affiliates (and not the Company, the Surviving Corporation or its Subsidiaries). Accordingly, the Surviving Corporation and its Subsidiaries shall not have access to any such communications or to the files of Kramer Levin relating to such engagement from and after the Effective Time. Without limiting the generality of the foregoing, from and after the Effective Time, (a) the direct and indirect holders of Company Common Stock and their respective Affiliates (and not the Surviving Corporation and its Subsidiaries) shall be the sole holders of the attorney-client privilege with respect to such engagement, and none of the Surviving Corporation or the Subsidiaries shall be a holder thereof, (b) to the extent that files of Kramer Levin in respect of such engagement constitute property of the client, only the direct and indirect holders of Company Common Stock and their respective Affiliates (and not the Surviving Corporation and the Subsidiaries) shall hold such property rights, and (c) Kramer Levin shall
have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Surviving Corporation or any of its Subsidiaries by reason of any attorney-client relationship between Kramer Levin and the Company or any of its Subsidiaries or otherwise. This
Section 8.8
will be irrevocable, and no term of this
Section 8.8
may be amended, waived or modified, without the prior written consent of Kramer Levin.
SECTION 8.9.
Tax Matters
. Each of Parent and the Company shall use its reasonable best efforts (i) to cause the Merger, including the receipt of Parent Shares by Company Common Shareholders, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code with respect to which Parent and the Company will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code and (ii) not to, and not permit or cause any of its respective Subsidiaries to, take or cause to be taken any action reasonably likely to cause the Merger, including the receipt of Parent Shares by Company Common Shareholders, to fail to qualify as a “reorganization” under Section 368(a) of the Code.
ARTICLE IX
CONDITIONS TO THE MERGER
SECTION 9.1.
Conditions to Obligations of Each Party
. The respective obligations of each Party to effect the Merger are subject to the satisfaction of the following conditions:
(a) no applicable Law preventing or prohibiting the consummation of the Merger shall be in effect;
(b) the Company Shareholders Approval shall have been obtained in accordance with the MIBCA; and
(c) (i) the Registration Statement shall have become effective under the 1933 Act and shall not be the subject of any stop order suspending the effectiveness thereof or any proceedings initiated by the SEC seeking any such stop order; and (ii) the Parent Shares included in the Merger Consideration shall have been approved for listing on NYSE, subject to the completion of the Merger and official notice of issuance.
SECTION 9.2.
Conditions to Obligations of the Company
. The obligations of the Company to effect the Merger are further subject to the satisfaction or (to the extent permitted by Law) waiver by the Company, at or prior to the Closing, of the following additional conditions:
(a) (i) the representations and warranties of Parent and Merger Sub contained in
Section 5.11(a)(ii)
shall be true and correct in all respects as of the Closing Date as if made at and as of the Closing Date, (ii) the representations and warranties of Parent and Merger Sub contained in the first sentence of
Section 5.1
,
Section 5.2(a)
,
Section 5.4(a)
, the first sentence of
Section 5.4(b)
,
Section 5.4(e)(i)
and
Section 5.21
of this Agreement shall be true and correct (except for
de minimis
exceptions) as of the Closing Date as if made at and as of the Closing Date (except to the extent any such representation and warranty by its terms addresses matters only as of another specified time, in which case such representation and warranty will be true and correct (except for
de minimis
exceptions) as of such other time), and (iii) all of the other representations and warranties of Parent and Merger Sub contained in this Agreement or in any certificate or other writing delivered by Parent pursuant hereto (disregarding all materiality and Parent Material Adverse Effect qualifications contained therein) shall be true and correct as of the Closing Date as if made at and as of the Closing Date (except (1) to the extent any such representation and warranty by its terms addresses matters only as of another specified time, in which case such representation and warranty will be true and correct in all material respects as of such other time or (2) where the failure of any or all of such representations and warranties to be so true and correct would not in the aggregate have a Parent Material Adverse Effect);
(b) all required filings shall have been made and all required approvals shall have been obtained (or waiting periods expired or terminated) under any Antitrust Laws that are applicable to the Transactions;
(c) either (i) all of the Specified Approvals have been obtained on or prior to, and shall be in full force and effect on, the Closing Date, or (ii) Parent shall have demonstrated to the reasonable satisfaction of the Transaction Committee that it has available, or will have available at Closing, alternative financing sufficient to refinance any Indebtedness for which the Specified Approvals are not obtained;
(d) each of Parent and Merger Sub shall have performed and complied with in all material respects all of the covenants and obligations required to be performed or complied with by it under this Agreement on or prior to the Closing Date;
(e) from the date hereof and through the Closing Date, there shall not have occurred a Parent Material Adverse Effect;
(f) Parent shall have delivered to the Company, as of the Closing Date, a certificate, dated as of such date, executed by an executive officer of Parent to the effect that the conditions set forth in
clauses (a)
,
(d)
and
(e)
of this
Section 9.2
have been satisfied, and certifying as to the aggregate outstanding Indebtedness of Parent and its Subsidiaries, as of the Closing Date; and
(g) Parent shall have delivered to the Company, a true and complete copy of each of the Parent Special Board Report and the Parent Audit Report.
SECTION 9.3.
Conditions to Obligations of Parent and Merger Sub
. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction or (to the extent permitted by Law) waiver by Parent, at or prior to the Closing, of the following additional conditions:
(a) (i) the representations and warranties of the Company contained in
Section 4.11(a)(ii)
shall be true and correct in all respects as of the Closing Date as if made at and as of the Closing Date, (ii) the representations and warranties of the Company contained in the first sentence of
Section 4.1
,
Section 4.2(a)
,
Section 4.4(a)
, the first sentence of
Section 4.4(b)
and
Section 4.22
of this Agreement shall be true and correct (except for
de minimis
exceptions) as of the Closing Date as if made at and as of the Closing Date (except to the extent any such representation and warranty by its terms addresses matters only as of another specified time, in which case such representation and warranty will be true and correct (except for
de minimis
exceptions) as of such other time), and (iii) all of the other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct as of the Closing Date as if made at and as of the Closing Date (except (1) to the extent any such representation and warranty by its terms addresses matters only as of another specified time, in which case such representation and warranty will be true and correct in all material respects as of such other time or (2) where the failure of any or all of such representations and warranties to be so true and correct would not in the aggregate have a Company Material Adverse Effect);
(b) all required filings shall have been made and all required approvals shall have been obtained (or waiting periods expired or terminated) under any Antitrust Laws that are applicable to the Transactions;
(c) all of the Specified Approvals shall have been obtained in form and substance reasonably satisfactory to Parent, on or prior to, and shall be in full force and effect on, the Closing Date;
(d) the Company shall have performed and complied with in all material respects with each of the covenants and obligations required to be performed by it under this Agreement on or prior to the Closing Date;
(e) from the date hereof through the Closing Date, there shall not have occurred a Company Material Adverse Effect; and
(f) the Company shall have delivered to Parent, as of the Closing Date, a certificate, dated as of such date, executed by an executive officer of the Company to the effect that the conditions set forth in
clauses (a)
,
(d)
and
(e)
of this
Section 9.3
have been satisfied, and certifying as to the aggregate outstanding Indebtedness of the Company and its Subsidiaries comprising the total long-term debt (as such term is used in the Company Balance Sheet) as of the Closing Date.
SECTION 9.4.
Frustration of Closing Conditions
. Neither Parent or Merger Sub, on the one hand, nor the Company, on the other hand, may rely, either as a basis for not consummating the Merger or for terminating this Agreement and abandoning the Merger, on the failure of any condition set forth in
Section 9.1
,
Section 9.2
or
Section 9.3
, as the case may be, to be satisfied if such failure was caused by such Party’s breach of any provision of this Agreement or failure to use its reasonable best efforts to consummate the Merger and the other Transactions, as required by and subject to
Section 8.2
or
Section 8.5
.
ARTICLE X
TERMINATION
SECTION 10.1.
Termination
. This Agreement may be terminated at any time prior to the Effective Time (notwithstanding the receipt of the Company Shareholders Approval), as follows:
(a) by mutual written agreement of the Company and Parent; or
(b) by either the Company or Parent, if:
(i) the Effective Time shall not have occurred on or before June 30, 2018 (the “
End Date
”);
provided
, that if (A) the Company Shareholders Meeting shall not have occurred by such date and (B) all other conditions in
Article IX
(other than the conditions set forth in
Section 9.1(b)
) are satisfied or are capable of being satisfied by such date, then Parent or the Company may elect, by written notice to the other Party, to extend the End Date to July 31, 2018;
provided
,
further
, that if the Company Shareholders Meeting shall have been adjourned or postponed in accordance with
Section 8.1(d)
, the End Date shall be extended by the Adjournment Period;
provided
,
further
, that the right to terminate this Agreement pursuant to this
Section 10.1(b)(i)
shall not be available to any Party if the failure of such Party (and in the case of Parent, including the failure of Merger Sub) to perform any of its obligations under this Agreement has been a principal cause of, or resulted in, the failure of the Merger to be consummated on or before the End Date; or
(ii) the Company Shareholders Approval shall not have been obtained after a vote of the Company’s shareholders has been taken and completed at the duly convened Company Shareholders Meeting or at any adjournment or postponement thereof; or
(iii) there shall be any applicable Law that prohibits the Company, Parent or Merger Sub from consummating the Merger and such prohibition shall have become final and nonappealable; or
(c) by Parent, if:
(i) an Adverse Recommendation Change shall have occurred;
(ii) the Company shall have entered into a binding agreement (other than a confidentiality agreement contemplated by
Section 6.4(b)(i)
) relating to any Acquisition Proposal; or
(iii) prior to the taking of a vote to adopt this Agreement at the Company Shareholders Meeting, the Company shall have intentionally and materially breached any of its covenants or obligations under
Section 6.4
(the Parties acknowledging that the Company shall be deemed to have intentionally and materially breached such covenants or obligations if an Acquisition Proposal arises from an intentional breach or violation of
Section 6.4(a)
);
(d) by the Company, if (i) Parent or Merger Sub shall have breached or failed to perform any of their covenants or obligations set forth in this Agreement, or (ii) any representation or warranty of Parent or Merger Sub shall have become untrue, in each case which breach or failure to perform or to be true, individually or in the aggregate, has resulted or would reasonably be expected to result in a failure of a condition set forth in
Section 9.2(a)
or
Section 9.2(d)
(such circumstance, a “
Material Parent Breach
”), and such Material Parent Breach cannot be or, to the extent curable by Parent or Merger Sub, has not been cured by the earlier of (1) the End Date and (2) twenty (20) days after the giving of written notice to Parent of such breach or failure;
provided
, that if such breach or failure to perform is capable of being cured by Parent by the End Date, such twenty (20) day period shall be extended until the second (2nd) Business Day prior to the End Date solely to the extent during such period Parent is using its reasonable best efforts to cure such breach or failure to perform;
provided
,
further
, that the Company shall not have the right to terminate this Agreement pursuant to this
clause (d)
if the Company is then in breach of any of its covenants or agreements set forth in this Agreement, which breach would result in the failure of any of the conditions set forth in
Section 9.3(a)
or
Section 9.3(d)
; and
(e) by Parent, if (i) the Company shall have breached or failed to perform any of its covenants or obligations set forth in this Agreement (other than its covenants and obligations under
Section 6.4
), or (ii) any representation or warranty of the Company shall have become untrue, in each case which breach or failure to perform or to be true, individually or in the aggregate has resulted or would reasonably be
expected to result in a failure of a condition set forth in
Section 9.3(a)
or
Section 9.3(d)
(such circumstance, a “
Material Company Breach
”), and such Material Company Breach cannot be or, to the extent curable by the Company, has not been cured by the earlier of (1) the End Date and (2) twenty (20) days after the giving of written notice to Parent of such breach or failure;
provided
, that if such breach or failure to perform is capable of being cured by the Company by the End Date, such twenty (20) day period shall be extended until the second (2nd) Business Day prior to the End Date solely to the extent during such period the Company is using its reasonable best efforts to cure such breach or failure to perform;
provided
,
further
, that Parent shall not have the right to terminate this Agreement pursuant to this
clause (e)
if Parent or Merger Sub is then in breach of any of their covenants or agreements set forth in this Agreement, which breach would result in the failure of any of the conditions set forth in
Section 9.2(a)
or
Section 9.2(d)
.
The Party desiring to terminate this Agreement pursuant to this
Section 10.1
(other than pursuant to
Section 10.1(a)
) shall give written notice of such termination to the other Party.
SECTION 10.2.
Effect of Termination
. Subject to
Section 11.4(d)
, if this Agreement is terminated pursuant to
Section 10.1
, this Agreement shall become void and of no effect without liability of any Party (or any shareholder, director, officer, employee, agent, consultant or representative of such Party) to the other Party;
provided
that, if such termination shall result from the intentional breach by a Party of its obligations hereunder or (subject to
Section 4.26
and
Section 5.26
) common law fraud, such Party shall be fully liable for any and all liabilities and damages incurred or suffered by the other Parties as a result of such breach (including liability for damages determined taking into account the loss of the economic benefits of the Transactions to the Company’s shareholders). For purposes of this Agreement, “
intentional breach
” shall mean an action or omission taken or omitted to be taken that the breaching Party intentionally takes (or fails to take) and knows (or should reasonably have known) would, or would reasonably be expected to, cause a material breach of this Agreement. The Confidentiality Agreement and the provisions of this
Section 10.2
and
Article XI
shall survive any termination of this Agreement pursuant to
Section 10.1
.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1.
Notices
. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission) and shall be given,
if to Parent of Merger Sub, to
:
Euronav NV
De Gerlachekaai 20
2000, Antwerp, Belgium
Attention: Egied Verbeeck, General Counsel
An Goris, Secretary General
Facsimile No.: +32 (3) 247-4409
with a copy to:
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Attention: Gary Wolfe
Facsimile No.: +1 (212) 480-8421
if to the Company, to:
Gener8 Maritime, Inc.
299 Park Avenue, Second Floor
New York, New York 10171
Attention: Leonard J. Vrondissis
Facsimile No.: +1 (212) 763-5607
with a copy (which shall not constitute notice) to:
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
Attention: John A. Marzulli, Esq., George Karafotias, Esq.
Facsimile No.: +1 (212) 848-7179
and
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036
Attention: Thomas E. Molner, Esq., Terrence L. Shen, Esq.
Facsimile No.: +1 (212) 715-8000
or to such other address or facsimile number as such Party may hereafter specify for the purpose by notice to the other Parties. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. (in the time zone of the recipient) on a Business Day. Otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding Business Day.
SECTION 11.2.
Survival of Representations and Warranties
. The representations and warranties contained herein and in any certificate or other writing delivered pursuant hereto shall not survive the Closing Date.
SECTION 11.3.
Amendments and Waivers
.
(a) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each Party or, in the case of a waiver, by each Party against whom the waiver is to be effective;
provided
that (i) any such amendment or waiver on behalf of the Company shall require the approval of the Transaction Committee, and (ii) after the Company Shareholders Approval has been obtained there shall be no amendment or waiver that would require the further approval of the shareholders of the Company under the MIBCA unless such amendment is subject to shareholder approval.
(b) No waiver shall be construed as a waiver of any subsequent breach or failure of the same term or condition, or a waiver of any other term or condition of this Agreement. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable Law.
SECTION 11.4.
Expenses
.
(a)
General
. Except as expressly otherwise provided herein, all costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs or expenses, whether or not the Merger is consummated.
(b)
Termination Fee.
(i) If this Agreement is terminated (A) by Parent or the Company pursuant to
Section 10.1(b)(i)
at a time when this Agreement could have been validly terminated pursuant to
Section 10.1(c)
, or (B) by Parent pursuant to
Section 10.1(c)
, then the Company shall pay to Parent in immediately available funds the Company Termination Fee, in the case of a termination by Parent, within two (2) Business Days after such termination and, in the case of a termination by the Company, at the time of such termination. “
Company Termination Fee
” means $39,000,000.00 in cash.
(ii) If this Agreement is terminated (A)(1) by Parent or the Company pursuant to
Section 10.1(b)(ii)
and prior to the taking of a vote to adopt this Agreement at the Company Shareholders Meeting an Acquisition Proposal (with 50% being substituted for references to 15% in the definition thereof
for the purposes of this
Section 11.4(b)(ii)
) shall have been publicly disclosed for the first time after the date of this Agreement and shall not have been withdrawn, or (2) by Parent pursuant to
Section 10.1(e)(i)
and prior to termination of this Agreement an Acquisition Proposal (with 50% being substituted for references to 15% in the definition thereof for the purposes of this
Section 11.4(b)(ii)
) shall have been made and shall not have been withdrawn, and (B) prior to the first anniversary of the date of such termination, the Company enters into a definitive agreement with respect to any Acquisition Proposal or any Acquisition Proposal shall have been consummated, then the Company shall pay the Company Termination Fee to Parent in immediately available funds within two (2) Business Days after the occurrence of the last of the events described in
clauses (A)
and
(B)
of this
Section 11.4(b)(ii)
.
(c)
Other Costs and Expenses
. The Company acknowledges that the agreements contained in this
Section 11.4
are an integral part of the Transactions and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. Accordingly, if the Company fails to pay any amount due to Parent on or prior to the date such amounts are due pursuant to this
Section 11.4
, it shall also pay any costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Parent or Merger Sub in connection with a legal action or proceeding to enforce the obligations to pay the Company Termination Fee that results in a judgment against the Company for such amount, together with interest on the amount of any unpaid fee, cost or expense at the publicly announced prime rate of Citibank, N.A., in effect on the date such amounts were originally due hereunder, from the date such fee, cost or expense was required to be paid to (but excluding) the payment date.
(d) Parent and Merger Sub agree that, upon any valid termination of this Agreement in accordance with the terms herein under circumstances where the Company Termination Fee is payable by the Company pursuant to this
Section 11.4
and such Company Termination Fee is received in full, Parent and Merger Sub shall be precluded from any other remedy against the Company, at law or in equity or otherwise, and neither Parent nor Merger Sub shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of the Company’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or Affiliates or their respective Representatives in connection with this Agreement or the Transactions. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
SECTION 11.5.
Exhibits; Disclosure Letters
. All exhibits annexed hereto are hereby incorporated in and made a part of this Agreement as if set forth in full herein. References to this Agreement shall include the Company Disclosure Letter and the Parent Disclosure Letter. The Parties agree that any item or reference in any section or subsection of the Company Disclosure Letter or Parent Disclosure Letter, as applicable, shall be deemed to be an exception to (or, as applicable, a disclosure for purposes of) the applicable representations and warranties (or applicable covenants) that are contained in the corresponding Sections or subsections of this Agreement and any other representations and warranties that are contained in this Agreement to which the relevance of such item thereto is reasonably apparent on its face. The mere inclusion of an item in the Company Disclosure Letter or Parent Disclosure Letter, as applicable, as an exception to (or, as applicable, a disclosure for purposes of) a representation or warranty shall not be deemed an admission that such item represents a material exception or material fact, event or circumstance or that such item would have a Company Material Adverse Effect or Parent Material Adverse Effect, as applicable or establish any standard of materiality to define further the meaning of such terms for purposes of this Agreement.
SECTION 11.6.
Waiver
. Subject to
Section 11.3
hereof, at any time prior to the Effective Time, whether before or after the Company Shareholders Meeting, Parent (on behalf of itself and Merger Sub) may (a) extend the time for the performance of any of the covenants, obligations or other acts of the Company, or (b) waive any inaccuracy of any representations or warranties or compliance with any of the agreements or covenants of the Company or with any conditions to its own obligations. Any agreement on the part of Parent (on behalf of itself and Merger Sub) to any such extension or waiver will be valid only if such waiver is set forth in an instrument in writing signed on behalf of Parent by its duly authorized officer. Subject to
Section 11.3
hereof, at any time prior to the Effective Time, whether before or after the Company Shareholders Meeting, the Company may (a) extend the time for the performance of any of the covenants, obligations or other acts of Parent or Merger Sub, or (b) waive any inaccuracy of any representations or
warranties or compliance with any of the agreements or covenants of Parent or Merger Sub or with any conditions to its own obligations. Any agreement on the part of the Company to any such extension or waiver will be valid only if such waiver is set forth in an instrument in writing signed on behalf of the Company by its duly authorized officer. The failure of any Party to assert any of its rights under this Agreement or otherwise will not constitute a waiver of such rights. The waiver of any such right with respect to particular facts and other circumstances will not be deemed a waiver with respect to any other facts and circumstances, and each such right will be deemed an ongoing right that may be asserted at any time and from time to time.
SECTION 11.7.
Governing Law
. This Agreement will be deemed to be made in and in all respects will be interpreted, construed and governed by and in accordance with the Laws of the State of New York without giving effect to any choice of Law or conflict of Law provision or rule that would cause the application of the Laws of any jurisdiction other than the State of New York, except (a) to the extent that the Law of the Republic of the Marshall Islands or of the Kingdom of Belgium are mandatorily applicable to the Transactions, and (b) all matters relating to the fiduciary duties of the Company shall be subject to the Laws of the Republic of the Marshall Islands.
SECTION 11.8.
Jurisdiction
. EACH OF THE PARTIES CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN MANHATTAN IN NEW YORK CITY OR IN THE FEDERAL SOUTHERN DISTRICT IN THE STATE OF NEW YORK AND ANY APPELLATE COURT THEREFROM LOCATED IN NEW YORK, NEW YORK AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT, THE MERGER OR THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT MAY BE LITIGATED IN SUCH COURTS. EACH OF THE PARTIES ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL AND NONAPPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, THE MERGER OR THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT THE ADDRESS SPECIFIED IN THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE FIFTEEN (15) CALENDAR DAYS AFTER SUCH MAILING. NOTHING HEREIN WILL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY PARTY TO SERVE ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER OR TO BRING ACTIONS, SUITS OR PROCEEDINGS AGAINST ANY OTHER PARTY IN SUCH OTHER JURISDICTIONS, AND IN SUCH MANNER, AS MAY BE PERMITTED BY ANY APPLICABLE LAW.
SECTION 11.9.
WAIVER OF JURY TRIAL
. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 11.10.
No Third Party Beneficiaries
. Except as provided in
Section 7.1
and
Section 11.15
(which provisions are intended to be for the benefit of the Persons referred to therein, and may be enforced by any such Person), the Parties hereby agree that their respective representations, warranties, covenants and agreements set forth herein are solely for the benefit of the other Parties, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any Person other than the Parties any rights or remedies hereunder, including the right to rely upon the representations and warranties.
SECTION 11.11.
Severability
. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any party. Upon such a determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
SECTION 11.12.
Specific Performance
. The Parties acknowledge and agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that monetary damages may not be adequate compensation for any loss incurred in connection therewith. Each Party agrees that, in the event of any breach or threatened breach by any other Party of any covenant or obligation contained in this Agreement, the non-breaching Party shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in any federal court located in the State of New York or any New York state court, in addition to any other remedy to which they are entitled at law or in equity, and the Parties to this Agreement hereby waive any requirement for the posting of any bond or similar collateral in connection therewith. The Parties hereby agree to waive in any action for specific performance of any such obligation (other than in connection with any action for temporary restraining order) the defense that a remedy at law would be adequate.
SECTION 11.13.
Headings
. The descriptive headings contained in this Agreement are included for convenience of reference only and will not affect in any way the meaning or interpretation of this Agreement.
SECTION 11.14.
Construction
. The Parties have participated jointly in the negotiation and drafting of this Agreement, and, in the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
SECTION 11.15.
Binding Effect; Benefit; Assignment
.
(a) The provisions of this Agreement shall be binding upon and shall inure solely to the benefit of the Parties and their respective successors and permitted assigns, and no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the Parties and their respective successors and permitted assigns, except (i) as provided in
Section 7.1
and
Section 7.3
and (ii) the Company on behalf of the Company’s shareholders to pursue damages (including claims for damages based on loss of the economic benefits of the Transaction to the Company’s shareholders) in the event of the intentional breach of this Agreement prior to the Closing Date by Parent or Merger Sub (whether or not this Agreement has been terminated pursuant to
Article X
), which right is hereby expressly acknowledged and agreed by Parent and Merger Sub.
(b) No Party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other Party, except that Parent or Merger Sub may transfer or assign its rights and obligations under this Agreement after the Closing Date to any Affiliate of Parent;
provided
, that no such assignment shall relieve Parent or Merger Sub of any obligations under this Agreement;
provided
,
further
, that no assignment or purported assignment of this Agreement by Parent or Merger Sub shall be valid if and to the extent such assignment causes the Merger to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations thereunder. Any purported assignment without such prior written consents shall be void.
SECTION 11.16.
Entire Agreement
. This Agreement and the Confidentiality Agreement constitute the entire agreement among the Parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, both oral and written, among the Parties with respect to the subject matter hereof and thereof.
SECTION 11.17.
Counterparts; Effectiveness
. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each Party shall have received
a counterpart hereof signed by all of the other Parties. Until and unless each Party has received a counterpart hereof signed by the other Party, this Agreement shall have no effect and no Party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). Facsimile signatures or signatures received as a pdf attachment to electronic mail shall be treated as original signatures for all purposes of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective authorized officers as of the date first above written.
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EURONAV NV
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By:
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/s/ P.J. Rodgers
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Name: P.J. Rodgers
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Title: Chief Executive Officer
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By:
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/s/ H. De Stoop
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Name: H. De Stoop
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Title: CFO
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EURONAV MI INC.
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By:
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/s/ H. De Stoop
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Name: H. De Stoop
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Title: Secretary
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GENER8 MARITIME, INC.
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By:
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Name:
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Title:
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[Signature page to Merger Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective authorized officers as of the date first above written.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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GENER8 MARITIME, INC.
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By:
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/s/ Leonard J. Vrondissis
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Name: Leonard J. Vrondissis
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Title: Chief Financial Officer and Executive Vice President
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[Signature Page to Merger Agreement]
Exhibit A
Articles of Incorporation of the Company
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
EURONAV MI II INC.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The original Articles of Incorporation were filed with the Marshall Islands Registrar of Corporations on August 1, 2008. The First Amended and Restated Articles of Incorporation were filed with the Marshall Islands Registrar of Corporations on May 17, 2012. The Second Amended and Restated Articles of Incorporation were filed with the Marshall Islands Registrar of Corporations on December 11, 2013. The Third Amended and Restated Articles of Incorporation were filed with the Marshall Islands Registrar of Corporations on May 7, 2015.
The undersigned, for the purpose of amending and restating Euronav MI II Inc.’s (the “Corporation”) Articles of Incorporation (as amended and restated, “the Articles of Incorporation”) pursuant to the Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with the Registrar of Corporations this instrument for that purpose, as follows:
A.
The name of the Corporation shall be:
Euronav MI II Inc.
B.
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act (the “BCA”).
C.
The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960. The name of the Corporation’s registered agent at such address is The Trust Company of the Marshall Islands, Inc.
D.
The aggregate number of shares of stock that the Corporation is authorized to issue is two hundred twenty five million (225,000,000) registered shares with a par value of U.S. $0.01 per share.
E.
The Corporation shall have every power which a corporation now or hereafter organized under the BCA may have.
F.
The name and address of the incorporator is:
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Name
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Post Office Address
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Majuro Nominees Ltd.
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P.O. Box 1405
Majuro
Marshall Islands
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G.
No holder of shares of the Corporation of any class, now or hereafter authorized, shall have any preferential or preemptive rights to subscribe for, purchase or receive any shares of the Corporation of any class, now or hereafter authorized, or any options or warrants for such shares, or any rights to subscribe to or purchase such shares, or any securities convertible into or exchangeable for such shares, which may at any time be issued, sold or offered for sale by the Corporation.
H.
No director shall be personally liable to the Corporation or any of its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the BCA as the same exists or may hereafter be amended. If the BCA is amended hereafter to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent authorized by the BCA, as so amended. Any repeal or modification of this Section H shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.
I.
The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation pursuant to the provisions of the Corporation’s bylaws as in effect at such time.
J.
Notwithstanding any other provision of these Articles of Incorporation or the bylaws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, these Articles of Incorporation or the bylaws of the Corporation), the affirmative vote of two-thirds or more of the total number of votes eligible to be cast by the holders of issued and outstanding shares of common stock of the Corporation entitled to vote thereon at a meeting of shareholders, shall be required to amend, alter, change or repeal these Articles of Incorporation.
K.
Reference is made to the merger of the Corporation with and into Gener8 Maritime, Inc., with the Corporation continuing as the surviving corporation and a direct wholly-owned subsidiary of Euronav NV (the “Merger”) and pursuant to that certain Agreement and Plan of Merger, by and among Gener8 Maritime, Inc., Euronav MI Inc., and Euronav NV, dated December 20, 2017 (the “Merger Agreement”). All capitalized terms used in this Article K, unless otherwise defined herein, shall have the meaning attributed to them in the Merger Agreement. Reference is made to the Company Shareholders Meeting convened on [•], 2018 at which the Company Common Shareholders approved the Merger and ratified the appointment of an Exchange Agent to act as agent for the Merger and to, among other things, act as agent solely in the name and on behalf of and for the account and benefit of the former Company Common Shareholders (other than the holders of Specified Company Shares) for purposes of giving effect to the Contribution in Kind by (i) contributing the Surviving Corporation Shares to Parent in the name and on behalf of and for the account and benefit of the former Company Common Shareholders, (ii) accepting in their name and on their behalf, in return for such contribution, the Merger Consideration and (iii) performing all other actions contemplated by Article III of the Merger Agreement. The Exchange Agent shall act as agent for the Merger and to, among other things, act as agent solely in the name and on behalf of and for the account and benefit of the Company Common Shareholders (other than the holders of Specified Company Shares) for purposes of giving effect to the Contribution in Kind, and accepting and delivering the Per Share Merger Consideration in the name and on behalf of and for the account and benefit of the Company Common Shareholders (other than the holders of Specified Company Shares) and the holders of Company RSUs as contemplated by Article III of the Merger Agreement. The Corporation shall use its reasonable best efforts to cause the Exchange Agent, acting solely in the name and on behalf of and for the account and benefit of the Company Common Shareholders (other than the holders of Specified Company Shares) and the holders of Company RSUs and pursuant to the provisions of the Belgian Companies Code (but, for the avoidance of doubt, the Belgian Companies Code shall only apply for purposes of the Contribution in Kind), to perform any and all obligations of the Exchange Agent as set forth in the Merger Agreement immediately following the Effective Time.
L.
Corporate existence shall continue upon filing these Articles of Incorporation with the Registrar of Corporations effective as of 12:01 a.m. Eastern Time on the [•] day of [•] 2018.
Schedule 1
Specified Approvals
A)
Sinosure Credit Agreement Proposed Amendments:
•
Clause (c)(i) of the definition of “Change of Control” shall be amended to permit the ownership by Parent of 35% or more on a fully diluted basis of the voting and economic interest in the Company’s “Equity Interests” (as defined in the Sinosure Credit Agreement).
•
Clause (c)(iii) of the definition of “Change of Control” shall be amended to remove the requirement that each of Peter Georgiopoulos, Gary Brocklesby and Nicolas Busch remain a director of the Company.
•
Section 21.23 shall be amended to permit the merger between the Company and the Merger Sub.
•
Sections 21.28 and 21.35 shall each be amended to permit the payment in full of the “Blue Mountain Indebtedness” (as defined in the Sinosure Credit Agreement).
•
Section 27.18 shall be deleted in its entirety.
B)
KEXIM Credit Agreement Proposed Amendments:
•
Clause (c)(i) of the definition of “Change of Control” shall be amended to permit the ownership by Parent of 35% or more on a fully diluted basis of the voting and economic interest in the Company’s “Equity Interests” (as defined in the KEXIM Credit Agreement).
•
Clause (c)(iii) of the definition of “Change of Control” shall be amended to remove the requirement that each of Peter Georgiopoulos, Gary Brocklesby and Nicolas Busch remain a director of the Company.
•
Section 21.23 shall be amended to permit the merger between the Company and the Merger Sub.
•
Section 21.28 and Section 21.35 shall each be amended to permit the payment in full of the “Blue Mountain Indebtedness” (as defined in the KEXIM Credit Agreement).
•
Section 27.17 shall be deleted it entirety.
Annex B
EXECUTION VERSION
SHAREHOLDER SUPPORT AND VOTING AGREEMENT
SHAREHOLDER SUPPORT AND VOTING AGREEMENT, dated as of December 20, 2017 (this “
Agreement
”), by and among Euronav NV, a Belgian corporation (“
Parent
”), and each of the Persons listed on Schedule 1 hereto (each, a “
Shareholder
”).
RECITALS
WHEREAS, contemporaneously with the execution of this Agreement, Parent, Euronav MI Inc., a Marshall Islands corporation (“
Merger Sub
”), and Gener8 Maritime, Inc., a Marshall Islands corporation (the “
Company
”), are entering into an Agreement and Plan of Merger, dated as of the date hereof (the “
Merger Agreement
”), pursuant to which the parties thereto have agreed, subject to the terms and conditions therein, that Merger Sub will merge with and into the Company (the “
Merger
”), with the Company as surviving corporation to become a wholly-owned subsidiary of Parent and the former shareholders of the Company to receive the right to receive shares of common stock of Parent;
WHEREAS, as of the date of this Agreement, each Shareholder is the Beneficial Owner (as hereinafter defined) of the number of outstanding shares of common stock of the Company, par value $0.01 per share (the “
Company Common Stock
”) set forth opposite such Shareholder’s name on Schedule 1 hereto, all of which shares such Shareholder controls the right to vote; and
WHEREAS, as a condition to the willingness of Parent to enter into the Merger Agreement, Parent has required that each Shareholder agrees, and each Shareholder has agreed, to enter into this Agreement and abide by certain covenants and obligations set forth herein, including with respect to the Covered Shares (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement, intending to be legally bound hereby, agree as follows:
ARTICLE 1
GENERAL
1.1
Defined Terms
. The following capitalized terms, as used in this Agreement, shall have the meanings set forth below. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Merger Agreement.
“
Beneficial Ownership
” by a Person of any securities includes ownership by any Person who, directly or indirectly, through any Contract, relationship or otherwise, has or shares (i) voting power which includes the power to vote, or to direct the voting of, such security; and/or (ii) investment power which includes the power to dispose, or to direct the disposition, of such security; and shall otherwise be interpreted in accordance with the term “beneficial ownership” as defined in Rule 13d-3 adopted by the SEC under the Exchange Act. The terms “
Beneficially Own,
” “
Beneficially Owned
” and “
Beneficial Owner
” shall have a correlative meaning.
“
Covered Shares
” means, with respect to each Shareholder, (a) the Existing Shares that are Beneficially Owned by such Shareholder and (b) any other shares of Company Common Stock or other Company Securities, in each case that such Shareholder acquires Beneficial Ownership of after the date hereof and holds as of the record date for the Company Shareholders Meeting.
“
Existing Shares
” means, with respect to each Shareholder, the number of shares of Company Common Stock set forth opposite such Shareholder’s name on
Schedule 1
hereto.
“
Restricted Shares
” means, with respect to each Shareholder, (a) the Existing Shares that are Beneficially Owned by such Shareholder, and (b) the Existing Shares that are Beneficially Owned by any other Shareholder that such initial Shareholder acquires Beneficial Ownership of after the date hereof pursuant to a Permitted Transfer under
Section 4.1(a)
.
“
Transfer
” means, directly or indirectly, to offer, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer, assign, pledge, encumber, hypothecate or otherwise dispose of (by merger (including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise), either voluntarily or involuntarily, or to enter into any Contract (including any profit or loss sharing arrangement) with respect to the voting of or sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition.
ARTICLE 2
VOTING
2.1
Agreement to Vote
. Each Shareholder hereby severally agrees that during the term of this Agreement, at the Company Shareholders Meeting and at any other meeting of one or more classes of shareholders of the Company, however called, including any adjournment, recess or postponement thereof, and in connection with any written consent of one or more classes of shareholders of the Company, such Shareholder shall, in each case to the fullest extent that the Covered Shares are entitled to vote thereon or consent thereto:
(a) appear (in person or by proxy) at each such meeting or otherwise cause all of the Covered Shares to be counted as present thereat for purposes of calculating a quorum;
(b) subject to
Section 2.1(c)
, or except as expressly provided or permitted herein, vote (or cause to be voted), in person or by proxy, or deliver (or cause to be delivered) a written consent covering, all of its Covered Shares: (i) in favor of the Merger and the authorization and approval of the Merger Agreement and the Transactions; (ii) against any action or agreement that would reasonably be expected to result in a breach of any material covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such Shareholder contained in this Agreement; and (iii) against any action, proposal, transaction or agreement that would impede, interfere with, delay, discourage, frustrate, prevent, nullify, adversely affect or inhibit the timely consummation of the Merger or the fulfillment of Parent’s or the Company’s conditions under the Merger Agreement, any of the other Transactions or change in any manner the voting rights of any class of shares of the Company (including any amendments to the Company Charter Documents);
provided
, that, in the case of each of (i), (ii) and (iii), the Merger Agreement shall not have been amended or modified without such Shareholder’s prior written consent (A) to decrease or change the form of the Per Share Merger Consideration or (B) to amend or modify the Merger Agreement in a manner which is materially adverse to such Shareholder; and
(c) in the event that the Company Board or the Transaction Committee has made an Adverse Recommendation Change that has not been rescinded or otherwise withdrawn, vote (or cause to be voted), in person or by proxy, or deliver (or cause to be delivered) a written consent covering, an amount of Covered Shares equal to fifty percent (50%) of the number of Covered Shares held by such Shareholder as of the record date for the Company Shareholders Meeting in favor of the Merger and the authorization and approval of the Merger Agreement and the Transactions (the parties acknowledging that the remaining Covered Shares may be voted by each Shareholder in any manner they determine).
2.2
No Inconsistent Agreements
. Each Shareholder hereby severally and not jointly represents, covenants and agrees that, except for this Agreement, such Shareholder (i) has not entered into, and shall not enter into, any voting agreement, voting trust or similar agreement or understanding, with respect to any of the Covered Shares, (ii) has not granted, and shall not grant at any time while this Agreement remains in effect, a proxy, consent or power of attorney with respect to any of the Covered Shares that is inconsistent with
Section 2.1
, (iii) has not given, and shall not give, any voting instructions or authorities in any manner inconsistent with clause (a), clause (b) and clause (c) of
Section 2.1
, with respect to any of the Covered Shares, and (iv) has not taken and shall not take any action that such Shareholder knows would constitute a breach hereof or make any representation or warranty of such Shareholder contained herein untrue or incorrect or have the effect of preventing or disabling such Shareholder from performing any of its obligations under this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Shareholders
. Each Shareholder hereby severally and not jointly represents and warrants to Parent as follows:
(a)
Organization; Authorization; Validity of Agreement; Necessary Action
. Such Shareholder is duly organized, validly existing, and in good standing under the Laws of its jurisdiction of organization. Such Shareholder has the requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The execution and delivery by such Shareholder of this Agreement, the performance by it of its obligations hereunder and the consummation by it of the transactions contemplated by this Agreement have been duly and validly authorized by such Shareholder and no other actions or proceedings on the part of such Shareholder or any shareholder or equity holder thereof or any other Person are necessary to authorize the execution and delivery by it of this Agreement, the performance by it of its obligations hereunder or the consummation by it of the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by such Shareholder and, assuming this Agreement constitutes a valid and binding obligation of the other parties hereto, constitutes a legal, valid and binding agreement of such Shareholder, enforceable against such Shareholder in accordance with its terms, subject to the Equitable Exceptions.
(b)
Ownership
. Such Shareholder is the Beneficial Owner of such Shareholder’s Existing Shares, free and clear of any Liens, other than (i) any Liens pursuant to this Agreement, (ii) restrictions on transfer of securities under applicable securities Laws, (iii) any Liens granted in connection with a general pledge of Existing Shares to such Shareholder’s prime broker, which do and will not affect such Shareholder’s Beneficial Ownership of the Existing Shares. Such Shareholder is also the owner of record of such Shareholder’s Existing Shares, other than the Existing Shares that are held by the nominee set forth opposite such Shareholder’s name on Schedule 1 hereto, which does and will not affect such Shareholder’s Beneficial Ownership of the Existing Shares. As of the date of this Agreement, such Shareholder’s Existing Shares constitute all of the shares of Company Common Stock Beneficially Owned or owned of record by such Shareholder. Except to the extent Existing Shares are Transferred after the date of this Agreement pursuant to a Permitted Transfer, such Shareholder is the Beneficial Owner and has and will have at all times during the term of this Agreement Beneficial Ownership, sole voting power (which includes the right to control such vote as contemplated herein), power of disposition, and power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Shareholder’s Existing Shares at all times through the Closing Date.
(c)
Non-Contravention
. The execution, delivery and performance of this Agreement by such Shareholder do not and will not to its knowledge (i) contravene or conflict with, or result in any violation or breach of, any provision of the certificate of incorporation, bylaws or other comparable governing documents, as applicable, of such Shareholder, (ii) contravene or conflict with, or result in any violation or breach of, any Law applicable to such Shareholder or by which any of its assets or properties is bound, (iii) conflict with or result in any violation, termination, cancellation or breach of, or constitute a default (with or without notice or lapse of time or both) under, any Contract to which such Shareholder is a party or by which it or any of its assets or properties is bound or (iv) result in the creation of any Liens upon any of the assets or properties of such Shareholder, except for any of the foregoing as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of such Shareholder to perform its obligations hereunder or prevent or materially delay the consummation of the transactions contemplated by this Agreement.
(d)
Consents and Approvals
. The execution and delivery of this Agreement by such Shareholder does not, and the performance by such Shareholder of its obligations under this Agreement and the consummation by it of the transactions contemplated by this Agreement will not, require such Shareholder to obtain any consent, approval, order, waiver, authorization or permit of or any filing with or notification to, any Governmental Authority or other Person.
(e)
Reliance by Parent
. Such Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon Shareholder’s execution and delivery of this Agreement and the representations, warranties, covenants and obligations of Shareholder contained herein.
ARTICLE 4
OTHER COVENANTS
4.1
Prohibition on Transfers
. During the term of this Agreement, each Shareholder hereby agrees (and, to the extent applicable, shall cause its nominees) not to Transfer any of the Restricted Shares, Beneficial Ownership thereof or any other interest therein, except for a transfer of Restricted Shares (which Transfer includes all Beneficial Ownership, voting rights and other interests therein) (a) to other Shareholders that are party to this Agreement or (b) to a Third Party that, if prior to the effectiveness of such Transfer, the transferee executes a joinder hereto agreeing to be bound by all the terms hereof and notice of such Transfer is delivered to Parent in the manner contemplated by
Section 5.4
(a Transfer under either of clauses (a) or (b) of this
Section 4.1
, a “
Permitted Transfer
”).
4.2
Stock Dividends, etc.
In the event of a reclassification, recapitalization, reorganization, stock split (including a reverse stock split) or combination, exchange or readjustment of shares or other similar transaction, or if any stock dividend or stock distribution is declared, in each case affecting the Existing Shares, the term “Existing Shares” shall be deemed to refer to and include such shares as well as all such stock dividends and distributions and any securities of the Company into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction. Each Shareholder hereby agrees, while this Agreement is in effect, promptly to notify Parent of the number of any new shares of Company Common Stock or other Company Securities with respect to which Beneficial Ownership is acquired by such Shareholder, if any, after the date hereof and before the Effective Time. Any such shares or securities shall automatically become subject to the terms of this Agreement as Existing Shares as though owned by the Shareholder as of the date hereof.
4.3
Short Sales
. In recognition of the benefit that each Shareholder will receive as a result of Parent entering into the Merger Agreement, each Shareholder hereby agrees with the Company that, during the term of this Agreement, it will not (and any Shareholder that is not an investment fund (including a fund managed by an investment manager) or other institutional investor shall cause its Affiliates and its and their respective Representatives not to), without the prior written consent of the Parent, engage in any transaction constituting a Short Sale relating to shares of Parent Common Stock, any security convertible into or exercisable or exchangeable for Parent Common Stock, or any other Parent Securities whether now owned or hereafter acquired, by the Shareholder or its Affiliates or with respect to which such Shareholder or Affiliate has or hereafter acquires the power of disposition. For purposes of this paragraph, a “Short Sale” means all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the 1934 Act, whether or not against the box, and any forward sale contracts, options, puts, calls, short sales, “put equivalent positions” (as defined in Rule 16a-1(h) under the 1934 Act) and similar arrangements.
4.4
No Solicitation
. Each Shareholder hereby agrees that it shall not (and any Shareholder that is not an investment fund (including a fund managed by an investment manager) or other institutional investor shall cause its Affiliates, including its subsidiaries, and its and their Representatives not to) directly or indirectly, take any action that the Company is otherwise prohibited from taking under Section 6.4 of the Merger Agreement.
4.5
Waiver of Actions
. During the term of this Agreement, each Shareholder severally and not jointly agrees not to commence or join in, and agrees to take all actions reasonably necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, the Company, any of the other parties to the Merger Agreement or any of their respective successors (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the Merger Agreement or (b) alleging a breach of any fiduciary duty of any Person in connection with the negotiation and entry into this Agreement or the Merger Agreement. During the term of this Agreement, each Shareholder severally and not jointly waives, and agrees not to exercise, assert or perfect, any rights of dissent and appraisal under the MIBCA that such Shareholder may have in connection with the execution and performance of the Merger Agreement or the transactions contemplated therein.
4.6
Further Assurance; Confidentially
. During the term of this Agreement, from time to time, at Parent’s request and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to effect the actions and consummate the transactions contemplated by this Agreement. Without limiting the foregoing, each
Shareholder hereby severally as to itself only, but not jointly with any other Shareholder, authorizes Parent and the Company to publish and disclose in any Parent Disclosure Documents and in any other announcement or disclosure required by applicable Law such Shareholder’s identity and ownership of the Covered Shares and the nature of such Shareholder’s obligations under this Agreement.
4.7
Registration Rights Waiver
. Subject to Closing of the Merger Agreement, each Shareholder that is a party to, or is entitled to the benefits of, the Second Amended and Restated Registration Rights Agreement dated as of May 7, 2015 among the Company and certain shareholders of the Company (the “
Registration Rights Agreement
”) agrees to waive and not to assert any rights such Shareholder may have under the Registration Rights Agreement with respect to any and all Merger Consideration received by such Shareholder as a result of the Merger.
ARTICLE 5
MISCELLANEOUS
5.1
Termination
. This Agreement and all obligations of the parties hereunder shall automatically terminate on the earliest to occur of (i) the conclusion of the Company Shareholders Meeting at which the vote contemplated in
Section 2.1
has occurred and the Covered Shares have been voted as specified therein, (ii) the date of any amendment, waiver or modification of the Merger Agreement without the Shareholder’s prior written consent that has the effect of (1) decreasing or changing the form of the Per Share Merger Consideration or (2) otherwise amending, waiving or modifying the Merger Agreement in a manner materially adverse to such Shareholder, (iii) the Effective Time, and (iv) the date of termination of the Merger Agreement in accordance with its terms (including after any extension thereof), and after the occurrence of any such applicable event this Agreement shall terminate and be of no further force;
provided
,
however
, the provisions of this
Section 5.1
and
Sections 5.3
through
5.14
shall survive any termination of this Agreement.
5.2
No Ownership Interest
. Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to any Covered Shares. All rights, ownership and economic benefits of and relating to the Covered Shares shall remain vested in and belong to the Shareholders and Parent and Seascape shall have no authority to direct the Shareholders in the voting or disposition of any of the Covered Shares, except as otherwise provided herein.
5.3
Fees and Expenses
. All costs and expenses (including, without limitation, all fees and disbursements of counsel, accountants, investment bankers, experts and consultants to a party) incurred in connection with this Agreement shall be paid by the party incurring such costs and expenses.
5.4
Notices
. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile or email transmission) and shall be given,
(a) if to Parent to:
Euronav NV
De Gerlachekaai 20
2000, Antwerp, Belgium
Attention: Egied Verbeeck, General Counsel
An Goris, Secretary General
Facsimile No.: +32 (3) 247-4409
Email: egied.verbeeck@euronav.com
with a copy (which shall not constitute notice) to:
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Attention: Keith Billotti
Facsimile No.: (212) 480-8421
Email: billotti@sewkis.com
(b) if to any Shareholder: to such Shareholder and its counsel at their respective addresses and facsimile numbers set forth on Schedule 1 hereto; or
(c) to such other address, email address or facsimile number as such party may hereafter specify for the purpose by notice to the other parties hereto.
All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. on a Business Day in the time zone of the recipient. Otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding Business Day.
5.5
Interpretation
. Unless the express context otherwise requires:
(a) the terms “hereof”, “herein”, “hereunder”, “hereby” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement;
(b) the meaning assigned to each term defined herein will be equally applicable to both the singular and the plural forms of such term and vice versa, and words denoting any gender will include all genders as the context requires;
(c) references herein to a specific Section, Subsection, Recital or Schedule shall refer, respectively, to Sections, Subsections, Recitals or Schedules of this Agreement;
(d) the word “include”, “includes” or “including” when used in this Agreement will be deemed to include the words “without limitation”, unless otherwise specified;
(e) references herein to any Person shall include such Person’s heirs, executors, personal representatives, administrators, successors and assigns;
provided
,
however
, that nothing contained in this
Section 5.5
is intended to authorize any Transfer not otherwise permitted by this Agreement;
(f) references herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity;
(g) with respect to the determination of any period of time, (i) the word “from” means “from and including” and the words “to” and “until” each means “to but excluding” and (ii) time is of the essence;
(h) the word “or” shall be disjunctive but not exclusive;
(i) references herein to any Law shall be deemed to refer to such Law as amended, modified, codified, reenacted, supplemented or superseded in whole or in part and in effect from time to time, and also to all rules and regulations promulgated thereunder;
(j) a reference to any Contract will include such Contract as amended, supplemented or modified (including any waiver thereto) in accordance with the terms thereof;
(k) the headings contained in this Agreement are intended solely for convenience and shall not affect the rights of the parties to this Agreement; and
(l) if the last day for the giving of any notice or the performance of any act required or permitted under this Agreement is a day that is not a Business Day, then the time for the giving of such notice or the performance of such action shall be extended to the next succeeding Business Day.
5.6
Entire Agreement
. This Agreement and the Merger Agreement constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement.
5.7
Governing Law; Consent to Jurisdiction; Waiver of Jury Trial
.
(a) This Agreement will be deemed to be made in and in all respects will be interpreted, construed and governed by and in accordance with the Laws of the State of New York without giving effect to any choice of Law or conflict of Law provision or rule that would cause the application of the Laws of any jurisdiction other than the State of New York, except to the extent that the law of the Republic of the Marshall Islands is mandatorily applicable to the Merger.
(b) EACH OF THE PARTIES HERETO CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN MANHATTAN IN NEW YORK CITY OR IN THE FEDERAL SOUTHERN DISTRICT IN THE STATE OF NEW YORK AND ANY APPELLATE COURT THEREFROM LOCATED IN NEW YORK, NEW YORK AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT MAY BE LITIGATED IN SUCH COURTS. EACH OF THE PARTIES HERETO ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL AND NONAPPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HERETO FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT THE ADDRESS SPECIFIED IN THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE 15 CALENDAR DAYS AFTER SUCH MAILING. NOTHING HEREIN WILL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY PARTY HERETO TO SERVE ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER OR TO BRING ACTIONS, SUITS OR PROCEEDINGS AGAINST ANY OTHER PARTY HERETO IN SUCH OTHER JURISDICTIONS, AND IN SUCH MANNER, AS MAY BE PERMITTED BY ANY APPLICABLE LAW.
(c) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.8
Amendment; Waiver
. This Agreement may not be amended with respect to any Shareholder except by an instrument in writing signed by Parent and such Shareholder. Each party may waive any right of such party hereunder by an instrument in writing signed by such party and delivered to Parent and such Shareholders.
5.9
Remedies
.
(a) The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof, that monetary damages may not be adequate compensation for any loss incurred in connection therewith, and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in any federal court located in the State of New York or any New York state court, in addition to any other remedy to which they are entitled at law or in equity, and the parties to this Agreement hereby waive any requirement for the posting of any bond or similar collateral in connection therewith. The parties hereby agree to waive in any action for specific performance of any such obligation (other than in connection with any action for temporary restraining order) the defense that a remedy at law would be adequate.
(b) The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable Law. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
5.10
Severability
. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions of this Agreement. If any provision of this Agreement, or the application of that provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted for that provision in order to carry out, so far as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision and (b) the remainder of this Agreement and the application of that provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of that provision, or the application of that provision, in any other jurisdiction. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a reasonably acceptable manner so that the transactions contemplated by this Agreement may be consummated as originally contemplated to the fullest extent possible.
5.11
Successors and Assigns; Third Party Beneficiaries
. No party to this Agreement may assign or delegate, by operation of law or otherwise, all or any portion of its rights or liabilities under this Agreement without the prior written consent of the other parties to this Agreement, which any such party may withhold in its absolute discretion. Subject to the foregoing, this Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. Any purported assignment without such prior written consent shall be null and void. Nothing in this Agreement, express or implied, is intended to confer on any Person other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement.
5.12
Construction
. The parties have participated jointly in the negotiation and drafting of this Agreement, and, in the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
5.13
Shareholder Capacity
. Notwithstanding anything contained in this Agreement to the contrary, the representations, warranties, covenants and agreements made herein by each Shareholder are made solely with respect to such Shareholder and the Existing Shares or the Restricted Shares or the Covered Shares, as the case may be. Each Shareholder is entering into this Agreement solely in its capacity as the Beneficial Owner of such Covered Shares and nothing herein shall limit or affect any actions taken by any officer or director of the Company (or a subsidiary of the Company) solely in his or her capacity as a director or officer of the Company (or a subsidiary of the Company), including, without limitation, to the extent applicable, participating in his or her capacity as a director of the Company in any discussions or negotiations in accordance with Section 6.4 of the Merger Agreement. Nothing contained herein, and no action taken by any Shareholder pursuant hereto, shall be deemed to constitute the parties as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the parties are in any way acting in concert or as a group with respect to the obligations or the transactions contemplated by this Agreement.
5.14
Counterparts; Effectiveness
. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). Facsimile signatures or signatures received as a pdf attachment to electronic mail shall be treated as original signatures for all purposes of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties to this Agreement as of the date first written above.
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EURONAV NV
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By:
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/s/ P.J. Rodgers
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Name:
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P.J. Rodgers
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Title:
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Chief Executive Officer
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By:
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/s/ H. De Stoop
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Name:
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H. De Stoop
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Title:
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CFO
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[Signature Page to Voting Agreement]
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ARF II MARITME HOLDINGS LLC
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By:
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/s/ Steven D. Smith
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Name:
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Steven D. Smith
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Title:
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ARF II MARITIME EQUITY PARTNERS LP
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By:
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/s/ Steven D. Smith
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Name:
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Steven D. Smith
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Title:
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ARF II MARITIME EQUITY CO-INVESTORS LLC
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By:
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/s/ Steven D. Smith
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Name:
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Steven D. Smith
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Title:
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[Signature Page to Voting Agreement — Aurora]
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BLUE MOUNTAIN CREDIT
ALTERNATIVES MASTER FUND L.P.
By: BlueMountain Capital Management,
LLC, its investment manager
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By:
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/s/ David M. O’Mara
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Name: David M. O’Mara
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Title: Deputy General Counsel
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BLUEMOUNTAIN DISTRESSED
MASTER FUND L.P.
By: BlueMountain Capital Management,
LLC, its investment manager
|
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By:
|
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/s/ David M. O’Mara
|
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Name: David M. O’Mara
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Title: Deputy General Counsel
|
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BLUEMOUNTAIN STRATEGIC CREDIT
MASTER FUND L.P.
By: BlueMountain Capital Management,
LLC, its investment manager
|
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By:
|
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/s/ David M. O’Mara
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Name: David M. O’Mara
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Title: Deputy General Counsel
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BLUEMOUNTAIN GUADALUPE PEAK
FUND L.P.
By: BlueMountain Capital Management,
LLC, its investment manager
|
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By:
|
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/s/ David M. O’Mara
|
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Name: David M. O’Mara
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Title: Deputy General Counsel
|
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[Signature Page to Shareholder Support and Voting Agreement — BlueMountain]
|
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BLUEMOUNTAIN MONTENVERS
MASTER FUND SCA SICAV-SIF
By: BlueMountain Capital Management,
LLC, its investment manager
|
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|
|
|
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By:
|
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/s/ David M. O’Mara
|
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Name: David M. O’Mara
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Title: Deputy General Counsel
|
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BLUEMOUNTAIN TIMBERLINE LTD.
By: BlueMountain Capital Management,
LLC, its investment manager
|
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By:
|
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/s/ David M. O’Mara
|
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Name: David M. O’Mara
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Title: Deputy General Counsel
|
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BLUEMOUNTAIN KICKING HORSE
FUND L.P.
By: BlueMountain Capital Management,
LLC, its investment manager
|
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By:
|
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/s/ David M. O’Mara
|
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Name: David M. O’Mara
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Title: Deputy General Counsel
|
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BLUEMOUNTAIN CREDIT
OPPORTUNITIES MASTER FUND I L.P.
By: BlueMountain Capital Management,
LLC, its investment manager
|
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By:
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/s/ David M. O’Mara
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Name: David M. O’Mara
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Title: Deputy General Counsel
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[Signature Page to Shareholder Support and Voting Agreement — BlueMountain]
|
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BLUEMOUNTAIN SUMMIT TRADING
L.P.
By: BlueMountain Capital Management,
LLC, its investment manager
|
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By:
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/s/ David M. O’Mara
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Name: David M. O’Mara
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Title: Deputy General Counsel
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[Signature Page to Shareholder Support and Voting Agreement — BlueMountain]
|
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TWIN HAVEN SPECIAL
OPPORTUNITIES FUND IV, L.P.
|
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By: Twin Haven Capital Partners LLC, its
investment manager
|
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By:
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/s/ Michael Vinci
|
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Name: Michael Vinci
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Title: COO/CFO
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[Signature Page to Shareholder Support and Voting Agreement — Twin Haven]
Schedule 1
SHAREHOLDER INFORMATION
|
|
|
|
|
Shareholder
Name and Contact Information
|
|
|
Shares of
Common
Stock
|
|
|
Nominee (if any)
and Existing Shares
Held Thereby
|
|
|
|
|
|
|
Ethan Auerbach
299 Park Avenue, 2nd Floor
New York, NY 10171
Phone: 212-763-5600
|
|
|
0
|
|
|
|
|
|
|
|
|
|
Sean Bradley
299 Park Avenue, 2nd Floor
New York, NY 10171
Phone: 212-763-5600
|
|
|
41,944
|
|
|
|
|
|
|
|
|
|
Peter C. Georgiopoulos
299 Park Avenue, 2nd Floor
New York, NY 10171
Phone: 212-763-5600
|
|
|
865,103
|
|
|
|
|
|
|
|
|
|
Milton H. Gonzales, Jr.
299 Park Avenue, 2nd Floor
New York, NY 10171
Phone: 212-763-5600
|
|
|
41,944
|
|
|
|
|
|
|
|
|
|
Dan Ilany
299 Park Avenue, 2nd Floor
New York, NY 10171
Phone: 212-763-5600
|
|
|
0
|
|
|
|
|
|
|
|
|
|
Adam Pierce
299 Park Avenue, 2nd Floor
New York, NY 10171
Phone: 212-763-5600
|
|
|
9,584
|
|
|
|
|
|
|
|
|
|
Roger Schmitz
299 Park Avenue, 2nd Floor
New York, NY 10171
Phone: 212-763-5600
|
|
|
9,584
|
|
|
|
|
|
|
|
|
|
Shareholder
Name and Contact Information
|
|
|
Shares of
Common
Stock
|
|
|
Nominee (if any)
and Existing Shares
Held Thereby
|
|
|
|
|
|
|
John P. Tavlarios
299 Park Avenue, 2nd Floor
New York, NY 10171
Phone: 212-763-5600
|
|
|
67,110
|
|
|
|
|
|
|
|
|
|
Leonard J. Vrondissis
299 Park Avenue, 2nd Floor
New York, NY 10171
Phone: 212-763-5600
|
|
|
58,495
|
|
|
|
|
|
|
|
|
|
ARF II Maritime Equity Co-Investors LLC
c/o Aurora Resurgence Management Partners LLC
10877 Wilshire Blvd, Suite 2100
Los Angeles, CA 90024
Attn: General Counsel
Email: thart@auroracap.com
|
|
|
2,162,162
|
|
|
|
|
|
|
|
|
|
ARF II Maritime Equity Partners L.P.
c/o Aurora Resurgence Management Partners LLC
10877 Wilshire Blvd, Suite 2100
Los Angeles, CA 90024
Attn: General Counsel
Email: thart@auroracap.com
|
|
|
48,378
|
|
|
|
|
|
|
|
|
|
ARF II Maritime Holdings LLC
c/o Aurora Resurgence Management Partners LLC
10877 Wilshire Blvd, Suite 2100
Los Angeles, CA 90024
Attn: General Counsel
Email: thart@auroracap.com
|
|
|
4,054,054
|
|
|
|
|
|
|
|
|
|
Blue Mountain Credit Alternatives Master Fund L.P.
c/o BlueMountain Capital Management, LLC
280 Park Avenue, 12th Floor
New York, NY 10017
Attn: General Counsel
Email: legalnotices@bmcm.com
|
|
|
3,069,447
|
|
|
|
|
|
|
|
|
|
Shareholder
Name and Contact Information
|
|
|
Shares of
Common
Stock
|
|
|
Nominee (if any)
and Existing Shares
Held Thereby
|
|
|
|
|
|
|
BlueMountain Credit Opportunities Master Fund I L.P.
c/o BlueMountain Capital Management, LLC
280 Park Avenue, 12th Floor
New York, NY 10017
Attn: General Counsel
Email: legalnotices@bmcm.com
|
|
|
1,179,786
|
|
|
|
|
|
|
|
|
|
BlueMountain Distressed Master Fund L.P.
c/o BlueMountain Capital Management, LLC
280 Park Avenue, 12th Floor
New York, NY 10017
Attn: General Counsel
Email: legalnotices@bmcm.com
|
|
|
58,045
|
|
|
|
|
|
|
|
|
|
BlueMountain Guadalupe Peak Fund L.P.
c/o BlueMountain Capital Management, LLC
280 Park Avenue, 12th Floor
New York, NY 10017
Attn: General Counsel
Email: legalnotices@bmcm.com
|
|
|
332,991
|
|
|
|
|
|
|
|
|
|
BlueMountain Kicking Horse Fund L.P.
c/o BlueMountain Capital Management, LLC
280 Park Avenue, 12th Floor
New York, NY 10017
Attn: General Counsel
Email: legalnotices@bmcm.com
|
|
|
405,334
|
|
|
|
|
|
|
|
|
|
BlueMountain Montenvers Master Fund SCA SICAV-SIF
c/o BlueMountain Capital Management, LLC
280 Park Avenue, 12th Floor
New York, NY 10017
Attn: General Counsel
Email: legalnotices@bmcm.com
|
|
|
1,589,135
|
|
|
|
|
|
|
|
|
|
BlueMountain Strategic Credit Master Fund L.P.
c/o BlueMountain Capital Management, LLC
280 Park Avenue, 12th Floor
New York, NY 10017
Attn: General Counsel
Email: legalnotices@bmcm.com
|
|
|
178,264
|
|
|
|
|
|
|
|
|
|
Shareholder
Name and Contact Information
|
|
|
Shares of
Common
Stock
|
|
|
Nominee (if any)
and Existing Shares
Held Thereby
|
|
|
|
|
|
|
BlueMountain Summit Trading L.P.
c/o BlueMountain Capital Management, LLC
280 Park Avenue, 12th Floor
New York, NY 10017
Attn: General Counsel
Email: legalnotices@bmcm.com
|
|
|
101,020
|
|
|
|
|
|
|
|
|
|
BlueMountain Timberline Ltd.
c/o BlueMountain Capital Management, LLC
280 Park Avenue, 12th Floor
New York, NY 10017
Attn: General Counsel
Email: legalnotices@bmcm.com
|
|
|
928,882
|
|
|
|
|
|
|
|
|
|
OCM Marine Holdings TP, L.P.
c/o Oaktree Capital Group Holdings GP, LLC
333 South Grand Avenue, 28th Floor
Los Angeles, CA 90071
|
|
|
11,923,244
|
|
|
|
|
|
|
|
|
|
Opps Marine Holdings TP, L.P.
c/o Oaktree Capital Group Holdings GP, LLC
333 South Grand Avenue, 28th Floor
Los Angeles, CA 90071
|
|
|
1,129,290
|
|
|
|
|
|
|
|
|
|
Twin Haven Special Opportunities Fund IV, L.P.
c/o Twin Haven Capital Partners, L.L.C.
33 Riverside Avenue, 3rd Floor
Westport, CT 06880
|
|
|
3,000,000
|
|
|
Pershing LLC (2,460,170 shares in certificate form and 539,830 shares in electronic form)
|
|
|
|
|
|
|
UBS Securities LLC
1285 Avenue Of The Americas
New York NY 10019
Tel. +1-212-713 2000
|
|
|
December 20, 2017
The Transaction Advisory Committee of
the Board of Directors of
Gener8 Maritime, Inc.
and
The Board of Directors of
Gener8 Maritime, Inc.
299 Park Avenue, 2
nd
Floor
New York, NY 10171
Dear Members of the Transaction Advisory Committee and the Board of Directors:
We understand that Gener8 Maritime, Inc., a corporation organized under the laws of the Republic of the Marshall Islands (“Gener8” or the “Company”), is considering a transaction whereby Euronav NV, a corporation organized under the laws of the Kingdom of Belgium (“Parent”), will effect a merger involving the Company. Pursuant to the terms of an Agreement and Plan of Merger, draft dated December 20, 2017 (the “Agreement”), among Parent, a corporation organized under the laws of the Republic of the Marshall Islands and a direct wholly-owned subsidiary of Parent (“Sub”), and the Company, the parties to the Agreement will undertake a series of transactions whereby the Company will become a wholly owned subsidiary of Parent (the “Transaction”). Pursuant to the terms of the Agreement, among other things, Sub will be merged with and into the Company, with the Company as the surviving corporation (the “Surviving Corporation”), and each issued and outstanding share of common stock, par value of $0.01 per share (“Company Common Stock”), of the Company , other than any share of Company Common Stock that is owned by (i) the Company or its subsidiaries or (ii) Parent, Sub and their respective subsidiaries, will be converted at the effective time of the merger (the “Effective Time”), into the right to receive 0.7272 ordinary shares, no par value per share (“Parent Common Stock”), of Parent (the “Per Share Merger Consideration“) in the following manner: (i) each such share of Company Common Stock issued and outstanding immediately prior to the Effective Time shall be automatically converted into one share of common stock, par value $0.01 per share (“Surviving Corporation Common Stock”), of the Surviving Corporation, and, (ii) each such share of Surviving Corporation Common Stock will be automatically exchanged for the Per Share Merger Consideration.
The terms and conditions of the Transaction are more fully set forth in the Agreement.
You have requested our opinion as to the fairness, from a financial point of view, to the holders of the Company Common Stock of the Per Share Merger Consideration to be received by such holders in the Transaction.
UBS Securities LLC (“UBS”) has acted as financial advisor to the Transaction Advisory Committee (the “Committee”) of the Board of Directors (the “Board”) of the Company in connection with the Transaction and will receive a fee for its services, a portion of which is payable in connection with this opinion and a significant portion of which is contingent upon consummation of the Transaction. In the past, UBS and its affiliates have provided investment banking services to each of the Company and Parent unrelated to the proposed Transaction, for which UBS and its affiliates received compensation. In the ordinary course of business, UBS and its affiliates may hold or trade, for their own accounts and the
UBS Investment Bank is a business division of UBS AG.
UBS Securities LLC is a subsidiary of UBS AG.
The Transaction Advisory Committee of the Board of Directors
The Board of Directors of
Gener8 Maritime, Inc.
December 20, 2017
Page 2
accounts of their customers, securities of the Company and Parent and, accordingly, may at any time hold a long or short position in such securities. The issuance of this opinion was approved by an authorized committee of UBS.
Our opinion does not address the relative merits of the Transaction or any related transaction as compared to other business strategies or transactions that might be available with respect to the Company or the Company’s underlying business decision to effect the Transaction or any related transaction. Our opinion does not constitute a recommendation to any shareholder as to how such shareholder should vote or act with respect to the Transaction or any related transaction. At your direction, we have not been asked to, nor do we, offer any opinion as to the terms, other than the Per Share Merger Consideration to the extent expressly specified herein, of the Agreement or any related documents or the form of the Transaction or any related transaction. In addition, we express no opinion as to the fairness of the amount or nature of any compensation to be received by any officers, directors or employees of any parties to the Transaction, or any class of such persons, relative to the Per Share Merger Consideration. We express no opinion as to what the value of Parent Common Stock will be when issued pursuant to the Transaction or the prices at which Parent Common Stock or Company Common Stock will trade at any time. In rendering this opinion, we have assumed, with your consent, that (i) the final executed form of the Agreement will not differ in any material respect from the draft that we have reviewed, (ii) the parties to the Agreement will comply with all material terms of the Agreement, and (iii) the Transaction will be consummated in accordance with the terms of the Agreement without any adverse waiver or amendment of any material term or condition thereof. We also have assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the Transaction will be obtained without any material adverse effect on the Company, Parent or the Transaction.
In arriving at our opinion, we have, among other things: (i) reviewed certain publicly available business and financial information relating to the Company and Parent; (ii) reviewed certain internal financial information and other data relating to the business and financial prospects of the Company that were not publicly available, including financial forecasts and estimates prepared by the management of the Company that you have directed us to utilize for purposes of our analysis; (iii) reviewed certain internal financial information and other data relating to the business and financial prospects of Parent that were not publicly available, including financial forecasts and estimates (a) relating to Parent’s business (other than its joint ventures) prepared by the management of Parent, as adjusted by management of the Company, and (b) relating to Parent’s joint ventures prepared by management of Parent, that, in each case, you have directed us to utilize for purposes of our analysis; (iv) reviewed certain estimates of synergies prepared by the management of the Company that were not publicly available that you have directed us to utilize for purposes of our analysis; (v) conducted discussions with members of the senior managements of the Company and Parent concerning the businesses and financial prospects of the Company and Parent; (vi) reviewed certain information relating to the maritime vessel values and maritime vessel charter values of each of the Company and Parent, in each case, as issued by certain third party appraisers; (vii) reviewed publicly available financial and stock market data with respect to certain other companies we believe to be generally relevant; (viii) compared the financial terms of the Transaction with the publicly available financial terms of certain other transactions we believe to be generally relevant; (ix) reviewed current and historical market prices of Company Common Stock and Parent Common Stock; (x) reviewed the Agreement; and (xi) conducted such other financial studies, analyses and investigations, and considered such other information, as we deemed necessary or appropriate. At the request of the Committee, we have held discussions with certain third parties to discuss indications of interest in a possible transaction with the Company.
The Transaction Advisory Committee of the Board of Directors
The Board of Directors of
Gener8 Maritime, Inc.
December 20, 2017
Page 3
In connection with our review, with your consent, we have assumed and relied upon, without independent verification, the accuracy and completeness in all material respects of the information provided to or reviewed by us for the purpose of this opinion. In addition, with your consent, we have not made any independent evaluation or appraisal of any of the assets or liabilities (contingent or otherwise) of the Company or Parent, nor have we been furnished with any such evaluation or appraisal, other than the third party appraisals referred to above. With respect to the financial forecasts, estimates and synergies referred to above, we have assumed, at your direction, that they have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of the Company as to the future financial performance of the Company, Parent and such synergies. We also have assumed, with your consent, that the Transaction will qualify for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended. Our opinion is necessarily based on economic, monetary, market and other conditions as in effect on, and the information available to us as of, the date hereof.
Based upon and subject to the foregoing, it is our opinion that, as of the date hereof, the Per Share Merger Consideration to be received by the holders of Company Common Stock in the Transaction is fair, from a financial point of view, to such holders.
The Transaction Advisory Committee of the Board of Directors
The Board of Directors of
Gener8 Maritime, Inc.
December 20, 2017
Page 4
This opinion is provided for the benefit of the Committee and the Board (in their respective capacities as such) in connection with, and for the purpose of, their evaluation of the Per Share Merger Consideration in the Transaction.
Very truly yours,
UBS SECURITIES LLC
![[MISSING IMAGE: TV485691_ANNEX-15.JPG]](https://content.edgar-online.com/edgar_conv_img/2018/02/14/0001144204-18-009075_TV485691_ANNEX-15.JPG)
GENER8 VALUATION CERTIFICATE Certificate of Valuation Category Valuation date Issued date Issued to Custom — Fleet Market Value 19th December 2017 14th February 2018 Gener8 page 1 of 3 info@vesselsvalue.com VesselsValue Lyric House 149 Hammersmith Road London, W14 0QL +44 (0) 20 3026 5555 MARKET VALUE USD 1,662.11M COMPANY GENER8 SHIP STATUS LIVE All valuations in this certificate are subject to Disclaimer attached. GENER8 DEFIANCE GENER8 COMPANION GENMAR COMPATRIOT GENER8 HARRIET G GENER8 KARA G GENER8 HERCULES GENER8 ATLAS GENER8 GEORGE T GENER8 ST NIKOLAS GENER8 MANIATE GENER8 SPARTIATE GENER8 ETHOS GENER8 MACEDON GENER8 NAUTILUS GENER8 NEPTUNE 9247974 9255933 9255945 9302982 9302994 9322279 9322281 9336971 9336983 9461764 9461776 9728722 9728708 9728693 9723069 2002 2004 2004 2006 2007 2007 2007 2007 2008 2010 2011 2017 2016 2016 2015 $10.06 $10.02 $10.34 $22.02 $24.39 $36.48 $37.63 $26.12 $27.43 $35.89 $37.51 $77.38 $75.63 $74.36 $72.27 105,500 72700 72700 150300 150300 306500 306000 149800 149900 164,700 164,900 299,000 299,000 299,000 300,000 Vessel Name Built IMO DWT Value $m
GENER8 VALUATION CERTIFICATE page 2 of 3 info@vesselsvalue.com VesselsValue Lyric House 149 Hammersmith Road London, W14 0QL +44 (0) 20 3026 5555 GENER8 ATHENA GENER8 APOLLO GENER8 ARES GENER8 OCEANUS GENER8 MILTIADES GENER8 CHIOTIS GENER8 ANDRIOTIS GENER8 SUCCESS GENER8 HECTOR GENER8 NESTOR GENER8 HERA GENER8 SUPREME GENER8 STRENGTH GENER8 CONSTANTINE GENER8 PERSEUS 9723071 9723083 9723095 9732553 9727039 9727027 9727015 9727003 9730086 9730098 9723100 9734654 9734642 9732541 9739501 2015 2016 2016 2016 2016 2016 2016 2016 2017 2017 2016 2016 2015 2016 2016 $72.75 $73.61 $73.81 $75.75 $70.29 $69.7 $68.84 $68.37 $76.43 $75.38 $74.13 $67.68 $67.04 $75.02 $75.78 300,000 301,400 301,600 299,000 301,000 301,000 301,000 300,900 297,400 300,000 301,600 300,900 301,000 299,000 299,000 Vessel Name Built IMO DWT Value $mxco
![[MISSING IMAGE: TV485691_ANNEX-17.JPG]](https://content.edgar-online.com/edgar_conv_img/2018/02/14/0001144204-18-009075_TV485691_ANNEX-17.JPG)
GENER8 VALUATION CERTIFICATE VesselsValue Lyric House 149 Hammersmith Road London, W14 0QL +44 (0) 20 3026 5555 Disclaimer page 3 of 3 info@vesselsvalue.com a) The Market value provided is an estimate of fair market price as at the valuation date only, and is based on the price VesselsValue estimates as its opinion in good faith that the vessel would obtain in a hypothetical transaction between a willing buyer and a willing seller on the basis of prompt delivery with charter attached at an acceptable worldwide delivery port, for cash payment on standard sale terms. For the purposes of that opinion it is assumed that the particulars of the vessel are correct, and that the vessel is in good, sound and seaworthy condition, free of maritime liens and all debts whatsoever, fully classed to the requirements of her present classification society, free of class recommendations, with clean and valid trading certificates, and where relevant to type and age of vessel with full oil majors, Rightship and any other relevant approvals in place. It should be noted that VesselsValue has neither made a physical inspection of the vessel nor inspected her class records. b) No warranty is given as to the condition of the vessel, the correctness of its stated characteristics or particulars, or the state of or availability of its records. c) This valuation is not a substitute for a formal valuation or independent inspection and advice, which you should obtain. You should not rely on this valuation to conduct any transaction, nor should you use or rely upon this valuation as market information, or for gathering such information, related to any prospectus, or bond issue, or other financial offer document. d) Any changes or corrections or altering of the Methodology could result in different valuations for the same vessel on the same valuation date but on different issue dates. e) It is furthermore to be understood that this valuation has not been issued by the automatic vesselsvalue.com service and some of the assumptions have been provided by the client. Therefore these valuations must be considered as very much estimates only. f) See also Terms and Conditions set forth at vesselsvalue.com.
![[MISSING IMAGE: TV485691_ANNEX-18.JPG]](https://content.edgar-online.com/edgar_conv_img/2018/02/14/0001144204-18-009075_TV485691_ANNEX-18.JPG)
EURONAV VALUATION CERTIFICATE Certificate of Valuation Category Valuation date Issued date Issued to Custom — Fleet Market Value 19th December 2017 14th February 2018 Gener8 page 1 of 4 info@vesselsvalue.com VesselsValue Lyric House 149 Hammersmith Road London, W14 0QL +44 (0) 20 3026 5555 MARKET VALUE USD 2,020.92M COMPANY EURONAV SHIP STATUS LIVE All valuations in this certificate are subject to Disclaimer attached. CAP JEAN CAP ROMUALD CAP DIAMANT FLAN* TI EUROPE FILIKON FINESSE CAP LEON CAP PIERRE TI HELLAS VK EDDIE CAP GUILLAUME CAP CHARLES CAP PHILIPPE CAP VICTOR 9158147 9160229 9229295 9235256 9235268 9236004 9236016 9274434 9274446 9290086 9291274 9321691 9321706 9321718 9321720 1998 1998 2001 2004 2002 2002 2003 2003 2004 2005 2005 2006 2006 2006 2007 $10.57 $10.56 $12.58 $26.95 $28.81 $14.74 $14.85 $16.71 $17.33 $30.19 $29.76 $24.22 $24.4 $23.72 $24.68 146600 146600 166000 305700 441600 150000 150000 159000 159100 319300 305300 158900 158,900 158,900 158,900 Vessel Name Built IMO DWT Value $m FLAN*xco
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EURONAV VALUATION CERTIFICATE page 2 of 4 info@vesselsvalue.com VesselsValue Lyric House 149 Hammersmith Road London, W14 0QL +44 (0) 20 3026 5555 NECTAR NAUTIC CAP LARA HAKATA NOBLE NEWTON HIRADO CAP FELIX CAP THEODORA HAKONE FELICITY FRATERNITY HOJO INGRID IRIS MARIA ALSACE CAPTAIN MICHAEL SANDRA SIMONE SONIA ILMA SARA ALICE ANTIGONE ALEX 9323936 9323948 9330874 9346952 9358280 9358292 9377420 9380738 9380740 9398084 9416692 9416733 9457543 9529956 9529968 9530890 9530905 9531480 9537757 9537769 9537771 9588392 9537745 9709087 9709075 9722924 2008 2008 2007 2010 2008 2009 2011 2008 2008 2010 2009 2009 2013 2012 2012 2012 2012 2012 2011 2012 2012 2012 2011 2016 2015 2016 $37.55 $38.22 $25.5 $47.04 $39.99 $41.51 $52.21 $28.29 $30.07 $49.91 $32.17 $33.72 $59.81 $55.44 $55.9 $39.63 $56.43 $39.82 $52.95 $54.99 $56.15 $56.85 $52.09 $73.57 $72.34 $74.15 307,300 307,300 158,800 302,600 307,300 307,300 302,600 158,800 158,800 302,600 157,700 157,700 303,000 314,000 314,000 157,500 320,400 157,600 323,500 314,000 314,000 314,000 323,200 299,300 299,400 299,400 Vessel Name Built IMO DWT Value $mxco
EURONAV VALUATION CERTIFICATE page 3 of 4 info@vesselsvalue.com VesselsValue Lyric House 149 Hammersmith Road London, W14 0QL +44 (0) 20 3026 5555 ANNE AQUITAINE ARDECHE 912 (HULL) HYUNDAI 911 (HULL) HYUNDAI 910 (HULL) HYUNDAI CAP QUEBEC 9722936 9732577 9732565 9829813 9829801 9817119 9817107 2016 2017 2017 2018 2018 2018 2018 $74.65 $76.93 $76.83 $56.28 $56.35 $56.69 $56.82 299,500 298,800 298,600 158,600 158,600 158,600 158,600 Vessel Name Built IMO DWT Value $m
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EURONAV VALUATION CERTIFICATE VesselsValue Lyric House 149 Hammersmith Road London, W14 0QL +44 (0) 20 3026 5555 Disclaimer page 4 of 4 info@vesselsvalue.com a) The Market value provided is an estimate of fair market price as at the valuation date only, and is based on the price VesselsValue estimates as its opinion in good faith that the vessel would obtain in a hypothetical transaction between a willing buyer and a willing seller on the basis of prompt delivery with charter attached at an acceptable worldwide delivery port, for cash payment on standard sale terms. For the purposes of that opinion it is assumed that the particulars of the vessel are correct, and that the vessel is in good, sound and seaworthy condition, free of maritime liens and all debts whatsoever, fully classed to the requirements of her present classification society, free of class recommendations, with clean and valid trading certificates, and where relevant to type and age of vessel with full oil majors, Rightship and any other relevant approvals in place. It should be noted that VesselsValue has neither made a physical inspection of the vessel nor inspected her class records. b) No warranty is given as to the condition of the vessel, the correctness of its stated characteristics or particulars, or the state of or availability of its records. c) This valuation is not a substitute for a formal valuation or independent inspection and advice, which you should obtain. You should not rely on this valuation to conduct any transaction, nor should you use or rely upon this valuation as market information, or for gathering such information, related to any prospectus, or bond issue, or other financial offer document. d) Any changes or corrections or altering of the Methodology could result in different valuations for the same vessel on the same valuation date but on different issue dates. e) It is furthermore to be understood that this valuation has not been issued by the automatic vesselsvalue.com service and some of the assumptions have been provided by the client. Therefore these valuations must be considered as very much estimates only. f) See also Terms and Conditions set forth at vesselsvalue.com.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20.
Indemnification of Directors and Officers.
I.
Belgian Law
Under Belgian law, subject to certain conditions, a company may undertake to indemnify its directors for liability that the directors might incur in the performance of their duties. Third-parties may also do so. In each case, the liability of the directors as such remains intact but the company or a third-party agrees to cover the financial consequences of the liability incurred.
The granting of such indemnification is subject to the following conditions and limitations:
(1)
It is generally accepted that a company cannot undertake to indemnify its own directors for any liability the directors might incur towards the company itself, as this would in advance render the ‘actio mandati’ ineffective. A third-party on the other hand, such as a shareholder or a group company, can validly undertake to indemnify directors for liability they might incur towards the company in which they serve as a director.
(2)
An indemnification commitment cannot cover liability as a result of fraud, willfull misconduct or intentional fault as this would go against public policy. Gross negligence, however, can be effectively covered if it is expressly provided for.
(3)
An indemnification commitment cannot cover criminal penalties imposed on directors personally. This would again be contrary to public policy. However, an indemnification commitment can cover the legal fees related to a criminal prosecution as well as the civil liability resulting from a criminal offence.
(4)
As a general rule, any undertaking to indemnify directors for liability they might incur must be in the corporate interest of the company granting the undertaking. When a company undertakes to indemnify its own directors, the corporate interest test may be satisfied when the indemnification undertaking is considered necessary to attract or to keep competent directors.
II.
Indemnification Agreements
.
The Registrant has entered into an indemnification agreement governed by Belgian law, or the Belgian Indemnification Agreement, with each of its directors. Pursuant to the Belgian Indemnification Agreement, the Registrant has agreed to indemnify each director, to the fullest extent permitted by applicable law, from and against the financial consequences of directors’ liability claims related to pollution. This indemnification includes, to the extent legally permitted, compensation for and advancement of all expenses related to any judicial procedure or dispute in which the director is or could become subject to a pollution liability claim in connection with the discharge of his or her responsibilities, compensation of all financial consequences including fines and costs of such judicial procedure or dispute initiated by a third-party borne by the director, and the indemnification of such director’s legal spouse to the extent he or she is sought solely in his or her capacity as a spouse or because of his or her patrimonial interests in relation to the goods that are claimed as compensation for an alleged fault of a director.
In addition, the Registrant has entered into an indemnification agreement governed by New York law, or the New York Indemnification Agreement, with each of its directors and officers, each an indemnitee. Pursuant to the New York Indemnification Agreement, the Registrant has agreed to indemnify each indemnitee, to the fullest extent permitted by applicable law, from and against any costs, expenses or fees paid, suffered or incurred by the indemnitee in connection with any claim or proceeding, including proceedings under the Securities Act or the Exchange Act or any other U.S. federal law, state law, statute or regulation, that the indemnitee is, was, or may be threatened to be involved as a party, or otherwise, by reason of his or her capacity as director or officer of the Registrant. The Registrant will not indemnify any director or officer from or against any financial consequences related to any claim or proceeding in which a court of competent jurisdiction has found the director or officer to be liable to the Registrant for fraud or willful misconduct in connection with or relating to his or her capacity as a director of officer. Under the
New York Indemnification Agreement, the Registrant is not obligated to indemnify any indemnitee for, among other things, claims indemnified by any insurance policy, except with respect to any excess amount beyond the insurance proceeds made available to the indemnitee.
The Belgian Indemnification Agreement and the New York Indemnification Agreement should be read together and constitute the entire agreement between the Registrant and each director or officer with respect to the subject matter of both agreements. Should a conflict arise between the Belgian Indemnification Agreement and the New York Indemnification Agreement, the indemnitee enjoys the greater benefit afforded by either of the agreements.
The Registrant maintains directors’ and officers’ liability insurance, including coverage for, among other things, liabilities under the U.S. Securities Act and Exchange Act, and discretionary coverage for certain pollution claims.
Item 21.
Exhibits
A list of exhibits included as part of this Registration Statement is set forth in the Exhibit Index which immediately precedes such exhibits and is incorporated herein by reference.
Item 22.
Undertakings.
(A)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the U.S. Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2)
That, for the purpose of determining any liability under the U.S. Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered thereby, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
To file a post-effective amendment to the registration statement to include any financial statements required by “Item 8.A. of Form 20-F” at the start of any delayed offering or throughout a continuous offering.
(5)
That, for the purpose of determining liability of the registrant under the U.S. Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(B)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the U.S. Securities Act, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the U.S. Securities Exchange Act of 1934, as amended, or the U.S. Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the U.S. Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered thereby, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(C)
The undersigned registrant hereby undertakes as follows:
(1)
That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reoffering’s by persons who may be deemed underwriters, in addition to the information called for by the other Items of the applicable form.
(2)
That every prospectus (i) that is filed pursuant to the immediately preceding paragraph, or (ii) that purports to meet the requirements of section 10(a)(3) of the Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the U.S. Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered thereby, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(D)
Insofar as indemnification for liabilities arising under the U.S. Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(E)
The undersigned registrant hereby undertakes: (i) to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means, and (ii) to arrange or provide for a facility in the United States for the purpose of responding to such requests. The undertaking in clause (i) above includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(F)
The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction and the company being acquired involved thereby, that was not the subject of and included in the registration statement when it became effective.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Antwerp, Belgium on the 14
th
day of February, 2018.
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EURONAV NV
(Registrant)
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By:
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/s/ Patrick Rodgers
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Name:
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Patrick Rodgers
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Title:
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Gary J. Wolfe and Keith J. Billotti his true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities indicated.
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Signature
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Title
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/s/ Patrick Rodgers
Patrick Rodgers
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Chairman and Chief Executive Officer
(Principal Executive Officer) and Director
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/s/ Hugo De Stoop
Hugo De Stoop
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Chief Financial Officer (Principal Financial Officer, Principal Accounting Officer)
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/s/ Carl Steen
Carl Steen
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Director
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/s/ Daniel R. Bradshaw
Daniel R. Bradshaw
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Director
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/s/ William Thomson
William Thomson
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Director
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/s/ Anne-Hélène Monsellato
Anne-Hélène Monsellato
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Director
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/s/ Ludovic Saverys
Ludovic Saverys
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Director
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/s/ Grace Reksten Skaugen
Grace Reksten Skaugen
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Director
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SIGNATURE OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative of the Registrant in the United States, has signed this registration statement in the City of Newark, State of Delaware, on February 14, 2018.
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By:
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/s/ Donald J. Puglisi
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Name:
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Donald J. Puglisi
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Title:
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Authorized Representative in the United States
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Exhibit Index
Exhibit
Number
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Description
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2.1
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Agreement and Plan of Merger, dated as of December 20, 2017, among Euronav NV, Euronav MI Inc., and Gener8 Maritime, Inc. (pursuant to Item 601(b)(2) of Regulation S-K, certain schedules and similar attachments have been omitted but will be furnished supplementally to the Commission upon request) (attached as Annex A to the proxy statement/prospectus included in this Registration Statement)
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3.1
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Coordinated Articles of Association
(3)
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4.1
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Form of Ordinary Share Certificate
(1)
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4.2
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Form of Senior Debt Securities Indenture
(6)
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4.3
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Form of Subordinated Debt Securities Indenture
(6)
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5.1
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Opinion of ARGO LAW CVBA as to the validity of the ordinary shares of Euronav NV being registered
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8.1
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Opinion of ARGO LAW CVBA with respect to certain tax matters
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8.2
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Opinion of Seward & Kissel LLP with respect to certain tax matters
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10.1
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Registration Rights Agreement, dated January 28, 2015
(2)
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10.2
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Euronav NV Stock Option Plan, dated December 16, 2013
(1)
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10.3
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$76.0 Million Secured Loan Facility (Fiorano), dated October 23, 2008
(1)
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10.4
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$67.5 Million Secured Loan Facility (Larvotto), dated August 29, 2008
(1)
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10.5
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$340.0 Million Senior Secured Credit Facility, dated October 13, 2014
(1)
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10.6
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Long Term Incentive Plan, dated February 12, 2015
(2)
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10.7
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$750.0 Million Senior Secured Credit Facility, dated August 19, 2015
(3)
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10.8
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2016 Long Term Incentive Plan
(3)
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10.9
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$409.5 Million Senior Secured Credit Facility, dated December 16, 2016
(4)
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10.10
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$110.0 Million Revolving Credit Facility, dated January 30, 2017
(4)
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10.11
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2017 Long Term Incentive Plan
(4)
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10.12
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Supplemental Letter Relating to the $76.0 Million Secured Loan Facility (Fiorano), dated June 1, 2016
(4)
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10.13
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Supplemental Letter Relating to the $67.5 Million Secured Loan Facility (Larvotto), dated June 1, 2016
(4)
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10.14
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Supplemental Letter Relating to the $750.0 Million Secured Loan Facility, dated August 30, 2016
(4)
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10.15
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10.16
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Amending and Restating Agreement Relating to the $76.0 Million Secured Loan Facility (Fiorano), dated March 31, 2017
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10.17
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Amending and Restating Agreement Relating to the $67.5 Million Secured Loan Facility (Larvotto), dated March 31, 2017
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10.18
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$108.6 Million Senior Secured Credit Facility, dated April 25, 2017
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10.19
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Dealer Agreement Relating to a €50 Million Belgian Multi-Currency Short-Term Treasury Notes Programme, dated June 6, 2017
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10.20
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Domiciliary Agency Agreement, dated June 6, 2017
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10.21
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Service Contract Concerning the Issue of Dematerialized Treasury Certificates and Certificates of Deposit, dated June 2, 2017
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10.22
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Bond Terms for a Senior Unsecured Bond Issue, dated May 30, 2017
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10.23
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Agreement regarding the Bond Trustee’s Fees, dated May 30, 2017
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Exhibit
Number
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Description
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21.1
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Subsidiaries of Euronav NV
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23.1
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Consent of Argo Law (included in Exhibit 5.1)
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23.2
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Consent of Seward & Kissel LLP (included in Exhibit 8.1)
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23.3
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Consent of Deloitte & Touche LLP
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23.4
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Consent of KPMG Bedrijfsrevisoren — Réviseurs d’Entreprises
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23.5
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Consent of Steven Smith, as director nominee
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23.6
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Consent of Drewry Shipping Consultants Ltd.
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23.7
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Consent of Energy Maritime Associates
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24.1
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Power of Attorney (included in signature page hereto)
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99.1
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Consent of UBS
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99.2
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Consent of Clarksons Valuations Limited
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99.3
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Shareholder Support and Voting Agreement, dated as of December 20, 2017, by and between Euronav NV and the Covered Shareholders (Composite Copy) (attached as Annex B to the proxy statement/prospectus included in this Registration Statement)
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99.4
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Memorandum of Agreement for the Gener8 Athena, dated December 20, 2017
(5)
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99.5
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Memorandum of Agreement for the Gener8 Hera, dated December 20, 2017
(5)
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99.6
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Memorandum of Agreement for the Gener8 Neptune, dated December 20, 2017
(5)
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99.7
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Consent of VesselsValue.com
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(1)
Filed as an exhibit to the Company’s Registration Statement on Form F-1, Registration No. 333-198625 and incorporated by reference herein.
(2)
Filed as an exhibit to the Company’s Annual Report on Form 20-F for the year ended December 31, 2014 and incorporated by reference herein.
(3)
Filed as an exhibit to the Company’s Annual Report on Form 20-F for the year ended December 31, 2015 and incorporated by reference herein.
(4)
Filed as an exhibit to the Company’s Annual Report on Form 20-F for the year ended December 31, 2016 and incorporated by reference herein.
(5)
Filed as an exhibit to the Company’s Report of Foreign Private Issuer on Form 6-K filed with the SEC on December 22, 2017 and incorporated by reference herein.
(6)
Filed as an exhibit to the Company’s Registration Statement on Form F-3, Registration No. 333-210849 and incorporated by reference herein.
Exhibit 5.1
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ADVOCATEN | AVOCATS
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Euronav NV
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De Gerlachekaai 20
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2000 Antwerpen
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Antwerp, Februari 14, 2018
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Re: Euronav NV
Ladies and Gentlemen:
We have acted as Belgian counsel to Euronav
NV, a company incorporated under the laws of the Kingdom of Belgium (the “Company”), in connection with the Company’s
Registration Statement on Form F-4 as filed with the U.S. Securities and Exchange Commission on February 14, 2018, as thereafter
amended or supplemented (the “Registration Statement”), with respect to the issuance of up to 60,815,764 ordinary shares
of the Company, no par value (the “Ordinary Shares”). The Registration Statement relates to the merger of Euronav Ml
Inc. (“Merger Sub”) with and into Gener8 Maritime, Inc. (“Gener8”), with Gener8 as the surviving corporation
as a wholly-owned subsidiary of the Company (the “Merger”), pursuant to the Agreement and Plan of Merger dated December
20, 2017, by and among the Company, Merger Sub, and Gener8 (the “Merger Agreement”), as described in the form of proxy
statement/prospectus included in the Registration Statement (the “Proxy/Prospectus”).
We have examined originals or copies, certified
or otherwise identified to our satisfaction, of: (i) the Registration Statement; (ii) the Proxy/Prospectus included in the Registration
Statement; the Merger Agreement, and (iii) such corporate documents and records of the Company and such other instruments, certificates
and documents as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In such examinations,
we have assumed the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents
submitted to us as copies or drafts of documents to be executed, the genuineness of all signatures and the legal competence or
capacity of persons or entities to complete the execution of documents, and, as to factual matters, the truth, accuracy and completeness
of the information, representations and warranties contained in the Registration Statement, including the Proxy/Prospectus, the
Merger Agreement and such other documents, agreements and instruments.
We have further assumed for the purposes of
this opinion, without investigation, that (i) all documents contemplated by the Proxy/Prospectus to be executed in connection with
the Merger have been duly authorized, executed and delivered by each of the parties thereto other than the Company, (ii) the terms
of the Merger comply in all respects with the terms, conditions and restrictions set forth in the Proxy/Prospectus and all of the
instruments, agreements and other documents relating thereto or executed in connection therewith, and (iii) all Ordinary Shares
will be issued in compliance with applicable U.S. federal and state securities and other laws (other than the laws of the Kingdom
of Belgium in respect of which we are opining).
|
Argo Law
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T +32 (0)3 206 85 30
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Kantoorrekening
|
Derdenrekening
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|
City Link
|
F +32 (0)3 206 85 55
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IBAN BE82 0016 9734 1968
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IBAN BE36 0017 0272 6781
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Posthofbrug 12 / 5 - 2600 Antwerpen
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E info@argo-law.be
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BIC GEBABEBB
|
BIC GEBABEBB
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|
www.argo-law.be
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BTW BE0533.993.314
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|
Based upon and subject to the foregoing, and
having regard to such other legal considerations which we deem relevant, we are of the opinions that under the laws of the Kingdom
of Belgium, the Ordinary Shares have been duly authorized and when issued, sold and paid for in the manner contemplated by the
Proxy/Prospectus and in accordance with the terms and conditions set forth in the Merger Agreement, the Ordinary Shares will be
validly issued, fully paid for and non-assessable.
This opinion is limited to the law of the Kingdom
of Belgium as in effect on the date hereof.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement, and to each reference to us and the discussions of advice provided by us under the
headings “Legal Matters” in the Proxy/Prospectus, without admitting we are “experts” within the meaning
of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder with respect to any part of
the Registration Statement.
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Very truly yours,
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/s/ Nico Goossens
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For and on behalf of Argo Law cvba
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Nico Goossens
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Exhibit 8.1
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ADVOCATEN | AVOCATS
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Euronav NV
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De Gerlachekaai 20
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2000 Antwerpen
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Antwerp, February 14, 2018
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Re: Euronav NV
Ladies and Gentlemen:
We have acted as Belgian counsel to Euronav
NV, a company incorporated under the laws of the Kingdom of Belgium (the “Company”), in connection with the Company’s
Registration Statement on Form F-4 as filed with the U.S. Securities and Exchange Commission on February 14, 2018, as thereafter
amended or supplemented (the “Registration Statement”), with respect to the issuance of up to 60,815,764 ordinary shares
of the Company, no par value (the “Ordinary Shares”). The Registration Statement relates to the merger of Euronav Ml
Inc. (“Merger Sub”) with and into Gener8 Maritime, Inc. (“Gener8”), with Gener8 as the surviving corporation
as a wholly-owned subsidiary of the Company (the “Merger”), pursuant to the Agreement and Plan of Merger dated December
20, 2017, by and among the Company, Merger Sub, and Gener8 (the “Merger Agreement”), as described in the form of proxy
statement/prospectus included in the Registration Statement (the “Proxy/Prospectus”).
We have examined originals or copies, certified
or otherwise identified to our satisfaction, of: (i) the Registration Statement; (ii) the Proxy/Prospectus included in the Registration
Statement; the Merger Agreement, and (iii) such corporate documents and records of the Company and such other instruments, certificates
and documents as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In such examinations,
we have assumed the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents
submitted to us as copies or drafts of documents to be executed, the genuineness of all signatures and the legal competence or
capacity of persons or entities to complete the execution of documents, and, as to factual matters, the truth, accuracy and completeness
of the information, representations and warranties contained in the Registration Statement, including the Proxy/Prospectus, the
Merger Agreement and such other documents, agreements and instruments.
Based upon and subject to the foregoing, and
the other assumptions, exclusions and qualifications in this letter, and in particular, on the representations, covenants, assumptions,
conditions and qualifications described in the Proxy/Prospectus under the heading “Material Tax Considerations” therein,
we hereby confirm that the opinions that are attributed to Argo Law with respect to Belgian federal income tax matters expressed
in the Proxy/Prospects under the heading “Material Tax Consideration – Belgian Tax Considerations” are the opinions
of Argo Law accurately state our views as to the tax matters discussed therein.
|
Argo Law
|
T +32 (0)3 206 85 30
|
Kantoorrekening
|
Derdenrekening
|
|
City Link
|
F +32 (0)3 206 85 55
|
IBAN BE82 0016 9734 1968
|
IBAN BE36 0017 0272 6781
|
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Posthofbrug 12 / 5 - 2600 Antwerpen
|
E info@argo-law.be
|
BIC GEBABEBB
|
BIC GEBABEBB
|
|
www.argo-law.be
|
BTW BE0533.993.314
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|
|
Our opinions and the tax discussion as set
forth in the Registration Statement are based on the current provisions of the Belgian Income Tax Code 1992 and the Belgian Various
Duties and Taxes Code as presently in force, and as generally interpreted and applied by the Belgian courts and authorities on
the same date. Our opinion may be affected by amendments to the tax law or to the regulations thereunder or by subsequent judicial
or administrative interpretations thereof, which might be enacted or applied with retroactive effect. No opinion is expressed on
any matters other than those specifically referred to above by reference to the Registration Statement.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to each reference to us and the discussions of advice provided by us under the
heading “Material Tax Considerations” in the Proxy/Prospectus, without admitting we are “experts” within
the meaning of the Securities Act of 1933, as amended, or the rules and regulations of the Commission promulgated thereunder with
respect to any part of the Registration Statement.
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Very truly yours,
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/s/ Philippe Rens
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For and on behalf of Argo Law cvba
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Philippe Rens
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Exhibit 8.2
February
14, 2018
Euronav NV
De Gerlachekaai 20
2000 Antwerpen
Belgium
Ladies and Gentlemen:
We
have acted as counsel to Euronav NV, a company incorporated under the laws of the Kingdom of Belgium (the “
Company
”),
in connection with the Company’s Registration Statement on Form F-4 as filed with the U.S. Securities and Exchange Commission
on February 14, 2018, as thereafter amended or supplemented (the “
Registration Statement
”), with respect to
the issuance of up to 60,815,764 ordinary shares of the Company, no par value (the “
Ordinary Shares
”). The Registration
Statement relates to the merger of Euronav MI Inc. (“
Merger Sub
”) with and into Gener8 Maritime, Inc. (“
Gener8
”),
with Gener8 as the surviving corporation as a wholly-owned subsidiary of the Company (the “
Merger
”), pursuant
to the Agreement and Plan of Merger dated December 20, 2017, by and among the Company, Merger Sub, and Gener8 (the “
Merger
Agreement
”), as described in the form of proxy statement/prospectus included in the Registration Statement (the “
Proxy/Prospectus
”).
We
have examined originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration Statement;
(ii) the Proxy/Prospectus included in the Registration Statement; (iii) the Merger Agreement; and (iv) such corporate
documents and records of the Company and such other instruments, certificates and documents as we have deemed necessary or appropriate
as a basis for the opinions hereinafter expressed. In such examinations, we have assumed the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents submitted to us as copies or drafts of documents to be
executed, the genuineness of all signatures and the legal competence or capacity of persons or entities to complete the execution
of documents, and, as to factual matters, the truth, accuracy and completeness of the information, representations and warranties
contained in the Registration Statement, including the Proxy/Prospectus, the Merger Agreement and such other documents, agreements
and instruments.
Based
upon and subject to the foregoing, and the other assumptions, exclusions and qualifications in this letter, and in particular,
on the representations, covenants, assumptions, conditions and qualifications described in the Proxy/Prospectus under the heading
“Material Tax Considerations” therein, we hereby confirm that the opinions that are attributed to Seward & Kissel
LLP with respect to United States federal income tax matters and Marshall Islands tax matters in the Registration Statement under
the headings (i) “Material Tax Considerations—Material U.S. Federal Income Tax Considerations”, (ii) “Material
Tax Considerations—Material United States Federal Income Tax Consequences of the Merger”, (iii) “Material Tax
Considerations—Material U.S. Federal Income Tax Considerations with Respect to the Taxation of Euronav and its Operations”,
(iv) “Material Tax Considerations—Material U.S. Federal Income Tax Considerations with Respect to the Ownership and
Disposition of Euronav Ordinary Shares”, and (v) “Material Tax Considerations—Non U.S. Material Tax Considerations—Marshall
Islands Tax Considerations” are the opinions of Seward & Kissel LLP and accurately state our views as to the tax matters
discussed therein.
Our
opinions and the tax discussion as set forth in the Registration Statement are based on the current provisions of the U.S. Internal
Revenue Code of 1986, as amended, the Treasury Regulations promulgated thereunder, published pronouncements of the Internal Revenue
Service, which may be cited or used as precedents, and case law, any of which may be changed at any time with retroactive effect.
No opinion is expressed on any matters other than those specifically referred to above by reference to the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to each reference to us and the
discussions of advice provided by us under the heading “Material Tax Considerations” in the Proxy/Prospectus, without
admitting we are “experts” within the meaning of the Securities Act of 1933, as amended, or the rules and regulations
of the Commission promulgated thereunder with respect to any part of the Registration Statement.
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Very truly yours,
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/s/ Seward & Kissel LLP
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Exhibit 10.15
SIDE LETTER
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To:
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Fiorano Shipholding Limited
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Room 2503-05 25th Floor
Harcourt House
No. 39 Gloucester Road
Wanchai
Hong Kong
as Borrower
Euronav NV
De Gerlachekaai 20
B-2000 Antwerp
Belgium
as Guarantor
30
th
January 2017
Dear Sirs
We refer to the loan agreement dated 23
October 2008 (as may be amended, modified or supplemented from time to time, the “
Loan Agreement
”) and made
between (1) Fiorano Shipholding Limited as borrower (the “
Borrower
”), (2) the banks and financial institutions
listed therein at schedule 1 as lenders (the “
Lenders
”), (3) The Bank of Nova Scotia as agent (the “
Agent
”)
and (4) The Bank of Nova Scotia acting as security trustee (the “
Security Trustee
”) and relating to a term loan
facility of up to $76,000,000 in respect of one suezmax tanker named m.t “CAPTAIN MICHAEL”.
Words and expressions defined in the Loan
Agreement shall have the same meanings when used in this Letter (unless otherwise defined herein).
We are writing to you in our capacity as
Agent acting on behalf of all of the Lenders and with their consent as required under clause 27.2 of the Loan Agreement.
You have requested, and we, as Agent acting
with the authority of all of the Lenders, have agreed that pursuant to clause 2.5 (
Margin renegotiation
) of the Loan Agreement,
the definition of “Margin” in clause 1.1 of the Loan Agreement shall be amended with effect from 31 January 2017 by
deleting the current definition of “Margin” and replacing it with the following new definition as follows:
““
Margin
”
means 1.95 per cent. per annum.”
We confirm that as a consequence of the
amendment to the Margin, paragraph (b) of the definition of Maturity Date applies.
This Letter and any non-contractual obligations
arising out of or in connection with it shall be governed by and construed in accordance with English law and the provisions of
clauses 30.2 to 30.6 (inclusive) of the Loan Agreement shall apply to this Letter.
All other terms and conditions of the Loan
Agreement and each of the other Finance Documents shall remain unamended and in full force and effect.
This Letter shall constitute a Finance
Document.
This Letter may be executed in any number
of several counterparts and any single counterpart or set of counterparts signed, in either case, by all of the parties thereto
shall be deemed to be an original, and all counterparts of this Letter when taken together shall constitute one and the same instrument.
Please confirm your agreement to the terms
of this Letter by signing below.
Yours faithfully
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/s/ Mark Lee
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Mark Lee
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Managing Director
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for and on behalf of
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The Bank of Nova Scotia
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as Agent and Security Trustee
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Agreed and accepted by on 30 January 2017
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/s/ H. De Stoop
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/s/ Egied Verbeeck
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H. De Stoop, director
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Egied Verbeeck, director
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for and on behalf of
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Fiorano Shipholding Limited
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Agreed and accepted by on 30 January 2017
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/s/ H. De Stoop
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/s/ Egied Verbeeck
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H. De Stoop, ExCo Member
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Egied Verbeeck, ExCo member
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for and on behalf of
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Euronav NV
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Exhibit 10.16
Execution Form
Dated
31 March
2017
$76,000,000
$ 26,750,000 outstanding
AMENDMENT TO TERM LOAN FACILITY
fiorano
SHIPHOLDING LIMITED
as Borrower
and
EURONAV
NV
as Guarantor
and
the bank
of nova scotia
as Agent
and as Security Trustee
amending
and restating AGREEMENT
relating to
the financing of
m.t. "CAPTAIN MICHAEL"
Index
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Clause
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Page
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1
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Definitions and Interpretation
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1
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2
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Agreement of the Creditor Parties
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3
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3
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Conditions Precedent
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4
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4
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Representations
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4
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5
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Amendment and Restatement of Loan Agreement and other Finance Documents
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4
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6
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Accession by Guarantor as new Borrower
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5
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7
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Further Assurance
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5
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8
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Costs and Expenses
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6
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9
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Notices
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6
|
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10
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Counterparts
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6
|
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11
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Governing Law
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6
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12
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Enforcement
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7
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Schedules
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|
|
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Schedule 1 The Lenders
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8
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Schedule 2 Conditions Precedent
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9
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Execution
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Execution Pages
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10
|
Appendices
Appendix Part A Form of Amended and Restated
Loan Agreement marked to indicate amendments to the Loan Agreement
Appendix Part B Form of clean copy Amended
and Restated Loan Agreement
THIS AGREEMENT
is made on
31
March
2017
PARTIES
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(1)
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FIORANO SHIPHOLDING LIMITED
, a company incorporated in Hong Kong whose registered office
is at Room 2503-05, 25
th
Floor, Harcourt House, No.39 Gloucester Road, Wanchai, Hong Kong as borrower (the "
Borrower
")
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|
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(2)
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EURONAV NV
, a company incorporated in Belgium whose registered office is at Gerlachekaai
20, B-2000 Antwerp, Belgium as the guarantor (the "
Guarantor
")
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(3)
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THE FINANCIAL INSTITUTIONS
listed in Schedule 1 (
The Lenders
) as lenders (the "
Lenders
")
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(4)
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THE BANK OF NOVA SCOTIA
, as agent of the other Creditor Parties (the "
Agent
")
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(5)
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THE BANK OF NOVA SCOTIA
, as security trustee for the Creditor Parties (the "
Security
Trustee
")
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BACKGROUND
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(A)
|
By the Loan Agreement, the Lenders agreed to make available to the Borrower a facility of (originally)
up to $76,000,000 of which $26,750,000 is outstanding at the date of this Agreement.
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(B)
|
The Borrower and the Guarantor have requested that the Lenders agree to, inter alia:
|
|
|
(i)
|
the sale of the Ship to the Guarantor;
|
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|
(ii)
|
the release of the Borrower from all its obligations under the Loan Agreement and the release of
all Security Interests created by it in favour of the Security Trustee under the Finance Documents;
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(iii)
|
the accession of the Guarantor to the Loan Agreement as the replacement borrower;
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(iv)
|
the release of the Guarantor from all its liabilities and obligations to the Creditor Parties under
the Euronav Guarantee; and
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(v)
|
take Security Interests over the Ship immediately upon ownership by the Guarantor as replacement
borrower.
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(C)
|
This Agreement sets out the terms and conditions on which the Lenders and the other Creditor Parties
agree, with effect on and from the Effective Date, to the above requests and to the consequential amendment of the Loan Agreement
and the Agency and Trust Deed in connection with those matters.
|
OPERATIVE
PROVISIONS
|
|
1
|
Definitions and Interpretation
|
In this Agreement:
"
Agency
and Trust Deed
" means the agency and trust deed dated 23 October 2008 and made between, (i) the Borrower, (ii)
the Lenders, (iii) the Agent and (iv) the Security Trustee.
"
Amended
and Restated Loan Agreement
" means the Loan Agreement as amended and restated by this Agreement in the form set
out in the Appendix.
"
Authorisation
"
means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, legalisation or registration.
"
Effective
Date
" means the date on which the conditions precedent in Clause 3 (
Conditions Precedent
) are satisfied.
"
Euronav
Guarantee
" means the guarantee dated 23 October 2008 and made between the Guarantor and the Security Trustee.
"
Existing
Account Security Deed
" means the account security deed in respect of the earnings account of the Borrower dated
23 October 2008 and made between the Borrower and the Security Trustee.
"
Existing
Finance Documents
" means each of the Euronav Guarantee, the Existing Account Security Deed, the Existing Mortgage
and the Existing General Assignment and an "
Existing Finance Document
"
means any one of them.
"
Existing
General Assignment
" means the general assignment in respect of the Ship dated 31 January 2012 and made between
(i) the Borrower and (ii) the Security Trustee.
"
Existing
Mortgage
" means the first preferred Greek mortgage over the Ship dated 31 January 2012 and made between the Borrower
and Scotiabank (Ireland) Limited as mortgagee.
"
Loan
Agreement
" means the loan agreement dated 23 October 2008 (as amended and supplemented by a supplemental letter
dated 30 January 2017 and may be supplemented or amended from time to time) and made between (i) the Borrower, (ii) the Lenders,
(iii) the Agent and (iv) the Security Trustee.
"
New
Accounts Security Deed
" means the account security deed in respect of the earnings account of the Guarantor as
replacement borrower to be entered into between the Guarantor as replacement borrower and the Security Trustee.
"
New
Finance Documents
" means each of the New Accounts Security Deed, the New Mortgage and the New General Assignment
and a "
New Finance Document
" means any one of
them.
"
New
General Assignment
" means the general assignment in respect of the Ship to be entered into between (i) the Guarantor
as replacement borrower, (ii) the Security Trustee and (iii) the Lenders.
"
New
Mortgage
" means the first preferred Greek mortgage over the Ship to be entered into between the Guarantor as replacement
borrower and Scotiabank (Ireland) Designated Activity Company as mortgagee.
"
Party
"
means a party to this Agreement.
"Transaction
Security
" means the Security created or evidenced or expressed to be created or evidenced under the Security Documents.
Defined expressions in the Loan
Agreement and the other Finance Documents shall have the same meanings when used in this Agreement unless the context otherwise
requires or unless otherwise defined in this Agreement.
|
|
1.3
|
Application of construction and interpretation provisions of Loan Agreement
|
Clause 1.2 (
construction
)
of the Loan Agreement applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
|
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1.4
|
Agreed forms of new, and supplements to, Finance Documents
|
References in Clause 1.1 (
Definitions
)
to any new or supplement to a Finance Document being in "agreed form" are to that Finance Document:
|
|
(a)
|
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower
and the Agent); or
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(b)
|
in any other form agreed in writing between the Borrower and the Agent acting with the authorisation
of the Majority Lenders or, where clause 29.2 (
Variations, waivers etc. requiring the agreement of all Lenders
) of the Loan
Agreement applies, all the Lenders.
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1.5
|
Designation as a Finance Document
|
The Borrower and the Agent designate
this Agreement as a Finance Document.
Unless provided to the contrary
in a Finance Document, a person who is not a Party has no right under the Third Parties Act to enforce or to enjoy the benefit
of any term of this Agreement.
|
|
2
|
Agreement of the Creditor Parties
|
|
|
2.1
|
Agreement of the Lenders
|
The Lenders agree, subject to
and upon the terms and conditions of this Agreement, to:
|
|
(i)
|
the sale of the Ship to the Guarantor;
|
|
|
(ii)
|
the accession of the Guarantor to the Loan Agreement as the replacement borrower;
|
|
|
(iii)
|
the release of the Borrower from all its obligations under the Loan Agreement and the release of
all Security Interests created by it in favour of the Security Trustee under the Finance Documents;
|
|
|
(iv)
|
the release of the Guarantor from all its liabilities and obligations to the Creditor Parties under
the Euronav Guarantee; and
|
|
|
(v)
|
take Security Interests over the Ship immediately upon ownership by the Guarantor as replacement
borrower.
|
|
|
2.2
|
Agreement of the Creditor Parties
|
The Creditor Parties agree, subject
to and upon the terms and conditions of this Agreement, to the consequential amendment of the Loan Agreement and the other Finance
Documents in connection with the matters referred to in Clause 2.1 (
Agreement of the Lenders
).
The agreement of the Lenders
and the other Creditor Parties contained in Clause 2.1 (
Agreement of the Lenders
) and Clause 2.2 (
Agreement of the Creditor
Parties
) shall have effect on and from the Effective Date.
The agreement of the Lenders
and the other Creditor Parties contained in Clause 2.1 (
Agreement of the Lenders
) and Clause 2.2 (
Agreement of the Creditor
Parties
) is subject to:
|
|
(a)
|
no Event of Default or Potential Event of Default occurring on the date of this Agreement and the
Effective Date or resulting from the occurrence of the Effective Date;
|
|
|
(b)
|
the representations to be made by the Borrower and each Security Party pursuant to clause 10 (
representations
and warranties
) of the Loan Agreement and those of the Borrower or any Security Party which are set out in the other Finance
Documents being true in all material respects on the date of this Agreement and the Effective Date;
|
|
|
(c)
|
none of the circumstances contemplated by clause 5.7 (
Market disruption
) of the Loan Agreement
has occurred and is continuing; and
|
|
|
(d)
|
the Agent having received all of the documents and other evidence listed in Schedule 2 (
Conditions
Precedent
) in form and substance satisfactory to the Agent on or before 3 April 2017 or such later date as the Agent may agree
with the Borrower.
|
|
|
4.1
|
Loan Agreement representations
|
The Borrower makes the representations
and warranties set out in clause 10 (
representations and warranties
) of the Loan Agreement, as amended and restated by this
Agreement and updated with appropriate modifications to refer to this Agreement, by reference to the circumstances then existing
on the date of this Agreement and on the Effective Date.
|
|
4.2
|
Finance Document representations
|
Each Security Party makes the
representations and warranties set out in the Finance Documents (other than the Loan Agreement) to which it is a party, as amended
and restated by this Agreement and updated with appropriate modifications to refer to this Agreement, by reference to the circumstances
then existing on the date of this Agreement and on the Effective Date.
|
|
5
|
Amendment and Restatement of Loan Agreement and other Finance Documents
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5.1
|
Specific amendments to the 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 and restated in the form of the Amended
and Restated Loan Agreement and, as so amended and restated, the Loan Agreement shall continue to be binding on each of the parties
to it in accordance with its terms as so amended and restated.
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5.2
|
Amendments to Agency and Trust Deed
|
With effect on and from the Effective
Date the Agency and Trust Deed shall be, and shall be deemed by this Agreement to be, amended as follows:
|
|
(a)
|
the definition of, and references throughout the Agency and Trust Deed 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 restated by this Agreement;
|
|
|
(b)
|
the definition of, and references throughout the Agency and Trust Deed to, the Borrower shall be
construed as if the same referred to Euronav NV as borrower;
|
|
|
(c)
|
the definition of, and references throughout the Agency and Trust Deed to, the Account Security
Deed shall be construed as if the same included reference to the New Accounts Security Deed;
|
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|
(d)
|
the definition of, and references throughout the Agency and Trust Deed to, the General Assignment
shall be construed as if the same included reference to the New General Assignment;
|
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|
(e)
|
the definition of, and references throughout the Agency and Trust Deed to, the Mortgage shall be
construed as if the same included reference to the New Mortgage;
|
|
|
(f)
|
the definition of, and references throughout the Agency and Trust Deed to, the Retention Account
Security Deed shall be deleted;
|
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(g)
|
by construing references throughout the Agency and Trust Deed to "this Agreement", "this
Deed" and other like expressions as if the same referred to such the Agency and Trust Deed as amended and supplemented by
this Agreement.
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5.3
|
Finance Documents to remain in full force and effect
|
The Finance Documents other than
the Existing Finance Documents shall remain in full force and effect:
|
|
(a)
|
in the case of the Loan Agreement as amended and restated pursuant to Clause 5.1 (
Specific amendments
to the Loan Agreement
);
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|
|
(b)
|
in the case of the Agency and Trust Deed as amended pursuant to Clause 5.2 (
Amendments to Agency
and Trust Deed
); and
|
|
|
(c)
|
such further or consequential modifications as may be necessary to give full effect to the terms
of this Agreement.
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6
|
Accession by Guarantor as new Borrower
|
With effect from the Effective
Date the Guarantor hereby agrees to accede to the terms of the Loan Agreement and to be bound by the terms thereof as if it were
the original borrower thereto (and each of the other parties hereto acknowledge such accession).
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(a)
|
The Borrower and each Security Party shall promptly, and in any event within the time period specified
by the Agent do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving
of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices,
instructions, acknowledgements, proxies and powers of attorney), as the Agent may specify (and in such form as the Agent may require
in favour of the Agent or its nominee(s)) to implement the terms and provisions of this Agreement.
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(b)
|
The Borrower and each Security Party shall promptly, and in any event within the time period specified
by the Security Trustee do all such acts (including procuring or arranging any registration, notarisation or authentication or
the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges,
notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Trustee may specify (and in such form
as the Security Trustee may require in favour of the Security Trustee or its nominee(s)):
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(i)
|
to create, perfect, vest in favour of the Security Trustee or protect the priority of the Security
or any right or any kind created or intended to be created under or evidenced by the Finance Documents as amended and restated
by this Agreement (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets
which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies
of the Security Trustee any Receiver or the Creditor Parties provided by or pursuant to the Finance Documents as amended and restated
by the Agreement or by law; and/or
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(ii)
|
to confer on the Security Trustee or confer on the Creditor Parties Security over any property
and assets of that Security Party located in any jurisdiction equivalent or similar to the Security intended to be conferred by
or pursuant to the Finance Documents as amended and restated by this Agreement;
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|
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(c)
|
The Borrower and each Security Party shall, take all such action as is available to it (including
making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance
of any Security conferred or intended to be conferred on the Security Trustee or the Creditor Parties by or pursuant to the Finance
Documents as amended and restated by this Agreement.
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7.2
|
Additional corporate action
|
At the same time as the Borrower
or a Security Party delivers to the Agent or Security Trustee any document executed under this Clause 7 (
Further Assurance
),
the Borrower or that Security Party shall deliver to the Agent or Security Trustee as applicable reasonable evidence that that
Security Party's execution of such document has been duly authorised by it.
Clause 21.3 (C
osts of variations,
amendments, enforcement etc.
) of the Loan Agreement, as amended and restated by this Agreement, applies to this Agreement as
if it were expressly incorporated in it with any necessary modifications.
Clause 31 (N
otices
) of
the Loan Agreement, as amended and restated by this Agreement, applies to this Agreement as if it were expressly incorporated in
it with any necessary modifications.
This Agreement may be executed
in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this
Agreement.
This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English law.
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(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection
with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual
obligation arising out of or in connection with this Agreement) (a "
Dispute
").
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(b)
|
The Security Parties accept that the courts of England are the most appropriate and convenient
courts to settle Disputes and accordingly no Security Party will argue to the contrary.
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(c)
|
This Clause 13.1 (
Jurisdiction
) is for the benefit of the Creditor Parties only. As a result,
no Creditor Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the
extent allowed by law, the Creditor Parties may take concurrent proceedings in any number of jurisdictions.
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(a)
|
Without prejudice to any other mode of service allowed under any relevant law, each Security Party
(other than a Security Party incorporated in England and Wales):
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(i)
|
irrevocably appoints Euronav (UK) Agencies Limited at its registered office for the time being,
presently at 99 Kings Road, London SW3 4PA, England as its agent for service of process in relation to any proceedings before the
English courts in connection with any Finance Document; and
|
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(ii)
|
agrees that failure by a process agent to notify the relevant Security Party of the process will
not invalidate the proceedings concerned.
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(b)
|
If any person appointed as an agent for service of process is unable for any reason to act as agent
for service of process, the Borrower (on behalf of all the Security Parties) must immediately (and in any event within five days
of such event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another
agent for this purpose.
|
This Agreement has been entered into
on the date stated at the beginning of this Agreement.
Schedule
1
The Lenders
|
Lender
|
|
Lending Office
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Scotiabank (Ireland) Designated
Activity Company
|
|
I.F.S.C. House
Custom House Quay
Dublin 1
Ireland
|
Schedule
2
Conditions Precedent
Documents of the kind specified
in Schedule 3 Part A paragraphs 2, 3 and 4 of the Loan Agreement in respect of the Borrower and Guarantor only.
|
|
2.1
|
Evidence that the Ship is registered on the Greek flag in the ownership of the Guarantor.
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|
2.2
|
Evidence that the Loan has been transferred from the Borrower to Euronav NV.
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2.3
|
A duly executed original of each of the New Finance Documents (and of each document to be delivered
under each of them).
|
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2.4
|
Documentary evidence that the New Mortgage has been duly registered as a valid first priority ship
mortgage in accordance with the laws of Greece.
|
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|
3.1
|
A legal opinion of Watson Farley Williams, legal advisers to the Agent and the Security Trustee
in England, substantially in the form distributed to the Lenders before signing this Agreement.
|
|
|
3.2
|
A legal opinion of Fransen Luyten, legal advisers to the Agent and the Security Trustee in Belgium,
substantially in the form distributed to the Lenders before signing this Agreement.
|
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3.3
|
Legal opinions of the legal advisers to the Agent and the Security Trustee in the jurisdiction
of the Approved Flag of the Ship and such other relevant jurisdictions as the Agent may require.
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4
|
Other documents and evidence
|
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|
4.1
|
A favourable opinion from an independent insurance consultant acceptable to the Lender on such
matters relating to the insurances for the Ship as the Lender may require.
|
|
|
4.2
|
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers
to be necessary or desirable (if it has notified the Borrower and Guarantor accordingly) in connection with the entry into and
performance of the transactions contemplated by this Agreement, the New Finance Documents or for the validity and enforceability
of any Finance Document as amended, restated by this Agreement.
|
|
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4.3
|
Evidence that the costs and expenses then due from the Borrower pursuant to Clause 8 (
Costs
and Expenses
) have been paid or will be paid by the Effective Date.
|
Execution
Pages
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BORROWER
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SIGNED
by
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)
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duly authorised
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)
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for and on behalf of
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)
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FIORANO SHIPHOLDING LIMITED
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)
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/s/ Joanna Goode
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in the presence of:
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)
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Joanna Goode
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Attorney-in-Fact
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Witness' signature:
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)
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/s/ Aimee Myhre
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Witness' name:
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)
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Aimee Myhre
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Witness' address:
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)
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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GUARANTOR
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SIGNED
by
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)
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duly authorised
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)
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for and on behalf of
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)
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EURONAV NV
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)
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/s/ Joanna Goode
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in the presence of:
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)
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Joanna Goode
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Attorney-in-Fact
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Witness' signature:
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)
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/s/ Aimee Myhre
|
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Witness' name:
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)
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Aimee Myhre
|
|
Witness' address:
|
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)
|
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Trainee Solicitor
|
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
|
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LENDERS
|
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SIGNED
by
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)
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duly authorised
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)
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for and on behalf of
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)
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Scotiabank (Ireland) DESIGNATED
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)
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ACTIVITY COMPANY
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)
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/s/ Emeline Yew
|
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in the presence of:
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)
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Emeline Yew
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Attorney in fact
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Witness' signature:
|
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)
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/s/ Aimee Myhre
|
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Witness' name:
|
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)
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Aimee Myhre
|
|
Witness' address:
|
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)
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Trainee Solicitor
|
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
|
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AGENT
|
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SIGNED
by
|
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)
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duly authorised
|
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)
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for and on behalf of
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)
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THE BANK OF NOVA SCOTIA
|
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)
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/s/ Emeline Yew
|
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in the presence of:
|
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)
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Emeline Yew
|
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Attorney in fact
|
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Witness' signature:
|
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)
|
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/s/ Aimee Myhre
|
|
Witness' name:
|
|
)
|
|
Aimee Myhre
|
|
Witness' address:
|
|
)
|
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Trainee Solicitor
|
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Watson Farley & Williams LLP
|
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15 Appold Street
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London EC2A 2HB
|
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SECURITY TRUSTEE
|
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SIGNED
by
|
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)
|
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duly authorised
|
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)
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for and on behalf of
|
|
)
|
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|
THE BANK OF NOVA SCOTIA
|
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)
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/s/ Emeline Yew
|
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in the presence of:
|
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)
|
|
Emeline Yew
|
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|
|
|
Attorney in fact
|
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|
|
|
|
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Witness' signature:
|
|
)
|
|
/s/ Aimee Myhre
|
|
Witness' name:
|
|
)
|
|
Aimee Myhre
|
|
Witness' address:
|
|
)
|
|
Trainee Solicitor
|
|
|
|
|
|
Watson Farley & Williams LLP
|
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|
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|
15 Appold Street
|
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London EC2A 2HB
|
Appendix
Part A
Form of Amended and Restated Loan Agreement marked to
indicate amendments to the Loan Agreement
Amendments are indicated as follows:
|
|
1
|
additions are indicated by underlined text; and
|
|
|
2
|
deletions are shown by strike-through text.
|
Execution Form Dated 23 October 2008 (as amended and supplemented
by a supplemental letter dated 30 January 2017 and amended and restated on 31 March 2017) EURONAV NV as Borrower and THE BANKS
AND FINANCIAL INSTITUTIONS Listed in Schedule 1 as Lenders and THE BANK OF NOVA SCOTIA as Agent and as Security Trustee LOAN AGREEMENT
relating to a $76,000,000 facility to finance m.t. "CAPTAIN MICHAEL" WATSON FARLEY
&
WILLlAMS
Index
Clause
Page 1 Interpretation1 2 Facility 15 3 Position of the Lenders 4716 4 Drawdown 17 5 Interest 18 6 Interest Periods2120 7 Default
Interest 21 8 Repayment and Prepayment 22 9 Conditions Precedent 24 10 Representations and Warranties 25 11 Financial Covenants2827
12 General Undertakings 2928 13 Corporate Undertakings 33 14 Insurance 34 15 Ship Covenants 3837 16 Security Cover 41 17 Payments
and Calculations 42 18 Application of Receipts 44 19 Application of Earnings 45 20 Events of Default4645 21 Fees and Expenses
50 22 Indemnities 51 23 No Set-off or Tax Deduction 53 24 Tax Gross Up and Indemnities 54 25 Illegality, etc 57 26 Increased Costs
58 27 Set-Off 60 28 Transfers and Changes in Lending Offices 61 29 Variations and Waivers 65 30 Bail-ln 66 31 Notices 32 Supplemental
68 33 Law and Jurisdiction 69 Schedules Schedule 1 Lenders and Commitments 70 Schedule 2 Drawdown Notice 71 Schedule 3 Condition
Precedent Documents 72 Part A 72 Part B 73 Part C 74 Schedule 4 Transfer Certificate 75 Schedule 5 Mandatory Cost 78 Schedule
6 Form of Certificate of Compliance 81 Execution Execution Page 8483
THIS AGREEMENT
is
made on 23 October 2008 (as amended and
supplemented by a supplemental letter dated 30 January
2017 and amended and
restated on [] 31
March
2017) PARTIES (1)
EURONAV
NV,
a company incorporated in Belgium whose registered office is at De Gerlachekaai 20, B-2000 Antwerp 1, Belgium (the
"Borrower")
(2) THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule
1 (Lenders and Commitments), as Lenders (3) THE BANK OF NOVA SCOTIA, as Agent; and (4) THE BANK OF NOVA SCOTIA, as Security Trustee.
BACKGROUND The Lenders have agreed to make available to the Original Borrower a facility of up to $76,000,000 for the purpose
of part financing the purchase price of the Ship constructed by the Builder. The Borrower has purchased the Ship from the Original
Borrower as the borrower under this Agreement. IT IS AGREED as follows: 1 INTERPRETATION 1.1 Definitions Subject to Clause 1.5
(General Interpretation),
in this Agreement:
"Account
Bank" means Scotiabank Europe plc acting through its office i
e 201 Bishopsgate,
6
th
floor.
London
EC2M 3NS,
England.
"Account
Security Deed"
means a deed creating security in respect of the Earnings Account in the Agreed Form.
"Advance"
means the principal amount of each borrowing by the Borrower under this Agreement.
"Agency
and Trust Agreement"
means the agency and trust agreement dated the same date as this Agreement and made between the
same parties.
"Agent"
means The Bank of Nova Scotia, a company registered
in Canada and acting in such capacity through its office at is
e201 Bishopseate,
ie
6th
Floor.
London
EC2M 3NS,
England, or any successor of it appointed under clause
5 of the Agency and Trust Agreement.
"Agreed Form"
means in relation to
any document, that document in the form approved in writing by the Agent (acting with the instructions of all the Lenders) and
mutually agreed with the Borrower or as otherwise approved in accordance with any other approval procedure specified in any relevant
provision of any Finance Document.
"Anti-Corruption Laws"
means the England
and Wales Bribery Act
2010,
the United States Foreign Corrupt Practices Act
1977
or other applicable anti-corruption legislation in any other jurisdictions.
"Approved Flag"
means
Greek flag or such other flag as the Agent (acting with the authorisation of all the Lenders) may approve as the flag on which
the Ship shall be registered at delivery.
"Approved Manager"
means [Euronav
Ship Management (Hellas) Ltd.] or any of its subsidiaries or any other company incorporated by the Borrower with the prior written
consent of the Agent (acting with the authorisations of the Majority Lenders) not to be unreasonably withheld or delayed.
"Availability
Period"
means the period commencing on the date of this Agreement and ending on: (a) the Final Availability Date;
or (b) if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated.
"Bail-ln
Action"
means the exercise of any Write-down and Conversion Powers. Bl-llai
"Bail-ln
Legislation" means
in relation to an EEA Member Country which has implemented, or which at any time implements, Article
55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms,
the relevant implementing law or regulation as described in the EU Bail-ln Legislation Schedule from time to time iellla oeil
ll
"Builder"
means Samsung Heavy Industries Co., Ltd., a company incorporated
in the Republic of Korea whose registered office is at Samsung Life Insurance Seocho Tower 1321-15, Seocho- Dong, Seocho-Gu, Seoul,
Korea.
"Business Day"
means a day on which banks are open in London, ssel
sAntwerp,
Dublin and in respect of a day on which a payment is required to be made under a Finance Document, also in New York City.
"Change of Control" means, if 2 or more persons acting in concert or any individual
person in each case other than the Permitted Holders:
(a)
acquires legally and/or
beneficially, and either directly or indirectly, in excess of 50 per cent, of the issued share capital or voting rights of the
Borrower: or
(b)
has the right or the ability to control, either directly or indirectly,
the affairs or composition of the majority of the board of directors (or equivalent) of the Borrower. "Charter"
means
any time charter in respect of the Ship iiil
(Charter Top-Up Amount)for a period of not less
than three years and on terms (including rates), and to a charterer, in each case acceptable to the Lenders in their absolute
discretion
.
"Charter Assignment"
means an assignment of any Charter
and any supporting guarantee for the Charter (if any) in the Agreed Form.
"Code"
means
the US Internal Revenue Code of 1986.
"Commitment"
means, in relation to
a Lender, the amount set opposite its name in Schedule 1
(Lenders and Commitments),
or, as the case may require, the amount specified in the relevant Transfer Certificate, as that amount may be reduced, cancelled
or terminated in accordance with this Agreement.
"Contract Price"
means
the contract price paid by the Original Borrower to the Builder under the Shipbuilding Contract which, as of 23 October 2008 was
$95,830,000.
"Contractual Currency"
has the meaning given in Clause 22.4
(Currency indemnity). "Contribution"
means, in relation to a Lender, the
part of the Loan which is owing to that Lender.
"Creditor Party"
means
the Agent, the Security Trustee or any Lender, whether as at the date of this Agreement or at any later time.
"Delivery
Date"
means the date on which the Ship was delivered to, and accepted by, the Original Borrower under the Shipbuilding
Contract.
"Dollars"
and "$" means the lawful currency for the
time being of the United States of America.
"Drawdown Date"
means, in relation
to each Advance, the date requested by the Borrower for the Advance to be made, or (as the context requires) the date on which
the Advance is actually made.
"Drawdown Notice"
means a notice in the form
set out in Schedule 2
(Drawdown Notice)
(or in any other form which the Agent approves
or reasonably requires).
"Earnings"
means all moneys whatsoever which are
now, or later become, payable (actually or contingently) to the Borrower or the Security Trustee and which arise out of the use
or operation of the Ship, including (but not limited to): (a) except to the extent that they fall within paragraph (b); (i) all
freight, hire and passage moneys; (ii) compensation payable to the Borrower or the Security Trustee in the event of requisition
of the Ship for hire; (iii) remuneration for salvage and towage services; (iv) demurrage and detention moneys; (v) damages for
breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Ship; and (vi)
all moneys which are at any time payable under any Insurances in respect of any loss; and
(b) if and whenever the Ship is employed on terms whereby any
moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of the net receipts
of the relevant pooling or sharing arrangement which is attributable to the Ship.
"Earnings
Account"
means an account in the name of the Borrower with the Account Bank in London designated "[]
EURONAV
- Earnings Account", or any other account (with that or another office of the Account Bank or with a bank or financial
institution other than the Account Bank) which is designated by the Agent as the Earnings Account for the purposes of this Agreement.
"Environmental Claim" means: (a) any claim by any governmental, judicial or regulatory authority which arises out of
an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or (b) any claim by
any other person which relates to an Environmental Incident or to an alleged Environmental Incident, and
"claim"
means a claim for damages, compensation, fines, penalties or any other payment of any kind whether or not similar to the
foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any
form of enforcement or regulatory action, including the arrest or attachment of any asset. "Environmental Incident"
means: (a) any release of Environmentally Sensitive Material from the Ship; or (b) any incident in which Environmentally Sensitive
Material is released from a vessel other than the Ship and which involves a collision between the Ship and such other vessel or
some other incident of navigation or operation, in either case, in connection with which the Ship is actually or reasonably likely
to be arrested, attached, detained or injuncted and/or the Ship and/or the Borrower and/or any operator or manager of the Ship
is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or (c) any other incident in which
Environmentally Sensitive Material is released otherwise than from the Ship and in connection with which the Ship is actually
or reasonably likely to be arrested and/or where the Borrower and/or any operator or manager of the Ship is at fault or allegedly
at fault or otherwise liable to any legal or administrative action.
"Environmental
Law"
means any law relating to pollution or protection of the environment, to the carriage of Environmentally Sensitive
Material or to actual or threatened releases of Environmentally Sensitive Material.
"Environmentally
Sensitive Material"
means oil, oil products and any other substance (including any chemical, gas or other hazardous
or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous;
"EU
Bail-ln Legislation Schedule"
means the document described as such and published by the Loan Market Association (or
any successor person) from time to time.
"Event of Default"
means any of
the events or circumstances described in Clause 20.1
(Events of Default).
"Facility Office"
means
the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that
date, by not less than 5 Business Days' written notice) as the office or offices through which it will perform its obligations
under this Agreement. "FATCA" means: (a) sections 1471 to 1474 of the Code or any associated regulations; (b) any treaty,
law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction,
which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or (c) any
agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the
US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. "FATCA
Application Date" means: (a) in relation to a "withholdable payment" described in section 1473(l)(A)(i) of the
Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; (b) in relation
to a "withholdable payment" described in section 1473(l)(A)(ii) of the Code (which relates to "gross proceeds"
from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or (c) in relation
to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above,
1 January 2019, or, in each case, such other date from which such payment may become subject to a deduction or withholding required
by FATCA as a result of any change in FATCA after the date of this Agreement.
"FATCA
Deduction"
means a deduction or withholding from a payment under a Finance Document required by FATCA.
"FATCA
Exempt Party"
means a Party that is entitled to receive payments free from any FATCA Deduction.
"Fee
Letter"
means any letter or letters between the Agent and the Borrower setting out any of the fees referred to in
Clause 21
(Fees and Expenses).
"Final Availability Date" means: (a) 26
February 2012; or (b) in the event of arbitration proceedings in connection with the Shipbuilding Contract, with the prior consent
of the Agent (with the authorisation of the Majority Lenders) which is not to be unreasonably withheld or delayed, the day falling
365 days after the commencement of such arbitration (if later than 26 February 2012); or (c) such later date as the Agent (with
the authorisation of the Majority Lenders) may agree in writing. "Finance Documents" means:
(a) this Agreement; (b) the Agency and Trust Agreement; (c)
the General Assignment; (d) the Charter Assignment (if any); (e) the Mortgage; (f) the Account Security Deed; (g) the Fee Letter;
(h) any Transfer Certificate; (i) any other document (whether creating a Security Interest or not) which is executed at any time
by the Borrower or any other person as security for, or to establish any form of subordination or priorities arrangement in relation
to, any amount payable to the Lenders under this Agreement and/or any of the other documents referred to in this definition; and
(j) any other document designated as such by the Agent and the Borrower.
"Financial
Indebtedness"
means, in relation to a person (the
"debtor"),
a
liability of the debtor: (a) for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the
debtor; (b) under any loan stock, bond, note or other security issued by the debtor; (c) under any acceptance credit, guarantee
or letter of credit facility or dematerialised equivalent made available to the debtor; (d) under a financial lease, a deferred
purchase consideration arrangement or any other agreement having the commercial effect of a borrowing or raising of money by the
debtor; (e) under any foreign exchange transaction, any interest or currency swap or any other kind of derivative transaction
entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities,
the liability of the debtor for the net amount; or (f) under a guarantee, indemnity or similar obligation entered into by the
debtor in respect of a liability of another person which would fall within paragraphs (a) to (e) if the references to the debtor
referred to the other person.
"General Assignment"
means a general assignment
of the Earnings, the Insurances and any Requisition Compensation in the Agreed Form.
"Group"
means the Borrower and each of its Subsidiaries.
"Holding Company"
means
in relation to a person, any other person in respect of which it is a Subsidiary.
"IFRS"
means international accounting standards within the meaning of the IAS Regulations 1606/2002 to the extent applicable to
the relevant financial statements.
"Insurances" means: (a) all policies and contracts
of insurance, including entries of the Ship in any protection and indemnity or war risks association, which are effected in respect
of the Ship, her Earnings or otherwise in relation to her; and (b) all rights and other assets relating to, or derived from, any
of the foregoing, including any rights to a return of a premium.
"Interest Period"
means a period determined in accordance with Clause 6
(Interest Periods). "ISM
Code"
means the International Safety Management Code (including the guidelines on its implementation), adopted by
the International Maritime Organisation, as the same may be amended or supplemented from time to time (and the terms
"safety
management system", "Safety Management Certificate"
and
"Document
of Compliance"
have the same meanings as are given to them in the ISM Code).
"ISPS
Code"
means the International Ship and Port Facility Security Code as adopted by the International Maritime Organisation,
as the same may be amended or supplemented from time to time.
"ISSC"
means
a valid and current International Ship Security Certificate issued under the ISPS Code.
"Lender"
means a bank or financial institution listed in Schedule 1
(Lenders and Commitments)
and acting through its branch indicated in Schedule 1 (
Lenders and Commitments)
(or through another branch notified to the Borrower under Clause 28.14
(Change of lending
office)
or its transferee, successor or assign, which in each case has not ceased to be a party in accordance with the
terms of this Agreement.
"LIBOR"
means, in relation to the Loan or any
part of the Loan: (a) the applicable Screen Rate as of the Specified Time for dollars and for a period equal in length to the
Interest Period of the Loan or that part of the Loan; or (b) as otherwise determined pursuant to Clause 5.6
(Absence
of quotations by Reference Banks),
and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.
"Loan"
means a loan made or to be made under this Agreement or the principal
amount for the time being outstanding under this Agreement.
"Loan Amount A" "Major
Casualty"
means any casualty to the Ship in respect of which the claim or the aggregate of the claims against all
insurers, before adjustment for any relevant franchise or deductible exceeds $5,000,000 or the equivalent in any other currency.
"Majority Lenders" means: (a) before any Advance has been made, Lender or Lenders whose Commitments total more than
66.66 per cent, of the Total Commitments; and (b) at any other time, Lender or Lenders whose Contributions in the Loan outstanding
total more than 66.66 per cent, of all the Loan then outstanding.
"Mandatory Cost"
means
the percentage rate, which represents the cost to the Lenders, relative to the Loan, of compliance with the requirements of the
Bank of England, the Financial Services Authority or any other regulatory authority, as determined by the Agent in accordance
with the formula detailed in Schedule 5
(Mandatory Cost). "Margin"
means:
1.95 per cent, per annum. "Market Disruption Event"
has the meaning given
to that term in paragraph 5(b) of Clause 5.7
(Market disruption). "Market Value"
means the market value of the Ship as determined in accordance with Clause
16.3
(Valuation of Ship).
"Maturity
Date"
means:
the date falling 8 years after the Delivery Date or. if earlier.
26 February 2020. "Mortgage"
means the first preferred Greek ship mortgage or the first priority statutory ship
mortgage or first preferred ship mortgage and, if applicable, collateral deed of covenant in the form appropriate for the flag
of the Ship in the event that the Approved Flag is not Greek flag in the Agreed Form.
"Negotiation
Period" has the meaning given in Clause 5.9
(Negotiation of alternative rate of interest).
"Notifying
Lender"
has the meaning given in Clause 25.1
(Illegality)
or Clause 26.1
(increased costs)
as the context requires.
"Original
Borrower"
means Fiorano Shipholding Limited, a company incorporated in Hong Kong whose registered office is at Room
330
62503-05,
32nd
25
th
Floor,
Harcourt House. Tower TwoNo.39 Gloucester Road. No 89
ee
Wanchai,
Hong Kong.
"Party"
means a party to this Agreement.
"Payment
Currency"
has the meaning given in Clause 22.4
(Currency indemnity).
"Permitted Security Interests" means: (a) Security Interests created by the Finance Documents;
(b) liens for unpaid master's and crew's wages in accordance
with usual maritime practice; (c) liens for salvage; (d) liens arising by operation of law for not more than 2 months' prepaid
hire under any charter in relation to the Ship not prohibited by this Agreement; (e) liens for master's disbursements incurred
in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation,
repair or maintenance of the Ship or in the ordinary course of business of the Borrower, provided such liens do not secure amounts
more than 30 days overdue (unless the overdue amount is being contested by the Borrower in good faith by appropriate steps) and
subject, in the case of liens for repair or maintenance, to paragraph (f) of Clause 15.12
(Restrictions
on chartering, appointment of managers etc.);
(f) any Security Interest created in favour of a plaintiff or defendant in
any proceedings or arbitration as security for costs and expenses where the Borrower is actively prosecuting or defending such
proceedings or arbitration in good faith; and (g) Security Interests arising by operation of law in respect of taxes which are
not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate
reserves have been made. "Pertinent Document" means: (a) any Finance Document; (b) any policy or contract of insurance
contemplated by or referred to in Clause 14
(Insurance)
or any other provision of
this Agreement or another Finance Document; (c) any other document contemplated by or referred to in any Finance Document; and
(d) any document which has been or is at any time sent by or to a Servicing Bank in contemplation of or in connection with any
Finance Document or any policy, contract or document falling within paragraphs (b) or (c).
"Permitted
Holders" means each of Saverco and Victrix (and (in each case) any parallel vehicle thereof and their respective alternative
investment vehicles) and their affiliates. "Pertinent Jurisdiction",
in relation to a company, means: (a) England
and Wales; (b) the country under the laws of which the company is incorporated or formed; (c) a country in which the company has
the centre of its main interests or in which the company's central management and control is or has recently been exercised; (d)
a country in which the overall net income of the company is subject to corporation tax, income tax or any similar tax; (e) a country
in which assets of the company (other than securities issued by, or loans to, related companies) having a substantial value are
situated, in which the company maintains a branch or permanent place of business, or in which a Security Interest created by the
company must or should be registered in order to ensure its validity or priority; and
(f) a country the courts of which have jurisdiction to make
a winding up, administration or similar order in relation to the company, whether as main or territorial or ancillary proceedings
or which would have such jurisdiction if their assistance were requested by the courts of a country referred to in paragraphs
(b) or (c) above. "Pertinent Matter" means: (a) any transaction or matter contemplated by, arising out of, or in connection
with a Pertinent Document; or (b) any statement relating to a Pertinent Document or to a transaction or matter falling within
paragraph (a); and covers any such transaction, matter or statement, whether entered into, arising or made at any time before
the signing of this Agreement or on or at any time after that signing.
"Potential Event
of Default"
means an event or circumstance which, with the giving of any notice, the lapse of time, a reasonable determination
of the Majority Lenders and/or the satisfaction of any other condition, would constitute an Event of Default.
"Quotation
Date"
means, in relation to any Interest Period (or any other period for which an interest rate is to be determined
under any provision of a Finance Document), the day on which quotations would ordinarily be given by leading banks in the London
Interbank Market for deposits in the currency in relation to which such rate is to be determined for delivery on the first day
of that Interest Period or other period.
"Reference Banks"
means, subject
to Clause 28.16
(Replacement of Reference Bank),
the London, Dublin or Toronto (as
the case may be) branches of each of the Lenders or such other banks as may be appointed by the Agent in consultation with the
Borrower.
"Relevant Interbank Market"
means the London Interbank Market.
"Relevant Person"
has the meaning given in Clause 20.9
(Relevant
Persons). "Repayment Date"
means a date on which a repayment is required to be made under Clause 8
(Repayment
and Prepayment). "Requisition Compensation"
includes all compensation or other moneys payable by reason of any
act or event such as is referred to in paragraph (b) of the definition of "Total Loss".
"Resolution
Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
"Restricted Party"
means a person: (a) that is listed on any Sanctions List (whether designated by name or by reason of being included in a class
of person); (b) that is domiciled, registered as located or having its main place of business in, or is incorporated under the
laws of, a country which is subject to Sanctions Laws which attach legal effect to being domiciled, registered as located or having
its main place of business in such country; or (c) that is directly or indirectly owned or controlled by a person referred to
in paragraph (a) and/or (b) above; or (d) with which any member of the Group is prohibited from dealing or otherwise engaging
in a transaction with by any Sanctions Laws;
"Sanctions Authority"
means
the Norwegian State, the United Nations, the United Kingdom, the European Union, the member states of the European Union, the
United States of America and Canada and any authority acting on behalf of any of them in connection with Sanctions Laws.
"Sanctions
Laws"
means the economic or financial sanctions laws and/or regulations, trade embargoes, prohibitions, restrictive
measures, decisions, executive orders or notices from regulators implemented, adapted, imposed, administered, enacted and/or enforced
by any Sanctions Authority.
"Saverco" means Saverco NV, a company incorporated
in Belgium whose registered office is at de Gerlachekaai 20, B-2000 Antwerp. Belgium. "Sanctions List"
means
any list of persons or entities published in connection with Sanctions Laws by or on behalf of any Sanctions Authority as amended,
revised, supplemented or substituted from time to time.
"Screen Rate"
means
the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the
administration of that rate) for dollars for the relevant period displayed (before any correction, recalculation or republication
by the administrator) on page LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which
displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in
place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying
the relevant rate after consultation with the Borrower.
"Secured Liabilities"
means all monies from time to time due or owing, and all obligations and other actual or contingent liabilities incurred
by the Borrower, the Security Parties or any of them to any Creditor Party, at the date of this Agreement or at any later time
or times, in whatever currency, whether due, owing or incurred alone or jointly with others or as principal, surety or otherwise
under or in connection with any Finance Document or any judgment relating to any Finance Document; and for this purpose, there
shall be disregarded any total or partial discharge of these liabilities, or variation of their terms, which is effected by, or
in connection with, any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country. "Security
Interest" means: (a) a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security
interest of any kind; (b) the security rights of a plaintiff under an action
in rem;
and (c) any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is
similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A; but
this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business
of a bank or financial institution.
"Security Party"
means any e person
(except the Borrower or a Creditor Party) who, as a surety or mortgagor, as a party to any subordination or priorities arrangement,
or in any similar capacity, executes a document falling within the definition of "Finance Documents".
"Security
Period"
means the period commencing on the date of this Agreement and ending on the date on which the Agent notifies
the Borrower, the Security Parties and the Creditor Parties that:
(a) all amounts which have become due for payment by the Borrower
or any Security Party under the Finance Documents have been paid; (b) no amount is owing or has accrued (without yet having become
due for payment) under any Finance Document; (c) neither the Borrower nor any Security Party has any future or contingent liability
under Clause 21
(Fees and Expenses), 22 (Indemnities)
or 23
(No
Set-off or Tax Deduction)
or any other provision of this Agreement or another Finance Document; and (d) the Agent, the
Security Trustee and the Majority Lenders do not consider that there is a significant risk that any payment or transaction under
a Finance Document would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy
of the Borrower or a Security Party or in any present or possible future proceeding relating to a Finance Document or any asset
covered (or previously covered) by a Security Interest created by a Finance Document. "Security Trustee" means The Bank
of Nova Scotia, a company incorporated in Canada and acting in such capacity through its office at i
201
Bishopseate,
Square
6th Floor,
London
EC2M
3NS,
England or any successor of it is appointed under clause 5 of the Agency and Trust Agreement. "Servicing Bank"
means the Agent or the Security Trustee. "Ship" means the Suezmax tanker with hull no. 1893 of 8,
157,648.1
dwt, named m.v. "CAPTAIN MICHAEL" registered in the name of the Borrower under an Approved Flag. "Shipbuilding
Contract" means the Shipbuilding Contract dated 25 July 2008 made between the Builder and the Original Borrower for the construction
by the Builder of the Ship and its purchase by the Borrower as supplemented and amended from time to time. "Specified Time"
means a day or time determined as follows: LIBOR is fixed Quotation Day as of 11:00 am London time Reference Bank Rate calculated
by reference to Noon on the Quotation Day available quotations in accordance with Clause
5.6
(Absence of quotations by
Reference Banks) "Total Commitments" means the aggregate of the Commitments of all the Lenders being the Loan ilse
(Charter
Top Up Amount),
-. "Total Loss" means: (a) actual, constructive, compromised, agreed or arranged total loss of
the Ship; (b) any expropriation, confiscation, requisition or acquisition of the Ship, whether for full consideration, a consideration
less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official
authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition
for hire for a fixed period not exceeding 1 year without any right to an extension) unless it is within 3 months redelivered to
the Borrower's full control; and
(c) any arrest, capture, seizure or detention of the Ship (including
any hijacking or theft) unless it is within 3 months redelivered to the Borrower's full control. "Total Loss Date" means:
(a) in the case of an actual loss of the Ship, the date on which it occurred or, if that is unknown, the date when the Ship was
last heard of; (b) in the case of a constructive, compromised, agreed or arranged total loss of the Ship, the earliest of: (i)
the date on which a notice of abandonment is given to the insurers; and (ii) the date of any compromise, arrangement or agreement
made by or on behalf of the Borrower with the Ship's insurers in which the insurers agree to treat the Ship as a total loss; and
(c) in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the
event constituting the total loss occurred.
"Transfer Certificate"
has
the meaning given in Clause 28.2
(Transfer by a Lender). "Trust Property"
has
the meaning given in clause 3.1 of the Agency and Trust Agreement.
"VAT"
means:
(a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive
2006/112); and (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution
for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
"Victrix"
means Victrix NV, a company incorporated in Belgium whose registered office is at Le Grellelei 20, 2600 Berchem, Belgium.
"Write-down and Conversion Powers" means: (a) in relation to any Bail-ln Legislation described in the EU Bail-ln Legislation
Schedule from time to time, the powers described as such in relation to that Bail-ln Legislation in the EU Bail-ln Legislation
Schedule ; and (b) in relation to any other applicable Bail-ln Legislation: (i) any powers under that Bail-ln Legislation to cancel,
transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of
a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a
person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares,
securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect
as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under
that Bail-ln Legislation that are related to or ancillary to any of those powers; and (ii) any similar or analogous powers under
that Bail-ln Legislation.
1.2 Construction of certain terms In this Agreement:
"administration
notice"
means a notice appointing an administrator, a notice of intended appointment and any other notice which is
required by law (generally or in the case concerned) to be filed with the court or given to a person prior to, or in connection
with, the appointment of an administrator.
"approved"
means, for the purposes
of Clause 14
(Insurance),
approved in writing by the Agent;
"asset"
includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues
or other payment.
"company"
includes any partnership, joint venture and
unincorporated association.
"consent"
includes an authorisation, consent,
approval, resolution, licence, exemption, filing, registration, notarisation and legalisation.
"contingent
liability"
means a liability which is not certain to arise and/or the amount of which remains unascertained.
"continuing"
means, in relation to any Event of Default, the Event of Default has not been remedied to the satisfaction of, or waived
by the Majority Lenders.
"document"
includes a deed; also a letter or fax.
"excess risks"
means the proportion of claims for general average, salvage
and salvage charges not recoverable under the hull and machinery policies in respect of the Ship in consequence of its insured
value being less than the value at which the Ship is assessed for the purpose of such claims.
"expense"
means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable value added
or other tax.
"law"
includes any order or decree, any form of delegated
legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the
European Commission, the United Nations or its Security Council.
"legal or administrative
action"
means any legal proceeding or arbitration and any administrative or regulatory action or investigation.
"liability"
includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety
or otherwise.
"months"
shall be construed in accordance with Clause 1.3
(Meaning of "month"). "obligatory insurances"
means all insurances
effected, or which the Borrower is obliged to effect, under Clause 14 (I
nsurance)
or any other provision of this Agreement or another Finance Document.
"parent company"
has the meaning given in Clause 1.4
(Meaning of "subsidiary"). "person"
includes any company; any state, political sub-division of a state and local or municipal authority; and any international
organisation.
"policy",
in
relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance
or its terms.
"protection and indemnity risks"
means the usual risks covered
by a protection and indemnity association managed in London, including pollution risks and the 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 in them of clause 6 of the International Hull Clauses (1/11/02 or 1/11/03), clause 8 of the Institute
Time Clauses (Hulls) (1/11/1995) or clause 8 of the Institute Time Clauses (Hulls) (1/10/83) or the Institute Amended Running
Down Clause (1/10/71) or any equivalent provision.
"regulation"
includes
any regulation, rule, official directive, request or guideline whether or not having the force of law of any governmental, intergovernmental
or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation.
"subsidiary"
has the meaning given in Clause
1.4 (Meaning of "subsidiary"). "tax"
includes any present or future tax, duty, impost, levy or charge of any kind which is imposed by any state, any political
sub-division of a state or any local or municipal authority (including any such imposed in connection with exchange controls),
and any connected penalty, interest or fine.
"war risks"
includes the risk
of mines and all risks excluded by clause 29 of the International Hull Clauses (1/11/02 or 1/11/03) or clause 24 of the Institute
Time Clauses (Hulls)(l/ll/95) or clause 23 of the Institute Time Clauses (Hulls) (1/10/83). 1.3 Meaning of "month" A
period of one or more "months" ends on the day in the relevant calendar month numerically corresponding to the day of
the calendar month on which the period started
("the numerically corresponding day"),
but: (a) on the Business Day following the numerically corresponding day if the numerically corresponding day is not a
Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding
day; or (b) on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar
month or if the last calendar month of the period has no numerically corresponding day, and
"month"
and
"monthly"
shall be construed accordingly. 1.4 Meaning of "subsidiary"
A company (S) is a subsidiary of another company (P) if: (a) a majority
of
the issued
shares in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly
owned by P or are indirectly attributable to P; or (b) P has direct or indirect control over a majority of the voting rights attaching
to the issued shares of S; or (c) P has the direct or indirect power to appoint or remove a majority of the directors of S; or
(d) P otherwise has the direct or indirect power to ensure that the affairs of S are conducted in accordance with the wishes of
P;
and any company of which S is a subsidiary is a parent company
of S. 1.5 General Interpretation In this Agreement: (a) references to, or to a provision of, a Finance Document or any other document
are references to it as amended or supplemented, whether before the date of this Agreement or otherwise; (b) references to, or
to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this
Agreement or otherwise; (c) words denoting the singular number shall include the plural and vice versa; and (d) Clauses 1.1
(Definitions)
to 1.5
(General Interpretation)
apply unless the contrary intention appears.
1.6 Headings In interpreting a Finance Document or any provision of a Finance Document, all clause, sub- clause and other headings
in that and any other Finance Document shall be entirely disregarded. 2 FACILITY 2.1 Amount of facility Subject to l
(Charter
Top Up Amount)
the other provisions of this Agreement, the Lenders shall make available to the Borrower a term loan facility
in an aggregate amount equal to the Total Commitments to enable the Borrower to finance its acquisition of the Ship by 5 Advances
as follows: (a) a first Advance of up to $14,250,000 to enable the Borrower to refinance the first pre-delivery instalment of
the Contract Price under the Shipbuilding Contract paid to the Builder upon signing of the Shipbuilding Contract; (b) a second
Advance of up to $7,125,000 to enable the Borrower to meet the second pre-delivery instalment of the Contract Price under the
Shipbuilding Contract to be paid to the Builder on the date falling 12 calendar months after the date of the Shipbuilding Contract;
(c) a third Advance of up to $7,125,000 to enable the Borrower to meet the third pre-delivery instalment of the Contract Price
under the Shipbuilding Contract to be paid to the Builder upon keel laying; (d) a fourth Advance of up to $7,125,000 to enable
the Borrower to meet the fourth pre-delivery instalment of the Contract Price under the Shipbuilding Contract to be paid to the
Builder upon launching; (e) a fifth Advance of up to $35,625,000 to enable the Borrower to meet the final instalment of the Contract
Price under the Shipbuilding Contract to be paid to the Builder upon delivery of the Ship. 2.2 Transfer of Loan The Loan was transferred
from the Original Borrower to the Borrower pursuant to an agreement dated []
the same date
as this Agreement was amended and restated and
entered into between the Original Borrower and the Borrower. This transfer
was approved by the Creditor Parties.
2.3
Lenders'
participations in Loan Subject to the other provisions of this Agreement, each Lender shall participate in each Advance in the
proportion which, as at the relevant Drawdown Date, its Commitment bears to the Total Commitments. No Creditor Party is bound
to monitor or verify the application of any amount borrowed pursuant to this Agreement. 2.4 Purpose of Loan The Borrower undertakes
with each Creditor Party to use each Advance only for the purpose stated in the preamble to this Agreement. 3 POSITION OF THE
LENDERS 3.1 Interests of Lenders several The rights of the Lenders under this Agreement are several. 3.2 Individual Lender's right
of action Subject to 3.3
(Proceedings by individual Lender requiring Majority Lender consent),
each Lender shall be entitled to sue for any amount which has become due and payable by the Borrower to it under this Agreement
without joining the Agent, the Security Trustee or any other Lender as additional parties in the proceedings. 3.3 Proceedings
by individual Lender requiring Majority Lender consent No Lender may commence proceedings against the Borrower or any Security
Party in connection with a Finance Document without the prior consent of the Majority Lenders.
3.4 Obligations of Lenders several The obligations of the Lenders
under this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement shall not result in:
(a) the obligations of the other Lenders being increased; nor (b) the Borrower, any Security Party or any other Lender being discharged
(in whole or in part) from its obligations under any Finance Document, and in no circumstances shall a Lender have any responsibility
for a failure of another Lender to perform its obligations under this Agreement. 4 DRAWDOWN 4.1 Request for Advance Subject to
the following conditions, the Original Borrower requested an Advance to be made by ensuring that the Agent received a completed
Drawdown Notice not later than 11.00 a.m. (London time) 3 Business Days prior to the intended Drawdown Date or such shorter period
as the Agent and the Borrower mutually agreed. 4.2 Availability The conditions referred to in Clause 4.1 (
Request
for Advance)
were that: (a) a Drawdown Date had to be a Business Day within the Availability Period (b) the amount of the
Advance requested complied with Clause 2.1
(Amount of facility);
(c) each Advance
in relation to
the
Loan should not exceed 75 per cent, of the amount of the instalment
under the Shipbuilding Contract which was being financed by that Advance; (d) the aggregate amount of the Advances should not
exceed the Total Commitments; (e) (f)the proposed Interest Period complied with Clause 6
(Interest
Periods);
and (f) (g)the conditions set out in Clause 9.1
(Documents, fees and no
default)
were met. 4.3 Notification to Lenders of receipt of a Drawdown Notice The Agent must have promptly notified the
Lenders that it had received a Drawdown Notice and must have informed each Lender of: (a) the amount of the Advance and the Drawdown
Date; (b) the amount of that Lender's participation in the Advance; and (c) the duration of the first Interest Period.
4.4
Drawdown
Notice irrevocable A Drawdown Notice must have been signed by a director or officer or an authorised person of the Original Borrower;
and once served, a Drawdown Notice could not be revoked without the prior consent of the Agent, acting on the authorisation of
the Majority Lenders. 4.5 Lenders to make available Contributions Subject to the provisions of this Agreement, and in particular
Clause 9 (
Conditions Precedent),
each Lender, on and with value on each Drawdown
Date, made available to the Agent for the account of the Original Borrower the amount due from that Lender on that Drawdown Date
under Clause 2.2. 4.6 Disbursement of Advance Subject to the provisions of this Agreement, the Agent on each Drawdown Date paid
to the Original Borrower the amounts which the Agent received from the Lenders under Clause 4.5
(Lenders
to make available Contributions);
and that payment to the Original Borrower was made: (a) to the account of the Builder
which the Original Borrower specified in the Drawdown Notice; and (b) in the like funds as the Agent received the payments from
the Lenders. 4.7 Disbursement of Advance to third party The payment by the Agent under Clause 4.6
(Disbursement
of Advance)
to the Builder constituted the making of the Advance and the Original Borrower at that time and the Borrower
from the date of this amended and restated Agreement became indebted, as principal and direct obligor, to each Lender in an amount
equal to that Lender's Contribution. 4.8 Cancellation of Total Commitments The
Any undrawn
portion of the T
otal Commitments shall have been immediately cancelled at the end of the Availability Period. 5 INTEREST
5.1 Payment of normal interest Subject to the provisions of this Agreement, interest on the Loan in respect of each Interest Period
shall be paid by the Borrower on the last day of that Interest Period. 5.2 Normal rate of interest Subject to the provisions of
this Agreement, the rate of interest on the Loan in respect of an Interest Period shall be the aggregate of: (a) the Margin; (b)
the Mandatory Cost, if any; and (c) LIBOR for that Interest Period.
5.3
Payment
of accrued interest In the case of an Interest Period longer than 3 months, accrued interest shall be paid every 3 months during
that Interest Period and on the last day of that Interest Period. 5.4 Notification of Interest Periods and rates of normal interest
The Agent shall notify the Borrower and each Lender of: (a) each rate of interest; and (b) the duration of each Interest Period,
as soon as reasonably practicable after each is determined. 5.5 Obligation of Reference Banks to quote A Lender which is a Reference
Bank shall use all reasonable efforts to supply the quotation required of it for the purposes of fixing a rate of interest under
this Agreement. 5.6 Absence of quotations by Reference Banks If any Reference Bank fails to supply a quotation, the Agent shall
determine the relevant LIBOR on the basis of the quotations supplied by the other Reference Bank or Banks; but if 2 or more of
the Reference Banks fail to provide a quotation, the relevant rate of interest shall be set in accordance with the following provisions
of this Clause 5
(Interest).
5.7 Market disruption (a) If a Market Disruption Event
occurs in relation to an Advance for any Interest Period, then the rate of interest on each Lender's share of that Advance for
the Interest Period shall be the percentage rate per annum which is the sum of: (i) the Margin; (ii) the rate notified to the
Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period,
to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from
whatever source it may reasonably select; and (iii) the Mandatory Cost, if any, applicable to that Lender's participation in the
Advance. (b) In this Agreement
"Market Disruption Event"
means: (i) at
or about noon on the Quotation Date for the relevant Interest Period the Thomson Reuters BBA Page LIBOR 01 or LIBOR 02 is not
available and none or only one of the Reference Banks supplies a rate to the Agent to determine LIBOR for dollars for the relevant
Interest Period; or (ii) before close of business in London on the Quotation Date for the relevant Interest Period, the Agent
receives notifications from a Lender or Lenders that the cost to it or them obtaining matching deposits in the Relevant Interbank
Market would be in excess of LIBOR.
5.8
Notification
of market disruption The Agent shall promptly notify the Borrower and each of the Lenders stating the circumstances falling within
Clause 5.7
(Market disruption)
which have caused its notice to be given. 5.9 Negotiation
of alternative rate of interest If the Agent's notice under Clause 5.8
(Notification of
market disruption)
is served after an Advance is made, the Borrower, the Agent and the Lenders shall use reasonable endeavours
to agree, within the 30 days after the date on which the Agent serves its notice under Clause 5.8
(Notification
of market disruption)
(the
"Negotiation Period"),
an alternative
interest rate or (as the case may be) an alternative basis for the Lenders to fund or continue to fund their or its Contribution
during the Interest Period concerned. 5.10 Application of agreed alternative rate of interest Any alternative interest rate or
an alternative basis which is agreed during the Negotiation Period shall take effect in accordance with the terms agreed. 5.11
Alternative rate of interest in absence of agreement If an alternative interest rate or alternative basis is not agreed within
the Negotiation Period, and the relevant circumstances are continuing at the end of the Negotiation Period, then the Agent shall,
with the agreement of each Lender, set an interest period and interest rate representing the cost of funding of the Lenders in
Dollars or in any available currency of their or its Contribution plus the Margin; and the procedure provided for by this Clause
5.11
(Alternative rate of interest in absence of agreement)
shall be repeated if
the relevant circumstances are continuing at the end of the interest period so set by the Agent. 5.12 Notice of prepayment If
the Borrower does not agree with an interest rate set by the Agent under Clause 5.11 (Alternative rate of interest in absence
of agreement),
the Borrower may give the Agent not
less than 15 Business Days' notice
of its intention to prepay at the end of the interest period set by the Agent. 5.13 Prepayment; termination of Commitments A notice
under Clause 5.12
(Notice of prepayment)
shall be irrevocable; the Agent shall promptly
notify the Lenders of the Borrower's notice of intended prepayment; and: (a) on the date on which the Agent serves that notice,
the Total Commitments shall be cancelled; and (b) on the last Business Day of the interest period set by the Agent, the Borrower
shall prepay (without premium or penalty) the Loan together with accrued interest thereon at the applicable rate plus the Margin.
5.14 Application of prepayment The provisions of Clause 8
(Repayment and Prepayment)
shall apply in relation to the prepayment made pursuant to Clause 5.12
(Notice of prepayment).
6 INTEREST PERIODS 6.1 Commencement of Interest Periods The
first Interest Period applicable to an Advance shall commence on the Drawdown Date and each subsequent Interest Period shall commence
on the expiry of the preceding Interest Period. 6.2 Duration of normal Interest Periods
Subject
to Clauses 6.3
(Duration of Interest Periods for repayment instalments)
and 6.4
(Non-
availability of matching deposits for Interest Period selected),
each Interest Period shall
be:
(a) 3 or 6 months as notified by the Borrower to the Agent not later than 11.00 a.m. (London time) 3 Business Days
before the commencement of the Interest Period; or (b) in the case of the first Interest Period applicable to the second and any
subsequent Advance, a period ending on the last day of the Interest Period applicable to the first Advance then current, whereupon
all of the Advances shall be consolidated and treated as a single Advance; (c) 3 months, if the Borrower fails to notify the Agent
by the time specified in paragraph (a); or (d) such other period as the Agent may, with the authorisation of the Majority Lenders,
agree with the Borrower. 6.3 Duration of Interest Periods for repayment instalments In respect of an amount due to be repaid under
Clause 8
(Repayment and Prepayment)
on a particular Repayment Date, an Interest Period
shall end on that Repayment Date. 6.4 Non-availability of matching deposits for Interest Period selected If, after the Borrower
has selected and the Lenders have agreed an Interest Period longer than 3 months, any Lender notifies the Agent by 11.00 a.m.
(London time) on the third Business Day before the commencement of the Interest Period that it is not satisfied that deposits
in Dollars for a period equal to the Interest Period will be available to it in the London Interbank Market when the Interest
Period commences, the Interest Period shall be of 3 months. 7 DEFAULT INTEREST 7.1 Payment of default interest on overdue amounts
The Borrower shall pay interest in accordance with the following provisions of this Clause7
(Default
Interest)
on any amount payable by the Borrower under any Finance Document which the Agent, the Security Trustee or the
other designated payee does not receive on or before the relevant date, that is: (a) the date on which the Finance Documents provide
that such amount is due for payment; or (b) if a Finance Document provides that such amount is payable on demand, the date on
which the demand is served; or (c) if such amount has become immediately due and payable under Clause 20.4
(Acceleration
of Loan),
the date on which it became immediately due and payable.
7.2
Default
rate of interest Interest shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment
(as well after as before judgment) at the rate per annum determined by the Agent to be 1 per cent, above: (a) in the case of an
overdue amount of principal, the higher of the rates set out at paragraphs
(a)
and
(b) of Clause 7.3
(Calculation of default rate of interest);
or
(b) in the
case of any other overdue amount, the rate set out at paragraph (b) of Clause 7.3
(Calculation
of default rate of interest).
7.3 Calculation of default rate of interest The rates referred to in Clause 7.2
(Default
rate of interest)
are: (a) the rate applicable to the overdue principal amount immediately prior to the relevant date (but
only for any unexpired part of any then current Interest Period); (b) the Margin and the Mandatory Cost, if any, plus, in respect
of successive periods of any duration (including at call) up to 3 months which the Agent may select from time to time: (i) LIBOR;
or (ii) if the Agent (after consultation with the Reference Banks) determines that Dollar deposits for any such period are not
being made available to any Reference Bank by leading banks in the London Interbank Market in the ordinary course of business,
a rate from time to time determined by the Agent by reference to the cost of funds to the Reference Banks from such other sources
as the Agent (after consultation with the Reference Banks) may from time to time determine. 7.4 Notification of interest periods
and default rates The Agent shall promptly notify the Lenders and the Borrower of each interest rate determined by the Agent under
Clause 7.3
(Calculation of default rate of interest)
and of each period selected
by the Agent for the purposes of paragraph (b) of that Clause; but this shall not be taken to imply that the Borrower is liable
to pay such interest only with effect from the date of the Agent's notification. 7.5 Payment of accrued default interest Subject
to the other provisions of this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference
to which it was determined; and the payment shall be made to the Agent for the account of the Creditor Party to which the overdue
amount is due. 7.6 Compounding of default interest Any such interest which is not paid at the end of the period by reference to
which it was determined shall thereupon be compounded. 8 REPAYMENT AND PREPAYMENT 8.1 Amount of repayment instalments Loan Amount
The Borrower shall repay
the
Loan
by 12
equal consecutive quarterly instalments of $1,062,500 each together
with a balloon instalment
of $14,000,000 or
equal to the remaining amount of
the
Loan payable simultaneously with the final instalment. 8.2 Repayment Dates The first
repayment
instalment ieai ae ae-
will
be repaid on lts fteli
30
April 2017
and the last
repayment
instalment together with the balloon
instalment
is to be repaid i ie on the Maturity Date 8.3 Maturity Date On the Maturity Date, the Borrower shall additionally pay to
the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document. 8.4 Voluntary
prepayment Subject to the following conditions, the Borrower may, without penalty, prepay the whole or any part of the Loan on
the last day of an Interest Period for that Advance. 8.5 Conditions for voluntary prepayment The conditions referred to in Clause
8.4
(Voluntary prepayment)
are that: (a) a partial prepayment shall be $500,000 or
a multiple of $500,000 or such other amount agreed by the Agent; (b) the Agent has received from the Borrower at least 5 Business
Days' prior written notice specifying the amount to be prepaid and the date on which the prepayment is to be made; and (c) the
Borrower has provided evidence satisfactory to the Agent that any consent required by the Borrower or any Security Party in connection
with the prepayment has been obtained and remains in force, and that any requirement relevant to this Agreement which affects
the Borrower or any Security Party has been complied with. 8.6 Effect of notice of prepayment A prepayment notice may not be withdrawn
or amended without the consent of the Agent, given with the authorisation of the Majority Lenders, and the amount specified in
the prepayment notice shall become due and payable by the Borrower on the date for prepayment specified in the prepayment notice.
8.7
Notification
of notice of prepayment The Agent shall notify the Lenders promptly upon receiving a prepayment notice, and shall provide any
Lender which so requests with a copy of any document delivered by the Borrower under paragraph (c) of Clause 8.5
(Conditions
for voluntary prepayment).
8.8 Mandatory prepayment on sale or Total Loss The Borrower shall be obliged to prepay the whole
of the Loan: (a) if the Ship is sold, on or before the date on which such sale is completed by delivery of the Ship to the buyer
Provided that
the Borrower shall not be required to prepay the Loan if the Ship is
sold to a Subsidiary of the Borrower pursuant to the proviso to Clause 12.3
(No disposal
of assets);
or (b) if the Ship becomes a Total Loss, on the earlier of the date falling 180 days after the Total Loss Date
and the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss.: or (c)
if
there is a Change of Control, the Borrower shall be obliged to prepay the Loan in full and the Commitments shall terminate not
later than 60 days following the occurrence of the Change of Control.
8.9 Amounts payable on prepayment A prepayment shall
be made together with accrued interest (and any other amount payable under Clause 22
(Indemnities)
or otherwise) in respect of the amount prepaid and, if the prepayment is not made on the last day of an Interest Period
together with any sums payable under paragraph (b) of Clause 22.1
(Indemnities regarding
borrowing and repayment of Loan)
but without premium or penalty. les se ie a
(Mandatory
prepayment on termination or expiry of the Charter),
anll e aie - 8.10 8Application of partial prepayment Each partial
prepayment shall be applied first against the balloon and then against the repayment instalments specified in Clause 8.1
(Amount
of repayment instalments)
in inverse order of maturity. 8.11 8.13No
reborrowing
No amount prepaid may be reborrowed.
9 CONDITIONS PRECEDENT
9.1
Documents, fees and no default Each Lender's obligation to contribute to an Advance was subject to the following conditions precedent:
(a) that, on or before the service of the first Drawdown Notice, the Agent received the documents described in Part A of Schedule
3 (
Condition Precedent Documents)
in form and substance satisfactory to the Agent
and its lawyers; (b) that, on or before the first Drawdown Date for, but prior to the making of, an Advance (other than the final
Advance), the Agent received or was satisfied that it would receive on the making of such Advance the documents described in Part
B of schedules
(Condition Precedent Documents)
in form and substance satisfactory
to it and its lawyers; (c) that before the final Drawdown Date for, but prior to the making of, the final Advance, the Agent received
or was satisfied that it would receive on the making of such Advance the documents described in Part C of Schedule 3
(Condition
Precedent Documents)
in form and substance satisfactory to it and its lawyers; (d) that, on or before the service of the
first Drawdown Notice, the Agent received the arrangement fee referred to in Clause 21.1
(Arrangement
and commitment fees),
all accrued commitment fees payable pursuant to Clause 21.1
(Arrangement
and commitment fees)
and had received payment of the expenses referred to in Clause 21.2
(Costs
of negotiation, preparation etc.);
and (e) that both at the date of each Drawdown Notice and at each Drawdown Date: (i)
no Event of Default or Potential Event of Default had occurred or would result from the borrowing of the Loan; (ii) the representations
and warranties in Clause 10
(Representations and Warranties)
and those of the Borrower
or any Security Party which were set out in the other Finance Documents would be true and not misleading if repeated on each of
those dates with reference to the circumstances then existing; and (iii) none of the circumstances contemplated by Clause 5.7
(Market disruption)
had occurred or was continuing; and (f) that, if the ratio set
out in Clause 16.1
(Minimum required security cover)
was applied immediately following
the making of the Advance, the Original Borrower would not have been obliged to provide additional security or prepay part of
the Loan under that Clause; and (g) that the Agent had received, and found to be acceptable to it, any further opinions, consents,
agreements and documents in connection with the Finance Documents which the Agent may, with the authorisation of the Majority
Lenders, request by notice to the Borrower prior to the Drawdown Date. 9.2 Waiver of conditions precedent If the Majority Lenders,
at their discretion, were to permit an Advance to be borrowed before certain of the conditions referred to in Clause 9.1
(Documents,
fees and no default)
were satisfied, the Original Borrower had to ensure that those conditions were satisfied within 5
Business Days after the Drawdown Date (or such longer period as the Agent may, with the authorisation of the Majority Lenders,
have specified).
10 REPRESENTATIONS AND WARRANTIES
10.1
General The Borrower represents and warrants to each Creditor Party on the date of this amended and restated Agreement as follows.
10.2 Status The Borrower is duly incorporated and validly existing and in good standing under the laws of Belgium. 10.3 Corporate
power The Borrower has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it:
(a) to execute the Finance Documents to which it is a party; and (b) to borrow under this Agreement and to make all the payments
contemplated by, and to comply with, those Finance Documents. 10.4 Consents in force All the consents referred to in Clause 10.3
(Corporate power)
remain in force and nothing has occurred which makes any of them
liable to revocation. 10.5 Legal validity; effective Security Interests The Finance Documents to which the Borrower is a party,
do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided for in the Finance
Documents): (a) constitute the Borrower's legal, valid and binding obligations enforceable against the Borrower in accordance
with their respective terms; and (b) create legal, valid and binding Security Interests enforceable in accordance with their respective
terms over all the assets to which they, by their terms, relate, subject to any relevant insolvency laws affecting creditors'
rights generally. 10.6 No third party Security Interests Without limiting the generality of Clause 10.5
(Legal
validity; effective Security Interests
), at the time of the execution and delivery of each Finance Document: (a) the Borrower
will have the right to create all the Security Interests which that Finance Document purports to create; and (b) no third party
will have any Security Interest (except for Permitted Security Interests) or any other interest, right or claim over, in or in
relation to any asset to which any such Security Interest, by its terms, relates. 10.7 No conflicts The execution by the Borrower
of each Finance Document, and the borrowing by the Borrower of the Loan, and its compliance with each Finance Document will not
involve or lead to a contravention of:
(a) any law or regulation; or (b) the constitutional documents
of the Borrower; or (c) any contractual or other obligation or restriction which is binding on the Borrower or any of its assets.
10.8 Governing law and enforcement (a) The choice of English law as the governing law of the Finance Documents will be recognised
and enforced in its jurisdiction of incorporation. (b) Any judgment obtained in England in relation to a Finance Document will
be recognised and enforced in its jurisdiction of incorporation. 10.9 No withholding taxes All payments which the Borrower is
liable to make under the Finance Documents must be made without any Tax Deduction payable under any law of any Pertinent Jurisdiction.
10.10 No default No Event of Default or Potential Event of Default has occurred. 10.11 Information All information which has been
provided in writing by or on behalf of the Borrower or any Security Party to any Creditor Party in connection with any Finance
Document satisfied the requirements of Clause 12.5
(Information provided to be accurate
);
all audited and unaudited accounts which have been so provided satisfied the requirements of Clause 12.7
(Form
of financial statements);
and there has been no material adverse change in the financial position or state of affairs of
the Borrower from that disclosed in the latest of those accounts. 10.12 No litigation No legal or administrative action involving
the Borrower (including action relating to any alleged or actual breach of the ISM Code or the ISPS Code) has been commenced or
taken or, to the Borrower's knowledge, is likely to be commenced or taken which, in either case, would be likely to have a material
adverse effect on the Borrower's financial position or profitability. 10.13 Compliance with certain undertakings At the date of
this amended and restated Agreement, the Borrower is in compliance with Clauses 12.2
(Title;
negative pledge),
12.4
(No other liabilities or obligations to be incurred),
12.9
(Consents)
and 12.12
(Principal place of business). 10.14 Taxes paid
The Borrower has paid all taxes applicable to, or imposed on or in relation to the Borrower, its business or the Ship. 10.15 ISM
Code and ISPS Code compliance All requirements of the ISM Code and the ISPS Code as they relate to the Borrower, the Approved
Manager and the Ship have been complied with or shall be complied with as from the delivery of the Ship to the Borrower under
the Shipbuilding Contract.
10.16 No money laundering Without prejudice to the generality
of Clause 2.4
(Purpose of Loan),
in relation to the borrowing by the Borrower of
the Loan, the performance and discharge of its obligations and liabilities under the Finance Documents, and the transactions and
other arrangements affected or contemplated by the Finance Documents to which the Borrower is a party, the Borrower confirms (i)
that it is acting for its own account; (ii) that it will use the proceeds of the Loan for its own benefit, under its full responsibility
and exclusively for the purposes specified in this Agreement; and (iii) that the foregoing will not involve or lead to a 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 2005/60/EC of the European Parliament and of the Council of the European Union of 26 October
2005). 10.17 Anti-Corruption Laws The Borrower has conducted its business in compliance with all applicable Anti-Corruption Laws
and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws. 10.18 Sanctions
Each Relevant Person has been and is in compliance with all Sanctions Laws and no Relevant Person: (a) is a Restricted Party,
or is involved in any transaction through which it is likely to become a Restricted Party; or (b) has received formal notice in
writing of any inquiry, claim, action, suit, proceeding or investigation against it with respect to Sanctions Laws. 11 FINANCIAL
COVENANTS 11.1 Financial Covenants The Borrower will ensure that the consolidated financial position of the Borrower and its subsidiaries
shall at all times during the Security Period be such that: (a) Current Assets exceed Current Liabilities; (b) Free Liquid Assets
are not less than the higher of: (i) $20,000,000; and (ii) 3 per cent, of Total Indebtedness; and (c) the ratio of Stockholders'
Equity to Total Assets is not less than 25 30 per cent.
In this Clause 11.1
(Financial
Covenants):
"Current Assets"
means, at any date of determination under
this Agreement, the amount of the current assets of the Borrower and its subsidiaries determined on a consolidated basis in accordance
with IFRS and as shown in the Latest Balance Sheet, but always including undrawn credit lines and revolving credits;
"Current
Liabilities"
means, at any date of determination under this Agreement, the amount of the current liabilities of the
Borrower and its subsidiaries determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet;
"Free Liquid Assets"
means,
at any date of determination under this Agreement, the aggregate amount of cash and cash equivalents of the Borrower and its subsidiaries
determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet but excluding any of those
assets subject to a Security Interest (other than a Security Interest in favour of the Security Trustee pursuant to this Agreement)
at any time;
"Latest Balance Sheet"
means, at any date, the consolidated
balance sheet of the Borrower and its subsidiaries most recently delivered to the Agent pursuant to Clause 11.3 and/or most recently
made publicly available;
"Stockholders' Equity"
means, at any date of determination
under this Agreement, the amount of the capital and reserves of the Borrower and its subsidiaries determined on a consolidated
basis in accordance with IFRS and as shown in the Latest Balance Sheet;
"Total Assets"
means, at any date of determination under this Agreement, the amount of the total assets of the Borrower and its subsidiaries
determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet; and
"Total
Indebtedness"
means, at any date of determination under this Agreement, the amount of long-term loans (including finance
leases, banks loans and other long-term loans) and short- term loans of the Borrower and its subsidiaries determined on a consolidated
basis in accordance with IFRS and as shown in the Latest Balance Sheet. 11.2 Change of accounting period The Borrower shall not
change its fiscal year end date. 12 GENERAL UNDERTAKINGS 12.1 General The Borrower undertakes with each Creditor Party to comply
with the following provisions of this Clause 12
(General Undertakings)
at all times
during the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit (such consent
not to be unreasonably withheld or delayed in the case of Clause 12.12
(Principal place
of business).
12.2 Title; negative pledge e eil
The Borrower will
hold the
legal title to, and own the entire beneficial interest in the Ship, the Insurances and Earnings, free from all Security Interests
and other interests and rights of every kind, except for those created by the Finance Documents and the effect of assignments
contained in the Finance Documents and except for Permitted Security Interests; or. 12.3 No disposal of assets The Borrower will
not transfer, lease or otherwise dispose of: all or a substantial part of its assets, whether by one transaction or a number of
transactions, whether related or not except for those in the ordinary course of business and for fair market value payable in
cash upon completion of such transaction: o
r, with the exception of any charter of the Ship
as to which clause 15.13 (Time and consecutive voyage charters in excess of 36 months) applies.
Provided
that
the Borrower may sell the Ship to another subsidiary of the Borrower subject to the following conditions: (i) there is no Event
of Default or Potential Event of Default which is continuing; (ii) the new owning company and the jurisdiction of incorporation
being acceptable to the Lenders; (iii) the Borrower and the Security Parties entering into such amendments to this Agreement and
the other Finance Documents as may be required by the Lenders in order to document the change of ownership; (iv) the new owning
company entering into such other security documents which are required by the Lenders so as to maintain the same security for
the Lenders on the transfer of ownership; and (v) the new owner shall pay to the Agent on demand all expenses (including but not
limited to legal expenses) relating to the said documentation. 12.4 No other liabilities or obligations to be incurred
The
Borrower shall not, without the prior consent of the Majority Lenders, incur any Financial Indebtedness or grant any guarantee
in respect of Financial Indebtedness if. as a result of incurring that Financial Indebtedness or incurring the contingent liability
under that guarantee (as assessed in accordance with IFRS), an Event of Default would occur, or one or more of the financial covenants
in respect of the Borrower set out in Clause 11.1 (financial covenants) would be breached, on the date of such incurrence
12.5 Information provided to be accurate All financial and other information which is provided in writing by or on behalf of the
Borrower under or in connection with any Finance Document will be true and not misleading and will not omit any material fact
or consideration. 12.6 Provision of financial statements
The
Borrower will send to
the
Agent
: (a) as soon as possible, but in no event later than 180
120
days after the end of each financial year of the Borrowe
r from and including the
financial year ending 31 December 2016,
the audited consolidated accounts of the
Group
and audited individual accounts of the
Borrower ii;and (b)
as soon as possible, but
in no event later than 75 days after the end of each financial half-year of the Borrower (which half year end shall, for the avoidance
of doubt, occur annually), the audited consolidated balance sheet of the Group certified as to its correctness by the chief
financial officer of the Borrower and the audited individual
balance sheet of the Borrower certified as to its correctness by an officer or director of the Borrower:
(c)
as soon as possible, but in no event later than 60 days after the end of each financial
quarter of the Borrower and provided that these documents have not been published on the Borrower's website or sent to the Lenders
in the form of a press release, unaudited consolidated income statements of the Group
certified as to their correctness
by the chief financial officer of the Borrower,
and unaudited individual income statements
of the Borrower certified as to their correctness by an officer or director of the Borrower:
(d)
as
soon as possible, but not later than 120 days after the end of each financial year of the Borrower, a financial projection for
the Borrower and the Group for the next 3 years in a format which is acceptable to the Agent: and
(e)
together
with the annual audited consolidated accounts and with each balance sheet of the Group referred to in paragraphs (a) and (b),
a compliance certificate (together with supporting schedules, if any) signed by the chief financial officer of the Borrower in
the form attached as Schedule 6 (Form of Certificate of Compliance) (or in any other format which the Agent may approve and with
such other information as the Agent may require) evidencing compliance with the financial undertakings in Clause 11.1 (Financial
Covenants) and also listing the Market Value of the Shin.
12.7 Form of financial statements All accounts (audited and unaudited)
delivered under Clause 12.6
(Provision of financial statements)
will: (a) be prepared
in accordance with all applicable laws and IFRS consistently applied; (b) fairly represent the financial condition of the Borrower
and its subsidiaries at the date of those accounts and of its profit for the period to which those accounts relate; and (c) fully
disclose or provide for all significant liabilities of the Borrower and its subsidiaries (or the Borrower, as the case may be).
12.8 Creditor notices The Borrower will send the Agent, at the same time as they are despatched, copies of all material communications
which are despatched to the whole or any class of the Borrower's shareholders or to the Borrower's creditors or any class of them.
12.9 Consents The Borrower will maintain in force and promptly obtain or renew, and will promptly send certified copies to the
Agent of, all consents required: (a) for the Borrower to perform its obligations under any Finance Document; (b) for the validity
or enforceability of any Finance Document; and (c) for the Borrower to continue to own and operate the Ship, and the Borrower
will comply with the terms of all such consents.
12.10 Maintenance of Security Interests The Borrower will: (a)
at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Security
Interests which it purports to create; and (b) without limiting the generality of paragraph (a), at its own cost, promptly register,
file, record or enrol any Finance Document with any court or authority in all Pertinent Jurisdictions, pay any stamp, registration
or similar tax in all Pertinent Jurisdictions in respect of any Finance Document, give any notice or take any other step which,
in the opinion of the Majority Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable
or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates. 12.11 Notification of
litigation The Borrower will provide the Agent with details of any legal or administrative action involving the Borrower, any
Security Party, the Approved Manager or the Ship, the Earnings or the Insurances as soon as such action is instituted or it becomes
apparent to the Borrower that it is likely to be instituted, unless it is clear that the legal or administrative action cannot
be considered material in the context of any Finance Document. 12.12 Principal place of business e lii ilaeeeiil liiesu ille o
ieli
The Borrower will notify the Agent if it has a place of business in any jurisdiction
which would require a Finance Document to which it is a party to be registered, filed or recorded with any court or authority
in that jurisdiction or if the centre of its main interests changes.
12.13 Confirmation of no default The Borrower will,
within 5 Business Days after service by the Agent of a written request, serve on the Agent a notice which is signed by 2 directors
of the Borrower and which: (a) states that no Event of Default or Potential Event of Default has occurred; or (b) states that
no Event of Default or Potential Event of Default has occurred, except for a specified event or matter, of which all material
details are given. The Agent may serve requests under this Clause 12.13
(Confirmation of
no defaultNo Default)
from time to time but only if reasonably asked to do so by a Lender or Lenders having Contributions
exceeding 10 per cent, of the Loan or (if the Loan has not been made) Commitments exceeding 10 per cent of the Total Commitments;
and this Clause 12.13
(Confirmation of no defaultNo Default)
does not affect the
Borrower's obligations under Clause 12.14
(Notification of default).
12.14 Notification
of default The Borrower will notify the Agent as soon as the Borrower becomes aware of: (a) the occurrence of an Event of Default
or a Potential Event of Default; or
(b) any matter which indicates that an Event of Default or a
Potential Event of Default may have occurred; and will keep the Agent fully up-to-date with all developments. 12.15 Provision
of further information (a) The Borrower will, as soon as practicable after receiving the request, provide the Agent with any additional
financial or other information relating: (i) to the Borrower, the Ship, the Earnings or the Insurances; or (ii) to any other matter
relevant to, or to any provision of, a Finance Document, which may reasonably be requested by the Agent, the Security Trustee
or any Lender at any time. (b) The Borrower shall supply to the Agent, promptly upon becoming aware of them, the details of any
claim, action, suit, proceeding or investigation with respect to Sanctions Laws against it, any of its direct or indirect owners,
subsidiaries or any of their respective directors, officers, employees, agents or representatives. 12.16 "Know your customer"
checks If: (a) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation
made after the date of this Agreement; (b) any change in the status of the Borrower or any Security Party after the date of this
Agreement; or (c) a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a
party that is not a Lender prior to such assignment or transfer, obliges the Agent or any Lender (or, in the case of paragraph
(c), any prospective new Lender) to comply with "know your customer" or similar identification procedures in circumstances
where the necessary information is not already available to it, the Borrower shall promptly upon the request of the Agent or the
Lender concerned supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent
(for itself or on behalf of any Lender) or the Lender concerned (for itself or, in the case of the event described in paragraph
(c), on behalf of any prospective new Lender) in order for the Agent, the Lender concerned or, in the case of the event described
in paragraph (c), any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in
the Finance Documents. 12.17 Conduct of business; compliance with laws The Borrower shall conduct its business in a proper and
efficient manner in compliance with: (a) its constitutional documents; (b) all Sanctions Laws; (c) all Anti-Corruption Laws; (d)
all Environmental Laws; and
(e) all other laws and regulations applicable to its business,
12.18 and shall notify the Agent immediately upon becoming aware of any breach of any such document, law or regulation. 12.19
Compliance with Sanctions Laws The Borrower shall: (a) ensure that neither it nor any subsidiary of it is or will become a Restricted
Party. (b) use reasonable endeavours to procure that no director, officer, employee, agent or representative of any Borrower or
any subsidiary of it is or will become a Restricted Party; and (c) procure that no proceeds of any Advance shall be made available,
directly or indirectly, to or for the benefit of a Restricted Party nor shall they otherwise be applied in a manner for a purpose
prohibited by Sanctions Laws. 13 CORPORATE UNDERTAKINGS 13.1 General The Borrower also undertakes with each Creditor Party to
comply with the following provisions of this Clause 13
(Corporate Undertakings)
at
all times during the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit.
13.2 Maintenance of status The Borrower will maintain its separate corporate existence and remain in good standing under the laws
of Belgium. 13.3 Negative undertakings The Borrower will not: (a)
operate outside the scope
of its Articles of Association.: or
(b) (c)provide any form of credit or financial assistance to: (i) a person l ile lil;
or (ii) (iii)enter into any transaction with or involving such a person or company on terms which are, in any respect, less favourable
to the Borrower than those which it could obtain in a bargain made at arms' length, and the Borrower agrees to subordinate any
inter-company loans to the Loan on such terms as the Lenders may reasonably require;
13.4
No
merger etc. The Borrower will not, and will procure that none of its subsidiaries will, enter into any form of merger, sub-division,
amalgamation or other reorganisation which may, in the reasonable opinion of the Majority Lenders, have a material adverse effect
on the financial position the Borrower.
13.5
13.4Payment of dividends The Borrower may pay dividends provided that no Event of Default has occurred and is continuing. 13.6
Notification of Sanctions The Borrower shall: (a) supply to the Agent, promptly upon becoming aware of them, the details of any
inquiry, claim, action, suit, proceeding or investigation pursuant to Sanction Laws against (a) the Borrower, (b) any other Relevant
Person or (c) any owners of any Relevant Person (other than any owner of the Borrower), as well as information on what steps are
being taken with regards to answering or opposing the same; (b) inform the Agent promptly upon becoming aware that any of (a)
the Borrower, (b) any other Relevant Person or (c) any owners of any Relevant Person (other than any owner of the Borrower), has
become or is likely to become a Restricted Party. 14 INSURANCE 14.1 General The Borrower also undertakes with each Creditor Party
to comply with the following provisions of this Clause 14
(Insurance)
at all times
during the Security Period (after the Delivery Date) except as the Agent may, with the authorisation of the Majority Lenders,
otherwise permit (such consent not to be unreasonably withheld or delayed in the case of paragraph (b) of Clauses 14.11
(Compliance
with terms of insurances)
and 14.12
(Alteration to terms of insurances).
14.2 Maintenance of obligatory insurances The Borrower shall
keep the Ship insured at the expense of the Borrower against: (a) fire and usual marine risks (including hull and machinery and
excess risks); (b) war risks; (c) protection and indemnity risks; and (d) any other risks against which the Majority Lenders consider,
having regard to practices and other circumstances prevailing at the relevanttime,it would in the opinion of theMajority Lenders
be reasonable for the Borrower to insure and which are specified by the Security Trustee by notice to the Borrower. 14.3 Terms
of obligatory insurances The Borrower shall effect such insurances: (a) in Dollars; (b) in the case of fire and usual marine risks
and war risks, in an amount on an agreed value basis at least the greater of (i) 120 per cent, of the Loan and (ii) the market
value of the Ship; and (c) in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of
cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market;
(d) in relation to protection and indemnity risks in respect of the Ship's full tonnage; (e) on approved terms; and (f) through
approved brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity
risks, in approved war risks and protection and indemnity risks associations. 14.4 Further protections for the Creditor Parties
In addition to the terms set out in Clause 14.3
(Terms of obligatory insurances),
the Borrower shall procure that the obligatory insurances shall: (a) whenever the Security Trustee requires, name (or be amended
to name) the Security Trustee as additional named assured for its rights and interests, warranted no operational interest and
with full waiver of rights of subrogation against the Security Trustee, but without the Security Trustee thereby being liable
to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance; (b) name the Security
Trustee as loss payee with such directions for payment as the Security Trustee may specify; (c) provide that all payments by or
on behalf of the insurers under the obligatory insurances to the Security Trustee shall be made without set-off, counterclaim
or deductions or condition whatsoever; (d) provide that such obligatory insurances shall be primary without right of contribution
from other insurances which may be carried by the Security Trustee or any other Creditor Party; and
(e) provide that the Security Trustee may make proof of loss
if the Borrower fails to do so. 14.5 Renewal of obligatory insurances The Borrower shall: (a) at least 14 days before the expiry
of any obligatory insurance, renew that obligatory insurance; and (b) promptly after each such renewal, there is provided to the
Agent details of the terms and conditions on which such obligatory insurances have been renewed. 14.6 Copies of policies; letters
of undertaking The Borrower shall ensure that all approved brokers provide the Security Trustee with a letter or letters of undertaking
in a form required by the Majority Lenders and including undertakings by the approved brokers that: (a) they will have endorsed
on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause
14.4
(Further protections for the Creditor Parties
); (b) they will hold such policies,
and the benefit of such insurances, to the order of the Security Trustee in accordance with the said loss payable clause; (c)
they will advise the Security Trustee immediately of any material change to the terms of the obligatory insurances; (d) they will
notify the Security Trustee, not less than 14 days before the expiry of the obligatory insurances, in the event of their not having
received notice of renewal instructions from the Borrower or its agents and, in the event of their receiving instructions to renew,
they will promptly notify the Security Trustee of the terms of the instructions; and (e) they will not set off against any sum
recoverable in respect of a claim relating to the Ship under such obligatory insurances any premiums or other amounts due to them
or any other person whether in respect of the Ship or otherwise, they waive any lien on the policies, or any sums received under
them, which they might have in respect of such premiums or other amounts, and they will not cancel such obligatory insurances
by reason of non-payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of
the Ship forthwith upon being so requested by the Security Trustee. 14.7 Copies of certificates of entry The Borrower shall ensure
that any protection and indemnity and/or war risks associations in which the Ship is entered provides the Security Trustee with:
(a) a certified copy of the certificate of entry for the Ship; (b) a letter or letters of undertaking in such form as may be required
by the Majority Lenders; and (c) a certified copy of each certificate of financial responsibility for pollution by oil or other
Environmentally Sensitive Material issued by the relevant certifying authority in relation to the Ship. 14.8 Deposit of original
policies The Borrower shall ensure that all policies relating to obligatory insurances are deposited with the approved brokers
through which the insurances are effected or renewed.
14.9 Payment of premiums The Borrower shall punctually pay all
premiums or other sums payable in respect of the obligatory insurances and produce all relevant receipts when so required by the
Security Trustee. 14.10 Guarantees The Borrower shall ensure that any guarantees required by a protection and indemnity or war
risks association are promptly issued and remain in full force and effect. 14.11 Compliance with terms of insurances The Borrower
shall neither do nor omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory
insurance invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole
or in part; and, in particular: (a) the Borrower shall take all necessary action and comply with all requirements which may from
time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in paragraph (c) of Clause
14.6
(Copies of policies; letters of undertaking))
ensure that the obligatory insurances
are not made subject to any exclusions or qualifications to which the Security Trustee has not given its prior approval; (b) the
Borrower shall not make any changes relating to the classification or classification society or manager or operator of the Ship
approved by the underwriters of the obligatory insurances; (c) the Borrower shall make (and promptly supply copies to the Agent
of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which
the Ship is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the
United States Oil Pollution Act 1990 or any other applicable legislation); and (d) the Borrower shall not employ the Ship, nor
allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first
obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers
specify. 14.12 Alteration to terms of insurances The Borrower shall neither make or agree to any material alteration to the terms
of any obligatory insurance nor waive any right relating to any obligatory insurance without the consent of the Agent. 14.13 Settlement
of claims The Borrower shall not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for
a Major Casualty, and shall do all things necessary and provide all documents, evidence and information to enable the Security
Trustee to collect or recover any moneys which at any time become payable in respect of the obligatory insurances. 14.14 Provision
of information In addition, the Borrower shall promptly provide the Security Trustee (or any persons which it may designate) with
any information which the Security Trustee (or any such designated person) reasonably requests for the purpose of:
(a) obtaining or preparing any report from an independent marine
insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or (b) effecting, maintaining
or renewing any such insurances as are referred to in Clause 14.15 (
Mortgagee's interest
and additional perils insurances)
or dealing with or considering any matters relating to any such insurances, and the Borrower
shall, forthwith upon demand, indemnify the Security Trustee in respect of all fees and other expenses incurred by or for the
account of the Security Trustee in connection with any such report as is referred to in paragraph (a). 14.15 Mortgagee's interest
and additional perils insurances The Security Trustee shall be entitled from time to time to effect, maintain and renew a mortgagee's
interest additional perils insurance and a mortgagee's interest marine insurance each in an amount of 110 per cent, of the Loan
and on such terms, through such insurers and generally in such manner as the Majority Lenders may from time to time consider appropriate
and the Borrower shall upon demand fully indemnify the Creditor Parties in respect of all premiums and other expenses which are
incurred in connection with or with a view to effecting, maintaining or renewing any such insurance or dealing with, or considering,
any matter arising out of any such insurance. 15 SHIP COVENANTS 15.1 General The Borrower also undertakes with each Creditor Party
to comply with the following provisions of this Clause 15
(Ship Covenants)
at all
times during the Security Period except as the Agent, with the authorisation of the Majority Lenders, may otherwise permit. 15.2
Ship's name and registration The Borrower shall keep the Ship registered in its name under the relevant Approved Flag at its relevant
port of registry; shall not do or omit to do or allow to be done anything as a result of which such registration might be cancelled
or imperilled; and shall not change the name or port of registry of the Ship. 15.3 Repair and classification The Borrower shall
keep the Ship in a good and safe condition and state of repair: (a) consistent with first-class ship ownership and management
practice; (b) so as to maintain the Ship's class (namely A1(E), "Oil Carrier ESP", AMS, ACCU, SPM, VEC(-L), CSR, Safeship-CM,
RES, ES, TEM, Green Passport, POT, UWILD (sea chest blanking devices shall not be provided), CPS at American Bureau of Shipping)
free of overdue recommendations and conditions; and (c) so as to comply with all laws and regulations applicable to vessels registered
at ports in Greece or to vessels trading to any jurisdiction to which the Ship may trade from time to time, including but not
limited to the ISM Code or the ISPS Code. 15.4 Modification The Borrower shall not make any modification or repairs to, or replacement
of, the Ship or equipment installed on it which would or might materially alter the structure, type or performance characteristics
of the Ship or materially reduce its value.
15.5 Removal of parts The Borrower shall not remove any material
part of the Ship, or any item of equipment installed on, the Ship unless the part or item so removed is forthwith replaced by
a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any
Security Interest or any right in favour of any person other than the Security Trustee and becomes on installation on the Ship
the property of the Borrower and subject to the security constituted by the Mortgage
Provided
that
the Borrower may install equipment owned by a third party if the equipment can be removed without any risk of damage
to the Ship. 15.6 Surveys The Borrower shall submit the Ship regularly to all periodical or other surveys which may be required
for classification purposes and, if so required by the Majority Lenders provide the Security Trustee, with copies of all survey
reports. 15.7 Inspection The Borrower shall permit the Security Trustee (by surveyors or other persons appointed by it for that
purpose) to board the Ship at all reasonable times to inspect its condition or to satisfy themselves about proposed or executed
repairs and shall afford all proper facilities for such inspections provided that prior to the occurrence of an Event of Default
reasonable notice of such inspection is given and such inspection does not materially affect the Ship's commercial operation.
15.8 Prevention of and release from arrest The Borrower shall promptly discharge: (a) all liabilities which give or may give rise
to maritime or possessory liens on or claims enforceable against the Ship, the Earnings or the Insurances; (b) all taxes, dues
and other amounts charged in respect of the Ship, the Earnings or the Insurances; and (c) all other outgoings whatsoever in respect
of the Ship, the Earnings or the Insurances, and, forthwith upon receiving notice of the arrest of the Ship, or of its detention
in exercise or purported exercise of any lien or claim, the Borrower shall procure its release by providing bail or otherwise
as the circumstances may require. 15.9 Compliance with laws etc. The Borrower shall: (a) comply, or procure compliance with the
ISM Code, the ISPS Code, all Environmental Laws, all Sanctions Laws and all other laws or regulations relating to the Ship, its
ownership, operation and management or to the business of the Borrower; (b) not employ the Ship nor allow its employment in any
manner contrary to any law or regulation in any relevant jurisdiction including but not limited to the ISM Code and the ISPS Code,
all Environmental Laws and Sanctions Laws; and (c) in the event of hostilities in any part of the world (whether war is declared
or not), not cause or permit the 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 unless the Borrower (at its expense) effected
any necessary special, additional or modified insurance cover
and, upon the Agent's request, the Borrower will confirm that they have effected such insurance cover. 15.10 Provision of information
The Borrower shall promptly provide the Security Trustee with any information which the Majority Lenders reasonably request regarding:
(a) the Ship, its employment, position and engagements; (b) the Earnings and payments and amounts due to the Ship's master and
crew; (c) any expenses incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Ship
and any payments made in respect of the Ship; (d) any towages and salvages; and (e) the Borrower's, the Approved Manager's or
the Ship's compliance with the ISM code and the ISPS code, and, upon the Security Trustee's request, provide copies of any current
charter relating to the Ship and of any current charter guarantee, and copies of the Borrower's or the Approved Manager's Document
of Compliance. 15.11 Notification of certain events The Borrower shall immediately notify the Security Trustee by fax, confirmed
forthwith by letter, of: (a) any casualty which is or is likely to be or to become a Major Casualty; (b) any occurrence as a result
of which the Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss; (c) any overdue requirement
or recommendation made by any insurer or classification society or by any competent authority which is not immediately complied
with; (d) any arrest or detention of the Ship, any exercise or purported exercise of any lien on the Ship or its Earnings or any
requisition of the Ship for hire; (e) any intended dry docking of the Ship other than a routine dry docking; (f) any Environmental
Claim made against the Borrower or in connection with the Ship, or any Environmental Incident; (g) any claim for breach of the
ISM Code or the ISPS Code being made against the Borrower, the Approved Manager or otherwise in connection with the Ship; or (h)
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or ISPS Code
not being complied with, and the Borrower shall keep the Security Trustee advised in writing on a regular basis and in such detail
as the Security Trustee shall require of the Borrower's, the Approved Manager's or any other person's response to any of those
events or matters. 15.12 Restrictions on chartering, appointment of managers etc. The Borrower shall not:
(a) let the Ship on demise charter for any period; (b) enter
into any charter in relation to the Ship under which more than2monthshire(or the equivalent) is payable in advance; (c) charter
the Ship otherwise than on bona fide arm's length terms at the time when the Ship is fixed; (d) appoint a manager of the Ship
other than the Approved Manager or agree to any alteration to the terms of the Approved Manager's appointment; (e) de-activate
or lay up the Ship; or (f) put the Ship into the possession of any person for the purpose of work being done upon it in an amount
exceeding or likely to exceed the Major Casualty amount unless either: (i) that person has first given to the Security Trustee
and in terms satisfactory to it a written undertaking not to exercise any lien on the Ship or its Earnings for the cost of such
work or for any other reason; or (ii) the Borrower has established to the reasonable satisfaction of the Security Trustee that
the Borrower has sufficient reserves to pay for the cost of such work. 15.13
The Borrower
agrees that if it should enter into any Charter the Borrower shall execute and deliver to the Agent promptly upon such Charter
being entered into a Charter Assignment in respect of that Charter in favour of the Security Trustee unless such Charter contains
a substitution clause or a clause with similar effect.
15.14 Notice of Mortgage The Borrower shall keep the Mortgage registered
against the Ship as a valid first priority mortgage, carry on board the Ship a certified copy of the Mortgage and place and maintain
in a conspicuous place in the navigation room and the Master's cabin of the Ship a framed printed notice stating that the Ship
is mortgaged by the Borrower to the Security Trustee. 15.15 .14Sharing of Earnings The Borrower shall not enter into any agreement
or arrangement for the sharing of any Earnings without the prior approval of the Agent such approval not to be unreasonably withheld.
For the avoidance of doubt the Agent's approval shall not be required in relation to: (a) any "profit split" of hire
between the Borrower and a charterer of the Ship; or (b) the entry into an established pool or a pool established by the Borrower
in both cases on usual commercial terms and at a market rate allocation. 16 SECURITY COVER 16.1 Minimum required security cover
Clause 16.2 (
Provision of additional security; prepayment)
applies if (after the
Delivery Date) the Agent notifies the Borrower that, according to the determination mechanism under Clause
16.3
(Valuation
of Ship): (a) the market value (determined as provided in Clause 16.3
(Valuation of Ship)
of the Ship; plus
(b) the net realisable value of any additional security previously
provided under this Clause 16
(Security Cover),
is below 125 per cent, of the Loan.
16.2 Provision of additional security; prepayment If the Agent serves a notice on the Borrower under Clause 16.1
(Minimum
required security cover),
the Borrower shall, within 1 month after the date on which the Agent's notice is served, either:
(a) provide, or ensure that a third party provides, additional security which is acceptable to the Agent and, in the opinion of
the Majority Lenders, has a net realisable value at least equal to the shortfall and is documented in such terms as the Agent
may, with the authorisation of the Majority Lenders, approve or require; or (b) prepay such part (at least) of the Loan as will
eliminate the shortfall. 16.3 Valuation of Ship The market value of the Ship at any date is that shown by the average of 2 valuations
addressed to the Agent for the benefit of the Lenders and prepared: (a) as at a date not more than 14 days previously; (b) by
2 independent first class sale and purchase shipbrokers which the Agent has approved or appointed for the purpose; (c) with or
without physical inspection of the Ship (as the Agent may require); (d) on the basis of a sale for prompt delivery for cash on
normal arm's length commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract
of employment; and (e) after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection
with the sale. 16.4 Value of additional vessel security The net realisable value of any additional security which is provided
under Clause 16.2
(Provision of additional security; prepayment)
and which consists
of a Security Interest over a vessel shall be that shown by a valuation complying with the requirements of Clause 16.3
(Valuation
of Ship).
16.5 Valuations binding Any valuation under Clause 16.2
(Provision of additional
security; prepayment),
16.3
(Valuation of Ship)
or 16.4
(Value
of additional vessel security)
shall be binding and conclusive as regards the Borrower, as shall be any valuation which
the Majority Lenders make of any additional security which does not consist of or include a Security Interest. 16.6 Provision
of information The Borrower shall promptly provide the Agent and any shipbroker or expert acting under Clause 16.3
(Valuation
of Ship)
or 16.4
(Value of additional vessel security)
with any information
which the Agent or the shipbroker or expert may reasonably request for the purposes of the valuation;
16.7 Payment of valuation expenses Without prejudice to the
generality of the Borrower's obligations under Clauses 21.2
(Costs of negotiation, preparation
etc.),
21.3
(Costs of variations, amendments, enforcement etc.)
and 22.3
(Miscellaneous
indemnities),
the Borrower shall, on demand, pay the Agent the amount of the fees and expenses of any shipbroker or expert
instructed by the Agent under this Clause and all legal and other expenses incurred by any Creditor Party in connection with any
matter arising out of this Clause. 16.8 Application of prepayment Clause 8
(Repayment and
Prepayment)
shall apply in relation to any prepayment pursuant to paragraph (b) of Clause 16.2 (
Provision
of additional security; prepayment).
17 PAYMENTS AND CALCULATIONS 17.1 Currency and method of payments All payments to
be made by the Lenders or by the Borrower under a Finance Document shall be made to the Agent or to the Security Trustee, in the
case of an amount payable to it: (a) by not later than 11.00 a.m. (New York City time) on the due date; (b) in same day Dollar
funds settled through the New York Clearing House Interbank Payments System (or in such other Dollar funds and/or settled in such
other manner as the Agent shall specify as being customary at the time for the settlement of international transactions of the
type contemplated by this Agreement); (c) in the case of an amount payable by a Lender to the Agent or by the Borrower to the
Agent or any Lender, to such account as the Agent may advise from time to time; and (d) in the case of an amount payable to the
Security Trustee, to such account as it may from time to time notify to the Borrower and the other Creditor Parties. 17.2 Payment
on non-Business Day If any payment by the Borrower under a Finance Document would otherwise fall due on a day which is not a Business
Day: (a) the due date shall be extended to the next succeeding Business Day; or (b) if the next succeeding Business Day falls
in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day; and interest shall
be payable during any extension under paragraph (a) at the rate payable on the original due date. 17.3 Basis for calculation of
periodic payments All interest, commitment fee and commission and any other payments under any Finance Document which are of an
annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed
and a 360 day year. 17.4 Distribution of payments to Creditor Parties
Subject to Clauses
17.5
(Permitted deductions by Agent),
17.6
(Agent only obliged to pay when
monies received)
and 17.7
(Refund to Agent of monies not received):
(a) any amount received by the Agent under a Finance Document
for distribution or remittance to a Lender or the Security Trustee shall be made available by the Agent to that Lender or, as
the case may be, the Security Trustee by payment, with funds having the same value as the funds received, to such account as the
Lender or the Security Trustee may have notified to the Agent not less than 5 Business Days previously; and (b) amounts to be
applied in satisfying amounts of a particular category which are due to the Lenders generally shall be distributed by the Agent
to each Lender pro rata to the amount in that category which is due to it. 17.5 Permitted deductions by Agent Notwithstanding
any other provision of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender,
deduct and withhold from that amount any sum which is then due and payable to the Agent from that Lender under any Finance Document
or any sum which the Agent is then entitled under any Finance Document to require that Lender to pay on demand. 17.6 Agent only
obliged to pay when monies received Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent
shall not be obliged to make available to the Borrower or any Lender any sum which the Agent is expecting to receive for remittance
or distribution to the Borrower or that Lender until the Agent has satisfied itself that it has received that sum. 17.7 Refund
to Agent of monies not received If and to the extent that the Agent makes available a sum to the Borrower or a Lender, without
first having received that sum, the Borrower or (as the case may be) the Lender concerned shall, on demand: (a) refund the sum
in full to the Agent; and (b) pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any
funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving it.
17.8 Agent may assume receipt Clause 17.7
(Refund to Agent of monies not received)
shall not affect any claim which the Agent has under the law of restitution, and applies irrespective of whether the Agent had
any form of notice that it had not received the sum which it made available. 17.9 Creditor Party accounts Each Creditor Party
shall maintain accounts showing the amounts owing to it by the Borrower and each Security Party under the Finance Documents and
all payments in respect of those amounts made by the Borrower and any Security Party. 17.10 Agent's memorandum account The Agent
shall maintain a memorandum account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security
Trustee and each Lender from the Borrower and each Security Party under the Finance Documents and all payments in respect of those
amounts made by the Borrower and any Security Party.
17.11 Accounts prima facie evidence If any accounts maintained
under Clauses 17.9 (
Creditor Party accounts)
and 17.10 (
Agent's
memorandum account)
show an amount to be owing by the Borrower or a Security Party to a Creditor Party, those accounts
shall be prima facie evidence that that amount is owing to that Creditor Party. 18 APPLICATION OF RECEIPTS 18.1 Normal order of
application Except as any Finance Document may otherwise provide, any sums which are received or recovered by any Creditor Party
under or by virtue of any Finance Document shall be applied: (a) FIRST: in or towards payment pro rata of any unpaid fees, costs
and expenses of the Agent and the Security Trustee under the Finance Documents; (b) SECONDLY: in or towards payment pro rata of
any accrued interest or commission due but unpaid under this Agreement; (c) THIRDLY: in or towards payment pro rata of any principal
due but unpaid under this Agreement; (d) FOURTHLY: in or towards payment pro rata of any other amounts due but unpaid under any
Finance Document; (e) FIFTHLY: in retention of an amount equal to any amount not then due and payable under any Finance Document
but which the Agent, by notice to the Borrower, the Security Parties and the other Creditor Parties, states in its opinion will
or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them
in accordance with the provisions of paragraphs (a), (b), (c) and (d) of Clause 18.1 (
Normal
order of application);
and (f) SIXTHLY: any surplus shall be paid to the Borrower or to any other person appearing to be
entitled to it. 18.2 Variation of order of application The Agent may, with the authorisation of the Majority Lenders, by notice
to the Borrower, the Security Parties and the other Creditor Parties provide for a different manner of application from that set
out in Clause 18.1
(Normal order of application)
either as regards a specified sum
or sums or as regards sums in a specified category or categories. 18.3 Notice of variation of order of application The Agent may
give notices under Clause 18.2
(Variation of order of application)
from time to time;
and such a notice may be stated to apply not only to sums which may be received or recovered in the future, but also to any sum
which has been received or recovered on or after the third Business Day before the date on which the notice is served. 18.4 Appropriation
rights overridden This Clause 18
(Application of Receipts)
and any notice which the
Agent gives under Clause 18.2
(Variation of order of application)
shall override
any right of appropriation possessed, and any appropriation made, by the Borrower or any Security Party.
19 APPLICATION OF EARNINGS 19.1 Payment of Earnings The Borrower
undertakes with each Creditor Party to ensure that, throughout the Security Period (and subject only to the provisions of the
General Assignment), all the Earnings are paid to the Earnings Account. 19.2 Interest accrued on Earnings Account Any credit balance
on the Earnings Account shall bear interest at the rate from time to time offered by the Agent to its customers for Dollar deposits
of similar amounts and for periods similar to those for which such balances appear to the Agent likely to remain on the Earnings
Account. 19.3 Monies on Earnings Any monies standing to the credit of the Earnings Account shall, ee i olae
Minimum
Liquidity)
le provided that no Event of Default or Potential Event of Default shall have occurred, be at the free disposal
of the Borrower. 19.4 Location of accounts 19.5The Borrower shall promptly: (a) comply with any requirement of the Agent as to
the location or re-location of the Earnings Account; and (b) execute any documents which the Agent specifies to create or maintain
in favour of the Security Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation
to) the Earnings Account. 19.5 19.6Debits for expenses etc. Following the occurrence of an Event of Default which is continuing
the Agent shall be entitled (but not obliged) from time to time to debit the Earnings Account without prior notice in order to
discharge any amount due and payable to it under Clauses 21
(Fees and Expenses)
or
22
(Indemnities)
to a Creditor Party or payment of which any Creditor Party has become
entitled to demand under Clause 21
(Fees and Expenses)
or 22
(Indemnities).
20 EVENTS OF DEFAULT 20.1 Events of Default An Event of Default occurs if: (a) the Borrower or any Security Party fails
to pay within 3 Business Days of the date when due any sum payable under a Finance Document or under any document relating to
a Finance Document; or (b) any breach occurs of Clauses 9.2
(Waiver of conditions precedent),
10.17
10.18
(
Sanctions).
12.2
(Title; negative pledge),
12.3
(No disposal of assets),
12.17
La
12.17
(Conduct of business; compliance with laws)
in
so far as it relates to Sanctions Laws, 12.19 ( 13.2
(Maintenance of status),
13.3
(Negative
), 13.4 13.5 (
Payment of dividend
13;5
),
13.6
(Notification of Sanctions),
paragraph
(b) of 15.9
(Compliance with laws etc.)
(insofar as it relates to Sanctions Laws)
or 16.2
(Provision of additional security; prepayment);
or
(c) any breach by the Borrower or any Security Party occurs
of any provision of a Finance Document (other than a breach covered by paragraphs (a) or (b)) which, in the opinion of the Majority
Lenders, is capable of remedy, and such default continues unremedied 30 days after written notice from the Agent requesting action
to remedy the same; or (d) any representation, warranty or statement made or repeated by, or by an officer of, the Borrower or
a Security Party in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document
is untrue or misleading when it is made or repeated; or (e) any of the following occurs in relation to any Financial Indebtedness
of a Relevant Person in respect of a sum, or sums aggregating, $[1]5,000,000
10,000,000
or more in the case of the Borrower or the equivalent in another currency: (i) any Financial Indebtedness of a Relevant
Person is not paid when due; or (ii) any Financial Indebtedness of a Relevant Person becomes due and payable or capable of being
declared due and payable prior to its stated maturity date as a consequence of any event of default; or (iii) a lease, hire purchase
agreement or charter creating any Financial Indebtedness of a Relevant Person is terminated by the lessor or owner or becomes
capable of being terminated as a consequence of any termination event; or (iv) any overdraft, loan, note issuance, acceptance
credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative contract or transaction,
relating to any Financial Indebtedness of a Relevant Person ceases to be available or becomes capable of being terminated as a
result of any event of default, or cash cover is required, or becomes capable of being required, in respect of such a facility
as a result of any event of default; or (v) any Security Interest securing any Financial Indebtedness of a Relevant Person becomes
enforceable; or (f) any of the following occurs in relation to a Relevant Person: (i) a Relevant Person becomes, in the opinion
of the Majority Lenders, unable to pay its debts as they fall due; or (ii) any assets of a Relevant Person are subject to any
form of execution, attachment, arrest, sequestration or distress in respect of a sum of, or sums aggregating, $[1]
10,000,000
or more in the case of the Borrower or the equivalent in another currency; or r (iii) any administrative or other receiver
is appointed over any asset of a Relevant Person; or (iv) an administrator is appointed (whether by the court or otherwise) in
respect of a Relevant Person; or (v) any formal declaration of bankruptcy or any formal statement to the effect that a Relevant
Person is insolvent or likely to become insolvent is made by a Relevant Person or by the directors of a Relevant Person or, in
any proceedings, by a lawyer acting for a Relevant Person; or
(vi) a provisional liquidator is appointed in respect of a Relevant
Person, a winding up order is made in relation to a Relevant Person or a winding up resolution is passed by a Relevant Person;
or (vii) a resolution is passed, an administration notice is given or filed, an application or petition to a court is made or
presented or any other step is taken by (aa) a Relevant Person, (bb) the members or directors of a Relevant Person, (cc) a holder
of Security Interests which together relate to all or substantially all of the assets of a Relevant Person, or (dd) a government
minister or public or regulatory authority of a Pertinent Jurisdiction for or with a view to the winding up of that or another
Relevant Person or the appointment of a provisional liquidator or administrator in respect of that or another Relevant Person,
or that or another Relevant Person ceasing or suspending business operations or payments to creditors, save that this paragraph
does not apply to a fully solvent winding up of a Relevant Person other than the Borrower which is, or is to be, effected for
the purposes of an amalgamation or reconstruction previously approved by the Majority Lenders and effected not later than 3 months
after the commencement of the winding up; or (viii) an administration notice is given or filed, an application or petition to
a court is made or presented or any other step is taken by a creditor of a Relevant Person (other than a holder of Security Interests
which together relate to all or substantially all of the assets of a Relevant Person) for the winding up of a Relevant Person
or the appointment of a provisional liquidator or administrator in respect of a Relevant Person in any Pertinent Jurisdiction,
unless the proposed winding up, appointment of a provisional liquidator or administration is being contested in good faith, on
substantial grounds and not with a view to some other insolvency law procedure being implemented instead and either (aa) the application
or petition is dismissed or withdrawn within 30 days of being made or presented, or (bb) within 30 days of the administration
notice being given or filed, or the other relevant steps being taken, other action is taken which will ensure that there will
be no administration and (in both cases (aa) or (bb)) the Relevant Person will continue to carry on business in the ordinary way
and without being the subject of any actual, interim or pending insolvency law procedure; or (ix) a Relevant Person or its directors
take any steps (whether by making or presenting an application or petition to a court, or submitting or presenting a document
setting out a proposal or proposed terms, or otherwise) with a view to obtaining, in relation to that or another Relevant Person,
any form of moratorium, suspension or deferral of payments, reorganisation of debt (or certain debt) or arrangement with all or
a substantial proportion (by number or value) of creditors or of any class of them or any such moratorium, suspension or deferral
of payments, reorganisation or arrangement is effected by court order, by the filing of documents with a court, by means of a
contract or in any other way at all; or (x) any meeting of the members or directors, or of any committee of the board or senior
management, of a Relevant Person is held or summoned for the purpose of considering a resolution or proposal to authorise or take
any action of a type described in paragraphs (iv) to (ix) or a step preparatory to such action, or (with or without such a meeting)
the members, directors or such a committee resolve or agree that such an action or step should be taken or should be taken if
certain conditions materialise or fail to materialise; or (xi) in a Pertinent Jurisdiction other than England, any event occurs,
any proceedings are opened or commenced or any step is taken which, in the opinion of the Majority Lenders is similar to any of
the foregoing; or (g) the Borrower ceases or suspends carrying on its business or a part of its business which, in the opinion
of the Majority Lenders, is material in the context of this Agreement; or
(h) it becomes unlawful in any Pertinent Jurisdiction or impossible:
(i) for the Borrower or any Security Party to discharge any liability under a Finance Document or to comply with any other obligation
which the Majority Lenders consider material under a Finance Document; or (ii) for the Agent, the Security Trustee or the Lenders
to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document; or (i) any consent
necessary to enable the Borrower to own, operate or charter the Ship or to enable the Borrower or any Security Party to comply
with any provision which the Majority Lenders consider material of a Finance Document is not granted, expires without being renewed,
is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled; or e iee ieeee a cl e ie alie
(j) (k)any provision which the Majority Lenders reasonably consider material of a Finance Document proves to have been or becomes
invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes invalid or unenforceable
or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest or any other third
party claim or interest; or (k) (l)the security constituted by a Finance Document is in any way imperilled or in jeopardy; or
(I) (m)any event or circumstance occurs which the Majority Lenders determine has, or could reasonably be expected to have a material
adverse effect: (i) on the ability of the Borrower to perform its obligations under the Finance Documents; or (ii) on the property,
assets, nature of assets, operations, liabilities or condition (financial or otherwise) of the Borrower. 20.2 Actions following
an Event of Default On, or at any time after, the occurrence of an Event of Default which is continuing: (a) the Agent may, and
if so instructed by the Majority Lenders, the Agent shall: (i) serve on the Borrower a notice stating that the Commitments and
all other obligations of each Lender to the Borrower under this Agreement are cancelled; and/or (ii) serve on the Borrower a notice
stating that the Loan, all accrued interest and all other amounts accrued or owing under this Agreement are immediately due and
payable or are due and payable on demand; and/or (iii) take any other action which, as a result of the Event of Default or any
notice served under paragraph (i) or (ii), the Agent and/or the Lenders are entitled to take under any Finance Document or any
applicable law; and/or (b) the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of the Majority
Lenders, the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under paragraph
(a) (i) or (ii), the Security Trustee, the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable
law.
20.3 Termination of Commitments On the service of a notice under
paragraph (a)(i) of Clause 20.2
(Actions following an Event of Default),
the Commitments
and all other obligations of each Lender to the Borrower under this Agreement shall be cancelled. 20.4 Acceleration of Loan On
the service of a notice under paragraph (a)(ii) of Clause 20.2
(Actions following an Event
of Default)
the Loan, all accrued interest and all other amounts accrued or owing from the Borrower or any Security Party
under this Agreement and every other Finance Document shall become immediately due and payable or, as the case may be, payable
on demand. 20.5 Multiple notices; action without notice The Agent may serve notices under paragraphs (a)(i) or (ii) of Clause
20.2
(Actions following an Event of Default)
simultaneously or on different dates
and it and/or the Security Trustee may take any action referred to in Clause 20.2
20.3 (Actions
following an Event of Default)
if no such notice is served or simultaneously with or at any time after the service of both
or either of such notices. 20.6 Notification of Creditor Parties and Security Parties The Agent shall send to each Lender, the
Security Trustee and each Security Party a copy or the text of any notice which the Agent serves on the Borrower under Clause
20.2 (Actions
following an Event of Default);
but the notice shall become effective
when it is served on the Borrower, and no failure or delay by the Agent to send a copy or the text of the notice to any other
person shall invalidate the notice or provide the Borrower or any Security Party with any form of claim or defence. 20.7 Lender's
rights unimpaired Nothing in this Clause shall be taken to impair or restrict the exercise of any right given to individual Lenders
under a Finance Document or the general law; and, in particular, this Clause is without prejudice to Clause 3.1
(Interests
of Lenders several).
20.8 Exclusion of Creditor Party liability No Creditor Party, and no receiver or manager appointed
by the Security Trustee, shall have any liability to the Borrower or a Security Party: (a) for any loss caused by an exercise
of rights under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such
a right or to enforce such a Security Interest; or (b) as mortgagee in possession or otherwise, for any income or principal amount
which might have been produced by or realised from any asset comprised in such a Security Interest or for any reduction (however
caused) in the value of such an asset, except that this does not exempt a Creditor Party or a receiver or manager from liability
for losses shown to have been directly and mainly caused by the dishonesty or the wilful misconduct of such Creditor Party's own
officers and employees or (as the case may be) such receiver's or manager's own partners or employees. 20.9 Relevant Persons In
this Clause 20 (
Events of Default),
a
"Relevant
Person"
means the Borrower and any Security Party.
20.10 Interpretation
In
paragraph (ed) of Clause 20.1
(Events of Default),
references to an event of default
or a termination event include any event, howsoever described, which is similar to an event of default in a facility agreement
or a termination event in a finance lease; and in paragraph (fe) of Clause 20.1
(Events
of Default)
"petition" includes an application. 21 FEES AND EXPENSES 21.1 Arrangement and commitment fees The
Borrower shall pay: (a) to the Agent an arrangement fee in the amount and at the times agreed in a Fee Letter; and (b) to the
Agent (for the account of each Lender) quarterly in arrears during the period from (and including) the date of this Agreement
to the earlier of (i) the final Drawdown Date and (ii) the last day of the Availability Period, for the account of the Lenders,
a commitment fee at the rate of 0.50 per cent, per annum on the amount of the Total Commitments less the amount of the Loan, for
distribution among the Lenders pro rata to their Commitments. 21.2 Costs of negotiation, preparation etc. The Borrower shall pay
to the Agent on its demand the amount of all expenses incurred by the Agent or the Security Trustee in connection with the negotiation,
preparation, execution or registration of any Finance Document or any related document or with any transaction contemplated by
a Finance Document or a related document. 21.3 Costs of variations, amendments, enforcement etc. The Borrower shall pay to the
Agent, on the Agent's demand, for the account of the Creditor Party concerned the amount of all expenses incurred by a Creditor
Party in connection with: (a) any amendment or supplement to a Finance Document, or any proposal for such an amendment to be made;
(b) any consent or waiver by the Lenders, the Majority Lenders or the Creditor Party concerned under or in connection with a Finance
Document, or any request for such a consent or waiver; (c) the valuation of any security provided or offered under Clause 16
(Security
Cover
) or any other matter relating to such security; or (d) any step taken by the Creditor Party concerned with a view
to the protection, exercise or enforcement of any right or Security Interest created by a Finance Document or for any similar
purpose. There shall be recoverable under paragraph (d) the full amount of all legal expenses, whether or not such as would be
allowed under rules of court or any taxation or other procedure carried out under such rules. 21.4 Documentary taxes The Borrower
shall promptly pay any tax payable on or by reference to any Finance Document, and shall, on the Agent's demand, fully indemnify
each Creditor Party against any claims, expenses, liabilities and losses resulting from any failure or delay by the Borrower to
pay such a tax.
21.5 Certification of amounts
A
notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to
that Creditor Party under this Clause 21 (
Fees and Expenses)
and which indicates
(without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due
shall be prima facie evidence that the amount, or aggregate amount, is due. 22 INDEMNITIES 22.1 Indemnities regarding borrowing
and repayment of Loan The Borrower shall fully indemnify the Agent and each Lender on the Agent's demand and the Security Trustee
on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by that
Creditor Party, or which that Creditor Party reasonably and with due diligence estimates that it will incur, as a result of or
in connection with: (a) an Advance not being borrowed on the date specified in the Drawdown Notice for any reason other than a
default by the Lender claiming the indemnity; (b) the receipt or recovery of all or any part of the Loan or an overdue sum otherwise
than on the last day of an Interest Period or other relevant period; (c) any failure (for whatever reason) by the Borrower to
make payment of any amount due under a Finance Document on the due date or, if so payable, on demand (after giving credit for
any default interest paid by the Borrower on the amount concerned under Clause 7 (
Default
Interest);
(d) the occurrence of an Event of Default or a Potential Event of Default and/or the acceleration of repayment
of the Loan under Clause 20
(Events of Default),
and in respect of any tax (other
than tax on its overall net income) for which a Creditor Party is liable in connection with any amount paid or payable to that
Creditor Party (whether for its own account or otherwise) under any Finance Document. 22.2 Breakage costs Without limiting its
generality, Clause 22.1
(Indemnities regarding borrowing and repayment of Loan)
covers
any claim, expense, liability or loss, including a loss of a prospective profit, incurred by a Lender: (a) in liquidating or employing
deposits from third parties acquired or arranged to fund or maintain all or any part of its Contribution and/or any overdue amount
(or an aggregate amount which includes its Contribution or any overdue amount); and (b) in terminating, or otherwise in connection
with, any interest and/or currency swap or any other transaction entered into (whether with another legal entity or with another
office or department of the Lender concerned) to hedge any exposure arising under this Agreement or a number of transactions of
which this Agreement is one. In the circumstances referred to in paragraph (b) of Clause 22.1
(Indemnities
regarding borrowing and repayment of Loan)
such costs shall include an amount equal to the Margin which would, but, for
receipt or recovery of the relevant part of the Loan, have accrued on the relevant part of the Loan, from the date of such receipt
or recovery to the end of the then current Interest Period relating thereto.
22.3 Miscellaneous indemnities The Borrower shall fully indemnify
each Creditor Party severally on their respective demands in respect of all claims, expenses, liabilities and losses which may
be made or brought against or incurred by a Creditor Party, in any country, as a result of or in connection with: (a) any action
taken, or omitted or neglected to be taken, under or in connection with any Finance Document by the Agent, the Security Trustee
or any other Creditor Party or by any receiver appointed under a Finance Document; or (b) any other Pertinent Matter, other than
claims, expenses, liabilities and losses which are shown to have been directly and mainly caused by the dishonesty, gross negligence
or wilful misconduct of the officers or employees of the Creditor Party concerned. Without prejudice to its generality, this Clause
22.3
(Miscellaneous indemnities)
covers any claims, expenses, liabilities and losses
which arise, or are asserted, under or in connection with any law relating to safety at sea, the ISM Code, the ISPS Code, any
Environmental Law or any Sanctions Laws. 22.4 Currency indemnity If any sum due from the Borrower or any Security Party to a Creditor
Party under a Finance Document or under any order or judgment relating to a Finance Document has to be converted from the currency
in which the Finance Document provided for the sum to be paid (the
"Contractual Currency")
into another currency (the
"Payment Currency")
for the purpose of:
(a) making or lodging any claim or proof against the Borrower or any Security Party, whether in its liquidation, any arrangement
involving it or otherwise; or (b) obtaining an order or judgment from any court or other tribunal; or (c) enforcing any such order
or judgment, the Borrower shall indemnify the Creditor Party concerned against the loss arising when the amount of the payment
actually received by that Creditor Party is converted at the available rate of exchange into the Contractual Currency. In this
Clause 22.4
(Currency indemnity),
the "available rate of exchange" means
the rate at which the Creditor Party concerned is able at the opening of business (London time) on the Business Day after it receives
the sum concerned to purchase the Contractual Currency with the Payment Currency. This Clause 22.4
(Currency
indemnity)
creates a separate liability of the Borrower which is distinct from its other liabilities under the Finance
Documents and which shall not be merged in any judgment or order relating to those other liabilities. 22.5 Certification of amounts
A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due
to that Creditor Party under this Clause 22
(Indemnities)
and which indicates (without
necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be
prima facie evidence that the amount, or aggregate amount, is due.
22.6 Sums deemed due to a Lender For the purposes of this Clause
22 (
Indemnities
), a sum payable by the Borrower to the Agent or the Security Trustee
for distribution to a Lender shall be treated as a sum due to that Lender. 22.7 Sanctions and regulatory indemnities The Borrower
shall pay to the Agent on demand, and the Borrower shall indemnify each Lender against, all costs, charges, expenses, claims,
liabilities, losses, duties and fees (including, but not limited to, legal fees and expenses on a full indemnity basis) and taxes
thereon suffered or incurred by a Lender (other than in each case by reason of a Lender's gross negligence, dishonesty or wilful
misconduct): (a) arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental
Law or any Sanctions Law; or (b) as a result of any claim, action, civil penalty or fine against, any settlement, and any other
kind of loss or liability, and as a result of conduct of the Borrower or any of their partners, directors, officers, employees
or agents that violates any Sanctions Laws. 23 NO SET-OFF OR TAX DEDUCTION 23.1 No deductions All amounts due from the Borrower
under a Finance Document shall be paid: (a) without any form of set-off, cross-claim or condition; and (b) free and clear of any
tax deduction except a tax deduction which the Borrower is required by law to make. 24 TAX GROSS UP AND INDEMNITIES 24.1 Definitions
(a) In this Agreement:
"Protected Party"
means a Creditor Party which is
or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
"Tax
Credit"
means a credit against, relief or remission for, or repayment of any Tax.
"Tax
Deduction"
means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other
than a FATCA Deduction.
"Tax Payment"
means either the increase in a payment
made by the Borrower to a Creditor Party under Clause 24.2
(Tax gross-up)
or a payment
under Clause 24.3
(Tax indemnity).
Unless a contrary indication appears, in this
Clause 24
(Tax Gross Up and Indemnities)
reference to
"determines"
or
"determined"
means a determination made in the absolute discretion
of the person making the determination.
24.2 Tax gross-up (a)
The
Borrower shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
(b)
The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or
that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall
notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification
from a Lender it shall notify the Borrower.
(c)
If a Tax Deduction is required by
law to be made by the Borrower, the amount of the payment due from the Borrower shall be increased to an amount which (after making
any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(d)
If the Borrower is required to make a Tax Deduction, the Borrower shall make that Tax
Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required
by law.
(e)
Within 30 days of making either a Tax Deduction or any payment required
in connection with that Tax Deduction, the Borrower making that Tax Deduction shall deliver to the Agent for the Creditor Party
entitled to the payment evidence reasonably satisfactory to that Creditor Party that the Tax Deduction has been made or (as applicable)
any appropriate payment paid to the relevant taxing authority.
24.3 Tax indemnity (a)
The
Borrower shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability
or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by
that Protected Party in respect of a Finance Document.
(b)
Paragraph (a) above shall
not apply:
(i)
with respect to any Tax assessed on a Creditor Party:
(A)
under
the law of the jurisdiction in which that Creditor Party is incorporated or, if different, the jurisdiction (or jurisdictions)
in which that Creditor Party is treated as resident for tax purposes; or
(B)
under
the law of the jurisdiction in which that Creditor Party's Facility Office is located in respect of amounts received or receivable
in that jurisdiction, if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any
sum deemed to be received or receivable) by that Creditor Party; or
(ii)
to the extent
a loss, liability or cost:
(A)
is compensated for by an increased payment under Clause
24.2 (Tax gross- up); or
(B)
relates to a FATCA Deduction required to be made by
a Party.
(c)
A Protected Party making, or intending to make, a claim under paragraph
(a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent
shall notify the Borrower.
(d)
A Protected Party
shall, on receiving a payment from the Borrower under this Clause 24.3 (Tax indemnity), notify the Agent.
24.4 Tax Credit
If the Borrower makes a Tax Payment and the relevant Creditor Party determines that:
(a)
a Tax Credit is attributable to an increased payment of which that Tax Payment forms
part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
(b)
that
Creditor Party has obtained and utilised that Tax Credit, the Creditor Party shall pay an amount to the Borrower which that Creditor
Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment
not been required to be made by the Borrower.
24.5 Stamp taxes
The Borrower shall
pay and, within three Business Days of demand, indemnify each Creditor Party against any cost, loss or liability which that Creditor
Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
24.6 VAT (a)
All amounts expressed to be payable under a Finance Document by any Party to
a Creditor Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive
of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable
on any supply made by any Creditor Party to any Party under a Finance Document and such Creditor Party is required to account
to the relevant tax authority for the VAT, that Party must pay to such Creditor Party (in addition to and at the same time as
paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Creditor Party must promptly
provide an appropriate VAT invoice to that Party).
(b)
If VAT is or becomes chargeable
on any supply made by any Creditor Party (the "Supplier") to any other Creditor Party (the "Recipient") under
a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance
Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse
or indemnify the Recipient in respect of that consideration):
(i)
(where the Supplier
is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier
(at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this sub-paragraph
(i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant
tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
(ii)
(where
the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following
demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that
the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect
of that VAT.
(c)
Where a Finance Document requires any Party to reimburse or indemnify
a Creditor Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Creditor Party for
the full amount of such cost or expense, including such part of it as represents VAT,
save to the extent that such Creditor Party reasonably determines
that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
(d)
Any reference in this Clause 24.6 (VAT) to any Party shall, at any time when that Party
is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context
otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving
the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant
member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant
group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative
member (or representative or head) of that group or unity at the relevant time (as the case may be).
(e)
In
relation to any supply made by a Creditor Party to any Party under a Finance Document, if reasonably requested by such Creditor
Party, that Party must promptly provide such Creditor Party with details of that Party's VAT registration and such other information
as is reasonably requested in connection with such Creditor Party's VAT reporting requirements in relation to such supply.
24.7 FATCA Information (a)
Subject to paragraph (c) below, each Party shall, within ten
Business Days of a reasonable request by another Party:
(i)
confirm to that other
Party whether it is:
(A)
a FATCA Exempt Party; or
(B)
not
a FATCA Exempt Party; and
(ii)
supply to that other Party such forms, documentation
and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other
Party's compliance with FATCA; and
(iii)
supply to that other Party such forms, documentation
and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance
with any other law, regulation, or exchange of information regime.
(b)
If a Party
confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently
becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
(c)
Paragraph (a) above shall not oblige any Creditor Party to do anything and sub-paragraph
(iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute
a breach of:
(i)
any law or regulation;
(ii)
any
fiduciary duty; or
(iii)
any duty of confidentiality.
(d)
If
a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested
in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c)
above applies), then such Party shall be treated for the purposes of the Finance Documents (and
payments under them) as if it is not a FATCA Exempt Party until
such time as the Party in question provides the requested confirmation, forms, documentation or other information.
24.8
FATCA Deduction (a)
Each Party may make any FATCA Deduction it is required to make by FATCA,
and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect
of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
(b)
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or
that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment
and, in addition, shall notify each Obligor and the Agent and the Agent shall notify the other Creditor Parties.
25 ILLEGALITY,
ETC 25.1 Illegality
This Clause 25 (Illegality, etc) applies if a Lender (the "Notifying
Lender") notifies the Agent that it has become, or will with effect from a specified date, become:
(a)
unlawful
or prohibited as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which
an existing law is or will be interpreted or applied; or
(b)
contrary to, or inconsistent
with, any regulation and/or contrary to or declared by any Sanctions Authority to be contrary to Sanctions Laws, for the Notifying
Lender to maintain or give effect to any of its obligations under this Agreement in the manner contemplated by this Agreement.
25.2 Notification of illegality
The Agent shall promptly notify the Borrower, the
Security Parties, the Security Trustee and the other Lenders of the notice under Clause 25.1 (Illegality) which the Agent receives
from the Notifying Lender.
25.3 Prepayment; termination of Commitment
On the Agent
notifying the Borrower under Clause 25.2 (Notification of illegality), the Notifying Lender's Commitment shall terminate; and
thereupon or, if later, on the date specified in the Notifying Lender's notice under Clause 25.1 (Illegality) as the date on which
the notified event would become effective the Borrower shall prepay the Notifying Lender's Contribution in accordance with Clause
8.
25.4 Mitigation
If circumstances arise which would result in a notification under
Clause 25.1 (Illegality) then, without in any way limiting the rights of the Notifying Lender under Clause 25.3 (Prepayment; termination
of Commitment), the Notifying Lender shall use reasonable endeavours to transfer its obligations, liabilities and rights under
this Agreement and the Finance Documents to another office or financial institution not affected by the circumstances but the
Notifying Lender shall not be under any obligation to take any such action if, in its opinion, to do would or might:
(a)
have an adverse effect on its business, operations or financial condition; or
(b)
involve it in any
activity which is unlawful or prohibited or any activity that is contrary to, or inconsistent with, any regulation; or
(c)
involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
26 INCREASED COSTS 26.1 Increased costs
This Clause 26 (Increased Costs) applies
if a Lender (the "Notifying Lender") notifies the Agent that the Notifying Lender considers that as a result of:
(a)
the introduction or alteration after the date of this Agreement of a law or an alteration
after the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates
to the application to payments under this Agreement of a tax on the Lender's overall net income); or
(b)
complying
with any regulation (including any which relates to capital adequacy or liquidity controls or which affects the manner in which
the Notifying Lender allocates capital resources to its obligations under this Agreement) which is introduced, or altered, or
the interpretation or application of which is altered, after the date of this Agreement;
(c)
the
implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel
III or CRD IV, the Notifying Lender (or a parent company of it) has incurred or will incur an "increased cost".
26.2
In this Clause 26 (Increased Costs):
(a) "increased cost" means,:
(i)
a reduction in the rate of return from the Loan or on a Creditor Party's (or its Affiliate's)
overall capital;
(ii)
an additional or increased cost; or
(iii)
a
reduction of any amount due and payable under any Finance Document, which is incurred or suffered by a Creditor Party or any of
its Affiliates to the extent that it is attributable to that Creditor Party having entered into its Commitment or funding or performing
its obligations under any Finance Document. For the purposes of this Clause 26.2 the Notifying Lender may in good faith allocate
or spread costs and/or losses among its assets and liabilities (or any class of its assets and liabilities) on such basis as it
considers appropriate.
(b) "Basel III" means: (i)
the agreements on capital
requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient
banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring"
and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee
on Banking Supervision in December 2010, each as amended, supplemented or restated;
(ii)
the
rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and
the additional loss absorbency
requirement - Rules text" published by the Basel Committee
on Banking Supervision in November 2011, as amended, supplemented or restated; and
(iii)
any further guidance or standards published by the Basel Committee on Banking Supervision
relating to "Basel III".
(c)
"CRD IV" means:
(i)
Regulation
(EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions
and investment firms and amending regulation (EU) No. 648/2012;
(ii)
Directive 2013/36/EU
of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential
supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and
2006/49/EC; and
(iii)
any other law or regulation which implements Basel III.
26.3 Notification to Borrower of claim for increased costs
The Agent shall promptly notify
the Borrower and the Security Parties of the notice which the Agent received from the Notifying Lender under Clause 26.1 (Increased
costs).
26.4 Payment of increased costs
The Borrower shall pay to the Agent, on the
Agent's demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrower that
the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.
26.5 Notice
of prepayment
If the Borrower is not willing to continue to compensate the Notifying Lender
for the increased cost under Clause 26.4 (Payment of increased costs), the Borrower may give the Agent not less than 14 days'
notice of its intention to prepay the Notifying Lender's Contribution at the end of an Interest Period.
26.6 Prepayment;
termination of Commitment
A notice under Clause 26.5 (Notice of prepayment) shall be irrevocable;
the Agent shall promptly notify the Notifying Lender of the Borrower's notice of intended prepayment; and:
(a)
on
the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall be cancelled; and
(b)
on
the date specified in its notice of intended prepayment, the Borrower shall prepay (without premium or penalty) the Notifying
Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin.
26.7 Exceptions
Clause
26.1 (Increased costs) does not apply to the extent any Increased Cost is:
(a)
attributable
to a Tax Deduction required by law to be made by the Borrower;
(b)
attributable to
a FATCA Deduction required to be made by a Party;
(c)
compensated for by
Clause 24.3 (Tax indemnity) (or would have been compensated for under Clause 24.3 (Tax indemnity) but was not so compensated solely
because any of the exclusions in paragraph (b) of Clause 24.3 (Tax indemnity) applied). Application of prepayment. Clause 8 (Repayment
and Prepayment) shall apply in relation to the prepayment.
27 SET-OFF 27.1 Application of credit balances
At
any time after the occurrence of an Event of Default which is continuing, each Creditor Party may without prior notice:
(a)
apply any balance (whether or not then due) which at any time stands to the credit of
any account in the name of the Borrower at any office in any country of that Creditor Party in or towards satisfaction of any
sum then due from the Borrower to that Creditor Party under any of the Finance Documents; and
(b)
for
that purpose:
(i)
break, or alter the maturity of, all or any part of a deposit of
the Borrower;
(ii)
convert or translate all or any part of a deposit or other credit
balance into Dollars; and
(iii)
enter into any other transaction or make any entry
with regard to the credit balance which the Creditor Party concerned considers appropriate.
27.2 Existing rights unaffected
No Creditor Party shall be obliged to exercise any of its rights under Clause 27.1 (Application
of credit balances); and those rights shall be without prejudice and in addition to any right of set-off, combination of accounts,
charge, lien or other right or remedy to which a Creditor Party is entitled (whether under the general law or any document).
27.3 Sums deemed due to a Lender
For the purposes of this Clause 27 (Set-Off), a sum payable
by the Borrower to the Agent or the Security Trustee for distribution to, or for the account of, a Lender shall be treated as
a sum due to that Lender; and each Lender's proportion of a sum so payable for distribution to, or for the account of, the Lenders
shall be treated as a sum due to such Lender.
27.4 No Security Interest
This Clause
27 (Set-Off) gives the Creditor Parties a contractual right of set-off only and does not create any equitable charge or other
Security Interest over any credit balance of the Borrower.
28 TRANSFERS AND CHANGES IN LENDING OFFICES 28.1 Transfer by
Borrower
The Borrower may not transfer any of its rights, liabilities or obligations under
any Finance Document.
28.2 Transfer by a Lender
Subject
to Clause 28.4 (Effective Date of Transfer Certificate), a Lender (the "Transferor Lender") may, at its own cost, with
the prior written consent of the Borrower (not to be unreasonably withheld or delayed) or without the consent of the Borrower
if an Event of Default or a Potential Event of Default has occurred and is continuing, cause:
(a)
its
rights in respect of all or part of its Contribution; or
(b)
its obligations in respect
of all or part of its Commitment; or
(c)
a combination of (a) and (b), to be (in
the case of its rights) transferred to, or (in the case of its obligations) assumed by, another bank or financial institution
or a trust; fund or the entity which is regularly engaged in or established for the purpose of making, purchasing or investing
in loans, securities or other financial assets (a "Transferee Lender") by delivering to the Agent a completed certificate
in the form set out in Schedule 4 (Transfer Certificate) with any modifications approved or required by the Agent (a "Transfer
Certificate") executed by the Transferor Lender and the Transferee Lender, Provided that a Lender may cause such transfer
without needing the consent of the Borrower or any Security Party if an Event of Default has occurred and is continuing or if
the Transferee Lender is:
(d)
another branch of the Transferor Lender;
(e)
a direct or indirect subsidiary or affiliate of the Transferor Lender;
(f)
a
company of which the Transferor Lender is a subsidiary; or
(g)
a company which is
under the same control as the Lender. However any rights and obligations of the Transferor Lender in its capacity as Agent or
Security Trustee will have to be dealt with separately in accordance with the Agency and Trust Agreement.
28.3 Transfer
Certificate, delivery and notification
As soon as reasonably practicable after a Transfer
Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate may be defective):
(a)
sign the Transfer Certificate on behalf of itself, the Borrower, the Security
Parties, the Security Trustee and each of the other Lenders;
(b)
on behalf of the
Transferee Lender, send to the Borrower letters or faxes notifying them of the Transfer Certificate and attaching a copy of it;
(c)
send to the Transferee Lender copies of the letters or faxes sent under paragraph
(b) above, but the Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Transferor Lender and
the Transferee Lender once it is satisfied it has complied with all necessary "know your customer" or other similar
checks under all applicable laws and regulations in relation to the transfer to that Transferee Lender.
28.4 Effective Date of Transfer Certificate
A
Transfer Certificate becomes effective on the date, if any, specified in the Transfer Certificate as its effective date Provided
that it is signed by the Agent under Clause 28.3 (Transfer Certificate, delivery and notification) on or before that date.
28.5 No transfer without Transfer Certificate
No assignment or transfer of any right or
obligation of a Lender under any Finance Document is binding on, or effective in relation to, the Borrower, any Security Party,
the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.
28.6 Lender
re-organisation; waiver of Transfer Certificate
However, if a Lender enters into any merger,
de-merger or other reorganisation as a result of which all its rights or obligations vest in another person (the "successor"),
the Agent may, if it sees fit, by notice to the successor and the Borrower and the Security Trustee waive the need for the execution
and delivery of a Transfer Certificate; and, upon service of the Agent's notice, the successor shall become a Lender with the
same Commitment and Contribution as were held by the predecessor Lender.
28.7 Effect of Transfer Certificate
A
Transfer Certificate takes effect in accordance with English law as follows:
(a)
to
the extent specified in the Transfer Certificate, all rights and interests (present, future or contingent) which the Transferor
Lender has under or by virtue of the Finance Documents are assigned to the Transferee Lender absolutely, free of any defects in
the Transferor Lender's title and of any rights or equities which the Borrower or any Security Party had against the Transferor
Lender;
(b)
the Transferor Lender's Commitment is discharged to the extent specified
in the Transfer Certificate;
(c)
the Transferee Lender becomes a Lender with the
Contribution previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate;
(d)
the Transferee Lender becomes bound by all the provisions of the Finance Documents which
are applicable to the Lenders generally, including those about pro-rata sharing and the exclusion of liability on the part of,
and the indemnification of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by
those provisions (other than those relating to exclusion of liability), the Transferor Lender ceases to be bound by them;
(e)
any part of the Loan which the Transferee Lender advances after the Transfer Certificate's
effective date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor,
assuming that any defects in the transferor's title and any rights or equities of the Borrower or any Security Party against the
Transferor Lender had not existed;
(f)
the Transferee Lender becomes entitled to
all the rights under the Finance Documents which are applicable to the Lenders generally, including but not limited to those relating
to the Majority Lenders and those under Clause 5.7 (Market disruption) and Clause 21 (Fees and Expenses), and to the extent that
the Transferee Lender becomes entitled to such rights, the Transferor Lender ceases to be entitled to them; and
(g)
in
respect of any breach of a warranty, undertaking, condition or other provision of a Finance Document or any misrepresentation
made in or in connection with a Finance Document, the
Transferee Lender shall be entitled to recover damages by reference
to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether the original Lender would have
incurred a loss of that kind or amount.
The
rights and equities of the Borrower or any Security Party referred to above include, but are not limited to, any right of set
off and any other kind of cross-claim.
28.8
Maintenance of register of Lenders
During the Security Period the Agent shall maintain a
register in which it shall record the name, Commitment, Contribution and administrative details (including the lending office)
from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause 28.4 (Effective
Date of Transfer Certificate) of the Transfer Certificate; and the Agent shall make the register available for inspection by any
Lender, the Security Trustee and the Borrower during normal banking hours, subject to receiving at least 3 Business Days' prior
notice.
28.9 Reliance on register of Lenders
The entries on that register shall,
in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments
and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to
the Finance Documents for all purposes relating to the Finance Documents.
28.10 Authorisation of Agent to sign Transfer
Certificates
The Borrower, the Security Trustee and each Lender irrevocably authorise the
Agent to sign Transfer Certificates on its behalf.
28.11 Registration fee
In respect
of any Transfer Certificate, the Agent shall be entitled to recover a registration fee of $3,000 from the Transferee Lender.
28.12 Sub-participation; subrogation assignment
A Lender may sub-participate all or any
part of its rights and/or obligations under or in connection with the Finance Documents without the consent of, or any notice
to, the Borrower, any Security Party, the Agent or the Security Trustee; and the Lenders may assign, in any manner and terms agreed
by the Majority Lenders, the Agent and the Security Trustee, all or any part of those rights to an insurer or surety who has become
subrogated to them.
28.13 Disclosure of information
A Lender may with the consent
of the Borrower (such consent not to be unreasonably withheld or delayed) disclose to a potential Transferee Lender or sub-participant
any information which the Lender has received in relation to the Borrower, any Security Party or their affairs under or in connection
with any Finance Document, unless the information is clearly of a confidential nature.
28.14 Change of lending office
A
Lender may change its lending office by giving notice to the Agent and the change shall become effective on the later of:
(a)
the date on which the Agent receives the notice; and
(b)
the date, if any,
specified in the notice as the date on which the change will come into effect.
28.15 Notification
On
receiving such a notice, the Agent shall notify the Borrower and the Security Trustee; and, until the Agent receives such a notice,
it shall be entitled to assume that a Lender is acting through the lending office of which the Agent last had notice.
28.16
Replacement of Reference Bank
If any Reference Bank ceases to be a Lender or is unable on
a continuing basis to supply quotations for the purposes of Clause 5 (Interest) then, unless the Borrower, the Agent and the Majority
Lenders otherwise agree, the Agent, acting on the instructions of the Majority Lenders, and after consulting the Borrower, shall
appoint another bank (whether or not a Lender) to be a replacement Reference Bank; and, when that appointment comes into effect,
the first-mentioned Reference Bank's appointment shall cease to be effective.
28.17 Tax indemnity, tax gross-up and increased
costs on assignment, transfer and change of lending office
If:
(a)
the
Lender assigns or transfers any rights or obligations under the Finance Documents pursuant to Clause 28.2 (Transfer by a Lender)
or changes its lending office; and
(b)
as a result of circumstances existing at the
date of assignment, transfer or change occurs the Borrower would be obliged to make a payment to the Transferee Lender or Lender
acting through its new lending office under Clause 22.1 (Indemnities regarding borrowing and repayment of Loan) in respect of
any tax, Clause 23 (No Set-off or Tax Deduction) or Clause 25 (Illegality, etc), then the Transferee Lender or the Lender acting
through its new lending office is only entitled to receive payment under those Clauses to the same extent as the Transferor Lender
or the Lender acting through its previous lending office would have been if the assignment, transfer or change had not occurred.
29 VARIATIONS AND WAIVERS 29.1 Variations, waivers etc. by Majority Lenders
Subject
to Clause 29.2
(Variations, waivers etc. requiring agreement of all Lenders),
a document
shall be effective to vary, waive, suspend or limit any provision of a Finance Document, or any Creditor Party's rights or remedies
under such a provision or the general law, only if the document is signed, or specifically agreed to by fax, by the Borrower,
by the Agent on behalf of the Majority Lenders, by the Agent and the Security Trustee in their own rights, and, if the document
relates to a Finance Document to which a Security Party is party, by that Security Party.
29.2 Variations, waivers etc.
requiring agreement of all Lenders
However, as regards the following, Clause 29.1 (Variations,
waivers etc. by Majority Lenders) applies as if the words "by the Agent on behalf of the Majority Lenders" were replaced
by the words "by or on behalf of every Lender":
(a)
a change in the Margin
or in the definition of LIBOR;
(b)
a change to the date for, the amount of, any payment
of principal, interest, fees, or other sum payable under this Agreement;
(c)
a change to any Lender's
Commitment;
(d)
an extension of Availability Period;
(e)
a
change to the definition of "Majority Lenders" or "Finance Documents";
(f)
a
change to the preamble or to Clauses 2 (Facility), 3 (Position of the Lenders), 4 (Drawdown),
5.1
(Payment of normal
interest),
18
(Application of Receipts),
19
(Application of Earnings)
or 33
(Law and Jurisdiction); (g)
a
change to this Clause 29 (Variations and Waivers);
(h)
any release of, or material
variation to, a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document; and
(i)
any other change or matter as regards which this Agreement or another Finance Document
expressly provides that each Lender's consent is required.
29.3 Exclusion of other or implied variations
Except
for a document which satisfies the requirements of Clauses 29.1 (Variations, waivers etc. by Majority Lenders) and 29.2 (Variations,
waivers etc. requiring agreement of all Lenders), no document, and no act, course of conduct, failure or neglect to act, delay
or acquiescence on the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result
in the Creditor Parties or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended
or limited, or being precluded (permanently or temporarily) from enforcing, relying on or exercising:
(a)
a
provision of this Agreement or another Finance Document; or
(b)
an Event of Default;
or
(c)
a breach by the Borrower or a Security Party of an obligation under a Finance
Document or the general law; or
(d)
any right or remedy conferred by any Finance
Document or by the general law, and there shall not be implied into any Finance Document any term or condition requiring any such
provision to be enforced, or such right or remedy to be exercised, within a certain or reasonable time.
30 BAIL-IN
Notwithstanding
any other term of any Finance Document or any other agreement, arrangement or understanding between the parties to a Finance Document,
each Party acknowledges and accepts that any liability of any party to a Finance Document under or in connection with the Finance
Documents may be subject to Bail-ln Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the
effect of:
(a)
any Bail-ln Action in relation to any such liability, including (without
limitation):
(i)
a reduction, in full or in part, in the principal amount, or outstanding
amount due (including any accrued but unpaid interest) in respect of any such liability;
(ii)
a
conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred
on, it; and
(iii)
a cancellation of any such liability; and
(b)
a variation of any
term of any Finance Document to the extent necessary to give effect to any Bail-ln Action in relation to any such liability.
31 NOTICES 31.1 Communications in writing
Any communication to be made under or in connection
with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.
31.2 Addresses
The address and fax number (and the department or officer, if any, for whose attention the
communication is to be made) of each party to this Agreement for any communication or document to be made or delivered under or
in connection with the Finance Documents is:
(a)
in the case of the Borrower, that
identified with its name below;
(b)
in the case of each Lender or any Security Party,
that notified in writing to the Agent on or prior to the date on which it becomes a party to this Agreement;
(c)
in
the case of the Agent or the Security Trustee that identified with its name below, or any substitute address or fax number or
department or officer as the party to this Agreement may notify to the Agent (or the Agent may notify to the parties to this Agreement,
if a change is made by the Agent) by not less than five Business Days' notice: to the Borrower: c/o Euronav NV De Gerlachekaai
20 2000 Antwerp Fax No: +32 3 247 4409 to the Lender: At the address below its name in Schedule 1 (Lenders and Commitments) or
(as the case may require) in the relevant Transfer Certificate to the Agent: 4
th
Floor, I.F.S.C. House Custom House
Quay Dublin 1 The Bank of Nova ScotiaScotia House33 Finsbury SquareLondon EC2M 1BBD01 R2P9. Ireland to the Security Trustee: Bishopsgate
Attention: David StuartSparkes Fax No: +44 207 454 9019638 6488 The Bank of Nova ScotiaScotia House33 Finsbury Sauare201 6
th
Floor London EC2M 1BB3 NS United Kingdom Attention: David StuartSparkes Fax No: +44 207 454 9019638 6488 or to such other
address as the relevant party may notify the Agent or, if the relevant party is the Agent or the Security Trustee, the Borrower,
the Lenders and the Security Parties.
31.3 Delivery (a)
Any
communication or document made or delivered by one person to another under or in connection with the Finance Documents will only
be effective:
(i)
if by way of fax, when received in legible form; or
(ii)
if by way of letter, when it has been left at the relevant address or five Business Days
after being deposited in the post postage prepaid in an envelope addressed to it at that address; and, if a particular department
or officer is specified as part of its address details provided under Clause 31.2 (Addresses), if addressed to that department
or officer.
(b)
Any communication or document to be made or delivered to the Agent
will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department
or officer identified with the Agent's signature below (or any substitute department or officer as the Agent shall specify for
this purpose).
(c)
All notices from or to the Borrower or a Security Party shall
be sent through the Agent.
(d)
Any communication or document made or delivered to
the Borrower in accordance with this Clause will be deemed to have been made or delivered to each Security Party.
31.4
Notification of address and fax number
Promptly upon receipt of notification of an address
or fax number or change of address or fax number pursuant to Clause 31.2 (Addresses) or changing its own address or fax number,
the Agent shall notify the other parties to this Agreement.
31.5 Electronic communication (a)
Any
communication to be made between the Agent and a Lender under or in connection with the Finance Documents may be made by electronic
mail or other electronic means, if the Agent and the relevant Lender:
(i)
agree that,
unless and until notified to the contrary, this is to be an accepted form of communication;
(ii)
notify
each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt
of information by that means; and
(iii)
notify each other of any change to their
address or any other such information supplied by them.
(b)
Any electronic communication
made between the Agent and a Lender will be effective only when actually received in readable form and in the case of any electronic
communication made by a Lender to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose.
31.6 English language (a)
Any notice given under or in connection with any Finance
Document must be in English.
(b)
All other documents provided under or in connection
with any Finance Document must be:
(i)
in English; or
(ii)
if not in English,
and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will
prevail unless the document is a constitutional, statutory or other official document.
32 SUPPLEMENTAL 32.1 Rights cumulative,
non-exclusive
The rights and remedies which the Finance Documents give to each Creditor
Party are:
(a)
cumulative;
(b)
may be
exercised as often as appears expedient; and
(c)
shall not, unless a Finance Document
explicitly and specifically states so, be taken to exclude or limit any right or remedy conferred by any law.
32.2
Severability
of provisions.
If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal, that shall
not affect the validity, enforceability or legality of the other provisions of that Finance Document or of the provisions of any
other Finance Document. 32.3 Counterparts
A Finance Document may be executed in any number
of counterparts.
32.4 Third Party rights
A person who is not a party to this Agreement
has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
33 LAW AND JURISDICTION 33.1 English law
This Agreement shall be governed by, and
construed in accordance with, English law.
33.2 Exclusive English jurisdiction
Subject
to Clause 33.3 (Choice of forum for the exclusive benefit of the Creditor Parties), the courts of England shall have exclusive
jurisdiction to settle any disputes which may arise out of or in connection with this Agreement.
33.3 Choice of forum for
the exclusive benefit of the Creditor Parties
Clause 33.2 (Exclusive English jurisdiction)
is for the exclusive benefit of the Creditor Parties, each of which reserves the right:
(a)
to
commence proceedings in relation to any matter which arises out of or in connection with this Agreement in the courts of any country
other than England and which have or claim jurisdiction to that matter; and
(b)
to
commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England
or without commencing proceedings in England.
33.4 Process agent
The
Borrower irrevocably appoints Euronav (UK) Agencies Limited at its registered office for the time being, presently at 99 King's
Road, London, SW3 4PA, England, to act as its agent to receive and accept on its behalf any process or other document relating
to any proceedings in the English courts which are connected with this Agreement.
33.5 Creditor Party rights unaffected
Nothing in this Clause 33 (Law and Jurisdiction) shall exclude or limit any right which
any Creditor Party may have (whether under the law of any country, an international convention or otherwise) with regard to the
bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter
in any jurisdiction.
33.6
Meaning of "proceedings".
In this Clause
33 (Law and Jurisdiction), "proceedings" means proceedings of any kind, including an application for a provisional or
protective measure. This Agreement has been entered into on the date stated at the beginning of this Agreement.
SCHEDULE 1
LENDERS
AND COMMITMENTS Lender Lending Office Commitment (US Dollars) Scotiabank (Ireland) I.F.S.C. House LimitedDesignated Activity Company
Custom House Quay Dublin 1 D01 R2P9. Ireland 76,000,00026,750,000
SCHEDULE 2 DRAWDOWN NOTICE
To:
The Bank of Nova Scotia S6otia House33 Finsbury SquareLondon EC2A 1BB201 Bishopseate. 6th Floor London FC2M 3NS England Attention:
Loans Administration [•] 2008 DRAWDOWN NOTICE
1
We refer to the loan agreement (the "Loan Agreement") dated 23 October 2008 (as
supplemented by a supplemental letter dated 30 January 2017 and amended and restated on [•] March 2017) and made between
ourselves, as Borrower, the Lenders referred to therein, and yourselves as Agent and as Security Trustee in connection with a
facility of up to US$76,000,000. Terms defined in the Loan Agreement have their defined meanings when used in this Drawdown Notice.
2
We request to borrow as follows:
(a)
Amount:
US$[*];
(b)
[Advance as specified in Clause 2.1 (Amount of facility) [first, second,
third, etc]] [the Charter Top Up Amount];
(c)
Drawdown Date: [•];
(d)
Duration of the first Interest Period shall be [•] months; and
(e)
Payment
instructions: account of [•] and numbered [•] with [•] of [•].
3
We
represent and warrant that:
(a)
the representations and warranties in Clause 10 (Representations
and Warranties)0 of the Loan Agreement would remain true and not misleading if repeated on the date of this notice with reference
to the circumstances now existing; and
(b)
no Event of Default or Potential Event
of Default has occurred or will result from the borrowing of the Loan.
4
This notice
cannot be revoked without the prior consent of the Majority Lenders.
5
We authorise
you to deduct the arrangement fee referred to in Clause 21 (Fees and Expenses) from the amount of the Advance. [Name of Signatory]
Director for and on behalf of [•]
75
SCHEDULE 3 CONDITION PRECEDENT DOCUMENTS PART A
The
following are the documents referred to in paragraph (a) of Clause 9.1 (Documents, fees and no default) before the service of
the first Drawdown Notice.
1
A duly executed original of this Agreement, the Guarantee
Nomination Letter, the Agency and Trust Agreement, the Negative Pledge, each Guarantee, the Counter Guarantee and the Account
Security Deed.
2
Copies of the certificate of incorporation and constitutional documents
of the Borrower, each Guarantor, the Counter Guarantor and each Shareholder (and in relation to the Borrower a copy of the shareholders
agreement or joint venture agreement entered into by its shareholders).
3
Copies
of resolutions of directors of the Borrower, each Guarantor (except for Guarantor B), the Counter Guarantor and each Shareholder
and copies of resolutions of the shareholders of the Borrower and the Counter Guarantor authorising the execution of each of the
Finance Documents to which the Borrower, that Guarantor, the Counter Guarantor or that Shareholder is a party and, in the case
of the Borrower, authorising named officers to give the Drawdown Notices and other notices under this Agreement and ratifying
the execution of the Shipbuilding Contract and the Supervision Agreement.
4
The original
of any power of attorney under which any Finance Document is executed on behalf of the Borrower, a Guarantor, the Counter Guarantor
or the Shareholder.
5
Copies of all consents which the Borrower or any Security Party
requires to enter into, or make any payment under, any Finance Document or the Shipbuilding Contract or the Supervision Agreement.
6
The originals of any mandates or other documents required in connection with the
opening or operation of the Earnings Account.
7
Documentary evidence that the agent
for service of process named in Clause 33 (Law and Jurisdiction) has accepted its appointment.
8
Favourable
legal opinions from lawyers appointed by the Lender on such matters concerning the laws of Hong Kong, Belgium, Panama, Bermuda
and such other relevant jurisdictions as the Lenders may require.
9
Receipt of all
documentation required by the Lenders in respect of the Borrower, any Security Party or the ultimate beneficial ownership of each
Guarantor or the Counter Guarantor pursuant to that Lenders "know your customer" requirements.
PART B
The following are
the documents referred to in paragraph (b) of Clause 9.1 (Documents, fees and no default) required before the drawdown of an Advance
(other than the final Advance):
10
Evidence that the relevant pre-delivery instalment
of the Contract Price payable under the Shipbuilding Contract has fallen due for payment and that such part of such instalment
not being met out of the proceeds of an Advance has been paid or shall be paid by the Borrower simultaneously with the making
of such Advance.
11
A duly executed original of the Predelivery Security Assignment
(and of each document required to be delivered thereunder).
12
A certified copy of
the Shipbuilding Contract and Supervision Agreement and a certified copy of the Refund Guarantee.
13
Such
documentary evidence as the Lender and its legal advisers may require in relation to the due authorisation and execution by the
Builder of the Shipbuilding Contract, by the Supervisor of the Supervision Agreement and by the Refund Guarantor of the Refund
Guarantee.
14
Favourable legal opinions from lawyers appointed by the Lender on such
matters concerning the laws of Korea and such other relevant jurisdictions as the Lender may require.
PART C
The following are
the documents referred to in paragraph (c) of Clause 9.1 (Documents, fees and no default) required before the Drawdown of the
final Advance.
15
A duly executed original of the Mortgage, of the Charter Assignment
(if any Charter) and of the General Assignment (and of each document to be delivered by each of them).
16
Documentary
evidence that:
(a)
the Ship has been unconditionally delivered by the Builder to,
and accepted by, the Borrower under the Shipbuilding Contract, and the full purchase price payable under the Shipbuilding Contract
(in addition to the part to be financed by the Loan) has been duly paid;
(b)
the
Ship is definitively and permanently registered in the name of the Borrower under the relevant Approved Flag at its relevant port
of registry;
(c)
the Ship is in the absolute and unencumbered ownership of the Borrower
save as contemplated by the Finance Documents;
(d)
the Ship maintains the class (namely
A1(E), "Oil Carrier ESP", AMS, ACCU, SPM, VEC(-L), CSR, Safeship-CM, RES, ES, TEM, Green Passport, POT, UWILD (sea chest
blanking devices shall not be provided), CPS with American Bureau of Shipping free of all recommendations and conditions of such
Classification Society;
(e)
the Mortgage has been duly recorded against the Ship
as a valid first preferred/priority ship mortgage in accordance with the laws of the relevant Approved Flag;
(f)
the
Ship is insured in accordance with the provisions of this Agreement and all requirements therein in respect of insurances have
been complied with; and
(g)
such part of the acquisition cost of the Ship which has
not been funded out of the proceeds of the Loan and which has been borrowed by the Borrower is subordinated to the obligations
of the Borrower to the Lenders under this Agreement in terms satisfactory to the Lenders in their absolute discretion;
17
Documents establishing that the Ship will, as from the final Drawdown Date, be managed
by the Approved Manager on terms acceptable to the Lenders, together with:
(a)
a
letter of undertaking executed by the Approved Manager in favour of the Agent in the terms agreed between the Agent and the Approved
Manager agreeing certain matters in relation to the management of the Ship and subordinating the rights of the Approved Manager
against the Ship and the Borrower to the rights of the Creditor Parties under the Finance Documents; and
(b)
copies
of the Approved Manager's Document of Compliance and of the Ship's Safety Management Certificate (together with any other details
of the applicable safety management system which the Lenders require) and ISSC.
18
A
favourable opinion from an independent insurance consultant acceptable to the Agent on such matters relating to the insurances
for the Ship as the Agent may require.
19
Favourable legal opinions from lawyers
appointed by the Agent on such matters concerning the laws of Greece (or such other jurisdiction as may be appropriate if the
Ship is not registered on Greek flag) and such other relevant jurisdictions as the Agent may require.
SCHEDULE 4 TRANSFER CERTIFICATE The Transferor and the Transferee
accept exclusive responsibility for ensuring that this Certificate and the transaction to which it relates comply with all legal
and regulatory requirements applicable to them respectively.
To: [•] as Agent. From:
[The Existing Lender]
(the "Transferor") and
[The New Lender]
(the
"Transferee") Dated: [•]
US$76,000,000 Loan Agreement to Euronav NV dated 23 October 2008 (as supplemented
by a supplemental letter dated 30 January 2017 and amended and restated on [•] March 2017) (the "Agreement") 1
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement
have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
2
We
refer to Clause 28 (Transfers and Changes in Lending Offices) of the Agreement.
(a)
The
Transferor and the Transferee agree to the Transferor transferring to the Transferee by novation all or part of the Transferor's
Commitment, rights and obligations referred to in the Schedule in accordance with Clause 28 (Transfers and Changes in Lending
Offices).
(b)
The proposed Transfer Date is [•].
(c)
the
lending office and address, fax number and attention details for notices of the Transferee for the purposes of Clause 31.2 (Addresses)
are set out in the Schedule.
3
The Transferee expressly acknowledges the limitations
on the Transferor's obligations set out in Clause 28 (Transfers and Changes in Lending Offices).
4
[The
Transferee confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a
Finance Document is either:
(a)
a company resident in the United Kingdom for United
Kingdom tax purposes; or
(b)
a partnership each number of which is:
(i)
a
company so resident in the United Kingdom; or
(ii)
a company not so resident in the
United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account
in computing its chargeable profits (for the purposes of section 11(2) of the [Taxes Act] the whole of any share of interest payable
in respect of that advance that falls to it by reason of sections 114 and 115 of the [Taxes Act]; or
(c)
a
company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment
and which brings into account interest payable in respect of that advance in computing the chargeable profits (for the purposes
of Section 11(2) of the [Taxes Act] of that company.] [4/5] This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
[5/6] This Transfer Certificate is governed by English law.
THE SCHEDULE Commitment/rights and obligations to be transferred
[insert relevant details] [Facility Office address, fax number and attention details for notices and account details for payments]
Transferor Transferee By: By: This Transfer Certificate is accepted by the Agent and the
Transfer Date is confirmed as [•]. [Agent] By:
SCHEDULE 5 MANDATORY COST 1
The
Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements
of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or
any of its functions) or
(b)
the requirements of the European Central Bank.
2
On the first day of each Interest Period (or as soon as possible thereafter) the Agent
shall calculate, as a percentage rate, a rate (the "Additional Cost Rate") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender in the Loan) and will be expressed as a percentage rate
per annum.
3
The Additional Cost Rate for any Lender lending from a lending office
in a Participating Member State will be the percentage notified by that Lender to the Agent. This percentage will be certified
by that Lender in its notice to the Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's
participation in all Loans made from that lending office) of complying with the minimum reserve requirements of the European Central
Bank in respect of loans made from that lending office.
4
The Additional Cost Rate
for any Lender lending from a lending office in the United Kingdom will be calculated by the Agent as follows:
(a)
in
relation to a sterling Loan:
AB
+
C(B
-
D)
+
E
•
0.01
per
cent, per annum
100 - (A + C) (b)
in relation to a Loan in any currency other than
sterling:
E . 0.01
per cent, per annum
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time
to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional
rate of interest specified in paragraph (a) of Clause 7.2 (Default rate of interest)) payable for the relevant Interest Period
on the Loan. C is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain
as interest bearing Special Deposits with the Bank of England. D is the percentage rate per annum payable by the Bank of England
to the Agent on interest bearing Special Deposits.
E is designed to compensate Lenders for amounts payable under
the Fees Rules and is calculated by the Agent as being the average of the most recent rates of charge supplied by the Reference
Banks to the Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000.
5
For the purposes of this Schedule:
(a)
"Eligible
Liabilities" and "Special Deposits" have the meanings given to them from time to time under or pursuant to the
Bank of England Act 1998 or (as may be appropriate) by the Bank of England;
(b)
"Fees
Rules" means the rules on periodic fees contained in the FSA Supervision Manual or such other law or regulation as may be
in force from time to time in respect of the payment of fees for the acceptance of deposits;
(c)
"Fee
Tariffs" means the fee tariffs specified in the Fees Rules under the activity group A.1 Deposit acceptors (ignoring any minimum
fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate); and
(d)
"Tariff Base" has the meaning given to it in, and will be calculated in accordance
with, the Fees Rules.
(e)
"Unpaid Sum" means any sum due and payable but
unpaid by the Borrower or a Security Party under the Finance Documents.
6
In application
of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent, will be included in the
formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7
If requested by the Agent, each Reference
Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Agent, the rate of charge
payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial
year of the Financial Services Authority (calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of
that Reference Bank.
8
Each Lender shall supply any information required by the Agent
for the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each Lender shall supply the following
information on or prior to the date on which it becomes a Lender:
(a)
the jurisdiction
of its lending office; and
(b)
any other information that the Agent may reasonably
require for such purpose. Each Lender shall promptly notify the Agent of any change to the information provided by it pursuant
to this paragraph.
9
The percentages of each Lender for the purpose of A and C above
and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies the Agent to the contrary,
each Lender's obligations in relation to cash ratio deposits and Special Deposits are the same as those of a typical bank from
its jurisdiction of incorporation with a lending office in the same jurisdiction as its lending office.
10
The Agent shall have
no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Lender
and shall be entitled to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and
8 above is true and correct in all respects.
11
The Agent shall distribute the additional
amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based
on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
12
Any
determination by the Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or
any amount payable to a Lender shall, in the absence of manifest error, be conclusive and binding on all parties to the Loan Agreement.
13
The Agent may from time to time, after consultation with the Borrower and the
Lenders, determine and notify to all parties to the Loan Agreement any amendments which are required to be made to this Schedule
in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the
Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties to the
Loan Agreement.
SCHEDULE 6
FORM OF CERTIFICATE OF COMPLIANCE
To:
The Bank of Nova Scotia 201 Bishopsgate, 6th Floor London EC2M 3NS England Attention: Loans Administration From: Euronav NV [Date]
OFFICER'S CERTIFICATE
This Certificate is rendered pursuant to clause 12.6(e) of
the loan agreement dated 23 October 2008 (as amended and supplemented by a supplemental letter dated 30 January 2017 and amended
and restated on [] 2017) (the "Loan Agreement") and entered into between (i) Euronav NV as Borrower,
(ii)
the
banks and financial institutions listed in Schedule 1 therein as Lenders, (iii) The Bank of Nova Scotia as Agent and Security
Trustee, relating to a facility of up to US$79,000,000. Words and expressions defined in the Loan Agreement shall have the same
meanings when used herein. I, the Chief Financial Officer of the Borrower, hereby certify that:
1
Attached
to this Certificate [are][is] the latest [audited consolidated accounts of the Group and audited individual accounts of the Borrower
for the financial year ending on []] [unaudited consolidated balance sheet of the Group and the unaudited individual balance sheet
of the Borrower in relation to the [first] [second] six months of the financial year ending on []] (the "Accounts").
2
Set out below are the respective amounts, in US Dollars, of the Cash. Consolidated
Current Assets. Consolidated Current Liabilities. Free Liquid Assets. Stockholders' Equity. Total Assets and Total Indebtedness
of the Group as at [•]; US Dollars Cash [•] Consolidated Current Assets [•] Consolidated Current Liabilities [•]
Free Liquid Assets Stockholders' Equity [•] Total Assets [•] Total Indebtedness [•]
3
Accordingly,
as at the date of this Certificate the financial covenants set out in clause 11.1 (Financial Covenants) of the Loan Agreement
farei [are not] complied with, in that as at []:
(a)
Consolidated Working
Capital is US$[]: (b) Free Liquid Assets are US$[];
(c)
Cash is US$[]; and
Ml
the ratio of Stockholders' Equity to Total Assets is [] per cent.;
[or, as the
case may be, specify in what respect any of the financial covenants are not complied with.] 4
As
at [] no Event of Default has occurred and is continuing.
[or, specify/identify any Event of Default]
The
Borrower is in compliance with clause 11.1 (Financial Covenants) of the Loan Agreement. [lf not, specify this and what is proposed
as regards Clause 11.1 (Financial Covenants)] The Market Value of the Ship is as follows as at [date]: Name of Ship Name of first
shipbroker Name of second shipbroker Average market value providing valuation providing valuation [] [•] [•] Chief Financial
Officer EURONAV NV
Note: Supporting Schedules to be attached.
BORROWEREXECUTION PAGE SIGNED by) for and on behalf of EURONAV
NV) in the presence of:
) ) ) LENDERS SIGNED
by ) ) ) for and on behalf of SCOTIABANK (IRELAND) DESIGNATED ) LIMITEDACTIVITY COMPANY ) in the presence of: ) AGENT SIGNED by
) \ for and on behalf of ) THE BANK OF NOVA SCOTIA ) in the presence of: ) SECURITY TRUSTEE SIGNED by ) \ for and on behalf of
) ) THE BANK OF NOVA SCOTIA ) in the presence of: )
Appendix
Part B
Form of clean copy Amended and Restated Loan Agreement
Execution Form
Dated 23 October 2008
(as amended and supplemented by a supplemental
letter dated 30 January 2017 and amended
and restated on 31 March 2017)
EURONAV NV
as Borrower
and
the banks and
financial institutions
Listed
in Schedule 1
as
Lenders
and
THE BANK OF
NOVA SCOTIA
as Agent
and as Security Trustee
LOAN AGREEMENT
relating to a
$76,000,000 facility to finance
m.t. "CAPTAIN MICHAEL"
Index
|
Clause
|
|
Page
|
|
|
|
|
|
1
|
Interpretation
|
1
|
|
2
|
Facility
|
15
|
|
3
|
Position of the Lenders
|
16
|
|
4
|
Drawdown
|
17
|
|
5
|
Interest
|
18
|
|
6
|
Interest Periods
|
20
|
|
7
|
Default Interest
|
21
|
|
8
|
Repayment and Prepayment
|
22
|
|
9
|
Conditions Precedent
|
24
|
|
10
|
Representations and Warranties
|
25
|
|
11
|
Financial Covenants
|
27
|
|
12
|
General Undertakings
|
28
|
|
13
|
Corporate Undertakings
|
32
|
|
14
|
Insurance
|
33
|
|
15
|
Ship Covenants
|
37
|
|
16
|
Security Cover
|
40
|
|
17
|
Payments and Calculations
|
42
|
|
18
|
Application of Receipts
|
44
|
|
19
|
Application of Earnings
|
45
|
|
20
|
Events of Default
|
45
|
|
21
|
Fees and Expenses
|
50
|
|
22
|
Indemnities
|
51
|
|
23
|
No Set-off or Tax Deduction
|
53
|
|
24
|
Tax Gross Up and Indemnities
|
53
|
|
25
|
Illegality, etc
|
57
|
|
26
|
Increased Costs
|
58
|
|
27
|
Set-Off
|
60
|
|
28
|
Transfers and Changes in Lending Offices
|
60
|
|
29
|
Variations and Waivers
|
64
|
|
30
|
Bail-In
|
65
|
|
31
|
Notices
|
65
|
|
32
|
Supplemental
|
67
|
|
33
|
Law and Jurisdiction
|
68
|
|
Schedules
|
|
|
|
|
|
Schedule 1 Lenders and Commitments
|
70
|
|
Schedule 2 Drawdown Notice
|
71
|
|
Schedule 3 Condition Precedent Documents
|
72
|
|
Part A
|
72
|
|
Part B
|
73
|
|
Part C
|
74
|
|
Schedule 4 Transfer Certificate
|
75
|
|
Schedule 5 Mandatory Cost
|
78
|
|
Schedule 6 Form of Certificate of Compliance
|
81
|
|
Execution
|
|
|
|
|
|
Execution Page
|
83
|
THIS AGREEMENT
is made on 23 October
2008 (as amended and supplemented by a supplemental letter dated 30 January 2017 and amended and restated on 31 March 2017)
parties
|
|
(1)
|
EURONAV NV
, a company incorporated in Belgium whose registered office is at De Gerlachekaai
20, B-2000 Antwerp 1, Belgium (the "
Borrower
")
|
|
|
(2)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1 (
Lenders and Commitments
),
as
Lenders
|
|
|
(3)
|
THE BANK OF NOVA SCOTIA
, as
Agent
; and
|
|
|
(4)
|
THE BANK OF NOVA SCOTIA
, as
Security Trustee
.
|
BACKGROUND
The Lenders have agreed to make available
to the Original Borrower a facility of up to $76,000,000 for the purpose of part financing the purchase price of the Ship constructed
by the Builder. The Borrower has purchased the Ship from the Original Borrower as the borrower under this Agreement.
IT IS AGREED
as follows:
Subject to Clause 1.5 (
General
Interpretation
), in this Agreement:
"
Account
Bank
" means Scotiabank Europe plc acting through its office 201 Bishopsgate, 6
th
floor, London EC2M
3NS, England.
"
Account
Security Deed
" means a deed creating security in respect of the Earnings Account in the Agreed Form.
"
Advance
"
means the principal amount of each borrowing by the Borrower under this Agreement.
"
Agency
and Trust Agreement
" means the agency and trust agreement dated the same date as this Agreement and made between
the same parties.
"
Agent
”
means The Bank of Nova Scotia, a company registered in Canada and acting in such capacity through its office at 201 Bishopsgate,
6th Floor, London EC2M 3NS, England, or any successor of it appointed under clause 5 of the Agency and Trust Agreement.
"
Agreed
Form
" means in relation to any document, that document in the form approved in writing by the Agent (acting with
the instructions of all the Lenders) and mutually agreed with the Borrower or as otherwise approved in accordance with any other
approval procedure specified in any relevant provision of any Finance Document.
"
Anti-Corruption
Laws
" means the England and Wales Bribery Act 2010, the United States Foreign Corrupt Practices Act 1977 or other
applicable anti-corruption legislation in any other jurisdictions.
"
Approved
Flag
" means Greek flag or such other flag as the Agent (acting with the authorisation of all the Lenders) may approve
as the flag on which the Ship shall be registered at delivery.
"
Approved
Manager
" means Euronav Ship Management (Hellas) Ltd. or any of its subsidiaries or any other company incorporated
by the Borrower with the prior written consent of the Agent (acting with the authorisations of the Majority Lenders) not to be
unreasonably withheld or delayed.
"
Availability
Period
" means the period commencing on the date of this Agreement and ending on:
|
|
(a)
|
the Final Availability Date; or
|
|
|
(b)
|
if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated.
|
"
Bail-In
Action
" means the exercise of any Write-down and Conversion Powers.
"
Bail-In
Legislation
" means in relation to an EEA Member Country which has implemented, or which at any time implements,
Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment
firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time.
“Builder
"
means Samsung Heavy Industries Co., Ltd., a company incorporated in the Republic of Korea whose registered office is at Samsung
Life Insurance Seocho Tower 1321-15, Seocho-Dong, Seocho-Gu, Seoul, Korea.
"
Business
Day
" means a day on which banks are open in London, Antwerp, Dublin and in respect of a day on which a payment
is required to be made under a Finance Document, also in New York City.
"
Change
of Control
" means, if 2 or more persons acting in concert or any individual person in each case other than the
Permitted Holders:
|
|
(a)
|
acquires legally and/or beneficially, and either directly or indirectly, in excess of 50 per cent.
of the issued share capital or voting rights of the Borrower; or
|
|
|
(b)
|
has the right or the ability to control, either directly or indirectly, the affairs or composition
of the majority of the board of directors (or equivalent) of the Borrower.
|
"
Charter
"
means any time charter in respect of the Ship for a period of not less than three years and on terms (including rates), and to
a charterer, in each case acceptable to the Lenders in their absolute discretion.
"
Charter
Assignment
" means an assignment of any Charter and any supporting guarantee for the Charter (if any) in the Agreed Form.
"
Code
"
means the US Internal Revenue Code of 1986.
"
Commitment
"
means, in relation to a Lender, the amount set opposite its name in Schedule 1 (
Lenders and Commitments
), or, as the case
may require, the amount specified in the relevant Transfer Certificate, as that amount may be reduced, cancelled or terminated
in accordance with this Agreement.
"
Contract
Price
" means the contract price paid by the Original Borrower to the Builder under the Shipbuilding Contract which,
as of 23 October 2008 was $95,830,000.
"
Contractual
Currency
" has the meaning given in Clause 22.4 (
Currency indemnity
).
"
Contribution
"
means, in relation to a Lender, the part of the Loan which is owing to that Lender.
"
Creditor
Party
" means the Agent, the Security Trustee or any Lender, whether as at the date of this Agreement or at any
later time.
"
Delivery
Date
" means the date on which the Ship was delivered to, and accepted by, the Original Borrower under the Shipbuilding
Contract.
"
Dollars
"
and "
$
" means the lawful currency for the time being of the United States of America.
"
Drawdown
Date
" means, in relation to each Advance, the date requested by the Borrower for the Advance to be made, or (as
the context requires) the date on which the Advance is actually made.
"
Drawdown
Notice
" means a notice in the form set out in Schedule 2 (
Drawdown Notice
) (or in any other form which the
Agent approves or reasonably requires).
"
Earnings
"
means all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower or the Security
Trustee and which arise out of the use or operation of the Ship, including (but not limited to):
|
|
(a)
|
except to the extent that they fall within paragraph (b);
|
|
|
(i)
|
all freight, hire and passage moneys;
|
|
|
(ii)
|
compensation payable to the Borrower or the Security Trustee in the event of requisition of the
Ship for hire;
|
|
|
(iii)
|
remuneration for salvage and towage services;
|
|
|
(iv)
|
demurrage and detention moneys;
|
|
|
(v)
|
damages for breach (or payments for variation or termination) of any charterparty or other contract
for the employment of the Ship; and
|
|
|
(vi)
|
all moneys which are at any time payable under any Insurances in respect of any loss; and
|
|
|
(b)
|
if and whenever the Ship is employed on terms whereby any moneys falling within paragraphs (a)(i)
to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement
which is attributable to the Ship.
|
"
Earnings
Account
" means an account in the name of the Borrower with the Account Bank in London designated "EURONAV
- Earnings Account", or any other account (with that or another office of the Account Bank or with a bank or financial institution
other than the Account Bank) which is designated by the Agent as the Earnings Account for the purposes of this Agreement.
"
Environmental
Claim
" means:
|
|
(a)
|
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental
Incident or an alleged Environmental Incident or which relates to any Environmental Law; or
|
|
|
(b)
|
any claim by any other person which relates to an Environmental Incident or to an alleged Environmental
Incident,
|
and "
claim
"
means a claim for damages, compensation, fines, penalties or any other payment of any kind whether or not similar to the foregoing;
an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement
or regulatory action, including the arrest or attachment of any asset.
"
Environmental
Incident
" means:
|
|
(a)
|
any release of Environmentally Sensitive Material from the Ship; or
|
|
|
(b)
|
any incident in which Environmentally Sensitive Material is released from a vessel other than the
Ship and which involves a collision between the Ship and such other vessel or some other incident of navigation or operation, in
either case, in connection with which the Ship is actually or reasonably likely to be arrested, attached, detained or injuncted
and/or the Ship and/or the Borrower and/or any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable
to any legal or administrative action; or
|
|
|
(c)
|
any other incident in which Environmentally Sensitive Material is released otherwise than from
the Ship and in connection with which the Ship is actually or reasonably likely to be arrested and/or where the Borrower and/or
any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action.
|
"
Environmental
Law
" means any law relating to pollution or protection of the environment, to the carriage of Environmentally Sensitive
Material or to actual or threatened releases of Environmentally Sensitive Material.
"
Environmentally
Sensitive Material
" means oil, oil products and any other substance (including any chemical, gas or other hazardous
or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous;
"
EU
Bail-In Legislation Schedule
" means the document described as such and published by the Loan Market Association
(or any successor person) from time to time.
"
Event
of Default
" means any of the events or circumstances described in Clause 20.1 (
Events of Default
).
"
Facility
Office
" means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender
(or, following that date, by not less than 5 Business Days' written notice) as the office or offices through which it will perform
its obligations under this Agreement.
"
FATCA
" means:
|
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations;
|
|
|
(b)
|
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement
between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred
to in paragraph (a) above; or
|
|
|
(c)
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs
(a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other
jurisdiction.
|
"
FATCA Application Date
"
means:
|
|
(a)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code
(which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
|
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code
(which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources
within the US), 1 January 2019; or
|
|
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling
within paragraphs (a) or (b) above, 1 January 2019,
|
or, in each case, such other date
from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after
the date of this Agreement.
"
FATCA Deduction
"
means a deduction or withholding from a payment under a Finance Document required by FATCA.
"
FATCA
Exempt Party
" means a Party that is entitled to receive payments free from any FATCA Deduction.
"
Fee
Letter
" means any letter or letters between the Agent and the Borrower setting out any of the fees referred to
in Clause 21 (
Fees and Expenses
).
"
Final
Availability Date
" means:
|
|
(b)
|
in the event of arbitration proceedings in connection with the Shipbuilding Contract, with the
prior consent of the Agent (with the authorisation of the Majority Lenders) which is not to be unreasonably withheld or delayed,
the day falling 365 days after the commencement of such arbitration (if later than 26 February 2012); or
|
|
|
(c)
|
such later date as the Agent (with the authorisation of the Majority Lenders) may agree in writing.
|
"
Finance
Documents
" means:
|
|
(b)
|
the Agency and Trust Agreement;
|
|
|
(c)
|
the General Assignment;
|
|
|
(d)
|
the Charter Assignment (if any);
|
|
|
(f)
|
the Account Security Deed;
|
|
|
(h)
|
any Transfer Certificate;
|
|
|
(i)
|
any other document (whether creating a Security Interest or not) which is executed at any time
by the Borrower or any other person as security for, or to establish any form of subordination or priorities arrangement in relation
to, any amount payable to the Lenders under this Agreement and/or any of the other documents referred to in this definition; and
|
|
|
(j)
|
any other document designated as such by the Agent and the Borrower.
|
"
Financial
Indebtedness
" means, in relation to a person (the "
debtor
"), a liability of the debtor:
|
|
(a)
|
for principal, interest or any other sum payable in respect of any moneys borrowed or raised by
the debtor;
|
|
|
(b)
|
under any loan stock, bond, note or other security issued by the debtor;
|
|
|
(c)
|
under any acceptance credit, guarantee or letter of credit facility or dematerialised equivalent
made available to the debtor;
|
|
|
(d)
|
under a financial lease, a deferred purchase consideration arrangement or any other agreement having
the commercial effect of a borrowing or raising of money by the debtor;
|
|
|
(e)
|
under any foreign exchange transaction, any interest or currency swap or any other kind of derivative
transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of
mutual liabilities, the liability of the debtor for the net amount; or
|
|
|
(f)
|
under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability
of another person which would fall within paragraphs (a) to (e) if the references to the debtor referred to the other person.
|
"
General
Assignment
" means a general assignment of the Earnings, the Insurances and any Requisition Compensation in the
Agreed Form.
"
Group
"
means the Borrower and each of its Subsidiaries.
"
Holding
Company
" means in relation to a person, any other person in respect of which it is a Subsidiary.
"
IFRS
"
means international accounting standards within the meaning of the IAS Regulations 1606/2002 to the extent applicable to the relevant
financial statements.
"
Insurances
"
means:
|
|
(a)
|
all policies and contracts of insurance, including entries of the Ship in any protection and indemnity
or war risks association, which are effected in respect of the Ship, her Earnings or otherwise in relation to her; and
|
|
|
(b)
|
all rights and other assets relating to, or derived from, any of the foregoing, including any rights
to a return of a premium.
|
"
Interest
Period
" means a period determined in accordance with Clause 6 (
Interest Periods
).
"
ISM
Code
" means the International Safety Management Code (including the guidelines on its implementation), adopted
by the International Maritime Organisation, as the same may be amended or supplemented from time to time (and the terms "
safety
management system
", "
Safety Management Certificate
" and "
Document of Compliance
" have
the same meanings as are given to them in the ISM Code).
"
ISPS
Code
" means the International Ship and Port Facility Security Code as adopted by the International Maritime Organisation,
as the same may be amended or supplemented from time to time.
"
ISSC
"
means a valid and current International Ship Security Certificate issued under the ISPS Code.
"
Lender
"
means a bank or financial institution listed in Schedule 1 (
Lenders and Commitments
) and acting through its branch indicated
in Schedule 1 (
Lenders and Commitments
) (or through another branch notified to the Borrower under Clause 28.14 (
Change
of lending office
) or its transferee, successor or assign, which in each case has not ceased to be a party in accordance with
the terms of this Agreement.
"
LIBOR
"
means, in relation to the Loan or any part of the Loan:
|
|
(a)
|
the applicable Screen Rate as of the Specified Time for dollars and for a period equal in length
to the Interest Period of the Loan or that part of the Loan; or
|
|
|
(b)
|
as otherwise determined pursuant to Clause 5.6 (
Absence of quotations by Reference Banks
),
|
and if, in either case, that rate
is less than zero, LIBOR shall be deemed to be zero.
"
Loan
"
means a loan made or to be made under this Agreement or the principal amount for the time being outstanding under this Agreement.
"
Major
Casualty
" means any casualty to the Ship in respect of which the claim or the aggregate of the claims against all
insurers, before adjustment for any relevant franchise or deductible exceeds $5,000,000 or the equivalent in any other currency.
"
Majority
Lenders
" means:
|
|
(a)
|
before any Advance has been made, Lender or Lenders whose Commitments total more than 66.66 per
cent. of the Total Commitments; and
|
|
|
(b)
|
at any other time, Lender or Lenders whose Contributions in the Loan outstanding total more than
66.66 per cent. of all the Loan then outstanding.
|
"
Mandatory
Cost
” means the percentage rate, which represents the cost to the Lenders, relative to the Loan, of compliance
with the requirements of the Bank of England, the Financial Services Authority or any other regulatory authority, as determined
by the Agent in accordance with the formula detailed in Schedule 5 (
Mandatory Cost
).
"
Margin
"
means 1.95 per cent. per annum.
"
Market
Disruption Event
" has the meaning given to that term in paragraph 5(b) of Clause 5.7 (
Market disruption
).
"
Market
Value
" means the market value of the Ship as determined in accordance with Clause 16.3 (
Valuation of Ship
).
"
Maturity
Date
" means the date falling 8 years after the Delivery Date or, if earlier, 26 February 2020.
"
Mortgage
”
means the first preferred Greek ship mortgage or the first priority statutory ship mortgage or first preferred ship mortgage and,
if applicable, collateral deed of covenant in the form appropriate for the flag of the Ship in the event that the Approved Flag
is not Greek flag in the Agreed Form.
"
Negotiation
Period
" has the meaning given in Clause 5.9 (
Negotiation of alternative rate of interest
).
"
Notifying
Lender
" has the meaning given in Clause 25.1 (
Illegality
) or Clause 26.1 (
Increased costs
) as the
context requires.
"
Original
Borrower
" means Fiorano Shipholding Limited, a company incorporated in Hong Kong whose registered office is at
Room 2503-05, 25
th
Floor, Harcourt House, No.39 Gloucester Road, Wanchai, Hong Kong.
"
Party
"
means a party to this Agreement.
"
Payment
Currency
" has the meaning given in Clause 22.4 (
Currency indemnity
).
"
Permitted
Security Interests
" means:
|
|
(a)
|
Security Interests created by the Finance Documents;
|
|
|
(b)
|
liens for unpaid master's and crew's wages in accordance with usual maritime practice;
|
|
|
(d)
|
liens arising by operation of law for not more than 2 months' prepaid hire under any charter in
relation to the Ship not prohibited by this Agreement;
|
|
|
(e)
|
liens for master's disbursements incurred in the ordinary course of trading and any other lien
arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of the Ship or in the ordinary
course of business of the Borrower, provided such liens do not secure amounts more than 30 days overdue (unless the overdue
amount is being contested by the Borrower in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance,
to paragraph (f) of Clause 15.12 (
Restrictions on chartering, appointment of managers etc.
);
|
|
|
(f)
|
any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration
as security for costs and expenses where the Borrower is actively prosecuting or defending such proceedings or arbitration in good
faith; and
|
|
|
(g)
|
Security Interests arising by operation of law in respect of taxes which are not overdue for payment
or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been
made.
|
"
Pertinent
Document
" means:
|
|
(a)
|
any Finance Document;
|
|
|
(b)
|
any policy or contract of insurance contemplated by or referred to in Clause 14 (
Insurance
)
or any other provision of this Agreement or another Finance Document;
|
|
|
(c)
|
any other document contemplated by or referred to in any Finance Document; and
|
|
|
(d)
|
any document which has been or is at any time sent by or to a Servicing Bank in contemplation of
or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c).
|
“
Permitted
Holders
” means each of Saverco and Victrix (and (in each case) any parallel vehicle thereof and their respective alternative
investment vehicles) and their affiliates.
"
Pertinent
Jurisdiction
", in relation to a company, means:
|
|
(b)
|
the country under the laws of which the company is incorporated or formed;
|
|
|
(c)
|
a country in which the company has the centre of its main interests or in which the company's central
management and control is or has recently been exercised;
|
|
|
(d)
|
a country in which the overall net income of the company is subject to corporation tax, income
tax or any similar tax;
|
|
|
(e)
|
a country in which assets of the company (other than securities issued by, or loans to, related
companies) having a substantial value are situated, in which the company maintains a branch or permanent place of business, or
in which a Security Interest created by the company must or should be registered in order to ensure its validity or priority; and
|
|
|
(f)
|
a country the courts of which have jurisdiction to make a winding up, administration or similar
order in relation to the company, whether as main or territorial or ancillary proceedings or which would have such jurisdiction
if their assistance were requested by the courts of a country referred to in paragraphs (b) or (c) above.
|
"
Pertinent
Matter
" means:
|
|
(a)
|
any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document;
or
|
|
|
(b)
|
any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph
(a);
|
and covers any such transaction,
matter or statement, whether entered into, arising or made at any time before the signing of this Agreement or on or at any time
after that signing.
"
Potential
Event of Default
" means an event or circumstance which, with the giving of any notice, the lapse of time, a reasonable
determination of the Majority Lenders and/or the satisfaction of any other condition, would constitute an Event of Default.
"
Quotation
Date
" means, in relation to any Interest Period (or any other period for which an interest rate is to be determined
under any provision of a Finance Document), the day on which quotations would ordinarily be given by leading banks in the London
Interbank Market for deposits in the currency in relation to which such rate is to be determined for delivery on the first day
of that Interest Period or other period.
"
Reference
Banks
" means, subject to Clause 28.16 (
Replacement of Reference Bank
), the London, Dublin or Toronto (as
the case may be) branches of each of the Lenders or such other banks as may be appointed by the Agent in consultation with the
Borrower.
"
Relevant
Interbank Market
" means the London Interbank Market.
"
Relevant
Person
" has the meaning given in Clause 20.9 (
Relevant Persons
).
"
Repayment
Date
" means a date on which a repayment is required to be made under Clause 8 (
Repayment and Prepayment
).
"
Requisition
Compensation
" includes all compensation or other moneys payable by reason of any act or event such as is referred
to in paragraph (b) of the definition of "Total Loss".
"
Resolution
Authority
" means any body which has authority to exercise any Write-down and Conversion Powers.
"
Restricted
Party
" means a person:
|
|
(a)
|
that is listed on any Sanctions List (whether designated by name or by reason of being included
in a class of person);
|
|
|
(b)
|
that is domiciled, registered as located or having its main place of business in, or is incorporated
under the laws of, a country which is subject to Sanctions Laws which attach legal effect to being domiciled, registered as located
or having its main place of business in such country; or
|
|
|
(c)
|
that is directly or indirectly owned or controlled by a person referred to in paragraph (a) and/or
(b) above; or
|
|
|
(d)
|
with which any member of the Group is prohibited from dealing or otherwise engaging in a transaction
with by any Sanctions Laws;
|
"
Sanctions
Authority
" means the Norwegian State, the United Nations, the United Kingdom, the European Union, the member states
of the European Union, the United States of America and Canada and any authority acting on behalf of any of them in connection
with Sanctions Laws.
"
Sanctions
Laws
" means the economic or financial sanctions laws and/or regulations, trade embargoes, prohibitions, restrictive
measures, decisions, executive orders or notices from regulators implemented, adapted, imposed, administered, enacted and/or enforced
by any Sanctions Authority.
"
Saverco
"
means Saverco NV, a company incorporated in Belgium whose registered office is at de Gerlachekaai 20, B-2000 Antwerp, Belgium.
"
Sanctions
List
" means any list of persons or entities published in connection with Sanctions Laws by or on behalf of any
Sanctions Authority as amended, revised, supplemented or substituted from time to time.
"
Screen
Rate
" means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other
person which takes over the administration of that rate) for dollars for the relevant period displayed (before any correction,
recalculation or republication by the administrator) on page LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement
Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that
rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another
page or service displaying the relevant rate after consultation with the Borrower.
"
Secured
Liabilities
" means all monies from time to time due or owing, and all obligations and other actual or contingent
liabilities incurred by the Borrower, the Security Parties or any of them to any Creditor Party, at the date of this Agreement
or at any later time or times, in whatever currency, whether due, owing or incurred alone or jointly with others or as principal,
surety or otherwise under or in connection with any Finance Document or any judgment relating to any Finance Document; and for
this purpose, there shall be disregarded any total or partial discharge of these liabilities, or variation of their terms, which
is effected by, or in connection with, any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of
any country.
"
Security
Interest
" means:
|
|
(a)
|
a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other
security interest of any kind;
|
|
|
(b)
|
the security rights of a plaintiff under an action
in rem
; and
|
|
|
(c)
|
any arrangement entered into by a person (A) the effect of which is to place another person (B)
in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over
an asset of A; but this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard
terms of business of a bank or financial institution.
|
"
Security
Party
" means any person (except the Borrower or a Creditor Party) who, as a surety or mortgagor, as a party to
any subordination or priorities arrangement, or in any similar capacity, executes a document falling within the definition of "Finance
Documents".
"
Security
Period
" means the period commencing on the date of this Agreement and ending on the date on which the Agent notifies
the Borrower, the Security Parties and the Creditor Parties that:
|
|
(a)
|
all amounts which have become due for payment by the Borrower or any Security Party under the Finance
Documents have been paid;
|
|
|
(b)
|
no amount is owing or has accrued (without yet having become due for payment) under any Finance
Document;
|
|
|
(c)
|
neither the Borrower nor any Security Party has any future or contingent liability under Clause
21 (
Fees and Expenses
), 22 (
Indemnities
) or 23 (
No Set-off or Tax Deduction
) or any other provision of this
Agreement or another Finance Document; and
|
|
|
(d)
|
the Agent, the Security Trustee and the Majority Lenders do not consider that there is a significant
risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in
any present or possible future bankruptcy of the Borrower or a Security Party or in any present or possible future proceeding relating
to a Finance Document or any asset covered (or previously covered) by a Security Interest created by a Finance Document.
|
"
Security
Trustee
" means The Bank of Nova Scotia, a company incorporated in Canada and acting in such capacity through its
office at 201 Bishopsgate, 6th Floor, London EC2M 3NS, England or any successor of it is appointed under clause 5 of the Agency
and Trust Agreement.
"
Servicing
Bank
" means the Agent or the Security Trustee.
"
Ship
"
means the Suezmax tanker with hull no. 1893 of 157,648.1 dwt, named m.v. "CAPTAIN MICHAEL" registered in the name of
the Borrower under an Approved Flag.
"
Shipbuilding
Contract
" means the Shipbuilding Contract dated 25 July 2008 made between the Builder and the Original Borrower
for the construction by the Builder of the Ship and its purchase by the Borrower as supplemented and amended from time to time.
"
Specified
Time
" means a day or time determined as follows:
|
LIBOR is fixed
|
|
Quotation Day as of 11:00 am London time
|
|
|
|
|
|
Reference Bank Rate calculated by reference to available quotations in accordance with Clause 5.6 (
Absence of quotations by Reference Banks
)
|
|
Noon on the Quotation Day
|
"
Total
Commitments
" means the aggregate of the Commitments of all the Lenders being the Loan.
"
Total
Loss
" means:
|
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of the Ship;
|
|
|
(b)
|
any expropriation, confiscation, requisition or acquisition of the Ship, whether for full consideration,
a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government
or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding
a requisition for hire for a fixed period not exceeding 1 year without any right to an extension) unless it is within 3 months
redelivered to the Borrower's full control; and
|
|
|
(c)
|
any arrest, capture, seizure or detention of the Ship (including any hijacking or theft) unless
it is within 3 months redelivered to the Borrower's full control.
|
"
Total
Loss Date
" means:
|
|
(a)
|
in the case of an actual loss of the Ship, the date on which it occurred or, if that is unknown,
the date when the Ship was last heard of;
|
|
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss of the Ship, the earliest
of:
|
|
|
(i)
|
the date on which a notice of abandonment is given to the insurers; and
|
|
|
(ii)
|
the date of any compromise, arrangement or agreement made by or on behalf of the Borrower with
the Ship's insurers in which the insurers agree to treat the Ship as a total loss; and
|
|
|
(c)
|
in the case of any other type of total loss, on the date (or the most likely date) on which it
appears to the Agent that the event constituting the total loss occurred.
|
"
Transfer
Certificate
" has the meaning given in Clause 28.2 (
Transfer by a Lender
).
"
Trust
Property
" has the meaning given in clause 3.1 of the Agency and Trust Agreement.
"
VAT
"
means:
|
|
(a)
|
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system
of value added tax (EC Directive 2006/112); and
|
|
|
(b)
|
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution
for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
"
Victrix
"
means Victrix NV, a company incorporated in Belgium whose registered office is at Le Grellelei 20, 2600 Berchem, Belgium.
"
Write-down
and Conversion Powers
" means:
|
|
(a)
|
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time
to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
|
|
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
|
|
(i)
|
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those
powers; and
|
|
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation.
|
|
|
1.2
|
Construction of certain terms
|
In this Agreement:
"
administration
notice
" means a notice appointing an administrator, a notice of intended appointment and any other notice which
is required by law (generally or in the case concerned) to be filed with the court or given to a person prior to, or in connection
with, the appointment of an administrator.
"
approved
"
means, for the purposes of Clause 14 (
Insurance
), approved in writing by the Agent;
"
asset
"
includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or
other payment.
"
company
"
includes any partnership, joint venture and unincorporated association.
"
consent
"
includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalisation.
"
contingent
liability
" means a liability which is not certain to arise and/or the amount of which remains unascertained.
"
continuing
"
means, in relation to any Event of Default, the Event of Default has not been remedied to the satisfaction of, or waived by the
Majority Lenders.
"
document
"
includes a deed; also a letter or fax.
"
excess
risks
" means the proportion of claims for general average, salvage and salvage charges not recoverable under the
hull and machinery policies in respect of the Ship in consequence of its insured value being less than the value at which the Ship
is assessed for the purpose of such claims.
"
expense
"
means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable value added or other
tax.
"
law
"
includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution
of the Council of the European Union, the European Commission, the United Nations or its Security Council.
"
legal
or administrative action
" means any legal proceeding or arbitration and any administrative or regulatory action
or investigation.
"
liability
"
includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or
otherwise.
"
months
"
shall be construed in accordance with Clause 1.3 (
Meaning of "month"
).
"
obligatory
insurances
" means all insurances effected, or which the Borrower is obliged to effect, under Clause 14 (
Insurance
)
or any other provision of this Agreement or another Finance Document.
"
parent
company
" has the meaning given in Clause 1.4 (
Meaning of "subsidiary"
).
"
person
"
includes any company; any state, political sub-division of a state and local or municipal authority; and any international organisation.
"
policy
",
in relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance
or its terms.
"
protection
and indemnity risks
" means the usual risks covered by a protection and indemnity association managed in London,
including pollution risks and the 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 in them of clause 6 of the International
Hull Clauses (1/11/02 or 1/11/03), clause 8 of the Institute Time Clauses (Hulls) (1/11/1995) or clause 8 of the Institute Time
Clauses (Hulls) (1/10/83) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision.
"
regulation
" includes
any regulation, rule, official directive, request or guideline whether or not having the force of law of any governmental, intergovernmental
or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation.
"
subsidiary
"
has the meaning given in Clause 1.4 (
Meaning of "subsidiary"
).
"
tax
" includes any
present or future tax, duty, impost, levy or charge of any kind which is imposed by any state, any political sub-division of a
state or any local or municipal authority (including any such imposed in connection with exchange controls), and any connected
penalty, interest or fine.
"
war
risks
" includes the risk of mines and all risks excluded by clause 29 of the International Hull Clauses (1/11/02
or 1/11/03) or clause 24 of the Institute Time Clauses (Hulls)(1/11/95) or clause 23 of the Institute Time Clauses (Hulls) (1/10/83).
A period of one or more "months"
ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started
("
the numerically corresponding day
"), but:
|
|
(a)
|
on the Business Day following the numerically corresponding day if the numerically corresponding
day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically
corresponding day; or
|
|
|
(b)
|
on the last Business Day in the relevant calendar month, if the period started on the last Business
Day in a calendar month or if the last calendar month of the period has no numerically corresponding day,
|
and "
month
" and
"
monthly
" shall be construed accordingly.
|
|
1.4
|
Meaning of "subsidiary"
|
A company (S) is a subsidiary of
another company (P) if:
|
|
(a)
|
a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited
rights to capital and income distributions) are directly owned by P or are indirectly attributable to P; or
|
|
|
(b)
|
P has direct or indirect control over a majority of the voting rights attaching to the issued shares
of S; or
|
|
|
(c)
|
P has the direct or indirect power to appoint or remove a majority of the directors of S; or
|
|
|
(d)
|
P otherwise has the direct or indirect power to ensure that the affairs of S are conducted in accordance
with the wishes of P;
|
and any company of which S is a subsidiary
is a parent company of S.
|
|
1.5
|
General Interpretation
|
In this Agreement:
|
|
(a)
|
references to, or to a provision of, a Finance Document or any other document are references to
it as amended or supplemented, whether before the date of this Agreement or otherwise;
|
|
|
(b)
|
references to, or to a provision of, any law include any amendment, extension, re-enactment or
replacement, whether made before the date of this Agreement or otherwise;
|
|
|
(c)
|
words denoting the singular number shall include the plural and vice versa; and
|
|
|
(d)
|
Clauses 1.1 (
Definitions
) to 1.5 (
General Interpretation
) apply unless the contrary
intention appears.
|
In interpreting a Finance Document
or any provision of a Finance Document, all clause, sub-clause and other headings in that and any other Finance Document shall
be entirely disregarded.
Subject to the other provisions of
this Agreement, the Lenders shall make available to the Borrower a term loan facility in an aggregate amount equal to the Total
Commitments to enable the Borrower to finance its acquisition of the Ship by 5 Advances as follows:
|
|
(a)
|
a first Advance of up to $14,250,000 to enable the Borrower to refinance the first pre-delivery
instalment of the Contract Price under the Shipbuilding Contract paid to the Builder upon signing of the Shipbuilding Contract;
|
|
|
(b)
|
a second Advance of up to $7,125,000 to enable the Borrower to meet the second pre-delivery instalment
of the Contract Price under the Shipbuilding Contract to be paid to the Builder on the date falling 12 calendar months after the
date of the Shipbuilding Contract;
|
|
|
(c)
|
a third Advance of up to $7,125,000 to enable the Borrower to meet the third pre-delivery instalment
of the Contract Price under the Shipbuilding Contract to be paid to the Builder upon keel laying;
|
|
|
(d)
|
a fourth Advance of up to $7,125,000 to enable the Borrower to meet the fourth pre-delivery instalment
of the Contract Price under the Shipbuilding Contract to be paid to the Builder upon launching;
|
|
|
(e)
|
a fifth Advance of up to $35,625,000 to enable the Borrower to meet the final instalment of the
Contract Price under the Shipbuilding Contract to be paid to the Builder upon delivery of the Ship.
|
The Loan was transferred
from the Original Borrower to the Borrower pursuant to an agreement dated the same date as this Agreement was amended and restated
and entered into between the Original Borrower and the Borrower. This transfer was approved by the Creditor Parties.
|
|
2.3
|
Lenders' participations in Loan
|
Subject to the other provisions of
this Agreement, each Lender shall participate in each Advance in the proportion which, as at the relevant Drawdown Date, its Commitment
bears to the Total Commitments. No Creditor Party is bound to monitor or verify the application of any amount borrowed pursuant
to this Agreement.
The Borrower undertakes with each
Creditor Party to use each Advance only for the purpose stated in the preamble to this Agreement.
|
|
3
|
Position of the Lenders
|
|
|
3.1
|
Interests of Lenders several
|
The rights of the Lenders under this
Agreement are several.
|
|
3.2
|
Individual Lender's right of action
|
Subject to 3.3 (
Proceedings by
individual Lender requiring Majority Lender consent
), each Lender shall be entitled to sue for any amount which has become
due and payable by the Borrower to it under this Agreement without joining the Agent, the Security Trustee or any other Lender
as additional parties in the proceedings.
|
|
3.3
|
Proceedings by individual Lender requiring Majority Lender consent
|
No Lender may commence proceedings
against the Borrower or any Security Party in connection with a Finance Document without the prior consent of the Majority Lenders.
|
|
3.4
|
Obligations of Lenders several
|
The obligations of the Lenders under
this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement shall not result in:
|
|
(a)
|
the obligations of the other Lenders being increased; nor
|
|
|
(b)
|
the Borrower, any Security Party or any other Lender being discharged (in whole or in part) from
its obligations under any Finance Document,
|
and in no circumstances shall a Lender
have any responsibility for a failure of another Lender to perform its obligations under this Agreement.
Subject to the following conditions,
the Original Borrower requested an Advance to be made by ensuring that the Agent received a completed Drawdown Notice not later
than 11.00 a.m. (London time) 3 Business Days prior to the intended Drawdown Date or such shorter period as the Agent and the Borrower
mutually agreed.
The conditions referred to in Clause
4.1 (
Request for Advance
) were that:
|
|
(a)
|
a Drawdown Date had to be a Business Day within the Availability Period
|
|
|
(b)
|
the amount of the Advance requested complied with Clause 2.1 (
Amount of facility
);
|
|
|
(c)
|
each Advance in relation to the Loan should not exceed 75 per cent. of the amount of the instalment
under the Shipbuilding Contract which was being financed by that Advance;
|
|
|
(d)
|
the aggregate amount of the Advances should not exceed the Total Commitments;
|
|
|
(e)
|
the proposed Interest Period complied with Clause 6 (
Interest Periods
); and
|
|
|
(f)
|
the conditions set out in Clause 9.1 (
Documents, fees and no default
) were met.
|
|
|
4.3
|
Notification to Lenders of receipt of a Drawdown Notice
|
The Agent must have promptly notified
the Lenders that it had received a Drawdown Notice and must have informed each Lender of:
|
|
(a)
|
the amount of the Advance and the Drawdown Date;
|
|
|
(b)
|
the amount of that Lender's participation in the Advance; and
|
|
|
(c)
|
the duration of the first Interest Period.
|
|
|
4.4
|
Drawdown Notice irrevocable
|
A Drawdown Notice must have been
signed by a director or officer or an authorised person of the Original Borrower; and once served, a Drawdown Notice could not
be revoked without the prior consent of the Agent, acting on the authorisation of the Majority Lenders.
|
|
4.5
|
Lenders to make available Contributions
|
Subject to the provisions of this
Agreement, and in particular Clause 9 (
Conditions Precedent
), each Lender, on and with value on each Drawdown Date, made
available to the Agent for the account of the Original Borrower the amount due from that Lender on that Drawdown Date under Clause
2.2.
|
|
4.6
|
Disbursement of Advance
|
Subject to the provisions of this
Agreement, the Agent on each Drawdown Date paid to the Original Borrower the amounts which the Agent received from the Lenders
under Clause 4.5 (
Lenders to make available Contributions
); and that payment to the Original Borrower was made:
|
|
(a)
|
to the account of the Builder which the Original Borrower specified in the Drawdown Notice; and
|
|
|
(b)
|
in the like funds as the Agent received the payments from the Lenders.
|
|
|
4.7
|
Disbursement of Advance to third party
|
The payment by the Agent under Clause
4.6 (
Disbursement of Advance
) to the Builder constituted the making of the Advance and the Original Borrower at that time
and the Borrower from the date of this amended and restated Agreement became indebted, as principal and direct obligor, to each
Lender in an amount equal to that Lender's Contribution.
|
|
4.8
|
Cancellation of Total Commitments
|
Any undrawn portion of the Total
Commitments shall have been immediately cancelled at the end of the Availability Period.
|
|
5.1
|
Payment of normal interest
|
Subject to the provisions of this
Agreement, interest on the Loan in respect of each Interest Period shall be paid by the Borrower on the last day of that Interest
Period.
|
|
5.2
|
Normal rate of interest
|
Subject to the provisions of this
Agreement, the rate of interest on the Loan in respect of an Interest Period shall be the aggregate of:
|
|
(b)
|
the Mandatory Cost, if any; and
|
|
|
(c)
|
LIBOR for that Interest Period.
|
|
|
5.3
|
Payment of accrued interest
|
In the case of an Interest Period
longer than 3 months, accrued interest shall be paid every 3 months during that Interest Period and on the last day of that Interest
Period.
|
|
5.4
|
Notification of Interest Periods and rates of normal interest
|
The Agent shall notify the Borrower
and each Lender of:
|
|
(a)
|
each rate of interest; and
|
|
|
(b)
|
the duration of each Interest Period,
|
as soon as reasonably practicable
after each is determined.
|
|
5.5
|
Obligation of Reference Banks to quote
|
A Lender which is a Reference Bank
shall use all reasonable efforts to supply the quotation required of it for the purposes of fixing a rate of interest under this
Agreement.
|
|
5.6
|
Absence of quotations by Reference Banks
|
If any Reference Bank fails to supply
a quotation, the Agent shall determine the relevant LIBOR on the basis of the quotations supplied by the other Reference Bank or
Banks; but if 2 or more of the Reference Banks fail to provide a quotation, the relevant rate of interest shall be set in accordance
with the following provisions of this Clause 5 (
Interest
).
|
|
(a)
|
If a Market Disruption Event occurs in relation to an Advance for any Interest Period, then the
rate of interest on each Lender's share of that Advance for the Interest Period shall be the percentage rate per annum which is
the sum of:
|
|
|
(ii)
|
the rate notified to the Agent by that Lender as soon as practicable and in any event before interest
is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that
Lender of funding its participation in that Loan from whatever source it may reasonably select; and
|
|
|
(iii)
|
the Mandatory Cost, if any, applicable to that Lender's participation in the Advance.
|
|
|
(b)
|
In this Agreement "
Market Disruption Event
" means:
|
|
|
(i)
|
at or about noon on the Quotation Date for the relevant Interest Period the Thomson Reuters BBA
Page LIBOR 01 or LIBOR 02 is not available and none or only one of the Reference Banks supplies a rate to the Agent to determine
LIBOR for dollars for the relevant Interest Period; or
|
|
|
(ii)
|
before close of business in London on the Quotation Date for the relevant Interest Period, the
Agent receives notifications from a Lender or Lenders that the cost to it or them obtaining matching deposits in the Relevant Interbank
Market would be in excess of LIBOR.
|
|
|
5.8
|
Notification of market disruption
|
The Agent shall promptly notify the
Borrower and each of the Lenders stating the circumstances falling within Clause 5.7 (
Market disruption
) which have caused
its notice to be given.
|
|
5.9
|
Negotiation of alternative rate of interest
|
If the Agent's notice under Clause
5.8 (
Notification of market disruption
) is served after an Advance is made, the Borrower, the Agent and the Lenders shall
use reasonable endeavours to agree, within the 30 days after the date on which the Agent serves its notice under Clause 5.8 (
Notification
of market disruption
) (the "
Negotiation Period
"), an alternative interest rate or (as the case may be) an
alternative basis for the Lenders to fund or continue to fund their or its Contribution during the Interest Period concerned.
|
|
5.10
|
Application of agreed alternative rate of interest
|
Any alternative interest rate or
an alternative basis which is agreed during the Negotiation Period shall take effect in accordance with the terms agreed.
|
|
5.11
|
Alternative rate of interest in absence of agreement
|
If an alternative interest rate or
alternative basis is not agreed within the Negotiation Period, and the relevant circumstances are continuing at the end of the
Negotiation Period, then the Agent shall, with the agreement of each Lender, set an interest period and interest rate representing
the cost of funding of the Lenders in Dollars or in any available currency of their or its Contribution plus the Margin; and the
procedure provided for by this Clause 5.11 (
Alternative rate of interest in absence of agreement
) shall be repeated if the
relevant circumstances are continuing at the end of the interest period so set by the Agent.
|
|
5.12
|
Notice of prepayment
|
If the Borrower does not agree with
an interest rate set by the Agent under Clause 5.11 (
Alternative rate of interest in absence of agreement
), the Borrower
may give the Agent not less than 15 Business Days' notice of its intention to prepay at the end of the interest period set by the
Agent.
|
|
5.13
|
Prepayment; termination of Commitments
|
A notice under Clause 5.12 (
Notice
of prepayment
) shall be irrevocable; the Agent shall promptly notify the Lenders of the Borrower's notice of intended prepayment;
and:
|
|
(a)
|
on the date on which the Agent serves that notice, the Total Commitments shall be cancelled; and
|
|
|
(b)
|
on the last Business Day of the interest period set by the Agent, the Borrower shall prepay (without
premium or penalty) the Loan together with accrued interest thereon at the applicable rate plus the Margin.
|
|
|
5.14
|
Application of prepayment
|
The provisions of Clause 8 (
Repayment
and Prepayment
) shall apply in relation to the prepayment made pursuant to Clause 5.12 (
Notice of prepayment
).
|
|
6.1
|
Commencement of Interest Periods
|
The first Interest Period applicable
to an Advance shall commence on the Drawdown Date and each subsequent Interest Period shall commence on the expiry of the preceding
Interest Period.
|
|
6.2
|
Duration of normal Interest Periods
|
Subject to Clauses 6.3 (
Duration
of Interest Periods for repayment instalments
) and 6.4 (
Non-availability of matching deposits for Interest Period selected
),
each Interest Period shall be:
|
|
(a)
|
3 or 6 months as notified by the Borrower to the Agent not later than 11.00 a.m. (London time)
3 Business Days before the commencement of the Interest Period; or
|
|
|
(b)
|
in the case of the first Interest Period applicable to the second and any subsequent Advance, a
period ending on the last day of the Interest Period applicable to the first Advance then current, whereupon all of the Advances
shall be consolidated and treated as a single Advance;
|
|
|
(c)
|
3 months, if the Borrower fails to notify the Agent by the time specified in paragraph (a); or
|
|
|
(d)
|
such other period as the Agent may, with the authorisation of the Majority Lenders, agree with
the Borrower.
|
|
|
6.3
|
Duration of Interest Periods for repayment instalments
|
In respect of an amount due to be
repaid under Clause 8 (
Repayment and Prepayment
) on a particular Repayment Date, an Interest Period shall end on that Repayment
Date.
|
|
6.4
|
Non-availability of matching deposits for Interest Period selected
|
If, after the Borrower has selected
and the Lenders have agreed an Interest Period longer than 3 months, any Lender notifies the Agent by 11.00 a.m. (London time)
on the third Business Day before the commencement of the Interest Period that it is not satisfied that deposits in Dollars for
a period equal to the Interest Period will be available to it in the London Interbank Market when the Interest Period commences,
the Interest Period shall be of 3 months.
|
|
7.1
|
Payment of default interest on overdue amounts
|
The Borrower shall pay interest in
accordance with the following provisions of this Clause7 (
Default Interest
) on any amount payable by the Borrower under
any Finance Document which the Agent, the Security Trustee or the other designated payee does not receive on or before the relevant
date, that is:
|
|
(a)
|
the date on which the Finance Documents provide that such amount is due for payment; or
|
|
|
(b)
|
if a Finance Document provides that such amount is payable on demand, the date on which the demand
is served; or
|
|
|
(c)
|
if such amount has become immediately due and payable under Clause 20.4 (
Acceleration of Loan
),
the date on which it became immediately due and payable.
|
|
|
7.2
|
Default rate of interest
|
Interest shall accrue on an overdue
amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per
annum determined by the Agent to be 1 per cent. above:
|
|
(a)
|
in the case of an overdue amount of principal, the higher of the rates set out at paragraphs (a)
and (b) of Clause 7.3 (
Calculation of default rate of interest
); or
|
|
|
(b)
|
in the case of any other overdue amount, the rate set out at paragraph (b) of Clause 7.3 (
Calculation
of default rate of interest
).
|
|
|
7.3
|
Calculation of default rate of interest
|
The rates referred to in Clause 7.2
(
Default rate of interest
) are:
|
|
(a)
|
the rate applicable to the overdue principal amount immediately prior to the relevant date (but
only for any unexpired part of any then current Interest Period);
|
|
|
(b)
|
the Margin and the Mandatory Cost, if any, plus, in respect of successive periods of any duration
(including at call) up to 3 months which the Agent may select from time to time:
|
|
|
(ii)
|
if the Agent (after consultation with the Reference Banks) determines that Dollar deposits for
any such period are not being made available to any Reference Bank by leading banks in the London Interbank Market in the ordinary
course of business, a rate from time to time determined by the Agent by reference to the cost of funds to the Reference Banks from
such other sources as the Agent (after consultation with the Reference Banks) may from time to time determine.
|
|
|
7.4
|
Notification of interest periods and default rates
|
The Agent shall promptly notify the
Lenders and the Borrower of each interest rate determined by the Agent under Clause 7.3 (
Calculation of default rate of interest
)
and of each period selected by the Agent for the purposes of paragraph (b) of that Clause; but this shall not be taken to imply
that the Borrower is liable to pay such interest only with effect from the date of the Agent's notification.
|
|
7.5
|
Payment of accrued default interest
|
Subject to the other provisions of
this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference to which it was determined;
and the payment shall be made to the Agent for the account of the Creditor Party to which the overdue amount is due.
|
|
7.6
|
Compounding of default interest
|
Any such interest which is not paid
at the end of the period by reference to which it was determined shall thereupon be compounded.
|
|
8
|
Repayment and Prepayment
|
|
|
8.1
|
Amount of repayment instalments
|
Loan
The Borrower shall repay the Loan
by 12 equal consecutive quarterly instalments of $1,062,500 each together with a balloon instalment of $14,000,000 or equal to
the remaining amount of the Loan payable simultaneously with the final instalment.
The first repayment instalment will
be repaid on 30 April 2017 and the last repayment instalment together with the balloon instalment is to be repaid on the Maturity
Date.
On the Maturity Date, the Borrower
shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance
Document.
Subject to the following conditions,
the Borrower may, without penalty, prepay the whole or any part of the Loan on the last day of an Interest Period for that Advance.
|
|
8.5
|
Conditions for voluntary prepayment
|
The conditions referred to in Clause
8.4 (
Voluntary prepayment
) are that:
|
|
(a)
|
a partial prepayment shall be $500,000 or a multiple of $500,000 or such other amount agreed by
the Agent;
|
|
|
(b)
|
the Agent has received from the Borrower at least 5 Business Days' prior written notice specifying
the amount to be prepaid and the date on which the prepayment is to be made; and
|
|
|
(c)
|
the Borrower has provided evidence satisfactory to the Agent that any consent required by the Borrower
or any Security Party in connection with the prepayment has been obtained and remains in force, and that any requirement relevant
to this Agreement which affects the Borrower or any Security Party has been complied with.
|
|
|
8.6
|
Effect of notice of prepayment
|
A prepayment notice may not be withdrawn
or amended without the consent of the Agent, given with the authorisation of the Majority Lenders, and the amount specified in
the prepayment notice shall become due and payable by the Borrower on the date for prepayment specified in the prepayment notice.
|
|
8.7
|
Notification of notice of prepayment
|
The Agent shall notify the Lenders
promptly upon receiving a prepayment notice, and shall provide any Lender which so requests with a copy of any document delivered
by the Borrower under paragraph (c) of Clause 8.5 (
Conditions for voluntary prepayment
).
|
|
8.8
|
Mandatory prepayment on sale or Total Loss
|
The Borrower shall be obliged to
prepay the whole of the Loan:
|
|
(a)
|
if the Ship is sold, on or before the date on which such sale is completed by delivery of the Ship
to the buyer
Provided that
the Borrower shall not be required to prepay the Loan if the Ship is sold to a Subsidiary of
the Borrower pursuant to the proviso to Clause 12.3 (
No disposal of assets
); or
|
|
|
(b)
|
if the Ship becomes a Total Loss, on the earlier of the date falling 180 days after the Total Loss
Date and the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss; or
|
|
|
(c)
|
if there is a Change of Control, the Borrower shall be obliged to prepay the Loan in full and the
Commitments shall terminate not later than 60 days following the occurrence of the Change of Control.
|
|
|
8.9
|
Amounts payable on prepayment
|
A prepayment shall be made together
with accrued interest (and any other amount payable under Clause 22 (
Indemnities
) or otherwise) in respect of the amount
prepaid and, if the prepayment is not made on the last day of an Interest Period together with any sums payable under paragraph
(b) of Clause 22.1 (
Indemnities regarding borrowing and repayment of Loan
) but without premium or penalty.
|
|
8.10
|
Application of partial prepayment
|
Each partial prepayment shall be
applied first against the balloon and then against the repayment instalments specified in Clause 8.1 (
Amount of repayment instalments
)
in inverse order of maturity.
No amount prepaid may be reborrowed.
|
|
9.1
|
Documents, fees and no default
|
Each Lender's obligation to contribute
to an Advance was subject to the following conditions precedent:
|
|
(a)
|
that, on or before the service of the first Drawdown Notice, the Agent received the documents described
in Part A of Schedule 3 (
Condition Precedent Documents
) in form and substance satisfactory to the Agent and its lawyers;
|
|
|
(b)
|
that, on or before the first Drawdown Date for, but prior to the making of, an Advance (other than
the final Advance), the Agent received or was satisfied that it would receive on the making of such Advance the documents described
in Part B of Schedule 3 (
Condition Precedent Documents
) in form and substance satisfactory to it and its lawyers;
|
|
|
(c)
|
that before the final Drawdown Date for, but prior to the making of, the final Advance, the Agent
received or was satisfied that it would receive on the making of such Advance the documents described in Part C of Schedule 3 (
Condition
Precedent Documents
) in form and substance satisfactory to it and its lawyers;
|
|
|
(d)
|
that, on or before the service of the first Drawdown Notice, the Agent received the arrangement
fee referred to in Clause 21.1 (
Arrangement and commitment fees
), all accrued commitment fees payable pursuant to Clause
21.1 (
Arrangement and commitment fees
) and had received payment of the expenses referred to in Clause 21.2 (
Costs of
negotiation, preparation etc.
); and
|
|
|
(e)
|
that both at the date of each Drawdown Notice and at each Drawdown Date:
|
|
|
(i)
|
no Event of Default or Potential Event of Default had occurred or would result from the borrowing
of the Loan;
|
|
|
(ii)
|
the representations and warranties in Clause 10 (
Representations and Warranties
) and those
of the Borrower or any Security Party which were set out in the other Finance Documents would be true and not misleading if repeated
on each of those dates with reference to the circumstances then existing; and
|
|
|
(iii)
|
none of the circumstances contemplated by Clause 5.7 (
Market disruption
) had occurred or
was continuing; and
|
|
|
(f)
|
that, if the ratio set out in Clause 16.1 (
Minimum required security cover
) was applied
immediately following the making of the Advance, the Original Borrower would not have been obliged to provide additional security
or prepay part of the Loan under that Clause; and
|
|
|
(g)
|
that the Agent had received, and found to be acceptable to it, any further opinions, consents,
agreements and documents in connection with the Finance Documents which the Agent may, with the authorisation of the Majority Lenders,
request by notice to the Borrower prior to the Drawdown Date.
|
|
|
9.2
|
Waiver of conditions precedent
|
If the Majority Lenders, at their
discretion, were to permit an Advance to be borrowed before certain of the conditions referred to in Clause 9.1 (
Documents,
fees and no default
) were satisfied, the Original Borrower had to ensure that those conditions were satisfied within 5 Business
Days after the Drawdown Date (or such longer period as the Agent may, with the authorisation of the Majority Lenders, have specified).
|
|
10
|
Representations and Warranties
|
The Borrower represents and warrants
to each Creditor Party on the date of this amended and restated Agreement as follows.
The Borrower is duly incorporated
and validly existing and in good standing under the laws of Belgium.
The Borrower has the corporate capacity,
and has taken all corporate action and obtained all consents necessary for it:
|
|
(a)
|
to execute the Finance Documents to which it is a party; and
|
|
|
(b)
|
to borrow under this Agreement and to make all the payments contemplated by, and to comply with,
those Finance Documents.
|
All the consents referred to in Clause
10.3 (
Corporate power
) remain in force and nothing has occurred which makes any of them liable to revocation.
|
|
10.5
|
Legal validity; effective Security Interests
|
The Finance Documents to which the
Borrower is a party, do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided
for in the Finance Documents):
|
|
(a)
|
constitute the Borrower's legal, valid and binding obligations enforceable against the Borrower
in accordance with their respective terms; and
|
|
|
(b)
|
create legal, valid and binding Security Interests enforceable in accordance with their respective
terms over all the assets to which they, by their terms, relate,
|
subject to any relevant insolvency
laws affecting creditors' rights generally.
|
|
10.6
|
No third party Security Interests
|
Without limiting the generality of
Clause 10.5 (
Legal validity; effective Security Interests
), at the time of the execution and delivery of each Finance Document:
|
|
(a)
|
the Borrower will have the right to create all the Security Interests which that Finance Document
purports to create; and
|
|
|
(b)
|
no third party will have any Security Interest (except for Permitted Security Interests) or any
other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.
|
The execution by the Borrower of
each Finance Document, and the borrowing by the Borrower of the Loan, and its compliance with each Finance Document will not involve
or lead to a contravention of:
|
|
(a)
|
any law or regulation; or
|
|
|
(b)
|
the constitutional documents of the Borrower; or
|
|
|
(c)
|
any contractual or other obligation or restriction which is binding on the Borrower or any of its
assets.
|
|
|
10.8
|
Governing law and enforcement
|
|
|
(a)
|
The choice of English law as the governing law of the Finance Documents will be recognised and
enforced in its jurisdiction of incorporation.
|
|
|
(b)
|
Any judgment obtained in England in relation to a Finance Document will be recognised and enforced
in its jurisdiction of incorporation.
|
|
|
10.9
|
No withholding taxes
|
All payments which the Borrower is
liable to make under the Finance Documents must be made without any Tax Deduction payable under any law of any Pertinent Jurisdiction.
No Event of Default or Potential
Event of Default has occurred.
All information which has been provided
in writing by or on behalf of the Borrower or any Security Party to any Creditor Party in connection with any Finance Document
satisfied the requirements of Clause 12.5 (
Information provided to be accurate
); all audited and unaudited accounts which
have been so provided satisfied the requirements of Clause 12.7 (
Form of financial statements
); and there has been no material
adverse change in the financial position or state of affairs of the Borrower from that disclosed in the latest of those accounts.
No legal or administrative action
involving the Borrower (including action relating to any alleged or actual breach of the ISM Code or the ISPS Code) has been commenced
or taken or, to the Borrower's knowledge, is likely to be commenced or taken which, in either case, would be likely to have a material
adverse effect on the Borrower's financial position or profitability.
|
|
10.13
|
Compliance with certain undertakings
|
At the date of this amended and restated
Agreement, the Borrower is in compliance with Clauses 12.2 (
Title; negative pledge
), 12.4 (
No other liabilities or obligations
to be incurred
), 12.9 (
Consents
) and 12.12 (
Principal place of business
).
The Borrower has paid all taxes applicable
to, or imposed on or in relation to the Borrower, its business or the Ship.
|
|
10.15
|
ISM Code and ISPS Code compliance
|
All requirements of the ISM Code
and the ISPS Code as they relate to the Borrower, the Approved Manager and the Ship have been complied with or shall be complied
with as from the delivery of the Ship to the Borrower under the Shipbuilding Contract.
|
|
10.16
|
No money laundering
|
Without prejudice to the generality
of Clause 2.4 (
Purpose of Loan
), in relation to the borrowing by the Borrower of the Loan, the performance and discharge
of its obligations and liabilities under the Finance Documents, and the transactions and other arrangements affected or contemplated
by the Finance Documents to which the Borrower is a party, the Borrower confirms (i) that it is acting for its own account; (ii)
that it will use the proceeds of the Loan for its own benefit, under its full responsibility and exclusively for the purposes specified
in this Agreement; and (iii) that the foregoing will not involve or lead to a 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
2005/60/EC of the European Parliament and of the Council of the European Union of 26 October 2005).
|
|
10.17
|
Anti-Corruption Laws
|
The Borrower has conducted its business
in compliance with all applicable Anti-Corruption Laws and has instituted and maintained policies and procedures designed to promote
and achieve compliance with such laws.
Each Relevant Person has been and
is in compliance with all Sanctions Laws and no Relevant Person:
|
|
(a)
|
is a Restricted Party, or is involved in any transaction through which it is likely to become a
Restricted Party; or
|
|
|
(b)
|
has received formal notice in writing of any inquiry, claim, action, suit, proceeding or investigation
against it with respect to Sanctions Laws.
|
The Borrower will ensure that the
consolidated financial position of the Borrower and its subsidiaries shall at all times during the Security Period be such that:
|
|
(a)
|
Current Assets exceed Current Liabilities;
|
|
|
(b)
|
Free Liquid Assets are not less than the higher of:
|
|
|
(ii)
|
3 per cent. of Total Indebtedness; and
|
|
|
(c)
|
the ratio of Stockholders’ Equity to Total Assets is not less than 30 per cent.
|
In this Clause 11.1 (
Financial
Covenants
):
"
Current Assets
"
means, at any date of determination under this Agreement, the amount of the current assets of the Borrower and its subsidiaries
determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet, but always including undrawn
credit lines and revolving credits;
"
Current Liabilities
"
means, at any date of determination under this Agreement, the amount of the current liabilities of the Borrower and its subsidiaries
determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet;
"
Free Liquid
Assets
" means, at any date of determination under this Agreement, the aggregate amount of cash and cash equivalents of
the Borrower and its subsidiaries determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance
Sheet but excluding any of those assets subject to a Security Interest (other than a Security Interest in favour of the Security
Trustee pursuant to this Agreement) at any time;
"
Latest Balance Sheet
"
means, at any date, the consolidated balance sheet of the Borrower and its subsidiaries most recently delivered to the Agent pursuant
to Clause 11.3 and/or most recently made publicly available;
"
Stockholders’ Equity
"
means, at any date of determination under this Agreement, the amount of the capital and reserves of the Borrower and its subsidiaries
determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet;
"
Total Assets
" means,
at any date of determination under this Agreement, the amount of the total assets of the Borrower and its subsidiaries determined
on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet; and
"
Total Indebtedness
"
means, at any date of determination under this Agreement, the amount of long-term loans (including finance leases, banks loans
and other long-term loans) and short-term loans of the Borrower and its subsidiaries determined on a consolidated basis in accordance
with IFRS and as shown in the Latest Balance Sheet.
|
|
11.2
|
Change of accounting period
|
The
Borrower shall not change its fiscal year end date.
The Borrower undertakes with each
Creditor Party to comply with the following provisions of this Clause 12 (
General Undertakings
) at all times during the
Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit (such consent not to
be unreasonably withheld or delayed in the case of Clause 12.12 (
Principal place of business
).
|
|
12.2
|
Title; negative pledge
|
The Borrower will hold the legal
title to, and own the entire beneficial interest in the Ship, the Insurances and Earnings, free from all Security Interests and
other interests and rights of every kind, except for those created by the Finance Documents and the effect of assignments contained
in the Finance Documents and except for Permitted Security Interests.
|
|
12.3
|
No disposal of assets
|
The Borrower will not transfer, lease
or otherwise dispose of all or a substantial part of its assets, whether by one transaction or a number of transactions, whether
related or not except for those in the ordinary course of business and for fair market value payable in cash upon completion of
such transaction, with the exception of any charter of the Ship as to which clause 15.13 (
Time and consecutive voyage charters
in excess of 36 months
) applies.
Provided
that the Borrower
may sell the Ship to another subsidiary of the Borrower subject to the following conditions:
|
|
(i)
|
there is no Event of Default or Potential Event of Default which is continuing;
|
|
|
(ii)
|
the new owning company and the jurisdiction of incorporation being acceptable to the Lenders;
|
|
|
(iii)
|
the Borrower and the Security Parties entering into such amendments to this Agreement and the other
Finance Documents as may be required by the Lenders in order to document the change of ownership;
|
|
|
(iv)
|
the new owning company entering into such other security documents which are required by the Lenders
so as to maintain the same security for the Lenders on the transfer of ownership; and
|
|
|
(v)
|
the new owner shall pay to the Agent on demand all expenses (including but not limited to legal
expenses) relating to the said documentation.
|
|
|
12.4
|
No other liabilities or obligations to be incurred
|
The Borrower shall not, without the
prior consent of the Majority Lenders, incur any Financial Indebtedness or grant any guarantee in respect of Financial Indebtedness
if, as a result of incurring that Financial Indebtedness or incurring the contingent liability under that guarantee (as assessed
in accordance with IFRS), an Event of Default would occur, or one or more of the financial covenants in respect of the Borrower
set out in Clause 11.1 (
financial covenants
) would be breached, on the date of such incurrence.
|
|
12.5
|
Information provided to be accurate
|
All financial and other information
which is provided in writing by or on behalf of the Borrower under or in connection with any Finance Document will be true and
not misleading and will not omit any material fact or consideration.
|
|
12.6
|
Provision of financial statements
|
The Borrower will
send to the Agent:
|
|
(a)
|
as soon as possible, but in no event later than 120 days after the end of each financial year of
the Borrower from and including the financial year ending 31 December 2016, the audited consolidated accounts of the Group and
audited individual accounts of the Borrower;
|
|
|
(b)
|
as soon as possible, but in no event later than 75 days after the end of each financial half-year
of the Borrower (which half-year end shall, for the avoidance of doubt, occur annually), the audited consolidated balance sheet
of the Group certified as to its correctness by the chief financial officer of the Borrower and the audited individual balance
sheet of the Borrower certified as to its correctness by an officer or director of the Borrower;
|
|
|
(c)
|
as soon as possible, but in no event later than 60 days after the end of each financial quarter
of the Borrower and provided that these documents have not been published on the Borrower's website or sent to the Lenders in the
form of a press release, unaudited consolidated income statements of the Group certified as to their correctness by the chief financial
officer of the Borrower and unaudited individual income statements of the Borrower certified as to their correctness by an officer
or director of the Borrower;
|
|
|
(d)
|
as soon as possible, but not later than 120 days after the end of each financial year of the Borrower,
a financial projection for the Borrower and the Group for the next 3 years in a format which is acceptable to the Agent; and
|
|
|
(e)
|
together with the annual audited consolidated accounts and with each balance sheet of the Group
referred to in paragraphs (a) and (b), a compliance certificate (together with supporting schedules, if any) signed by the chief
financial officer of the Borrower in the form attached as Schedule 6 (
Form of Certificate of Compliance
) (or in any other
format which the Agent may approve and with such other information as the Agent may require) evidencing compliance with the financial
undertakings in Clause 11.1 (
Financial Covenants
) and also listing the Market Value of the Ship.
|
|
|
12.7
|
Form of financial statements
|
All accounts (audited and unaudited)
delivered under Clause 12.6 (
Provision of financial statements
) will:
|
|
(a)
|
be prepared in accordance with all applicable laws and IFRS consistently applied;
|
|
|
(b)
|
fairly represent the financial condition of the Borrower and its subsidiaries at the date of those
accounts and of its profit for the period to which those accounts relate; and
|
|
|
(c)
|
fully disclose or provide for all significant liabilities of the Borrower and its subsidiaries
(or the Borrower, as the case may be).
|
The Borrower will send the Agent,
at the same time as they are despatched, copies of all material communications which are despatched to the whole or any class of
the Borrower’s shareholders or to the Borrower's creditors or any class of them.
The Borrower will maintain in force
and promptly obtain or renew, and will promptly send certified copies to the Agent of, all consents required:
|
|
(a)
|
for the Borrower to perform its obligations under any Finance Document;
|
|
|
(b)
|
for the validity or enforceability of any Finance Document; and
|
|
|
(c)
|
for the Borrower to continue to own and operate the Ship,
|
and the Borrower will comply with
the terms of all such consents.
|
|
12.10
|
Maintenance of Security Interests
|
The Borrower will:
|
|
(a)
|
at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates
the obligations and the Security Interests which it purports to create; and
|
|
|
(b)
|
without limiting the generality of paragraph (a), at its own cost, promptly register, file, record
or enrol any Finance Document with any court or authority in all Pertinent Jurisdictions, pay any stamp, registration or similar
tax in all Pertinent Jurisdictions in respect of any Finance Document, give any notice or take any other step which, in the opinion
of the Majority Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable or admissible
in evidence or to ensure or protect the priority of any Security Interest which it creates.
|
|
|
12.11
|
Notification of litigation
|
The Borrower will provide the Agent
with details of any legal or administrative action involving the Borrower, any Security Party, the Approved Manager or the Ship,
the Earnings or the Insurances as soon as such action is instituted or it becomes apparent to the Borrower that it is likely to
be instituted, unless it is clear that the legal or administrative action cannot be considered material in the context of any Finance
Document.
|
|
12.12
|
Principal place of business
|
The Borrower will notify the Agent
if it has a place of business in any jurisdiction which would require a Finance Document to which it is a party to be registered,
filed or recorded with any court or authority in that jurisdiction or if the centre of its main interests changes.
|
|
12.13
|
Confirmation of no default
|
The Borrower will, within 5 Business
Days after service by the Agent of a written request, serve on the Agent a notice which is signed by 2 directors of the Borrower
and which:
|
|
(a)
|
states that no Event of Default or Potential Event of Default has occurred; or
|
|
|
(b)
|
states that no Event of Default or Potential Event of Default has occurred, except for a specified
event or matter, of which all material details are given.
|
The Agent may serve requests under
this Clause 12.13 (
Confirmation of No Default
) from time to time but only if reasonably asked to do so by a Lender or Lenders
having Contributions exceeding 10 per cent. of the Loan or (if the Loan has not been made) Commitments exceeding 10 per cent of
the Total Commitments; and this Clause 12.13 (
Confirmation of No Default
) does not affect the Borrower's obligations under
Clause 12.14 (
Notification of default
).
|
|
12.14
|
Notification of default
|
The Borrower will notify the Agent
as soon as the Borrower becomes aware of:
|
|
(a)
|
the occurrence of an Event of Default or a Potential Event of Default; or
|
|
|
(b)
|
any matter which indicates that an Event of Default or a Potential Event of Default may have occurred;
|
and will keep the Agent fully up-to-date
with all developments.
|
|
12.15
|
Provision of further information
|
|
|
(a)
|
The Borrower will, as soon as practicable after receiving the request, provide the Agent with any
additional financial or other information relating:
|
|
|
(i)
|
to the Borrower, the Ship, the Earnings or the Insurances; or
|
|
|
(ii)
|
to any other matter relevant to, or to any provision of, a Finance Document,
|
which may reasonably be requested
by the Agent, the Security Trustee or any Lender at any time.
|
|
(b)
|
The Borrower shall supply to the Agent, promptly upon becoming aware of them, the details of any
claim, action, suit, proceeding or investigation with respect to Sanctions Laws against it, any of its direct or indirect owners,
subsidiaries or any of their respective directors, officers, employees, agents or representatives.
|
|
|
12.16
|
"Know your customer" checks
|
If:
|
|
(a)
|
the introduction of or any change in (or in the interpretation, administration or application of)
any law or regulation made after the date of this Agreement;
|
|
|
(b)
|
any change in the status of the Borrower or any Security Party after the date of this Agreement;
or
|
|
|
(c)
|
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement
to a party that is not a Lender prior to such assignment or transfer,
|
obliges the Agent or any Lender (or,
in the case of paragraph (c), any prospective new Lender) to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already available to it, the Borrower shall promptly upon the
request of the Agent or the Lender concerned supply, or procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself or on behalf of any Lender) or the Lender concerned (for itself or, in the case of the event
described in paragraph (c), on behalf of any prospective new Lender) in order for the Agent, the Lender concerned or, in the case
of the event described in paragraph (c), any prospective new Lender to carry out and be satisfied it has complied with all necessary
"know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated
in the Finance Documents.
|
|
12.17
|
Conduct of business; compliance with laws
|
The Borrower shall conduct its business
in a proper and efficient manner in compliance with:
|
|
(a)
|
its constitutional documents;
|
|
|
(c)
|
all Anti-Corruption Laws;
|
|
|
(d)
|
all Environmental Laws; and
|
|
|
(e)
|
all other laws and regulations applicable to its business,
|
|
|
12.18
|
and shall notify the Agent immediately upon becoming aware of any breach of any such document,
law or regulation.
|
|
|
12.19
|
Compliance with Sanctions Laws
|
The Borrower shall:
|
|
(a)
|
ensure that neither it nor any subsidiary of it is or will become a Restricted Party.
|
|
|
(b)
|
use reasonable endeavours to procure that no director, officer, employee, agent or representative
of any Borrower or any subsidiary of it is or will become a Restricted Party; and
|
|
|
(c)
|
procure that no proceeds of any Advance shall be made available, directly or indirectly, to or
for the benefit of a Restricted Party nor shall they otherwise be applied in a manner for a purpose prohibited by Sanctions Laws.
|
|
|
13
|
Corporate Undertakings
|
The Borrower also undertakes with
each Creditor Party to comply with the following provisions of this Clause 13 (
Corporate Undertakings
) at all times during
the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit.
|
|
13.2
|
Maintenance of status
|
The Borrower will maintain its separate
corporate existence and remain in good standing under the laws of Belgium.
|
|
13.3
|
Negative undertakings
|
The Borrower will not:
|
|
(a)
|
operate outside the scope of its Articles of Association.; or
|
|
|
(b)
|
provide any form of credit or financial assistance to:
|
|
|
(ii)
|
enter into any transaction with or involving such a person or company on terms which are, in any
respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms' length,
|
and the Borrower agrees to subordinate
any inter-company loans to the Loan on such terms as the Lenders may reasonably require;
The Borrower will
not, and will procure that none of its subsidiaries will, enter into any form of merger, sub-division, amalgamation or other reorganisation
which may, in the reasonable opinion of the Majority Lenders, have a material adverse effect on the financial position the Borrower.
|
|
13.5
|
Payment of dividends
|
The Borrower may pay dividends
provided
that
no Event of Default has occurred and is continuing.
|
|
13.6
|
Notification of Sanctions
|
The Borrower shall:
|
|
(a)
|
supply to the Agent, promptly upon becoming aware of them, the details of any inquiry, claim, action,
suit, proceeding or investigation pursuant to Sanction Laws against (a) the Borrower, (b) any other Relevant Person or (c) any
owners of any Relevant Person (other than any owner of the Borrower), as well as information on what steps are being taken with
regards to answering or opposing the same;
|
|
|
(b)
|
inform the Agent promptly upon becoming aware that any of (a) the Borrower, (b) any other Relevant
Person or (c) any owners of any Relevant Person (other than any owner of the Borrower), has become or is likely to become a Restricted
Party.
|
The Borrower also undertakes with
each Creditor Party to comply with the following provisions of this Clause 14 (
Insurance
) at all times during the Security
Period (after the Delivery Date) except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit (such
consent not to be unreasonably withheld or delayed in the case of paragraph (b) of Clauses 14.11 (
Compliance with terms of insurances
)
and 14.12 (
Alteration to terms of insurances
).
|
|
14.2
|
Maintenance of obligatory insurances
|
The Borrower shall keep the Ship
insured at the expense of the Borrower against:
|
|
(a)
|
fire and usual marine risks (including hull and machinery and excess risks);
|
|
|
(c)
|
protection and indemnity risks; and
|
|
|
(d)
|
any other risks against which the Majority Lenders consider, having regard to practices and other
circumstances prevailing at the relevant time, it would in the opinion of the Majority Lenders be reasonable for the Borrower to
insure and which are specified by the Security Trustee by notice to the Borrower.
|
|
|
14.3
|
Terms of obligatory insurances
|
The Borrower shall effect such insurances:
|
|
(b)
|
in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis
at least the greater of (i) 120 per cent. of the Loan and (ii) the market value of the Ship; and
|
|
|
(c)
|
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level
of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance
market;
|
|
|
(d)
|
in relation to protection and indemnity risks in respect of the Ship's full tonnage;
|
|
|
(e)
|
on approved terms; and
|
|
|
(f)
|
through approved brokers and with approved insurance companies and/or underwriters or, in the case
of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations.
|
|
|
14.4
|
Further protections for the Creditor Parties
|
In addition to the terms set out
in Clause 14.3 (
Terms of obligatory insurances
), the Borrower shall procure that the obligatory insurances shall:
|
|
(a)
|
whenever the Security Trustee requires, name (or be amended to name) the Security Trustee as additional
named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against
the Security Trustee, but without the Security Trustee thereby being liable to pay (but having the right to pay) premiums, calls
or other assessments in respect of such insurance;
|
|
|
(b)
|
name the Security Trustee as loss payee with such directions for payment as the Security Trustee
may specify;
|
|
|
(c)
|
provide that all payments by or on behalf of the insurers under the obligatory insurances to the
Security Trustee shall be made without set-off, counterclaim or deductions or condition whatsoever;
|
|
|
(d)
|
provide that such obligatory insurances shall be primary without right of contribution from other
insurances which may be carried by the Security Trustee or any other Creditor Party; and
|
|
|
(e)
|
provide that the Security Trustee may make proof of loss if the Borrower fails to do so.
|
|
|
14.5
|
Renewal of obligatory insurances
|
The Borrower shall:
|
|
(a)
|
at least 14 days before the expiry of any obligatory insurance, renew that obligatory insurance;
and
|
|
|
(b)
|
promptly after each such renewal, there is provided to the Agent details of the terms and conditions
on which such obligatory insurances have been renewed.
|
|
|
14.6
|
Copies of policies; letters of undertaking
|
The Borrower shall ensure that all
approved brokers provide the Security Trustee with a letter or letters of undertaking in a form required by the Majority Lenders
and including undertakings by the approved brokers that:
|
|
(a)
|
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice
of assignment complying with the provisions of Clause 14.4 (
Further protections for the Creditor Parties
);
|
|
|
(b)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security
Trustee in accordance with the said loss payable clause;
|
|
|
(c)
|
they will advise the Security Trustee immediately of any material change to the terms of the obligatory
insurances;
|
|
|
(d)
|
they will notify the Security Trustee, not less than 14 days before the expiry of the obligatory
insurances, in the event of their not having received notice of renewal instructions from the Borrower or its agents and, in the
event of their receiving instructions to renew, they will promptly notify the Security Trustee of the terms of the instructions;
and
|
|
|
(e)
|
they will not set off against any sum recoverable in respect of a claim relating to the Ship under
such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of the Ship or otherwise,
they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other
amounts, and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts, and will
arrange for a separate policy to be issued in respect of the Ship forthwith upon being so requested by the Security Trustee.
|
|
|
14.7
|
Copies of certificates of entry
|
The Borrower shall ensure that any
protection and indemnity and/or war risks associations in which the Ship is entered provides the Security Trustee with:
|
|
(a)
|
a certified copy of the certificate of entry for the Ship;
|
|
|
(b)
|
a letter or letters of undertaking in such form as may be required by the Majority Lenders; and
|
|
|
(c)
|
a certified copy of each certificate of financial responsibility for pollution by oil or other
Environmentally Sensitive Material issued by the relevant certifying authority in relation to the Ship.
|
|
|
14.8
|
Deposit of original policies
|
The Borrower shall ensure that all
policies relating to obligatory insurances are deposited with the approved brokers through which the insurances are effected or
renewed.
The Borrower shall punctually pay
all premiums or other sums payable in respect of the obligatory insurances and produce all relevant receipts when so required by
the Security Trustee.
The Borrower shall ensure that any
guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect.
|
|
14.11
|
Compliance with terms of insurances
|
The Borrower shall neither do nor
omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid,
void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part; and, in
particular:
|
|
(a)
|
the Borrower shall take all necessary action and comply with all requirements which may from time
to time be applicable to the obligatory insurances, and (without limiting the obligation contained in paragraph (c) of Clause 14.6
(
Copies of policies; letters of undertaking
)) ensure that the obligatory insurances are not made subject to any exclusions
or qualifications to which the Security Trustee has not given its prior approval;
|
|
|
(b)
|
the Borrower shall not make any changes relating to the classification or classification society
or manager or operator of the Ship approved by the underwriters of the obligatory insurances;
|
|
|
(c)
|
the Borrower shall make (and promptly supply copies to the Agent of) all quarterly or other voyage
declarations which may be required by the protection and indemnity risks association in which the Ship is entered to maintain cover
for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990
or any other applicable legislation); and
|
|
|
(d)
|
the Borrower shall not employ the Ship, nor allow it to be employed, otherwise than in conformity
with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with
any requirements (as to extra premium or otherwise) which the insurers specify.
|
|
|
14.12
|
Alteration to terms of insurances
|
The Borrower shall neither make or
agree to any material alteration to the terms of any obligatory insurance nor waive any right relating to any obligatory insurance
without the consent of the Agent.
|
|
14.13
|
Settlement of claims
|
The Borrower shall not settle, compromise
or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty, and shall do all things necessary and
provide all documents, evidence and information to enable the Security Trustee to collect or recover any moneys which at any time
become payable in respect of the obligatory insurances.
|
|
14.14
|
Provision of information
|
In addition, the Borrower shall promptly
provide the Security Trustee (or any persons which it may designate) with any information which the Security Trustee (or any such
designated person) reasonably requests for the purpose of:
|
|
(a)
|
obtaining or preparing any report from an independent marine insurance broker as to the adequacy
of the obligatory insurances effected or proposed to be effected; and/or
|
|
|
(b)
|
effecting, maintaining or renewing any such insurances as are referred to in Clause 14.15 (
Mortgagee's
interest and additional perils insurances
) or dealing with or considering any matters relating to any such insurances,
|
and the Borrower shall, forthwith
upon demand, indemnify the Security Trustee in respect of all fees and other expenses incurred by or for the account of the Security
Trustee in connection with any such report as is referred to in paragraph (a).
|
|
14.15
|
Mortgagee's interest and additional perils insurances
|
The Security Trustee shall be entitled
from time to time to effect, maintain and renew a mortgagee's interest additional perils insurance and a mortgagee's interest marine
insurance each in an amount of 110 per cent. of the Loan and on such terms, through such insurers and generally in such manner
as the Majority Lenders may from time to time consider appropriate and the Borrower shall upon demand fully indemnify the Creditor
Parties in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining
or renewing any such insurance or dealing with, or considering, any matter arising out of any such insurance.
The Borrower also undertakes with
each Creditor Party to comply with the following provisions of this Clause 15 (
Ship Covenants
) at all times during the Security
Period except as the Agent, with the authorisation of the Majority Lenders, may otherwise permit.
|
|
15.2
|
Ship's name and registration
|
The Borrower shall keep the Ship
registered in its name under the relevant Approved Flag at its relevant port of registry; shall not do or omit to do or allow to
be done anything as a result of which such registration might be cancelled or imperilled; and shall not change the name or port
of registry of the Ship.
|
|
15.3
|
Repair and classification
|
The Borrower shall keep the Ship
in a good and safe condition and state of repair:
|
|
(a)
|
consistent with first-class ship ownership and management practice;
|
|
|
(b)
|
so as to maintain the Ship's class (namely A1(E), "Oil Carrier ESP", AMS, ACCU, SPM,
VEC(-L), CSR, Safeship-CM, RES, ES, TEM, Green Passport, POT, UWILD (sea chest blanking devices shall not be provided), CPS at
American Bureau of Shipping) free of overdue recommendations and conditions; and
|
|
|
(c)
|
so as to comply with all laws and regulations applicable to vessels registered at ports in Greece
or to vessels trading to any jurisdiction to which the Ship may trade from time to time, including but not limited to the ISM Code
or the ISPS Code.
|
The Borrower shall not make any modification
or repairs to, or replacement of, the Ship or equipment installed on it which would or might materially alter the structure, type
or performance characteristics of the Ship or materially reduce its value.
The Borrower shall not remove any
material part of the Ship, or any item of equipment installed on, the Ship unless the part or item so removed is forthwith replaced
by a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any
Security Interest or any right in favour of any person other than the Security Trustee and becomes on installation on the Ship
the property of the Borrower and subject to the security constituted by the Mortgage
Provided that
the Borrower may install
equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship.
The Borrower shall submit the Ship
regularly to all periodical or other surveys which may be required for classification purposes and, if so required by the Majority
Lenders provide the Security Trustee, with copies of all survey reports.
The Borrower shall permit the Security
Trustee (by surveyors or other persons appointed by it for that purpose) to board the Ship at all reasonable times to inspect its
condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections
provided that prior to the occurrence of an Event of Default reasonable notice of such inspection is given and such inspection
does not materially affect the Ship's commercial operation.
|
|
15.8
|
Prevention of and release from arrest
|
The Borrower shall promptly discharge:
|
|
(a)
|
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable
against the Ship, the Earnings or the Insurances;
|
|
|
(b)
|
all taxes, dues and other amounts charged in respect of the Ship, the Earnings or the Insurances;
and
|
|
|
(c)
|
all other outgoings whatsoever in respect of the Ship, the Earnings or the Insurances,
|
and, forthwith upon receiving notice
of the arrest of the Ship, or of its detention in exercise or purported exercise of any lien or claim, the Borrower shall procure
its release by providing bail or otherwise as the circumstances may require.
|
|
15.9
|
Compliance with laws etc.
|
The Borrower shall:
|
|
(a)
|
comply, or procure compliance with the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions
Laws and all other laws or regulations relating to the Ship, its ownership, operation and management or to the business of the
Borrower;
|
|
|
(b)
|
not employ the Ship nor allow its employment in any manner contrary to any law or regulation in
any relevant jurisdiction including but not limited to the ISM Code and the ISPS Code, all Environmental Laws and Sanctions Laws;
and
|
|
|
(c)
|
in the event of hostilities in any part of the world (whether war is declared or not), not cause
or permit the 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
unless the Borrower (at its expense) effected any necessary special, additional or modified insurance cover and, upon the Agent's
request, the Borrower will confirm that they have effected such insurance cover.
|
|
|
15.10
|
Provision of information
|
The Borrower shall promptly provide
the Security Trustee with any information which the Majority Lenders reasonably request regarding:
|
|
(a)
|
the Ship, its employment, position and engagements;
|
|
|
(b)
|
the Earnings and payments and amounts due to the Ship's master and crew;
|
|
|
(c)
|
any expenses incurred, or likely to be incurred, in connection with the operation, maintenance
or repair of the Ship and any payments made in respect of the Ship;
|
|
|
(d)
|
any towages and salvages; and
|
|
|
(e)
|
the Borrower's, the Approved Manager's or the Ship's compliance with the ISM code and the ISPS
code,
|
and, upon the Security Trustee's
request, provide copies of any current charter relating to the Ship and of any current charter guarantee, and copies of the Borrower's
or the Approved Manager's Document of Compliance.
|
|
15.11
|
Notification of certain events
|
The Borrower shall immediately notify
the Security Trustee by fax, confirmed forthwith by letter, of:
|
|
(a)
|
any casualty which is or is likely to be or to become a Major Casualty;
|
|
|
(b)
|
any occurrence as a result of which the Ship has become or is, by the passing of time or otherwise,
likely to become a Total Loss;
|
|
|
(c)
|
any overdue requirement or recommendation made by any insurer or classification society or by any
competent authority which is not immediately complied with;
|
|
|
(d)
|
any arrest or detention of the Ship, any exercise or purported exercise of any lien on the Ship
or its Earnings or any requisition of the Ship for hire;
|
|
|
(e)
|
any intended dry docking of the Ship other than a routine dry docking;
|
|
|
(f)
|
any Environmental Claim made against the Borrower or in connection with the Ship, or any Environmental
Incident;
|
|
|
(g)
|
any claim for breach of the ISM Code or the ISPS Code being made against the Borrower, the Approved
Manager or otherwise in connection with the Ship; or
|
|
|
(h)
|
any other matter, event or incident, actual or threatened, the effect of which will or could lead
to the ISM Code or ISPS Code not being complied with,
|
and the Borrower shall keep the Security
Trustee advised in writing on a regular basis and in such detail as the Security Trustee shall require of the Borrower's, the Approved
Manager's or any other person's response to any of those events or matters.
|
|
15.12
|
Restrictions on chartering, appointment of managers etc.
|
The Borrower shall not:
|
|
(a)
|
let the Ship on demise charter for any period;
|
|
|
(b)
|
enter into any charter in relation to the Ship under which more than 2 months' hire (or the equivalent)
is payable in advance;
|
|
|
(c)
|
charter the Ship otherwise than on bona fide arm's length terms at the time when the Ship is fixed;
|
|
|
(d)
|
appoint a manager of the Ship other than the Approved Manager or agree to any alteration to the
terms of the Approved Manager's appointment;
|
|
|
(e)
|
de-activate or lay up the Ship; or
|
|
|
(f)
|
put the Ship into the possession of any person for the purpose of work being done upon it in an
amount exceeding or likely to exceed the Major Casualty amount unless either:
|
|
|
(i)
|
that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking
not to exercise any lien on the Ship or its Earnings for the cost of such work or for any other reason; or
|
|
|
(ii)
|
the Borrower has established to the reasonable satisfaction of the Security Trustee that the Borrower
has sufficient reserves to pay for the cost of such work.
|
|
|
15.13
|
Time and consecutive voyage charters in excess of 36 months
|
The Borrower agrees that if it should
enter into any Charter the Borrower shall execute and deliver to the Agent promptly upon such Charter being entered into a Charter
Assignment in respect of that Charter in favour of the Security Trustee unless such Charter contains a substitution clause or a
clause with similar effect.
The Borrower shall keep the Mortgage
registered against the Ship as a valid first priority mortgage, carry on board the Ship a certified copy of the Mortgage and place
and maintain in a conspicuous place in the navigation room and the Master's cabin of the Ship a framed printed notice stating that
the Ship is mortgaged by the Borrower to the Security Trustee.
|
|
15.15
|
Sharing of Earnings
|
The Borrower shall not enter into
any agreement or arrangement for the sharing of any Earnings without the prior approval of the Agent such approval not to be unreasonably
withheld. For the avoidance of doubt the Agent's approval shall not be required in relation to:
|
|
(a)
|
any "profit split" of hire between the Borrower and a charterer of the Ship; or
|
|
|
(b)
|
the entry into an established pool or a pool established by the Borrower in both cases on usual
commercial terms and at a market rate allocation.
|
|
|
16.1
|
Minimum required security cover
|
Clause 16.2 (
Provision of additional
security; prepayment
) applies if (after the Delivery Date) the Agent notifies the Borrower that, according to the determination
mechanism under Clause 16.3 (
Valuation of Ship
):
|
|
(a)
|
the market value (determined as provided in Clause 16.3 (
Valuation of Ship
) of the Ship;
plus
|
|
|
(b)
|
the net realisable value of any additional security previously provided under this Clause 16 (
Security
Cover
),
|
is below 125 per cent. of the Loan.
|
|
16.2
|
Provision of additional security; prepayment
|
If the Agent serves a notice on the
Borrower under Clause 16.1 (
Minimum required security cover
), the Borrower shall, within 1 month after the date on which
the Agent's notice is served, either:
|
|
(a)
|
provide, or ensure that a third party provides, additional security which is acceptable to the
Agent and, in the opinion of the Majority Lenders, has a net realisable value at least equal to the shortfall and is documented
in such terms as the Agent may, with the authorisation of the Majority Lenders, approve or require; or
|
|
|
(b)
|
prepay such part (at least) of the Loan as will eliminate the shortfall.
|
The market value of the Ship at any
date is that shown by the average of 2 valuations addressed to the Agent for the benefit of the Lenders and prepared:
|
|
(a)
|
as at a date not more than 14 days previously;
|
|
|
(b)
|
by 2 independent first class sale and purchase shipbrokers which the Agent has approved or appointed
for the purpose;
|
|
|
(c)
|
with or without physical inspection of the Ship (as the Agent may require);
|
|
|
(d)
|
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as
between a willing seller and a willing buyer, free of any existing charter or other contract of employment; and
|
|
|
(e)
|
after deducting the estimated amount of the usual and reasonable expenses which would be incurred
in connection with the sale.
|
|
|
16.4
|
Value of additional vessel security
|
The net realisable value of any additional
security which is provided under Clause 16.2 (
Provision of additional security; prepayment
) and which consists of a Security
Interest over a vessel shall be that shown by a valuation complying with the requirements of Clause 16.3 (
Valuation of Ship
).
Any valuation under Clause 16.2 (
Provision
of additional security; prepayment
), 16.3 (
Valuation of Ship
) or 16.4 (
Value of additional vessel security
) shall
be binding and conclusive as regards the Borrower, as shall be any valuation which the Majority Lenders make of any additional
security which does not consist of or include a Security Interest.
|
|
16.6
|
Provision of information
|
The Borrower shall promptly provide
the Agent and any shipbroker or expert acting under Clause 16.3 (
Valuation of Ship
) or 16.4 (
Value of additional vessel
security
) with any information which the Agent or the shipbroker or expert may reasonably request for the purposes of the valuation;
|
|
16.7
|
Payment of valuation expenses
|
Without prejudice to the generality
of the Borrower's obligations under Clauses 21.2 (
Costs of negotiation, preparation etc.
), 21.3 (
Costs of variations,
amendments, enforcement etc.
) and 22.3 (
Miscellaneous indemnities
), the Borrower shall, on demand, pay the Agent the
amount of the fees and expenses of any shipbroker or expert instructed by the Agent under this Clause and all legal and other expenses
incurred by any Creditor Party in connection with any matter arising out of this Clause.
|
|
16.8
|
Application of prepayment
|
Clause 8 (
Repayment and Prepayment
)
shall apply in relation to any prepayment pursuant to paragraph (b) of Clause 16.2 (
Provision of additional security; prepayment
).
|
|
17
|
Payments and Calculations
|
|
|
17.1
|
Currency and method of payments
|
All payments to be made by the Lenders
or by the Borrower under a Finance Document shall be made to the Agent or to the Security Trustee, in the case of an amount payable
to it:
|
|
(a)
|
by not later than 11.00 a.m. (New York City time) on the due date;
|
|
|
(b)
|
in same day Dollar funds settled through the New York Clearing House Interbank Payments System
(or in such other Dollar funds and/or settled in such other manner as the Agent shall specify as being customary at the time for
the settlement of international transactions of the type contemplated by this Agreement);
|
|
|
(c)
|
in the case of an amount payable by a Lender to the Agent or by the Borrower to the Agent or any
Lender, to such account as the Agent may advise from time to time; and
|
|
|
(d)
|
in the case of an amount payable to the Security Trustee, to such account as it may from time to
time notify to the Borrower and the other Creditor Parties.
|
|
|
17.2
|
Payment on non-Business Day
|
If any payment by the Borrower under
a Finance Document would otherwise fall due on a day which is not a Business Day:
|
|
(a)
|
the due date shall be extended to the next succeeding Business Day; or
|
|
|
(b)
|
if the next succeeding Business Day falls in the next calendar month, the due date shall be brought
forward to the immediately preceding Business Day;
|
and interest shall be payable during
any extension under paragraph (a) at the rate payable on the original due date.
|
|
17.3
|
Basis for calculation of periodic payments
|
All interest, commitment fee and
commission and any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to
day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.
|
|
17.4
|
Distribution of payments to Creditor Parties
|
Subject to Clauses 17.5 (
Permitted
deductions by Agent
), 17.6 (
Agent only obliged to pay when monies received
) and 17.7 (
Refund to Agent of monies not
received
):
|
|
(a)
|
any amount received by the Agent under a Finance Document for distribution or remittance to a Lender
or the Security Trustee shall be made available by the Agent to that Lender or, as the case may be, the Security Trustee by payment,
with funds having the same value as the funds received, to such account as the Lender or the Security Trustee may have notified
to the Agent not less than 5 Business Days previously; and
|
|
|
(b)
|
amounts to be applied in satisfying amounts of a particular category which are due to the Lenders
generally shall be distributed by the Agent to each Lender pro rata to the amount in that category which is due to it.
|
|
|
17.5
|
Permitted deductions by Agent
|
Notwithstanding any other provision
of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender, deduct and withhold
from that amount any sum which is then due and payable to the Agent from that Lender under any Finance Document or any sum which
the Agent is then entitled under any Finance Document to require that Lender to pay on demand.
|
|
17.6
|
Agent only obliged to pay when monies received
|
Notwithstanding any other provision
of this Agreement or any other Finance Document, the Agent shall not be obliged to make available to the Borrower or any Lender
any sum which the Agent is expecting to receive for remittance or distribution to the Borrower or that Lender until the Agent has
satisfied itself that it has received that sum.
|
|
17.7
|
Refund to Agent of monies not received
|
If and to the extent that the Agent
makes available a sum to the Borrower or a Lender, without first having received that sum, the Borrower or (as the case may be)
the Lender concerned shall, on demand:
|
|
(a)
|
refund the sum in full to the Agent; and
|
|
|
(b)
|
pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against
any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving
it.
|
|
|
17.8
|
Agent may assume receipt
|
Clause 17.7 (
Refund to Agent of
monies not received
) shall not affect any claim which the Agent has under the law of restitution, and applies irrespective
of whether the Agent had any form of notice that it had not received the sum which it made available.
|
|
17.9
|
Creditor Party accounts
|
Each Creditor Party shall maintain
accounts showing the amounts owing to it by the Borrower and each Security Party under the Finance Documents and all payments in
respect of those amounts made by the Borrower and any Security Party.
|
|
17.10
|
Agent's memorandum account
|
The Agent shall maintain a memorandum
account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security Trustee and each Lender
from the Borrower and each Security Party under the Finance Documents and all payments in respect of those amounts made by the
Borrower and any Security Party.
|
|
17.11
|
Accounts prima facie evidence
|
If any accounts maintained under
Clauses 17.9 (
Creditor Party accounts
) and 17.10 (
Agent's memorandum account
) show an amount to be owing by the Borrower
or a Security Party to a Creditor Party, those accounts shall be prima facie evidence that that amount is owing to that Creditor
Party.
|
|
18
|
Application of Receipts
|
|
|
18.1
|
Normal order of application
|
Except as any Finance Document may
otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document shall
be applied:
|
|
(a)
|
FIRST: in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent and the
Security Trustee under the Finance Documents;
|
|
|
(b)
|
SECONDLY: in or towards payment pro rata of any accrued interest or commission due but unpaid under
this Agreement;
|
|
|
(c)
|
THIRDLY: in or towards payment pro rata of any principal due but unpaid under this Agreement;
|
|
|
(d)
|
FOURTHLY: in or towards payment pro rata of any other amounts due but unpaid under any Finance
Document;
|
|
|
(e)
|
FIFTHLY: in retention of an amount equal to any amount not then due and payable under any Finance
Document but which the Agent, by notice to the Borrower, the Security Parties and the other Creditor Parties, states in its opinion
will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of
them in accordance with the provisions of paragraphs (a), (b), (c) and (d) of Clause 18.1 (
Normal order of application
);
and
|
|
|
(f)
|
SIXTHLY: any surplus shall be paid to the Borrower or to any other person appearing to be entitled
to it.
|
|
|
18.2
|
Variation of order of application
|
The Agent may, with the authorisation
of the Majority Lenders, by notice to the Borrower, the Security Parties and the other Creditor Parties provide for a different
manner of application from that set out in Clause 18.1 (
Normal order of application
) either as regards a specified sum or
sums or as regards sums in a specified category or categories.
|
|
18.3
|
Notice of variation of order of application
|
The Agent may give notices under
Clause 18.2 (
Variation of order of application
) from time to time; and such a notice may be stated to apply not only to
sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the
third Business Day before the date on which the notice is served.
|
|
18.4
|
Appropriation rights overridden
|
This Clause 18 (
Application of
Receipts
) and any notice which the Agent gives under Clause 18.2 (
Variation of order of application
) shall override
any right of appropriation possessed, and any appropriation made, by the Borrower or any Security Party.
|
|
19
|
Application of Earnings
|
The Borrower undertakes with each
Creditor Party to ensure that, throughout the Security Period (and subject only to the provisions of the General Assignment), all
the Earnings are paid to the Earnings Account.
|
|
19.2
|
Interest accrued on Earnings Account
|
Any credit balance on the Earnings
Account shall bear interest at the rate from time to time offered by the Agent to its customers for Dollar deposits of similar
amounts and for periods similar to those for which such balances appear to the Agent likely to remain on the Earnings Account.
Any monies standing to the credit
of the Earnings Account shall, provided that no Event of Default or Potential Event of Default shall have occurred, be at the free
disposal of the Borrower.
|
|
19.4
|
Location of accounts
|
The
Borrower shall promptly:
|
|
(a)
|
comply with any requirement of the Agent as to the location or re-location of the Earnings Account;
and
|
|
|
(b)
|
execute any documents which the Agent specifies to create or maintain in favour of the Security
Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Account.
|
|
|
19.5
|
Debits for expenses etc.
|
Following the occurrence of an Event
of Default which is continuing the Agent shall be entitled (but not obliged) from time to time to debit the Earnings Account without
prior notice in order to discharge any amount due and payable to it under Clauses 21 (
Fees and Expenses
) or 22 (
Indemnities
)
to a Creditor Party or payment of which any Creditor Party has become entitled to demand under Clause 21 (
Fees and Expenses
)
or 22 (
Indemnities
).
An Event of Default occurs if:
|
|
(a)
|
the Borrower or any Security Party fails to pay within 3 Business Days of the date when due any
sum payable under a Finance Document or under any document relating to a Finance Document; or
|
|
|
(b)
|
any breach occurs of Clauses 9.2 (
Waiver of conditions precedent
), 10.18 (
Sanctions
),
12.2 (
Title; negative pledge
), 12.3 (
No disposal of assets
), 12.17 (
Conduct of business; compliance with laws
)
in so far as it relates to Sanctions Laws, 12.19 (
Compliance with Sanctions Laws
), 13.2 (
Maintenance of status
),
13.3 (
Negative Undertakings
), 13.5 (
Payment of dividends
), 13.6 (
Notification of Sanctions
), paragraph (b)
of 15.9 (
Compliance with laws etc.
) (insofar as it relates to Sanctions Laws) or 16.2 (
Provision of additional security;
prepayment
); or
|
|
|
(c)
|
any breach by the Borrower or any Security Party occurs of any provision of a Finance Document
(other than a breach covered by paragraphs (a) or (b)) which, in the opinion of the Majority Lenders, is capable of remedy, and
such default continues unremedied 30 days after written notice from the Agent requesting action to remedy the same; or
|
|
|
(d)
|
any representation, warranty or statement made or repeated by, or by an officer of, the Borrower
or a Security Party in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document
is untrue or misleading when it is made or repeated; or
|
|
|
(e)
|
any of the following occurs in relation to any Financial Indebtedness of a Relevant Person in respect
of a sum, or sums aggregating, $10,000,000 or more in the case of the Borrower or the equivalent in another currency:
|
|
|
(i)
|
any Financial Indebtedness of a Relevant Person is not paid when due; or
|
|
|
(ii)
|
any Financial Indebtedness of a Relevant Person becomes due and payable or capable of being declared
due and payable prior to its stated maturity date as a consequence of any event of default; or
|
|
|
(iii)
|
a lease, hire purchase agreement or charter creating any Financial Indebtedness of a Relevant Person
is terminated by the lessor or owner or becomes capable of being terminated as a consequence of any termination event; or
|
|
|
(iv)
|
any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange
or other facility, or any swap or other derivative contract or transaction, relating to any Financial Indebtedness of a Relevant
Person ceases to be available or becomes capable of being terminated as a result of any event of default, or cash cover is required,
or becomes capable of being required, in respect of such a facility as a result of any event of default; or
|
|
|
(v)
|
any Security Interest securing any Financial Indebtedness of a Relevant Person becomes enforceable;
or
|
|
|
(f)
|
any of the following occurs in relation to a Relevant Person:
|
|
|
(i)
|
a Relevant Person becomes, in the opinion of the Majority Lenders, unable to pay its debts as they
fall due; or
|
|
|
(ii)
|
any assets of a Relevant Person are subject to any form of execution, attachment, arrest, sequestration
or distress in respect of a sum of, or sums aggregating, $10,000,000 or more in the case of the Borrower or the equivalent in another
currency; or
|
|
|
(iii)
|
any administrative or other receiver is appointed over any asset of a Relevant Person; or
|
|
|
(iv)
|
an administrator is appointed (whether by the court or otherwise) in respect of a Relevant Person;
or
|
|
|
(v)
|
any formal declaration of bankruptcy or any formal statement to the effect that a Relevant Person
is insolvent or likely to become insolvent is made by a Relevant Person or by the directors of a Relevant Person or, in any proceedings,
by a lawyer acting for a Relevant Person; or
|
|
|
(vi)
|
a provisional liquidator is appointed in respect of a Relevant Person, a winding up order is made
in relation to a Relevant Person or a winding up resolution is passed by a Relevant Person; or
|
|
|
(vii)
|
a resolution is passed, an administration notice is given or filed, an application or petition
to a court is made or presented or any other step is taken by (aa) a Relevant Person, (bb) the members or directors of a Relevant
Person, (cc) a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person,
or (dd) a government minister or public or regulatory authority of a Pertinent Jurisdiction for or with a view to the winding up
of that or another Relevant Person or the appointment of a provisional liquidator or administrator in respect of that or another
Relevant Person, or that or another Relevant Person ceasing or suspending business operations or payments to creditors, save that
this paragraph does not apply to a fully solvent winding up of a Relevant Person other than the Borrower which is, or is to be,
effected for the purposes of an amalgamation or reconstruction previously approved by the Majority Lenders and effected not later
than 3 months after the commencement of the winding up; or
|
|
|
(viii)
|
an administration notice is given or filed, an application or petition to a court is made or presented
or any other step is taken by a creditor of a Relevant Person (other than a holder of Security Interests which together relate
to all or substantially all of the assets of a Relevant Person) for the winding up of a Relevant Person or the appointment of a
provisional liquidator or administrator in respect of a Relevant Person in any Pertinent Jurisdiction, unless the proposed winding
up, appointment of a provisional liquidator or administration is being contested in good faith, on substantial grounds and not
with a view to some other insolvency law procedure being implemented instead and either (aa) the application or petition is dismissed
or withdrawn within 30 days of being made or presented, or (bb) within 30 days of the administration notice being given or filed,
or the other relevant steps being taken, other action is taken which will ensure that there will be no administration and (in both
cases (aa) or (bb)) the Relevant Person will continue to carry on business in the ordinary way and without being the subject of
any actual, interim or pending insolvency law procedure; or
|
|
|
(ix)
|
a Relevant Person or its directors take any steps (whether by making or presenting an application
or petition to a court, or submitting or presenting a document setting out a proposal or proposed terms, or otherwise) with a view
to obtaining, in relation to that or another Relevant Person, any form of moratorium, suspension or deferral of payments, reorganisation
of debt (or certain debt) or arrangement with all or a substantial proportion (by number or value) of creditors or of any class
of them or any such moratorium, suspension or deferral of payments, reorganisation or arrangement is effected by court order, by
the filing of documents with a court, by means of a contract or in any other way at all; or
|
|
|
(x)
|
any meeting of the members or directors, or of any committee of the board or senior management,
of a Relevant Person is held or summoned for the purpose of considering a resolution or proposal to authorise or take any action
of a type described in paragraphs (iv) to (ix) or a step preparatory to such action, or (with or without such a meeting) the members,
directors or such a committee resolve or agree that such an action or step should be taken or should be taken if certain conditions
materialise or fail to materialise; or
|
|
|
(xi)
|
in a Pertinent Jurisdiction other than England, any event occurs, any proceedings are opened or
commenced or any step is taken which, in the opinion of the Majority Lenders is similar to any of the foregoing; or
|
|
|
(g)
|
the Borrower ceases or suspends carrying on its business or a part of its business which, in the
opinion of the Majority Lenders, is material in the context of this Agreement; or
|
|
|
(h)
|
it becomes unlawful in any Pertinent Jurisdiction or impossible:
|
|
|
(i)
|
for the Borrower or any Security Party to discharge any liability under a Finance Document or to
comply with any other obligation which the Majority Lenders consider material under a Finance Document; or
|
|
|
(ii)
|
for the Agent, the Security Trustee or the Lenders to exercise or enforce any right under, or to
enforce any Security Interest created by, a Finance Document; or
|
|
|
(i)
|
any consent necessary to enable the Borrower to own, operate or charter the Ship or to enable the
Borrower or any Security Party to comply with any provision which the Majority Lenders consider material of a Finance Document
is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent is
not fulfilled; or
|
|
|
(j)
|
any provision which the Majority Lenders reasonably consider material of a Finance Document proves
to have been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes
invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest
or any other third party claim or interest; or
|
|
|
(k)
|
the security constituted by a Finance Document is in any way imperilled or in jeopardy; or
|
|
|
(l)
|
any event or circumstance occurs which the Majority Lenders determine has, or could reasonably
be expected to have a material adverse effect:
|
|
|
(i)
|
on the ability of the Borrower to perform its obligations under the Finance Documents; or
|
|
|
(ii)
|
on the property, assets, nature of assets, operations, liabilities or condition (financial or otherwise)
of the Borrower.
|
|
|
20.2
|
Actions following an Event of Default
|
On, or at any time after, the occurrence
of an Event of Default which is continuing:
|
|
(a)
|
the Agent may, and if so instructed by the Majority Lenders, the Agent shall:
|
|
|
(i)
|
serve on the Borrower a notice stating that the Commitments and all other obligations of each Lender
to the Borrower under this Agreement are cancelled; and/or
|
|
|
(ii)
|
serve on the Borrower a notice stating that the Loan, all accrued interest and all other amounts
accrued or owing under this Agreement are immediately due and payable or are due and payable on demand; and/or
|
|
|
(iii)
|
take any other action which, as a result of the Event of Default or any notice served under paragraph
(i) or (ii), the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law; and/or
|
|
|
(b)
|
the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of the
Majority Lenders, the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under
paragraph (a) (i) or (ii), the Security Trustee, the Agent and/or the Lenders are entitled to take under any Finance Document or
any applicable law.
|
|
|
20.3
|
Termination of Commitments
|
On the service of a notice under
paragraph (a)(i) of Clause 20.2 (
Actions following an Event of Default
), the Commitments and all other obligations of each
Lender to the Borrower under this Agreement shall be cancelled.
|
|
20.4
|
Acceleration of Loan
|
On the service of a notice under
paragraph (a)(ii) of Clause 20.2 (
Actions following an Event of Default
) the Loan, all accrued interest and all other amounts
accrued or owing from the Borrower or any Security Party under this Agreement and every other Finance Document shall become immediately
due and payable or, as the case may be, payable on demand.
|
|
20.5
|
Multiple notices; action without notice
|
The Agent may serve notices under
paragraphs (a)(i) or (ii) of Clause 20.2 (
Actions following an Event of Default
) simultaneously or on different dates and
it and/or the Security Trustee may take any action referred to in Clause 20.3 (
Actions following an Event of Default
) if
no such notice is served or simultaneously with or at any time after the service of both or either of such notices.
|
|
20.6
|
Notification of Creditor Parties and Security Parties
|
The Agent shall send to each Lender,
the Security Trustee and each Security Party a copy or the text of any notice which the Agent serves on the Borrower under Clause
20.2 (
Actions following an Event of Default
); but the notice shall become effective when it is served on the Borrower, and
no failure or delay by the Agent to send a copy or the text of the notice to any other person shall invalidate the notice or provide
the Borrower or any Security Party with any form of claim or defence.
|
|
20.7
|
Lender's rights unimpaired
|
Nothing in this Clause shall be taken
to impair or restrict the exercise of any right given to individual Lenders under a Finance Document or the general law; and, in
particular, this Clause is without prejudice to Clause 3.1 (
Interests of Lenders several
).
|
|
20.8
|
Exclusion of Creditor Party liability
|
No Creditor Party, and no receiver
or manager appointed by the Security Trustee, shall have any liability to the Borrower or a Security Party:
|
|
(a)
|
for any loss caused by an exercise of rights under, or enforcement of a Security Interest created
by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or
|
|
|
(b)
|
as mortgagee in possession or otherwise, for any income or principal amount which might have been
produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value
of such an asset,
|
except that this does not exempt
a Creditor Party or a receiver or manager from liability for losses shown to have been directly and mainly caused by the dishonesty
or the wilful misconduct of such Creditor Party's own officers and employees or (as the case may be) such receiver's or manager's
own partners or employees.
In this Clause 20 (
Events of Default
),
a "
Relevant Person
" means the Borrower and any Security Party.
In paragraph (d) of Clause 20.1 (
Events
of Default
), references to an event of default or a termination event include any event, howsoever described, which is similar
to an event of default in a facility agreement or a termination event in a finance lease; and in paragraph (e) of Clause 20.1 (
Events
of Default
) "petition" includes an application.
|
|
21.1
|
Arrangement and commitment fees
|
The Borrower shall pay:
|
|
(a)
|
to the Agent an arrangement fee in the amount and at the times agreed in a Fee Letter; and
|
|
|
(b)
|
to the Agent (for the account of each Lender) quarterly in arrears during the period from (and
including) the date of this Agreement to the earlier of (i) the final Drawdown Date and (ii) the last day of the Availability Period,
for the account of the Lenders, a commitment fee at the rate of 0.50 per cent. per annum on the amount of the Total Commitments
less the amount of the Loan, for distribution among the Lenders pro rata to their Commitments.
|
|
|
21.2
|
Costs of negotiation, preparation etc.
|
The Borrower shall pay to the Agent
on its demand the amount of all expenses incurred by the Agent or the Security Trustee in connection with the negotiation, preparation,
execution or registration of any Finance Document or any related document or with any transaction contemplated by a Finance Document
or a related document.
|
|
21.3
|
Costs of variations, amendments, enforcement etc.
|
The Borrower shall pay to the Agent,
on the Agent's demand, for the account of the Creditor Party concerned the amount of all expenses incurred by a Creditor Party
in connection with:
|
|
(a)
|
any amendment or supplement to a Finance Document, or any proposal for such an amendment to be
made;
|
|
|
(b)
|
any consent or waiver by the Lenders, the Majority Lenders or the Creditor Party concerned under
or in connection with a Finance Document, or any request for such a consent or waiver;
|
|
|
(c)
|
the valuation of any security provided or offered under Clause 16 (
Security Cover
) or any
other matter relating to such security; or
|
|
|
(d)
|
any step taken by the Creditor Party concerned with a view to the protection, exercise or enforcement
of any right or Security Interest created by a Finance Document or for any similar purpose.
|
There shall be recoverable under
paragraph (d) the full amount of all legal expenses, whether or not such as would be allowed under rules of court or any taxation
or other procedure carried out under such rules.
The Borrower shall promptly pay any
tax payable on or by reference to any Finance Document, and shall, on the Agent's demand, fully indemnify each Creditor Party against
any claims, expenses, liabilities and losses resulting from any failure or delay by the Borrower to pay such a tax.
|
|
21.5
|
Certification of amounts
|
A notice which is signed by 2 officers
of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause
21 (
Fees and Expenses
) and which indicates (without necessarily specifying a detailed breakdown) the matters in respect
of which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
|
22.1
|
Indemnities regarding borrowing and repayment of Loan
|
The Borrower shall fully indemnify
the Agent and each Lender on the Agent's demand and the Security Trustee on its demand in respect of all claims, expenses, liabilities
and losses which are made or brought against or incurred by that Creditor Party, or which that Creditor Party reasonably and with
due diligence estimates that it will incur, as a result of or in connection with:
|
|
(a)
|
an Advance not being borrowed on the date specified in the Drawdown Notice for any reason other
than a default by the Lender claiming the indemnity;
|
|
|
(b)
|
the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the
last day of an Interest Period or other relevant period;
|
|
|
(c)
|
any failure (for whatever reason) by the Borrower to make payment of any amount due under a Finance
Document on the due date or, if so payable, on demand (after giving credit for any default interest paid by the Borrower on the
amount concerned under Clause 7 (
Default Interest
);
|
|
|
(d)
|
the occurrence of an Event of Default or a Potential Event of Default and/or the acceleration of
repayment of the Loan under Clause 20 (
Events of Default
),
|
and in respect of any tax (other
than tax on its overall net income) for which a Creditor Party is liable in connection with any amount paid or payable to that
Creditor Party (whether for its own account or otherwise) under any Finance Document.
Without limiting its generality,
Clause 22.1 (
Indemnities regarding borrowing and repayment of Loan
) covers any claim, expense, liability or loss, including
a loss of a prospective profit, incurred by a Lender:
|
|
(a)
|
in liquidating or employing deposits from third parties acquired or arranged to fund or maintain
all or any part of its Contribution and/or any overdue amount (or an aggregate amount which includes its Contribution or any overdue
amount); and
|
|
|
(b)
|
in terminating, or otherwise in connection with, any interest and/or currency swap or any other
transaction entered into (whether with another legal entity or with another office or department of the Lender concerned) to hedge
any exposure arising under this Agreement or a number of transactions of which this Agreement is one.
|
In the circumstances referred to
in paragraph (b) of Clause 22.1 (
Indemnities regarding borrowing and repayment of Loan
) such costs shall include an
amount equal to the Margin which would, but, for receipt or recovery of the relevant part of the Loan, have accrued on the relevant
part of the Loan, from the date of such receipt or recovery to the end of the then current Interest Period relating thereto.
|
|
22.3
|
Miscellaneous indemnities
|
The Borrower shall fully indemnify
each Creditor Party severally on their respective demands in respect of all claims, expenses, liabilities and losses which may
be made or brought against or incurred by a Creditor Party, in any country, as a result of or in connection with:
|
|
(a)
|
any action taken, or omitted or neglected to be taken, under or in connection with any Finance
Document by the Agent, the Security Trustee or any other Creditor Party or by any receiver appointed under a Finance Document;
or
|
|
|
(b)
|
any other Pertinent Matter,
|
other than claims, expenses, liabilities
and losses which are shown to have been directly and mainly caused by the dishonesty, gross negligence or wilful misconduct of
the officers or employees of the Creditor Party concerned.
Without prejudice to its generality,
this Clause 22.3 (
Miscellaneous indemnities
) covers any claims, expenses, liabilities and losses which arise, or are asserted,
under or in connection with any law relating to safety at sea, the ISM Code, the ISPS Code, any Environmental Law or any Sanctions
Laws.
If any sum due from the Borrower
or any Security Party to a Creditor Party under a Finance Document or under any order or judgment relating to a Finance Document
has to be converted from the currency in which the Finance Document provided for the sum to be paid (the "
Contractual Currency
")
into another currency (the "
Payment Currency
") for the purpose of:
|
|
(a)
|
making or lodging any claim or proof against the Borrower or any Security Party, whether in its
liquidation, any arrangement involving it or otherwise; or
|
|
|
(b)
|
obtaining an order or judgment from any court or other tribunal; or
|
|
|
(c)
|
enforcing any such order or judgment,
|
the Borrower shall indemnify the
Creditor Party concerned against the loss arising when the amount of the payment actually received by that Creditor Party is converted
at the available rate of exchange into the Contractual Currency.
In this Clause
22.4 (
Currency indemnity
), the "available rate of exchange" means the rate at which the Creditor Party concerned
is able at the opening of business (London time) on the Business Day after it receives the sum concerned to purchase the Contractual
Currency with the Payment Currency.
This Clause 22.4 (
Currency indemnity
)
creates a separate liability of the Borrower which is distinct from its other liabilities under the Finance Documents and which
shall not be merged in any judgment or order relating to those other liabilities.
|
|
22.5
|
Certification of amounts
|
A notice which is signed by 2 officers
of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause
22 (
Indemnities
) and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which
the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
|
22.6
|
Sums deemed due to a Lender
|
For the purposes of this Clause 22
(
Indemnities
), a sum payable by the Borrower to the Agent or the Security Trustee for distribution to a Lender shall be
treated as a sum due to that Lender.
|
|
22.7
|
Sanctions and regulatory indemnities
|
The Borrower shall pay to the Agent
on demand, and the Borrower shall indemnify each Lender agai
n
st,
all costs, charges, expenses, claims, liabilities, losses, duties and fees (including, but not limited to, legal fees and expenses
on a full indemnity basis) and taxes thereon suffered or incurred by a Lender (other than in each case by reason of a Lender's
gross negligence, dishonesty or wilful misconduct):
|
|
(a)
|
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code,
any Environmental Law or any Sanctions Law; or
|
|
|
(b)
|
as a result of any claim, action, civil penalty or fine against, any settlement, and any other
kind of loss or liability, and as a result of conduct of the Borrower or any of their partners, directors, officers, employees
or agents that violates any Sanctions Laws.
|
|
|
23
|
No Set-off or Tax Deduction
|
All amounts due from the Borrower
under a Finance Document shall be paid:
|
|
(a)
|
without any form of set-off, cross-claim or condition; and
|
|
|
(b)
|
free and clear of any tax deduction except a tax deduction which the Borrower is required by law
to make.
|
|
|
24
|
Tax Gross Up and Indemnities
|
"
Protected
Party
" means a Creditor Party which is or will be subject to any liability, or required to make any payment, for
or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable)
under a Finance Document.
"
Tax
Credit
" means a credit against, relief or remission for, or repayment of any Tax.
"
Tax
Deduction
" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other
than a FATCA Deduction.
"
Tax
Payment
" means either the increase in a payment made by the Borrower to a Creditor Party under Clause 24.2 (
Tax
gross-up
) or a payment under Clause 24.3 (
Tax indemnity
).
Unless a contrary
indication appears, in this Clause 24 (
Tax Gross Up and Indemnities
) reference to "
determines
" or "
determined
"
means a determination made in the absolute discretion of the person making the determination.
|
|
(a)
|
The Borrower shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction
is required by law.
|
|
|
(b)
|
The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there
is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent
on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall
notify the Borrower.
|
|
|
(c)
|
If a Tax Deduction is required by law to be made by the Borrower, the amount of the payment due
from the Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been required.
|
|
|
(d)
|
If the Borrower is required to make a Tax Deduction, the Borrower shall make that Tax Deduction
and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
|
|
(e)
|
Within 30 days of making either a Tax Deduction or any payment required in connection with that
Tax Deduction, the Borrower making that Tax Deduction shall deliver to the Agent for the Creditor Party entitled to the payment
evidence reasonably satisfactory to that Creditor Party that the Tax Deduction has been made or (as applicable) any appropriate
payment paid to the relevant taxing authority.
|
|
|
(a)
|
The Borrower shall (within three Business Days of demand by the Agent) pay to a Protected Party
an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
|
|
(b)
|
Paragraph (a) above shall not apply:
|
|
|
(i)
|
with respect to any Tax assessed on a Creditor Party:
|
|
|
(A)
|
under the law of the jurisdiction in which that Creditor Party is incorporated or, if different,
the jurisdiction (or jurisdictions) in which that Creditor Party is treated as resident for tax purposes; or
|
|
|
(B)
|
under the law of the jurisdiction in which that Creditor Party's Facility Office is located in
respect of amounts received or receivable in that jurisdiction,
|
if that Tax is imposed on or calculated
by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Creditor Party;
or
|
|
(ii)
|
to the extent a loss, liability or cost:
|
|
|
(A)
|
is compensated for by an increased payment under Clause 24.2 (
Tax gross-up
); or
|
|
|
(B)
|
relates to a FATCA Deduction required to be made by a Party.
|
|
|
(c)
|
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly
notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.
|
|
|
(d)
|
A Protected Party shall, on receiving a payment from the Borrower under this Clause 24.3 (
Tax
indemnity
), notify the Agent.
|
If the Borrower makes a Tax Payment
and the relevant Creditor Party determines that:
|
|
(a)
|
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that
Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
|
|
|
(b)
|
that Creditor Party has obtained and utilised that Tax Credit,
|
the Creditor Party shall pay an amount
to the Borrower which that Creditor Party determines will leave it (after that payment) in the same after-Tax position as it would
have been in had the Tax Payment not been required to be made by the Borrower.
The Borrower shall pay and, within
three Business Days of demand, indemnify each Creditor Party against any cost, loss or liability which that Creditor Party incurs
in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
|
|
(a)
|
All amounts expressed to be payable under a Finance Document by any Party to a Creditor Party which
(in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which
is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made
by any Creditor Party to any Party under a Finance Document and such Creditor Party is required to account to the relevant tax
authority for the VAT, that Party must pay to such Creditor Party (in addition to and at the same time as paying any other consideration
for such supply) an amount equal to the amount of the VAT (and such Creditor Party must promptly provide an appropriate VAT invoice
to that Party).
|
|
|
(b)
|
If VAT is or becomes chargeable on any supply made by any Creditor Party (the "
Supplier
")
to any other Creditor Party (the "
Recipient
") under a Finance Document, and any Party other than the Recipient
(the "
Relevant Party
") is required by the terms of any Finance Document to pay an amount equal to the consideration
for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
|
|
(i)
|
(where the Supplier is the person required to account to the relevant tax authority for the VAT)
the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount
of the VAT. The Recipient must (where this sub-paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any
credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to
the VAT chargeable on that supply; and
|
|
|
(ii)
|
(where the Recipient is the person required to account to the relevant tax authority for the VAT)
the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable
on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from
the relevant tax authority in respect of that VAT.
|
|
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Creditor Party for any
cost or expense, that Party shall reimburse or indemnify (as the case may be) such Creditor Party for the full amount of such cost
or expense, including such part of it as represents VAT, save to the extent that such Creditor Party reasonably determines that
it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
|
|
(d)
|
Any reference in this Clause 24.6 (
VAT
) to any Party shall, at any time when that Party
is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context
otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the
supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant
member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant
group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative
member (or representative or head) of that group or unity at the relevant time (as the case may be).
|
|
|
(e)
|
In relation to any supply made by a Creditor Party to any Party under a Finance Document, if reasonably
requested by such Creditor Party, that Party must promptly provide such Creditor Party with details of that Party's VAT registration
and such other information as is reasonably requested in connection with such Creditor Party's VAT reporting requirements in relation
to such supply.
|
|
|
(a)
|
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request
by another Party:
|
|
|
(i)
|
confirm to that other Party whether it is:
|
|
|
(A)
|
a FATCA Exempt Party; or
|
|
|
(B)
|
not a FATCA Exempt Party; and
|
|
|
(ii)
|
supply to that other Party such forms, documentation and other information relating to its status
under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
|
|
(iii)
|
supply to that other Party such forms, documentation and other information relating to its status
as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange
of information regime.
|
|
|
(b)
|
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that
it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party
shall notify that other Party reasonably promptly.
|
|
|
(c)
|
Paragraph (a) above shall not oblige any Creditor Party to do anything and sub-paragraph (iii)
of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute
a breach of:
|
|
|
(i)
|
any law or regulation;
|
|
|
(ii)
|
any fiduciary duty; or
|
|
|
(iii)
|
any duty of confidentiality.
|
|
|
(d)
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation
or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance
of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments
under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation,
forms, documentation or other information.
|
|
|
(a)
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required
in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such
a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
|
|
(b)
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there
is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition,
shall notify each Obligor and the Agent and the Agent shall notify the other Creditor Parties.
|
This Clause 25 (
Illegality, etc
)
applies if a Lender (the "
Notifying Lender
") notifies the Agent that it has become, or will with effect from a
specified date, become:
|
|
(a)
|
unlawful or prohibited as a result of the introduction of a new law, an amendment to an existing
law or a change in the manner in which an existing law is or will be interpreted or applied; or
|
|
|
(b)
|
contrary to, or inconsistent with, any regulation and/or contrary to or declared by any Sanctions
Authority to be contrary to Sanctions Laws,
|
for the Notifying Lender to maintain
or give effect to any of its obligations under this Agreement in the manner contemplated by this Agreement.
|
|
25.2
|
Notification of illegality
|
The Agent shall promptly notify the
Borrower, the Security Parties, the Security Trustee and the other Lenders of the notice under Clause 25.1 (
Illegality
)
which the Agent receives from the Notifying Lender.
|
|
25.3
|
Prepayment; termination of Commitment
|
On the Agent notifying the Borrower
under Clause 25.2 (
Notification of illegality
), the Notifying Lender's Commitment shall terminate; and thereupon or, if
later, on the date specified in the Notifying Lender's notice under Clause 25.1 (
Illegality
) as the date on which the notified
event would become effective the Borrower shall prepay the Notifying Lender's Contribution in accordance with Clause 8.
If circumstances arise which would
result in a notification under Clause 25.1 (
Illegality
) then, without in any way limiting the rights of the Notifying
Lender under Clause 25.3 (
Prepayment; termination of Commitment
), the Notifying Lender shall use reasonable endeavours
to transfer its obligations, liabilities and rights under this Agreement and the Finance Documents to another office or financial
institution not affected by the circumstances but the Notifying Lender shall not be under any obligation to take any such action
if, in its opinion, to do would or might:
|
|
(a)
|
have an adverse effect on its business, operations or financial condition; or
|
|
|
(b)
|
involve it in any activity which is unlawful or prohibited or any activity that is contrary to,
or inconsistent with, any regulation; or
|
|
|
(c)
|
involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
|
This Clause 26 (
Increased Costs
)
applies if a Lender (the "
Notifying Lender
") notifies the Agent that the Notifying Lender considers that as a
result of:
|
|
(a)
|
the introduction or alteration after the date of this Agreement of a law or an alteration after
the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the
application to payments under this Agreement of a tax on the Lender's overall net income); or
|
|
|
(b)
|
complying with any regulation (including any which relates to capital adequacy or liquidity controls
or which affects the manner in which the Notifying Lender allocates capital resources to its obligations under this Agreement)
which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Agreement;
|
|
|
(c)
|
the implementation, application of or compliance with Basel III or CRD IV or any law or regulation
that implements or applies Basel III or CRD IV,
|
the Notifying Lender (or a parent
company of it) has incurred or will incur an "
increased cost
".
|
|
26.2
|
In this Clause 26 (
Increased Costs
):
|
|
|
(a)
|
"
increased cost
" means,:
|
|
|
(i)
|
a reduction in the rate of return from the Loan or on a Creditor Party's (or its Affiliate's) overall
capital;
|
|
|
(ii)
|
an additional or increased cost; or
|
|
|
(iii)
|
a reduction of any amount due and payable under any Finance Document,
|
which is incurred or suffered by
a Creditor Party or any of its Affiliates to the extent that it is attributable to that Creditor Party having entered into its
Commitment or funding or performing its obligations under any Finance Document.
For the purposes of this Clause 26.2
the Notifying Lender may in good faith allocate or spread costs and/or losses among its assets and liabilities (or any class of
its assets and liabilities) on such basis as it considers appropriate.
|
|
(i)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel
III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework
for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical
capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or
restated;
|
|
|
(ii)
|
the rules for global systemically important banks contained in "Global systemically important
banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee
on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
|
|
(iii)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating
to "Basel III".
|
|
|
(i)
|
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential
requirements for credit institutions and investment firms and amending regulation (EU) No. 648/2012;
|
|
|
(ii)
|
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to
the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive
2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC; and
|
|
|
(iii)
|
any other law or regulation which implements Basel III.
|
|
|
26.3
|
Notification to Borrower of claim for increased costs
|
The Agent shall promptly notify the
Borrower and the Security Parties of the notice which the Agent received from the Notifying Lender under Clause 26.1 (
Increased
costs
).
|
|
26.4
|
Payment of increased costs
|
The Borrower shall pay to the Agent,
on the Agent's demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrower
that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.
|
|
26.5
|
Notice of prepayment
|
If the Borrower is not willing to
continue to compensate the Notifying Lender for the increased cost under Clause 26.4 (
Payment of increased costs
), the Borrower
may give the Agent not less than 14 days' notice of its intention to prepay the Notifying Lender's Contribution at the end of an
Interest Period.
|
|
26.6
|
Prepayment; termination of Commitment
|
A notice under Clause 26.5 (
Notice
of prepayment
) shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrower's notice of intended
prepayment; and:
|
|
(a)
|
on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall
be cancelled; and
|
|
|
(b)
|
on the date specified in its notice of intended prepayment, the Borrower shall prepay (without
premium or penalty) the Notifying Lender's Contribution, together with accrued interest thereon at the applicable rate plus the
Margin.
|
Clause 26.1 (
Increased costs
)
does not apply to the extent any Increased Cost is:
|
|
(a)
|
attributable to a Tax Deduction required by law to be made by the Borrower;
|
|
|
(b)
|
attributable to a FATCA Deduction required to be made by a Party;
|
|
|
(c)
|
compensated for by Clause 24.3 (
Tax indemnity
) (or would have been compensated for under
Clause 24.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 24.3
(
Tax indemnity
) applied).
|
Application of prepayment.
Clause 8 (
Repayment and Prepayment
) shall apply in relation to the prepayment.
|
|
27.1
|
Application of credit balances
|
At any time after the occurrence
of an Event of Default which is continuing, each Creditor Party may without prior notice:
|
|
(a)
|
apply any balance (whether or not then due) which at any time stands to the credit of any account
in the name of the Borrower at any office in any country of that Creditor Party in or towards satisfaction of any sum then due
from the Borrower to that Creditor Party under any of the Finance Documents; and
|
|
|
(i)
|
break, or alter the maturity of, all or any part of a deposit of the Borrower;
|
|
|
(ii)
|
convert or translate all or any part of a deposit or other credit balance into Dollars; and
|
|
|
(iii)
|
enter into any other transaction or make any entry with regard to the credit balance which the
Creditor Party concerned considers appropriate.
|
|
|
27.2
|
Existing rights unaffected
|
No Creditor Party shall be obliged
to exercise any of its rights under Clause 27.1 (
Application of credit balances
); and those rights shall be without prejudice
and in addition to any right of set-off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party
is entitled (whether under the general law or any document).
|
|
27.3
|
Sums deemed due to a Lender
|
For the purposes of this Clause 27
(
Set-Off
), a sum payable by the Borrower to the Agent or the Security Trustee for distribution to, or for the account of,
a Lender shall be treated as a sum due to that Lender; and each Lender's proportion of a sum so payable for distribution to, or
for the account of, the Lenders shall be treated as a sum due to such Lender.
|
|
27.4
|
No Security Interest
|
This Clause 27 (
Set-Off
) gives
the Creditor Parties a contractual right of set-off only and does not create any equitable charge or other Security Interest over
any credit balance of the Borrower.
|
|
28
|
Transfers and Changes in Lending Offices
|
|
|
28.1
|
Transfer by Borrower
|
The Borrower may not transfer any
of its rights, liabilities or obligations under any Finance Document.
|
|
28.2
|
Transfer by a Lender
|
Subject to Clause 28.4 (
Effective
Date of Transfer Certificate
), a Lender (the "
Transferor Lender
") may, at its own cost, with the prior written
consent of the Borrower (not to be unreasonably withheld or delayed) or without the consent of the Borrower if an Event of Default
or a Potential Event of Default has occurred and is continuing, cause:
|
|
(a)
|
its rights in respect of all or part of its Contribution; or
|
|
|
(b)
|
its obligations in respect of all or part of its Commitment; or
|
|
|
(c)
|
a combination of (a) and (b),
|
to be (in the case of its rights)
transferred to, or (in the case of its obligations) assumed by, another bank or financial institution or a trust; fund or the entity
which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial
assets (a "
Transferee Lender
") by delivering to the Agent a completed certificate in the form set out in Schedule
4 (
Transfer Certificate
) with any modifications approved or required by the Agent (a "
Transfer Certificate
")
executed by the Transferor Lender and the Transferee Lender,
Provided that
a Lender may
cause such transfer without needing the consent of the Borrower or any Security Party if an Event of Default has occurred and is
continuing or if the Transferee Lender is:
|
|
(d)
|
another branch of the Transferor Lender;
|
|
|
(e)
|
a direct or indirect subsidiary or affiliate of the Transferor Lender;
|
|
|
(f)
|
a company of which the Transferor Lender is a subsidiary; or
|
|
|
(g)
|
a company which is under the same control as the Lender.
|
However any rights and obligations
of the Transferor Lender in its capacity as Agent or Security Trustee will have to be dealt with separately in accordance with
the Agency and Trust Agreement.
|
|
28.3
|
Transfer Certificate, delivery and notification
|
As soon as reasonably practicable
after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate
may be defective):
|
|
(a)
|
sign the Transfer Certificate on behalf of itself, the Borrower, the Security Parties, the Security
Trustee and each of the other Lenders;
|
|
|
(b)
|
on behalf of the Transferee Lender, send to the Borrower letters or faxes notifying them of the
Transfer Certificate and attaching a copy of it;
|
|
|
(c)
|
send to the Transferee Lender copies of the letters or faxes sent under paragraph (b) above,
|
but the Agent shall only be obliged
to execute a Transfer Certificate delivered to it by the Transferor Lender and the Transferee Lender once it is satisfied it has
complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in
relation to the transfer to that Transferee Lender.
|
|
28.4
|
Effective Date of Transfer Certificate
|
A Transfer Certificate becomes effective
on the date, if any, specified in the Transfer Certificate as its effective date
Provided that
it is signed by the Agent
under Clause 28.3 (
Transfer Certificate, delivery and notification
) on or before that date.
|
|
28.5
|
No transfer without Transfer Certificate
|
No assignment or transfer of any
right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, the Borrower, any Security
Party, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.
|
|
28.6
|
Lender re-organisation; waiver of Transfer Certificate
|
However, if a Lender enters into
any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in another person (the "
successor
"),
the Agent may, if it sees fit, by notice to the successor and the Borrower and the Security Trustee waive the need for the execution
and delivery of a Transfer Certificate; and, upon service of the Agent's notice, the successor shall become a Lender with the same
Commitment and Contribution as were held by the predecessor Lender.
|
|
28.7
|
Effect of Transfer Certificate
|
A Transfer Certificate takes effect
in accordance with English law as follows:
|
|
(a)
|
to the extent specified in the Transfer Certificate, all rights and interests (present, future
or contingent) which the Transferor Lender has under or by virtue of the Finance Documents are assigned to the Transferee Lender
absolutely, free of any defects in the Transferor Lender's title and of any rights or equities which the Borrower or any Security
Party had against the Transferor Lender;
|
|
|
(b)
|
the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate;
|
|
|
(c)
|
the Transferee Lender becomes a Lender with the Contribution previously held by the Transferor
Lender and a Commitment of an amount specified in the Transfer Certificate;
|
|
|
(d)
|
the Transferee Lender becomes bound by all the provisions of the Finance Documents which are applicable
to the Lenders generally, including those about pro-rata sharing and the exclusion of liability on the part of, and the indemnification
of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those provisions (other than
those relating to exclusion of liability), the Transferor Lender ceases to be bound by them;
|
|
|
(e)
|
any part of the Loan which the Transferee Lender advances after the Transfer Certificate's effective
date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming
that any defects in the transferor's title and any rights or equities of the Borrower or any Security Party against the Transferor
Lender had not existed;
|
|
|
(f)
|
the Transferee Lender becomes entitled to all the rights under the Finance Documents which are
applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause
5.7 (
Market disruption
) and Clause 21 (
Fees and Expenses
), and to the extent that the Transferee Lender becomes entitled
to such rights, the Transferor Lender ceases to be entitled to them; and
|
|
|
(g)
|
in respect of any breach of a warranty, undertaking, condition or other provision of a Finance
Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to
recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether
the original Lender would have incurred a loss of that kind or amount.
|
The rights and equities of the Borrower
or any Security Party referred to above include, but are not limited to, any right of set off and any other kind of cross-claim.
|
|
28.8
|
Maintenance of register of Lenders
|
During the Security Period the Agent
shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the
lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause
28.4 (
Effective Date of Transfer Certificate
) of the Transfer Certificate; and the Agent shall make the register available
for inspection by any Lender, the Security Trustee and the Borrower during normal banking hours, subject to receiving at least
3 Business Days' prior notice.
|
|
28.9
|
Reliance on register of Lenders
|
The entries on that register shall,
in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments
and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to
the Finance Documents for all purposes relating to the Finance Documents.
|
|
28.10
|
Authorisation of Agent to sign Transfer Certificates
|
The Borrower, the Security Trustee
and each Lender irrevocably authorise the Agent to sign Transfer Certificates on its behalf.
In respect of any Transfer Certificate,
the Agent shall be entitled to recover a registration fee of $3,000 from the Transferee Lender.
|
|
28.12
|
Sub-participation; subrogation assignment
|
A Lender may sub-participate all
or any part of its rights and/or obligations under or in connection with the Finance Documents without the consent of, or any notice
to, the Borrower, any Security Party, the Agent or the Security Trustee; and the Lenders may assign, in any manner and terms agreed
by the Majority Lenders, the Agent and the Security Trustee, all or any part of those rights to an insurer or surety who has become
subrogated to them.
|
|
28.13
|
Disclosure of information
|
A Lender may with the consent of
the Borrower (such consent not to be unreasonably withheld or delayed) disclose to a potential Transferee Lender or sub-participant
any information which the Lender has received in relation to the Borrower, any Security Party or their affairs under or in connection
with any Finance Document, unless the information is clearly of a confidential nature.
|
|
28.14
|
Change of lending office
|
A Lender may change its lending office
by giving notice to the Agent and the change shall become effective on the later of:
|
|
(a)
|
the date on which the Agent receives the notice; and
|
|
|
(b)
|
the date, if any, specified in the notice as the date on which the change will come into effect.
|
On receiving such a notice, the Agent
shall notify the Borrower and the Security Trustee; and, until the Agent receives such a notice, it shall be entitled to assume
that a Lender is acting through the lending office of which the Agent last had notice.
|
|
28.16
|
Replacement of Reference Bank
|
If any Reference Bank ceases to be
a Lender or is unable on a continuing basis to supply quotations for the purposes of Clause 5 (
Interest
) then, unless the
Borrower, the Agent and the Majority Lenders otherwise agree, the Agent, acting on the instructions of the Majority Lenders, and
after consulting the Borrower, shall appoint another bank (whether or not a Lender) to be a replacement Reference Bank; and, when
that appointment comes into effect, the first-mentioned Reference Bank's appointment shall cease to be effective.
|
|
28.17
|
Tax indemnity, tax gross-up and increased costs on assignment, transfer and change of lending office
|
If:
|
|
(a)
|
the Lender assigns or transfers any rights or obligations under the Finance Documents pursuant
to Clause 28.2 (
Transfer by a Lender
) or changes its lending office; and
|
|
|
(b)
|
as a result of circumstances existing at the date of assignment, transfer or change occurs the
Borrower would be obliged to make a payment to the Transferee Lender or Lender acting through its new lending office under Clause
22.1 (
Indemnities regarding borrowing and repayment of Loan
) in respect of any tax, Clause 23 (
No Set-off or Tax Deduction
)
or Clause 25 (
Illegality, etc
),
|
then the Transferee Lender or the
Lender acting through its new lending office is only entitled to receive payment under those Clauses to the same extent as the
Transferor Lender or the Lender acting through its previous lending office would have been if the assignment, transfer or change
had not occurred.
|
|
29
|
Variations and Waivers
|
|
|
29.1
|
Variations, waivers etc. by Majority Lenders
|
Subject to Clause 29.2 (
Variations,
waivers etc. requiring agreement of all Lenders
), a document shall be effective to vary, waive, suspend or limit any provision
of a Finance Document, or any Creditor Party's rights or remedies under such a provision or the general law, only if the document
is signed, or specifically agreed to by fax, by the Borrower, by the Agent on behalf of the Majority Lenders, by the Agent and
the Security Trustee in their own rights, and, if the document relates to a Finance Document to which a Security Party is party,
by that Security Party.
|
|
29.2
|
Variations, waivers etc. requiring agreement of all Lenders
|
However, as regards the following,
Clause 29.1 (
Variations, waivers etc. by Majority Lenders
) applies as if the words "by the Agent on behalf of the Majority
Lenders" were replaced by the words "by or on behalf of every Lender":
|
|
(a)
|
a change in the Margin or in the definition of LIBOR;
|
|
|
(b)
|
a change to the date for, the amount of, any payment of principal, interest, fees, or other sum
payable under this Agreement;
|
|
|
(c)
|
a change to any Lender's Commitment;
|
|
|
(d)
|
an extension of Availability Period;
|
|
|
(e)
|
a change to the definition of "Majority Lenders" or "Finance Documents";
|
|
|
(f)
|
a change to the preamble or to Clauses 2 (
Facility
), 3 (
Position of the Lenders
),
4 (
Drawdown
), 5.1 (
Payment of normal interest
), 18 (
Application of Receipts
), 19 (
Application of Earnings
)
or 33 (
Law and Jurisdiction
);
|
|
|
(g)
|
a change to this Clause 29 (
Variations and Waivers
);
|
|
|
(h)
|
any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination
arrangement set out in a Finance Document; and
|
|
|
(i)
|
any other change or matter as regards which this Agreement or another Finance Document expressly
provides that each Lender's consent is required.
|
|
|
29.3
|
Exclusion of other or implied variations
|
Except for a document which satisfies
the requirements of Clauses 29.1 (
Variations, waivers etc. by Majority Lenders
) and 29.2 (
Variations, waivers etc. requiring
agreement of all Lenders
), no document, and no act, course of conduct, failure or neglect to act, delay or acquiescence on
the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties
or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being
precluded (permanently or temporarily) from enforcing, relying on or exercising:
|
|
(a)
|
a provision of this Agreement or another Finance Document; or
|
|
|
(b)
|
an Event of Default; or
|
|
|
(c)
|
a breach by the Borrower or a Security Party of an obligation under a Finance Document or the general
law; or
|
|
|
(d)
|
any right or remedy conferred by any Finance Document or by the general law,
|
and there shall not be implied into
any Finance Document any term or condition requiring any such provision to be enforced, or such right or remedy to be exercised,
within a certain or reasonable time.
Notwithstanding any other term of
any Finance Document or any other agreement, arrangement or understanding between the parties to a Finance Document, each Party
acknowledges and accepts that any liability of any party to a Finance Document under or in connection with the Finance Documents
may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
|
|
(a)
|
any Bail-In Action in relation to any such liability, including (without limitation):
|
|
|
(i)
|
a reduction, in full or in part, in the principal amount, or outstanding amount due (including
any accrued but unpaid interest) in respect of any such liability;
|
|
|
(ii)
|
a conversion of all, or part of, any such liability into shares or other instruments of ownership
that may be issued to, or conferred on, it; and
|
|
|
(iii)
|
a cancellation of any such liability; and
|
|
|
(b)
|
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In
Action in relation to any such liability.
|
|
|
31.1
|
Communications in writing
|
Any communication to be made under
or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.
The address and fax number (and the
department or officer, if any, for whose attention the communication is to be made) of each party to this Agreement for any communication
or document to be made or delivered under or in connection with the Finance Documents is:
|
|
(a)
|
in the case of the Borrower, that identified with its name below;
|
|
|
(b)
|
in the case of each Lender or any Security Party, that notified in writing to the Agent on or prior
to the date on which it becomes a party to this Agreement;
|
|
|
(c)
|
in the case of the Agent or the Security Trustee that identified with its name below,
|
or any substitute address or fax
number or department or officer as the party to this Agreement may notify to the Agent (or the Agent may notify to the parties
to this Agreement, if a change is made by the Agent) by not less than five Business Days' notice:
|
to the Borrower:
|
c/o Euronav NV
|
|
|
De Gerlachekaai 20
|
|
|
2000 Antwerp
|
|
|
|
|
|
Fax No: +32 3 247 4409
|
|
|
|
|
to the Lender:
|
At the address below its name in Schedule 1 (
Lenders and Commitments
) or (as the case may require) in the relevant Transfer Certificate to the Agent:
|
|
|
|
|
|
4
th
Floor , I.F.S.C. House
|
|
|
Custom House Quay
|
|
|
Dublin 1
|
|
|
D01 R2P9, Ireland
|
|
|
|
|
|
Attention: David Sparkes
|
|
|
Fax No: +44 207 638 6488
|
|
|
|
|
to the Security Trustee:
|
201 Bishopsgate
|
|
|
6
th
Floor
|
|
|
London EC2M 3NS
|
|
|
United Kingdom
|
|
|
|
|
|
Attention: David Sparkes
|
|
|
Fax No: +44 207 638 6488
|
or to such other address as the relevant
party may notify the Agent or, if the relevant party is the Agent or the Security Trustee, the Borrower, the Lenders and the Security
Parties.
|
|
(a)
|
Any communication or document made or delivered by one person to another under or in connection
with the Finance Documents will only be effective:
|
|
|
(i)
|
if by way of fax, when received in legible form; or
|
|
|
(ii)
|
if by way of letter, when it has been left at the relevant address or five Business Days after
being deposited in the post postage prepaid in an envelope addressed to it at that address;
|
and, if a particular department or
officer is specified as part of its address details provided under Clause 31.2 (
Addresses
), if addressed to that department
or officer.
|
|
(b)
|
Any communication or document to be made or delivered to the Agent will be effective only when
actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified
with the Agent's signature below (or any substitute department or officer as the Agent shall specify for this purpose).
|
|
|
(c)
|
All notices from or to the Borrower or a Security Party shall be sent through the Agent.
|
|
|
(d)
|
Any communication or document made or delivered to the Borrower in accordance with this Clause
will be deemed to have been made or delivered to each Security Party.
|
|
|
31.4
|
Notification of address and fax number
|
Promptly upon receipt of notification
of an address or fax number or change of address or fax number pursuant to Clause 31.2 (
Addresses
) or changing its own address
or fax number, the Agent shall notify the other parties to this Agreement.
|
|
31.5
|
Electronic communication
|
|
|
(a)
|
Any communication to be made between the Agent and a Lender under or in connection with the Finance
Documents may be made by electronic mail or other electronic means, if the Agent and the relevant Lender:
|
|
|
(i)
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
|
|
(ii)
|
notify each other in writing of their electronic mail address and/or any other information required
to enable the sending and receipt of information by that means; and
|
|
|
(iii)
|
notify each other of any change to their address or any other such information supplied by them.
|
|
|
(b)
|
Any electronic communication made between the Agent and a Lender will be effective only when actually
received in readable form and in the case of any electronic communication made by a Lender to the Agent only if it is addressed
in such a manner as the Agent shall specify for this purpose.
|
|
|
(a)
|
Any notice given under or in connection with any Finance Document must be in English.
|
|
|
(b)
|
All other documents provided under or in connection with any Finance Document must be:
|
|
|
(ii)
|
if not in English, and if so required by the Agent, accompanied by a certified English translation
and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
|
|
32.1
|
Rights cumulative, non-exclusive
|
The rights and remedies which the
Finance Documents give to each Creditor Party are:
|
|
(b)
|
may be exercised as often as appears expedient; and
|
|
|
(c)
|
shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude
or limit any right or remedy conferred by any law.
|
|
|
32.2
|
Severability of provisions.
If any provision of a Finance Document is or subsequently becomes
void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of that
Finance Document or of the provisions of any other Finance Document.
|
A Finance Document may be executed
in any number of counterparts.
A person who is not a party to this
Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of
this Agreement.
This Agreement shall be governed
by, and construed in accordance with, English law.
|
|
33.2
|
Exclusive English jurisdiction
|
Subject to Clause 33.3 (
Choice
of forum for the exclusive benefit of the Creditor Parties
), the courts of England shall have exclusive jurisdiction to settle
any disputes which may arise out of or in connection with this Agreement.
|
|
33.3
|
Choice of forum for the exclusive benefit of the Creditor Parties
|
Clause 33.2 (
Exclusive English
jurisdiction
) is for the exclusive benefit of the Creditor Parties, each of which reserves the right:
|
|
(a)
|
to commence proceedings in relation to any matter which arises out of or in connection with this
Agreement in the courts of any country other than England and which have or claim jurisdiction to that matter; and
|
|
|
(b)
|
to commence such proceedings in the courts of any such country or countries concurrently with or
in addition to proceedings in England or without commencing proceedings in England.
|
The Borrower irrevocably appoints
Euronav (UK) Agencies Limited at its registered office for the time being, presently at 99 King’s Road, London, SW3 4PA,
England, to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the
English courts which are connected with this Agreement.
|
|
33.5
|
Creditor Party rights unaffected
|
Nothing in this Clause 33 (
Law
and Jurisdiction
) shall exclude or limit any right which any Creditor Party may have (whether under the law of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
33.6
|
Meaning of "proceedings".
In this Clause 33 (
Law and Jurisdiction
), "
proceedings
"
means proceedings of any kind, including an application for a provisional or protective measure.
|
This Agreement has been entered into on
the date stated at the beginning of this Agreement.
Schedule
1
Lenders
and Commitments
|
Lender
|
|
Lending Office
|
|
Commitment
(US Dollars)
|
|
|
|
|
|
|
|
|
|
|
Scotiabank (Ireland) Designated Activity Company
|
|
I.F.S.C. House
Custom House Quay
Dublin 1
D01 R2P9, Ireland
|
|
|
26,750,000
|
|
Schedule
2
Drawdown
Notice
|
|
To:
|
The Bank of Nova Scotia
|
201 Bishopsgate, 6th Floor
London EC2M 3NS
England
|
|
Attention:
|
Loans Administration
|
[·]
2008
DRAWDOWN NOTICE
|
|
1
|
We refer to the loan agreement (the "
Loan Agreement
") dated 23 October 2008 (as
supplemented by a supplemental letter dated 30 January 2017 and amended and restated on [
·
]
March 2017) and made between ourselves, as Borrower, the Lenders referred to therein, and yourselves as Agent and as Security Trustee
in connection with a facility of up to US$76,000,000. Terms defined in the Loan Agreement have their defined meanings when used
in this Drawdown Notice.
|
|
|
2
|
We request to borrow as follows:
|
|
|
(b)
|
[Advance as specified in Clause 2.1 (
Amount of facility
) [first, second, third, etc]];
|
|
|
(c)
|
Drawdown Date: [
·
];
|
|
|
(d)
|
Duration of the first Interest Period shall be [
·
]
months; and
|
|
|
(e)
|
Payment instructions: account of [
·
] and numbered
[
·
] with [
·
] of [
·
].
|
|
|
3
|
We represent and warrant that:
|
|
|
(a)
|
the representations and warranties in Clause 10 (
Representations and Warranties
)0 of the
Loan Agreement would remain true and not misleading if repeated on the date of this notice with reference to the circumstances
now existing; and
|
|
|
(b)
|
no Event of Default or Potential Event of Default has occurred or will result from the borrowing
of the Loan.
|
|
|
4
|
This notice cannot be revoked without the prior consent of the Majority Lenders.
|
|
|
5
|
We authorise you to deduct the arrangement fee referred to in Clause 21 (
Fees and Expenses
)
from the amount of the Advance.
|
|
|
[Name of Signatory]
|
|
|
|
|
|
|
|
Director
|
|
|
|
for and on behalf of
|
|
[
·
]
Schedule
3
Condition Precedent Documents
Part A
The following are the documents referred
to in paragraph (a) of Clause 9.1 (
Documents, fees and no default
) before the service of the first Drawdown Notice.
|
|
1
|
A duly executed original of this Agreement, the Guarantee Nomination Letter, the Agency and Trust
Agreement, the Negative Pledge, each Guarantee, the Counter Guarantee and the Account Security Deed.
|
|
|
2
|
Copies of the certificate of incorporation and constitutional documents of the Borrower, each Guarantor,
the Counter Guarantor and each Shareholder (and in relation to the Borrower a copy of the shareholders agreement or joint venture
agreement entered into by its shareholders).
|
|
|
3
|
Copies of resolutions of directors of the Borrower, each Guarantor (except for Guarantor B), the
Counter Guarantor and each Shareholder and copies of resolutions of the shareholders of the Borrower and the Counter Guarantor
authorising the execution of each of the Finance Documents to which the Borrower, that Guarantor, the Counter Guarantor or that
Shareholder is a party and, in the case of the Borrower, authorising named officers to give the Drawdown Notices and other notices
under this Agreement and ratifying the execution of the Shipbuilding Contract and the Supervision Agreement.
|
|
|
4
|
The original of any power of attorney under which any Finance Document is executed on behalf of
the Borrower, a Guarantor, the Counter Guarantor or the Shareholder.
|
|
|
5
|
Copies of all consents which the Borrower or any Security Party requires to enter into, or make
any payment under, any Finance Document or the Shipbuilding Contract or the Supervision Agreement.
|
|
|
6
|
The originals of any mandates or other documents required in connection with the opening or operation
of the Earnings Account.
|
|
|
7
|
Documentary evidence that the agent for service of process named in Clause 33 (
Law and Jurisdiction
)
has accepted its appointment.
|
|
|
8
|
Favourable legal opinions from lawyers appointed by the Lender on such matters concerning the laws
of Hong Kong, Belgium, Panama, Bermuda and such other relevant jurisdictions as the Lenders may require.
|
|
|
9
|
Receipt of all documentation required by the Lenders in respect of the Borrower, any Security Party
or the ultimate beneficial ownership of each Guarantor or the Counter Guarantor pursuant to that Lenders "know your customer"
requirements.
|
Part B
The following are the documents referred
to in paragraph (b) of Clause 9.1 (
Documents, fees and no default
) required before the drawdown of an Advance (other than
the final Advance):
|
|
10
|
Evidence that the relevant pre-delivery instalment of the Contract Price payable under the Shipbuilding
Contract has fallen due for payment and that such part of such instalment not being met out of the proceeds of an Advance has been
paid or shall be paid by the Borrower simultaneously with the making of such Advance.
|
|
|
11
|
A duly executed original of the Predelivery Security Assignment (and of each document required
to be delivered thereunder).
|
|
|
12
|
A certified copy of the Shipbuilding Contract and Supervision Agreement and a certified copy of
the Refund Guarantee.
|
|
|
13
|
Such documentary evidence as the Lender and its legal advisers may require in relation to the due
authorisation and execution by the Builder of the Shipbuilding Contract, by the Supervisor of the Supervision Agreement and by
the Refund Guarantor of the Refund Guarantee.
|
|
|
14
|
Favourable legal opinions from lawyers appointed by the Lender on such matters concerning the laws
of Korea and such other relevant jurisdictions as the Lender may require.
|
Part C
The following are
the documents referred to in paragraph (c) of Clause 9.1 (
Documents, fees and no default
) required before the Drawdown of
the final Advance.
|
|
15
|
A duly executed original of the Mortgage, of the Charter Assignment (if any Charter) and of the
General Assignment (and of each document to be delivered by each of them).
|
|
|
16
|
Documentary evidence that:
|
|
|
(a)
|
the Ship has been unconditionally delivered by the Builder to, and accepted by, the Borrower under
the Shipbuilding Contract, and the full purchase price payable under the Shipbuilding Contract (in addition to the part to be financed
by the Loan) has been duly paid;
|
|
|
(b)
|
the Ship is definitively and permanently registered in the name of the Borrower under the relevant
Approved Flag at its relevant port of registry;
|
|
|
(c)
|
the Ship is in the absolute and unencumbered ownership of the Borrower save as contemplated by
the Finance Documents;
|
|
|
(d)
|
the Ship maintains the class (namely A1(E), "Oil Carrier ESP", AMS, ACCU, SPM, VEC(-L),
CSR, Safeship-CM, RES, ES, TEM, Green Passport, POT, UWILD (sea chest blanking devices shall not be provided), CPS with American
Bureau of Shipping free of all recommendations and conditions of such Classification Society;
|
|
|
(e)
|
the Mortgage has been duly recorded against the Ship as a valid first preferred/priority ship mortgage
in accordance with the laws of the relevant Approved Flag;
|
|
|
(f)
|
the Ship is insured in accordance with the provisions of this Agreement and all requirements therein
in respect of insurances have been complied with; and
|
|
|
(g)
|
such part of the acquisition cost of the Ship which has not been funded out of the proceeds of
the Loan and which has been borrowed by the Borrower is subordinated to the obligations of the Borrower to the Lenders under this
Agreement in terms satisfactory to the Lenders in their absolute discretion;
|
|
|
17
|
Documents establishing that the Ship will, as from the final Drawdown Date, be managed by the Approved
Manager on terms acceptable to the Lenders, together with:
|
|
|
(a)
|
a letter of undertaking executed by the Approved Manager in favour of the Agent in the terms agreed
between the Agent and the Approved Manager agreeing certain matters in relation to the management of the Ship and subordinating
the rights of the Approved Manager against the Ship and the Borrower to the rights of the Creditor Parties under the Finance Documents;
and
|
|
|
(b)
|
copies of the Approved Manager's Document of Compliance and of the Ship's Safety Management Certificate
(together with any other details of the applicable safety management system which the Lenders require) and ISSC.
|
|
|
18
|
A favourable opinion from an independent insurance consultant acceptable to the Agent on such matters
relating to the insurances for the Ship as the Agent may require.
|
|
|
19
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws
of Greece (or such other jurisdiction as may be appropriate if the Ship is not registered on Greek flag) and such other relevant
jurisdictions as the Agent may require.
|
Schedule
4
Transfer Certificate
The Transferor and the Transferee accept
exclusive responsibility for ensuring that this Certificate and the transaction to which it relates comply with all legal and regulatory
requirements applicable to them respectively.
To: [
·
]
as Agent.
From: [
The Existing Lender
] (the
"
Transferor
") and [
The New Lender
] (the "
Transferee
")
Dated: [
·
]
US$76,000,000 Loan Agreement to Euronav NV
dated 23 October 2008 (as supplemented by a supplemental letter dated 30 January 2017
and amended and restated on [
·
]
March 2017) (the "Agreement")
|
|
1
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have
the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
|
|
2
|
We refer to Clause 28 (
Transfers and Changes in Lending Offices
) of the Agreement.
|
|
|
(a)
|
The Transferor and the Transferee agree to the Transferor transferring to the Transferee by novation
all or part of the Transferor's Commitment, rights and obligations referred to in the Schedule in accordance with Clause 28 (
Transfers
and Changes in Lending Offices
).
|
|
|
(b)
|
The proposed Transfer Date is [
·
].
|
|
|
(c)
|
the lending office and address, fax number and attention details for notices of the Transferee
for the purposes of Clause 31.2 (
Addresses
) are set out in the Schedule.
|
|
|
3
|
The Transferee expressly acknowledges the limitations on the Transferor's obligations set out in
Clause 28 (
Transfers and Changes in Lending Offices
).
|
|
|
4
|
[The Transferee confirms that the person beneficially entitled to interest payable to that Lender
in respect of an advance under a Finance Document is either:
|
|
|
(a)
|
a company resident in the United Kingdom for United Kingdom tax purposes; or
|
|
|
(b)
|
a partnership each number of which is:
|
|
|
(i)
|
a company so resident in the United Kingdom; or
|
|
|
(ii)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom
through a permanent establishment and which brings into account in computing its chargeable profits (for the purposes of section
11(2) of the [Taxes Act] the whole of any share of interest payable in respect of that advance that falls to it by reason of sections
114 and 115 of the [Taxes Act]; or
|
|
|
(c)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom
through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable
profits (for the purposes of Section 11(2) of the [Taxes Act] of that company.]
|
|
|
[4/5]
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect
as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
|
|
[5/6]
|
This Transfer Certificate is governed by English law.
|
THE SCHEDULE
Commitment/rights and obligations to be transferred
[
insert relevant details
]
[
Facility Office address, fax number and
attention details for notices and account details for payments
]
|
Transferor
|
Transferee
|
|
|
|
|
By:
|
By:
|
This Transfer Certificate is accepted by the
Agent and the Transfer Date is confirmed as [
·
].
[Agent]
By:
Schedule
5
Mandatory Cost
|
|
1
|
The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance
with (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority
which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
|
|
|
2
|
On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall calculate,
as a percentage rate, a rate (the "
Additional Cost Rate
") for each Lender, in accordance with the paragraphs set
out below. The Mandatory Cost will be calculated by the Agent as a weighted average of the Lenders' Additional Cost Rates (weighted
in proportion to the percentage participation of each Lender in the Loan) and will be expressed as a percentage rate per annum.
|
|
|
3
|
The Additional Cost Rate for any Lender lending from a lending office in a Participating Member
State will be the percentage notified by that Lender to the Agent. This percentage will be certified by that Lender in its notice
to the Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's participation in all Loans
made from that lending office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans
made from that lending office.
|
|
|
4
|
The Additional Cost Rate for any Lender lending from a lending office in the United Kingdom will
be calculated by the Agent as follows:
|
|
|
(a)
|
in relation to a sterling Loan:
|
|
AB
+
C
(
B
– D
) +
E
x 0.01
100 – (
A
+
C
)
|
per cent. per annum
|
|
|
(b)
|
in relation to a Loan in any currency other than sterling:
|
|
E
x 0.01
300
|
per cent. per annum
|
Where:
|
|
A
|
is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum)
which that Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to
comply with cash ratio requirements.
|
|
|
B
|
is the percentage rate of interest (excluding the Margin and the Mandatory Cost and, if the Loan
is an Unpaid Sum, the additional rate of interest specified in paragraph (a) of Clause 7.2 (
Default rate of interest
)) payable
for the relevant Interest Period on the Loan.
|
|
|
C
|
is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time
to maintain as interest bearing Special Deposits with the Bank of England.
|
|
|
D
|
is the percentage rate per annum payable by the Bank of England to the Agent on interest bearing
Special Deposits.
|
|
|
E
|
is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by
the Agent as being the average of the most recent rates of charge supplied by the Reference Banks to the Agent pursuant to paragraph
7 below and expressed in pounds per £1,000,000.
|
|
|
5
|
For the purposes of this Schedule:
|
|
|
(a)
|
"
Eligible Liabilities
" and "
Special Deposits
" have the meanings
given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England;
|
|
|
(b)
|
"
Fees Rules
" means the rules on periodic fees contained in the FSA Supervision
Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance
of deposits;
|
|
|
(c)
|
"
Fee Tariffs
" means the fee tariffs specified in the Fees Rules under the activity
group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account
any applicable discount rate); and
|
|
|
(d)
|
"
Tariff Base
" has the meaning given to it in, and will be calculated in accordance
with, the Fees Rules.
|
|
|
(e)
|
"
Unpaid Sum
" means any sum due and payable but unpaid by the Borrower or a Security
Party under the Finance Documents.
|
|
|
6
|
In application of the above formulae, A, B, C and D will be included in the formulae as percentages
(i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall
be taken as zero. The resulting figures shall be rounded to four decimal places.
|
|
|
7
|
If requested by the Agent, each Reference Bank shall, as soon as practicable after publication
by the Financial Services Authority, supply to the Agent, the rate of charge payable by that Reference Bank to the Financial Services
Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated
for this purpose by that Reference Bank as being the average of the Fee Tariffs applicable to that Reference Bank for that financial
year) and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.
|
|
|
8
|
Each Lender shall supply any information required by the Agent for the purpose of calculating its
Additional Cost Rate. In particular, but without limitation, each Lender shall supply the following information on or prior to
the date on which it becomes a Lender:
|
|
|
(a)
|
the jurisdiction of its lending office; and
|
|
|
(b)
|
any other information that the Agent may reasonably require for such purpose.
|
Each Lender shall promptly notify
the Agent of any change to the information provided by it pursuant to this paragraph.
|
|
9
|
The percentages of each Lender for the purpose of A and C above and the rates of charge of each
Reference Bank for the purpose of E above shall be determined by the Agent based upon the information supplied to it pursuant to
paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies the Agent to the contrary, each Lender's obligations
in relation to cash ratio deposits and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation
with a lending office in the same jurisdiction as its lending office.
|
|
|
10
|
The Agent shall have no liability to any person if such determination results in an Additional
Cost Rate which over or under compensates any Lender and shall be entitled to assume that the information provided by any Lender
or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects.
|
|
|
11
|
The Agent shall distribute the additional amounts received as a result of the Mandatory Cost to
the Lenders on the basis of the Additional Cost Rate for each Lender based on the information provided by each Lender and each
Reference Bank pursuant to paragraphs 3, 7 and 8 above.
|
|
|
12
|
Any determination by the Agent pursuant to this Schedule in relation to a formula, the Mandatory
Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the absence of manifest error, be conclusive and binding
on all parties to the Loan Agreement.
|
|
|
13
|
The Agent may from time to time, after consultation with the Borrower and the Lenders, determine
and notify to all parties to the Loan Agreement any amendments which are required to be made to this Schedule in order to comply
with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any
such determination shall, in the absence of manifest error, be conclusive and binding on all parties to the Loan Agreement.
|
Schedule
6
Form
of Certificate of Compliance
|
|
To:
|
The Bank of Nova Scotia
|
201 Bishopsgate, 6th Floor
London EC2M 3NS
England
|
|
Attention:
|
Loans Administration
|
[Date]
OFFICER'S CERTIFICATE
This Certificate is rendered pursuant to clause
12.6(e) of the loan agreement dated 23 October 2008 (as amended and supplemented by a supplemental letter dated 30 January 2017
and amended and restated on
[
·
]
2017) (the "
Loan Agreement
") and entered into between (i) Euronav NV as Borrower, (ii) the banks and financial
institutions listed in Schedule 1 therein as Lenders, (iii) The Bank of Nova Scotia as Agent and Security Trustee, relating to
a facility of up to US$79,000,000. Words and expressions defined in the Loan Agreement shall have the same meanings when used herein.
I, the Chief Financial Officer of the Borrower,
hereby certify that:
|
|
1
|
Attached to this Certificate [are][is] the latest [audited consolidated accounts of the Group and
audited individual accounts of the Borrower for the financial year ending on [
·
]]
[unaudited consolidated balance sheet of the Group and the unaudited individual balance sheet of the Borrower in relation to the
[first] [second] six months of the financial year ending on [
·
]] (the "
Accounts
").
|
|
|
2
|
Set out below are the respective amounts, in US Dollars, of the Cash, Consolidated Current Assets,
Consolidated Current Liabilities, Free Liquid Assets, Stockholders' Equity, Total Assets and Total Indebtedness of the Group as
at [
·
]:
|
|
|
|
US Dollars
|
|
|
|
|
|
Cash
|
|
[
·
]
|
|
|
|
|
|
Consolidated Current Assets
|
|
[
·
]
|
|
|
|
|
|
Consolidated Current Liabilities
|
|
[
·
]
|
|
|
|
|
|
Free Liquid Assets
|
|
[
·
]
|
|
|
|
|
|
Stockholders' Equity
|
|
[
·
]
|
|
|
|
|
|
Total Assets
|
|
[
·
]
|
|
|
|
|
|
Total Indebtedness
|
|
[
·
]
|
|
|
3
|
Accordingly, as at the date of this Certificate the financial covenants set out in clause 11.1 (
Financial
Covenants
) of the Loan Agreement [are] [are not] complied with, in that as at [
·
]:
|
|
|
(a)
|
Consolidated Working Capital is US$[
·
];
|
|
|
(b)
|
Free Liquid Assets are US$[
·
];
|
|
|
(c)
|
Cash is US$[
·
]; and
|
|
|
(d)
|
the ratio of Stockholders' Equity to Total Assets is [
·
]
per cent.;
|
[or, as the case may be, specify
in what respect any of the financial covenants are not complied with.]
|
|
4
|
As at [
·
] no Event of Default has occurred and is
continuing.
|
[or, specify/identify any Event
of Default]
The Borrower is in compliance with clause 11.1
(
Financial Covenants
) of the Loan Agreement.
[
If not, specify this and what is proposed
as regards Clause 11.1 (
Financial Covenants
)
]
The Market Value of the Ship is as follows
as at [
date
]:
|
Name of Ship
|
|
Name of first shipbroker
providing valuation
|
|
Name of second shipbroker
providing valuation
|
|
Average market value
|
|
|
|
|
|
|
|
|
|
[
·
]
|
|
[
·
]
|
|
[
·
]
|
|
[
·
]
|
|
|
|
|
|
|
|
Chief Financial Officer
|
|
|
EURONAV NV
|
|
Note: Supporting Schedules to be attached.
Execution Page
BORROWER
|
SIGNED
by
|
)
|
|
|
)
|
|
for and on behalf of
|
)
|
|
EURONAV NV
|
)
|
|
in the presence of:
|
)
|
|
|
|
|
LENDERS
|
|
|
|
|
|
SIGNED
by
|
)
|
|
|
)
|
|
for and on behalf of
|
)
|
|
SCOTIABANK (IRELAND) DESIGNATED
|
)
|
|
ACTIVITY COMPANY
|
)
|
|
in the presence of:
|
)
|
|
|
|
|
AGENT
|
|
|
|
|
|
SIGNED
by
|
)
|
|
|
)
|
|
for and on behalf of
|
)
|
|
THE BANK OF NOVA SCOTIA
|
)
|
|
in the presence of:
|
)
|
|
|
|
|
SECURITY TRUSTEE
|
|
|
|
|
|
SIGNED
by
|
)
|
|
|
)
|
|
for and on behalf of
|
)
|
|
THE BANK OF NOVA SCOTIA
|
)
|
|
in the presence of:
|
)
|
Exhibit 10.17
EXECUTION VERSION
Dated 31 March 2017
$67,500,000
$ 28,150,000 outstanding
AMENDMENT TO TERM LOAN FACILITY
LARVOTTO
SHIPHOLDING LIMITED
as Borrower
and
EURONAV
NV
as Guarantor
and
BNP PARIBAS
as Agent
and as Security Trustee
amending
and restating AGREEMENT
relating to
the financing of
m.t. "MARIA"
Index
|
Clause
|
|
Page
|
|
|
|
|
|
1
|
Definitions and Interpretation
|
1
|
|
2
|
Agreement of the Creditor Parties
|
3
|
|
3
|
Conditions Precedent
|
4
|
|
4
|
Representations
|
4
|
|
5
|
Amendment and Restatement of Loan Agreement and other Finance Documents
|
4
|
|
6
|
Accession by Guarantor as new Borrower
|
5
|
|
7
|
Further Assurance
|
5
|
|
8
|
Fees
|
6
|
|
9
|
Costs and Expenses
|
6
|
|
10
|
Notices
|
6
|
|
11
|
Counterparts
|
7
|
|
12
|
Governing Law
|
7
|
|
13
|
Enforcement
|
7
|
|
|
|
|
|
Schedules
|
|
|
|
|
|
Schedule 1 The Lenders
|
8
|
|
Schedule 2 Conditions Precedent
|
9
|
|
|
|
|
Execution
|
|
|
|
|
|
Execution Pages
|
10
|
Appendices
Appendix Part A Form of Amended and Restated
Loan Agreement marked to indicate amendments to the Loan Agreement
Appendix Part B Form of clean copy Amended
and Restated Loan Agreement
THIS AGREEMENT
is made on 31 March
2017
PARTIES
|
|
(1)
|
LARVOTTO SHIPHOLDING LIMITED
, a company incorporated in Hong Kong whose registered office
is at Room 2503-05, 25
th
Floor, Harcourt House, No.39 Gloucester Road, Wanchai, Hong Kong as borrower (the "
Borrower
")
|
|
|
(2)
|
EURONAV NV
, a company incorporated in Belgium whose registered office is at Gerlachekaai
20, B-2000 Antwerp, Belgium as the guarantor (the "
Guarantor
")
|
|
|
(3)
|
THE FINANCIAL INSTITUTIONS
listed in Schedule 1 (
The Lenders
) as lenders (the "
Lenders
")
|
|
|
(4)
|
BNP PARIBAS
, as agent of the other Creditor Parties (the "
Agent
")
|
|
|
(5)
|
BNP PARIBAS
, as security trustee for the Creditor Parties (the "
Security Trustee
")
|
BACKGROUND
|
|
(A)
|
By the Loan Agreement, the Lenders agreed to make available to the Borrower a facility of (originally)
up to $67,500,000 of which $28,150,000 is outstanding at the date of this Agreement.
|
|
|
(B)
|
The Borrower and the Guarantor have requested that the Lenders agree to, inter alia:
|
|
|
(i)
|
the sale of the Ship to the Guarantor;
|
|
|
(ii)
|
the release of the Borrower from all its obligations under the Loan Agreement and the release of
all Security Interests created by it in favour of the Security Trustee under the Finance Documents;
|
|
|
(iii)
|
the accession of the Guarantor to the Loan Agreement as the replacement borrower;
|
|
|
(iv)
|
the release of the Guarantor from all its liabilities and obligations to the Creditor Parties under
the Euronav Guarantee; and
|
|
|
(v)
|
take Security Interests over the Ship immediately upon ownership by the Guarantor as replacement
borrower.
|
|
|
(C)
|
This Agreement sets out the terms and conditions on which the Lenders and the other Creditor Parties
agree, with effect on and from the Effective Date, to the above requests and to the consequential amendment of the Loan Agreement
and the Agency and Trust Deed in connection with those matters.
|
OPERATIVE
PROVISIONS
|
|
1
|
Definitions and Interpretation
|
In this Agreement:
"
Agency
and Trust Deed
" means the agency and trust deed dated 29 August 2008 and made between, (i) the Borrower, (ii) the
Lenders, (iii) Fortis Bank S.A./N.V., UK Branch as Lead Arranger (iv) the Agent and (v) the Security Trustee.
"
Amended
and Restated Loan Agreement
" means the Loan Agreement as amended and restated by this Agreement in the form set
out in the Appendix.
"
Authorisation
"
means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, legalisation or registration.
"
Effective
Date
" means the date on which the conditions precedent in Clause 3 (
Conditions Precedent
) are satisfied.
"
Euronav
Guarantee
" means the guarantee dated 29 August 2008 and made between the Guarantor and the Security Trustee.
"
Existing
Account Security Deed
" means the account security deed in respect of the earnings account of the Borrower dated
29 August 2008 and made between the Borrower and Fortis Bank S.A./N.V., UK Branch as the Bank.
"
Existing
Finance Documents
" means each of the Euronav Guarantee, the Existing Account Security Deed, the Existing Mortgage,
the Existing General Assignment and the Existing Retention Account Security Deed and an "
Existing
Finance Document
" means any one of them.
"
Existing
General Assignment
" means the general assignment in respect of the Ship dated 9 January 2012 and made between (i)
the Borrower, (ii) the Security Trustee and (iii) the Lenders.
"
Existing
Mortgage
" means the first preferred Greek mortgage over the Ship dated 9 January 2012 and made between (i) the
Borrower and (ii) BNP Paribas SA and Deutsche Schiffsbank AG as mortgagees.
"
Existing
Retention Account Security Deed
" means the account security deed in respect of the retention account of the Borrower
dated 9 January 2012 and made between the Borrower and the Security Trustee.
"
Loan
Agreement
" means the loan agreement dated 29 August 2008 (as amended by a supplemental letter dated 28 November
2011 and as further amended by a supplemental letter dated 1 June 2016) and made between, (i) the Borrower, (ii) the Lenders, (iii)
Fortis Bank S.A./N.V., UK Branch as Lead Arranger (iv) the Agent and (v) the Security Trustee.
"
New
Account Security Deed
" means the account security deed in respect of the earnings account of the Guarantor as replacement
borrower to be entered into between the Guarantor as replacement borrower and the Security Trustee.
"
New
Finance Documents
" means each of the New Accounts Security Deed, the New Mortgage and the New General Assignment
and a "
New Finance Document
" means any one of
them.
"
New
General Assignment
" means the general assignment in respect of the Ship to be entered into between (i) the Guarantor
as replacement borrower, (ii) the Security Trustee and (iii) the Lenders.
"
New
Mortgage
" means the first preferred Greek mortgage over the Ship to be entered into between the Guarantor as replacement
borrower and BNP Paribas as mortgagee.
"
Party
"
means a party to this Agreement.
"
Transaction
Security"
means the Security created or evidenced or expressed to be created or evidenced under the Security Documents.
Defined expressions in the Loan
Agreement and the other Finance Documents shall have the same meanings when used in this Agreement unless the context otherwise
requires or unless otherwise defined in this Agreement.
|
|
1.3
|
Application of construction and interpretation provisions of Loan Agreement
|
Clause 1.2 (
construction
)
of the Loan Agreement applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
|
|
1.4
|
Agreed forms of new, and supplements to, Finance Documents
|
References in Clause 1.1 (
Definitions
)
to any new or supplement to a Finance Document being in "agreed form" are to that Finance Document:
|
|
(a)
|
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower
and the Agent); or
|
|
|
(b)
|
in any other form agreed in writing between the Borrower and the Agent acting with the authorisation
of the Majority Lenders or, where clause 27.2 (
Variations, waivers etc. requiring the agreement of all Lenders
) of the Loan
Agreement applies, all the Lenders.
|
|
|
1.5
|
Designation as a Finance Document
|
The Borrower and the Agent designate
this Agreement as a Finance Document.
Unless provided to the contrary
in a Finance Document, a person who is not a Party has no right under the Third Parties Act to enforce or to enjoy the benefit
of any term of this Agreement.
|
|
2
|
Agreement of the Creditor Parties
|
|
|
2.1
|
Agreement of the Lenders
|
The Lenders agree, subject to
and upon the terms and conditions of this Agreement, to:
|
|
(i)
|
the sale of the Ship to the Guarantor;
|
|
|
(ii)
|
the accession of the Guarantor to the Loan Agreement as the replacement borrower;
|
|
|
(iii)
|
the release of the Borrower from all its obligations under the Loan Agreement and the release of
all Security Interests created by it in favour of the Security Trustee under the Finance Documents;
|
|
|
(iv)
|
the release of the Guarantor from all its liabilities and obligations to the Creditor Parties under
the Euronav Guarantee; and
|
|
|
(v)
|
take Security Interests over the Ship immediately upon ownership by the Guarantor as replacement
borrower.
|
|
|
2.2
|
Agreement of the Creditor Parties
|
The Creditor Parties agree, subject
to and upon the terms and conditions of this Agreement, to the consequential amendment of the Loan Agreement and the other Finance
Documents in connection with the matters referred to in Clause 2.1 (
Agreement of the Lenders
).
The agreement of the Lenders
and the other Creditor Parties contained in Clause 2.1 (
Agreement of the Lenders
) and Clause 2.2 (
Agreement of the Creditor
Parties
) shall have effect on and from the Effective Date.
The agreement of the Lenders
and the other Creditor Parties contained in Clause 2.1 (
Agreement of the Lenders
) and Clause 2.2 (
Agreement of the Creditor
Parties
) is subject to:
|
|
(a)
|
no Event of Default or Potential Event of Default occurring on the date of this Agreement and the
Effective Date or resulting from the occurrence of the Effective Date;
|
|
|
(b)
|
the representations to be made by the Borrower and each Security Party pursuant to clause 10 (
Representations
and warranties
) of the Loan Agreement and those of the Borrower or any Security Party which are set out in the other Finance
Documents being true in all material respects on the date of this Agreement and the Effective Date;
|
|
|
(c)
|
none of the circumstances contemplated by clause 5.7 (
Market disruption
) of the Loan Agreement
has occurred and is continuing; and
|
|
|
(d)
|
the Agent having received all of the documents and other evidence listed in Schedule 2 (
Conditions
Precedent
) in form and substance satisfactory to the Agent on or before 3 April 2017 or such later date as the Agent may agree
with the Borrower.
|
|
|
4.1
|
Loan Agreement representations
|
The Borrower makes the representations
and warranties set out in clause 10 (
representations and warranties
) of the Loan Agreement, as amended and restated by this
Agreement and updated with appropriate modifications to refer to this Agreement, by reference to the circumstances then existing
on the date of this Agreement and on the Effective Date.
|
|
4.2
|
Finance Document representations
|
Each Security Party makes the
representations and warranties set out in the Finance Documents (other than the Loan Agreement) to which it is a party, as amended
and restated by this Agreement and updated with appropriate modifications to refer to this Agreement, by reference to the circumstances
then existing on the date of this Agreement and on the Effective Date.
|
|
5
|
Amendment and Restatement of Loan Agreement and other Finance Documents
|
|
|
5.1
|
Specific amendments to the 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 and restated in the form of the Amended
and Restated Loan Agreement and, as so amended and restated, the Loan Agreement shall continue to be binding on each of the parties
to it in accordance with its terms as so amended and restated.
|
|
5.2
|
Amendments to Agency and Trust Deed
|
With effect on and from the Effective
Date the Agency and Trust Deed shall be, and shall be deemed by this Agreement to be, amended as follows:
|
|
(a)
|
the definition of, and references throughout the Agency and Trust Deed 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 restated by this Agreement;
|
|
|
(b)
|
the definition of, and references throughout the Agency and Trust Deed to, the Borrower shall be
construed as if the same referred to Euronav NV as borrower;
|
|
|
(c)
|
the definition of, and references throughout the Agency and Trust Deed to, the Account Security
Deed shall be construed as if the same included reference to the New Accounts Security Deed;
|
|
|
(d)
|
the definition of, and references throughout the Agency and Trust Deed to, the General Assignment
shall be construed as if the same included reference to the New General Assignment;
|
|
|
(e)
|
the definition of, and references throughout the Agency and Trust Deed to, the Mortgage shall be
construed as if the same included reference to the New Mortgage;
|
|
|
(f)
|
the definition of, and references throughout the Agency and Trust Deed to, the Retention Account
Security Deed shall be deleted;
|
|
|
(g)
|
by construing references throughout the Agency and Trust Deed to "this Agreement", "this
Deed" and other like expressions as if the same referred to such the Agency and Trust Deed as amended and supplemented by
this Agreement.
|
|
|
5.3
|
Finance Documents to remain in full force and effect
|
The Finance Documents other than
the Existing Finance Documents shall remain in full force and effect:
|
|
(a)
|
in the case of the Loan Agreement as amended and restated pursuant to Clause 5.1 (
Specific amendments
to the Loan Agreement
);
|
|
|
(b)
|
in the case of the Agency and Trust Deed as amended pursuant to Clause 5.2 (
Amendments to Agency
and Trust Deed
); and
|
|
|
(c)
|
such further or consequential modifications as may be necessary to give full effect to the terms
of this Agreement.
|
|
|
6
|
Accession by Guarantor as new Borrower
|
With effect from the Effective
Date the Guarantor hereby agrees to accede to the terms of the Loan Agreement and to be bound by the terms thereof as if it were
the original borrower thereto (and each of the other parties hereto acknowledge such accession).
|
|
(a)
|
The Borrower and each Security Party shall promptly, and in any event within the time period specified
by the Agent do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving
of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices,
instructions, acknowledgements, proxies and powers of attorney), as the Agent may specify (and in such form as the Agent may require
in favour of the Agent or its nominee(s)) to implement the terms and provisions of this Agreement.
|
|
|
(b)
|
The Borrower and each Security Party shall promptly, and in any event within the time period specified
by the Security Trustee do all such acts (including procuring or arranging any registration, notarisation or authentication or
the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges,
notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Trustee may specify (and in such form
as the Security Trustee may require in favour of the Security Trustee or its nominee(s)):
|
|
|
(i)
|
to create, perfect, vest in favour of the Security Trustee or protect the priority of the Security
or any right or any kind created or intended to be created under or evidenced by the Finance Documents as amended and restated
by this Agreement (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets
which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies
of the Security Trustee any Receiver or the Creditor Parties provided by or pursuant to the Finance Documents as amended and restated
by the Agreement or by law; and/or
|
|
|
(ii)
|
to confer on the Security Trustee or confer on the Creditor Parties Security over any property
and assets of that Security Party located in any jurisdiction equivalent or similar to the Security intended to be conferred by
or pursuant to the Finance Documents as amended and restated by this Agreement.
|
|
|
(c)
|
The Borrower and each Security Party shall, take all such action as is available to it (including
making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance
of any Security conferred or intended to be conferred on the Security Trustee or the Creditor Parties by or pursuant to the Finance
Documents as amended and restated by this Agreement.
|
|
|
7.2
|
Additional corporate action
|
At the same time as the Borrower
or a Security Party delivers to the Agent or Security Trustee any document executed under this Clause 7 (
Further Assurance
),
the Borrower or that Security Party shall deliver to the Agent or Security Trustee as applicable reasonable evidence that that
Security Party's execution of such document has been duly authorised by it.
The Borrower shall pay to the
Agent (for the account of each Lender) on or before the Effective Date an amendment fee of $25,000.
Clause 20.3 (C
osts of variations,
amendments, enforcement etc.
) of the Loan Agreement, as amended and restated by this Agreement, applies to this Agreement as
if it were expressly incorporated in it with any necessary modifications.
Clause 31 (N
otices
) of
the Loan Agreement, as amended and restated by this Agreement, applies to this Agreement as if it were expressly incorporated in
it with any necessary modifications.
This Agreement may be executed
in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this
Agreement.
This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English law.
|
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection
with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual
obligation arising out of or in connection with this Agreement) (a "
Dispute
").
|
|
|
(b)
|
The Security Parties accept that the courts of England are the most appropriate and convenient
courts to settle Disputes and accordingly no Security Party will argue to the contrary.
|
|
|
(c)
|
This Clause 13.1 (
Jurisdiction
) is for the benefit of the Creditor Parties only. As a result,
no Creditor Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the
extent allowed by law, the Creditor Parties may take concurrent proceedings in any number of jurisdictions.
|
|
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law, each Security Party
(other than a Security Party incorporated in England and Wales):
|
|
|
(i)
|
irrevocably appoints Euronav (UK) Agencies Limited at its registered office for the time being,
presently at 99 Kings Road, London SW3 4PA, England as its agent for service of process in relation to any proceedings before the
English courts in connection with any Finance Document; and
|
|
|
(ii)
|
agrees that failure by a process agent to notify the relevant Security Party of the process will
not invalidate the proceedings concerned.
|
|
|
(b)
|
If any person appointed as an agent for service of process is unable for any reason to act as agent
for service of process, the Borrower (on behalf of all the Security Parties) must immediately (and in any event within five days
of such event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another
agent for this purpose.
|
This Agreement has been entered into
on the date stated at the beginning of this Agreement.
Schedule
1
The Lenders
|
Lender
|
|
Lending Office
|
|
|
|
|
|
BNP PARIBAS
|
|
16, rue de Hanovre, 75078
Paris Cedex 02, France
Fax no.: +33 (0)1 42 98 43 55
Department/Officer : Transportation Group
Middle Office – Shipping & offshore
Shipping Finance, ACI : CAT04B1
|
Schedule
2
Conditions Precedent
Documents of the kind specified
in Schedule 3 Part A paragraphs 2, 3 and 4 of the Loan Agreement in respect of the Borrower and Guarantor only.
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2.1
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Evidence that the Ship is registered on the Greek flag in the ownership of the Guarantor.
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2.2
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Evidence that the Loan has been transferred from the Borrower to Euronav NV.
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2.3
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A duly executed original of each of the New Finance Documents (and of each document to be delivered
under each of them).
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2.4
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Documentary evidence that the New Mortgage has been duly registered as a valid first priority ship
mortgage in accordance with the laws of Greece.
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3.1
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A legal opinion of Watson Farley Williams, legal advisers to the Agent and the Security Trustee
in England, substantially in the form distributed to the Lenders before signing this Agreement.
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3.2
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A legal opinion of Fransen Luyten, legal advisers to the Agent and the Security Trustee in Belgium,
substantially in the form distributed to the Lenders before signing this Agreement.
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3.3
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Legal opinions of the legal advisers to the Agent and the Security Trustee in the jurisdiction
of the Approved Flag of the Ship and such other relevant jurisdictions as the Agent may require.
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4
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Other documents and evidence
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4.1
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A favourable opinion from an independent insurance consultant acceptable to the Lender on such
matters relating to the insurances for the Ship as the Lender may require.
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4.2
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A copy of any other Authorisation or other document, opinion or assurance which the Agent considers
to be necessary or desirable (if it has notified the Borrower and Guarantor accordingly) in connection with the entry into and
performance of the transactions contemplated by this Agreement, the New Finance Documents or for the validity and enforceability
of any Finance Document as amended, restated by this Agreement.
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4.3
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Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 8 (
Fees
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and Clause 9 (
Costs and Expenses
) have been paid or will be paid by the Effective Date.
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Execution
Pages
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BORROWER
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SIGNED
by
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duly authorised
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)
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for and on behalf of
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LARVOTTO SHIPHOLDING LIMITED
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)
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/s/ Joanna Goode
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in the presence of:
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)
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Joanna Goode
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Attorney-in-Fact
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Witness' signature:
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)
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/s/ Aimee Myhre
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Witness' name:
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Aimee Myhre
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Witness' address:
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)
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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GUARANTOR
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SIGNED
by
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duly authorised
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)
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for and on behalf of
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)
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EURONAV NV
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/s/ Joanna Goode
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in the presence of:
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)
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Joanna Goode
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Attorney-in-Fact
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Witness' signature:
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)
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/s/ Aimee Myhre
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Witness' name:
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)
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Aimee Myhre
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Witness' address:
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)
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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LENDERS
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SIGNED
by
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duly authorised
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for and on behalf of
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BNP PARIBAS
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)
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/s/ Emeline Yew
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in the presence of:
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)
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Emeline Yew
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Attorney in fact
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Witness' signature:
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)
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/s/ Aimee Myhre
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Witness' name:
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Aimee Myhre
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Witness' address:
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)
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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AGENT
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SIGNED
by
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duly authorised
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for and on behalf of
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BNP PARIBAS
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/s/ Emeline Yew
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in the presence of:
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Emeline Yew
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Attorney in fact
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Witness' signature:
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/s/ Aimee Myhre
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Witness' name:
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)
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Aimee Myhre
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Witness' address:
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)
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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SECURITY TRUSTEE
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SIGNED
by
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duly authorised
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for and on behalf of
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BNP PARIBAS
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)
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/s/ Emeline Yew
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in the presence of:
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)
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Emeline Yew
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Attorney in fact
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Witness' signature:
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)
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/s/ Aimee Myhre
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Witness' name:
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)
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Aimee Myhre
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Witness' address:
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)
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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Appendix
Part A
Form of
Amended and Restated Loan Agreement marked to
indicate amendments to the Loan Agreement
Amendments are indicated as follows:
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1
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additions are indicated by underlined text; and
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2
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deletions are shown by strike-through text.
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Date
Dated 29 August 2008 (as amended by a supplemental letter dated 28 November 2011, as further amended by a supplemental letter
dated 1 June 2016 and as amended and restated on 31 March 2017) EURONAV NV LARVOTTO SHIPHOLDING LIMITED as Borrower —and-
THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 listed in Schedule 1 as Lenders —and- FORTIS BANK S.A./N.V.,UK
BRANCH BNP PARIBAS as Load Arranger - and - FORTIS BANK S.A./N.V., UK BRANCH as Agent and as Security Trustee LOAN AGREEMENT relating
to a US$67,500,000 facility to finance a nowbuilding suezmaxm.t. "MARIA"
watson farley
& williams
Watson/ Farley & Williams London
Index
tanker of about 158,000 dwt having Hull No. 1860 at Samsung
INDEX
Clause Page 4 INTERPRETATION 4 3 FACILITY 14 3 POSITION OF THE LENDERS 45 4 DRAWDOWN 45 5 INTEREST 46 6 INTEREST PERIODS 48 7
DEFAULT INTEREST 19 8 REPAYMENT AND PREPAYMENT 20 9 CONDITIONS PRECEDENT 34 40 REPRESENTATIONS AND WARRANTIES 33 44 GENERAL UNDERTAKINGS
34 12 CORPORATE UNDERTAKINGS 38 43 INSURANCE 29 44 SHIP COVENANTS 32 45 SECURITY COVER 35 46 PAYMENTS AND CALCULATIONS 36 47 APPLICATION
OF RECEIPTS 33 48 APPLICATION OF EARNINGS 38 49 EVENTS OF DEFAULT 39 29 FEES AND EXPENSES 43 34 INDEMNITIES 44 22 NO SET OFF OR
TAX DEDUCTION 46 33 ILLEGALITY, ETC 47 24 INCREASED COSTS 47 35 SET OFF 49 36 TRANSFERS AND CHANGES IN LENDING OFFICES 49 37 VARIATIONS
AND WAIVERS 53 28 NOTICES 54 29 SUPPLEMENTAL 56 30 LAW AND JURISDICTION 56 SCHEDULE 1 LENDERS AND COMMITMENTS 58 SCHEDULE 2 DRAWDOWN
NOTICE 59 SCHEDULE 3 CONDITION PRECEDENT DOCUMENTS €0 SCHEDULE 4 TRANSFER CERTIFICATE 63 schedule 5 mandatory cost 65 EXECUTION
PAGES 68 1 Interpretation 1 2 Facility 12 3 Position of the Lenders 18 4 Drawdown 18 5 Interest 20 6 Interest Periods 22 2 Default
Interest 23 8 Repayment and Prepayment 24 9 Conditions Precedent 26 10 Representations and Warranties 22 11 Financial Covenants
29 12 General Undertakings 31 13 Corporate Undertakings 35
14
Insurance 36 15 Ship Covenants 40 16 Security Cover 44 17 Payments and Calculations 45 18 Application of Receipts 42 19 Application
of Earnings 42 20 Events of Default 42 21 Fees and expenses 53 22 Indemnities 54 23 No Set-Off or Tax Deduction 56 24 Tax Gross
Up and Indemnities 56 25 Illegality, etc 60 26 Increased Costs 61 27 Set-Off 63 28 Transfers and Changes in Lending Offices 63
29 Variations and Waivers 68 30 Bail-In 69 31 Notices 69 32 Confidential Information 71 33 Confidentiality of Funding Rates and
Reference Bank Quotations 75 34 Supplemental 76 35 Law and Jurisdiction 77 Schedules Schedule 1 Lenders and Commitments 78 Schedule
2 Drawdown Notice 79 Schedule 3 Condition Precedent Documents 80 Part A 80 Part B 81 Part C 82 Schedule 4 Transfer Certificate
83 Schedule 5 Form of Certificate of Compliance 85 Execution Execution Pages 87
THIS
AGREEMENT is made on 29 August 2008 (as amended and restated on 31 March 2017) PARTIES BETWEEN (1) LARVOTTO SHIPHOLDING LIMITED
EURONAV NV a company incorporated in Hong Kong Belgium whose registered office is at Room 3206De Gerlachekaai 20, 32nd-FloorB-2000
Antwerp 1, Lippo Centre, Tower Two. No.89 Queensway. Hong Kong Belgium (the "Borrower") (2) THE BANKS AND FINANCIAL
INSTITUTIONS listed in Schedule 1, as Lenders (the "Lenders") I M BNP PARIBAS. as (the "Agent") (2) FORTIS
BANK S.A./N.V,, UK BRANCH, as Load Arranger; (4) FORTIS BANK S.A./N.V., UK BRANCH, as Agent; and Ml BNP PARIBAS. as (the "Security
Trustee") (5) FORTIS BANK S.A./N.V., UK BRANCH, as Security Trustee. BACKGROUND The Lenders have agreed to make available
to the Original Borrower a facility of the lesser of (i) $67,500,000 and (ii) 75 per cent, of the Contract Price for the purpose
of part financing the purchase price of the Ship te-be-constructed by the Builder for, and . The Borrower has purchased the Ship
from the Original Borrower as the borrower under this Agreement. I IT IS AGREED as follows; OPERATIVE PROVISIONS 1 INTERPRETATION
1.1 Definitionst Subject to Clause 1.5, in this Agreement: I Subject to Clause 1.4 (General Interpretation), in this Agreement:
I "Account "Accounts Security Deed" means a deed creating security in respect of over the I Earnings Account in
the Agreed Form "Advance" means the principal amount of each borrowing by the Borrower under this Agreement "Affiliate"
means in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that
Holding Company. "Affected Lender" has the moaning given in Clause 5.7; "Agency and Trust Agreement" means
the agency and trust agreement dated the same date as this Agreement and made between the same parties "Agent" means
Fortis BankS.A./N.V.BNP Paribas. acting in such capacity through its UK Branch with its—office at 5 Aidermanbury Squarel6
rue de Hanovre, London75078 Paris, EC2V THRFrance, or any successor of it appointed under clause 5 of the Agency and Trust Agreement
"Agreed
Form" means in relation to any document, that document in the form approved in writing by the Agent (acting with the instructions
of all the Lenders) and mutually agreed with the Borrower or as otherwise approved in accordance with any other approval procedure
I specified in any relevant provision of any Finance Document "Anti-Corruption Laws" means the England and Wales Bribery
Act 2010. the United States Foreign Corrupt Practices Act 1977 or other applicable anti-corruption legislation in any other jurisdictions.
"Approved Flag" means Greek flag or such other flag as the Agent (acting with the authorisation of all the Lenders)
may approve as the flag on which the Ship shall be registered at delivery "Approved Manager" means Guarantor B Euronav
Ship Management (Hellas) Ltd. or any of its subsidiaries or any other company incorporated by the Borrower with the prior written
consent of the Agent (acting with the authorisations of the Majority Lenders) not to be unreasonably withheld or delayed, "Availability
Period" means the period commencing on the date of this Agreement and ending on: (a) the Final Availability Date; or (b)
if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated I "Bail-In Action" means
the exercise of any Write-down and Conversion Powers. "Bail-In Legislation" means in relation to an EEA Member Country
which has implemented, or which at any time implements. Article 55 of Directive 2014/59/EU establishing a framework for the recovery
and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU
Bail-In Legislation Schedule from time to time. I "Break Costs" means the amount (if any) by which: (a) the interest
which a Lender should have received for the period from the date of receipt of all or any part of its participation in the Loan
or an Unpaid Sum to the last day of the current Interest Period in relation to the Loan, the relevant part of the Loan or that
Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period I exceeds (b) the
amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by
it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt
or recovery and ending on the last day of the current Interest Period. "Brotta Tankers" moans Brotta Tankers Holdings
Inc. a company incorporated in Panama and having its registered office at 16th Floor, 53rd Street, Urbanizacion Marbolla, MMG
Tower, Panama, Republic of Panama; "Builder" means Samsung Heavy Industries Co., Ltd., a company incorporated in the
Republic of Korea whose registered office is at 647-9, Yeoksam-Dong, Kangnam-Gu, Seoul, Korea 135- 080,
"Business
Day" means a day on which banks are open in London, Bromon, Brussels and in Monaco Antwerp and Paris and, in respect of a
day on which a payment is required to be made under a Finance Document, also in New York City "Change of Control" means,
if 2 or more persons acting in concert or any individual person in each case other than the Permitted Holders: (a) acquires legally
and/or beneficially, and either directly or indirectly, in excess of 50 per cent, of the issued share capital or voting rights
of the Borrower: or (b) has the right or the ability to control, either directly or indirectly, the affairs or composition of
the majority of the board of directors (or equivalent) of the Borrower. "Charter" means any time or consecutive voyage
charter in respect of the Ship which exceeds, or which by virtue of any optional extensions may exceed, 36 months in duration
"Charter Assignment" means an assignment of any Charter and any supporting guarantee for a Charter (if any) in the Agreed
Form "Code" means the US Internal Revenue Code of 1986. "Commitment" means, in relation to a Lender, the amount
set opposite its name in Schedule 1 (Lenders and Commitments), or, as the case may require, the amount specified in the relevant
Transfer Certificate, as that amount may be reduced, cancelled or terminated in accordance with this Agreement "Confidential
Information" means all information relating to the Borrower, the Group, the Finance Documents or the Loan of which a Creditor
Party becomes aware in its capacity as, or for the purpose of becoming, a Creditor Party or which is received bv a Creditor Party
in relation to, or for the purpose of becoming a Creditor Party under, the Finance Documents or the Loan from either: (a) any
member of the Group or any of its advisers: or (b) another Creditor Party, if the information was obtained by that Creditor Party
directly or indirectly from any member of the Group or any of its advisers, in whatever form, and includes information given orally
and any document, electronic file or any other way of representing or recording information which contains or is derived or copied
from such information but excludes: j) information that: (A) is or becomes public information other than as a direct or indirect
result of any breach by that Creditor Party of Clause 32 (Confidential Information); or (B) is identified in writing at the time
of delivery as non-confidential by any member of the Group or any of its advisers: or (C) is known by that Creditor Party before
the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Creditor
Party after that date, from a source which is, as far as that Creditor Party is aware, unconnected with the Group and which, in
either case, as far as that Creditor Party is aware, has not been obtained in breach of, and is not otherwise subject to, any
obligation of confidentiality; and
(ii)
any Funding Rate or Reference Bank Quotation. "Confidentiality Undertaking" means a confidentiality undertaking in substantially
the appropriate form recommended bv the LMA from time to time or in any other form agreed between the Borrower and the Agent.
"Contract Price" means the contract price payable paid by the Original Borrower to the Builder under the Shipbuilding
Contract which, at the date of this Agreement. is as of 29 August 2008 was $90.750.0007. "Contractual Currency" has
the meaning given in Clause 22.4 (Currency indemnity). "Contribution" means, in relation to a Lender, the part of the
Loan which is owing to that Lender "Counter Guarantee" moans the counter guarantee of the Counter Guarantor in the Agreed
Form; "Counter Guarantor" moans the company nominated by the Borrower and accepted by the Agent (acting with the authority
of the Lenders) in the Supplemental Letter to this Agreement as the company to provide the Counter Guarantee; "Creditor Party"
means the Agent, the Security Trustee, the Load Arranger =or any Lender, whether as at the date of this Agreement or at any later
time*, "Dollars" and "$" means the lawful currency for the time being of the United States of America "Drawdown
Date" means, in relation to each Advance, the date requested by the Borrower for the Advance to be made, or (as the context
requires) the date on which the Advance is actually made** "Drawdown Notice" means a notice in the form set out in Schedule
2 (Drawdown Notice) (or in any other form which the Agent approves or reasonably requires) "Earnings" means all moneys
whatsoever which are now, or later become, payable (actually or contingently) to the Borrower or the Security Trustee and which
arise out of the use or operation of the Ship, including (but not limited to): (a) except to the extent that they fall within
paragraph (b); (i) all freight, hire and passage moneys; (ii) compensation payable to the Borrower or the Security Trustee in
the event of requisition of the Ship for hire; (iii) remuneration for salvage and towage services; (iv) demurrage and detention
moneys; (v) damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment
of the Ship; and (vi) all moneys which are at any time payable under any Insurances in respect of any loss; and (b) (if and whenever
the Ship is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other
person, that proportion
of
the net receipts of the relevant pooling or sharing arrangement which is attributable to the Ship** "Earnings Account"
means an account in the name of the Borrower with the Agent in London BNP Paribas Fortis SA/NV in Belgium designated "Larvotto
Euronav- Earnings Account", or any other account (with that or another office of the Agent or with a bank or financial institution
other than the Agent) which is designated by the Agent as the Earnings Account for the purposes of this Agreement "Environmental
Claim" means: (a) any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident
or an alleged Environmental Incident or which relates to any Environmental Law; or (b) any claim by any other person which relates
to an Environmental Incident or to an alleged Environmental Incident, and "claim" means a claim for damages, compensation,
fines, penalties or any other payment of any kind whether or not similar to the foregoing; an order or direction to take, or not
to take, certain action or to desist from or suspend certain action; and any form of enforcement or regulatory action, including
the arrest or attachment of any assets "Environmental Incident" means: (a) any release of Environmentally Sensitive
Material from the Ship; or (b) any incident in which Environmentally Sensitive Material is released from a vessel other than the
Ship and which involves a collision between the Ship and such other vessel or some other incident of navigation or operation,
in either case, in connection with which the Ship is actually or reasonably likely to be arrested, attached, detained or injuncted
and/or the Ship and/or the Borrower and/or any operator or manager of the Ship is at fault or allegedly at fault or otherwise
liable to any legal or administrative action; or (c) any other incident in which Environmentally Sensitive Material is released
otherwise than from the Ship and in connection with which the Ship is actually or reasonably likely to be arrested and/or where
the Borrower and/or any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable to any legal or
administrative action "Environmental Law" means any law relating to pollution or protection of the environment, to the
carriage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material?, "Environmentally
Sensitive Material" means oil, oil products and any other substance (including any chemical, gas or other hazardous or noxious
substance) which is (or is capable of being or becoming) polluting, toxic or hazardous, "EU Bail-in Legislation Schedule"
means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
"Euronav Hong Kong" moons Euronav Hong Kong Limited, a company incorporated in Hong Kong and having its registered office
at Room 3206,32nd Floor, Lippo Centre, Tower Two, No* 89 Queensway, Hong Kong; "Event of Default" means any of the events
or circumstances described in Clause 19.1;20.1 (Events of Default).
"Facility
Office" means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender
(or, following that date, by not less than 5 Business Days' written notice) as the office or offices through which it will perform
its obligations under this Agreement. "FATCA" means: (a) sections 1471 to 1474 of the Code or any associated regulations;
(b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and
any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph
(a) above; or (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a)
or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
"FATCA Application Date" means: (a) in relation to a "withholdable payment" described in section 1473(l)(A)(i)
of the Code (which relates to payments of interest and certain other payments from sources within the US). 1 July 2014: (b) in
relation to a "withholdable payment" described in section 1473(l)(A)(ii) of the Code (which relates to "gross proceeds"
from the disposition of property of a type that can produce interest from sources within the US). 1 January 2019: or (c) in relation
to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above,
1 January 2019, or, in each case, such other date from which such payment may become subject to a deduction or withholding required
bv FATCA as a result of any change in FATCA after the date of this Agreement. "FATCA Deduction" means a deduction or
withholding from a payment under a Finance Document required by FATCA. "FATCA Exempt Party" means a Party that is entitled
to receive payments free from any FATCA Deduction. "Fee Letter" means any letter or letters dated on or about the dote
of this Agreement between the Load Arranger and the Borrower (or the Agent and the Borrower setting out any of the fees referred
to in Clause 30-21 (Fees and expenses "Final Availability Date" means 12 January 2012: "Final Availability Date"—moans
30 November 2011 and in the event of arbitration proceedings in connection with the Shipbuilding Contract, with the prior consent
of the Agent (with the authorisation of the Majority Lenders) which is not to bo unreasonably withhold or delayed, the day falling
365 days after the commoncomont of such arbitration (if later than 30 November 2011) or such later dato as the Agent (with the
authorisation of the Majority Lenders) may agroo in writing Provided that any such extension shall not extend beyond the expiry
of the Refund Guarantee; "Finance Documents" means: (a) this Agreement;
(b)
the Agency and Trust Agreement; (e) the Guarantees; (d) the Predelivery Seourity Assignment; (c) the General Assignment; (d) the
Charter Assignment (if any); (g)the Mortgage; (f)the Account Accounts Security Deed; (i) the Counter Guarantee; the Negative Pledge;
(g) (k)the any Fee Letter; (h) (l)any Transfer Certificate; (m) the Supplemental Letter; (j) any other document (whether creating
a Security Interest or not) which is executed at any time by the Borrower or any other person as security for, or to establish
any form of subordination or priorities arrangement in relation to, any amount payable to the Lenders under this Agreement and/or
any of the other documents referred to in this definition; and (j) any other document designated as such by the Agent and the
Borrower, "Financial Indebtedness" means, in relation to a person (the "debtor"), a liability of the debtor:
(a) for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor; (b) under any
loan stock, bond, note or other security issued by the debtor; (c) under any acceptance credit, guarantee or letter of credit
facility or dematerialised equivalent made available to the debtor; (d) under a financial lease, a deferred purchase consideration
arrangement or any other agreement having the commercial effect of a borrowing or raising of money by the debtor; (e) under any
foreign exchange transaction, any interest or currency swap or any other kind of derivative transaction entered into by the debtor
or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of
the debtor for the net amount; or (f) under a guarantee, indemnity or similar obligation entered into by the debtor in respect
of a liability of another person which would fall within paragraphs (a) to (e) if the references to the debtor referred to the
other person "Funding Rate" means any individual rate notified bv a Lender to the Facility Agent pursuant to sub-paragraph
(ii) of paragraph (a) of Clause 5.12 (Cost of funds).
"General
Assignment" means a general assignment of the Earnings, the Insurances and any Requisition Compensation in the Agreed Form*,
"Group" means the Borrower and its Subsidiaries for the time being. "Holding Company" means in relation to
a person, any other person in respect of which it is a Subsidiary. "Guarantee A" moans a guarantee of Guarantor A in
the Agreed Form; "Guarantee B" moans a guarantee of Guarantor B in the Agreed Form; "Guarantees" moans, together,
Guarantee A and Guarantee B; "Guarantor A" moans J.M. Maritime Invostmonts Inc., a company incorporated in Panama whose
registered office is at Hong Kong Bank Building, 6th Floor, Samuol Lowis Avonuo, Panama City, Republic of Panama; "Guarantor
B" moans Euronav NV, a company incorporated in Belgium whoso registered office is at do Gorlachokoai 20, B 2000 Antwerp,
Belgium; "Guarantors" moans, together, Guarantor A and Guarantor B; "IFRS" means international accounting
standards within the meaning of the IAS Regulations 1606/2002 to the extent applicable to the relevant financial statements**
"Increased Amount" has the meaning given to that term in Clause 2Af2.5 (Increase of Loan). "Insurances" means:
(a) all policies and contracts of insurance, including entries of the Ship in any protection and indemnity or war risks association,
which are effected in respect of the Ship, her Earnings or otherwise in relation to her; and (b) all rights and other assets relating
to, or derived from, any of the foregoing, including any rights to a return of a premium** "Interest Period" means a
period determined in accordance with Clause 6 Interest Periods). "Interpolated Screen Rate" means, in relation to the
Loan or any part of the Loan, the rate which results from interpolating on a linear basis between: (a) the applicable Screen Rate
for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan or that part
of the Loan: and (b) the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds
the Interest Period of the Loan or that part of the Loan- each as of the Specified Time for dollars. "ISM Code" means
the International Safety Management Code (including the guidelines on its implementation), adopted by the International Maritime
Organisation, as the same may be amended or supplemented from time to time (and the terms "safety management system",
"Safety Management Certificate" and "Document of Compliance" have the same meanings as are given to them in
the ISM Code)*.
"ISPS
Code" means the International Ship and Port Facility Security Code as adopted by the International Maritime Organisation,
as the same may be amended or supplemented from time to timet "ISSC" means a valid and current International Ship Security
Certificate issued under the ISPS Codef, "Lender" means a bank or financial institution listed in Schedule 1 (Lenders
and Commitments) and acting through its branch indicated in Schedule 1 (Lenders and Commitments) (or through another branch notified
to the Borrower under Clause 26.1428.14 (Change of lending office) or its transferee, successor or assign, which in each case
has not ceased to be a party in accordance with the terms of this Agreement?* "LIBOR" means, for an Intorost Poriod:in
relation to the Loan or any part of the Loan: (a) the applicable Screen Rate as of the Specified Time for dollars and for a period
equal in length to the Interest Period of the Loan or that part of the Loan: or (b) as otherwise determined pursuant to Clause
5.5 (Unavailability of Screen Rate), and if. in either case, that rate is less than zero. LIBOR shall be deemed to be zero. "LMA"
means the Loan Market Association. (a)—the rate per annum equal to the offered quotation for deposits in Dollars for a period
equal to, or as near as possiblo oqual to, the relevant Interest Period whioh appears on Reuters BBA Page LIBOR 01 at or about
11.00 a.m. (London time) on the Quotation Date for that Intorost Period (and, for the purposes of this Agreement, "Reuters
BBA Page LIBOR 01" moans the display designated as "Page 01" on the Routers Money News Servioo or such other page
as may replace Pago 01 on that service for the purpose of displaying rates eomparablo to that rate or on suoh othor servioo as
may be nominatod by the British Bankers' Association as the information vendor for the purpose of displaying the British Bankers'
Association Interest Settlement Rates for Dollars); (b)if no rate is quoted on REUTERS BBA Page LIBOR 01, the rate per annum determined
by the Agent to be the arithmetic mean (rounded upwards to 4 decimal places) of the rates, as supplied to the Agent at its request,
quoted by each Reference Bank to leading banks in the London Interbank Market as of 11 a.m. (London time) on the Quotation Date
for that period for the offering of deposits in the relevant currency and for a period oomparable to that period; "Loan"
means a loan made or to be made under this Agreement or the principal amount for the time being outstanding under this Agreement?*
"Major Casualty" means any casualty to the Ship in respect of which the claim or the aggregate of the claims against
all insurers, before adjustment for any relevant franchise or deductible exceeds $5,000,000 or the equivalent in any other currency**
"Majority Lenders" means: (a) before any Advance has been made, Lender or Lenders whose Commitments total more than
66.66 per cent, of the Total Commitments; and (b) at any other time, Lender or Lenders whose Contributions in the Loan outstanding
total more than 66.66 per cent, of all the Loan then outstanding?*
Provided
that, for the avoidance of doubt, whilst Fortis Bank S.A./N.V., UK Branch and Doutscho Schiffsbank Aktiongosollschaft each hold
50 por cont. of the Total Commitmonts Majority Lenders shall moan both Fortis Bank S.A./N.V., UK Branch and Doutscho Schiffsbank
Aktiongosollschaft; "Mandatory Cost" moans the percentage rate, which roprosonts the cost to the Lenders, relative to
the Loan, of compliance with the requirements of the Bank of England, the Financial Services Authority or any other regulatory
authority, as determined by the Agent in accordance with the formula detailed in Schedule 5; "Margin" moans 1.15 "Margin"
means 1.5 per cent, per annum "Market Disruption Event" has the moaning given to that term in Clause 5.7(b); "Maturity
Date" means the earlier of the date falling 96 months after (i) the date of the delivery of the Ship to the Borrower and
(ii) 30 November 2011;'! January 2020. "Mortgage" means the first preferred Greek ship mortgage or the first priority
statutory ship mortgage or first preferred ship mortgage and, if applicable, collateral deed of covenant in the form appropriate
for the flag of the Ship in the event that the Approved Flag is not Greek flag in the Agreed Form "Negative Pledge"
moans the negative pledge in relation to the shares of the Borrower to bo oxocutod by the Shareholders in favour of the Security
Trustee in the Agreed Form; "Negotiation Period" has the moaning given in Clause 5.9; "Notifying Lender" has
the meaning given in Clause 23-A-25.1 (Illegality) or Clause 24.1 26.1 (Increased costs) as the context requires "Original
Borrower" means Larvotto Shipholding Limited, a company incorporated in Hong Kong whose registered office is at Room 2503-05.
25th Floor. Harcourt House. No.39 Gloucester Road. Wanchai. Hong Kong. "Participating Member State" means any member
state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating
to Economic and Monetary Union. "Payment Currency" has the meaning given in Clause 34
t
4*22.4
(Currency indemnity). "Permitted Holders" means each of Saverco and Victrix (and (in each case) any parallel vehicle
thereof and their respective alternative investment vehicles) and their affiliates. "Permitted Security Interests" means:
(a) Security Interests created by the Finance Documents; (b) liens for unpaid master's and crew's wages in accordance with usual
maritime practice; (c) liens for salvage; (d) liens arising by operation of law for not more than 2 months' prepaid hire under
any charter in relation to the Ship not prohibited by this Agreement; (e) liens for master's disbursements incurred in the ordinary
course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair
or maintenance of the Ship or in the ordinary course of business of the Borrower, provided such liens do not secure amounts more
than 30 days overdue
(unless
the overdue amount is being contested by the Borrower in good faith by appropriate steps) and subject, in the case of liens for
repair or maintenance, to paragraph (f) of Clause 44r42(#15.13 (Restrictions on chartering, appointment of managers); (f) any
Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses
where the Borrower is actively prosecuting or defending such proceedings or arbitration in good faith; and (g) Security Interests
arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good
faith by appropriate steps and in respect of which appropriate reserves have been made** "Pertinent Document" means:
(a) any Finance Document; (b) any policy or contract of insurance contemplated by or referred to in Clause 43-14 (Insurance) or
any other provision of this Agreement or another Finance Document; (c) any other document contemplated by or referred to in any
Finance Document; and (d) any document which has been or is at any time sent by or to a Servicing Bank in contemplation of or
in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c)f. "Pertinent
Jurisdiction", in relation to a company, means: (a) England and Wales; (b) the country under the laws of which the company
is incorporated or formed; (c) a country in which the company has the centre of its main interests or in which the company's central
management and control is or has recently been exercised; (d) a country in which the overall net income of the company is subject
to corporation tax, income tax or any similar tax; (e) a country in which assets of the company (other than securities issued
by, or loans to, related companies) having a substantial value are situated, in which the company maintains a branch or permanent
place of business, or in which a Security Interest created by the company must or should be registered in order to ensure its
validity or priority; and (f) a country the courts of which have jurisdiction to make a winding up, administration or similar
order in relation to the company, whether as main or territorial or ancillary proceedings or which would have such jurisdiction
if their assistance were requested by the courts of a country referred to in paragraphs (b) or (c) above*. "Pertinent Matter"
means: (a) any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document; or (b) any statement
relating to a Pertinent Document or to a transaction or matter falling within paragraph (a);
and
covers any such transaction, matter or statement, whether entered into, arising or made at any time before the signing of this
Agreement or on or at any time after that signingf* "Potential Event of Default" means an event or circumstance which,
with the giving of any notice, the lapse of time, a reasonable determination of the Majority Lenders and/or the satisfaction of
any other condition, would constitute an Event of Default** "Predelivery Security Assignment"—moans an assignment
in the Agreed Form of the Shipbuilding Contract, the Refund Guarantee and the Supervision Agreement; "Quotation PateDay"
means, in relation to any Intorost Period (or any othor period for which an interest rate is to be determined under any provision
of a Finance Document), the day on which quotations would ordinarily bo given by loading banks in the London Interbank Market
for deposits in the currency in relation to which such rate is to bo determined for delivery on . two Business Days before the
first day of that Intorost Period or othor poriod;period unless market practice differs in the Relevant Interbank Market in which
case the Quotation Day will be determined bv the Agent in accordance with market practice in the Relevant Interbank Market (and
if quotations would normally be given bv leading banks in the Relevant Interbank Market on more than one dayp the Quotation Day
will be the last of those days). "Reference Banks" means, subject to Clause 2&4628.16 (Replacement of Reference
Bank), the London branches of each of the Lenders or such other banks as may be appointed by the Agent in consultation with the
Borrower** "Reference Bank Quotation" means any quotation supplied to the Agent by a Reference Bank. "Reference
Bank Rate" means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its
request bv the Reference Banks: (a) (other than where paragraph (b) below applies) as the rate at which the relevant Reference
Bank could borrow funds in the London interbank market in dollars for the relevant period were it to do so bv asking for and then
accepting interbank offers for deposits in reasonable market size in that currency and for that period: or (b) if different, as
the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen
Rate are asked to submit to the relevant administrator. "Related Fund" in relation to a fund (the "first fund"),
means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed
by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate
of the investment manager or investment adviser of the first fund. "Refund Guarantee" moans the guarantee dated 2 Juno
2008 issued by the Refund Guarantor in favour of the Borrower under the Shipbuilding Contract; "Rofund Guarantor" moans
Korea Development Bank of 16 3 Yoouida Dong, Yoongdoungpo gu, Seoul, Koroa; "Relevant Interbank Market" means the London
Interbank Market** "Relevant PefsenLender" has the meaning given in Clause J9Sf5.7 (Market disruption). "Relevant
Person" means: (a) the Borrower:
(b)
each subsidiary of the Borrower; and (c) all respective directors, officers, employees, agents and representatives of each of
the persons mentioned in paragraphs (a) to fb) above. "Repayment Date" means a date on which a repayment is required
to be made under Clause 8 Repayment and Prepayment). "Representative" means any delegate, agent, manager, administrator,
nominee, attorney, trustee or custodian. "Requisition Compensation" includes all compensation or other moneys payable
by reason of any act or event such as is referred to in paragraph (b) of the definition of "Total Loss"?, "Resolution
Authority" means any body which has authority to exercise any Write-down and Conversion Powers. "Restricted Party"
means a person: (a) that is listed on any Sanctions List (whether designated by name or by reason of being included in a class
of person): (b) that is domiciled, registered as located or having its main place of business in. or is incorporated under the
laws of, a country which is subject to Sanctions Laws which attach legal effect to being domiciled, registered as located or having
its main place of business in such country: or (c) that is directly or indirectly owned or controlled by a person referred to
in paragraph (a) and/or (b) above: or (d) with which any member of the Group is prohibited from dealing or otherwise engaging
in a transaction with bv any Sanctions Laws: "Sanctions Authority" means the United Nations, the United Kingdom, the
European Union, the member states of the European Union, the United States of America, and any authority acting on behalf of any
of them in connection with Sanctions Laws. "Sanctions Laws" means the economic or financial sanctions laws and/or regulations,
trade embargoes, prohibitions, restrictive measures, decisions, executive orders or notices from regulators implemented, adapted,
imposed, administered, enacted and/or enforced by any Sanctions Authority. "Sanctions List" means any list of persons
or entities published in connection with Sanctions Laws by or on behalf of any Sanctions Authority as amended, revised, supplemented
or substituted from time to time. "Saverco" means Saverco NV. a company incorporated in Belgium whose registered office
is at de Gerlachekaai 20. B-2000 Antwerp. Belgium. "Screen Rate" means the London interbank offered rate administered
bv ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for dollars for
the relevant period displayed (before any correction, recalculation or republication by the administrator) on page LIBOR01 or
LIBOR02 of the Thomas Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate
page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or
service ceases to be available, the Agent mav specify another page or service displaying the relevant rate after consultation
with the Borrower.
"Secured
Liabilities" means all monies from time to time due or owing, and all obligations and other actual or contingent liabilities
incurred by the Borrower, the Security Parties or any of them to any Creditor Party, at the date of this Agreement or at any later
time or times, in whatever currency, whether due, owing or incurred alone or jointly with others or as principal, surety or otherwise
under or in connection with any Finance Document or any judgment relating to any Finance Document; and for this purpose, there
shall be disregarded any total or partial discharge of these liabilities, or variation of their terms, which is effected by, or
in connection with, any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country** "Security
Interest" means: (a) a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security
interest of any kind; (b) the security rights of a plaintiff under an action in rem; and (c) any arrangement entered into by a
person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position
in which B would have been had he held a security interest over an asset of A; but this paragraph (c) does not apply to a right
of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution** "Security
Party" means the Guarantors, the Counter Guarantor, each Shareholder and any e*fref-any_person (except the Borrower or a
Creditor Party) who, as a surety or mortgagor, as a party to any subordination or priorities arrangement, or in any similar capacity,
executes a document falling within the definition of "Finance Documents"** "Security Period" means the period
commencing on the date of this Agreement and ending on the date on which the Agent notifies the Borrower, the Security Parties
and the Creditor Parties that: (a) all amounts which have become due for payment by the Borrower or any Security Party under the
Finance Documents have been paid; (b) no amount is owing or has accrued (without yet having become due for payment) under any
Finance Document; (c) neither the Borrower nor any Security Party has any future or contingent liability under Clause 20. 21 or
22 21 (Fees and expenses). 22 (indemnities) or 23 (No Set-Off or Tax Deduction) or any other provision of this Agreement or another
Finance Document; and (d) the Agent, the Security Trustee and the Majority Lenders do not consider that there is a significant
risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in
any present or possible future bankruptcy of the Borrower or a Security Party or in any present or possible future proceeding
relating to a Finance Document or any asset covered (or previously covered) by a Security Interest created by a Finance Document**
"Security Trustee" means Fortis Bank S.A./N.V.BNP Paribas. acting in such capacity through its UK Branch with its office
at 5 Aldormanbury Squarel6 rue de Hanovre, <=ef>def>75078 Paris, EC2V 7HRFrance, or any successor of it appointed under
clause 5 of the Agency and Trust Agreement** "Servicing Bank" means the Agent or the Security Trustee** "Shareholders"
means Bretta Tankers and Euronav Hong Kong;
"Ship"
means the Suezmax tanker with hull no. 1860 of-158,000 dwt which is to bo constructod by the Buildor for, and purchased by, the
Borrower undor the Shipbuilding Contract and upon delivery 157.523 dwt named m.t. "MARIA" registered in the name of
the Borrower under an Approved Flag** "Shipbuilding Contract" means the Shipbuilding Contract dated 18 April 2008 made
between the Builder and the Original Borrower for the construction by the Builder of the Ship and its purchase by the Borrower
as supplemented and amended from time to time* "Supervision Agreement"—moans the agroomont doted 23 June 2008
in rospoct of the supervision of the construction of the Ship between the Supervisor and the Borrower; "Supervisor"
means Guarantor B or any of its subsidiaries with the prior written consent of the Agent (acting with the authorisation of the
Majority Lenders) not to bo unreasonably withhold or delayed; "Supplemental—Letter"—moans tho—supplemental—letter
to—this Agreement—dated 2008 and made between the Agent, the Borrower and the Counter Guarantor; "Specified Time"
means a dav or time determined as follows: LIBOR is fixed Quotation Day as of 11.00 am London time Reference Bank Rate calculated
bv reference to Noon on the Quotation Dav available quota.tiojis_in_accordance with .Clause 5.6jCalculation of Reference Bank
Rate) "Subsidiary" means any company or entity directly or indirectly controlled by that person (for which purpose,
control means either the ownership of more than 50 per cent of the voting share capital for equivalent right of ownership) of
that company or entity, or the power to direct its policies and management, whether by contract or otherwise; and for the purposes
of this Agreement, a company is to be treated as a subsidiary even if the relevant shares are registered in the name of (a) a
nominee, or (b) any party holding security over those shares, or that secured party's nominee). "Tax" means any tax,
levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection
with any failure to pav or any delay in paying any of the same). "Total Commitments" means the aggregate of the Commitments
of all the Lenders being the lesserofji) $67,500,000 and (ii) 75 per cent, of the Contract Price at the date of this Agreement
29 August 2008 plus any increase to the Commitments made pursuant to Clause 2r4f2.5 (Increase of Loan). "Total Loss"
means: (a) actual, constructive, compromised, agreed or arranged total loss of the Ship; (b) any expropriation, confiscation,
requisition or acquiJition of the Ship, whether for full consideration, a consideration less than its proper value, a nominal
consideration or without any consideration, which is effected by any government or official authority or by any person or persons
claiming to be or to represent a government or official aJthority (excluding a requisition for hire for a fixed period not exceeding
1 year without any right to an extension) unless it is within 3 months redelivered to the BDrrower's full control; and
(c)
any arrest, capture, seizure or detention of the Ship (including any hijacking or theft) unless it is within 3 months redelivered
to the Borrower's full control "Total Loss Date" means: (a) in the case of an actual loss of the Ship, the date on which
it occurred or, if that is unknown, the date when the Ship was last heard of; (b) in the case of a constructive, compromised,
agreed or arranged total loss of the Ship, the earliest of: (i) the date on which a notice of abandonment is given to the insurers;
and (ii) the date of any compromise, arrangement or agreement made by or on behalf of the Borrower with the Ship's insurers in
which the insurers agree to treat the Ship as a total loss; and (c) in the case of any other type of total loss, on the date (or
the most likely date) on which it appears to the Agent that the event constituting the total loss occurred** "Transfer Certificate"
has the meaning given in Clause 26.2; and28.2 (Transfer bv a Lender). "Trust Property" has the meaning given in clause
3.1 of the Agency and Trust Agreement. "Unpaid Sum" means any sum due and payable but unpaid by the Borrower under the
Finance Documents. "VAT" means: (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on
the common system of value added tax (EC Directive 2006/112): and (b) any other tax of a similar nature, whether imposed in a
member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above,
or imposed elsewhere. "Victrix" means Victrix NV, a company incorporated in Belgium whose registered office is at Le
Grellelei 20. 2600 Berchem. Belgium. "Write-down and Conversion Powers" means: (a) in relation to any Bail-In Legislation
described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation
in the EU Bail-In Legislation Schedule ; and (b) in relation to any other applicable Bail-In Legislation: Hi any powers under
that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial
institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form
of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that
liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument
is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of
the powers under that Bail-In Legislation that are related to or ancillary to any of those powers: and
(ii)
any similar or analogous powers under that Bail-In Legislation. 1.2 Construction of certain termsr In this Agreement: In this
Agreement (unless a contrary indication appears): "administration notice" means a notice appointing an administrator,
a notice of intended appointment and any other notice which is required by law (generally or in the case concerned) to be filed
with the court or given to a person prior to, or in connection with, the appointment of an administrator** the "Agent",
the "Borrower", any "Creditor Party", any "Lender", any "Party", any "Secured Party",
the "Security Trustee" or any other person shall be construed so as to include its successors in title, permitted assigns
and permitted transferees to. or of. its rights and/or obligations under the Finance Documents (including, for the avoidance of
doubt, any novatee of rights and/or obligations under a Hedging Agreement). "approved" means, for the purposes of Clause
4314 (Insurance), approved in writing by the Agents "asset" includes every kind of property, asset, interest or right,
including any present, future or contingent right to any revenues or other payments "company" includes any partnership,
joint venture and unincorporated association** "consent" includes an authorisation, consent, approval, resolution, licence,
exemption, filing, registration, notarisation and legalisation** "contingent liability" means a liability which is not
certain to arise and/orthe amount of which remains unascertained** "continuing" means, in relation to any Event of Default,
the Event of Default has not been remedied to the satisfaction of, or waived by the Majority Lenders** "document" includes
a deed; also a letter or fax** "excess risks" means the proportion of claims for general average, salvage and salvage
charges not recoverable under the hull and machinery policies in respect of the Ship in consequence of its insured value being
less than the value at which the Ship is assessed for the purpose of such claims** "expense" means any kind of cost,
charge or expense (including all legal costs, charges and expenses) and any applicable value added or other tax** "indebtedness"
includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or
future, actual or contingent. "law" includes any order or decree, any form of delegated legislation, any treaty or international
convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations
or its Security Council** "legal or administrative action" means any legal proceeding or arbitration and any administrative
or regulatory action or investigation** "liability" includes every kind of debt or liability (present or future, certain
or contingent), whether incurred as principal or surety or otherwise** "months" shall be construed in accordance with
Clause 1.3 ilMeanina of "month").
"obligatory
insurances" means all insurances effected, or which the Borrower is obliged to effect, under Clause 43-14 (Insurance) or
any other provision of this Agreement or another Finance Document "person" includes any individual, firm, company, corporation,
government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether
or not having separate legal personality). "paront company" has the moaning givon in Clause 1A; "person"—includes
any company; any state, political sub division of a state and local or municipal authority; and any international organisation;
"policy", in relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing
the contract of insurance or its terms** "protection and indemnity risks" means the usual risks covered by a protection
and indemnity association managed in London, including pollution risks and the 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 in them of clause 6 of the International Hull Clauses (1/11/02-0 1/11/03), clause 8 of the Institute Time Clauses
(Hulls) (1/11/1995) or clause 8 of the Institute Time Clauses (Hulls) (1/10/83) (1/11/95) or the Institute Amended Running Down
Clause (1/10/71) or any equivalent provision** "regulation" includes any regulation, rule, official directive, request
or guideline whether or not having the force of law of any governmental, intergovernmental or supranational body, agency, department
or regulatory, self-regulatory or other authority or organisation** "subsidiary" has the moaning given in Clause 1A;
"tax" includes any prosont or future tax, duty, impost, lovy or charge of any kind which is imposed by any state, any
political sub division of a stato or any local or municipal authority (including any such imposed in connection with exchange
controls), and any connected penalty, interest or fine; and "war risks" includes the risk of mines and all risks excluded
by clause 29 of the International Hull Clauses (1/11/02 or 1/11/03J-op- clause 24 of the Institute Time Clauses (Hulls)J 1/11/95)
or clause 23 of the Institute Time Clauses (Hulls)-( 1/10/83). 1.3 Meaning of "month"* A.3A period of one or more "months"
ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period
started ("the numerically corresponding day"), but: (a) on the Business Day following the numerically corresponding
day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month,
on the Business Day preceding the numerically corresponding day; or (b) on the last Business Day in the relevant calendar month,
if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically
corresponding day, and "month" and "monthly" shall be construed accordingly.
4*4
Meaning of "subsidiary". A company (S) is a subsidiary of another company (P) m (a) a majority of the issued shares
in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly owned
by P or ore indirectly attributable to P; or (b) P has direct or indirect control over a majority of the voting rights attaching
to the issued shares of S; or (€) P has the direct or indirect power to appoint or remove a majority of the directors of
S; or (4) P otherwise has the direct or indirect power to ensure that the affairs of S are conducted in accordance with the wishes
of P; and any company of which S is a subsidiary is a parent company of S. 1.4 irSGeneral Interpretation In this Agreement: (a)
references to, or to a provision of, a Finance Document or any other document are references to it as amended or supplemented,
whether before the date of this Agreement or otherwise; (b) references to, or to a provision of, any law include any amendment,
extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise; (c) words denoting the singular
number shall include the plural and vice versa;aod (d) "including" and "in particular" (and other similar
expressions) shall be construed as not limiting any general words or expressions in connection with which thev are used: (e) a
Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing"
if it has not been remedied or waived: and (Clauses 1.1 (Definitions) to 1.4 (General Interpretation) apply unless the contrary
intention appears. 1.5 Headings li6HoadingSi In interpreting a Finance Document or any provision of a Finance Document, all clause,
sub-clause and other headings in that and any other Finance Document shall be entirely disregarded. 2 FACILITY 2.1 Amount of facility
2ilAmount of facility! Subject to the other provisions of this Agreement, the Lenders shall make-madfi available to the Original
Borrower a term loan facility in an aggregate amount equal to the Total Commitments to enable the Original Borrower to finance
its acquisition of the Ship by 5 Advances as follows: (a) a first Advance of up to $13,500,000 to enable the Original Borrower
to refinance the first predelivery instalment of the Contract Price under the Shipbuilding Contract paid to the Builder upon signing
of the Shipbuilding Contract;
(b)
a second Advance of up to $6,750,000 to enable the Original Borrower to meet the second pre-delivery instalment of the Contract
Price under the Shipbuilding Contract to bo paid to the Builder on the date falling twelve calendar months after the date of the
Shipbuilding Contract; (c) a third Advance of up to $6,750,000 to enable the Original Borrower to meet the third predelivery instalment
of the Contract Price under the Shipbuilding Contract to bo paid to the Builder upon keel laying; (d) a fourth Advance of up to
$6,750,000 to enable the Original Borrower to meet the fourth predelivery instalment of the Contract Price under the Shipbuilding
Contract to be paid to the Builder upon launching; (e) a fifth Advance of up to $33,750,000 to enable the Original Borrower to
meet the final instalment of the Contract Price under the Shipbuilding Contract to be paid to the Builder upon delivery of the
Ship. 2.2 Lenders' participations in LoanT Subject to the other provisions of this Agreement, each Lender shall participate in
each Advance in the proportion which, as at the relevant Drawdown Date, its Commitment bears to the Total Commitments. No Creditor
Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement. 2.3 Transfer of Loan The
Loan was transferred from the Original Borrower to the Borrower pursuant to an agreement dated the same date as this Agreement
was amended and restated and entered into between the Original Borrower and the Borrower. This transfer was approved bv the Creditor
Parties. 2.4 iriPurpose of LoanT The Borrower undertakes with each Creditor Party to use each Advance only for the purpose stated
in the preamble to this Agreement. 2.5 Increase of Loan 2i<1 Increase of Loani All the Lenders agree that they may increase
the amount of the Loan by an additional amount of $10,000,000 (the "Increased Amount") if requested to do so by the
Borrower subject to the following conditions: (a) the Borrower providing evidence that the Ship is on charter on terms, and to
a charterer, in each case acceptable to all the Lenders in their absolute discretion (which terms shall include without limitation
a daily hire rate which the Lenders are satisfied shall be sufficient to cover the operating expenses of the Ship, the repayments
of principal and interest under this Agreement and the increased repayments of principal and interest under this Agreement that
will result from an increase of the Loan by the Increased Amount); and (b) the Lenders and the Borrower agreeing the terms and
conditions of such increase including, but not limited to, amended pricing, repayment and the entry into documentation satisfactory
to the Lenders so as to amend this Agreement and the other Finance Documents so as to secure the Increase Amount of the Loan and
to provide new security to the extent required by the Lenders so as to maintain the same security for the Lenders.
3
POSITION OF THE LENDERS 3.1 Interests of Lenders several* The rights of the Lenders under this Agreement are several. 3.2 Individual
Lender's right of actioni Subject to Clause 3.3 3*3Subiect to Clause 3.3 (Proceedings bv individual Lender requiring Majority
Lender consent). each Lender shall be entitled to sue for any amount which has become due and payable by the Borrower to it under
this Agreement without joining the Agent, the Security Trustee or any other Lender as additional parties in the proceedings. 3.3
Proceedings by individual Lender requiring Majority Lender consent* No Lender may commence proceedings against the Borrower or
any Security Party in connection with a Finance Document without the prior consent of the Majority Lenders. 3.4 Obligations of
Lenders several* The obligations of the Lenders under this Agreement are several; and a failure of a Lender to perform its obligations
under this Agreement shall not result in: (a) the obligations of the other Lenders being increased; nor (b) the Borrower, any
Security Party or any other Lender being discharged (in whole or in part) from its obligations under any Finance Document, and
in no circumstances shall a Lender have any responsibility for a failure of another Lender to perform its obligations under this
Agreement. 4 DRAWDOWN 4.1 Request for Advance 4.1Roquest for Advance. Subject to the following conditions, the Original Borrower
may request requested an Advance to be made by ensuring that the Agent receives received a completed Drawdown Notice not later
than 11.00 a.m. (London time) 3 Business Days prior to the intended Drawdown Date or such shorter period as the Agent and the
Borrower mutually agrooaereed. 4.2 Availability* 4*3The conditions referred to in Clause 4.1 afe-(Request for Advance) were that:
(a) a Drawdown Date as-had to be a Business Day within the Availability Period (b) the amount of the Advance requested complios
complied with Clause 2.1 (Amount of faettity/gcyY/ty); (c) each Advance shati-should not exceed 75 per cent, of the amount of
the instalment under the Shipbuilding Contract which 4s-was_being financed by that Advance; (d) the aggregate amount of the Advances
sfrati-should not exceed the Total Commitments; (e) the proposed Interest Period complios complied with Clause 6 (Interest Periods);
and (f) and the conditions set out in Clause 9.1 are-(Documents. fees and no default) were met.
4.3
Notification to Lenders of receipt of a Drawdown Noticci Tho Agent shall promptly notify the Lenders that it has rocoivod a Drawdown
Notice and shall inform oach Londor of: The Agent must have promptly notified the Lenders that it had received a Drawdown Notice
and must have informed each Lender of: (a) the amount of the Advance and the Drawdown Date; (b) the amount of that Lender's participation
in the Advance; and (c) the duration of the first Interest Period. 4.4 Drawdown Notice irrevocable! A Drawdown Notice must bo
signed by a director or officer or an authorised person of the Borrower; and onco served, a Drawdown Notice cannot bo revoked
without the prior consent of the Agent, acting on the authorisation of tho Majority Lenders. A Drawdown Notice must have been
signed bv a director or officer or an authorised person of the Original Borrower: and once served, a Drawdown Notice could not
be revoked without the prior consent of the Agent, acting on the authorisation of the Majority Lenders. 4.5 Lenders to make available
Contributions» Subject to the provisions of this Agreement, and in particular Clause 9, oach Londor shall, on and with value
on oach Drawdown Date, mako available to the Agent for the account of the Borrower the amount duo from that Londor on that Drawdown
Dato under Clause 2.2. Subject to the provisions of this Agreement, and in particular Clause 9 (Conditions Precedent). each Lender,
on and with value on each Drawdown Date, made available to the Agent for the account of the Original Borrower the amount due from
that Lender on that Drawdown Date under Clause 2.2 (Lenders' participations in Loan). 4.6 Disbursement of Advancd Subject to the
provisions of this Agreement, the Agent shall on oach Drawdown Dato pay to the Borrower the amounts which the Agent rocoivos from
the Londors under Clause 1.5; and that payment to the Borrower shall bo mado: Subject to the provisions of this Agreement, the
Agent on each Drawdown Date paid to the Original Borrower the amounts which the Agent received from the Lenders under Clause 4.5
(Lenders to make available Contributions): and that payment to the Original Borrower was made: (a) to the account of the Builder
which the Original Borrower spocifios specified in the Drawdown Notice; and (b) in the like funds as the Agent received the payments
from the Lenders. 4.7 Disbursement of Advance to third partyt Tho payment by the Agent under Clause 4.6 to the Builder shall constitute
the making of the Advance and the Borrower shall at that time bocomo indebted, as principal and direct obligor, to oach Londor
in an amount equal to that Lender's Contribution. The payment bv the Agent under Clause 4.6 (Disbursement of Advance) to the Builder
constituted the making of the Advance and the Original Borrower at that time and the Borrower from the date of this amended and
restated Agreement became indebted, as principal and direct obligor, to each Lender in an amount equal to that Lender's Contribution.
4.8
Cancellation of Total Commitments. Tho Total Commitments shall bo 4i8Any undrawn portion of the Total Commitments shall have been
immediately cancelled at the end of the Availability Period. 5 INTEREST 5.1 Payment of normal interest Subject to the provisions
of this Agreement, interest on the Loan in respect of each Interest Period shall be paid by the Borrower on the last day of that
Interest Period. 5.2 Normal rate of interest Subject to the provisions of this Agreement, the rate of interest on the Loan in
respect of an Interest Period shall be the aggregate of: (a) the Margin: and (b)the Mandatory Cost, if any; and (b) (e)LIBOR for
that interest Period. 5.3 Payment of accrued interest In the case of an Interest Period longer than 3 months, accrued interest
shall be paid every 3 months during that Interest Period and on the last day of that Interest Period. 5.4 Notification of Interest
Periods and rates of normal interest The Agent shall notify the Borrower and each Lender of: (a) each rate of interest; and (b)
the duration of each Interest Period, as soon as reasonably practicable after each is determined. Market disruption. (a) If a
Market Disruption Event occurs in relation to an Advance for any Intorost Period, thon the rate of intorost on each Lender's share
of that Advance for the Interest Period shall bo the percentage rate per annum which is the sum of: the Margin; (it) the rato
notified to the Agent by that Lender as soon as practicable and in any event before intorost is duo to bo paid in rospect of that
Intorost Period, to bo that
which
expresses as a porcontago rate per annum the cost to that Londor of funding its participation in that Loan from whatever source
it may reasonably select; and 0) the Mandatory Cost, if any, applicable to that Lender's participation in tho Advance. (b) In
this Agreement "Market Disruption Event" moans: 5.5 Unavailability of Screen Rate (a) Interpolated Screen Rate: If no
Screen Rate is available for LIBOR for the Interest Period of the Loan or any part of the Loan, the applicable LIBOR shall be
the Interpolated Screen Rate for a period equal in length to the Interest Period of the Loan or that part of the Loan. (b) Reference
Bank Rate: If no Screen Rate is available for LIBOR for: dollars: or (ii) the Interest Period of the Loan or any part of the Loan
and it is not possible to calculate the Interpolated Screen Rate. the applicable LIBOR shall be the Reference Bank Rate as of
the Specified Time and for a period equal in length to the Interest Period of the Loan or that part of the Loan. (c) Cost of funds:
If paragraph (b) above applies but no Reference Bank Rate is available for dollars or the relevant Interest Period there shall
be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause 5.12 (Cost of funds) shall apply to the Loan or that
part of the Loan for that Interest Period. 5.6 Calculation of Reference Bank Rate (a) Subject to paragraph (b) below, if LIBOR
is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation bv the Specified Time,
the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks. (b) (*)lLat or about
noon on the Quotation Date for the relevant Interest Period the Routers BBA Pago LIBOR 01 is not available and Dayjione or only
one of the Reference Banks supplies a rate to the Agent to determine LIBOR for dollars quotation, there shall be no Reference
Bank Rate for the relevant Interest Periodf-ef, 5.7 Market disruption f)Jlbefore close of business in London on the Quotation
Date for Day for the relevant Interest Period the Agent receives notification from a Lender or Lenders (whose participations in
the Loan or the relevant part of the Loan exceed 49 per cent, of the Loan or the relevant part of the Loan as appropriate) (the
"Relevant Lender") that the cost to it the relevant Interest Period, the Agent rocoivos notifications from a Londor
or Lenders that the cost to it or them obtaining matching deposits in the Rolovant Interbank Market of funding its participation
in the Loan or that part of the Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 5.12
(Cost of funds) shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period. 5.8 Notification
of market disruption! Tho Agent shall promptly Si8The Agent shall notify the Borrower and each of the Lenders stating the circumstances
falling within Clause 5.7 (Market disruption) which have caused its notice to be given.
Negotiation
of alternative rate of interest. If the Agent's notioo undor Clause 5.8 is eorved after an Advance is made, the Borrower, the
Agent and the Lenders or (as the case may bo) the Affootod Lender shall use reasonablo ondoavoure to agroo, within the 30 days
after the date on which the Agent servos its notice under Clouso 5.8 (the "Negotiation Period"), an alternative interest
rato or (as the case may bo) an alternativo basis for the Londors or (as the case may bo) the Affoctod Lender to fund orcontinuo
to fund thoirorits Contribution during the Interest Period concerned. §AQ—Application of agreed alternative rate of
interest. Any alternative interest rate or an alternative basis which is agreed during the Negotiation Period shall take effect
in accordance with the terms agrood. oVM—Alternative rate of interest in absence of agreement. If an altornative interest
rate or alternative basis is not agreed within the Negotiation Poriod, and the relevant circumstances are continuing at the end
of the Negotiation Period, then the Agent shall, with the agreement of each Lender or (as the case may be) the Affected Lender,
set an intorest period and interest rate reprosonting the cost of funding of the Lenders or (as the case may be) the Affected
Lender in Dollars or in any available currency of their or its Contribution plus the Margin; and the procodure provided for by
this Clause 5.11 shall be ropoatod if the relevant circumstances are continuing at the end of the interest period so set by the
Agent. 5.9 Notice of prepayment 5il2Notico of propaymont. If the Borrower does not agree with an interest rate set by the Agent
under Clause 5r3Jr5.5 (Unavailability of Screen Rate), the Borrower may give the Agent not less than 15 Business Days' notice
of its intention to prepay at the end of the interest period set by the Agent. 5.10 SrWrepayment; termination of Commitments.—A
notice undor Clause 5.12 shall bo irrevocable; the Agent shall promptly notify the Londors or (as the case may require) tho Affoctod
Lender of the Borrower's notice of intended propaymont; and: A notice under Clause 5.8 (Notification of market disruption) shall
be irrevocable: the Agent shall promptly notify the Lenders or (as the case mav require) the Relevant Lender of the Borrower's
notice of intended prepayment: and: (a) on the date on which the Agent serves that notice, the Total Commitments or (as the case
may require) the Commitment of the Affoctod Relevant Lender shall be cancelled; and (b) on the last Business Day of the interest
period set by the Agent, the Borrower shall prepay (without premium or penalty) the Loan or, as the case may be, the Affected
Relevant Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin. 5.11 SrMApplication
of prepayment! Tho provisions of Clause 8 shall apply in relation to tho prepayment made pursuant to Clause 5.12. The provisions
of Clause 8 (Repayment and Prepayment) shall apply in relation to the prepayment made pursuant to Clause 5.8 (Notification of
market disruption). 5.12 Cost of funds (a) if this Clause 5.12 (Cost of funds) applies, the rate of interest on the Loan or the
relevant part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of: (i) the
Margin; and
(ii)
the weighted average of the rates notified to the Agent by each Lender as soon as practicable and in any event before interest
is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate per annum the cost to the
relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source it may reasonably select.
(b) If this Clause 5.12 (Cost of funds) applies and the Agent or the Borrower so requires, the Agent and the Borrower shall enter
into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate
of interest or (as the case may be) an alternative basis for funding. (c) Subject to Clause 29.4 (Replacement of Screen Rate),
any substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and
the Borrower, be binding on all Parties. (d) If paragraph (e) below does not apply and any rate notified to the Agent under sub-paragraph
(ii) of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero. (e) If this Clause 5.12 (Cost of
funds) applies pursuant to Clause 5.7 (Market disruption) and: Jj) a Lender's Funding Rate is less than LIBOR: or (ii) a Lender
does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph (a) above, the cost to that Lender of funding
its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed, for the purposes of paragraph
(a) above, to be LIBOR. HI If this Clause 5.11 applies but any Lender does not supply a quotation bv the time specified in sub-paragraph
(ii) of paragraph (a) above the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders.
5.13 Break Costs (a) The Borrower shall, within three Business Days of demand bv a Creditor Party, pay to that Creditor Party
its Break Costs attributable to all or any part of the Loan or Unpaid Sum being paid by the Borrower on a day other than the last
day of an Interest Period for the Loan, the relevant part of the Loan or that Unpaid Sum. (b) Each Lender shall, as soon as reasonably
practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period
in which they accrue. 6 INTEREST PERIODS 6.1 Commencement of Interest Periodsr The first Interest Period applicable to an Advance
shall commence on the Drawdown Date and each subsequent Interest Period shall commence on the expiry of the preceding Interest
Period. 6.2 Duration of normal Interest Periodsi Subject to Clauses 6.3 and 6.4, ooch Intorost Period shall bo: Subject to Clauses
6.3 (Duration of Interest Periods for repayment instalments) and 6.4 (Nonavailability of matching deposits for Interest Period
selected), each Interest Period shall be:
(a)
3,6,9 or 12 months as notified by the Borrower to the Agent not later than 11.00 a.m. (London time) 3 Business Days before the
commencement of the Interest Period; or (b) in the case of the first Interest Period applicable to the second and any subsequent
Advance, a period ending on the last day of the Interest Period applicable to the first Advance then current, whereupon all of
the Advances shall be consolidated and treated as a single Advance; (c) 3 months, if the Borrower fails to notify the Agent by
the time specified in paragraph (a); or (d) such other period as the Agent may, with the authorisation of the Majority Lenders,
agree with the Borrower. 6.3 Duration of Interest Periods for repayment instalmentsr4n respeet-efa ffioyntclMeto be repaid under
Clause 8 on a particular Repayment Date, an Intorost Period shall ond on that Repayment Data-in respect of an amount due to be
repaid under Clause 8 (Repayment and Prepayment) on a particular Repayment Date, an Interest Period shall end on that Repayment
Date. 6.4 Non-availability of matching deposits for Interest Period selected* If, after the Borrower has selected and the Lenders
have agreed an Interest Period longer than 3 months, any Lender notifies the Agent by 11.00 a.m. (London time) on the third Business
Day before the commencement of the Interest Period that it is not satisfied that deposits in Dollars for a period equal to the
Interest Period will be available to it in the London Interbank Market when the Interest Period commences, the Interest Period
shall be of 3 months. 7 DEFAULT INTEREST 7.1 Payment of default interest on overdue amountsi—Tho Borrower shall pay intorost
in accordance with the following provisions of this Clause 7 jWhe Borrower shall pav interest in accordance with the following
provisions of this Clause 7 (Default Interest) on any amount payable by the Borrower under any Finance Document which the Agent,
the Security Trustee or the other designated payee does not receive on or before the relevant date, that is: (a) the date on which
the Finance Documents provide that such amount Is due for payment; or (b) if a Finance Document provides that such amount is payable
on demand, the date on which the demand is served; or (c) if such amount has become immediately due and payable under Clause 3
420.4 (Acceleration of Loan), the date on which it became immediately due and payable. 7.2 Default rate of interest* Interest
shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before
judgment) at the rate per annum determined by the Agent to be 1 per cent, above: (a) in the case of an overdue amount of principal,
the higher of the rates set out at Clauses 7.3(aparagraphs (a) and (b) of Clause 7.3 (Calculation of default rate of interest):
or (b) in the case of any other overdue amount, the rate set out at paragraph (b) of Clause 7.3(b (Calculation of default rate
of interest).
7.3
Calculation of default rate of in teres ti The rates referred to in Clause 7.2 are: The rates referred to in Clause 7.2 (Default
rate of interest) are: (a) the rate applicable to the overdue principal amount immediately prior to the relevant date (but only
for any unexpired part of any then current Interest Period); (b) the Margin and the Mandatory Cost, if any, plus, in respect of
successive periods of any duration (including at call) up to 3 months which the Agent may select from time to time: (i) LIBOR;
or (ii) if the Agent (after consultation with the Reference Banks) determines that Dollar deposits for any such period are not
being made available to any Reference Bank by leading banks in the London Interbank Market in the ordinary course of business,
a rate from time to time determined by the Agent by reference to the cost of funds to the Reference Banks from such other sources
as the Agent (after consultation with the Reference Banks) may from time to time determine. 7.4 Notification of interest periods
and default ratesr Tho Agent shall promptly notify tho Lenders and the Borrower of oach interest rate determined by the Agent
undor Clause 7.3 7i4The Agent shall promptly notify the Lenders and the Borrower of each interest rate determined bv the Agent
under Clause 7.3 (Calculation of default rate of interest) and of each period selected by the Agent for the purposes of paragraph
(b) of that Clause; but this shall not be taken to imply that the Borrower is liable to pay such interest only with effect from
the date of the Agent's notification. 7.5 Payment of accrued default in teres tr Subject to the other provisions of this Agreement,
any interest due under this Clause shall be paid on the last day of the period by reference to which it was determined; and the
payment shall be made to the Agent for the account of the Creditor Party to which the overdue amount is due. 7.6 Compounding of
default interest Any such interest which is not paid at the end of the period by reference to which it was determined shall thereupon
be compounded. 8 REPAYMENT AND PREPAYMENT 8.1 Amount of repayment instalments,—Tho Borrower shall repay the Loan by 32 equal
consecutive quarterly instalments of $992,500 oach together with a balloon instalment of $35,740,000 payable simultaneously with
the final instalment. The Borrower shall repay the Loan bv 11 equal consecutive quarterly instalments of $992.500 each together
with a balloon instalment of $17,232.500 payable simultaneously with the final instalment. 8.2 Repayment Dates 8i2Ropaymont Patosi
The first instalment shoti-was to be repaid on the date falling 3 months after the last Drawdown Date and the last instalment
together with the balloon is to be repaid on the date falling 96 months after the last Drawdown Date.
8.3
Maturity Date 8i3Maturity Dato. On the Maturity Date, the Borrower shall additionally pay to the Agent for the account of the
Creditor Parties all other sums then accrued or owing under any Finance Document. 8.4 Voluntary prepayment* Subject to the following
conditions, the Borrower may, without penalty, prepay the whole or any part of the Loan on the last day of an Interest Period
for that Advance. 8.5 Conditions for voluntary prepayment* The conditions referred to in Clause 8.4 (Voluntary prepayment) are
that: (a) a partial prepayment shall be $500,000 or a multiple of $500,000 or such other amount agreed by the Agent; (b) the Agent
has received from the Borrower at least 5 Business Days' prior written notice specifying the amount to be prepaid and the date
on which the prepayment is to be made; and (c) the Borrower has provided evidence satisfactory to the Agent that any consent required
by the Borrower or any Security Party in connection with the prepayment has been obtained and remains in force, and that any requirement
relevant to this Agreement which affects the Borrower or any Security Party has been complied with. 8.6 Effect of notice of prepayment*
A prepayment notice may not be withdrawn or amended without the consent of the Agent, given with the authorisation of the Majority
Lenders, and the amount specified in the prepayment notice shall become due and payable by the Borrower on the date for prepayment
specified in the prepayment notice. 8.7 Notification of notice of prepayment* The Agent shall notify the Lenders promptly upon
receiving a prepayment notice, and shall provide any Lender which so requests with a copy of any document delivered by the Borrower
under paragraph (c) of Clause 8.5(e (Conditions for voluntary prepayment). 8.8 Mandatory prepayment* The Borrower shall be obliged
to prepay the whole of the Loan: (a) if the Ship is sold, on or before the date on which such sale is completed by delivery of
the Ship to the buyer; or (b) if the Ship becomes a Total Loss, on the earlier of the date falling 180 days after the Total Loss
Date and the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss; pi (c) if the Borrower
is not in compliance with the financial covenants in Clause 11.1 (Financial Covenants) at any time during the Security Period,
the Borrower shall be obliged to repay the Loan in full (and the Commitments shall be cancelled) not later than 5 davs following
a request in writing from the Agent (acting on the instructions of the Majority Lenders) to the Borrower to repay the Loan: or
Provided
that the Borrower shall not bo required to prepay the Loan if the Ship is sold to a subsidiary of oithor Guarantor pursuant to
the proviso to Clause 11.3. (e) if any of the following occurs, on demand by the Agent: (d) if there is a Change of Control, the
Borrower shall be obliged to prepay the Loan in full and the Commitments shall terminate not later than 60 davs following the
occurrence of the Change of Control. oithor the Shipbuilding Contract or the Refund Guarantee is cancelled, terminated, rescinded
or suspended or otherwise coasos to remain in force for any reason; or (H-) the Shipbuilding Contract is materially amended or
materially varied without the prior written consent of the Majority Londors except for any such amendment or variation as is permitted
by this Agreement or any other relevant Finance Documont; or (w) the Ship has not for any roason boon delivered to, and accepted
by, the Borrower undor the Shipbuilding Contract by the date spocifiod in Article III.4 of the Shipbuilding Contract as the date
giving riso to the right of cancellation for excessive late delivery. 8.9 Amounts payable on prepayment A propaymont shall bo
made together with accrued interest (and any other amount payable undor Clause 21 or otherwise) in respect of tho amount prepaid
and, if the propaymont is not made on the last day of an Interest Poriod together with any sums payable undor Clause 21.1(b) but
without premium or penalty. A prepayment shall be made together with accrued interest (and any other amount payable under Clause
22 (Indemnities) or otherwise) in respect of the amount prepaid and, if the prepayment is not made on the last dav of an Interest
Period together with any sums payable under paragraph (b) of Clause 22.1 (Indemnities regarding borrowing and repayment of Loan)
but without premium or penalty. 8.10 Application of partial prepayment* Each partial prepayment shall be applied first against
the balloon and then against the repayment instalments specified in Clause 8.1 (Amount of repayment instalments) in inverse order
of maturity. 8.11 No reborrowing* SrllNo amount prepaid may be reborrowed. 9 CONDITIONS PRECEDENT 9.1 Documents, fees and no default*
Each Lender's obligation to contribute to an Advance is subject to the following conditions precedent: Each Lender's obligation
to contribute to an Advance was subject to the following conditions precedent: (a) that, on or before the service of the first
Drawdown Notice, the Agent receives received the documents described in Part A of Schedule 3 (Condition Precedent Documents) in
form and substance satisfactory to the Agent and its lawyers; (b) that, on or before the first Drawdown Date for, but prior to
the making of, an Advance (other than the final Advance), the Agent receives or is received or was satisfied that it w4ti-would
receive
on the making of such Advance the documents described in Part B of Schedule 3 (Condition Precedent Documents) in form and substance
satisfactory to it and its lawyers; (c) that before the final Drawdown Date for, but prior to the making of, the final Advance,
the Aeent receives or is received or was satisfied that itw+H-would receive on the making of such Advance the documents described
in Part C of Schedule 3 (Condition Precedent Documents) in form and substance satisfactory to it and its lawyers; (d) that, on
or before the service of the first Drawdown Notice, the Agent rocoivos received the arrangement fee referred to in Clause 30r3r21.1
(Arrangement, commitment fees), all accrued commitment fee-fees payable pursuant to Clause 20.1 and the first instalment of the
annual agency fee roforrod to in Clause 20.1 and has 21.1 (Arrangement, commitment fees) and had received payment of the expenses
referred to in Clause 3Qt3-21.2 (Costs of negotiation, preparation); and (e) that both at the date of each Drawdown Notice and
at each Drawdown Date: (i) no Event of Default or Potential Event of Default has-had_occurred or would result from the borrowing
of the Loan; (ii) the representations and warranties in Clause IQrJr- (Representations and Warranties) and those of the Borrower
or any Security Party which afe-were set out in the other Finance Documents would be true and not misleading if repeated on each
of those dates with reference to the circumstances then existing; and (iii) none of the circumstances contemplated by Clause 5.7
kas-(Market disruption) had occurred aft44s-ojr_vvas_continuing; and (f) that, if the ratio set out in Clause 15.1 wore 16.1 (Minimum
required security cover) was applied immediately following the making of the Advance, the Original Borrower would not fee-have
been obliged to provide additional security or prepay part of the Loan under that Clause; and (g) that the Agent feas-had received,
and found to be acceptable to it, any further opinions, consents, agreements and documents in connection with the Finance Documents
which the Agent may, with the authorisation of the Majority Lenders, request by notice to the Borrower prior to the Drawdown Date.
9.2 Waiver of conditions precedent 9i2Waivor of conditions precedent! If the Majority Lenders, at their discretion, were to permit
an Advance to be borrowed before certain of the conditions referred to in Clause 9.1 9fe-(Documents. fees and no default) were
satisfied, the Original Borrower sfeati-had to ensure that those conditions afe-were satisfied within 5 Business Days after the
Drawdown Date (or such longer period as the Agent may, with the authorisation of the Majority Lenders, specify have specified).
10 REPRESENTATIONS AND WARRANTIES 10.1 General WrlThe Borrower represents and warrants to each Creditor Party on the date of this
amended and restated Agreement as follows. 10.2 Status 10.2Status. The Borrower is duly incorporated and validly existing and
in good standing under the laws of Hong KongBelgiutn.
4&3—Share
capital and ownership. The Borrower has an authorised share capital of $10,000 divided into 10,000 shares of$1 oach, two (2) of
which shares have boon issued fully paid, and the legal titlo and bonoficial ownership of ono (1) share is hold free of any Security
Interest or other claim by Bretta Tankers and the other ono (1) sharo is held freo of any Security Interest or other claim by
Euronav Hong Kong. 10.3 40i4Corporate power* The Borrower has the corporate capacity, and has taken all corporate action and obtained
all consents necessary for it: (a) to oxocuto the Shipbuilding Contract, to purchase and pay for the Ship undor tho Shipbuilding
Contract and rogistor the Ship in its name under the Approved Flag; (a) (b)to execute the Finance Documents to which the Borrower
jjjs a party; andto borrow undor this Agreement and (b) (e)to make all the payments contemplated by, and to comply with, those
Finance Documents. 10.4 Consents in forcci All the consents referred to in Clause 10.4 40rSAII the consents referred to in Clause
10.3 (Corporate power) remain in force and nothing has occurred which makes any of them liable to revocation. 10.5 IQr&Legal
validity; effective Security Interests* The Finance Documents to which the Borrower is a party, do now or, as the case may be,
will, upon execution and delivery (and, where applicable, registration as provided for in the Finance Documents): (a) constitute
the Borrower's legal, valid and binding obligations enforceable against the Borrower in accordance with their respective terms;
and (b) create legal, valid and binding Security Interests enforceable in accordance with their respective terms over all the
assets to which they, by their terms, relate, subject to any relevant insolvency laws affecting creditors' rights generally. 10.6
40
t
7-N
o
third party Security Interests Without
limiting the generality of Clause 10.6, at tho time of the oxocution and delivery of oach Finance Document: Without limiting the
generality of Clause 10.5 (Leaal validity: effective Security lnterests)r at the time of the execution and delivery of each Finance
Document: (a) the Borrower will have the right to create all the Security Interests which that Finance Document purports to create;
and (b) no third party will have any Security Interest (except for Permitted Security Interests) or any other interest, right
or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates. 10.7 No conflicts IO18N0
conflictSi—The execution by the Borrower of each Finance Document, and the borrowing by the Borrower of the Loan, and its
compliance with each Finance Document will not involve or lead to a contravention of:
(a)
any law or regulation; or (b) the constitutional documents of the Borrower; or (c) any contractual or other obligation or restriction
which is binding on the Borrower or any of its assets. 10.8 10i9Governing law and enforcement. (a) The choice of English law as
the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation. (b) Any judgment
obtained in England in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation. 10.9
l&lONo withholding taxesi All payments which the Borrower is liable to make under the Finance Documents must bo mado without
deduction or withholding for or on account of any tax payable under any law of any Portinont Jurisdiction. All payments which
the Borrower is liable to make under the Finance Documents must be made without any Tax Deduction payable under any law of any
Pertinent Jurisdiction. 10.10 No default, lO.HNo Event of Default or Potential Event of Default has occurred. 10.11 Information
10il2lnformationi All information which has been provided in writing by or on behalf of the Borrower or any Security Party to
any Creditor Party in connection with any Finance Document satisfied the requirements of Clause 44rJ>12.5 (Information provided
to be accurate); all audited and unaudited accounts which have been so provided satisfied the requirements of Clause Mr7-12.7
(Form of financial statements): and there has been no material adverse change in the financial position or state of affairs of
the Borrower from that disclosed in the latest of those accounts. 10.12 No litigation 10il3No litigationi No legal or administrative
action involvingthe Borrower (including action relating to any alleged or actual breach of the ISM Code or the ISPS Code) has
been commenced or taken or, to the Borrower's knowledge, is likely to be commenced or taken which, in either case, would be likely
to have a material adverse effect on the Borrower's financial position or profitability. 10.14 Validity and completeness of Shipbuilding
Contract.—The Shipbuilding Contract constitutes valid, binding and enforGoablo obligations of the Builder and the Borrower
respoctivoly in accordance with its forms; and: (a) the copy of the Shipbuilding Contract dolivorod to the Agent before the dato
of this Agreement is a truo and comploto copy; and (b) no amondmonts or additions to the Shipbuilding Contract as dolivorod to
the Agent before the dato of this Agreement havo boon agreed (except for thoso amendments which are permitted under Clause 11.12)
nor has the Borrower or the Buildor waived any of thoir respective rights under the Shipbuilding Contract.
10.15
Validity and completeness of Supervision Agreement.—Tho Suporvision Agreement constitutes valid, binding and enforceable
obligations of the Supervisor and the Borrower respective in accordance with its terms; and: (a) the copy of the Suporvision Agreement
dolivorod to the Agent boforo the dote of this Agreement is a true and complete copy; and (b) no amendments or additions to the
Supervision Agreement as delivered to the Agent before the date of this Agreement have been agreed nor has the Borrower or the
Supervisor waived any of their respective rights undor the Supervision Agreement. 10.16 No rebates etd Thoro is no agroomont or
understanding to allow or pay any rebate, premium, commission, discount or other benefit or payment (howsoever described) to the
Borrower, the Builder or a third party in connection with the purchase by the Borrower of the Ship, other than as disclosed to
the Lenders in writing on or prior to the date of this Agreement. 10.13 40rl7Compliance with certain undertakings. At the dato
of this Agreement, the Borrower is in compliance with Clauses 11.2,11.4,11.9 and 11.13. At the date of this amended and restated
Agreement, the Borrower is in compliance with Clauses 12.2 (Title: negative pledge), 12.4 (No other liabilities or obligations
to be incurred). 12.9 (Consents) and 12.12 (Principal place of business). 10.14 Taxes paid. Tho Borrower has paid all taxes 40i48The
Borrower has paid all Taxes applicable to, or imposed on or in relation to the Borrower, its business or the Ship. 10.15 40rl9ISM
Code and ISPS Code compliance* All requirements of the ISM Code and the ISPS Code as they relate to the Borrower, the Approved
Manager and the Ship have been complied with or shall be complied with as from the delivery of the Ship to the Borrower under
the Shipbuilding Contract. 10.16 No money laundering 10.20No money laundering. Without prejudice to the generality of Clause £
t
32.4
(Purpose of Loan), in relation to the borrowing by the Borrower of the Loan, the performance and discharge of its obligations
and liabilities under the Finance Documents, and the transactions and other arrangements affected or contemplated by the Finance
Documents to which the Borrower is a party, the Borrower confirms (i) that it is acting for its own account; (ii) that it will
use the proceeds of the Loan for its own benefit, under its full responsibility and exclusively for the purposes specified in
this Agreement; and (iii) that the foregoing will not involve or lead to a 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 2005/60/EC of the European Parliament and of the Council of the European CommunitiosUnion of 26 October 2005). 10.17 Anti-Corruption
Laws Each Borrower has conducted its business in compliance with all applicable Anti-Corruption Laws and has instituted and maintained
policies and procedures designed to promote and achieve compliance with such laws. 10.18 Sanctions Each Relevant Person has been
and is in compliance with all Sanctions Laws and no Relevant Person:
(a)
is a Restricted Party, or is involved in any transaction through which it is likely to become a Restricted Party: or (b) has received
formal notice in writing of any inquiry, claim, action, suit, proceeding or investigation against it with respect to Sanctions
Laws. 11 FINANCIAL COVENANTS 11.1 Financial Covenants The Borrower will ensure that the consolidated financial position of the
Group shall at all times during the Security Period be such that: (a) Consolidated Working Capital shall not be less than SO:
(b) Free Liquid Assets are not less than the higher of: £2 S50.000.000: (ii) 5 per cent, of Total Indebtedness: cj the amount
of Cash shall equal or exceed US$30,000,000: and (d) the ratio of Stockholders' Equity to Total Assets is not less than 30 per
cent. In this Clause 11.1 (Financial Covenants): "Cash" means, at any date of determination under this Agreement, the
aggregate value of the Group's credit balances on any deposit, savings or current account and cash in hand with recognised and
reputable banks or financial institutions but excluding any such credit balances and cash subject to a Security Interest at any
time; "Consolidated Current Assets" means, at any date of determination under this Agreement, the amount of the current
assets of the Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet and including
any amounts available under committed credit lines having remaining maturities of more than 12 months: "Consolidated Current
Liabilities" means, at any date of determination under this Agreement, the amount of the current liabilities of the Group
determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet; "Consolidated Working
Capital" means Consolidated Current Assets less Consolidated Current Liabilities: "Free Liquid Assets" means, at
any date of determination under this Agreement, the aggregate amount of cash and cash equivalents of the Group determined on a
consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet but excluding any of those assets subject
to a Security Interest (other than a Security Interest in favour of the Security Trustee pursuant to this Agreement) at any time
and, for the avoidance of doubt, "cash and cash equivalents" include any amounts available under committed credit lines
having remaining maturities of more than 6 months; "I afoct D l nrn Clin/*!1" mnannc rat- nt~>\i r\si-a ■fKo
/■**"»!*» e/"\ I irlra+ari KIr\r~a choot- r\f f Kq f2rr\i ir* mAct' recently delivered to the Agent
pursuant to Clause 12.6 (Provision of financial statements) and/or most recently made publicly available:
"Stockholders'
Equity" means, at any date of determination under this Agreement, the amount of the capital and reserves of the Group determined
on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet; "Total Assets" means, at any
date of determination under this Agreement, the amount of the total assets of the Group determined on a consolidated basis in
accordance with IFRS and as shown in the Latest Balance Sheet: and "Total Indebtedness" means, at any date of determination
under this Agreement, the amount of long-term loans (including finance leases, banks loans and other long-term loans) and short-term
Joans of the Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet. 11.2 Change
in IFRS If, at anytime after the date of this Agreement, any mandatory change is made to IFRS or any applicable law relating to
the financial reporting (including but not limited to accounting bases, policies, practices and procedures or reference periods)
of the Group generally or any member of the Group individually and the effect of complying with that change would result in the
value for "Cash". "Consolidated Current Assets". "Consolidated Current Liabilities". "Consolidated
Working Capital". "Free Liquid Assets". "Stockholders' Eauitv". "Total Assets" and/or "Total
Indebtedness" being materially different from its value if calculated in accordance with IFRS and all applicable laws in
effect at the date of this Agreement and of which the Lenders would reasonably expect to have been informed, the Borrower shall
immediately notify the Agent of that change and procure that, as soon as reasonably practicable thereafter, the Borrower's auditors
deliver to the Agent: (a) a description of the change and what adjustments would need to be made to the financial statements of
the Group following that change in order to reverse the effects of that change so that the values of "Cash", "Consolidated
Current Assets", "Consolidated Current Liabilities". "Consolidated Working Capital". "Free Liquid
Assets". "Stockholders' Equity". "Total Assets" and/or "Total Indebtedness" will be the same
as if calculated in accordance with IFRS and all applicable laws in effect at the date of this Agreement; and (b) such information,
in form and substance acceptable to the Agent, as may be required: IH to enable the Lenders to determine whether there is a breach
of any of the financial covenants in respect of the Group set out in Clause 11.1 (Financial Covenants) (based on IFRS and all
applicable laws in effect at the date of this Agreement): and (ii) to assist the Lenders in making an accurate comparison between
the financial position of the Group indicated in the financial statements prepared following the change and those prepared prior
to it. In the event that the Lenders are satisfied that, based on the information provided by the Borrower's auditors, the financial
covenants in Clause 11.1 (Financial Covenants) have been complied with, the Lenders and the Borrower shall enter into discussions
with a view to agreeing amendments to this Agreement so as to mitigate the effect of the change. 11.3 Change of accounting period
The Borrower shall not change its fiscal year end date being 31 December.
12
44GENERAL UNDERTAKINGS 12.1 General llilGonorad The Borrower undertakes with each Creditor Party to comply with the following
provisions of this Clause 44-12 (General Undertakings) at all times during the Security Period except as the Agent may, with the
authorisation of the Majority Lenders, otherwise permit (such consent not to be unreasonably withheld or delayed in the case of
Clause 11.1212.12 (Principal olgce of business)). 12.2 44r2Title; negative pledgd Tho Borrower will: (a)keep its rights under
the Shipbuilding Contract, the Supervision Agreement and the Refund Guarantee and with effect from delivery of the Ship under
the Shipbuilding Contract The Borrower will hold the legal title to, and own the entire beneficial interest in the Ship, the Insurances
and Earnings, free from all Security Interests and other interests and rights of every kind, except for those created by the Finance
Documents and the effect of assignments contained in the Finance Documents and except for Permitted Security Interests* (fe) not
croato or permit to ariso any Security Interest (except for Permitted Security Interests) over any other asset, present or future.
12.3 44r3No disposal of assets Tho Borrower will not transfer, lease or otherwise dispose of: The Borrower will not transfer,
lease or otherwise dispose of all or a substantial part of its assets, whether by one transaction or a number of transactions,
whether related or not except for those in the ordinary course of business and for fair market value payable in cash upon completion
of such transaction-i-ef. with the exception of any charter of the Ship as to which Clause 15.14 (Time and consecutive vovaae
charters in excess of 36 months) applies. (fe) any debt payable to it or any other right (present, future or contingent right)
to receive a payment, including any right to damages or compensation.; but paragraph (a) does not apply to any charter of the
Ship as to which Clause 11.13 applies, Provided that the Borrower may sell the Ship to another subsidiary of either Guarantor
a Subsidiary subject to the following conditions: (i) there is no Event of Default or Potential Event of Default which is continuing;
(ii) the new owning company and the jurisdiction of incorporation being acceptable to the Lenders; (iii) the Borrower and the
Security Parties entering into such amendments to this Agreement and the other Finance Documents as may be required by the Lenders
in order to document the change of ownership; (iv) the new owning company entering into such other security documents which are
required by the Lenders so as to maintain the same security for the Lenders on the transfer of ownership; and (v) the new owner
shall pay to the Agent on demand all expenses (including but not limited to legal expenses) relating to the said documentation.
12.4 44r4No other liabilities or obligations to be incurred, Tho Borrower will not incur any liability or obligation except liabilities
and obligations under the Shipbuilding Contract, the
Suporvision
Agreement and the Finance Documonts and liabilities or obligations; incurred in the ordinary course of its business (including
operating and chartering the Ship). The Borrower shall not, without the prior consent of the Majority Lenders, incur any Financial
Indebtedness or grant any guarantee in respect of Financial Indebtedness if. as a result of incurring that Financial Indebtedness
or incurring the contingent liability under that guarantee fas assessed in accordance with IFRS). an Event of Default would occur,
or one or more of the financial covenants in respect of the Borrower set out in Clause 11.1 (Financial Covenants) would be breached,
on the date of such incurrence. 12.5 44*51 nformat ion provided to be accurate* All financial and other information which is provided
in writing by or on behalf of the Borrower under or in connection with any Finance Document will be true and not misleading and
will not omit any material fact or consideration. 12.6 4ir6Provision of financial statements* The Borrower will send to the Agent:
(a) as soon as possible, but in no event later than 180 days after the end of each financial year of the Borrower, (commencing
with the financial year ending 31 December 3Q4O2015), the audited consolidated accounts of the Borrower and its Subsidiaries;
(b) as soon as possible, but in no event later than 80-45_days after the end of each quarter in each financial ball-year of the
Borrower (commoncing with the financial half yoar ending 30 Juno 2010) unaudited management consolidated accounts of the Borrower
which are and its Subsidiaries certified as to their correctness by the chief financial officer of the Borrower; and (c) together
with the annual audited consolidated accounts referred to in paragraph (a) above, a compliance certificate (together with supporting
schedules, if any) signed bv the chief financial officer of the Borrower in the form attached as Schedule 8 (Form of Certificate
of Compliance) (or in any other format which the Agent may approve and with such other information as the Agent may require) evidencing
compliance with the financial undertakings in Clause 11.1 (Financial Covenants) and also listing the market value of the Ship.
12.7 44r7-Form of financial statements* All accounts (audited and unaudited) delivered under Clause 44
t
6-12.6
(Provision of financial statements) will: (a) be prepared in accordance with all applicable laws and IFRS consistently applied;
(b) fairly represent the financial condition of the Borrower at the date of those accounts and of its profit for the period to
which those accounts relate; and (c) fully disclose or provide for all significant liabilities of the Borrower and its Subsidiaries
(or the Borrower, as the case may be). 12.8 44*8Creditor notices* The Borrower will send the Agent, at the same time as they are
despatched, copies of all material communications which are despatched to the whole or any class of the Borrower's shareholders
or to the Borrower's creditors or any class of them.
12.9
Consents Hi9ConsontSi The Borrower will maintain in force and promptly obtain or renew, and will promptly send certified copies
to the Agent of, all consents required: (a) for the Borrower to perform its obligations under any Finance Document; (b) for the
validity or enforceability of any Finance Document; and (c) for the Borrower to continue to own and operate the Ship, and the
Borrower will comply with the terms of all such consents. 12.10 lltlOMaintenance of Security Interests* The Borrower will: (a)
at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Security
interests which it purports to create; and (b) without limiting the generality of paragraph (a), at its own cost, promptly register,
file, record or enrol any Finance Document with any court or authority in all Pertinent Jurisdictions, pay any stamp, registration
orsimilarta*-Iaxjn all Pertinent Jurisdictions in respect of any Finance Document, give any notice or take any other step which,
in the opinion of the Majority Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable
or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates. 12.11 Notification of
litigation llillNotification of litigation. The Borrower will provide the Agent with details of any legal or administrative action
involving the Borrower, any Security Party, the Approved Manager or the Ship, the Earnings or the Insurances as soon as such action
is instituted or it becomes apparent to the Borrower that it is likely to be instituted, unless it is clear that the legal or
administrative action cannot be considered material in the context of any Finance Document. 11.12 No amendment to Shipbuilding
Contract The Borrower will not agroo to any material amendment or supplement to, or waive the Supervision Agreement or the Shipbuilding
Contract or any of their provisions without the prior written consent of the Agent save that the Borrower may without requiring
such consent of the Agent, agree with the Builder to amond the Shipbuilding Contract if such amendment: (a-) doos not alter the
intended size, commercial use or purpose of the Ship; 4te) doos not alter the construction milestones for payment of the instalments
of the Contract Price under the Shipbuilding Contract; (e) doos not alter the identity of the Refund Guarantor nor the form, and
amount, of the Refund Guarantee to bo provided nor impair the effectiveness of the Refund Guarantee; (4) will not materially reduce
the Ship's anticipated value when complotod. 12.12 iiriiPrincipai place of business* The Borrower wiii maintain its piaco of business,
and keep its corporate documents and records, at the address stated at the commoncomont
of
this Agreement; and the Borrower will not establish, or do anything as o result of which it would bo doomed to havo, a placo of
business in any country other than Hong Kong. The Borrower will notify the Agent if it has a place of business in any jurisdiction
which would require a Finance Document to which it is a party to be registered, filed or recorded with any court or authority
in that jurisdiction or if the centre of its main interests changes. 12.13 41r44Confirmation of no default* The Borrower will,
within 5 Business Days after service by the Agent of a written request, serve on the Agent a notice which is signed by 2 directors
of the Borrower and which: (a) states that no Event of Default or Potential Event of Default has occurred; or (b) states that
no Event of Default or Potential Event of Default has occurred, except for a specified event or matter, of which all material
details are given. The Agent may serve requests under this Clause 34*34-12.13 (Confirmation of no default) from time to time but
only if reasonably asked to do so by a Lender or Lenders having Contributions exceeding 10 percent, of the Loan or (if the Loan
has not been made) Commitments exceeding 10 per cent of the Total Commitments; and this Clause 44r44-12.13 (Confirmation of no
default) does not affect the Borrower's obligations under Clause 44r4&12.14 (Notification of default). 12.14 44xl5Notification
of default* The Borrower will notify the Agent as soon as the Borrower becomes aware of: (a) the occurrence of an Event of Default
or a Potential Event of Default; or (b) any matter which indicates that an Event of Default or a Potential Event of Default may
have occurred; and will keep the Agent fully up-to-date with all developments. 12.15 44r46Provision of further information* The
Borrower will, as soon as practicable after receiving the request, provide the Agent with any additional financial or other information
relating to: (a) te-the Borrower, the Ship, the Earnings or the Insurances; or (b) any claim, action, suit, proceeding or investigation
with respect to Sanctions Laws against it. any of its direct or indirect owners, subsidiaries or any of their respective directors,
officers, employees, agents or representatives; or (c) (b)to any other matter relevant to, or to any provision of, a Finance Document,
which may reasonably be requested by the Agent, the Security Trustee or any Lender at any time. 12.16 "Know your customer"
checks* If: (a) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation
made after the date of this Agreement;
(b)
any change in the status of the Borrower or any Security Party after the date of this Agreement; or (c) a proposed assignment
or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such
assignment or transfer, obliges the Agent or any Lender (or, in the case of paragraph (c), any prospective new Lender) to comply
with "know your customer" or similar identification procedures in circumstances where the necessary information is not
already available to it, the Borrower shall promptly upon the request of the Agent or the Lender concerned supply, or procure
the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender)
or the Lender concerned (for itself or, in the case of the event described in paragraph (c), on behalf of any prospective new
Lender) in order for the Agent, the Lender concerned or, in the case of the event described in paragraph (c), any prospective
new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks
under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents. 12.17 Conduct of
business: compliance with laws The Borrower shall conduct its business in a proper and efficient manner in compliance with: (a)
its constitutional documents; (b) all Sanctions Laws; Is! all Anti-Corruption Laws: (d) all Environmental Laws: and (e) all other
laws and regulations applicable to its business, and shall notify the Agent immediately upon becoming aware of any breach of any
such document, law or regulation. 12.18 Compliance with Sanctions Laws The Borrower shall: (a) ensure that neither it nor any
of its subsidiaries is or will become a Restricted Party: (b) use reasonable endeavours to procure that no director, officer,
employee, agent or representative of any Borrower or any subsidiary of any Borrower is or will become a Restricted Partv: and
(c) procure that no proceeds of any Advance shall be made available, directly or indirectly, to or for the benefit of a Restricted
Party nor shall thev otherwise be applied in a manner for a purpose prohibited by Sanctions Laws. 13 CORPORATE UNDERTAKINGS 13.1
General 12ilGonorali The Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause
43-13 (Corporate Undertakings) at all times during the Security Period aftor the Ship has boon dolivorod to the Borrower under
the Shipbuilding Contract except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit.
13.2
12.2Maintenance of statusr The Borrower will maintain its separate corporate existence and remain in good standing under the laws
of Hong KonciBelgium. 13.3 43»SNegative undertakings* The Borrower will not: (a) carry on any business other than the ownership,
chartering and operation of the Ship; or (a) operate outside the scope of its Articles of Association.; or b) effect any form
of redemption purchase or return of share capital or effect any form of redemption, purchase or return of share capital; or (b)
provide any form of credit or financial assistance to: (i) a person who is directly or indirectly interested in the Borrower's
share or loan capital; or
(h
) any company in or with which such a person is directly
or indirectly interested or connected; or (ii) (ti+)enter into any transaction with or involving such a person or company on terms
which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms' length,
and the Borrower agrees to subordinate any inter-company loans to the Loan on such terms as the Lenders may reasonably require;
4d) issue, allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital; (e)
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American
or European banks, or enter into any transaction in a derivative; 13.4 No merger etc. The Borrower will not, and will procure
that none of its subsidiaries will, enter into any form of merger, sub-division, amalgamation or other reorganisation which may,
in the reasonable opinion of the Majority Lenders, have a material adverse effect on the financial position the Borrower. enter
into any form of amalgamation, merger or do merger or any form of reconstruction or reorganisation; or enter into any freight
forwarding agreements. 13.5 42r4Payment of dividends Tho Borrower may pay dividends provided that no Event of Default has occurred
and is continuing. (a) The Borrower mav oav dividends provided that: iU no Event of Default has occurred and is continuing: and
(ii)
the payment of such dividend or distribution would not cause any breach of any of the financial covenants set out in Clause 11.1
(Financial Covenants). 13.6 Notification of Sanctions The Borrower shall: (a) supply to the Agent, promptly upon becoming aware
of them, the details of any inquiry, claim, action, suit, proceeding or investigation pursuant to Sanction Laws against (a) the
Borrower, (b) any other Relevant Person or (c) any owners of any Relevant Person (other than any owner of the Borrower), as well
as information on what steps are being taken with regards to answering or opposing the same: (b) inform the Agent promptly upon
becoming aware that any of (a) the Borrower, (b) any other Relevant Person or (c) any owners of any Relevant Person (other than
any owner of the Borrower), has become or is likely to become a Restricted Party. +2v5—Minimum Liquidity. The Borrower shall
ensure that from the delivery of the Ship to the Borrower under the Shipbuilding Contract and throughout the Security Period there
is at all times standing to the credit of the Earnings Account free of any Security Interest other than in favour of the Socurity
Trustoo an amount of not less than $300,000 increasing to $500,000 with affect from the first anniversary of the said delivery
date. M INSURANCE 14.1 General 13ilGonorali The Borrower also undertakes with each Creditor Party to comply with the following
provisions of this Clause 43-14 (Insurance) at all times during the Security Period (after the Ship has boon dolivorod to it undor
the Shipbuilding Contract) except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit (such consent
not to be unreasonably withheld or delayed in the case of paragraph (b) of Clauses 13.11(b) and 13.1214.11 (Compliance with terms
of insurances) and 14.12 (Alteration to terms of insurances)). 14.2 43r2Maintenance of obligatory insurances* The Borrower shall
keep the Ship insured at the expense of the Borrower against: (a) fire and usual marine risks (including hull and machinery and
excess risks); (b) war risks; (c) protection and indemnity risks; and (d) any other risks against which the Majority Lenders consider,
having regard to practices and other circumstances prevailing at the relevant time, it would in the opinion of the Majority Lenders
be reasonable for the Borrower to insure and which are specified by the Security Trustee by notice to the Borrower. 14.3 43r3Terms
of obligatory insurances* The Borrower shall effect such insurances: (a) in Dollars;
(b)
in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of (i) 120
per cent, of the Loan and (ii) the market value of the Ship; and (c) in the case of oil pollution liability risks, for an aggregate
amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in
the international marine insurance market; (d) in relation to protection and indemnity risks in respect of the Ship's full tonnage;
(e) on approved terms; and (f) through approved brokers and with approved insurance companies and/or underwriters or, in the case
of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations. 14.4 43r4Further
protections for the Creditor Parties, In addition to the torms sot out in Clause 13.3, the Borrower shall procure that the obligatory
insurances shall: In addition to the terms set out in Clause 14.13 (Settlement of claims), the Borrower shall procure that the
obligatory insurances shall: (a) whenever the Security Trustee requires, name (or be amended to name) the Security Trustee as
additional named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation
against the Security Trustee, but without the Security Trustee thereby being liable to pay (but having the right to pay) premiums,
calls or other assessments in respect of such insurance; (b) name the Security Trustee as loss payee with such directions for
payment as the Security Trustee may specify; (c) provide that all payments by or on behalf of the insurers under the obligatory
insurances to the Security Trustee shall be made without set-off, counterclaim or deductions or condition whatsoever; (d) provide
that such obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the
Security Trustee or any other Creditor Party; and (e) provide that the Security Trustee may make proof of loss if the Borrower
fails to do so. 14.5 43rSRenewal of obligatory insurances. The Borrower shall: (a) at least 14 days before the expiry of any obligatory
insurance, renew that obligatory insurance; and (b) promptly after each such renewal, there is provided to the Agent details of
the terms and conditions on which such obligatory insurances have been renewed. 14.6 13r6Copies of policies; letters of undertaking*
The Borrower shall ensure that all approved brokers provide the Security Trustee with a letter or letters of undertaking in a
form required by the Majority Lenders and including undertakings by the approved brokers that:
they
will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the
provisions of Clause JA414.14 (Provision of information); (b) they will hold such policies, and the benefit of such insurances,
to the order of the Security Trustee in accordance with the said loss payable clause; (c) they will advise the Security Trustee
immediately of any material change to the terms of the obligatory insurances; (d) they will notify the Security Trustee, not less
than 14 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions
from the Borrower or its agents and, in the event of their receiving instructions to renew, they will promptly notify the Security
Trustee of the terms of the instructions; and (e) they will not set off against any sum recoverable in respect of a claim relating
to the Ship under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect
of the Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect
of such premiums or other amounts, and they will not cancel such obligatory insurances by reason of non-payment of such premiums
or other amounts, and will arrange for a separate policy to be issued in respect of the Ship forthwith upon being so requested
by the Security Trustee. 14.7 43*?Copies of certificates of entry* The Borrower shall ensure that any protection and indemnity
and/or war risks associations in which the Ship is entered provides the Security Trustee with: (a) a certified copy of the certificate
of entry for the Ship; (b) a letter or letters of undertaking in such form as may be required by the Majority Lenders; and (c)
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material
issued by the relevant certifying authority in relation to the Ship. 14.8 43r8Deposit of original policies* The Borrower shall
ensure that all policies relating to obligatory insurances are deposited with the approved brokers through which the insurances
are effected or renewed. 14.9 4*r9Payment of premiums* The Borrower shall punctually pay all premiums or other sums payable in
respect of the obligatory insurances and produce all relevant receipts when so required by the Security Trustee. 14.10 Guarantees
IBilQGuaranteeSi The Borrower shall ensure that any guarantees required by a protection and indemnity or war risks association
are promptly issued and remain in full force and effect. 14.11 13.11 Compliance with terms of insurance The Borrower shall neither
do nor omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance
invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part;
and, in particular:
(a)
the Borrower shall take all necessary action and comply with all requirements which may from time to time be applicable to the
obligatory insurances, and (without limiting the obligation contained in paragraph (c) of Clause 43r€(el4.6 (Copies of policies:
letters of undertaking)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which
the Security Trustee has not given its prior approval; (b) the Borrower shall not make any changes relating to the classification
or classification society or manager or operator of the Ship approved by the underwriters of the obligatory insurances; (c) the
Borrower shall make (and promptly supply copies to the Agent of) all quarterly or other voyage declarations which may be required
by the protection and indemnity risks association in which the Ship is entered to maintain cover for trading to the United States
of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation);
and (d) the Borrower shall not employ the Ship, nor allow it to be employed, otherwise than in conformity with the terms and conditions
of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra
premium or otherwise) which the insurers specify. 14.12 43rl3Alteration to terms of insurances* The Borrower shall neither make
or agree to any material alteration to the terms of any obligatory insurance nor waive any right relating to any obligatory insurance
without the consent of the Agent. 14.13 Settlement of claims 13il3Scttlemont of claims! The Borrower shall not settle, compromise
or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty, and shall do all things necessary
and provide all documents, evidence and information to enable the Security Trustee to collect or recover any moneys which at any
time become payable in respect of the obligatory insurances. 14.14 43rl4Provision of information* In addition, the Borrower shall
promptly provide the Security Trustee (or any persons which it may designate) with any information which the Security Trustee
(or any such designated person) reasonably requests for the purpose of: (a) obtaining or preparing any report from an independent
marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or (b) effecting,
maintaining or renewing any such insurances as are referred to in Clause 13.15 14.15 (Mortgagee's interest and additional perils
insurances) or dealing with or considering any matters relating to any such insurances, and the Borrower shall, forthwith upon
demand, indemnify the Security Trustee in respect of all fees and other expenses incurred by or for the account of the Security
Trustee in connection with any such report as is referred to in paragraph (a). 14.15 Mortgagee's interest and additional perils
insurances 13ilSMortgagoo's interest and additional perils insurancosi The Security Trustee shall be entitled from time to time
to effect, maintain and renew a mortgagee's interest additional perils insurance and a mortgagee's interest marine insurance each
in an amount of 110 per cent, of the Loan and on such terms, through such insurers and generally in such manner as the Majority
Lenders may from time to time consider appropriate and the Borrower shall upon
demand
fully indemnify the Creditor Parties in respect of all premiums and other expenses which are incurred in connection with or with
a view to effecting, maintaining or renewing any such insurance or dealing with, or considering, any matter arising out of any
such insurance. 15 14SHIP COVENANTS 15.1 General lfl.lGeneral. The Borrower also undertakes with each Creditor Party to comply
with the following provisions of this Clause 34-15 (Ship Covenants) at all times during the Security Period (after the Ship has
boon dolivorod to it under the Shipbuilding Contract) except as the Agent, with the authorisation of the Majority Lenders, may
otherwise permit. 15.2 Ship's name and registration* The Borrower shall keep the Ship registered in its name under the relevant
Approved Flag at its relevant port of registry; shall not do or omit to do or allow to be done anything as a result of which such
registration might be cancelled or imperilled; and shall not change the name or port of registry of the Ship. 15.3 44*3Repair
and classification* The Borrower shall keep the Ship in a good and safe condition and state of repair: (a) consistent with first-class
ship ownership and management practice; (b) so as to maintain the Ship's class (namely A1(E), "Oil Carrier ESP", AMS,
ACCU, SPM, VEC(-L), CSR, Safeship-CM, RES, ES,TEM, Green Passport, POT, UWILD (sea chest blanking devices shall not be provided),
CPS at American Bureau of Shipping) free of overdue recommendations and conditions; and (c) so as to comply with all laws and
regulations applicable to vessels registered at ports in Greece or to vessels trading to any jurisdiction to which the Ship may
trade from time to time, including but not limited to the ISM Code or the ISPS Code. 15.4 Modification 11 iflModification!—The
Borrower shall not make any modification or repairs to, or replacement of, the Ship or equipment installed on it which would or
might materially alter the structure, type or performance characteristics of the Ship or materially reduce its value. 15.5 Removal
of parts 1415Removal of parts. The Borrower shall not remove any material part of the Ship, or any item of equipment installed
on, the Ship unless the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition
as or better condition than the part or item removed, is free from any Security Interest or any right in favour of any person
other than the Security Trustee and becomes on installation on the Ship the property of the Borrower and subject to the security
constituted by the Mortgage Provided that the Borrower may install equipment owned by a third party if the equipment can be removed
without any risk of damage to the Ship. 15.6 Surveys 14i6SurvoySi The Borrower shall submit the Ship regularly to all periodical
or other surveys which may be required for classification purposes and, if so required by the Majority Lenders provide the Security
Trustee, with copies of all survey reports.
15.7
Inspection 14i7lnspoction.—The Borrower shall permit the Security Trustee (by surveyors or other persons appointed by it
for that purpose) to board the Ship at all reasonable times to inspect its condition or to satisfy themselves about proposed or
executed repairs and shall afford all proper facilities for such inspections provided that prior to the occurrence of an Event
of Default reasonable notice of such inspection is given and such inspection does not materially affect the Ship's commercial
operation. 15.8 44*8Prevention of and release from arrest* The Borrower shall promptly discharge: (a) all liabilities which give
or may give rise to maritime or possessory liens on or claims enforceable against the Ship, the Earnings or the Insurances; (b)
all taxeslaxes, dues and other amounts charged in respect of the Ship, the Earnings or the Insurances; and (c) all other outgoings
whatsoever in respect of the Ship, the Earnings or the Insurances, and, forthwith upon receiving notice of the arrest of the Ship,
or of its detention in exercise or purported exercise of any lien or claim, the Borrower shall procure its release by providing
bail or otherwise as the circumstances may require. 15.9 44r9Compliance with laws etc. The Borrower shall: (a) comply, or procure
compliance with the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions Laws and all other laws or regulations relating
to the Ship, its ownership, operation and management or to the business of the Borrower; (b) not employ the Ship nor allow its
employment in any manner contrary to any law or regulation in any relevant jurisdiction including but not limited to the ISM Code
and the ISPS Code, all Environmental Laws and Sanctions Laws: and (c) in the event of hostilities in any part of the world (whether
war is declared or not), not cause or permit the 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 unless the Borrower (at its expense) effected any necessary special, additional or modified
insurance cover and, upon the Agent's request, the Borrower will confirm that they have effected such insurance cover. 15.10 ISPS
Code Without limiting paragraph (a) of Clause 15.9 (Compliance with laws ). the Borrower shall: (a) procure that the Ship and
the company responsible for the Ship's compliance with the ISPS Code comply with the ISPS Code; and (b) maintain an ISSC for the
Ship; and l£i notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or
modification of the ISSC.
15.11
14.10Provision of information. The Borrower shall promptly provide the Security Trustee with any information which the Majority
Lenders reasonably request regarding: (a) the Ship, its employment, position and engagements; (b) the Earnings and payments and
amounts due to the Ship's master and crew; (c) any expenses incurred, or likely to be incurred, in connection with the operation,
maintenance or repair of the Ship and any payments made in respect of the Ship; (d) any towages and salvages; and (e) the Borrower's,
the Approved Manager's or the Ship's compliance with the ISM code and the ISPS code, and, upon the Security Trustee's request,
provide copies of any current charter relating to the Ship and of any current charter guarantee, and copies of the Borrower's
or the Approved Manager's Document of Compliance. 15.12 44ri4Notification of certain events* The Borrower shall immediately notify
the Security Trustee by fax, confirmed forthwith by letter, of: (a) any casualty which is or is likely to be or to become a Major
Casualty; (b) any occurrence as a result of which the Ship has become or is, by the passing of time or otherwise, likely to become
a Total Loss; (c) any overdue requirement or recommendation made by any insurer or classification society or by any competent
authority which is not immediately complied with; (d) any arrest or detention of the Ship, any exercise or purported exercise
of any lien on the Ship ,or its Earnings or any requisition of the Ship for hire; (e) any intended dry docking of the Ship other
than a routine dry docking; (f) any Environmental Claim made against the Borrower or in connection with the Ship, or any Environmental
Incident; (g) any claim for breach of the ISM Code or the ISPS Code being made against the Borrower, the Approved Manager or otherwise
in connection with the Ship; or (h) any other matter, event or incident, actual or threatened, the effect of which will or could
lead to the ISM Code or ISPS Code not being complied with, and the Borrower shall keep the Security Trustee advised in writing
on a regular basis and in such detail as the Security Trustee shall require of the Borrower's, the Approved Manager's or any other
person's response to any of those events or matters. 15.13 14.12Restrictions on chartering, appointment of managers etc. The Borrower
shall not: (a) let the Ship on demise charter for any period;
(b)
enter into any charter in relation to the Ship under which more than 2 months' hire (or the equivalent) is payable in advance;
(c) charter the Ship otherwise than on bona fide arm's length terms at the time when the Ship is fixed; (d) appoint a manager
of the Ship other than the Approved Manager or agree to any alteration to the terms of the Approved Manager's appointment; (e)
de-activate or lay up the Ship; or (f) put the Ship into the possession of any person for the purpose of work being done upon
it in an amount exceeding or likely to exceed the Major Casualty amount unless either: (i) that person has first given to the
Security Trustee and in terms satisfactory to it a written undertaking not to exercise any lien on the Ship or its Earnings for
the cost of such work or for any other reason; or (ii) the Borrower has established to the reasonable satisfaction of the Security
Trustee that the Borrower has sufficient reserves to pay for the cost of such work. 15.14 14.13Time and consecutive voyage charters
in excess of 36 months* The Borrower agrees that if it should enter into any Charter the Borrower shall execute and deliver to
the Agent promptly upon such Charter being entered into a Charter Assignment in respect of that Charter in favour of the Security
Trustee unless such Charter contains a substitution clause or a clause with similar effect. If the Lenders agree to the increase
of the Loan pursuant to Clause 3 4-2.5 (Increase of Loan) of this Agreement, then the Borrower agrees that if it should enter
into any Charter (or has previously entered into any Charter) the Borrower shall execute and deliver to the Agent promptly upon
such Charter being entered into (or where such Charter has already been entered into on the date of the increase of the Loan pursuant
to Clause 2A2.5 (Increase of Loan)) a Charter Assignment in respect of that Charter in favour of the Security Trustee. 15.15 Notice
of Mortgage 11.1 1 Notice of MortgagOi The Borrower shall keep the Mortgage registered against the Ship as a valid first priority
mortgage, carry on board the Ship a certified copy of the Mortgage and place and maintain in a conspicuous place in the navigation
room and the Master's cabin of the Ship a framed printed notice stating that the Ship is mortgaged by the Borrower to the Security
Trustee. 15.16 Sharing of Earnings HilSSharingof EamingGi The Borrower shall not enter into any agreement or arrangement for the
sharing of any Earnings without the prior approval of the Agent such approval not to be unreasonably withheld. For the avoidance
of doubt the Agent's approval shall not be required in relation to: (a) any "profit split" of hire between the Borrower
and a charterer of the Ship; or (b) the entry into an established pool or a pool established by Euronav NV the Borrower in both
cases on usual commercial terms and at a market rate allocation.
16
15SECURITY COVER 16.1 15.1Minimum required security coven Clause 15.2 applies if (oftor the Ship has boon delivered to the Borrower
undor the Shipbuilding Contract) the Agent notifies tho Borrower that, according to the determination mochanism undor Clause 15.3:
Clause 16.2 (Provision of additional security: prepayment) applies if the Agent notifies the Borrower that, according to the determination
mechanism under Clause 16.3 (Valuation of Ship): (a) the market value (determined as provided in Clause 45t3-16.3 (Valuation of
Ship)) of the Ship; plus (b) the net realisable value of any additional security previously provided under this Clause 35-16 (Security
Cover). is below 120 per cent, of the Loan. 16.2 Provision of additional security; prepayment* If the Agent servos a notice on
the Borrower undor Clause 15.1 ASrllf the Agent serves a notice on the Borrower under Clause 16.1 (Minimum required security cover),
the Borrower shall, within 1 month after the date on which the Agent's notice is served, either: (a) provide, or ensure that a
third party provides, additional security which is acceptable to the Agent and, in the opinion of the Majority Lenders, has a
net realisable value at least equal to the shortfall and is documented in such terms as the Agent may, with the authorisation
of the Majority Lenders, approve or require; or (b) prepay such part (at least) of the Loan as will eliminate the shortfall. 16.3
4S*»Valuation of Ship* The market value of the Ship at any date is that shown by the average of 2 valuations addressed to
the Agent for the benefit of the Lenders and prepared: (a) as at a date not more than 14 days previously; (b) by 2 independent
first class sale and purchase shipbrokers which the Agent has approved or appointed for the purpose; (c) with or without physical
inspection of the Ship (as the Agent may require); (d) on the basis of a sale for prompt delivery for cash on normal arm's length
commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment;
and (e) after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the
sale. 16.4 Value of additional vessel security! The not realisable value of any additional security which is provided under Ciouso
15.2 and which consists of a Security interest ovor a vossoi shall bo that shown by a valuation complying with the requirements
of Clause 15.3. The net realisable value of any additional security which is provided under Clause 16.2 (Provision of additional
security: oreoavment) and which consists of a Security Interest over a
vessel
shall be that shown by a valuation complying with the requirements of Clause 16.3 (Valuation of Ship). 16.5 Valuations binding
lS.SValuations binding. Any valuation under Clause 15.2. 15.3 or 15.4 16.2 {Provision of additional security: prepayment). 16.3
{Valuation of Ship) or 16.4 [Value of additional vessel security) shall be binding and conclusive as regards the Borrower, as
shall be any valuation which the Majority Lenders make of any additional security which does not consist of or include a Security
Interest. 16.6 4S*6Provision of information* Tho Borrower shall promptly provide tho Agont and any shipbroker or export acting
undor Clause 15.3 or ISA with any information which tho Agont or tho shipbrokor or export may reasonably request for tho purposes
of tho valuation; The Borrower shall promptly provide the Agent and anv shipbroker or expert acting under Clause 16.3 [Valuation
of Ship) or 16.4 [Value of additional vessel security) with any information which the Agent or the shipbroker or expert mav reasonably
request for the, purposes of the valuation; 16.7 Payment of valuation expenses 15.7Paymont of valuation expenses. Without prejudice
to the generality of the Borrower's obligations under Clauses 2Qr221.2 [Costs of negotiation. 20.3 and 21.2preparation ). 21.3
(Costs of variations, amendments, enforcement) and 22.3 (Miscellaneous indemnities), the Borrower shall, on demand, pay the Agent
the amount of the fees and expenses of any shipbroker or expert instructed by the Agent under this Clause and all legal and other
expenses incurred by any Creditor Party in connection with any matter arising out of this Clause. 16.8 4&r8Application of
prepayment,—Clause 8 shall apply in relation to any propaymont pursuant to Clause 15.2(b). Clause 8 (Repayment and Prepayment)
shall apply in relation to anv prepayment pursuant to paragraph (b) of Clause 16.2 (Provision of additional security: prepayment).
1Z 46PAYMENTS AND CALCULATIONS 17.1 46rlCurrency and method of payments* All payments to be made by the Lenders or by the Borrower
under a Finance Document shall be made to the Agent or to the Security Trustee, in the case of an amount payable to it: (a) by
not later than 11.00 a.m. (New York City time) on the due date; (b) in same day Dollar funds settled through the New York Clearing
House Interbank Payments System (or in such other Dollar funds and/or settled in such other manner as the Agent shall specify
as being customary at the time for the settlement of international transactions of the type contemplated by this Agreement); (c)
in the case of an amount payable by a Lender to the Agent or by the Borrower to the Agent or any Lender, to such account as the
Agent may advise from time to time; and (d) in the case of an amount payable to the Security Trustee, to such account as it may
from time to time notify to the Borrower and the other Creditor Parties.
17.2
4€r2-Payment on non-Business Day* If any payment by the Borrower under a Finance Document would otherwise fall due on a day
which is not a Business Day: (a) the due date shall be extended to the next succeeding Business Day; or (b) if the next succeeding
Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day;
and interest shall be payable during any extension under paragraph (a) at the rate payable on the original due date. 17.3 4€*3Basis
for calculation of periodic payments* All interest, commitment fee and commission and any other payments under any Finance Document
which are of an annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number
of days elapsed and a 360 day year. 17.4 16*4Distribution of payments to Creditor Parties* Subject to Clauses 16.5,16.6 and 16.7:
Subject to Clauses 17.5 (Permitted deductions by Agent) 17.6 (Agent only obliged to pav when monies received) and 17.7 (Refund
to Agent of monies not received): (a) any amount received by the Agent under a Finance Document for distribution or remittance
to a Lender or the Security Trustee shall be made available by the Agent to that Lender or, as the case may be, the Security Trustee
by payment, with funds having the same value as the funds received, to such account as the Lender or the Security Trustee may
have notified to the Agent not less than 5 Business Days previously; and (b) amounts to be applied in satisfying amounts of a
particular category which are due to the Lenders generally shall be distributed by the Agent to each Lender pro rata to the amount
in that category which is due to it. 17.5 Permitted deductions bv Agent 16.5Permitted deductions by Agent.—Notwithstanding
any other provision of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender,
deduct and withhold from that amount any sum which is then due and payable to the Agent from that Lender under any Finance Document
or any sum which the Agent is then entitled under any Finance Document to require that Lender to pay on demand. 17.6 46*6Agent
only obliged to pay when monies received* Notwithstanding any other provision of this Agreement or any other Finance Document,
the Agent shall not be obliged to make available to the Borrower or any Lender any sum which the Agent is expecting to receive
for remittance or distribution to the Borrower or that Lender until the Agent has satisfied itself that it has received that sum.
17.7 46*?Refund to Agent of monies not received* If and to the extent that the Agent makes available a sum to the Borrower or
a Lender, without first having received that sum, the Borrower or (as the case may be) the Lender concerned shall, on demand:
refund the sum in full to the Agent; and
(b)
pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding or other loss, liability
or expense incurred by the Agent as a result of making the sum available before receiving it. 17.8 Agent may assume receipt* Clause
16.7 4€*8Clause 17.7 (Refund to Agent of monies not received) shall not affect any claim which the Agent has under the law
of restitution, and applies irrespective of whether the Agent had any form of notice that it had not received the sum which it
made available. 17.9 16*0Creditor Party accounts* Each Creditor Party shall maintain accounts showing the amounts owing to it
by the Borrower and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrower
and any Security Party. 17.10 Agent's memorandum account 16.10Agent's momorandum account. The Agent shall maintain a memorandum
account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security Trustee and each Lender
from the Borrower and each Security Party under the Finance Documents and all payments in respect of those amounts made by the
Borrower and any Security Party. 17.11 Accounts prima facie evidence* If any accounts maintained under Clauses 16.9 and 16.10
AferJAIf any accounts maintained under Clauses 17.9 (Creditor Party accounts) and 17.10 (Agent's memorandum account) show an amount
to be owing by the Borrower or a Security Party to a Creditor Party, those accounts shall be prima facie evidence that that amount
is owing to that Creditor Party. 18 ^APPLICATION OF RECEIPTS 18.1 47rlNormal order of application* Except as any Finance Document
may otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document
shall be applied: (a) FIRST: in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent and the Security
Trustee under the Finance Documents; (b) SECONDLY: in or towards payment pro rata of any accrued interest or commission due but
unpaid under this Agreement; (c) THIRDLY: in or towards payment pro rata of any principal due but unpaid under this Agreement;
(d) FOURTHLY: in or towards payment pro rata of any other amounts due but unpaid under any Finance Document; (e) FIFTHLY: in retention
of an amount equal to any amount not then due and payable under any Finance Document but which the Agent, by notice to the Borrower,
the Security Parties and the other Creditor Parties, states in its opinion will or may become due and payable in the future and,
upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the provisions of Clause 17.1(a).
17.1(bparaeraphs (a), (b). 17.1(c) and 47t4t4(c) and (d) of Clause 18.1 (Normal order of application): and
(f)
SIXTHLY: any surplus shall be paid to the Borrower or to any other person appearing to be entitled to it. 18.2 17r2Variation of
order of application* The Agent may, with the authorisation of the Majority Lenders, by notice to the Borrower, the Security Parties
and the other Creditor Parties provide for a different manner of application from that set out in Clause 3t7t4-18.1 {Normal order
of application) either as regards a specified sum or sums or as regards sums in a specified category or categories. 18.3 Notice
of variation of order of application! Tho Agont may givo notices under Clauco 17.2 4?riThe Aeent mav give notices under Clause
18.2 {Variation of order of application) from time to time; and such a notice may be stated to apply not only to sums which may
be received or recovered in the future, but also to any sum which has been received or recovered on or after the third Business
Day before the date on which the notice is served. 18.4 Appropriation rights overriden. This Clause 17 and any notice which tho
Agont gives under Clause 17.2 43*4This Clause 18 {Application of Receipts) and any notice which the Agent gives under Clause 18.2
(Variation of order of application) shall override any right of appropriation possessed, and any appropriation made, by the Borrower
or any Security Party. 19 1SAPPLICATION OF EARNINGS 19.1 ISrlPayment of Earnings* The Borrower undertakes with each Creditor Party
to ensure that, throughout the Security Period (and subject only to the provisions of the General Assignment), all the Earnings
are paid to the Earnings Account unless the parties agree otherwise Provided that the Earnings in respect of each Ship shall be
available to the Borrower unless an Event of Default has occurred and is continuing. 48*2—Interest accrued on Earnings Account
Any crodit balance on the Earnings Account shall bear interest at the rate from time to time offered by the Agent to its customers
for Dollar deposits of similar amounts and for periods similar to those for which such balances appear to the Agent likely to
remain on the Earnings Account. 48*3—Monies on Earnings. Any monies standing to the credit of the Earnings Account shall,
provided that the provisions of Clause 12.5 are complied with and provided that no Event of Default or Potential Event of Default
shall have occurred, be at the free disposal of the Borrower. 19.2 18*4Location of accounts* The Borrower shall promptly: (a)
comply with any requirement of the Agent as to the location or re-location of the Earnings Account; and execute any documents
which the Agent specifies to create or maintain in favour of the Security Trustee a Security Interest over (and/or rights of set-off,
consolidation or other rights in relation to) the Earnings Account.
19.3
18.5 Debits for expenses etc. Following the occurrence of an Event of Default which is continuing-fcthe Agent shall be entitled
(but not obliged) from time to time to debit the Earnings Account without prior notice in order to discharge any amount due and
payable to it under Clause 20 or 21 21 (Fees and expenses) or 22 (Indemnities) to a Creditor Party or payment of which any Creditor
Party has become entitled to demand under Clause 20 or 21.21 (Fees and expenses) or 22 (Indemnities). 19-4 Interest accrued on
Earnings Account Anv credit balance on the Earnings Account shall bear interest at the rate from time to time offered by the Agent
to its customers for Dollar deposits of similar amounts and for periods similar to those for which such balances appear to the
Agent likely to remain on the Earnings Account. 19.5 Borrower's obligations unaffected The provisions of this Clause 19 (Application
of Earnings) do not affect: (a) the liability of the Borrower to make payments of principal and interest on the due dates; or
anv other liability or obligation of the Borrower or any Security Party under any Finance Document. 2g 49EVENTS OF DEFAULT 20.1
49r4Events of Default* An Event of Default occurs if: (a) the Borrower or any Security Party fails to pay within 3 Business Days
of the date when due any sum payable under a Finance Document or under any document relating to a Finance Document; or (b)any
broach occurs of Clauso 9.2,11.2,11.3,12.2,12.3,12.4,12.5 or 15.2; or (b) anv breach occurs of Clause 9.2 (Waiver of conditions
precedent), Clause 10.18 (Sanctions). Clause 12.2 (Title: negative pledge). Clause 12.3 (No disposal of assets). Clause 13.2 (Maintenance
of status). Clause 12.17 (Conduct of business: compliance with laws) in so far as it relates to Sanctions Laws. Clause 12.18 (Compliance
with Sanctions Laws) Clause 13.3 (Negative undertakings). Clause 13.5 (Payment of dividends). Clause 13.6 (Notification of Sanctions),
Clause 16.2 (Provision of additional security: prepayment) or paragraph (b) of Clause 15.9 (Compliance with laws ); or (c) any
breach by the Borrower or any Security Party occurs of any provision of a Finance Document (other than a breach covered by paragraphs
(a) or (b)) which, in the opinion of the Majority Lenders, is capable of remedy, and such default continues unremedied 30 days
after written notice from the Agent requesting action to remedy the same; or (d) any representation, warranty or statement made
or repeated by, or by an officer of, the Borrower or a Security Party in a Finance Document or in a Drawdown Notice or any other
notice or document relating to a Finance Document is untrue or misleading when it is made or repeated; or any of the following
occurs in relation to any Financial Indebtedness of a Relevant Person in respect of a sum, or sums aggregating, $5,000,000 or
more in tho case of tho Borrower and $15,000,000 or more in the case of oach Guarantor and tho Counter Guarantor the Borrower
or the equivalent in another currency:
(i)
any Financial Indebtedness of a Relevant Person is not paid when due; or (ii) any Financial Indebtedness of a Relevant Person
becomes due and payable or capable of being declared due and payable prior to its stated maturity date as a consequence of any
event of default; or (iii) a lease, hire purchase agreement or charter creating any Financial Indebtedness of a Relevant Person
is terminated by the lessor or owner or becomes capable of being terminated as a consequence of any termination event; or (iv)
any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any
swap or other derivative contract or transaction, relating to any Financial Indebtedness of a Relevant Person ceases to be available
or becomes capable of being terminated as a result of any event of default, or cash cover is required, or becomes capable of being
required, in respect of such a facility as a result of any event of default; or (v) any Security Interest securing any Financial
Indebtedness of a Relevant Person becomes enforceable; or (f) any of the following occurs in relation to a Relevant Person: (i)
a Relevant Person becomes, in the opinion of the Majority Lenders, unable to pay its debts as they fall due; or (ii) any assets
of a Relevant Person are subject to any form of execution, attachment, arrest, sequestration or distress in respect of a sum of,
or sums aggregating, $5,000,000 or more in tho case of tho Borrower and $15,000,000 or more in the case of oach Guarantor and
the Counter Guarantor the_Borrower or the equivalent in another currency; or (iii) any administrative or other receiver is appointed
over any asset of a Relevant Person; or (iv) an administrator is appointed (whether by the court or otherwise) in respect of a
Relevant Person; or (v) any formal declaration of bankruptcy or any formal statement to the effect that a Relevant Person is insolvent
or likely to become insolvent is made by a Relevant Person or by the directors of a Relevant Person or, in any proceedings, by
a lawyer acting for a Relevant Person; or (vi) a provisional liquidator is appointed in respect of a Relevant Person, a winding
up order is made in relation to a Relevant Person or a winding up resolution is passed by a Relevant Person; or (vii) a resolution
is passed, an administration notice is given or filed, an application or petition to a court is made or presented or any other
step is taken by (aa) a Relevant Person, (bb) the members or directors of a Relevant Person, (cc) a holder of Security Interests
which together relate to all or substantially all of the assets of a Relevant Person, or (dd) a government minister or public
or regulatory authority of a Pertinent Jurisdiction for or with a view to the winding up of that or another Relevant Person or
the appointment of a provisional liquidator or administrator in respect of that or another Relevant Person, or that or another
Relevant Person ceasing or suspending business operations or payments to creditors, save that this paragraph does not apply to
a fully solvent winding up of a Relevant Person other than the Borrower or either Guarantor or Counter Guarantor which is, or
is to be, effected for the purposes of
an
amalgamation or reconstruction previously approved by the Majority Lenders and effected not later than 3 months after the commencement
of the winding up; or (viii) an administration notice is given or filed, an application or petition to a court is made or presented
or any other step is taken by a creditor of a Relevant Person (other than a holder of Security Interests which together relate
to all or substantially all of the assets of a Relevant Person) for the winding up of a Relevant Person or the appointment of
a provisional liquidator or administrator in respect of a Relevant Person in any Pertinent Jurisdiction, unless the proposed winding
up, appointment of a provisional liquidator or administration is being contested in good faith, on substantial grounds and not
with a view to some other insolvency law procedure being implemented instead and either (aa) the application or petition is dismissed
or withdrawn within 30 days of being made or presented, or (bb) within 30 days of the administration notice being given or filed,
or the other relevant steps being taken, other action is taken which will ensure that there will be no administration and (in
both cases (aa) or (bb)) the Relevant Person will continue to carry on business in the ordinary way and without being the subject
of any actual, interim or pending insolvency law procedure; or (ix) a Relevant Person or its directors take any steps (whether
by making or presenting an application or petition to a court, or submitting or presenting a document setting out a proposal or
proposed terms, or otherwise) with a view to obtaining, in relation to that or another Relevant Person, any form of moratorium,
suspension or deferral of payments, reorganisation of debt (or certain debt) or arrangement with all or a substantial proportion
(by numberor value) of creditors or of any class of them orany such moratorium, suspension or deferral of payments, reorganisation
or arrangement is effected by court order, by the filing of documents with a court, by means of a contract or in any other way
at all; or (x) any meeting of the members or directors, or of any committee of the board or senior management, of a Relevant Person
is held or summoned for the purpose of considering a resolution or proposal to authorise or take any action of a type described
in paragraphs (iv) to (ix) or a step preparatory to such action, or (with or without such a meeting) the members, directors or
such a committee resolve or agree that such an action or step should be taken or should be taken if certain conditions materialise
or fail to materialise; or (xi) in a Pertinent Jurisdiction other than England, any event occurs, any proceedings are opened or
commenced or any step is taken which, in the opinion of the Majority Lenders is similar to any of the foregoing; or (g) the Borrower
ceases or suspends carrying on its business or a part of its business which, in the opinion of the Majority Lenders, is material
in the context of this Agreement; or (h) it becomes unlawful in any Pertinent Jurisdiction or impossible: (i) for the Borrower
or any Security Party to discharge any liability under a Finance Document or to comply with any other obligation which the Majority
Lenders consider material under a Finance Document; or (ii) for the Agent, the Security Trustee or the Lenders to exercise or
enforce any right under, or to enforce any Security Interest created by, a Finance Document; or any consent necessary to enable
the Borrower to own, operate or charter the Ship or to enable the Borrower or any Security Party to comply with any provision
which the Majority Lenders consider material of a Finance Document or tho Shipbuilding Contract is not granted, expires without
being renewed, is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled; or
(i)
without tho prior written consent of tho Majority Londors thoro is a change of control in tho direct and ultimate ownership of
tho Borrower Providod that a transfer of shares in tho Borrower as between tho Guarantors or any of their subsidiaries is permitted
subject always to tho now sharoholdor entering into a Negative Pledge in substantially tho same form as ontorod into by tho Shareholders
at tho dato of this Agroomont; or (j) {k)any provision which the Majority Lenders reasonably consider material of a Finance Document
proves to have been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been
or becomes invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another
Security Interest or any other third party claim or interest; or (k) (t}the security constituted by a Finance Document is in any
way imperilled or in jeopardy; or {m)any event or circumstance occurs which the Majority Lenders determine has, or could reasonably
be expected to have a material adverse effect: (i) on the ability of the Borrower or a Guarantor or the Counter Guarantor to perform
its obligations under the Finance Documents; or (ii) on the property, assets, nature of assets, operations, liabilities or condition
(financial or otherwise) of the Borrower or Guarantor A or tho Counter Guarantor. 20.2 49r2Actions following an Event of Default*
On, or at any time after, the occurrence of an Event of Default which is continuing: (a) the Agent may, and if so instructed by
the Majority Lenders, the Agent shall: (i) serve on the Borrower a notice stating that the Commitments and all other obligations
of each Lender to the Borrower under this Agreement are cancelled; and/or (ii) serve on the Borrower a notice stating that the
Loan, all accrued interest and all other amounts accrued or owing under this Agreement are immediately due and payable or are
due and payable on demand; and/or (iii) take any other action which, as a result of the Event of Default or any notice served
under paragraph (i) or (ii), the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law;
and/or (b) the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of the Majority Lenders,
the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under paragraph (a)
(i) or (ii), the Security Trustee, the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable
law. 20.3 Termination of Commitments. On tho service of a notice under Clause 19.2(a)(i A8r80n the service of a notice under paragraph
(aUi) of Clause 20.2 (Actions following an Event of Default), the Commitments and all other obligations of each Lender to the
Borrower under this Agreement shall be cancelled. 20.4 Acceleration of Loan l9.1Accoloration of Loan. On the service of a notice
under paragraph (aHii) of Clause 19.2(a)(ii20.2 (Actions following an Event of Default), the Loan, all accrued interest and all
other amounts accrued or owing from the Borrower or any Security Party under this Agreement and every other Finance Document shall
become immediately due and payable or, as the case may be, payable on demand.
20.5
19.5 SMultiple notices; action without noticci Tho Agont may servo notices under Clauses 19.2(a)(i) or (ii) simultaneously or
on different dotos and it and/or tho Security Trustee may tako any action referred to in Clause 19.2 if no such notice is served
or simultaneously with or at any time aftor tho service of both or cither of such notices. The Aeent mav serve notices under paragraphs
(a)(\) or (ii) of Clause 20.2 (Actions following on Event of Default) simultaneously or on different dates and it and/or the Security
Trustee mav take anv action referred to in Clause 20.2 (Actions following an Event of Default) if no such notice is served or
simultaneously with or at anv time after the service of both or either of such notices. 20.6 Notification of Creditor Parties
and Security Partiesi The Agont shall sond to oach Londor, tho Security Trustoo and each Security Party a copy or tho toxt of
any notice which tho Agont servos on tho Borrower under Clause 19.2 49*6The Agent shall send to each Lender, the Security Trustee
and each Security Party a copy or the text of anv notice which the Agent serves on the Borrower under Clause 20.2 (Actions following
an Event of Default): but the notice shall become effective when it is served on the Borrower, and no failure or delay by the
Agent to send a copy or the text of the notice to any other person shall invalidate the notice or provide the Borrower or any
Security Party with any form of claim or defence. 20.7 Lender's rights unimpaired* Nothing in this Clause shall be taken to impair
or restrict the exercise of any right given to individual Lenders under a Finance Document or the general law; and, in particular,
this Clause is without prejudice to Clause 3.1 (Interests of Lenders several). 20.8 4Sr8Exclusion of Creditor Party liability*
No Creditor Party, and no receiver or manager appointed by the Security Trustee, shall have any liability to the Borrower or a
Security Party: (a) for any loss caused by an exercise of rights under, or enforcement of a Security Interest created by, a Finance
Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or (b) as mortgagee in possession
or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such
a Security Interest or for any reduction (however caused) in the value of such an asset, except that this does not exempt a Creditor
Party or a receiver or manager from liability for losses shown to have been directly and mainly caused by the dishonesty or the
wilful misconduct of such Creditor Party's own officers and employees or (as the case may be) such receiver's or manager's own
partners or employees. 20.9 Relevant Personst In this Clause 19 49*9ln this Clause 20 (Events of Default), a "Relevant Person"
means the Borrower and any Security Party. 20.10 Interpretation lntomrotation.19.10 In In paragraph (e) of Clause 49r4re20.1 (Events
of Default), references to an event of default or a termination event include any event, howsoever described, which is similar
to an event of default in a facility agreement or a termination event in a finance lease; and in paragraph (f) of Clause 49*4(120.1
(Events of Default) "petition" includes an application.
21
30FEES AND EXPENSES 21.1 aOrlArrangement, commitment ■ aconcv foosi Tho Borrowor shall pav:fees {a) to tho Load Arrangor
an arrangomont foo in tho amount and at tho times agreed in a Foo Letter; The Borrower shall pav to the Agent (for the account
of each Lender) quarterly in arrears during the period from (and including) the date of the acceptance of the term sheet to the
earlier of (i) the final Drawdown Date and (ii) the last day of the Availability Period, for the account of the Lenders, a commitment
fee at the rate of 0.5175 per cent, per annum on the amount of the Total Commitments less the amount of the Loan, for distribution
among the Lenders pro rata to their CommitmentST-aftd* (e) to tho Agent (for its own account) a non^ refundable agency foo in
tho amount and at tho times agreed in a Foe Letter. 21.2 20r2Costs of negotiation, preparation etc. The Borrower shall pay to
the Agent on its demand the amount of all expenses incurred by the Agent or the Security Trustee in connection with the negotiation,
preparation, execution or registration of any Finance Document or any related document or with any transaction contemplated by
a Finance Document or a related document. 21.3 20r3Costs of variations, amendments, enforcement etc. The Borrower shall pay to
the Agent, on the Agent's demand, for the account of the Creditor Party concerned the amount of all expenses incurred by a Creditor
Party in connection with: (a) any amendment or supplement to a Finance Document, or any proposal for such an amendment to be made;
(b) any consent or waiver by the Lenders, the Majority Lenders or the Creditor Party concerned under or in connection with a Finance
Document, or any request for such a consent or waiver; (c) the valuation of any security provided or offered under Clause 45-16
(Security Cover) or any other matter relating to such security; or (d) any step taken by the Creditor Party concerned with a view
to the protection, exercise or enforcement of any right or Security Interest created by a Finance Document or for any similar
purpose. There shall be recoverable under paragraph (d) the full amount of all legal expenses, whether or not such as-would be
allowed under rules of court or any taxation Taxation or other procedure carried out under such rules. 20.4DoGumentary taxes.
The Borrower shall promptly pay any tax payable* on or by roforence to any Finance Document, and shall, on the Agont's domand,
fully indomnify each Creditor Party against any claims; expenses; liabilities and losses resulting from any failuro or delay by
tho Borrowor to pay such a tax. 21.4 Certification of amounts aOiSCertification of amounts^ A notice which is signed by 2 officers
of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause
30-21 (Fees and expenses) and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of
which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
22
21INDEMNITIES 22.1 Indemnities regarding borrowing and repayment of Loan* MrrlThe Borrower shall fully indemnify the Agent and
each Lender on the Agent's demand and the Security Trustee on its demand in respect of all claims, expenses, liabilities and losses
which are made or brought against or incurred by that Creditor Party, or which that Creditor Party reasonably and with due diligence
estimates that it will incur, as a result of or in connection with: (a) an Advance not being borrowed on the date specified in
the Drawdown Notice for any reason other than a default by the Lender claiming the indemnity; (b) the receipt or recovery of all
or any part of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period; (c) any
failure (for whatever reason) by the Borrower to make payment of any amount due under a Finance Document on the due date or, if
so payable, on demand (after giving credit for any default interest paid by the Borrower on the amount concerned under Clause
7 (Default Interest)); (d) the occurrence of an Event of Default or a Potential Event of Default and/or the acceleration of repayment
of the Loan under Clause J9j20 (Events of Default). and in rospoct of any tax (othor than tax on its overall not income) for which
a Creditor Party is liable in connection with any amount paid or payable to that Creditor Party (whether for its own account or
otherwise) under any Finance Document. 22.2 Breakage costsi Without limiting its generality, Clause 21.1 24i3Without limiting
its generality. Clause 22.1 (Indemnities regarding borrowing and repayment of Loan) covers anv claim, expense, liability or loss,
including a loss of a prospective profit, incurred by a Lender: (a) in liquidating or employing deposits from third parties acquired
or arranged to fund or maintain all or any part of its Contribution and/or any overdue amount (or an aggregate amount which includes
its Contribution or any overdue amount); and (b) in terminating, or otherwise in connection with, any interest and/or currency
swap or any other transaction entered into (whether with another legal entity or with another office or department of the Lender
concerned) to hedge any exposure arising under this Agreement or a number of transactions of which this Agreement is one. In the
circumstances referred to in paragraph (b) of Clause HA^dll.l (Indemnities regarding borrowing and repayment of Loan) such costs
shall include an amount equal to the Margin which would, but, for receipt or recovery of the relevant part of the Loan, have accrued
on the relevant part of the Loan, from the date of such receipt or recovery to the end of the then current Interest Period relating
thereto. 22.3 24riMiscellaneous indemnities* The Borrower shall fully indemnify each Creditor Party severally on their respective
demands in respect of all claims, expenses, liabilities and losses which may be made or brought against or incurred by a Creditor
Party, in any country, as a result of or in connection with: (a) any action taken, or omitted or neglected to be taken, under
or in connection with any Finance Document by the Agent, the Security Trustee or any other Creditor Party or by any receiver appointed
under a Finance Document; or
(b)
any other Pertinent Matter, other than claims, expenses, liabilities and losses which are shown to have been directly and mainly
caused by the dishonesty, gross negligence or wilful misconduct of the officers or employees of the Creditor Party concerned.
Without prejudice to its generality, this Clause 24*3-22.3 (Miscellaneous indemnities) covers any claims, expenses, liabilities
and losses which arise, or are asserted, under or in connection with any law relating to safety at sea, the ISM Code, the ISPS
Code or any Environmental Law. 22.4 Currency indemnity 21i4Curroncy indemnity! If any sum due from the Borrower or any Security
Party to a Creditor Party under a Finance Document or under any order or judgment relating to a Finance Document has to be converted
from the currency in which the Finance Document provided for the sum to be paid (the "Contractual Currency") into another
currency (the "Payment Currency") for the purpose of: (a) making or lodging any claim or proof against the Borrower
or any Security Party, whether in its liquidation, any arrangement involving it or otherwise; or (b) obtaining an order or judgment
from any court or other tribunal; or (c) enforcing any such order or judgment, the Borrower shall indemnify the Creditor Party
concerned against the loss arising when the amount of the payment actually received by that Creditor Party is converted at the
available rate of exchange into the Contractual Currency. In this Clause 24r422.4 (Currency indemnity), the "available rate
of exchange" means the rate at which the Creditor Party concerned is able at the opening of business (London time) on the
Business Day after it receives the sum concerned to purchase the Contractual Currency with the Payment Currency. This Clause 24*4-22.4
(Currency indemnity) creates a separate liability of the Borrower which is distinct from its other liabilities under the Finance
Documents and which shall not be merged in any judgment or order relating to those other liabilities. 22.5 Certification of amounts
21.5Certification of amounts. A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount,
or aggregate amount, is due to that Creditor Party under this Clause 24-22 (Indemnities) and which indicates (without necessarily
specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima facie
evidence that the amount, or aggregate amount, is due. 22.6 Sums deemed due to a Lender. For tho purposes of this Clause 21 34*6For
the purposes of this Clause 22 (Indemnities), a sum payable by the Borrower to the Agent or the Security Trustee for distribution
to a Lender shall be treated as a sum due to that Lender. 22.7 Sanctions and regulatory indemnities The Borrower shall pay to
the Agent on demand, and the Borrower shall indemnify each Lender against, all costs, charges, expenses, claims, liabilities,
losses, duties and fees (including, but not limited to, legal fees and expenses on a full indemnity basis) and taxes
thereon
suffered or incurred by a Lender (otherthan in each case by reason of a Lender's gross negligence, dishonesty or wilful misconduct):
(a) arising or asserted under or in connection with anv law relating to safety at sea, the ISM Code, anv Environmental Law or
anv Sanctions Law: or (b) as a result of anv claim, action, civil penalty or fine against, any settlement, and anv other kind
of loss or liability, and as a result of conduct of the Borrower or anv of their partners, directors, officers, employees or agents
that violates any Sanctions Laws. 2j| 22NO SET-OFF OR TAX DEDUCTION 23.1 33rlNo deductions* All amounts due from the Borrower
under a Finance Document shall be paid: (a) without any form of set-off, cross-claim or condition; and (b) free and clear of any
tax-Iax_deduction except a tax-Tax deduction which the Borrower is required by law to make. 22r2—Grossing-up for taxes.
If the Borrower is required by law to mako a fax doduction from any payment: {a) tho Borrower shall notify tho Agont as soon as
it becomes aware of tho requiromont; (b) tho Borrower shall pay tho tax deducted to tho appropriate taxation authority promptly,
and in any evont before any fine or penalty arises; and (e) tho amount duo in rospoct of tho payment shall bo increased by tho
amount necessary to ensure that oach Creditor Party rocoivos and retains (froo from any liability relating to tho tax doduction)
a net amount which, after tho tax deduction, is equal to tho full amount which it would otherwise have rocoivod. 22t3—Evidence
of payment of taxes. Within 1 month after making any tax deduction, the Borrower shall deliver to the Agent documentary evidence
satisfactory to the Agent that the tax had been paid to the appropriate taxation authority. 22A—Tax credits. If a Creditor
Party receives for its own account a repayment or credit in respect of tax on account of which the Borrower has made an increased
payment under Clause 22.2, it shall pay to the Borrower a sum equal to the proportion of the repayment or credit which it allocates
to the amount due from the Borrower in respect of which the Borrower made the increased payment: {a) a Creditor Party shall not
bo obliged to allocate to this transaction any part of a tax repayment or credit which is referable to a class or number of transactions;
(b) nothing in this Clause 22.4 shall oblige a Creditor Party to arrange its tax affairs in any particular manner, to claim any
typo of roliof, credit, allowance or doduction instead of, or in priority to, another or to make any such claim within any particular
timo; (e) nothing in this Clause 22.4 shall oblige a Creditor Party to mako a payment which would loovo it in a worso position
than it would have boon in if tho Borrower hod not boon required to mako a tax doduction from a payment; and (4) any allocation
or determination mado by a Creditor Party undor or in connection with this Clause 22.4 shall bo conclusive and binding on tho
Borrower.
24
TAX GROSS UP AND INDEMNITIES 24.1 Definitions (a) In this Agreement: "Protected Party" means a Creditor Party which
is or will be subject to any liability, or required to make anv payment, for or on account of Tax in relation to a sum received
or receivable (or anv sum deemed for the purposes of Tax to be received or receivable) under a Finance Document. "Tax Credit"
means a credit against relief or remission for, or repayment of anv Tax. 22.5Exclusion of tax on ovorall not income. In this Clause
22 "tax deduction" moans any "Tax Deduction" means a deduction or withholding for or on account of any present
or future tax oxcopt tax on a Creditor Party's ovorall not incomo.Tax from a payment under a Finance Document, other than a FATCA
Deduction. "Tax Payment" means either the increase in a payment made by the Borrower to a Creditor Party under Clause
24.2 (Tax aross-up) or a payment under Clause 24.3 (Tax indemnity). (a) Unless a contrary indication appears, in this Clause 24
(Tax Gross Up and Indemnities) reference to "determines" or "determined" means a determination made in the
absolute discretion of the person making the determination. 24.2 Tax eross-up (a) The Borrower shall make all payments to be made
by it without any Tax Deduction, unless a Tax Deduction is required by law. (b) The Borrower shall promptly upon becoming aware
that it must make a Tax Deduction (or that there is anv change in the rate or the basis of a Tax Deduction) notify the Agent accordingly.
Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives
such notification from a Lender it shall notify the Borrower. (c) If a Tax Deduction is required by law to be made by the Borrower,
the amount of the payment due from the Borrower shall be increased to an amount which (after making any Tax Deduction) leaves
an amount equal to the payment which would have been due if no Tax Deduction had been required. (d) If the Borrower is required
to make a Tax Deduction, the Borrower shall make that Tax Deduction and anv payment required in connection with that Tax Deduction
within the time allowed and in the minimum amount required bv law. (e) Within 30 days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the Borrower making that Tax Deduction shall deliver to the Agent for
the Creditor Party entitled to the payment evidence reasonably satisfactory to that Creditor Party that the Tax Deduction has
been made or (as applicable) any appropriate payment paid to the relevant taxing authority. 24.3 Tax indemnity (a) The Borrower
shall (within three Business Days of demand bv the Agent) oav to a Protected Party an amount equal to the loss, liability or cost
which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax bv that Protected
Party in respect of a Finance Document.
(b)
Paragraph (a) above shall not applv: Jjl with respect to anv Tax assessed on a Creditor Party: (A) under the law of the jurisdiction
in which that Creditor Party is incorporated or. if different, the jurisdiction (or jurisdictions) in which that Creditor Party
is treated as resident for tax purposes: or (B) under the law of the Jurisdiction in which that Creditor Party's Facility Office
is located in respect of amounts received or receivable in that Jurisdiction. if that Tax is imposed on or calculated bv reference
to the net income received or receivable (but not any sum deemed to be received or receivable) bv that Creditor Party: or (ii)
to the extent a loss, liability or cost: (A) is compensated for bv an increased payment under Clause 24.2 (Tax aross-up); or (B)
relates to a FATCA Deduction required to be made bv a Party. (c) A Protected Party making, or intending to make, a claim under
paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which
the Agent shall notify the Borrower. (d) A Protected Party shall, on receiving a payment from the Borrower under this Clause 24.3
(Tax indemnity), notify the Agent. 24.4 Tax Credit If the Borrower makes a Tax Payment and the relevant Creditor Party determines
that: (a) a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to
a Tax Deduction in consequence of which that Tax Payment was received: and (b) that Creditor Party has obtained and utilised that
Tax Credit. the Creditor Party shall pay an amount to the Borrower which that Creditor Party determines will leave it (after that
payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made bv the Borrower.
24.5 Stamp taxes The Borrower shall pay and, within three Business Days of demand, indemnify each Creditor Party against any cost,
loss or liability which that Creditor Party incurs in relation to all stamp duty, registration and other similar Taxes payable
in respect of anv Finance Document. 24.6 VAT (a) All amounts expressed to be payable under a Finance Document bv anv Party to
a Creditor Party which (in whole or in part) constitute the consideration for anv supply for VAT purposes are deemed to be exclusive
of anv VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable
on anv supply made bv anv Creditor Party to anv Party under a Finance Document and such Creditor Party is required to account
to the relevant tax authority for the VAT, that Party must pay to such Creditor Party (in addition to and at the same time as
paving anv other consideration for such supply)
an
amount equal to the amount of the VAT (and such Creditor Party must promptly provide an appropriate VAT invoice to that Party).
(b) If VAT is or becomes chargeable on any suppIv made bv anv Creditor Party (the "Supplier") to any other Creditor
Party (the "Recipient") under a Finance Document, and anv Party other than the Recipient (the "Relevant Party")
is required bv the terms of anv Finance Document to oav an amount equal to the consideration for that supply to the Supplier (rather
than being required to reimburse or indemnify the Recipient in respect of that consideration): HI (where the Supplier is the person
required to account to the relevant tax authority for the VAT) the Relevant Party must also pav to the Supplier (at the same time
as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this sub-paragraph (i) applies)
promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevanttax authority
which the Recipient reasonably determines relates to the VAT chargeable on that supply: and (ii) (where the Recipient is the person
required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient,
pay to the Recipient an amount eoual to the VAT chargeable on that supply but only to the extent that the Recipient reasonably
determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT. (c) Where a
Finance Document requires anv Party to reimburse or indemnify a Creditor Party for any cost or expense, that Party shall reimburse
or indemnify fas the case may be) such Creditor Party for the full amount of such cost or expense, including such part of it as
represents VAT, save to the extent that such Creditor Party reasonably determines that it is entitled to credit or repayment in
respect of such VAT from the relevant tax authority. (d) Any reference in this Clause 24.6 (VAT) to anv Party shall, at anv time
when that Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and
unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate)
receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented
bv the relevant member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party
or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the
relevant representative member (or representative or head) of that group or unity at the relevant time (as the case may be). (e)
In relation to any supply made by a Creditor Party to any Party under a Finance Document, if reasonably requested by such Creditor
Party, that Party must promptly provide such Creditor Party with details of that Party's VAT registration and such other information
as is reasonably requested in connection with such Creditor Party's VAT reporting requirements in relation to such supply. 24.7
FATCA Information (a) Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another
Party: HI confirm to that other Party whether it is: (A) a FATCA Exempt Party: or (B) not a FATCA Exempt Party: and
(ii)
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party
reasonably requests for the purposes of that other Party's compliance with FATCA: and (iii) supply to that other Party such forms,
documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other
Party's compliance with anv other law, regulation, or exchange of information regime. fb) If a Party confirms to another Party
pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it
is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly. (c) Paragraph
(a) above shall not oblige any Creditor Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any
other Party to do anything which would or might in its reasonable opinion constitute a breach of: Jjl any law or regulation: (ii)
any fiduciary dutv: or (iii) any duty of confidentiality. (d) If a Party fails to confirm whether or not it is a FATCA Exempt
Party or to supply forms- documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph
(a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the
purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party
in question provides the requested confirmation, forms, documentation or other information. 24.8 FATCA Deduction (a) Each Party
mav make any FATCA Deduction it is required to make bv FATCA. and anv payment required in connection with that FATCA Deduction,
and no Party shall be required to increase anv payment in respect of which it makes such a FATCA Deduction or otherwise compensate
the recipient of the payment for that FATCA Deduction. (b) Each Party shall promptly, upon becoming aware that it must make a
FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is
making the payment and, in addition, shall notify each Obligor and the Agent and the Agent shall notify the other Creditor Parties.
25 381 (.LEGALITY, ETC 25.1 Illegality 23,Illegality. This Clause 33-25 I Illegality, etc) applies if a Lender (the "Notifying
Lender") notifies the Agent that it has become, or will with effect from a specified date, become: (a) unlawful or prohibited
as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law
is or will be interpreted or applied; or (b) contrary to, or inconsistent with, any regulation and/or contrary to or declared
by any Sanctions Authority to be contrary to Sanctions Laws. for the Notifying Lender to maintain or give effect to any of its
obligations under this Agreement in the manner contemplated by this Agreement.
25.2
23.2 Notification of illegality* The Agent shall promptly notify the Borrower, the Security Parties, the Security Trustee and
the other Lenders of the notice under Clause HtJ-25.1 {Illegality) which the Agent receives from the Notifying Lender. 25.3 23i3Prepayment;
termination of Commitment. On tho Agont notifying tho Borrowor under Clause 23.2, tho Notifying Lender's Commitment shall terminate;
and thereupon or, if later, -on the dato spocifiod in tho Notifying Lender's notice under Clause 23.1 as the date on which tho
notified event would become effective tho Borrowor shall propay the Notifying Lender's Contribution in accordance with Clause
8: On the Agent notifying the Borrower under Clause 25.2 (Notification of illegality), the Notifying Lender's Commitment shall
terminate: and thereupon or. if later, on the date specified in the Notifying Lender's notice under Clause 25.1 (Illegality) as
the date on which the notified event would become effective the Borrower shall prepay the Notifying Lender's Contribution in accordance
with Clause 8. 25.4 Mitigation 23.4Mitigation. If circumstances arise which would result in a notification under Clause 33ri 25.1
(Illegality) then, without in any way limiting the rights of the Notifying Lender under Clause 23t325.3 (Prepayment: termination
of Commitment), the Notifying Lender shall use reasonable endeavours to transfer its obligations, liabilities and rights under
this Agreement and the Finance Documents to another office or financial institution not affected by the circumstances but the
Notifying Lender shall not be under any obligation to take any such action if, in its opinion, to do would or might: (a) have
an adverse effect on its business, operations or financial condition; or (b) involve it in any activity which is unlawful or prohibited
or any activity that is contrary to, or inconsistent with, any regulation; or (c) involve it in any expense (unless indemnified
to its satisfaction) or tax disadvantage. 2§ 24INCREASED COSTS 26.1 Increased costs. This Clause 24 24r3rThis Clause 26 (Increased
Costs) applies if a Lender (the "Notifying Lender") notifies the Agent that the Notifying Lender considers that as a
result of: (a) the introduction or alteration after the date of this Agreement of a law or an alteration after the date of this
Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the application to
payments under this Agreement of a tax on the Lender's overall net income); or (b) complying with any regulation (including any
which relates to capital adequacy or liquidity controls or which affects the manner in which the Notifying Lender allocates capital
resources to its obligations under this Agreement) which is introduced, or altered, or the interpretation or application of which
is altered, after the date of this Agreement7; (c) the implementation, application of or compliance with Basel III or CRD IV or
any law or regulation that implements or applies Basel III or CRD IV. the Notifying Lender (or a parent company of it) has incurred
or will incur an "increased cost".
26.2
24.2 Moaning of "increased cost". In this Clause 21, "incroasod cost" moans, in relation to a Notifying Londor:26
(increased Costs): (a) "increased cost" means.: HI a reduction in the rate of return from the Loan or on a Creditor
Party's (or its Affiliate's) overall capital: ^a) an additional or incroasod cost incurred as a result of, or in connection with,
tho Notifying Lender having ontorod into, or boing a party to, this Agroomont or a Transfer Cortificoto, of funding or maintaining
its Commitment or Contribution or performing its obligations undor this Agroomont, or of having outstanding all or any part of
its Contribution or othor unpaid sums; (te) a reduction in the amount of any payment to the Notifying Lender undor this Agroomont
or in tho effective return which such a payment represents to the Notifying Lender or on its capital; (ii) {e}an additional or
increased cost of funding all or maintaining all or any of the advances comprised in a class of advances formed by or including
tho Notifying Lender's Contribution or (as tho case may require) tho proportion of that cost attributable to tho Contribution:
or: or (iii) a reduction of any amount due and payable under any Finance Document. 4^) a liability to make o payment, or a return
foregone, which is calculated by roforonco to any amounts rocoivod or rocoivablo by tho Notifying Lender undor this Agreement;
but not an itom attributable to a change in the rate of tax on tho ovorall not income of the Notifying Lender (or a parent company
of it) or an item covered by tho indemnity for tax in Clause 21.1 or bv Clause 22 or an itom arising diroctlv out of tho implementation
or which is incurred or suffered bv a Creditor Party or anv of its Affiliates to the extent that it is attributable to that Creditor
Party having entered into its Commitment or funding application of or complianco with tho "International Convergence of Capital
Measurement and Capital Standards, a Revised Framework" published by tho Basel Committee on Banking Supervision in Juno 2004,
in tho form existing on the date of this Agroomont ("Basel II") or any othor law or regulation which implements Basel
II (whether such implementation, application or complianco is by a government, regulator, Creditor Party or any of its affiliatos.oLPerforming
its obligations under any Finance Document. For the purposes of this Clause 24.2 26.2 the Notifying Lender may in good faith allocate
or spread costs and/or losses among its assets and liabilities (or any class of its assets and liabilities) on such basis as it
considers appropriate. M "Basel III" means: H! the agreements on capital requirements, a leverage ratio and liquidity
standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems". "Basel
III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities
operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010. each
as amended, supplemented or restated; (ii) the rules for global systemicallv important banks contained in "Global svstemicallv
important banks: assessment methodology and the additional loss absorbencv requirement - Rules text" published by the Basel
Committee on Banking Supervision in November 2011. as amended, supplemented or restated: and
(iii)
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel IN". (cj
"CRD IV" means: HI Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential
requirements for credit institutions and investment firms and amending regulation (EU) No. 648/2012: (ii) Directive 2013/36/EU
of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential
supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and
2006/49/EC: and (iii) anv other law or regulation which implements Basel III. 26.3 24i3Notification to Borrower of claim for increased
costs* The Agent shall promptly notify the Borrower and the Security Parties of the notice which the Agent received from the Notifying
Lender under Clause 34t3:26.1 {Increased costs). 26.4 Payment of increased costs* 24*4The Borrower shall pay to the Agent, on
the Agent's demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrower
that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost. 26.5 Notice
of prepayment 21>5Notico of propaymonti If the Borrower is not willing to continue to compensate the Notifying Lender for the
increased cost under Clause 34t426.4 {Payment of increased costs), the Borrower may give the Agent not less than 14 days' notice
of its intention to prepay the Notifying Lender's Contribution at the end of an Interest Period. 26.6 Prepayment; termination
of Commitment. A notice under Clause 24.5 24.6A notice under Clause 26.5 {Notice of prepayment) shall be irrevocable; the Agent
shall promptly notify the Notifying Lender of the Borrower's notice of intended prepayment; and: (a) on the date on which the
Agent serves that notice, the Commitment of the Notifying Lender shall be cancelled; and (b) on the date specified in its notice
of intended prepayment, the Borrower shall prepay (without premium or penalty) the Notifying Lender's Contribution, together with
accrued interest thereon at the applicable rate plus the Margin. 26.7 Exceptions Clause 26.1 {Increased costs) does not apply
to the extent any Increased Cost is: (a) attributable to a Tax Deduction required by law to be made by the Borrower: (b) attributable
to a FATCA Deduction required to be made bv a Partv: (c) compensated for bv Clause 24.3 {Tax indemnity) (or would have been compensated
for under Clause 24.3 {Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause
24.3 (Tax indemnity) applied).
26.8
24.7 Application of prepayment. Clause 8 (Repayment and Prepayment) shall apply in relation to the prepayment. 21 3SSET-OFF 27.1
3SrlApplication of credit balances* At any time after the occurrence of an Event of Default which is continuing, each Creditor
Party may without prior notice: (a) apply any balance (whether or not then due) which at any time stands to the credit of any
account in the name of the Borrower at any office in any country of that Creditor Party in or towards satisfaction of any sum
then due from the Borrower to that Creditor Party under any of the Finance Documents; and (b) for that purpose: (i) break, or
alter the maturity of, all or any part of a deposit of the Borrower; (ii) convert or translate all or any part of a deposit or
other credit balance into Dollars; and (iii) enter into any other transaction or make any entry with regard to the credit balance
which the Creditor Party concerned considers appropriate. 27.2 Existing rights unaffected* No Creditor Party shall bo obliged
to exorcise any of its rights under Clause 25.1 25t2No Creditor Party shall be obliged to exercise anv of its rights under Clause
27.1 (Application of credit balances): and those rights shall be without prejudice and in addition to any right of set-off, combination
of accounts, charge, lien or other right or remedy to which a Creditor Party is entitled (whether under the general law or any
document). 27.3 Sums deemed due to a Lender 25i8Sums doomed duo to a Lender. For the purposes of this Clause 2527 (Set-Off), a
sum payable by the Borrower to the Agent or the Security Trustee for distribution to, or for the account of, a Lender shall be
treated as a sum due to that Lender; and each Lender's proportion of a sum so payable for distribution to, or for the account
of, the Lenders shall be treated as a sum due to such Lender. 27.4 No Security Interest. This Clause 25 3S*4This Clause 27 (Set-Off)
gives the Creditor Parties a contractual right of set-off only and does not create any equitable charge or other Security Interest
over any credit balance of the Borrower. 28 36TRANSFERS AND CHANGES IN LENDING OFFICES 28.1 26rlTransfer by Borrower* The Borrower
may not transfer any of its rights, liabilities or obligations under any Finance Document. 28.2 Transfer bv a Lender 26.2Transfor
by a Lender. Subject to Clause 2€r428.4 (Effective Date of Transfer Certificate). a Lender (the "Transferor Lender")
may, at its own cost, with the prior written consent of the
Borrower
(not to be unreasonably withheld or delayed) or without the consent of the Borrower if an Event of Default or a Potential Event
of Default has occurred and is continuing, cause: (a) its rights in respect of all or part of its Contribution; or (b) its obligations
in respect of all or part of its Commitment; or (c) a combination of (a) and (b), to be (in the case of its rights) transferred
to, or (in the case of its obligations) assumed by, another bank or financial institution or a trust; fund or the entity which
is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial
assets (a "Transferee Lender") by delivering to the Agent a completed certificate in the form set out in Schedule 4
(Transfer Certificate) with any modifications approved or required by the Agent (a "Transfer Certificate") executed
by the Transferor Lender and the Transferee Lender, Provided that a Lender may cause such transfer without needing the consent
of the Borrower or any Security Party if an Event of Default has occurred and is continuing or if the Transferee Lender is: (d)
{a}another branch of the Transferor Lender; (e) (b}a direct or indirect subsidiary or affiliate Subsidiary or Affiliate of the
Transferor Lender; £Q {e)a company of which the Transferor Lender is a subsidiarySubsidiary; or (g) {d)a company which is
under the same control as the Lender. However any rights and obligations of the Transferor Lender in its capacity as Agent or
Security Trustee will have to be dealt with separately in accordance with the Agency and Trust Agreement. 28.3 24»3Transfer
Certificate, delivery and notification* As soon as reasonably practicable after a Transfer Certificate is delivered to the Agent,
it shall (unless it has reason to believe that the Transfer Certificate may be defective): (a) sign the Transfer Certificate on
behalf of itself, the Borrower, the Security Parties, the Security Trustee and each of the other Lenders; (b) on behalf of the
Transferee Lender, send to the Borrower letters or faxes notifying them of the Transfer Certificate and attaching a copy of it;
(c) send to the Transferee Lender copies of the letters or faxes sent under paragraph (b) above, but the Agent shall only be obliged
to execute a Transfer Certificate delivered to it by the Transferor Lender and the Transferee Lender once it is satisfied it has
complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in
relation to the transfer to that Transferee Lender. 28.4 26.4Effective Date of Transfer Certificate* A Transfer Certificate becomes
effective on the date, if any, specified in the Transfer Certificate as its effective date Provided that it is signed by the Agent
under Clause 26.3 27.3 (Sums deemed due to a Lender) on or before that date.
28.5
No transfer without Transfer Certificate* 3€t6No assignment or transfer of any right or obligation of a Lender under any
Finance Document is binding on, or effective in relation to, the Borrower, any Security Party, the Agent or the Security Trustee
unless it is effected, evidenced or perfected by a Transfer Certificate. 28.6 Lender re-organisation; waiver of Transfer Certificate*
36»6However, if a Lender enters into any merger, de-merger or other reorganisation as a result of which all its rights or
obligations vest in another person (the "successor"), the Agent may, if it sees fit, by notice to the successor and
the Borrower and the Security Trustee waive the need for the execution and delivery of a Transfer Certificate; and, upon service
of the Agent's notice, the successor shall become a Lender with the same Commitment and Contribution as were held by the predecessor
Lender. 28.7 26*7Effect of Transfer Certificate* A Transfer Certificate takes effect in accordance with English law as follows:
(a) to the extent specified in the Transfer Certificate, all rights and interests (present, future or contingent) which the Transferor
Lender has under or by virtue of the Finance Documents are assigned to the Transferee Lender absolutely, free of any defects in
the Transferor Lender's title and of any rights or equities which the Borrower or any Security Party had against the Transferor
Lender; (b) the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate; (c) the Transferee
Lender becomes a Lender with the Contribution previously held by the Transferor Lender and a Commitment of an amount specified
in the Transfer Certificate; (d) the Transferee Lender becomes bound by all the provisions of the Finance Documents which are
applicable to the Lenders generally, including those about pro-rata sharing and the exclusion of liability on the part of, and
the indemnification of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those
provisions (other than those relating to exclusion of liability), the Transferor Lender ceases to be bound by them; (e) any part
of the Loan which the Transferee Lender advances after the Transfer Certificate's effective date ranks in point of priority and
security in the same way as it would have ranked had it been advanced by the transferor, assuming that any defects in the transferor's
title and any rights or equities of the Borrower or any Security Party against the Transferor Lender had not existed; (f) the
Transferee Lender becomes entitled to all the rights under the Finance Documents which are applicable to the Lenders generally,
including but not limited to those relating to the Majority Lenders and those under Clause 5.7 (Market disruption) and Clause
2921 (Fees and expenses), and to the extent that the Transferee Lender becomes entitled to such rights, the Transferor Lender
ceases to be entitled to them; and (g) in respect of any breach of a warranty, undertaking, condition or other provision of a
Finance Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled
to recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether
the original Lender would have incurred a loss of that kind or amount. The rights and equities of the Borrower or any Security
Party referred to above include, but are not limited to, any right of set off and any other kind of cross-claim.
28.8
Maintonanco of rogistor of Lenders.—During the Security Period the Agent shall maintain a register in which it shall record
the name, Commitment, Contribution and administrative details (including the lending office) from time to time of each Lender
holding a Transfer Certificate and the effective date (in accordance with Clause 2&A28A (Effective Date of Transfer Certificate))
of the Transfer Certificate; and the Agent shall make the register available for inspection by any Lender, the Security Trustee
and the Borrower during normal banking hours, subject to receiving at least 3 Business Days' prior notice. 28.9 Reliance on register
of Lenders 26.9Reliance on register of Lenders. The entries on that register shall, in the absence of manifest error, be conclusive
in determining the identities of the Lenders and the amounts of their Commitments and Contributions and the effective dates of
Transfer Certificates and may be relied upon by the Agent and the other parties to the Finance Documents for all purposes relating
to the Finance Documents. 28.10 26*10Authorisation of Agent to sign Transfer Certificates* The Borrower, the Security Trustee
and each Lender irrevocably authorise the Agent to sign Transfer Certificates on its behalf. 28.11 24riiRegistration fee* In respect
of any Transfer Certificate, the Agent shall be entitled to recover a registration fee of $3,000 from the Transferee Lender. 28.12
24*3r2Sub-participation; subrogation assignment* A Lender may sub-participate all or any part of its rights and/or obligations
under or in connection with the Finance Documents without the consent of, or any notice to, the Borrower, any Security Party,
the Agent or the Security Trustee; and the Lenders may assign, in any manner and terms agreed by the Majority Lenders, the Agent
and the Security Trustee, all or any part of those rights to an insurer or surety who has become subrogated to them. 28.13 Disclosure
of information 26.1iDisclosure of information. A Lender may with the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) disclose to a potential Transferee Lender or sub-participant any information which the Lender has received
in relation to the Borrower, any Security Party or their affairs under or in connection with any Finance Document, unless the
information is clearly of a confidential nature. 28.14 24r44Change of lending office* A Lender may change its lending office by
giving notice to the Agent and the change shall become effective on the later of: (a) the date on which the Agent receives the
notice; and (b) the date, if any, specified in the notice as the date on which the change will come into effect. 28.15 Notification
26.15Notification. On receiving such a notice, the Agent shall notify the Borrower and the Security Trustee; and, until the Agent
receives such a notice, it shall be entitled to assume that a Lender is acting through the lending office of which the Agent last
had notice.
28.16
Replacement of Reference Bank 26il6Roplacomont of Roforonco Bank. If any Reference Bank ceases to be a Lender or is unable on
a continuing basis to supply quotations for the purposes of Clause 5 (Interest) then, unless the Borrower, the Agent and the Majority
Lenders otherwise agree, the Agent, acting on the instructions of the Majority Lenders, and after consulting the Borrower, shall
appoint another bank (whether or not a Lender) to be a replacement Reference Bank; and, when that appointment comes into effect,
the first-mentioned Reference Bank's appointment shall cease to be effective. 28.17 34r4r?Tax indemnity, tax gross-up and increased
costs on assignment, transfer and change of lending officer-4fe Ji (a) the Lender assigns or transfers any rights or obligations
under the Finance Documents pursuant to Clause 3&2-28.2 (Transfer bv a Lender) or changes its lending office; and (b) as a
result of circumstances existing at the date of assignment, transfer or change occurs the Borrower would be obliged to make a
payment to the Transferee Lender or Lender acting through its new lending office under Clause 34^22.1 (Indemnities regarding borrowing
and repayment of Loan) in respect of any tax, Clause 22 or 2423 (No Set-Off or Tax Deduction) or 25 (llleaglitv. etc). then the
Transferee Lender or the Lender acting through its new lending office is only entitled to receive payment under those Clauses
to the same extent as the Transferor Lender or the Lender acting through its previous lending office would have been if the assignment,
transfer or change had not occurred. 28.18 Security over Lenders' rights In addition to the other rights provided to Lenders under
this Clause 28 (Trgnsfers gnd Chgnqes in Lending Offices), each Lender may without consulting with or obtaining consent from the
Borrower, at anv time charge, assign or otherwise create a Security Interest in or over (whether bv wav of collateral or otherwise)
all or anv of its rights under anv Finance Document to secure obligations of that Lender including, without limitation: (a) any
charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and (b) in the case
of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or representatives
of holders) of obligations owed, or securities issued, bv that Lender as security for those obligations or securities. except
that no such charge, assignment or Security Interest shall: £U release a Lender from any of its obligations under the Finance
Documents_or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any
of the Finance Documents: or require any payments to be made by the Borrower other than or in excess of. or grant to any person
any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
29
27VARIATIONS AND WAIVERS 29.1 Variations, waivers etc. by Majority Lenders* Subject to Clause 27.2 37rtSubiect to Clause 29.2
(Variations, waivers etc. requiring agreement of all Lenders), a document shall be effective to vary, waive, suspend or limit
any provision of a Finance Document, or any Creditor Party's rights or remedies under such a provision or the general law, only
if the document is signed, or specifically agreed to by fax, by the Borrower, by the Agent on behalf of the Majority Lenders,
by the Agent and the Security Trustee in their own rights, and, if the document relates to a Finance Document to which a Security
Party is party, by that Security Party. 29.2 Variations, waivers etc. requiring agreement of all Lenders,—However, as regards
tho following, Clause 27.1 37r3However. as regards the following. Clause 29.1 (Variations, waivers etc. bv Majority Lenders) applies
as if the words "by the Agent on behalf of the Majority Lenders" were replaced by the words "by or on behalf of
every Lender": (a) a change in the Margin or in the definition of LIBOR; (b) a change to the date for, the amount of, any
payment of principal, interest, fees, or other sum payable under this Agreement; (c) a change to any Lender's Commitment; (d)
an extension of Availability Period; (e) a change to the definition of "Majority Lenders" or "Finance Documents";
(f) a change to the preamble or to Clause 2i-3^4 {Facility). 3 (Position of the Lenders). 4 (Drawdown). 5.1.17.18 or 30 (Payment
of normal interest). 18 (Application of Receipts). 19 (Application of Earnings) or 35 (Law and Jurisdiction): (g) a change to
this Clause 22*29 (Variations and Waivers): (h) any release of, or material variation to, a Security Interest, guarantee, indemnity
or subordination arrangement set out in a Finance Document; and (i) any other change or matter as regards which this Agreement
or another Finance Document expressly provides that each Lender's consent is required. 29.3 Exclusion of other or implied variations
27i3Exclusion of other or implied variations! Except for a document which satisfies the requirements of Clauses 27.1 and 27.229.1
{Variations, waivers etc. bv Majority Lenders) and 29.2 (Variations, waivers etc. reguirinq gqreement of oil Lenders), no document,
and no act, course of conduct, failure or neglect to act, delay or acquiescence on the part of the Creditor Parties or any of
them (or any person acting on behalf of any of them) shall result in the Creditor Parties or any of them (or any person acting
on behalf of any of them) being taken to have varied, waived, suspended or limited, or being precluded (permanently or temporarily)
from enforcing, relying on or exercising: (a) a provision of this Agreement or another Finance Document; or (b) an Event of Default;
or
(c)
a breach by the Borrower or a Security Party of an obligation under a Finance Document or the general law; or (d) any right or
remedy conferred by any Finance Document or by the general law, and there shall not be implied into any Finance Document any term
or condition requiring any such provision to be enforced, or such right or remedy to be exercised, within a certain or reasonable
time. 29.4 Replacement of Screen Rate If the Screen Rate is not available for dollars, any amendment or waiver which relates to
providing for another benchmark rate to apply in relation to dollars, in place of that Screen Rate (or which relates to aligning
anv provision of a Finance Document to the use of that benchmark rate) may be made with the consent of the Maioritv Lenders and
the Borrower. 30 BAIL-iN Notwithstanding any other term of anv Finance Document or anv other agreement, arrangement or understanding
between the parties to a Finance Document, each Party acknowledges and accepts that any liability of anv party to a Finance Document
under or in connection with the Finance Documents mav be subject to Bail-In Action by the relevant Resolution Authority and acknowledges
and accepts to be bound bv the effect of: (a) any Bail-In Action in relation to any such liability, including (without limitation):
|j] a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest)
in respect of any such liability; (ii) a conversion of all, or part of. anv such liability into shares or other instruments of
ownership that may be issued to, or conferred on, it; and (iii) a cancellation of anv such liability: and (b) a variation of any
term of anv Finance Document to the extent necessary to give effect to anv Bail-In Action in relation to anv such liability. 31
38NOTICES 31.1 28.1 Communications in writing* Any communication to be made under or in connection with the Finance Documents
shall be made in writing and, unless otherwise stated, may be made by fax or letter. 31.2 Addresses 28i2Addressesi The address
and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each party to this
Agreement for any communication or document to be made or delivered under or in connection with the Finance Documents is: (a)
in the case of the Borrower, that identified with its name below; (b) in the case of each Lender or any Security Party, that notified
in writing to the Agent on or prior to the date on which it becomes a party to this Agreement; (c) in the case of the Agentr or
the Security Trustee or tho Load Arranger that identified with its name below,
or
any substitute address or fax number or department or officer as the party to this Agreement may notify to the Agent (or the Agent
may notify to the parties to this Agreement, if a change is made by the Agent) by not less than five Business Days' notice: to
the Borrower: c/o Euronav NVDe Gerlachekaai 20 2000 Antwerp Fax No: +32 3 247 4409 to the Lender: At the address below its name
in Schedule 1 or (as the case may require) in the relevant Transfer Certificate to the Agent Merchant & Private Banking g
Aldormanbury Square London E€3V- 744R Fef L-eafi Administration Matters Attention: Simon Cornick/Karon Jeffries Fax No: -Ml
3206 8101/1A<\ 3296 8810 4 Fortis Bank S.A./N.V., UK Branch F©f N©h L-eati Administration Matters Attention: Syndicated
Loans Agency Fax No:-Ml (0)20 3296 8156 to tho JLSecurity TrusteeFortis Bank S.A./N.V., UK Branch: BNP Paribas-TGMO 16 rue de
Hanovre 75002 Paris Cedex 2 Code ACI: CAT04B1 Attention: TGMO Emaiktgmo.shippingObnpparibas.com Fax No: +33 1 42 98 43 55 or Load
Arranger: Merchant & Private Banking g Aldormanbury Square London E€2V 744R Attention: Syndicated Loans Agency Fax No:
Ml 3296 8156 or to such other address as the relevant party may notify the Agent or, if the relevant party is the Agent or the
Security Trustee, the Borrower, the Lenders and the Security Parties. 31.3 28.3Delivery. (a) Any communication or document made
or delivered by one person to another under or in connection with the Finance Documents will only be effective: (i) if by way
of fax, when received in legible form; or (ii) if by way of letter, when it has been left at the relevant address or five Business
Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;
and,
if a particular department or officer is specified as part of its address details provided under Clause 2&3r2UL[Addresses),
if addressed to that department or officer. (b) Any communication or document to be made or delivered to the Agent will be effective
only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer
identified with the Agent's signature below (or any substitute department or officer as the Agent shall specify for this purpose).
(c) All notices from or to the Borrower or a Security Party shall be sent through the Agent. (d) Any communication or document
made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each Security
Party. 31.4 28r4Notification of address and fax number* Promptly upon rocoipt of notification of an address or fax number or change
of address or fax numbor pursuant to Clause 28.2 (Addresses) or changing its own address or fax number, tho Agont shall notify
tho othor parties to this Agreement. Promptly upon receipt of notification of an address or fax number or change of address or
fax number pursuant to Clause 31.2 (Addresses) or changing its own address or fax number, the Agent shall notify the other parties
to this Agreement. 31.5 28rJ»Electronic communication. (a) Any communication to be made between the Agent and a Lender under
or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Agent and the relevant
Lender: (i) agree that, unless and until notified to the contrary, this is to be an accepted form of communication; (ii) notify
each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt
of information by that means; and (iii) notify each other of any change to their address or any other such information supplied
by them. (b) Any electronic communication made between the Agent and a Lender will be effective only when actually received in
readable form and in the case of any electronic communication made by a Lender to the Agent only if it is addressed in such a
manner as the Agent shall specify for this purpose. 31.6 28.6 English language. (a) Any notice given under or in connection with
any Finance Document must be in English. (b) All other documents provided under or in connection with any Finance Document must
be: (i) in English; or (ii) if not in English, and if so required by the Agent, accompanied by a certified English translation
and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
32.1
Confidentiality Each Creditor Party agrees to keep all Confidential Information confidential and not to disclose it to anyone,
save to the extent permitted bv Clause 32.2 (Disclosure of Confidential Information) and Clause 32.3 (Disclosure to numbering
service providers) and to ensure that all Confidential Information is protected with security measures and a degree of care that
would apply to its own confidential information. 32.2 Disclosure of Confidential Information Any Creditor Party may disclose:
fa) to any of its Affiliates and Related Funds and any of its or their officers, directors, employees-professional advisers, auditors,
partners and Representatives such Confidential Information as that Creditor Party shall consider appropriate if anv person to
whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature
and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement
to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is
otherwise bound by requirements of confidentiality in relation to the Confidential Information: (b) to anv person: Hi to (or through)
whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or
more Finance Documents or which succeeds for which may potentially succeed) it as Agent or Security Trustee and, in each case,
to anv of that person's Affiliates, Related Funds. Representatives and professional advisers; (ii) with (or through) whom it enters
into (or may potentially enter into), whether directly or indirectly, any sub-participation or risk participation in relation
to. or anv other transaction under which payments are to be made or may be made bv reference to. one or more Finance Documents
and/or the Borrower and to anv of that person's Affiliates, Related Funds. Representatives and professional advisers: (iii) appointed
by any Creditor Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to receive communications,
notices, information or documents delivered pursuant to the Finance Documents on its behalf; (iv) who invests in or otherwise
finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in sub-paragraph
(i) or (ii) of paragraph (b) above; (v) to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation: (vi) to whom information is required to be disclosed in connection with,
and for the purposes of. anv litigation, arbitrations, administrative or other investigations. proceedings or disputes: (vii)
to whom or for whose benefit that Creditor Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause
28.18 (Security over Lenders' rights):
(viii)
who is a Party, a member of the Group or any related entity of the Borrower: (ix) as a result of the registration of any Finance
Document as contemplated bv anv Finance Document or anv legal opinion obtained in connection with anv Finance Document: or (x)
with the consent of the Borrower: in each case, such Confidential Information as that Creditor Party shall consider appropriate
It (A) in relation to sub-paragraphs (i). (ii) and (iii) of paragraph (b) above, the person to whom the Confidential Information
is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality
Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality
of the Confidential Information; (B) in relation to sub-paragraph (iv) of paragraph (b) above, the person to whom the Confidential
Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality
in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may
be price-sensitive information: (C) in relation to sub-paragraphs (v). (vi) and (vii) of paragraph (b) above, the person to whom
the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information
mav be price-sensitive information except that there shall be no requirement to so inform if. in the opinion of that Creditor
Party, it is not practicable so to do in the circumstances: (c) to anv person appointed bv that Creditor Party or bv a person
to whom sub-paragraph (i) or (ii) of paragraph (b) above applies to provide administration or settlement services in respect of
one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of
the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide
any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given
has entered in to a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use
With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower
and the relevant Creditor Party; (d) to any rating agency (including its professional advisers) such Confidential Information
as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance
Documents and/or the Borrower. 32.3 Disclosure to numbering service providers (a) Anv Creditor Party may disclose to any national
or international numbering service provider appointed bvthat Creditor Party to provide identification numbering services in respect
of this Agreement, the Loan and/or the Borrower the following information: HI name of the Borrower: (ii) country of domicile of
the Borrower; (iii) place of incorporation of the Borrower:
(v)
Clause 35 (Law and Jurisdiction): (vi) the name of the Agent: (vii) date of each amendment and restatement of this Agreement:
(viii) amount of Total Commitments: (ix) currency of the Loan; (x) type of Loan; (xi) ranking of Loan; (xii) Maturity Date for
Loan: (xiii) changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xii) above: and (xiv) such
other information agreed between such Creditor Party and the Borrower, to enable such numbering service provider to provide its
usual syndicated loan numbering identification services. (b) The Parties acknowledge and agree that each identification number
assigned to this Agreement, the Loan and/or the Borrower by a numbering service provider and the information associated with each
such number mav be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service
provider. (c) The Borrower represents that none of the information set out in sub-paragraphs (i) to (xiv) of paragraph (a) above
is, nor will at any time be. unpublished price-sensitive information. 32.4 Entire agreement This Clause 32 (Confidential Information)
constitutes the entire agreement between the Parties in relation to the obligations of the Creditor Parties under the Finance
Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential
Information. 32.5 Inside information Each of the Creditor Parties acknowledges that some or all of the Confidential Information
is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation
including securities law relating to insider dealing and market abuse and each of the Creditor Parties undertakes not to use any
Confidential Information for any unlawful purpose. 32.6 Notification of disclosure Each of the Creditor Parties agrees (to the
extent permitted by law and regulation) to inform the Borrower: (a) of the circumstances of anv disclosure of Confidential Information
made pursuant to subparagraph (v) of paragraph (b) of Clause 32.2 (Disclosure of Confidential Information) except where such disclosure
is made to anv of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function:
and
(b)
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 32 (Confidential Information). 32.7
Continuing obligations The obligations in this Clause 32 (Confidential Information) are continuing and, in particular-shall survive
and remain binding on each Creditor Party for a period of 12 months from the earlier of: (a) the date on which all amounts payable
by the Borrower under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise
cease to be available: and (b) the date on which such Creditor Party otherwise ceases to be a Creditor Party. 12 CONFIDENTIALITY
OF FUNDING RATES AND REFERENCE BANK QUOTATIONS 33.1 Confidentiality and disclosure (a) The Agent and the Borrower agree to keep
each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone,
save to the extent permitted by paragraphs (i). (j) and (k) below. (b) The Agent may disclose: ill any Funding Rate (but not,
for the avoidance of doubt, any Reference Bank Quotation) to the Borrower pursuant to Clause 5.4 (Notification of Interest Periods
and rates of normal interest): and (ii) anv Funding Rate or anv Reference Bank Quotation to anv person appointed by it to provide
administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider
to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement
substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers
or such other form of confidentiality undertaking agreed between the Facility Agent and the relevant Lender or Reference Bank,
as the case may be. (c) The Agent may disclose any Funding Rate or any Reference Bank Quotation, and the Borrower may disclose
anv Funding Rate, to: HI anv of its Affiliates and any of its or their officers, directors, employees, professional advisers,
auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant
to this sub-paragraph (i) is informed in writing of its confidential nature and that it may be price sensitive information except
that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it: (ii)
anv person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental,
banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to anv applicable
law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of
its confidential nature and that it mav be price sensitive information except that there shall be no requirement to so inform
if. in the opinion of the Facility Agent or the relevant Obligor, as the case mav be. it is not practicable to do so in the circumstances:
(iii)
any person to whom information is required to be disclosed in connection with, and for the purposes of. any litigation, arbitration,
administrative or other investigations. proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation
is to be given is informed in writing of its confidential nature and that it mav be price sensitive information except that there
shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it
is not practicable to do so in the circumstances: and (iv) any person with the consent of the relevant Lender or Reference Bank,
as the case may be. (d) The Agent's obligations in this Clause 33 (Confidentiality of Funding Rates and Reference Bank Quotations)
relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 5.4 (Notification
of Interest Periods and rates of normal interest) provided that (other than pursuant to sub-paragraph (i) of paragraph (i) above)
the Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification. 33.2 Related
obligations (a) The Agent and the Borrower acknowledge that each Funding Rate (and, in the case of the Agent, each Reference Bank
Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable legislation
including securities law relating to insider dealing and market abuse and the Agent and the Borrower undertake not to use any
Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose. (b) The Agent and the Borrower
agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case mav be: JjI
of the circumstances of anv disclosure made pursuant to sub-paragraph (ii) of paragraph (j) of Clause 33.1 (Confidentiality and
disclosure) except where such disclosure is made to anv of the persons referred to in that paragraph during the ordinary course
of its supervisory or regulatory function: and (ii) upon becoming aware that anv information has been disclosed in breach of this
Clause 33 (Confidentiality of Funding Rates and Reference Bank Quotations). 33.3 No Event of Default No Event of Default will
occur under paragraph (c) of Clause 20.1 (Events of Default) by reason only of the Borrower's failure to comply with this Clause
33 (Confidentiality of Funding Rotes and Reference Bank Quotations). M ^SUPPLEMENTAL 34.1 29.1Rights cumulative, non-exclusive*
The rights and remedies which the Finance Documents give to each Creditor Party are: (a) cumulative; (b) may be exercised as often
as appears expedient; and (c) shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude
or limit any right or remedy conferred by any law.
34.2
23*2Severability of provisions* If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal,
that shall not affect the validity, enforceability or legality of the other provisions of that Finance Document or of the provisions
of any other Finance Document. 34.3 Counterparts* 24rr3A Finance Document may be executed in any number of counterparts. 34.4
29r4Third Party rights* A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties)
Act 1999 to enforce or to enjoy the benefit of any term of this Agreement. 35 30LAW AND JURISDICTION 35.1 SOriEnglish law* This
Agreement shall be governed by, and construed in accordance with, English law. 35.2 Exclusive English jurisdiction! Subject to
Clause 30.3 aOrgSubject to Clause 35.3 (Choice of forum for the exclusive benefit of the Creditor Parties}. the courts of England
shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement. 35.3 Choice
of forum for the exclusive benefit of the Creditor Parties* Clause 30.2 3Q*3Clause 35.2 (Exclusive English jurisdiction) is for
the exclusive benefit of the Creditor Parties, each of which reserves the right: (a) to commence proceedings in relation to any
matter which arises out of or in connection with this Agreement in the courts of any country other than England and which have
or claim jurisdiction to that matter; and (b) to commence such proceedings in the courts of any such country or countries concurrently
with or in addition to proceedings in England or without commencing proceedings in England. 35.4 Process agent 30.4Process agent.
The Borrower irrevocably appoints Unisoa Maritime Ltd Euronav (UK) Agencies Limited at its registered office for the time being,
presently at 14 Headfort PlaceSS King's Road, London SW1 7DM, SW3 4PA. England, to act as its agent to receive and accept on its
behalf any process or other document relating to any proceedings in the English courts which are connected with this Agreement.
35.5 Creditor Party rights unaffected* Nothing in this Clause 30 30*&Nothing in this Clause 35 (Law and Jurisdiction) shall
exclude or limit any right which any Creditor Party may have (whether under the law of any country, an international convention
or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment
or any similar or related matter in any jurisdiction. 35.6 Meaning of "proceedings"* In this Clause 30 30*61 n this
Clause 35 (Law and Jurisdiction), "proceedings" means proceedings of any kind, including an application for a provisional
or protective measure.
THIS
AGREEMENT This Agreement has been entered into on the date stated at the beginning of this Agreement.
SCHEDULE
1 SCHEDULE 1 LENDERS AND COMMITMENTS Lender Lending Office Commitment (US Dollars) FORTIS BANK S.A./N.V., UK S Aldormanburv33.750.000
S 28.150.000
BRAN
€HBNP Paribas ' SquaroLondon EC2V7HR16* rue de Hanovre. 75078
Paris Cedex 02. France Fax no.: +33 (0)1 42 98 43 55 Department/Officer: Transportation Group Middle Office - Shipping & offshore
Shipping Finance. ACI: CAT04B1 DEUTSCHE SCHIFFSBANK Domshof47- 33,750,000 AKTIENGESELLSCHAFT 28105 Bnmon Germany
SCHEDULE
2 SCHEDULE 2 DRAWDOWN NOTICE Tes Fortis Bank SA/N.V., UK Branch
Iqi
BNP PARIBAS acting
through its office at 5 Aldormanburv SauaroLondon EC2V 7HR16, rue de Hanovre 75078 Paris Cedex02 France Attention: [Loans Administration]
[•]2008 DRAWDOWN NOTICE 1 We refer to the loan agreement (the "Loan Agreement") dated ff-29 August 2008 las amended
and restated on f 1 March 2017) and made between ourselves, as Borrower, the Lenders referred to therein, and yourselves as Load
Arranger, Agent and as Security Trustee in connection with a facility of up to US$67,500,000. Terms defined in the Loan Agreement
have their defined meanings when used in this Drawdown Notice. 2 We request to borrow as follows: (a) Amount: US$[»]; (b)
Advance as specified in Clause 2.1 {Amount of facility) [first, second, third, etcj; (c) Drawdown Date: [•]; (d) Duration
of the first Interest Period shall be [•] months; and (e) Payment instructions: account of [•] and numbered [•]
with [•] of [•]. 3 We represent and warrant that: (a) the representations and warranties in Clause clause 10 of the
Loan Agreement would remain true and not misleading if repeated on the date of this notice with reference to the circumstances
now existing; and (b) no Event of Default or Potential Event of Default has occurred or will result from the borrowing of the
Loan. 4 This notice cannot be revoked without the prior consent of the Majority Lenders. 5 We authorise you to deduct the arrangement
fee referred to in Clause 20-21 {Fees and expenses) from the amount of the Advance. [Name of Signatory]
Director
for and on behalf of EURONAV NV
LARVOTTO
SHIPHOLDING LIMITED SCHEDULE 3 SCHEDULE 3CONDITION PRECEDENT DOCUMENTS PART A PART A The following are the documents referred
to in paragraph (a) of Clause 9.1la {Documents, fees and no default) before the service of the first Drawdown Notice. 1 A duly
executed original of this Agreement, the Supplemental Letter, the Agency and Trust Agreement, the Negative Pledge, each Guarantee,
the Counter Guarantee and the Account Security Deed. 2 Copies of the certificate of incorporation and constitutional documents
of the Borrower, each Guarantor, the Counter Guarantor and each Shareholder (and in relation to the Borrower a copy of the shareholders
agreement or joint venture agreement entered into by its shareholders). 3 Copies of resolutions of directors of the Borrower,
each Guarantor (except for Guarantor B), the Counter Guarantor and each Shareholder and copies of resolutions of the shareholders
of the Borrower and the Counter Guarantor authorising the execution of each of the Finance Documents to which the Borrower, that
Guarantor, the Counter Guarantor or that Shareholder is a party and, in the case of the Borrower, authorising named officers to
give the Drawdown Notices and other notices underthis Agreement and ratifying the execution of the Shipbuilding Contract and the
Supervision Agreement. 4 The original of any power of attorney under which any Finance Document is executed on behalf of the Borrower,
a Guarantor, the Counter Guarantor or the Shareholder. 5 Copies of all consents which the Borrower or any Security Party requires
to enter into, or make any payment under, any Finance Document or the Shipbuilding Contract or the Supervision Agreement. 6 The
originals of any mandates or other documents required in connection with the opening or operation of the Earnings Account. 7 Documentary
evidence that the agent for service of process named in Clause 36-31 (Notices) has accepted its appointment. 8 Favourable legal
opinions from lawyers appointed by the Lender on such matters concerning the laws of Hong Kong, Belgium, Panama, Bermuda and such
other relevant jurisdictions as the Lender may require.
PART
B
PART
B The following are the documents referred to in paragraph (b) of Clause 9.1(fe (Documents, fees and no default) required before
the drawdown of an Advance (other than the final Advance): 1 Evidence that the relevant pre-delivery instalment of the Contract
Price payable under the Shipbuilding Contract has fallen due for payment and that such part of such instalment not being met out
of the proceeds of an Advance has been paid or shall be paid by the Borrower simultaneously with the making of such Advance. 2
A duly executed original of the Predelivery Security Assignment (and of each document required to be delivered thereunder). 3
A certified copy of the Shipbuilding Contract and Supervision Agreement and a certified copy of the Refund Guarantee. 4 Such documentary
evidence as the Lender and its legal advisers may require in relation to the due authorisation and execution by the Builder of
the Shipbuilding Contract, by the Supervisor of the Supervision Agreement and by the Refund Guarantor of the Refund Guarantee.
5 Favourable legal opinions from lawyers appointed by the Lender on such matters concerning the laws of Korea and such other relevant
jurisdictions as the Lender may require.
PART
C
PART
C The following are the documents referred to in paragraph (c) of Clause 9.1{€ [Documents, fees and no default) required
before the Drawdown of the final Advance. 1 A duly executed original of the Mortgage, of the Charter Assignment (if any) and of
the General Assignment (and of each document to be delivered by each of them). 2 Documentary evidence that: (a) the Ship has been
unconditionally delivered by the Builder to, and accepted by, the Borrower under the Shipbuilding Contract, and the full purchase
price payable under the Shipbuilding Contract (in addition to the part to be financed by the Loan) has been duly paid; (b) the
Ship is definitively and permanently registered in the name of the Borrower under the relevant Approved Flag at its relevant port
of registry; (c) the Ship is in the absolute and unencumbered ownership of the Borrower save as contemplated by the Finance Documents;
(d) the Ship maintains the class (namely A1(E), "Oil Carrier ESP", AMS, ACCU, SPM, VEC(-L), CSR, Safeship-CM, RES, ES,
TEM, Green Passport, POT, UWILD (sea chest blanking devices shall not be provided), CPS with American Bureau of Shipping free
of all recommendations and conditions of such Classification Society; (e) the Mortgage has been duly recorded against the Ship
as a valid first preferred/priority ship mortgage in accordance with the laws of the relevant Approved Flag; (f) the Ship is insured
in accordance with the provisions of this Agreement and all requirements therein in respect of insurances have been complied with;
and (g) such part of the acquisition cost of the Ship which has not been funded out of the proceeds of the Loan and which has
been borrowed by the Borrower is subordinated to the obligations of the Borrower to the Lender under this Agreement in terms satisfactory
to the Lender in its absolute discretion; 3 Documents establishing that the Ship will, as from the final Drawdown Date, be managed
by the Approved Manager on terms acceptable to the Lender, together with: (a) a letter of undertaking executed by the Approved
Manager in favour of the Lender in the terms agreed between the Lender and the Approved Manager agreeing certain matters in relation
to the management of the Ship and subordinating the rights of the Approved Manager against the Ship and the Borrower to the rights
of the Lender under the Finance Documents; and (b) copies of the Approved Manager's Document of Compliance and of the Ship's Safety
Management Certificate (together with any other details of the applicable safety management system which the Lender requires)
and ISSC. 4 A favourable opinion from an independent insurance consultant acceptable to the Lender on such matters relating to
the insurances for the Ship as the Lender may require. 5 Favourable legal opinions opinion from lawyers appointed by the Lender
on such matters concerning the laws of Greece (or such other jurisdiction as may be appropriate if the Ship is not registered
on Greek flag) and such other relevant jurisdictions jurisdiction as the Lender may require.
SCHEDULE
4 SCHEDULE TRANSFER CERTIFICATE The Transferor and the Transferee accept exclusive responsibility for ensuring that this Certificate
and the transaction to which it relates comply with all legal and regulatory requirements applicable to them respectively. To:
Fortis Bank S.A./NiV.i UK Branch BNP Paribas as Agent. From: [The Existing-Transferor Lender] (the "Transferor") and
[The New-Transferee Lender] (the "Transferee") Dated: [•] 2008 US$67,500,000 Loan Agreement to Larvotto Shioholding
Limiteddated fi-Euronav NV dated 29 August 2008 (as amended and restated on CI March 2017) (the "Agreement") 1 We refer
to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate
unless given a different meaning in this Transfer Certificate. 2 We refer to Clause 36-28 (Transfers and Changes in Lending Offices)
of the Agreement*: (a) The Transferor Existing Lender and the Transferee New Lender agree to the Transferor Existing Lender transferring
to the Transferee New Lender by novation all or part of the Transferor's Commitment. Existing Lender's rights and obligations
referred to under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment
and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 3628 {Trgnsfers and Changes
in Lending Offices) of the Agreement. (b) The proposed Transfer Date is [•]. (c) tho lending office The Facility Office and
address, fax number and attention details for notices of the Transferee New Lender for the purposes of Clause 38*2— 31.2
(Addresses) of the Agreement are set out in the Schedule. 3 The Transferee New Lender expressly acknowledges the limitations on
the Transferor's Existing Lender's obligations set out in Clause 26.paragraph 28 (Transfers and Changes in Lending Offices) of
the Agreement. 4 [The Transferee confirms that the person beneficially entitled to interest payable to that Lender in respect
of an advance under a Finance Document is either: (a) a company resident in the United Kingdom for United Kingdom tax purposes;
or {b) a partnership each number of which is: (i) a oompany so resident in the United Kingdom; or f«) a Company not so resident
in the United Kingdom which carrios on a trade in tho United Kingdom through a permanent establishment and which brings into account
in oomputing its chargeable profits (for tho purposes of section 11(2) of tho [Taxes Act] tho whole of any sharo of interest payable
in respect of that advance that falls to it by reason of sections 1H and 115 of the [Taxos Act]; or
(e)
a company not so rosidont in the United Kingdom whioh carries on a trade in the United Kingdom through a permanent establishment
and which brings into account interest payable in respect of that advance in oomputing the chargeable profits (for the purposes
of Seotion 11(2) of the [Taxes Act] of that company.] 4 [4/5]This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate. 5 [5/6]This
Transfer Certificate fe-and any non-contractual obligations arising out of or in connection with it are governed by English law.
fi This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate-Note: The
execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender's interest in the Transaction
Security in all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities
are required to perfect a transfer of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so.
to arrange for execution of those documents and completion of those formalities.
THE
SCHEDULE Commitment/rights and obligations to be transferred [insert relevant details] [Facility Office address, fax number and
attention details | for notices and account details for payments}*] I ^Transferor Lender] [Transferee Lender] I ^Bv: fl Bv: f
1 This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [•]. [Agent] I by:
SCHEDULE
5 MANDATORY COST i Tho Mandatory Cost is an addition to tho intorost rate to oomponsato Lenders for the cost of oomplianoo with
(a) tho requirements of tho Bank of England and/or tho Finanoial Services Authority (or, in either oaso, any othor authority which
replaces all or any of its Amotions) or (b) the requirements of the European Central Bank. 2 On the first day of each Interest
Period (or as soon as possible thereafter) the Agent shall calculate, as a percentage rate, a rate (the "Additional Cost
Rate") for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Agent
as a weighted average of the Lenders' Additional Cost Rates (weighted in proportion to the percentage participation of oach Lender
in the Loan) and will be expressed as a percentage rate per annum. 3 The Additional Cost Rate for any Lender lending from a lending
office in a Participating Member State will be the percentage notified by that Lender to the Agent. This percentage will be certified
by that Lender in its notioo to the Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's
participation in all Loans made from that lending office) of oomplying with the minimum reserve requirements of the European Central
Bank in respect of loans made from that lending office. 4 The Additional Cost Rate for any Lender londing from a lending offioo
in the United Kingdom will be oaloulatod by tho Agont as follows: (a) in relation to a sterling Loam percent, per annum {b) in
relation to a Loan in any ou. , Where: A is the percentage of Eligible Liabilities (assuming those to bo in oxcoss of any stated
minimum) which that Lender is from timo to time required to maintain as an intorost froo cash ratio deposit with tho Bank of England
to comply with cash ratio requirements. 6 is tho percentage rate of interest (excluding the Margin and the Mandatory Cost and,
if the Loan is an Unpaid Sum, tho additional rate of intorost specified in paragraph (a) of Clause 7.2 (Default rate of interest))
payable for tho relevant Intorost Period on tho Loan. € is the percentage (if any) of Eligible Liabilities which that Lender
is required from time to timo to maintain as intorost bearing Special Deposits with tho Bank of England. © is tho porcontogo
rate per annum payable by tho Bank of England to tho Agont on intorost bearing Special Deposits. ■E is designed to compensate
Lenders for amounts payable undor tho Foes Ruios and is calculated by tho Agont as being tho average of tho most recent rates
of charge supplied by tho Reference Banks to tho Agont pursuant to paragraph 7 bolow and expressed in pounds per £1,000,000.
5 For the purposes of this Schedule:
(a)
"Eligible Liabilities" and "Special Deposits" havo tho meanings given to them from time to time under or pursuant
to tho Bank of England Act 1998 or (as may be appropriate) by tho Bank of England; (b) "Fees Rules" means tho rules
on poriodio fees contained in the FSA Supervision Manual or such other law or regulation as may bo in foroo from time to time
in respect of the payment of fees for tho aoooptanoo of doposits; (e) "Fee Tariffs" means the fee tariffs spooified
in the Fees Rules undor tho activity group A.l Deposit aooeptors (ignoring any minimum fee or zero rated fee required pursuant
to the Fees Rules but taking into account any applicable discount rate); and (d) "Tariff Base" has tho meaning given
to it in, and will be calculated in accordance with, the Fees Rules. (e) "Unpaid Sum" means any sum duo and payable
but unpaid by the Borrower or a Security Party under the Finance Documents. % In application of the above formulae, A, B, C and
D will be included in the formulao as percentages (i.e. 5 per cent, will bo included in the formula as 5 and not as 0.05). A negative
result obtained by subtracting D from B shall be taken as zoro. Tho rosulting figures shall bo rounded to four decimal plaoo3;
3 If requested by tho Agent, oach Roforonco Bank shall, as soon as praotioablo after publication by tho Financial Services Authority,
supply to tho Agent, tho rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees
Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Roforonoe
Bank as being the average of the Foo Tariffs applicable to that Reference Bank for that financial year) and oxprossed in pounds
per £1,000,000 of tho Tariff Baso of that Roforonco Bank. % Each Lendor shall supply any information requirod by the Agont
for the purposo of calculating its Additional Cost Rato. In particular^ but without limitation, each Lender shall supply the following
information on or prior to tho dato on which it becomes a Londor: {a) the jurisdiction of its lending office; and (b) any other
information that the Agent may reasonably require for such purpose- Each Londor shall promptly notify tho Agont of any change
to the information provided by it pursuant to this paragraph. 9 The percentages of each Lender for the purpose of A and C above
and the rates of charge of each Reference Bank for the purpose of E abovo shall be determined by the Agent based upon the information
supplied to it pursuant to paragraphs 7 and 8 above and on tho assumption that, unless a Lendor notifios the Agont to the contrary,
each Londor's obligations in relation to cash ratio doposits and Special Doposits aro tho same as those of a typical bank from
its jurisdiction of incorporation with a lending office in tho 3amo jurisdiction as its lending office. 10 The Agent shall havo
no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Lendor
and shall bo entitled to assume that the information provided by any Londor or Roforonco Bank pursuant to paragraphs 3, 7 and
8 above is truo and correct in all rospeots. 11 The Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based on the
information
provided by each Lender and oach Reference Bank pursuant to paragraphs 3, 7 and 8 above; 42 Any determination by tho Agont pursuant
to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall,
in the absenoe of manifest error, be conclusive and binding on all parties to the Loan Agreement. 43 The Agent may from time to
time, after consultation with the Borrower and the Lenders, determine and notify to all parties to the Loan Agreement any amendments
which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any
other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error,
be conclusive and binding on all parties to the Loan Agreement. By: SCHEDULE 5
FORM
OF CERTIFICATE OF COMPLIANCE To: BNP Paribas acting through its office at 16, rue de Hanovre 75078 Paris Cedex 02 France From:
Euronav NV [Date] OFFICER'S CERTIFICATE This Certificate is rendered pursuant to clause 12.6 (c) [Provision of financial statements)
of the loan agreement dated f ] 2017 (the "Loan Agreement") and entered into between (i) Euronav NV as Borrower, (ii)
the banks and financial institutions listed in Schedule 1 therein as Lenders and (iii) BNP Paribas as Agent and Security Trustee,
relating to a facility of originally up to US$67,500,000. Words and expressions defined in the Loan Agreement shall have the same
meanings when used herejrK I. the Chief Financial Officer of the Borrower, hereby certify that 1 Attached to this Certificate
farelMsl the latest [audited consolidated accounts of the Group and audited individual accounts of the Borrower for the financial
year ending on f ]] (the "Accounts"). 2 Set out below are the respective amounts, in US Dollars, of the Cash. Consolidated
Current Assets, Consolidated Current Liabilities. Free Liquid Assets. Stockholders' Equity, Total Assets and Total Indebtedness
of the Group as at fl: US&oJias Cash If] Consolidated Current Assets [•] Consolidated Current.Liabilities [•] Free
Liquid Assets [•] Stockholders' Equity [•] TotaLAssets [•] lotaM ndebtedness [•]
3
Accordingly, as at the date of this Certificate the financial covenants set out in clause 11.1 (Financial Covenants) of
the Loan Agreement fare) fare not] complied with, in that as at [•]: (a) Consolidated Working Capital is USSf]: (b) Free
Liquid Assets are USSf ]; icJt Cash is USSf 1: and (d) the ratio of Stockholders' Equity to Total Assets is fl per cent.:
[or.
as the case may be. specify in what respect any of the financial covenants are not complied with.] 4 As at f 1 no Event of Default
has occurred and is continuing. [or, specify/identify any Event of Default] I The Borrower is in compliance with clause 16.1 of
the Loan Agreement. [If not, specify this and what is proposed as regards Clause 16.2] The market value of the Ship is as follows
as at [date]: Name of Ship Name of first shipbroker Name of second shipbroker Average market value providing valuation providing
valuation [•] [•! [•] IfJ Chief Financial Officer EURONAV NV Note: Supporting Schedules to be attached.
EXECUTION
PAGES BORROWER SIGNED by ) | > for and on behalf of ) | LARVOTTO SHIPHOLDING LIMITED ) I EURONAV NV ) in the presence of: )
LENDERS | SIGNED by }) for and on behalf of ) FORTIS BANK S.A./N.V., UK BRANCH ) BNP PARIBAS ) in the presence of: ) I AGENT |
SIGNED by }) for and on behalf of ) | DEUTSCHE SCHIFFSBANK } I BNP PARIBAS ) I AKTIENGESELLSCHAFT } in the presence of: ) I SECURITY
TRUSTEE I AGENT I SIGNED by }) for and on behalf of ) I FORTIS BANK S.A./N.V., UK BRANCH } I BNP PARIBAS ) in the presence of:
) SECURITY TRUSTEE SIGNED by ) , ) for and on behalf of } FORTIS BANK S.A./N.V., UK BRANCH }
in
tho presence of: LEAD ARRANGER SIGNED by for and on behalf of FORTIS BANK S.A./N.V., UK BRANCH in-tho presence of:
Appendix
Part B
Form of
clean copy Amended and Restated Loan Agreement
Dated 29 August 2008
(as amended by a supplemental letter dated 28
November 2011, as further amended by a
supplemental letter dated 1 June 2016 and as amended and restated on 31 March 2017)
EURONAV NV
as Borrower
and
THE BANKS AND
FINANCIAL INSTITUTIONS listed in Schedule 1
as Lenders
and
BNP PARIBAS
as Agent
and as Security Trustee
LOAN AGREEMENT
relating to
a US$67,500,000 facility to finance m.t. "MARIA"
Index
|
Clause
|
|
Page
|
|
|
|
|
|
1
|
Interpretation
|
1
|
|
2
|
Facility
|
17
|
|
3
|
Position of the Lenders
|
18
|
|
4
|
Drawdown
|
18
|
|
5
|
Interest
|
20
|
|
6
|
Interest Periods
|
22
|
|
7
|
Default Interest
|
23
|
|
8
|
Repayment and Prepayment
|
24
|
|
9
|
Conditions Precedent
|
26
|
|
10
|
Representations and Warranties
|
27
|
|
11
|
Financial Covenants
|
29
|
|
12
|
General Undertakings
|
31
|
|
13
|
Corporate Undertakings
|
35
|
|
14
|
Insurance
|
36
|
|
15
|
Ship Covenants
|
40
|
|
16
|
Security Cover
|
44
|
|
17
|
Payments and Calculations
|
45
|
|
18
|
Application of Receipts
|
47
|
|
19
|
Application of Earnings
|
48
|
|
20
|
Events of Default
|
49
|
|
21
|
Fees and expenses
|
53
|
|
22
|
Indemnities
|
54
|
|
23
|
No Set-Off or Tax Deduction
|
56
|
|
24
|
Tax Gross Up and Indemnities
|
56
|
|
25
|
Illegality, etc
|
60
|
|
26
|
Increased Costs
|
61
|
|
27
|
Set-Off
|
63
|
|
28
|
Transfers and Changes in Lending Offices
|
63
|
|
29
|
Variations and Waivers
|
68
|
|
30
|
Bail-In
|
69
|
|
31
|
Notices
|
69
|
|
32
|
Confidential Information
|
71
|
|
33
|
Confidentiality of Funding Rates and Reference Bank Quotations
|
75
|
|
34
|
Supplemental
|
76
|
|
35
|
Law and Jurisdiction
|
77
|
|
Schedules
|
|
|
|
|
|
Schedule 1 Lenders and Commitments
|
78
|
|
Schedule 2 Drawdown Notice
|
79
|
|
Schedule 3 Condition Precedent Documents
|
80
|
|
Part A
|
80
|
|
Part B
|
81
|
|
Part C
|
82
|
|
Schedule 4 Transfer Certificate
|
83
|
|
Schedule 5 Form of Certificate of Compliance
|
85
|
|
|
|
|
Execution
|
|
|
|
|
|
Execution Pages
|
87
|
THIS AGREEMENT
is made on 29 August
2008 (as amended and restated on 31 March 2017)
PARTIES
|
|
(1)
|
EURONAV NV
a company incorporated in Belgium whose registered office is at De Gerlachekaai
20, B-2000 Antwerp 1, Belgium (the "
Borrower
")
|
|
|
(2)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, as (the "
Lenders
")
|
|
|
(3)
|
BNP PARIBAS
, as (the "
Agent
")
|
|
|
(4)
|
BNP PARIBAS
, as (the "
Security Trustee
")
|
BACKGROUND
The Lenders agreed to make available to the
Original Borrower a facility of the lesser of (i) $67,500,000 and (ii) 75 per cent. of the Contract Price for the purpose of part
financing the purchase price of the Ship constructed by the Builder. The Borrower has purchased the Ship from the Original Borrower
as the borrower under this Agreement.
OPERATIVE
PROVISIONS
Subject to Clause 1.4 (
General
Interpretation
), in this Agreement:
"
Accounts
Security Deed
" means a deed creating security over the Earnings Account in the Agreed Form.
"
Advance
"
means the principal amount of each borrowing by the Borrower under this Agreement.
"
Affiliate
"
means in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that
Holding Company.
"
Agency
and Trust Agreement
" means the agency and trust agreement dated the same date as this Agreement and made between
the same parties.
"
Agent
"
means BNP Paribas, acting in such capacity through its office at 16 rue de Hanovre, 75078 Paris, France, or any successor of it
appointed under clause 5 of the Agency and Trust Agreement.
"
Agreed
Form
" means in relation to any document, that document in the form approved in writing by the Agent (acting with
the instructions of all the Lenders) and mutually agreed with the Borrower or as otherwise approved in accordance with any other
approval procedure specified in any relevant provision of any Finance Document.
"
Anti-Corruption
Laws
" means the England and Wales Bribery Act 2010, the United States Foreign Corrupt Practices Act 1977 or other
applicable anti-corruption legislation in any other jurisdictions.
"
Approved
Flag
" means Greek flag or such other flag as the Agent (acting with the authorisation of all the Lenders) may approve
as the flag on which the Ship shall be registered at delivery.
"
Approved
Manager
" means Euronav Ship Management (Hellas) Ltd. or any of its subsidiaries or any other company incorporated
by the Borrower with the prior written consent of the Agent (acting with the authorisations of the Majority Lenders) not to be
unreasonably withheld or delayed.
"
Availability
Period
" means the period commencing on the date of this Agreement and ending on:
|
|
(a)
|
the Final Availability Date; or
|
|
|
(b)
|
if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated.
|
"
Bail-In
Action
" means the exercise of any Write-down and Conversion Powers.
"
Bail-In
Legislation
" means in relation to an EEA Member Country which has implemented, or which at any time implements,
Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment
firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time.
"
Break
Costs
" means the amount (if any) by which:
|
|
(a)
|
the interest which a Lender should have received for the period from the date of receipt of all
or any part of its participation in the Loan or an Unpaid Sum to the last day of the current Interest Period in relation to the
Loan, the relevant part of the Loan or that Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day
of that Interest Period
|
exceeds
|
|
(b)
|
the amount which that Lender would be able to obtain by placing an amount equal to the principal
amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the
Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
"
Builder
"
means Samsung Heavy Industries Co., Ltd., a company incorporated in the Republic of Korea whose registered office is at 647-9,
Yeoksam-Dong, Kangnam-Gu, Seoul, Korea 135-080.
"
Business
Day
" means a day on which banks are open in London, Antwerp and Paris and, in respect of a day on which a payment
is required to be made under a Finance Document, also in New York City.
"
Change
of Control
" means, if 2 or more persons acting in concert or any individual person in each case other than the
Permitted Holders:
|
|
(a)
|
acquires legally and/or beneficially, and either directly or indirectly, in excess of 50 per cent.
of the issued share capital or voting rights of the Borrower; or
|
|
|
(b)
|
has the right or the ability to control, either directly or indirectly, the affairs or composition
of the majority of the board of directors (or equivalent) of the Borrower.
|
"
Charter
"
means any time or consecutive voyage charter in respect of the Ship which exceeds, or which by virtue of any optional extensions
may exceed, 36 months in duration.
"
Charter
Assignment
" means an assignment of any Charter and any supporting guarantee for a Charter (if any) in the Agreed
Form.
"
Code
"
means the US Internal Revenue Code of 1986.
"
Commitment
"
means, in relation to a Lender, the amount set opposite its name in Schedule 1 (
Lenders and Commitments
), or, as the case
may require, the amount specified in the relevant Transfer Certificate, as that amount may be reduced, cancelled or terminated
in accordance with this Agreement.
"
Confidential
Information
" means all information relating to the Borrower, the Group, the Finance Documents or the Loan of which
a Creditor Party becomes aware in its capacity as, or for the purpose of becoming, a Creditor Party or which is received by a Creditor
Party in relation to, or for the purpose of becoming a Creditor Party under, the Finance Documents or the Loan from either:
|
|
(a)
|
any member of the Group or any of its advisers; or
|
|
|
(b)
|
another Creditor Party, if the information was obtained by that Creditor Party directly or indirectly
from any member of the Group or any of its advisers,
|
in whatever form, and includes information
given orally and any document, electronic file or any other way of representing or recording information which contains or is derived
or copied from such information but excludes:
|
|
(A)
|
is or becomes public information other than as a direct or indirect result of any breach by that
Creditor Party of Clause 32 (
Confidential Information
); or
|
|
|
(B)
|
is identified in writing at the time of delivery as non-confidential by any member of the Group
or any of its advisers; or
|
|
|
(C)
|
is known by that Creditor Party before the date the information is disclosed to it in accordance
with paragraphs (a) or (b) above or is lawfully obtained by that Creditor Party after that date, from a source which is, as far
as that Creditor Party is aware, unconnected with the Group and which, in either case, as far as that Creditor Party is aware,
has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
|
|
|
(ii)
|
any Funding Rate or Reference Bank Quotation.
|
"
Confidentiality
Undertaking
" means a confidentiality undertaking in substantially the appropriate form recommended by the LMA from
time to time or in any other form agreed between the Borrower and the Agent.
"
Contract
Price
" means the contract price paid by the Original Borrower to the Builder under the Shipbuilding Contract which,
as of 29 August 2008 was $90,750,000.
"
Contractual
Currency
" has the meaning given in Clause 22.4 (
Currency indemnity
).
"
Contribution
"
means, in relation to a Lender, the part of the Loan which is owing to that Lender.
"
Creditor
Party
" means the Agent, the Security Trustee or any Lender, whether as at the date of this Agreement or at any
later time.
"
Dollars
"
and "
$
" means the lawful currency for the time
being of the United States of America.
"
Drawdown
Date
" means, in relation to each Advance, the date requested by the Borrower for the Advance to be made, or (as
the context requires) the date on which the Advance is actually made.
"
Drawdown
Notice
" means a notice in the form set out in Schedule 2 (
Drawdown Notice
) (or in any other form which the
Agent approves or reasonably requires).
"
Earnings
"
means all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower or the Security
Trustee and which arise out of the use or operation of the Ship, including (but not limited to):
|
|
(a)
|
except to the extent that they fall within paragraph (b);
|
|
|
(i)
|
all freight, hire and passage moneys;
|
|
|
(ii)
|
compensation payable to the Borrower or the Security Trustee in the event of requisition of the
Ship for hire;
|
|
|
(iii)
|
remuneration for salvage and towage services;
|
|
|
(iv)
|
demurrage and detention moneys;
|
|
|
(v)
|
damages for breach (or payments for variation or termination) of any charterparty or other contract
for the employment of the Ship; and
|
|
|
(vi)
|
all moneys which are at any time payable under any Insurances in respect of any loss; and
|
|
|
(b)
|
if and whenever the Ship is employed on terms whereby any moneys falling within paragraphs (a)(i)
to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement
which is attributable to the Ship.
|
"
Earnings
Account
" means an account in the name of the Borrower with BNP Paribas Fortis SA/NV in Belgium designated "Euronav
- Earnings Account", or any other account which is designated by the Agent as the Earnings Account for the purposes of this
Agreement.
"
Environmental
Claim
" means:
|
|
(a)
|
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental
Incident or an alleged Environmental Incident or which relates to any Environmental Law; or
|
|
|
(b)
|
any claim by any other person which relates to an Environmental Incident or to an alleged Environmental
Incident,
|
and "
claim
"
means a claim for damages, compensation, fines, penalties or any other payment of any kind whether or not similar to the foregoing;
an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement
or regulatory action, including the arrest or attachment of any asset.
"
Environmental
Incident
" means:
|
|
(a)
|
any release of Environmentally Sensitive Material from the Ship; or
|
|
|
(b)
|
any incident in which Environmentally Sensitive Material is released from a vessel other than the
Ship and which involves a collision between the Ship and such other vessel or some other incident of navigation or operation, in
either case, in connection with which the Ship is actually or reasonably likely to be arrested, attached, detained or injuncted
and/or the Ship and/or the Borrower and/or any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable
to any legal or administrative action; or
|
|
|
(c)
|
any other incident in which Environmentally Sensitive Material is released otherwise than from
the Ship and in connection with which the Ship is actually or reasonably likely to be arrested and/or where the Borrower and/or
any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action.
|
"
Environmental
Law
" means any law relating to pollution or protection of the environment, to the carriage of Environmentally Sensitive
Material or to actual or threatened releases of Environmentally Sensitive Material.
"
Environmentally
Sensitive Material
" means oil, oil products and any other substance (including any chemical, gas or other hazardous
or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"
EU
Bail-In Legislation Schedule
" means the document described as such and published by the Loan Market Association
(or any successor person) from time to time.
"
Event
of Default
" means any of the events or circumstances described in Clause 20.1 (
Events of Default
).
"
Facility
Office
" means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes
a Lender (or, following that date, by not less than 5 Business Days' written notice) as the office or offices through which it
will perform its obligations under this Agreement.
"
FATCA
"
means:
|
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations;
|
|
|
(b)
|
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement
between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred
to in paragraph (a) above; or
|
|
|
(c)
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs
(a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other
jurisdiction.
|
"
FATCA
Application Date
" means:
|
|
(a)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code
(which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
|
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code
(which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources
within the US), 1 January 2019; or
|
|
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling
within paragraphs (a) or (b) above, 1 January 2019,
|
or, in each case, such other date
from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after
the date of this Agreement.
"
FATCA
Deduction
" means a deduction or withholding from a payment under a Finance Document required by FATCA.
"
FATCA
Exempt Party
" means a Party that is entitled to receive payments free from any FATCA Deduction.
"
Fee
Letter
" means any letter or letters between the Agent and the Borrower setting out any of the fees referred to
in Clause 21 (
Fees and expenses
).
"
Final
Availability Date
" means 12 January 2012;
"
Finance
Documents
" means:
|
|
(b)
|
the Agency and Trust Agreement;
|
|
|
(c)
|
the General Assignment;
|
|
|
(d)
|
the Charter Assignment (if any);
|
|
|
(f)
|
the Accounts Security Deed;
|
|
|
(h)
|
any Transfer Certificate;
|
|
|
(i)
|
any other document (whether creating a Security Interest or not) which is executed at any time
by the Borrower or any other person as security for, or to establish any form of subordination or priorities arrangement in relation
to, any amount payable to the Lenders under this Agreement and/or any of the other documents referred to in this definition; and
|
|
|
(j)
|
any other document designated as such by the Agent and the Borrower.
|
"
Financial
Indebtedness
" means, in relation to a person (the "
debtor
"),
a liability of the debtor:
|
|
(a)
|
for principal, interest or any other sum payable in respect of any moneys borrowed or raised by
the debtor;
|
|
|
(b)
|
under any loan stock, bond, note or other security issued by the debtor;
|
|
|
(c)
|
under any acceptance credit, guarantee or letter of credit facility or dematerialised equivalent
made available to the debtor;
|
|
|
(d)
|
under a financial lease, a deferred purchase consideration arrangement or any other agreement having
the commercial effect of a borrowing or raising of money by the debtor;
|
|
|
(e)
|
under any foreign exchange transaction, any interest or currency swap or any other kind of derivative
transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of
mutual liabilities, the liability of the debtor for the net amount; or
|
|
|
(f)
|
under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability
of another person which would fall within paragraphs (a) to (e) if the references to the debtor referred to the other person.
|
"
Funding
Rate
"
means any individual rate notified by a Lender to the Facility Agent pursuant to sub-paragraph (ii)
of paragraph (a) of Clause 5.12 (
Cost of funds
).
"
General
Assignment
" means a general assignment of the Earnings, the Insurances and any Requisition Compensation in the
Agreed Form.
"
Group
"
means the Borrower and its Subsidiaries for the time being.
"
Holding
Company
" means in relation to a person, any other person in respect of which it is a Subsidiary.
"
IFRS
"
means international accounting standards within the meaning of the IAS Regulations 1606/2002 to the extent applicable to the relevant
financial statements.
"
Increased
Amount
" has the meaning given to that term in Clause 2.5 (
Increase of Loan
).
"
Insurances
"
means:
|
|
(a)
|
all policies and contracts of insurance, including entries of the Ship in any protection and indemnity
or war risks association, which are effected in respect of the Ship, her Earnings or otherwise in relation to her; and
|
|
|
(b)
|
all rights and other assets relating to, or derived from, any of the foregoing, including any rights
to a return of a premium.
|
"
Interest
Period
" means a period determined in accordance with Clause 6 (
Interest Periods
).
"
Interpolated
Screen Rate
" means, in relation to the Loan or any part of the Loan, the rate which results from interpolating
on a linear basis between:
|
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which
is less than the Interest Period of the Loan or that part of the Loan; and
|
|
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which
exceeds the Interest Period of the Loan or that part of the Loan,
|
each as of the Specified Time for
dollars.
"
ISM
Code
" means the International Safety Management Code (including the guidelines on its implementation), adopted
by the International Maritime Organisation, as the same may be amended or supplemented from time to time (and the terms "safety
management system", "Safety Management Certificate" and "Document of Compliance" have the same meanings
as are given to them in the ISM Code).
"
ISPS
Code
" means the International Ship and Port Facility Security Code as adopted by the International Maritime Organisation,
as the same may be amended or supplemented from time to time
"
ISSC
"
means a valid and current International Ship Security Certificate issued under the ISPS Code.
"
Lender
"
means a bank or financial institution listed in Schedule 1 (
Lenders and Commitments
) and acting through its branch indicated
in Schedule 1 (
Lenders and Commitments
) (or through another branch notified to the Borrower under Clause 28.14 (
Change
of lending office
) or its transferee, successor or assign, which in each case has not ceased to be a party in accordance with
the terms of this Agreement.
"
LIBOR
"
means, in relation to the Loan or any part of the Loan:
|
|
(a)
|
the applicable Screen Rate as of the Specified Time for dollars and for a period equal in length
to the Interest Period of the Loan or that part of the Loan; or
|
|
|
(b)
|
as otherwise determined pursuant to Clause 5.5 (
Unavailability of Screen Rate
),
|
and if, in either case, that rate
is less than zero, LIBOR shall be deemed to be zero.
"
LMA
"
means the Loan Market Association.
"
Loan
"
means a loan made or to be made under this Agreement or the principal amount for the time being outstanding under this Agreement.
"
Major
Casualty
" means any casualty to the Ship in respect of which the claim or the aggregate of the claims against all
insurers, before adjustment for any relevant franchise or deductible exceeds $5,000,000 or the equivalent in any other currency.
"
Majority
Lenders
" means:
|
|
(a)
|
before any Advance has been made, Lender or Lenders whose Commitments total more than 66.66 per
cent. of the Total Commitments; and
|
|
|
(b)
|
at any other time, Lender or Lenders whose Contributions in the Loan outstanding total more than
66.66 per cent. of all the Loan then outstanding.
|
"
Margin
"
means 1.5 per cent. per annum.
"
Maturity
Date
" means 4 January 2020.
"
Mortgage
"
means the first preferred Greek ship mortgage or the first priority statutory ship mortgage or first preferred ship mortgage and,
if applicable, collateral deed of covenant in the form appropriate for the flag of the Ship in the event that the Approved Flag
is not Greek flag in the Agreed Form.
"
Notifying
Lender
" has the meaning given in Clause 25.1 (
Illegality
) or Clause 26.1 (
Increased costs
) as the
context requires.
"
Original
Borrower
" means Larvotto Shipholding Limited, a company incorporated in Hong Kong whose registered office is at
Room 2503-05, 25
th
Floor, Harcourt House, No.39 Gloucester Road, Wanchai, Hong Kong.
"
Participating
Member State
" means any member state of the European Union that has the euro as its lawful currency in accordance
with legislation of the European Union relating to Economic and Monetary Union.
"
Payment
Currency
" has the meaning given in Clause 22.4 (
Currency indemnity
).
"
Permitted
Holders
" means each of Saverco and Victrix (and (in each case) any parallel vehicle thereof and their respective
alternative investment vehicles) and their affiliates.
"
Permitted
Security Interests
" means:
|
|
(a)
|
Security Interests created by the Finance Documents;
|
|
|
(b)
|
liens for unpaid master's and crew's wages in accordance with usual maritime practice;
|
|
|
(d)
|
liens arising by operation of law for not more than 2 months' prepaid hire under any charter in
relation to the Ship not prohibited by this Agreement;
|
|
|
(e)
|
liens for master's disbursements incurred in the ordinary course of trading and any other lien
arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of the Ship or in the ordinary
course of business of the Borrower, provided such liens do not secure amounts more than 30 days overdue (unless the overdue
amount is being contested by the Borrower in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance,
to paragraph (f) of Clause 15.13 (
Restrictions on chartering, appointment of managers
);
|
|
|
(f)
|
any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration
as security for costs and expenses where the Borrower is actively prosecuting or defending such proceedings or arbitration in good
faith; and
|
|
|
(g)
|
Security Interests arising by operation of law in respect of taxes which are not overdue for payment
or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been
made.
|
"
Pertinent
Document
" means:
|
|
(a)
|
any Finance Document;
|
|
|
(b)
|
any policy or contract of insurance contemplated by or referred to in Clause 14 (
Insurance
)
or any other provision of this Agreement or another Finance Document;
|
|
|
(c)
|
any other document contemplated by or referred to in any Finance Document; and
|
|
|
(d)
|
any document which has been or is at any time sent by or to a Servicing Bank in contemplation of
or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c).
|
"
Pertinent
Jurisdiction
", in relation to a company, means:
|
|
(b)
|
the country under the laws of which the company is incorporated or formed;
|
|
|
(c)
|
a country in which the company has the centre of its main interests or in which the company's central
management and control is or has recently been exercised;
|
|
|
(d)
|
a country in which the overall net income of the company is subject to corporation tax, income
tax or any similar tax;
|
|
|
(e)
|
a country in which assets of the company (other than securities issued by, or loans to, related
companies) having a substantial value are situated, in which the company maintains a branch or permanent place of business, or
in which a Security Interest created by the company must or should be registered in order to ensure its validity or priority; and
|
|
|
(f)
|
a country the courts of which have jurisdiction to make a winding up, administration or similar
order in relation to the company, whether as main or territorial or ancillary proceedings or which would have such jurisdiction
if their assistance were requested by the courts of a country referred to in paragraphs (b) or (c) above.
|
"
Pertinent
Matter
" means:
|
|
(a)
|
any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document;
or
|
|
|
(b)
|
any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph
(a);
|
and covers any such transaction,
matter or statement, whether entered into, arising or made at any time before the signing of this Agreement or on or at any time
after that signing.
"
Potential
Event of Default
" means an event or circumstance which, with the giving of any notice, the lapse of time, a reasonable
determination of the Majority Lenders and/or the satisfaction of any other condition, would constitute an Event of Default.
"
Quotation
Day
" means, in relation to any period for which an interest rate is to be determined, two Business Days before
the first day of that period unless market practice differs in the Relevant Interbank Market in which case the Quotation Day will
be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally
be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
"
Reference
Banks
" means, subject to Clause 28.16 (
Replacement of Reference Bank
), the London branches of each of the
Lenders or such other banks as may be appointed by the Agent in consultation with the Borrower.
"
Reference
Bank Quotation
" means any quotation supplied to the Agent by a Reference Bank.
"
Reference
Bank Rate
" means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent
at its request by the Reference Banks:
|
|
(a)
|
(other than where paragraph (b) below applies) as the rate at which the relevant Reference Bank
could borrow funds in the London interbank market in dollars for the relevant period were it to do so by asking for and then accepting
interbank offers for deposits in reasonable market size in that currency and for that period; or
|
|
|
(b)
|
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency
and period) which contributors to the Screen Rate are asked to submit to the relevant administrator.
|
"
Related
Fun
d
" in relation to a fund (the "
first fund
"), means a fund which is managed or advised
by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or
investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment
adviser of the first fund.
"
Relevant
Interbank Market
" means the London Interbank Market.
"
Relevant
Lender
" has the meaning given in Clause 5.7 (
Market disruption
).
"
Relevant
Person
" means:
|
|
(b)
|
each subsidiary of the Borrower; and
|
|
|
(c)
|
all respective directors, officers, employees, agents and representatives of each of the persons
mentioned in paragraphs (a) to (b) above.
|
"
Repayment
Date
" means a date on which a repayment is required to be made under Clause 8 (
Repayment and Prepayment
).
"
Representative
"
means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
"
Requisition
Compensation
" includes all compensation or other moneys payable by reason of any act or event such as is referred
to in paragraph (b) of the definition of "Total Loss".
"
Resolution
Authority
" means any body which has authority to exercise any Write-down and Conversion Powers.
"
Restricted
Party
" means a person:
|
|
(a)
|
that is listed on any Sanctions List (whether designated by name or by reason of being included
in a class of person);
|
|
|
(b)
|
that is domiciled, registered as located or having its main place of business in, or is incorporated
under the laws of, a country which is subject to Sanctions Laws which attach legal effect to being domiciled, registered as located
or having its main place of business in such country; or
|
|
|
(c)
|
that is directly or indirectly owned or controlled by a person referred to in paragraph (a) and/or
(b) above; or
|
|
|
(d)
|
with which any member of the Group is prohibited from dealing or otherwise engaging in a transaction
with by any Sanctions Laws;
|
"
Sanctions
Authority
" means the United Nations, the United Kingdom, the European Union, the member states of the European
Union, the United States of America, and any authority acting on behalf of any of them in connection with Sanctions Laws.
"
Sanctions
Laws
" means the economic or financial sanctions laws and/or regulations, trade embargoes, prohibitions, restrictive
measures, decisions, executive orders or notices from regulators implemented, adapted, imposed, administered, enacted and/or enforced
by any Sanctions Authority.
"
Sanctions
List
" means any list of persons or entities published in connection with Sanctions Laws by or on behalf of any
Sanctions Authority as amended, revised, supplemented or substituted from time to time.
"
Saverco
"
means Saverco NV, a company incorporated in Belgium whose registered office is at de Gerlachekaai 20, B-2000 Antwerp, Belgium.
"
Screen
Rate
" means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other
person which takes over the administration of that rate) for dollars for the relevant period displayed (before any correction,
recalculation or republication by the administrator) on page LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement
Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that
rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another
page or service displaying the relevant rate after consultation with the Borrower.
"
Secured
Liabilities
" means all monies from time to time due or owing, and all obligations and other actual or contingent
liabilities incurred by the Borrower, the Security Parties or any of them to any Creditor Party, at the date of this Agreement
or at any later time or times, in whatever currency, whether due, owing or incurred alone or jointly with others or as principal,
surety or otherwise under or in connection with any Finance Document or any judgment relating to any Finance Document; and for
this purpose, there shall be disregarded any total or partial discharge of these liabilities, or variation of their terms, which
is effected by, or in connection with, any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of
any country.
"
Security
Interest
" means:
|
|
(a)
|
a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other
security interest of any kind;
|
|
|
(b)
|
the security rights of a plaintiff under an action
in rem
; and
|
|
|
(c)
|
any arrangement entered into by a person (A) the effect of which is to place another person (B)
in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over
an asset of A; but this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard
terms of business of a bank or financial institution.
|
"
Security
Party
" means any person (except the Borrower or a Creditor Party) who, as a surety or mortgagor, as a party to
any subordination or priorities arrangement, or in any similar capacity, executes a document falling within the definition of "Finance
Documents".
"
Security
Period
" means the period commencing on the date of this Agreement and ending on the date on which the Agent notifies
the Borrower, the Security Parties and the Creditor Parties that:
|
|
(a)
|
all amounts which have become due for payment by the Borrower or any Security Party under the Finance
Documents have been paid;
|
|
|
(b)
|
no amount is owing or has accrued (without yet having become due for payment) under any Finance
Document;
|
|
|
(c)
|
neither the Borrower nor any Security Party has any future or contingent liability under Clause
21 (
Fees and expenses
), 22 (
Indemnities
) or 23 (
No Set-Off or Tax Deduction
) or any other provision of this
Agreement or another Finance Document; and
|
|
|
(d)
|
the Agent, the Security Trustee and the Majority Lenders do not consider that there is a significant
risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in
any present or possible future bankruptcy of the Borrower or a Security Party or in any present or possible future proceeding relating
to a Finance Document or any asset covered (or previously covered) by a Security Interest created by a Finance Document.
|
"
Security
Trustee
" means BNP Paribas, acting in such capacity through its office at 16 rue de Hanovre, 75078 Paris, France,
or any successor of it appointed under clause 5 of the Agency and Trust Agreement.
"
Servicing
Bank
" means the Agent or the Security Trustee.
"
Ship
"
means the Suezmax tanker with hull no. 1860 of 157,523 dwt named m.t. "MARIA" registered in the name of the Borrower
under an Approved Flag.
"
Shipbuilding
Contract
" means the Shipbuilding Contract dated 18 April 2008 made between the Builder and the Original Borrower
for the construction by the Builder of the Ship and its purchase by the Borrower as supplemented and amended from time to time
"
Specified
Time
" means a day or time determined as follows:
|
LIBOR is fixed
|
|
Quotation Day as of 11:00 am London time
|
|
|
|
|
|
Reference Bank Rate calculated by reference to available quotations in accordance with Clause 5.6 (
Calculation of Reference Bank Rate
)
|
|
Noon on the Quotation Day
|
"
Subsidiary
"
means any company or entity directly or indirectly controlled by that person (for which purpose, control means either the ownership
of more than 50 per cent of the voting share capital (or equivalent right of ownership) of that company or entity, or the power
to direct its policies and management, whether by contract or otherwise; and for the purposes of this Agreement, a company is to
be treated as a subsidiary even if the relevant shares are registered in the name of (a) a nominee, or (b) any party holding security
over those shares, or that secured party's nominee).
"
Tax
"
means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable
in connection with any failure to pay or any delay in paying any of the same).
"
Total
Commitments
" means the aggregate of the Commitments of all the Lenders being the lesser of (i) $67,500,000 and
(ii) 75 per cent. of the Contract Price at 29 August 2008 plus any increase to the Commitments made pursuant to Clause 2.5 (
Increase
of Loan
).
"
Total
Loss
" means:
|
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of the Ship;
|
|
|
(b)
|
any expropriation, confiscation, requisition or acquisition of the Ship, whether for full consideration,
a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government
or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding
a requisition for hire for a fixed period not exceeding 1 year without any right to an extension) unless it is within 3 months
redelivered to the Borrower's full control; and
|
|
|
(c)
|
any arrest, capture, seizure or detention of the Ship (including any hijacking or theft) unless
it is within 3 months redelivered to the Borrower's full control.
|
"
Total
Loss Date
" means:
|
|
(a)
|
in the case of an actual loss of the Ship, the date on which it occurred or, if that is unknown,
the date when the Ship was last heard of;
|
|
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss of the Ship, the earliest
of:
|
|
|
(i)
|
the date on which a notice of abandonment is given to the insurers; and
|
|
|
(ii)
|
the date of any compromise, arrangement or agreement made by or on behalf of the Borrower with
the Ship's insurers in which the insurers agree to treat the Ship as a total loss; and
|
|
|
(c)
|
in the case of any other type of total loss, on the date (or the most likely date) on which it
appears to the Agent that the event constituting the total loss occurred.
|
"
Transfer
Certificate
" has the meaning given in Clause 28.2 (
Transfer by a Lender
).
"
Trust
Property
" has the meaning given in clause 3.1 of the Agency and Trust Agreement.
"
Unpaid
Sum
" means any sum due and payable but unpaid by the Borrower under the Finance Documents.
"
VAT
"
means:
|
|
(a)
|
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system
of value added tax (EC Directive 2006/112); and
|
|
|
(b)
|
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution
for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
"
Victrix
"
means Victrix NV, a company incorporated in Belgium whose registered office is at Le Grellelei 20, 2600 Berchem, Belgium.
"
Write-down
and Conversion Powers
" means:
|
|
(a)
|
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time
to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule ; and
|
|
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
|
|
(i)
|
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those
powers; and
|
|
|
|
|
|
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation.
|
|
|
1.2
|
Construction of certain terms
|
In this Agreement (unless a contrary
indication appears):
"
administration
notice
" means a notice appointing an administrator, a notice of intended appointment and any other notice which
is required by law (generally or in the case concerned) to be filed with the court or given to a person prior to, or in connection
with, the appointment of an administrator.
the "
Agent
", the
"
Borrower
", any "
Creditor Party
", any "
Lender
", any "
Party
",
any "
Secured Party
", the "
Security Trustee
" or any other person shall be construed so as to include
its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance
Documents (including, for the avoidance of doubt, any novatee of rights and/or obligations under a Hedging Agreement).
"
approved
"
means, for the purposes of Clause 14 (
Insurance
), approved in writing by the Agent.
"
asset
"
includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or
other payment.
"
company
"
includes any partnership, joint venture and unincorporated association.
"
consent
"
includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalisation.
"
contingent
liability
" means a liability which is not certain to arise and/or the amount of which remains unascertained.
"
continuing
"
means, in relation to any Event of Default, the Event of Default has not been remedied to the satisfaction of, or waived by the
Majority Lenders.
"
document
"
includes a deed; also a letter or fax.
"
excess
risks
" means the proportion of claims for general average, salvage and salvage charges not recoverable under the
hull and machinery policies in respect of the Ship in consequence of its insured value being less than the value at which the Ship
is assessed for the purpose of such claims.
"
expense
"
means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable value added or other
tax.
"
indebtedness
"
includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or
future, actual or contingent.
"
law
"
includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution
of the Council of the European Union, the European Commission, the United Nations or its Security Council.
"
legal
or administrative action
" means any legal proceeding or arbitration and any administrative or regulatory action
or investigation.
"
liability
"
includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or
otherwise.
"
months
"
shall be construed in accordance with Clause 1.3 (
Meaning of "month"
).
"
obligatory
insurances
" means all insurances effected, or which the Borrower is obliged to effect, under Clause 14 (
Insurance
)
or any other provision of this Agreement or another Finance Document.
"
person
"
includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture,
consortium, partnership or other entity (whether or not having separate legal personality).
"
policy
",
in relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance
or its terms.
"
protection
and indemnity risks
" means the usual risks covered by a protection and indemnity association managed in London,
including pollution risks and the 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 in them of clause 6 of the International
Hull Clauses (1/11/02) (1/11/03), clause 8 of the Institute Time Clauses (Hulls) (1/10/83) (1/11/95) or the Institute Amended Running
Down Clause (1/10/71) or any equivalent provision.
"
regulation
"
includes any regulation, rule, official directive, request or guideline whether or not having the force of law of any governmental,
intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation.
"
war
risks
" includes the risk of mines and all risks excluded by clause 29 of the International Hull Clauses (1/11/02
or 1/11/03), clause 24 of the Institute Time Clauses (Hulls) (1/11/95) or clause 23 of the Institute Time Clauses (Hulls)(1/10/83).
A period of one or more "months"
ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started
("
the numerically corresponding day
"), but:
|
|
(a)
|
on the Business Day following the numerically corresponding day if the numerically corresponding
day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically
corresponding day; or
|
|
|
(b)
|
on the last Business Day in the relevant calendar month, if the period started on the last Business
Day in a calendar month or if the last calendar month of the period has no numerically corresponding day,
|
and "
month
" and
"
monthly
" shall be construed accordingly.
|
|
1.4
|
General Interpretation
|
In this Agreement:
|
|
(a)
|
references to, or to a provision of, a Finance Document or any other document are references to
it as amended or supplemented, whether before the date of this Agreement or otherwise;
|
|
|
(b)
|
references to, or to a provision of, any law include any amendment, extension, re-enactment or
replacement, whether made before the date of this Agreement or otherwise;
|
|
|
(c)
|
words denoting the singular number shall include the plural and vice versa;
|
|
|
(d)
|
"
including
" and "
in particular
" (and other similar expressions)
shall be construed as not limiting any general words or expressions in connection with which they are used;
|
|
|
(e)
|
a Potential Event of Default is "
continuing
" if it has not been remedied or waived
and an Event of Default is "
continuing
" if it has not been remedied or waived; and
|
|
|
(f)
|
Clauses 1.1 (
Definitions
) to 1.4 (
General Interpretation
) apply unless the contrary
intention appears.
|
In interpreting a Finance Document
or any provision of a Finance Document, all clause, sub-clause and other headings in that and any other Finance Document shall
be entirely disregarded.
Subject to the other provisions of
this Agreement, the Lenders made available to the Original Borrower a term loan facility in an aggregate amount equal to the Total
Commitments to enable the Original Borrower to finance its acquisition of the Ship by 5 Advances as follows:
|
|
(a)
|
a first Advance of up to $13,500,000 to enable the Original Borrower to refinance the first pre-delivery
instalment of the Contract Price under the Shipbuilding Contract paid to the Builder upon signing of the Shipbuilding Contract;
|
|
|
(b)
|
a second Advance of up to $6,750,000 to enable the Original Borrower to meet the second pre-delivery
instalment of the Contract Price under the Shipbuilding Contract paid to the Builder on the date falling twelve calendar months
after the date of the Shipbuilding Contract;
|
|
|
(c)
|
a third Advance of up to $6,750,000 to enable the Original Borrower to meet the third pre-delivery
instalment of the Contract Price under the Shipbuilding Contract paid to the Builder upon keel laying;
|
|
|
(d)
|
a fourth Advance of up to $6,750,000 to enable the Original Borrower to meet the fourth pre-delivery
instalment of the Contract Price under the Shipbuilding Contract paid to the Builder upon launching;
|
|
|
(e)
|
a fifth Advance of up to $33,750,000 to enable the Original Borrower to meet the final instalment
of the Contract Price under the Shipbuilding Contract paid to the Builder upon delivery of the Ship.
|
|
|
2.2
|
Lenders' participations in Loan
|
Subject to the other provisions of
this Agreement, each Lender shall participate in each Advance in the proportion which, as at the relevant Drawdown Date, its Commitment
bears to the Total Commitments. No Creditor Party is bound to monitor or verify the application of any amount borrowed pursuant
to this Agreement.
The Loan was transferred
from the Original Borrower to the Borrower pursuant to an agreement dated the same date as this Agreement was amended and restated
and entered into between the Original Borrower and the Borrower. This transfer was approved by the Creditor Parties.
The Borrower undertakes with each
Creditor Party to use each Advance only for the purpose stated in the preamble to this Agreement.
All the Lenders agree that they may
increase the amount of the Loan by an additional amount of $10,000,000 (the "
Increased Amount
") if requested to
do so by the Borrower subject to the following conditions:
|
|
(a)
|
the Borrower providing evidence that the Ship is on charter on terms, and to a charterer, in each
case acceptable to all the Lenders in their absolute discretion (which terms shall include without limitation a daily hire rate
which the Lenders are satisfied shall be sufficient to cover the operating expenses of the Ship, the repayments of principal and
interest under this Agreement and the increased repayments of principal and interest under this Agreement that will result from
an increase of the Loan by the Increased Amount); and
|
|
|
(b)
|
the Lenders and the Borrower agreeing the terms and conditions of such increase including, but
not limited to, amended pricing, repayment and the entry into documentation satisfactory to the Lenders so as to amend this Agreement
and the other Finance Documents so as to secure the Increase Amount of the Loan and to provide new security to the extent required
by the Lenders so as to maintain the same security for the Lenders.
|
|
|
3
|
Position of the Lenders
|
|
|
3.1
|
Interests of Lenders several
|
The rights of the Lenders under this
Agreement are several.
|
|
3.2
|
Individual Lender's right of action
|
Subject to Clause 3.3 (
Proceedings
by individual Lender requiring Majority Lender consent
), each Lender shall be entitled to sue for any amount which has become
due and payable by the Borrower to it under this Agreement without joining the Agent, the Security Trustee or any other Lender
as additional parties in the proceedings.
|
|
3.3
|
Proceedings by individual Lender requiring Majority Lender consent
|
No Lender may commence proceedings
against the Borrower or any Security Party in connection with a Finance Document without the prior consent of the Majority Lenders.
|
|
3.4
|
Obligations of Lenders several
|
The obligations of the Lenders under
this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement shall not result in:
|
|
(a)
|
the obligations of the other Lenders being increased; nor
|
|
|
(b)
|
the Borrower, any Security Party or any other Lender being discharged (in whole or in part) from
its obligations under any Finance Document,
|
and in no circumstances shall a Lender
have any responsibility for a failure of another Lender to perform its obligations under this Agreement.
Subject to the following conditions,
the Original Borrower requested an Advance to be made by ensuring that the Agent received a completed Drawdown Notice not later
than 11.00 a.m. (London time) 3 Business Days prior to the intended Drawdown Date or such shorter period as the Agent and the Borrower
mutually agreed.
The conditions referred to in Clause
4.1 (
Request for Advance
) were that:
|
|
(a)
|
a Drawdown Date had to be a Business Day within the Availability Period
|
|
|
(b)
|
the amount of the Advance requested complied with Clause 2.1 (
Amount of facility
);
|
|
|
(c)
|
each Advance should not exceed 75 per cent. of the amount of the instalment under the Shipbuilding
Contract which was being financed by that Advance;
|
|
|
(d)
|
the aggregate amount of the Advances should not exceed the Total Commitments;
|
|
|
(e)
|
the proposed Interest Period complied with Clause 6 (
Interest Periods
); and
|
|
|
(f)
|
and the conditions set out in Clause 9.1 (
Documents, fees and no default
) were met.
|
|
|
4.3
|
Notification to Lenders of receipt of a Drawdown Notice
|
The Agent must have promptly notified
the Lenders that it had received a Drawdown Notice and must have informed each Lender of:
|
|
(a)
|
the amount of the Advance and the Drawdown Date;
|
|
|
(b)
|
the amount of that Lender's participation in the Advance; and
|
|
|
(c)
|
the duration of the first Interest Period.
|
|
|
4.4
|
Drawdown Notice irrevocable
|
A Drawdown Notice must have been
signed by a director or officer or an authorised person of the Original Borrower; and once served, a Drawdown Notice could not
be revoked without the prior consent of the Agent, acting on the authorisation of the Majority Lenders.
|
|
4.5
|
Lenders to make available Contributions
|
Subject to the provisions of this
Agreement, and in particular Clause 9 (
Conditions Precedent
), each Lender, on and with value on each Drawdown Date, made
available to the Agent for the account of the Original Borrower the amount due from that Lender on that Drawdown Date under Clause
2.2 (
Lenders' participations in Loan
).
|
|
4.6
|
Disbursement of Advance
|
Subject to the provisions of this
Agreement, the Agent on each Drawdown Date paid to the Original Borrower the amounts which the Agent received from the Lenders
under Clause 4.5 (
Lenders to make available Contributions
); and that payment to the Original Borrower was made:
|
|
(a)
|
to the account of the Builder which the Original Borrower specified in the Drawdown Notice; and
|
|
|
(b)
|
in the like funds as the Agent received the payments from the Lenders.
|
|
|
4.7
|
Disbursement of Advance to third party
|
The payment by the Agent under Clause
4.6 (
Disbursement of Advance
) to the Builder constituted the making of the Advance and the Original Borrower at that time
and the Borrower from the date of this amended and restated Agreement became indebted, as principal and direct obligor, to each
Lender in an amount equal to that Lender's Contribution.
|
|
4.8
|
Cancellation of Total Commitments
|
Any undrawn portion of the Total
Commitments shall have been immediately cancelled at the end of the Availability Period.
|
|
5.1
|
Payment of normal interest
|
Subject to the provisions of this
Agreement, interest on the Loan in respect of each Interest Period shall be paid by the Borrower on the last day of that Interest
Period.
|
|
5.2
|
Normal rate of interest
|
Subject to the provisions of this
Agreement, the rate of interest on the Loan in respect of an Interest Period shall be the aggregate of:
|
|
(b)
|
LIBOR for that Interest Period.
|
|
|
5.3
|
Payment of accrued interest
|
In the case of an Interest Period
longer than 3 months, accrued interest shall be paid every 3 months during that Interest Period and on the last day of that Interest
Period.
|
|
5.4
|
Notification of Interest Periods and rates of normal interest
|
The Agent shall notify the Borrower
and each Lender of:
|
|
(a)
|
each rate of interest; and
|
|
|
(b)
|
the duration of each Interest Period,
|
as soon as reasonably practicable
after each is determined.
|
|
5.5
|
Unavailability of Screen Rate
|
|
|
(a)
|
Interpolated Screen Rate
: If no Screen Rate is available for LIBOR for the Interest Period
of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to
the Interest Period of the Loan or that part of the Loan.
|
|
|
(b)
|
Reference Bank Rate
: If no Screen Rate is available for LIBOR for:
|
|
|
(ii)
|
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the
Interpolated Screen Rate,
|
the applicable LIBOR shall be the
Reference Bank Rate as of the Specified Time and for a period equal in length to the Interest Period of the Loan or that part of
the Loan.
|
|
(c)
|
Cost of funds
: If paragraph (b) above applies but no Reference Bank Rate is available for
dollars or the relevant Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause
5.12 (
Cost of funds
) shall apply to the Loan or that part of the Loan for that Interest Period.
|
|
|
5.6
|
Calculation of Reference Bank Rate
|
|
|
(a)
|
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate
but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis
of the quotations of the remaining Reference Banks.
|
|
|
(b)
|
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation,
there shall be no Reference Bank Rate for the relevant Interest Period.
|
If before close of business in London
on the Quotation Day for the relevant Interest Period the Agent receives notification from a Lender or Lenders (whose participations
in the Loan or the relevant part of the Loan exceed 49 per cent. of the Loan or the relevant part of the Loan as appropriate) (the
"
Relevant Lender
") that the cost to it of funding its participation in the Loan or that part of the Loan from
whatever source it may reasonably select would be in excess of LIBOR then Clause 5.12 (
Cost of funds
) shall apply to the
Loan or that part of the Loan (as applicable) for the relevant Interest Period.
|
|
5.8
|
Notification of market disruption
|
The Agent shall notify the Borrower
and each of the Lenders stating the circumstances falling within Clause 5.7 (
Market disruption
) which have caused its notice
to be given.
If the Borrower does not agree with
an interest rate set by the Agent under Clause 5.5 (
Unavailability of Screen Rate
), the Borrower may give the Agent not
less than 15 Business Days' notice of its intention to prepay at the end of the interest period set by the Agent.
|
|
5.10
|
Prepayment; termination of Commitments
|
A notice under Clause 5.8 (
Notification
of market disruption
) shall be irrevocable; the Agent shall promptly notify the Lenders or (as the case may require) the Relevant
Lender of the Borrower's notice of intended prepayment; and:
|
|
(a)
|
on the date on which the Agent serves that notice, the Total Commitments or (as the case may require)
the Commitment of the Relevant Lender shall be cancelled; and
|
|
|
(b)
|
on the last Business Day of the interest period set by the Agent, the Borrower shall prepay (without
premium or penalty) the Loan or, as the case may be, the Relevant Lender's Contribution, together with accrued interest thereon
at the applicable rate plus the Margin.
|
|
|
5.11
|
Application of prepayment
|
The provisions of Clause 8 (
Repayment
and Prepayment
) shall apply in relation to the prepayment made pursuant to Clause 5.8 (
Notification of market disruption
).
|
|
(a)
|
If this Clause 5.12 (
Cost of funds
) applies, the rate of interest on the Loan or the relevant
part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
|
|
(ii)
|
the weighted average of the rates notified to the Agent by each Lender as soon as practicable and
in any event before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate
per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source
it may reasonably select.
|
|
|
(b)
|
If this Clause 5.12 (
Cost of funds
) applies and the Agent or the Borrower so requires, the
Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute
basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
|
|
(c)
|
Subject to Clause 29.4 (
Replacement of Screen Rate
), any substitute or alternative basis
agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.
|
|
|
(d)
|
If paragraph (e) below does not apply and any rate notified to the Agent under sub-paragraph (ii)
of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.
|
|
|
(e)
|
If this Clause 5.12 (
Cost of funds
) applies pursuant to Clause 5.7 (
Market disruption
)
and:
|
|
|
(i)
|
a Lender's Funding Rate is less than LIBOR; or
|
|
|
(ii)
|
a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph (a)
above,
|
the cost to that Lender of funding
its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed, for the purposes of paragraph
(a) above, to be LIBOR.
|
|
(f)
|
If this Clause 5.11 applies but any Lender does not supply a quotation by the time specified in
sub-paragraph (ii) of paragraph (a) above the rate of interest shall be calculated on the basis of the quotations of the remaining
Lenders.
|
|
|
(a)
|
The Borrower shall, within three Business Days of demand by a Creditor Party, pay to that Creditor
Party its Break Costs attributable to all or any part of the Loan or Unpaid Sum being paid by the Borrower on a day other than
the last day of an Interest Period for the Loan, the relevant part of the Loan or that Unpaid Sum.
|
|
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate
confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
|
|
6.1
|
Commencement of Interest Periods
|
The first Interest Period applicable
to an Advance shall commence on the Drawdown Date and each subsequent Interest Period shall commence on the expiry of the preceding
Interest Period.
|
|
6.2
|
Duration of normal Interest Periods
|
Subject to Clauses 6.3 (
Duration
of Interest Periods for repayment instalments
) and 6.4 (
Non-availability of matching deposits for Interest Period selected
),
each Interest Period shall be:
|
|
(a)
|
3, 6, 9 or 12 months as notified by the Borrower to the Agent not later than 11.00 a.m. (London
time) 3 Business Days before the commencement of the Interest Period; or
|
|
|
(b)
|
in the case of the first Interest Period applicable to the second and any subsequent Advance, a
period ending on the last day of the Interest Period applicable to the first Advance then current, whereupon all of the Advances
shall be consolidated and treated as a single Advance;
|
|
|
(c)
|
3 months, if the Borrower fails to notify the Agent by the time specified in paragraph (a); or
|
|
|
(d)
|
such other period as the Agent may, with the authorisation of the Majority Lenders, agree with
the Borrower.
|
|
|
6.3
|
Duration of Interest Periods for repayment instalments
|
In respect of an amount due to be
repaid under Clause 8 (
Repayment and Prepayment
) on a particular Repayment Date, an Interest Period shall end on that Repayment
Date.
|
|
6.4
|
Non-availability of matching deposits for Interest Period selected
|
If, after the Borrower has selected
and the Lenders have agreed an Interest Period longer than 3 months, any Lender notifies the Agent by 11.00 a.m. (London time)
on the third Business Day before the commencement of the Interest Period that it is not satisfied that deposits in Dollars for
a period equal to the Interest Period will be available to it in the London Interbank Market when the Interest Period commences,
the Interest Period shall be of 3 months.
|
|
7.1
|
Payment of default interest on overdue amounts
|
The Borrower shall pay interest in
accordance with the following provisions of this Clause 7 (
Default Interest
) on any amount payable by the Borrower under
any Finance Document which the Agent, the Security Trustee or the other designated payee does not receive on or before the relevant
date, that is:
|
|
(a)
|
the date on which the Finance Documents provide that such amount is due for payment; or
|
|
|
(b)
|
if a Finance Document provides that such amount is payable on demand, the date on which the demand
is served; or
|
|
|
(c)
|
if such amount has become immediately due and payable under Clause 20.4 (
Acceleration of Loan
),
the date on which it became immediately due and payable.
|
|
|
7.2
|
Default rate of interest
|
Interest shall accrue on an overdue
amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per
annum determined by the Agent to be 1 per cent. above:
|
|
(a)
|
in the case of an overdue amount of principal, the higher of the rates set out at paragraphs (a)
and (b) of Clause 7.3 (
Calculation of default rate of interest
); or
|
|
|
(b)
|
in the case of any other overdue amount, the rate set out at paragraph (b) of Clause 7.3 (
Calculation
of default rate of interest
).
|
|
|
7.3
|
Calculation of default rate of interest
|
The rates referred to in Clause 7.2
(
Default rate of interest
) are:
|
|
(a)
|
the rate applicable to the overdue principal amount immediately prior to the relevant date (but
only for any unexpired part of any then current Interest Period);
|
|
|
(b)
|
the Margin, plus, in respect of successive periods of any duration (including at call) up to 3
months which the Agent may select from time to time:
|
|
|
(ii)
|
if the Agent (after consultation with the Reference Banks) determines that Dollar deposits for
any such period are not being made available to any Reference Bank by leading banks in the London Interbank Market in the ordinary
course of business, a rate from time to time determined by the Agent by reference to the cost of funds to the Reference Banks from
such other sources as the Agent (after consultation with the Reference Banks) may from time to time determine.
|
|
|
7.4
|
Notification of interest periods and default rates
|
The Agent shall promptly notify the
Lenders and the Borrower of each interest rate determined by the Agent under Clause 7.3 (
Calculation of default rate of interest
)
and of each period selected by the Agent for the purposes of paragraph (b) of that Clause; but this shall not be taken to imply
that the Borrower is liable to pay such interest only with effect from the date of the Agent's notification.
|
|
7.5
|
Payment of accrued default interest
|
Subject to the other provisions of
this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference to which it was determined;
and the payment shall be made to the Agent for the account of the Creditor Party to which the overdue amount is due.
|
|
7.6
|
Compounding of default interest
|
Any such interest which is not paid
at the end of the period by reference to which it was determined shall thereupon be compounded.
|
|
8
|
Repayment and Prepayment
|
|
|
8.1
|
Amount of repayment instalments
|
The Borrower shall repay the Loan
by 11 equal consecutive quarterly instalments of $992,500 each together with a balloon instalment of $17,232,500 payable simultaneously
with the final instalment.
The first instalment was to be repaid
on the date falling 3 months after the last Drawdown Date and the last instalment together with the balloon is to be repaid on
the date falling 96 months after the last Drawdown Date.
On the Maturity Date, the Borrower
shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance
Document.
Subject to the following conditions,
the Borrower may, without penalty, prepay the whole or any part of the Loan on the last day of an Interest Period for that Advance.
|
|
8.5
|
Conditions for voluntary prepayment
|
The conditions referred to in Clause
8.4 (
Voluntary prepayment
) are that:
|
|
(a)
|
a partial prepayment shall be $500,000 or a multiple of $500,000 or such other amount agreed by
the Agent;
|
|
|
(b)
|
the Agent has received from the Borrower at least 5 Business Days' prior written notice specifying
the amount to be prepaid and the date on which the prepayment is to be made; and
|
|
|
(c)
|
the Borrower has provided evidence satisfactory to the Agent that any consent required by the Borrower
or any Security Party in connection with the prepayment has been obtained and remains in force, and that any requirement relevant
to this Agreement which affects the Borrower or any Security Party has been complied with.
|
|
|
8.6
|
Effect of notice of prepayment
|
A prepayment notice may not be withdrawn
or amended without the consent of the Agent, given with the authorisation of the Majority Lenders, and the amount specified in
the prepayment notice shall become due and payable by the Borrower on the date for prepayment specified in the prepayment notice.
|
|
8.7
|
Notification of notice of prepayment
|
The Agent shall notify the Lenders
promptly upon receiving a prepayment notice, and shall provide any Lender which so requests with a copy of any document delivered
by the Borrower under paragraph (c) of Clause 8.5 (
Conditions for voluntary prepayment
).
The Borrower shall be obliged to
prepay the whole of the Loan:
|
|
(a)
|
if the Ship is sold, on or before the date on which such sale is completed by delivery of the Ship
to the buyer; or
|
|
|
(b)
|
if the Ship becomes a Total Loss, on the earlier of the date falling 180 days after the Total Loss
Date and the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss; or
|
|
|
(c)
|
if the Borrower is not in compliance with the financial covenants in Clause 11.1 (
Financial
Covenants
) at any time during the Security Period, the Borrower shall be obliged to repay the Loan in full (and the Commitments
shall be cancelled) not later than 5 days following a request in writing from the Agent (acting on the instructions of the Majority
Lenders) to the Borrower to repay the Loan; or
|
|
|
(d)
|
if there is a Change of Control, the Borrower shall be obliged to prepay the Loan in full and the
Commitments shall terminate not later than 60 days following the occurrence of the Change of Control.
|
|
|
8.9
|
Amounts payable on prepayment
|
A prepayment shall be made together
with accrued interest (and any other amount payable under Clause 22 (
Indemnities
) or otherwise) in respect of the amount
prepaid and, if the prepayment is not made on the last day of an Interest Period together with any sums payable under paragraph
(b) of Clause 22.1 (
Indemnities regarding borrowing and repayment of Loan
) but without premium or penalty.
|
|
8.10
|
Application of partial prepayment
|
Each partial prepayment shall be
applied first against the balloon and then against the repayment instalments specified in Clause 8.1 (
Amount of repayment instalments
)
in inverse order of maturity.
No amount prepaid may be reborrowed.
|
|
9.1
|
Documents, fees and no default
|
Each Lender's obligation to contribute
to an Advance was subject to the following conditions precedent:
|
|
(a)
|
that, on or before the service of the first Drawdown Notice, the Agent received the documents described
in Part A of Schedule 3 (
Condition Precedent Documents
) in form and substance satisfactory to the Agent and its lawyers;
|
|
|
(b)
|
that, on or before the first Drawdown Date for, but prior to the making of, an Advance (other than
the final Advance), the Agent received or was satisfied that it would receive on the making of such Advance the documents described
in Part B of Schedule 3 (
Condition Precedent Documents
) in form and substance satisfactory to it and its lawyers;
|
|
|
(c)
|
that before the final Drawdown Date for, but prior to the making of, the final Advance, the Agent
received or was satisfied that it would receive on the making of such Advance the documents described in Part C of Schedule
3 (
Condition Precedent Documents
) in form and substance satisfactory to it and its lawyers;
|
|
|
(d)
|
that, on or before the service of the first Drawdown Notice, the Agent received the arrangement
fee referred to in Clause 21.1 (
Arrangement, commitment fees
), all accrued commitment fees payable pursuant to Clause 21.1
(
Arrangement, commitment fees
) and had received payment of the expenses referred to in Clause 21.2 (
Costs of negotiation,
preparation
); and
|
|
|
(e)
|
that both at the date of each Drawdown Notice and at each Drawdown Date:
|
|
|
(i)
|
no Event of Default or Potential Event of Default had occurred or would result from the borrowing
of the Loan;
|
|
|
(ii)
|
the representations and warranties in Clause 10 (
Representations and Warranties
) and those
of the Borrower or any Security Party which were set out in the other Finance Documents would be true and not misleading if repeated
on each of those dates with reference to the circumstances then existing; and
|
|
|
(iii)
|
none of the circumstances contemplated by Clause 5.7 (
Market disruption
) had occurred or
was continuing; and
|
|
|
(f)
|
that, if the ratio set out in Clause 16.1 (
Minimum required security cover
) was applied
immediately following the making of the Advance, the Original Borrower would not have been obliged to provide additional security
or prepay part of the Loan under that Clause; and
|
|
|
(g)
|
that the Agent had received, and found to be acceptable to it, any further opinions, consents,
agreements and documents in connection with the Finance Documents which the Agent may, with the authorisation of the Majority Lenders,
request by notice to the Borrower prior to the Drawdown Date.
|
|
|
9.2
|
Waiver of conditions precedent
|
If the Majority Lenders, at their
discretion, were to permit an Advance to be borrowed before certain of the conditions referred to in Clause 9.1 (
Documents,
fees and no default
) were satisfied, the Original Borrower had to ensure that those conditions were satisfied within 5 Business
Days after the Drawdown Date (or such longer period as the Agent may, with the authorisation of the Majority Lenders have specified).
|
|
10
|
Representations and Warranties
|
The Borrower represents and warrants
to each Creditor Party on the date of this amended and restated Agreement as follows.
The Borrower is duly incorporated
and validly existing and in good standing under the laws of Belgium.
The Borrower has the corporate capacity,
and has taken all corporate action and obtained all consents necessary for it:
|
|
(a)
|
to execute the Finance Documents to which it is a party; and
|
|
|
(b)
|
to make all the payments contemplated by, and to comply with, those Finance Documents.
|
All the consents referred to in Clause
10.3 (
Corporate power
) remain in force and nothing has occurred which makes any of them liable to revocation.
|
|
10.5
|
Legal validity; effective Security Interests
|
The Finance Documents to which the
Borrower is a party, do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided
for in the Finance Documents):
|
|
(a)
|
constitute the Borrower's legal, valid and binding obligations enforceable against the Borrower
in accordance with their respective terms; and
|
|
|
(b)
|
create legal, valid and binding Security Interests enforceable in accordance with their respective
terms over all the assets to which they, by their terms, relate,
|
subject to any relevant insolvency
laws affecting creditors' rights generally.
|
|
10.6
|
No third party Security Interests
|
Without limiting the generality of
Clause 10.5 (
Legal validity; effective Security Interests
), at the time of the execution and delivery of each Finance Document:
|
|
(a)
|
the Borrower will have the right to create all the Security Interests which that Finance Document
purports to create; and
|
|
|
(b)
|
no third party will have any Security Interest (except for Permitted Security Interests) or any
other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.
|
The execution by the Borrower of
each Finance Document, and the borrowing by the Borrower of the Loan, and its compliance with each Finance Document will not involve
or lead to a contravention of:
|
|
(a)
|
any law or regulation; or
|
|
|
(b)
|
the constitutional documents of the Borrower; or
|
|
|
(c)
|
any contractual or other obligation or restriction which is binding on the Borrower or any of its
assets.
|
|
|
10.8
|
Governing law and enforcement.
|
|
|
(a)
|
The choice of English law as the governing law of the Finance Documents will be recognised and
enforced in its jurisdiction of incorporation.
|
|
|
(b)
|
Any judgment obtained in England in relation to a Finance Document will be recognised and enforced
in its jurisdiction of incorporation.
|
|
|
10.9
|
No withholding taxes
|
All payments which the Borrower is
liable to make under the Finance Documents must be made without any Tax Deduction payable under any law of any Pertinent Jurisdiction.
No Event of Default or Potential
Event of Default has occurred.
All information which has been provided
in writing by or on behalf of the Borrower or any Security Party to any Creditor Party in connection with any Finance Document
satisfied the requirements of Clause 12.5 (
Information provided to be accurate
); all audited and unaudited accounts which
have been so provided satisfied the requirements of Clause 12.7 (
Form of financial statements
); and there has been no material
adverse change in the financial position or state of affairs of the Borrower from that disclosed in the latest of those accounts.
No legal or administrative action
involving the Borrower (including action relating to any alleged or actual breach of the ISM Code or the ISPS Code) has been commenced
or taken or, to the Borrower's knowledge, is likely to be commenced or taken which, in either case, would be likely to have a material
adverse effect on the Borrower's financial position or profitability.
|
|
10.13
|
Compliance with certain undertakings
|
At the date of this amended and restated
Agreement, the Borrower is in compliance with Clauses 12.2 (
Title; negative pledge
), 12.4 (
No other liabilities or obligations
to be incurred
), 12.9 (
Consents
) and 12.12 (
Principal place of business
).
The Borrower has paid all Taxes applicable
to, or imposed on or in relation to the Borrower, its business or the Ship.
|
|
10.15
|
ISM Code and ISPS Code compliance
|
All requirements of the ISM Code
and the ISPS Code as they relate to the Borrower, the Approved Manager and the Ship have been complied with or shall be complied
with as from the delivery of the Ship to the Borrower under the Shipbuilding Contract.
|
|
10.16
|
No money laundering
|
Without prejudice to the generality
of Clause 2.4 (
Purpose of Loan
), in relation to the borrowing by the Borrower of the Loan, the performance and discharge
of its obligations and liabilities under the Finance Documents, and the transactions and other arrangements affected or contemplated
by the Finance Documents to which the Borrower is a party, the Borrower confirms (i) that it is acting for its own account; (ii)
that it will use the proceeds of the Loan for its own benefit, under its full responsibility and exclusively for the purposes specified
in this Agreement; and (iii) that the foregoing will not involve or lead to a 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
2005/60/EC of the European Parliament and of the Council of the European Union of 26 October 2005).
|
|
10.17
|
Anti-Corruption Laws
|
Each Borrower has conducted its business
in compliance with all applicable Anti-Corruption Laws and has instituted and maintained policies and procedures designed to promote
and achieve compliance with such laws.
Each Relevant Person has been and
is in compliance with all Sanctions Laws and no Relevant Person:
|
|
(a)
|
is a Restricted Party, or is involved in any transaction through which it is likely to become a
Restricted Party; or
|
|
|
(b)
|
has received formal notice in writing of any inquiry, claim, action, suit, proceeding or investigation
against it with respect to Sanctions Laws.
|
The Borrower will ensure that the
consolidated financial position of the Group shall at all times during the Security Period be such that:
|
|
(a)
|
Consolidated Working Capital shall not be less than $0;
|
|
|
(b)
|
Free Liquid Assets are not less than the higher of:
|
|
|
(ii)
|
5 per cent. of Total Indebtedness;
|
|
|
(c)
|
the amount of Cash shall equal or exceed US$30,000,000; and
|
|
|
(d)
|
the ratio of Stockholders’ Equity to Total Assets is not less than 30 per cent.
|
In this Clause 11.1 (
Financial
Covenants
):
"
Cash
"
means, at any date of determination under this Agreement, the aggregate value of the Group's credit balances on any deposit, savings
or current account and cash in hand with recognised and reputable banks or financial institutions but excluding any such credit
balances and cash subject to a Security Interest at any time;
"
Consolidated
Current Assets
" means, at any date of determination under this Agreement, the amount of the current assets of the
Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet and including any amounts
available under committed credit lines having remaining maturities of more than 12 months;
"
Consolidated
Current Liabilities
" means, at any date of determination under this Agreement, the amount of the current liabilities
of the Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet;
"
Consolidated
Working Capital
" means Consolidated Current Assets less Consolidated Current Liabilities;
"
Free
Liquid Assets
" means, at any date of determination under this Agreement, the aggregate amount of cash and cash
equivalents of the Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet but
excluding any of those assets subject to a Security Interest (other than a Security Interest in favour of the Security Trustee
pursuant to this Agreement) at any time and, for the avoidance of doubt, "cash and cash equivalents" include any amounts
available under committed credit lines having remaining maturities of more than 6 months;
"
Latest
Balance Sheet
” means, at any date, the consolidated balance sheet of the Group most recently delivered to the
Agent pursuant to Clause 12.6 (
Provision of financial statements
) and/or most recently made publicly available;
"
Stockholders'
Equity
" means, at any date of determination under this Agreement, the amount of the capital and reserves of the
Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet;
"
Total
Assets
" means, at any date of determination under this Agreement, the amount of the total assets of the Group determined
on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet; and
"
Total
Indebtedness
" means, at any date of determination under this Agreement, the amount of long-term loans (including
finance leases, banks loans and other long-term loans) and short-term loans of the Group determined on a consolidated basis in
accordance with IFRS and as shown in the Latest Balance Sheet.
If, at any time after the date of
this Agreement, any mandatory change is made to IFRS or any applicable law relating to the financial reporting (including but not
limited to accounting bases, policies, practices and procedures or reference periods) of the Group generally or any member of the
Group individually and the effect of complying with that change would result in the value for "Cash", "Consolidated
Current Assets", "Consolidated Current Liabilities", "Consolidated Working Capital", "Free Liquid
Assets", "Stockholders' Equity", "Total Assets" and/or "Total Indebtedness" being materially
different from its value if calculated in accordance with IFRS and all applicable laws in effect at the date of this Agreement
and of which the Lenders would reasonably expect to have been informed, the Borrower shall immediately notify the Agent of that
change and procure that, as soon as reasonably practicable thereafter, the Borrower's auditors deliver to the Agent:
|
|
(a)
|
a description of the change and what adjustments would need to be made to the financial statements
of the Group following that change in order to reverse the effects of that change so that the values of "Cash", "Consolidated
Current Assets", "Consolidated Current Liabilities", "Consolidated Working Capital", "Free Liquid
Assets", "Stockholders' Equity", "Total Assets" and/or "Total Indebtedness" will be the same
as if calculated in accordance with IFRS and all applicable laws in effect at the date of this Agreement; and
|
|
|
(b)
|
such information, in form and substance acceptable to the Agent, as may be required:
|
|
|
(i)
|
to enable the Lenders to determine whether there is a breach of any of the financial covenants
in respect of the Group set out in Clause 11.1 (
Financial Covenants
) (based on IFRS and all applicable laws in effect at
the date of this Agreement); and
|
|
|
(ii)
|
to assist the Lenders in making an accurate comparison between the financial position of the Group
indicated in the financial statements prepared following the change and those prepared prior to it.
|
In the event that the Lenders are
satisfied that, based on the information provided by the Borrower's auditors, the financial covenants in Clause 11.1 (
Financial
Covenants
) have been complied with, the Lenders and the Borrower shall enter into discussions with a view to agreeing amendments
to this Agreement so as to mitigate the effect of the change.
|
|
11.3
|
Change of accounting period
|
The Borrower shall not change its
fiscal year end date being 31 December.
The Borrower undertakes with each
Creditor Party to comply with the following provisions of this Clause 12 (
General Undertakings
) at all times during the
Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit (such consent not to
be unreasonably withheld or delayed in the case of Clause 12.12 (
Principal place of business
)).
|
|
12.2
|
Title; negative pledge
|
The Borrower will hold the legal
title to, and own the entire beneficial interest in the Ship, the Insurances and Earnings, free from all Security Interests and
other interests and rights of every kind, except for those created by the Finance Documents and the effect of assignments contained
in the Finance Documents and except for Permitted Security Interests.
|
|
12.3
|
No disposal of assets
|
The Borrower will not transfer, lease
or otherwise dispose of all or a substantial part of its assets, whether by one transaction or a number of transactions, whether
related or not except for those in the ordinary course of business and for fair market value payable in cash upon completion of
such transaction, with the exception of any charter of the Ship as to which Clause 15.14 (
Time and consecutive voyage charters
in excess of 36 months
) applies,
Provided
that the Borrower
may sell the Ship to a Subsidiary subject to the following conditions:
|
|
(i)
|
there is no Event of Default or Potential Event of Default which is continuing;
|
|
|
(ii)
|
the new owning company and the jurisdiction of incorporation being acceptable to the Lenders;
|
|
|
(iii)
|
the Borrower and the Security Parties entering into such amendments to this Agreement and the other
Finance Documents as may be required by the Lenders in order to document the change of ownership;
|
|
|
(iv)
|
the new owning company entering into such other security documents which are required by the Lenders
so as to maintain the same security for the Lenders on the transfer of ownership; and
|
|
|
(v)
|
the new owner shall pay to the Agent on demand all expenses (including but not limited to legal
expenses) relating to the said documentation.
|
|
|
12.4
|
No other liabilities or obligations to be incurred
|
The Borrower shall not, without the
prior consent of the Majority Lenders, incur any Financial Indebtedness or grant any guarantee in respect of Financial Indebtedness
if, as a result of incurring that Financial Indebtedness or incurring the contingent liability under that guarantee (as assessed
in accordance with IFRS), an Event of Default would occur, or one or more of the financial covenants in respect of the Borrower
set out in Clause 11.1 (
Financial Covenants
) would be breached, on the date of such incurrence.
|
|
12.5
|
Information provided to be accurate
|
All financial and other information
which is provided in writing by or on behalf of the Borrower under or in connection with any Finance Document will be true and
not misleading and will not omit any material fact or consideration.
|
|
12.6
|
Provision of financial statements
|
The Borrower will send to the Agent:
|
|
(a)
|
as soon as possible, but in no event later than 180 days after the end of each financial year of
the Borrower, (commencing with the financial year ending 31 December 2015), the audited consolidated accounts of the Borrower and
its Subsidiaries;
|
|
|
(b)
|
as soon as possible, but in no event later than 45 days after the end of each quarter in each financial
year of the Borrower unaudited consolidated accounts of the Borrower and its Subsidiaries certified as to their correctness by
the chief financial officer of the Borrower; and
|
|
|
(c)
|
together with the annual audited consolidated accounts referred to in paragraph (a) above, a compliance
certificate (together with supporting schedules, if any) signed by the chief financial officer of the Borrower in the form attached
as Schedule 8 (
Form of Certificate of Compliance
) (or in any other format which the Agent may approve and with such other
information as the Agent may require) evidencing compliance with the financial undertakings in Clause 11.1 (
Financial Covenants
)
and also listing the market value of the Ship.
|
|
|
12.7
|
Form of financial statements
|
All accounts (audited and unaudited)
delivered under Clause 12.6 (
Provision of financial statements
) will:
|
|
(a)
|
be prepared in accordance with all applicable laws and IFRS consistently applied;
|
|
|
(b)
|
fairly represent the financial condition of the Borrower at the date of those accounts and of its
profit for the period to which those accounts relate; and
|
|
|
(c)
|
fully disclose or provide for all significant liabilities of the Borrower and its Subsidiaries
(or the Borrower, as the case may be).
|
The Borrower will send the Agent,
at the same time as they are despatched, copies of all material communications which are despatched to the whole or any class of
the Borrower’s shareholders or to the Borrower's creditors or any class of them.
The Borrower will maintain in force
and promptly obtain or renew, and will promptly send certified copies to the Agent of, all consents required:
|
|
(a)
|
for the Borrower to perform its obligations under any Finance Document;
|
|
|
(b)
|
for the validity or enforceability of any Finance Document; and
|
|
|
(c)
|
for the Borrower to continue to own and operate the Ship,
|
and the Borrower will comply with
the terms of all such consents.
|
|
12.10
|
Maintenance of Security Interests
|
The Borrower will:
|
|
(a)
|
at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates
the obligations and the Security Interests which it purports to create; and
|
|
|
(b)
|
without limiting the generality of paragraph (a), at its own cost, promptly register, file, record
or enrol any Finance Document with any court or authority in all Pertinent Jurisdictions, pay any stamp, registration or similar
Tax in all Pertinent Jurisdictions in respect of any Finance Document, give any notice or take any other step which, in the opinion
of the Majority Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable or admissible
in evidence or to ensure or protect the priority of any Security Interest which it creates.
|
|
|
12.11
|
Notification of litigation
|
The Borrower will provide the Agent
with details of any legal or administrative action involving the Borrower, any Security Party, the Approved Manager or the Ship,
the Earnings or the Insurances as soon as such action is instituted or it becomes apparent to the Borrower that it is likely to
be instituted, unless it is clear that the legal or administrative action cannot be considered material in the context of any Finance
Document.
|
|
12.12
|
Principal place of business
|
The Borrower will notify the Agent
if it has a place of business in any jurisdiction which would require a Finance Document to which it is a party to be registered,
filed or recorded with any court or authority in that jurisdiction or if the centre of its main interests changes.
|
|
12.13
|
Confirmation of no default
|
The Borrower will, within 5 Business
Days after service by the Agent of a written request, serve on the Agent a notice which is signed by 2 directors of the Borrower
and which:
|
|
(a)
|
states that no Event of Default or Potential Event of Default has occurred; or
|
|
|
(b)
|
states that no Event of Default or Potential Event of Default has occurred, except for a specified
event or matter, of which all material details are given.
|
The Agent may serve requests under
this Clause 12.13 (
Confirmation of no default
) from time to time but only if reasonably asked to do so by a Lender or Lenders
having Contributions exceeding 10 per cent. of the Loan or (if the Loan has not been made) Commitments exceeding 10 per cent of
the Total Commitments; and this Clause 12.13 (
Confirmation of no default
) does not affect the Borrower's obligations under
Clause 12.14 (
Notification of default
).
|
|
12.14
|
Notification of default
|
The Borrower will notify the Agent
as soon as the Borrower becomes aware of:
|
|
(a)
|
the occurrence of an Event of Default or a Potential Event of Default; or
|
|
|
(b)
|
any matter which indicates that an Event of Default or a Potential Event of Default may have occurred;
|
and will keep the Agent fully up-to-date
with all developments.
|
|
12.15
|
Provision of further information
|
The Borrower will, as soon as practicable
after receiving the request, provide the Agent with any additional financial or other information relating to:
|
|
(a)
|
the Borrower, the Ship, the Earnings or the Insurances; or
|
|
|
(b)
|
any claim, action, suit, proceeding or investigation with respect to Sanctions Laws against it,
any of its direct or indirect owners, subsidiaries or any of their respective directors, officers, employees, agents or representatives;
or
|
|
|
(c)
|
any other matter relevant to, or to any provision of, a Finance Document,
|
which may reasonably be requested
by the Agent, the Security Trustee or any Lender at any time.
|
|
12.16
|
"Know your customer" checks
|
If:
|
|
(a)
|
the introduction of or any change in (or in the interpretation, administration or application of)
any law or regulation made after the date of this Agreement;
|
|
|
(b)
|
any change in the status of the Borrower or any Security Party after the date of this Agreement;
or
|
|
|
(c)
|
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement
to a party that is not a Lender prior to such assignment or transfer,
|
obliges the Agent or any Lender (or,
in the case of paragraph (c), any prospective new Lender) to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already available to it, the Borrower shall promptly upon the
request of the Agent or the Lender concerned supply, or procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself or on behalf of any Lender) or the Lender concerned (for itself or, in the case of the event
described in paragraph (c), on behalf of any prospective new Lender) in order for the Agent, the Lender concerned or, in the case
of the event described in paragraph (c), any prospective new Lender to carry out and be satisfied it has complied with all necessary
"know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated
in the Finance Documents.
|
|
12.17
|
Conduct of business; compliance with laws
|
The Borrower shall conduct its business
in a proper and efficient manner in compliance with:
|
|
(a)
|
its constitutional documents;
|
|
|
(c)
|
all Anti-Corruption Laws;
|
|
|
(d)
|
all Environmental Laws; and
|
|
|
(e)
|
all other laws and regulations applicable to its business,
|
and shall notify the Agent immediately
upon becoming aware of any breach of any such document, law or regulation.
|
|
12.18
|
Compliance with Sanctions Laws
|
The Borrower shall:
|
|
(a)
|
ensure that neither it nor any of its subsidiaries is or will become a Restricted Party;
|
|
|
(b)
|
use reasonable endeavours to procure that no director, officer, employee, agent or representative
of any Borrower or any subsidiary of any Borrower is or will become a Restricted Party; and
|
|
|
(c)
|
procure that no proceeds of any Advance shall be made available, directly or indirectly, to or
for the benefit of a Restricted Party nor shall they otherwise be applied in a manner for a purpose prohibited by Sanctions Laws.
|
|
|
13
|
Corporate Undertakings
|
The Borrower also undertakes with
each Creditor Party to comply with the following provisions of this Clause 13 (
Corporate Undertakings
) at all times during
the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit.
|
|
13.2
|
Maintenance of status
|
The Borrower will maintain its separate
corporate existence and remain in good standing under the laws of Belgium.
|
|
13.3
|
Negative undertakings
|
The Borrower will not:
|
|
(a)
|
operate outside the scope of its Articles of Association.; or
|
|
|
(b)
|
provide any form of credit or financial assistance to:
|
|
|
(ii)
|
enter into any transaction with or involving such a person or company on terms which are, in any
respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms' length,
|
and the Borrower agrees to subordinate
any inter-company loans to the Loan on such terms as the Lenders may reasonably require;
The Borrower will
not, and will procure that none of its subsidiaries will, enter into any form of merger, sub-division, amalgamation or other reorganisation
which may, in the reasonable opinion of the Majority Lenders, have a material adverse effect on the financial position the Borrower.
|
|
13.5
|
Payment of dividends
|
|
|
(a)
|
The Borrower may pay dividends
provided that:
|
|
|
(i)
|
no Event of Default has occurred and is continuing; and
|
|
|
(ii)
|
the payment of such dividend or distribution would not cause any breach of any of the financial
covenants set out in Clause 11.1 (
Financial Covenants
).
|
|
|
13.6
|
Notification of Sanctions
|
The Borrower shall:
|
|
(a)
|
supply to the Agent, promptly upon becoming aware of them, the details of any inquiry, claim, action,
suit, proceeding or investigation pursuant to Sanction Laws against (a) the Borrower, (b) any other Relevant Person or (c) any
owners of any Relevant Person (other than any owner of the Borrower), as well as information on what steps are being taken with
regards to answering or opposing the same;
|
|
|
(b)
|
inform the Agent promptly upon becoming aware that any of (a) the Borrower, (b) any other Relevant
Person or (c) any owners of any Relevant Person (other than any owner of the Borrower), has become or is likely to become a Restricted
Party.
|
The Borrower also undertakes with
each Creditor Party to comply with the following provisions of this Clause 14 (
Insurance
) at all times during the Security
Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit (such consent not to be unreasonably
withheld or delayed in the case of paragraph (b) of Clauses 14.11 (
Compliance with terms of insurances
) and 14.12 (
Alteration
to terms of insurances
)).
|
|
14.2
|
Maintenance of obligatory insurances
|
The Borrower shall keep the Ship
insured at the expense of the Borrower against:
|
|
(a)
|
fire and usual marine risks (including hull and machinery and excess risks);
|
|
|
(c)
|
protection and indemnity risks; and
|
|
|
(d)
|
any other risks against which the Majority Lenders consider, having regard to practices and other
circumstances prevailing at the relevant time, it would in the opinion of the Majority Lenders be reasonable for the Borrower to
insure and which are specified by the Security Trustee by notice to the Borrower.
|
|
|
14.3
|
Terms of obligatory insurances
|
The Borrower shall effect such insurances:
|
|
(b)
|
in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis
at least the greater of (i) 120 per cent. of the Loan and (ii) the market value of the Ship; and
|
|
|
(c)
|
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level
of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance
market;
|
|
|
(d)
|
in relation to protection and indemnity risks in respect of the Ship's full tonnage;
|
|
|
(e)
|
on approved terms; and
|
|
|
(f)
|
through approved brokers and with approved insurance companies and/or underwriters or, in the case
of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations.
|
|
|
14.4
|
Further protections for the Creditor Parties
|
In addition to the terms set out
in Clause 14.13 (
Settlement of claims
), the Borrower shall procure that the obligatory insurances shall:
|
|
(a)
|
whenever the Security Trustee requires, name (or be amended to name) the Security Trustee as additional
named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against
the Security Trustee, but without the Security Trustee thereby being liable to pay (but having the right to pay) premiums, calls
or other assessments in respect of such insurance;
|
|
|
(b)
|
name the Security Trustee as loss payee with such directions for payment as the Security Trustee
may specify;
|
|
|
(c)
|
provide that all payments by or on behalf of the insurers under the obligatory insurances to the
Security Trustee shall be made without set-off, counterclaim or deductions or condition whatsoever;
|
|
|
(d)
|
provide that such obligatory insurances shall be primary without right of contribution from other
insurances which may be carried by the Security Trustee or any other Creditor Party; and
|
|
|
(e)
|
provide that the Security Trustee may make proof of loss if the Borrower fails to do so.
|
|
|
14.5
|
Renewal of obligatory insurances
|
The Borrower shall:
|
|
(a)
|
at least 14 days before the expiry of any obligatory insurance, renew that obligatory insurance;
and
|
|
|
(b)
|
promptly after each such renewal, there is provided to the Agent details of the terms and conditions
on which such obligatory insurances have been renewed.
|
|
|
14.6
|
Copies of policies; letters of undertaking
|
The Borrower shall ensure that all
approved brokers provide the Security Trustee with a letter or letters of undertaking in a form required by the Majority Lenders
and including undertakings by the approved brokers that:
|
|
(a)
|
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice
of assignment complying with the provisions of Clause 14.14 (
Provision of information
);
|
|
|
(b)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security
Trustee in accordance with the said loss payable clause;
|
|
|
(c)
|
they will advise the Security Trustee immediately of any material change to the terms of the obligatory
insurances;
|
|
|
(d)
|
they will notify the Security Trustee, not less than 14 days before the expiry of the obligatory
insurances, in the event of their not having received notice of renewal instructions from the Borrower or its agents and, in the
event of their receiving instructions to renew, they will promptly notify the Security Trustee of the terms of the instructions;
and
|
|
|
(e)
|
they will not set off against any sum recoverable in respect of a claim relating to the Ship under
such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of the Ship or otherwise,
they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other
amounts, and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts, and will
arrange for a separate policy to be issued in respect of the Ship forthwith upon being so requested by the Security Trustee.
|
|
|
14.7
|
Copies of certificates of entry
|
The Borrower shall ensure that any
protection and indemnity and/or war risks associations in which the Ship is entered provides the Security Trustee with:
|
|
(a)
|
a certified copy of the certificate of entry for the Ship;
|
|
|
(b)
|
a letter or letters of undertaking in such form as may be required by the Majority Lenders; and
|
|
|
(c)
|
a certified copy of each certificate of financial responsibility for pollution by oil or other
Environmentally Sensitive Material issued by the relevant certifying authority in relation to the Ship.
|
|
|
14.8
|
Deposit of original policies
|
The Borrower shall ensure that all
policies relating to obligatory insurances are deposited with the approved brokers through which the insurances are effected or
renewed.
The Borrower shall punctually pay
all premiums or other sums payable in respect of the obligatory insurances and produce all relevant receipts when so required by
the Security Trustee.
The Borrower shall ensure that any
guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect.
|
|
14.11
|
Compliance with terms of insurances
|
The Borrower shall neither do nor
omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid,
void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part; and, in
particular:
|
|
(a)
|
the Borrower shall take all necessary action and comply with all requirements which may from time
to time be applicable to the obligatory insurances, and (without limiting the obligation contained in paragraph (c) of Clause 14.6
(
Copies of policies; letters of undertaking
)) ensure that the obligatory insurances are not made subject to any exclusions
or qualifications to which the Security Trustee has not given its prior approval;
|
|
|
(b)
|
the Borrower shall not make any changes relating to the classification or classification society
or manager or operator of the Ship approved by the underwriters of the obligatory insurances;
|
|
|
(c)
|
the Borrower shall make (and promptly supply copies to the Agent of) all quarterly or other voyage
declarations which may be required by the protection and indemnity risks association in which the Ship is entered to maintain cover
for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990
or any other applicable legislation); and
|
|
|
(d)
|
the Borrower shall not employ the Ship, nor allow it to be employed, otherwise than in conformity
with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with
any requirements (as to extra premium or otherwise) which the insurers specify.
|
|
|
14.12
|
Alteration to terms of insurances
|
The Borrower shall neither make or
agree to any material alteration to the terms of any obligatory insurance nor waive any right relating to any obligatory insurance
without the consent of the Agent.
|
|
14.13
|
Settlement of claims
|
The Borrower shall not settle, compromise
or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty, and shall do all things necessary and
provide all documents, evidence and information to enable the Security Trustee to collect or recover any moneys which at any time
become payable in respect of the obligatory insurances.
|
|
14.14
|
Provision of information
|
In addition, the Borrower shall promptly
provide the Security Trustee (or any persons which it may designate) with any information which the Security Trustee (or any such
designated person) reasonably requests for the purpose of:
|
|
(a)
|
obtaining or preparing any report from an independent marine insurance broker as to the adequacy
of the obligatory insurances effected or proposed to be effected; and/or
|
|
|
(b)
|
effecting, maintaining or renewing any such insurances as are referred to in Clause 14.15 (
Mortgagee's
interest and additional perils insurances
) or dealing with or considering any matters relating to any such insurances,
|
and the Borrower shall, forthwith
upon demand, indemnify the Security Trustee in respect of all fees and other expenses incurred by or for the account of the Security
Trustee in connection with any such report as is referred to in paragraph (a).
|
|
14.15
|
Mortgagee's interest and additional perils insurances
|
The Security Trustee shall be entitled
from time to time to effect, maintain and renew a mortgagee's interest additional perils insurance and a mortgagee's interest marine
insurance each in an amount of 110 per cent. of the Loan and on such terms, through such insurers and generally in such manner
as the Majority Lenders may from time to time consider appropriate and the Borrower shall upon demand fully indemnify the Creditor
Parties in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining
or renewing any such insurance or dealing with, or considering, any matter arising out of any such insurance.
The Borrower also undertakes with
each Creditor Party to comply with the following provisions of this Clause 15 (
Ship Covenants
) at all times during the Security
Period except as the Agent, with the authorisation of the Majority Lenders, may otherwise permit.
|
|
15.2
|
Ship's name and registration
|
The Borrower shall keep the Ship
registered in its name under the relevant Approved Flag at its relevant port of registry; shall not do or omit to do or allow to
be done anything as a result of which such registration might be cancelled or imperilled; and shall not change the name or port
of registry of the Ship.
|
|
15.3
|
Repair and classification
|
The Borrower shall keep the Ship
in a good and safe condition and state of repair:
|
|
(a)
|
consistent with first-class ship ownership and management practice;
|
|
|
(b)
|
so as to maintain the Ship's class (namely A1(E), "Oil Carrier ESP", AMS, ACCU, SPM,
VEC(-L), CSR, Safeship-CM, RES, ES, TEM, Green Passport, POT, UWILD (sea chest blanking devices shall not be provided), CPS at
American Bureau of Shipping) free of overdue recommendations and conditions; and
|
|
|
(c)
|
so as to comply with all laws and regulations applicable to vessels registered at ports in Greece
or to vessels trading to any jurisdiction to which the Ship may trade from time to time, including but not limited to the ISM Code
or the ISPS Code.
|
The Borrower shall not make any modification
or repairs to, or replacement of, the Ship or equipment installed on it which would or might materially alter the structure, type
or performance characteristics of the Ship or materially reduce its value.
The Borrower shall not remove any
material part of the Ship, or any item of equipment installed on, the Ship unless the part or item so removed is forthwith replaced
by a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any
Security Interest or any right in favour of any person other than the Security Trustee and becomes on installation on the Ship
the property of the Borrower and subject to the security constituted by the Mortgage
Provided that
the Borrower may install
equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship.
The Borrower shall submit the Ship
regularly to all periodical or other surveys which may be required for classification purposes and, if so required by the Majority
Lenders provide the Security Trustee, with copies of all survey reports.
The Borrower shall permit the Security
Trustee (by surveyors or other persons appointed by it for that purpose) to board the Ship at all reasonable times to inspect its
condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections
provided that prior to the occurrence of an Event of Default reasonable notice of such inspection is given and such inspection
does not materially affect the Ship's commercial operation.
|
|
15.8
|
Prevention of and release from arrest
|
The Borrower shall promptly discharge:
|
|
(a)
|
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable
against the Ship, the Earnings or the Insurances;
|
|
|
(b)
|
all Taxes, dues and other amounts charged in respect of the Ship, the Earnings or the Insurances;
and
|
|
|
(c)
|
all other outgoings whatsoever in respect of the Ship, the Earnings or the Insurances,
|
and, forthwith upon receiving notice
of the arrest of the Ship, or of its detention in exercise or purported exercise of any lien or claim, the Borrower shall procure
its release by providing bail or otherwise as the circumstances may require.
|
|
15.9
|
Compliance with laws etc.
|
The Borrower shall:
|
|
(a)
|
comply, or procure compliance with the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions
Laws and all other laws or regulations relating to the Ship, its ownership, operation and management or to the business of the
Borrower;
|
|
|
(b)
|
not employ the Ship nor allow its employment in any manner contrary to any law or regulation in
any relevant jurisdiction including but not limited to the ISM Code and the ISPS Code, all Environmental Laws and Sanctions Laws;
and
|
|
|
(c)
|
in the event of hostilities in any part of the world (whether war is declared or not), not cause
or permit the 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
unless the Borrower (at its expense) effected any necessary special, additional or modified insurance cover and, upon the Agent's
request, the Borrower will confirm that they have effected such insurance cover.
|
Without limiting paragraph (a) of
Clause 15.9 (
Compliance with laws
), the Borrower shall:
|
|
(a)
|
procure that the Ship and the company responsible for the Ship's compliance with the ISPS Code
comply with the ISPS Code; and
|
|
|
(b)
|
maintain an ISSC for the Ship; and
|
|
|
(c)
|
notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation
or modification of the ISSC.
|
|
|
15.11
|
Provision of information
|
The Borrower shall promptly provide
the Security Trustee with any information which the Majority Lenders reasonably request regarding:
|
|
(a)
|
the Ship, its employment, position and engagements;
|
|
|
(b)
|
the Earnings and payments and amounts due to the Ship's master and crew;
|
|
|
(c)
|
any expenses incurred, or likely to be incurred, in connection with the operation, maintenance
or repair of the Ship and any payments made in respect of the Ship;
|
|
|
(d)
|
any towages and salvages; and
|
|
|
(e)
|
the Borrower's, the Approved Manager's or the Ship's compliance with the ISM code and the ISPS
code,
|
and, upon the Security Trustee's
request, provide copies of any current charter relating to the Ship and of any current charter guarantee, and copies of the Borrower's
or the Approved Manager's Document of Compliance.
|
|
15.12
|
Notification of certain events
|
The Borrower shall immediately notify
the Security Trustee by fax, confirmed forthwith by letter, of:
|
|
(a)
|
any casualty which is or is likely to be or to become a Major Casualty;
|
|
|
(b)
|
any occurrence as a result of which the Ship has become or is, by the passing of time or otherwise,
likely to become a Total Loss;
|
|
|
(c)
|
any overdue requirement or recommendation made by any insurer or classification society or by any
competent authority which is not immediately complied with;
|
|
|
(d)
|
any arrest or detention of the Ship, any exercise or purported exercise of any lien on the Ship
or its Earnings or any requisition of the Ship for hire;
|
|
|
(e)
|
any intended dry docking of the Ship other than a routine dry docking;
|
|
|
(f)
|
any Environmental Claim made against the Borrower or in connection with the Ship, or any Environmental
Incident;
|
|
|
(g)
|
any claim for breach of the ISM Code or the ISPS Code being made against the Borrower, the Approved
Manager or otherwise in connection with the Ship; or
|
|
|
(h)
|
any other matter, event or incident, actual or threatened, the effect of which will or could lead
to the ISM Code or ISPS Code not being complied with,
|
and the Borrower shall keep the Security
Trustee advised in writing on a regular basis and in such detail as the Security Trustee shall require of the Borrower's, the Approved
Manager's or any other person's response to any of those events or matters.
|
|
15.13
|
Restrictions on chartering, appointment of managers etc.
|
The Borrower shall not:
|
|
(a)
|
let the Ship on demise charter for any period;
|
|
|
(b)
|
enter into any charter in relation to the Ship under which more than 2 months' hire (or the equivalent)
is payable in advance;
|
|
|
(c)
|
charter the Ship otherwise than on bona fide arm's length terms at the time when the Ship is fixed;
|
|
|
(d)
|
appoint a manager of the Ship other than the Approved Manager or agree to any alteration to the
terms of the Approved Manager's appointment;
|
|
|
(e)
|
de-activate or lay up the Ship; or
|
|
|
(f)
|
put the Ship into the possession of any person for the purpose of work being done upon it in an
amount exceeding or likely to exceed the Major Casualty amount unless either:
|
|
|
(i)
|
that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking
not to exercise any lien on the Ship or its Earnings for the cost of such work or for any other reason; or
|
|
|
(ii)
|
the Borrower has established to the reasonable satisfaction of the Security Trustee that the Borrower
has sufficient reserves to pay for the cost of such work.
|
|
|
15.14
|
Time and consecutive voyage charters in excess of 36 months
|
The Borrower agrees that if it should
enter into any Charter the Borrower shall execute and deliver to the Agent promptly upon such Charter being entered into a Charter
Assignment in respect of that Charter in favour of the Security Trustee unless such Charter contains a substitution clause or a
clause with similar effect.
If the Lenders agree to the increase
of the Loan pursuant to Clause 2.5 (
Increase of Loan
) of this Agreement, then the Borrower agrees that if it should enter
into any Charter (or has previously entered into any Charter) the Borrower shall execute and deliver to the Agent promptly upon
such Charter being entered into (or where such Charter has already been entered into on the date of the increase of the Loan pursuant
to Clause 2.5 (
Increase of Loan
)) a Charter Assignment in respect of that Charter in favour of the Security Trustee.
The Borrower shall keep the Mortgage
registered against the Ship as a valid first priority mortgage, carry on board the Ship a certified copy of the Mortgage and place
and maintain in a conspicuous place in the navigation room and the Master's cabin of the Ship a framed printed notice stating that
the Ship is mortgaged by the Borrower to the Security Trustee.
|
|
15.16
|
Sharing of Earnings
|
The Borrower shall not enter into
any agreement or arrangement for the sharing of any Earnings without the prior approval of the Agent such approval not to be unreasonably
withheld. For the avoidance of doubt the Agent's approval shall not be required in relation to:
|
|
(a)
|
any "profit split" of hire between the Borrower and a charterer of the Ship; or
|
|
|
(b)
|
the entry into an established pool or a pool established by the Borrower in both cases on usual
commercial terms and at a market rate allocation.
|
|
|
16.1
|
Minimum required security cover
|
Clause 16.2 (
Provision of additional
security; prepayment
) applies if the Agent notifies the Borrower that, according to the determination mechanism under Clause
16.3 (
Valuation of Ship
):
|
|
(a)
|
the market value (determined as provided in Clause 16.3 (
Valuation of Ship
)) of the Ship;
plus
|
|
|
(b)
|
the net realisable value of any additional security previously provided under this Clause 16 (
Security
Cover
),
|
is below 120 per cent. of the Loan.
|
|
16.2
|
Provision of additional security; prepayment
|
If the Agent serves a notice on the
Borrower under Clause 16.1 (
Minimum required security cover
), the Borrower shall, within 1 month after the date on which
the Agent's notice is served, either:
|
|
(a)
|
provide, or ensure that a third party provides, additional security which is acceptable to the
Agent and, in the opinion of the Majority Lenders, has a net realisable value at least equal to the shortfall and is documented
in such terms as the Agent may, with the authorisation of the Majority Lenders, approve or require; or
|
|
|
(b)
|
prepay such part (at least) of the Loan as will eliminate the shortfall.
|
The market value of the Ship at any
date is that shown by the average of 2 valuations addressed to the Agent for the benefit of the Lenders and prepared:
|
|
(a)
|
as at a date not more than 14 days previously;
|
|
|
(b)
|
by 2 independent first class sale and purchase shipbrokers which the Agent has approved or appointed
for the purpose;
|
|
|
(c)
|
with or without physical inspection of the Ship (as the Agent may require);
|
|
|
(d)
|
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as
between a willing seller and a willing buyer, free of any existing charter or other contract of employment; and
|
|
|
(e)
|
after deducting the estimated amount of the usual and reasonable expenses which would be incurred
in connection with the sale.
|
|
|
16.4
|
Value of additional vessel security
|
The net realisable value of any additional
security which is provided under Clause 16.2 (
Provision of additional security; prepayment
) and which consists of a Security
Interest over a vessel shall be that shown by a valuation complying with the requirements of Clause 16.3 (
Valuation of Ship
).
Any valuation under Clause 16.2 (
Provision
of additional security; prepayment
), 16.3 (
Valuation of Ship
) or 16.4 (
Value of additional vessel security
) shall
be binding and conclusive as regards the Borrower, as shall be any valuation which the Majority Lenders make of any additional
security which does not consist of or include a Security Interest.
|
|
16.6
|
Provision of information
|
The Borrower shall promptly provide
the Agent and any shipbroker or expert acting under Clause 16.3 (
Valuation of Ship
) or 16.4 (
Value of additional vessel
security
) with any information which the Agent or the shipbroker or expert may reasonably request for the purposes of the valuation;
|
|
16.7
|
Payment of valuation expenses
|
Without prejudice to the generality
of the Borrower's obligations under Clauses 21.2 (
Costs of negotiation, preparation
), 21.3 (
Costs of variations, amendments,
enforcement
) and 22.3 (
Miscellaneous indemnities
), the Borrower shall, on demand, pay the Agent the amount of the fees
and expenses of any shipbroker or expert instructed by the Agent under this Clause and all legal and other expenses incurred by
any Creditor Party in connection with any matter arising out of this Clause.
|
|
16.8
|
Application of prepayment
|
Clause 8 (
Repayment and Prepayment
)
shall apply in relation to any prepayment pursuant to paragraph (b) of Clause 16.2 (
Provision of additional security; prepayment
).
|
|
17
|
Payments and Calculations
|
|
|
17.1
|
Currency and method of payments
|
All payments to be made by the Lenders
or by the Borrower under a Finance Document shall be made to the Agent or to the Security Trustee, in the case of an amount payable
to it:
|
|
(a)
|
by not later than 11.00 a.m. (New York City time) on the due date;
|
|
|
(b)
|
in same day Dollar funds settled through the New York Clearing House Interbank Payments System
(or in such other Dollar funds and/or settled in such other manner as the Agent shall specify as being customary at the time for
the settlement of international transactions of the type contemplated by this Agreement);
|
|
|
(c)
|
in the case of an amount payable by a Lender to the Agent or by the Borrower to the Agent or any
Lender, to such account as the Agent may advise from time to time; and
|
|
|
(d)
|
in the case of an amount payable to the Security Trustee, to such account as it may from time to
time notify to the Borrower and the other Creditor Parties.
|
|
|
17.2
|
Payment on non-Business Day
|
If any payment by the Borrower under
a Finance Document would otherwise fall due on a day which is not a Business Day:
|
|
(a)
|
the due date shall be extended to the next succeeding Business Day; or
|
|
|
(b)
|
if the next succeeding Business Day falls in the next calendar month, the due date shall be brought
forward to the immediately preceding Business Day;
|
and interest shall be payable during
any extension under paragraph (a) at the rate payable on the original due date.
|
|
17.3
|
Basis for calculation of periodic payments
|
All interest, commitment fee and
commission and any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to
day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.
|
|
17.4
|
Distribution of payments to Creditor Parties
|
Subject to Clauses 17.5 (
Permitted
deductions by Agent
) 17.6 (
Agent only obliged to pay when monies received
) and 17.7 (
Refund to Agent of monies not
received
):
|
|
(a)
|
any amount received by the Agent under a Finance Document for distribution or remittance to a Lender
or the Security Trustee shall be made available by the Agent to that Lender or, as the case may be, the Security Trustee by payment,
with funds having the same value as the funds received, to such account as the Lender or the Security Trustee may have notified
to the Agent not less than 5 Business Days previously; and
|
|
|
(b)
|
amounts to be applied in satisfying amounts of a particular category which are due to the Lenders
generally shall be distributed by the Agent to each Lender pro rata to the amount in that category which is due to it.
|
|
|
17.5
|
Permitted deductions by Agent
|
Notwithstanding any other provision
of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender, deduct and withhold
from that amount any sum which is then due and payable to the Agent from that Lender under any Finance Document or any sum which
the Agent is then entitled under any Finance Document to require that Lender to pay on demand.
|
|
17.6
|
Agent only obliged to pay when monies received
|
Notwithstanding any other provision
of this Agreement or any other Finance Document, the Agent shall not be obliged to make available to the Borrower or any Lender
any sum which the Agent is expecting to receive for remittance or distribution to the Borrower or that Lender until the Agent has
satisfied itself that it has received that sum.
|
|
17.7
|
Refund to Agent of monies not received
|
If and to the extent that the Agent
makes available a sum to the Borrower or a Lender, without first having received that sum, the Borrower or (as the case may be)
the Lender concerned shall, on demand:
|
|
(a)
|
refund the sum in full to the Agent; and
|
|
|
(b)
|
pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against
any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving
it.
|
|
|
17.8
|
Agent may assume receipt
|
Clause 17.7 (
Refund to Agent of
monies not received
) shall not affect any claim which the Agent has under the law of restitution, and applies irrespective
of whether the Agent had any form of notice that it had not received the sum which it made available.
|
|
17.9
|
Creditor Party accounts
|
Each Creditor Party shall maintain
accounts showing the amounts owing to it by the Borrower and each Security Party under the Finance Documents and all payments in
respect of those amounts made by the Borrower and any Security Party.
|
|
17.10
|
Agent's memorandum account
|
The Agent shall maintain a memorandum
account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security Trustee and each Lender
from the Borrower and each Security Party under the Finance Documents and all payments in respect of those amounts made by the
Borrower and any Security Party.
|
|
17.11
|
Accounts prima facie evidence
|
If any accounts maintained under
Clauses 17.9 (
Creditor Party accounts
) and 17.10 (
Agent's memorandum account
) show an amount to be owing by the Borrower
or a Security Party to a Creditor Party, those accounts shall be prima facie evidence that that amount is owing to that Creditor
Party.
|
|
18
|
Application of Receipts
|
|
|
18.1
|
Normal order of application
|
Except as any Finance Document may
otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document shall
be applied:
|
|
(a)
|
FIRST: in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent and the
Security Trustee under the Finance Documents;
|
|
|
(b)
|
SECONDLY: in or towards payment pro rata of any accrued interest or commission due but unpaid under
this Agreement;
|
|
|
(c)
|
THIRDLY: in or towards payment pro rata of any principal due but unpaid under this Agreement;
|
|
|
(d)
|
FOURTHLY: in or towards payment pro rata of any other amounts due but unpaid under any Finance
Document;
|
|
|
(e)
|
FIFTHLY: in retention of an amount equal to any amount not then due and payable under any Finance
Document but which the Agent, by notice to the Borrower, the Security Parties and the other Creditor Parties, states in its opinion
will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of
them in accordance with the provisions of paragraphs (a), (b), (c) and (d) of Clause 18.1 (
Normal order of application
);
and
|
|
|
(f)
|
SIXTHLY: any surplus shall be paid to the Borrower or to any other person appearing to be entitled
to it.
|
|
|
18.2
|
Variation of order of application
|
The Agent may, with the authorisation
of the Majority Lenders, by notice to the Borrower, the Security Parties and the other Creditor Parties provide for a different
manner of application from that set out in Clause 18.1 (
Normal order of application
) either as regards a specified sum or
sums or as regards sums in a specified category or categories.
|
|
18.3
|
Notice of variation of order of application
|
The Agent may give notices under
Clause 18.2 (
Variation of order of application
) from time to time; and such a notice may be stated to apply not only to
sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the
third Business Day before the date on which the notice is served.
|
|
18.4
|
Appropriation rights overriden
|
This Clause 18 (
Application of
Receipts
) and any notice which the Agent gives under Clause 18.2 (
Variation of order of application
) shall override
any right of appropriation possessed, and any appropriation made, by the Borrower or any Security Party.
|
|
19
|
Application of Earnings
|
The Borrower undertakes with each
Creditor Party to ensure that, throughout the Security Period (and subject only to the provisions of the General Assignment), all
the Earnings are paid to the Earnings Account unless the parties agree otherwise
Provided that
the Earnings in respect of
each Ship shall be available to the Borrower unless an Event of Default has occurred and is continuing.
|
|
19.2
|
Location of accounts
|
The Borrower shall promptly:
|
|
(a)
|
comply with any requirement of the Agent as to the location or re-location of the Earnings Account;
and
|
|
|
(b)
|
execute any documents which the Agent specifies to create or maintain in favour of the Security
Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Account.
|
|
|
19.3
|
Debits for expenses etc.
|
Following the occurrence of an Event
of Default which is continuing, the Agent shall be entitled (but not obliged) from time to time to debit the Earnings Account without
prior notice in order to discharge any amount due and payable under Clause 21 (
Fees and expenses
) or 22 (
Indemnities
)
to a Creditor Party or payment of which any Creditor Party has become entitled to demand under Clause 21 (
Fees and expenses
)
or 22 (
Indemnities
).
|
|
19.4
|
Interest accrued on Earnings Account
|
Any credit balance on the Earnings
Account shall bear interest at the rate from time to time offered by the Agent to its customers for Dollar deposits of similar
amounts and for periods similar to those for which such balances appear to the Agent likely to remain on the Earnings Account.
|
|
19.5
|
Borrower's obligations unaffected
|
The provisions of this Clause 19
(
Application of Earnings
) do not affect:
|
|
(a)
|
the liability of the Borrower to make payments of principal and interest on the due dates; or
|
|
|
(b)
|
any other liability or obligation of the Borrower or any Security Party under any Finance Document.
|
An Event of Default occurs if:
|
|
(a)
|
the Borrower or any Security Party fails to pay within 3 Business Days of the date when due any
sum payable under a Finance Document or under any document relating to a Finance Document; or
|
|
|
(b)
|
any breach occurs of Clause 9.2 (
Waiver of conditions precedent
), Clause 10.18 (
Sanctions
),
Clause 12.2 (
Title; negative pledge
), Clause 12.3 (
No disposal of assets
), Clause 13.2 (
Maintenance of status
),
Clause 12.17 (
Conduct of business; compliance with laws
) in so far as it relates to Sanctions Laws, Clause 12.18 (
Compliance
with Sanctions Laws
) Clause 13.3 (
Negative undertakings
), Clause 13.5 (
Payment of dividends
), Clause 13.6 (
Notification
of Sanctions
), Clause 16.2 (
Provision of additional security; prepayment
) or paragraph (b) of Clause 15.9 (
Compliance
with laws
); or
|
|
|
(c)
|
any breach by the Borrower or any Security Party occurs of any provision of a Finance Document
(other than a breach covered by paragraphs (a) or (b)) which, in the opinion of the Majority Lenders, is capable of remedy, and
such default continues unremedied 30 days after written notice from the Agent requesting action to remedy the same; or
|
|
|
(d)
|
any representation, warranty or statement made or repeated by, or by an officer of, the Borrower
or a Security Party in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document
is untrue or misleading when it is made or repeated; or
|
|
|
(e)
|
any of the following occurs in relation to any Financial Indebtedness of a Relevant Person in respect
of a sum, or sums aggregating, $15,000,000 or more in the case of the Borrower or the equivalent in another currency:
|
|
|
(i)
|
any Financial Indebtedness of a Relevant Person is not paid when due; or
|
|
|
(ii)
|
any Financial Indebtedness of a Relevant Person becomes due and payable or capable of being declared
due and payable prior to its stated maturity date as a consequence of any event of default; or
|
|
|
(iii)
|
a lease, hire purchase agreement or charter creating any Financial Indebtedness of a Relevant Person
is terminated by the lessor or owner or becomes capable of being terminated as a consequence of any termination event; or
|
|
|
(iv)
|
any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange
or other facility, or any swap or other derivative contract or transaction, relating to any Financial Indebtedness of a Relevant
Person ceases to be available or becomes capable of being terminated as a result of any event of default, or cash cover is required,
or becomes capable of being required, in respect of such a facility as a result of any event of default; or
|
|
|
(v)
|
any Security Interest securing any Financial Indebtedness of a Relevant Person becomes enforceable;
or
|
|
|
(f)
|
any of the following occurs in relation to a Relevant Person:
|
|
|
(i)
|
a Relevant Person becomes, in the opinion of the Majority Lenders, unable to pay its debts as they
fall due; or
|
|
|
(ii)
|
any assets of a Relevant Person are subject to any form of execution, attachment, arrest, sequestration
or distress in respect of a sum of, or sums aggregating, $15,000,000 or more in the case of the Borrower or the equivalent in another
currency; or
|
|
|
(iii)
|
any administrative or other receiver is appointed over any asset of a Relevant Person; or
|
|
|
(iv)
|
an administrator is appointed (whether by the court or otherwise) in respect of a Relevant Person;
or
|
|
|
(v)
|
any formal declaration of bankruptcy or any formal statement to the effect that a Relevant Person
is insolvent or likely to become insolvent is made by a Relevant Person or by the directors of a Relevant Person or, in any proceedings,
by a lawyer acting for a Relevant Person; or
|
|
|
(vi)
|
a provisional liquidator is appointed in respect of a Relevant Person, a winding up order is made
in relation to a Relevant Person or a winding up resolution is passed by a Relevant Person; or
|
|
|
(vii)
|
a resolution is passed, an administration notice is given or filed, an application or petition
to a court is made or presented or any other step is taken by (aa) a Relevant Person, (bb) the members or directors of a Relevant
Person, (cc) a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person,
or (dd) a government minister or public or regulatory authority of a Pertinent Jurisdiction for or with a view to the winding up
of that or another Relevant Person or the appointment of a provisional liquidator or administrator in respect of that or another
Relevant Person, or that or another Relevant Person ceasing or suspending business operations or payments to creditors, save that
this paragraph does not apply to a fully solvent winding up of a Relevant Person other than the Borrower which is, or is to be,
effected for the purposes of an amalgamation or reconstruction previously approved by the Majority Lenders and effected not later
than 3 months after the commencement of the winding up; or
|
|
|
(viii)
|
an administration notice is given or filed, an application or petition to a court is made or presented
or any other step is taken by a creditor of a Relevant Person (other than a holder of Security Interests which together relate
to all or substantially all of the assets of a Relevant Person) for the winding up of a Relevant Person or the appointment of a
provisional liquidator or administrator in respect of a Relevant Person in any Pertinent Jurisdiction, unless the proposed winding
up, appointment of a provisional liquidator or administration is being contested in good faith, on substantial grounds and not
with a view to some other insolvency law procedure being implemented instead and either (aa) the application or petition is dismissed
or withdrawn within 30 days of being made or presented, or (bb) within 30 days of the administration notice being given or filed,
or the other relevant steps being taken, other action is taken which will ensure that there will be no administration and (in both
cases (aa) or (bb)) the Relevant Person will continue to carry on business in the ordinary way and without being the subject of
any actual, interim or pending insolvency law procedure; or
|
|
|
(ix)
|
a Relevant Person or its directors take any steps (whether by making or presenting an application
or petition to a court, or submitting or presenting a document setting out a proposal or proposed terms, or otherwise) with a view
to obtaining, in relation to that or another Relevant Person, any form of moratorium, suspension or deferral of payments, reorganisation
of debt (or certain debt) or arrangement with all or a substantial proportion (by number or value) of creditors or of any class
of them or any such moratorium, suspension or deferral of payments, reorganisation or arrangement is effected by court order, by
the filing of documents with a court, by means of a contract or in any other way at all; or
|
|
|
(x)
|
any meeting of the members or directors, or of any committee of the board or senior management,
of a Relevant Person is held or summoned for the purpose of considering a resolution or proposal to authorise or take any action
of a type described in paragraphs (iv) to (ix) or a step preparatory to such action, or (with or without such a meeting) the members,
directors or such a committee resolve or agree that such an action or step should be taken or should be taken if certain conditions
materialise or fail to materialise; or
|
|
|
(xi)
|
in a Pertinent Jurisdiction other than England, any event occurs, any proceedings are opened or
commenced or any step is taken which, in the opinion of the Majority Lenders is similar to any of the foregoing; or
|
|
|
(g)
|
the Borrower ceases or suspends carrying on its business or a part of its business which, in the
opinion of the Majority Lenders, is material in the context of this Agreement; or
|
|
|
(h)
|
it becomes unlawful in any Pertinent Jurisdiction or impossible:
|
|
|
(i)
|
for the Borrower or any Security Party to discharge any liability under a Finance Document or to
comply with any other obligation which the Majority Lenders consider material under a Finance Document; or
|
|
|
(ii)
|
for the Agent, the Security Trustee or the Lenders to exercise or enforce any right under, or to
enforce any Security Interest created by, a Finance Document; or
|
|
|
(i)
|
any consent necessary to enable the Borrower to own, operate or charter the Ship or to enable the
Borrower or any Security Party to comply with any provision which the Majority Lenders consider material of a Finance Document
is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent is
not fulfilled; or
|
|
|
(j)
|
any provision which the Majority Lenders reasonably consider material of a Finance Document proves
to have been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes
invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest
or any other third party claim or interest; or
|
|
|
(k)
|
the security constituted by a Finance Document is in any way imperilled or in jeopardy; or
|
|
|
(l)
|
any event or circumstance occurs which the Majority Lenders determine has, or could reasonably
be expected to have a material adverse effect:
|
|
|
(i)
|
on the ability of the Borrower to perform its obligations under the Finance Documents; or
|
|
|
(ii)
|
on the property, assets, nature of assets, operations, liabilities or condition (financial or otherwise)
of the Borrower.
|
|
|
20.2
|
Actions following an Event of Default
|
On, or at any time after, the occurrence
of an Event of Default which is continuing:
|
|
(a)
|
the Agent may, and if so instructed by the Majority Lenders, the Agent shall:
|
|
|
(i)
|
serve on the Borrower a notice stating that the Commitments and all other obligations of each Lender
to the Borrower under this Agreement are cancelled; and/or
|
|
|
(ii)
|
serve on the Borrower a notice stating that the Loan, all accrued interest and all other amounts
accrued or owing under this Agreement are immediately due and payable or are due and payable on demand; and/or
|
|
|
(iii)
|
take any other action which, as a result of the Event of Default or any notice served under paragraph
(i) or (ii), the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law; and/or
|
|
|
(b)
|
the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of the
Majority Lenders, the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under
paragraph (a) (i) or (ii), the Security Trustee, the Agent and/or the Lenders are entitled to take under any Finance Document or
any applicable law.
|
|
|
20.3
|
Termination of Commitments
|
On the service of a notice under
paragraph (a)(i) of Clause 20.2 (
Actions following an Event of Default
), the Commitments and all other obligations of each
Lender to the Borrower under this Agreement shall be cancelled.
|
|
20.4
|
Acceleration of Loan
|
On the service of a notice under
paragraph (a)(ii) of Clause 20.2 (
Actions following an Event of Default
), the Loan, all accrued interest and all other amounts
accrued or owing from the Borrower or any Security Party under this Agreement and every other Finance Document shall become immediately
due and payable or, as the case may be, payable on demand.
|
|
20.5
|
Multiple notices; action without notice
|
The Agent may serve notices under
paragraphs (a)(i) or (ii) of Clause 20.2 (
Actions following an Event of Default
) simultaneously or on different dates and
it and/or the Security Trustee may take any action referred to in Clause 20.2 (
Actions following an Event of Default
) if
no such notice is served or simultaneously with or at any time after the service of both or either of such notices.
|
|
20.6
|
Notification of Creditor Parties and Security Parties
|
The Agent shall send to each Lender,
the Security Trustee and each Security Party a copy or the text of any notice which the Agent serves on the Borrower under Clause
20.2 (
Actions following an Event of Default
); but the notice shall become effective when it is served on the Borrower, and
no failure or delay by the Agent to send a copy or the text of the notice to any other person shall invalidate the notice or provide
the Borrower or any Security Party with any form of claim or defence.
|
|
20.7
|
Lender's rights unimpaired
|
Nothing in this Clause shall be taken
to impair or restrict the exercise of any right given to individual Lenders under a Finance Document or the general law; and, in
particular, this Clause is without prejudice to Clause 3.1 (
Interests of Lenders several
).
|
|
20.8
|
Exclusion of Creditor Party liability
|
No Creditor Party, and no receiver
or manager appointed by the Security Trustee, shall have any liability to the Borrower or a Security Party:
|
|
(a)
|
for any loss caused by an exercise of rights under, or enforcement of a Security Interest created
by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or
|
|
|
(b)
|
as mortgagee in possession or otherwise, for any income or principal amount which might have been
produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value
of such an asset,
|
except that this does not exempt
a Creditor Party or a receiver or manager from liability for losses shown to have been directly and mainly caused by the dishonesty
or the wilful misconduct of such Creditor Party's own officers and employees or (as the case may be) such receiver's or manager's
own partners or employees.
In this Clause 20 (
Events of Default
),
a "
Relevant Person
" means the Borrower and any Security Party.
In paragraph (e) of Clause 20.1 (
Events
of Default
), references to an event of default or a termination event include any event, howsoever described, which is similar
to an event of default in a facility agreement or a termination event in a finance lease; and in paragraph (f) of Clause 20.1 (
Events
of Default
) "petition" includes an application.
|
|
21.1
|
Arrangement, commitment fees
|
The Borrower shall pay to the Agent
(for the account of each Lender) quarterly in arrears during the period from (and including) the date of the acceptance of the
term sheet to the earlier of (i) the final Drawdown Date and (ii) the last day of the Availability Period, for the account of the
Lenders, a commitment fee at the rate of 0.5175 per cent. per annum on the amount of the Total Commitments less the amount of the
Loan, for distribution among the Lenders pro rata to their Commitments.
|
|
21.2
|
Costs of negotiation, preparation etc.
|
The Borrower shall pay to the Agent
on its demand the amount of all expenses incurred by the Agent or the Security Trustee in connection with the negotiation, preparation,
execution or registration of any Finance Document or any related document or with any transaction contemplated by a Finance Document
or a related document.
|
|
21.3
|
Costs of variations, amendments, enforcement etc.
|
The Borrower shall pay to the Agent,
on the Agent's demand, for the account of the Creditor Party concerned the amount of all expenses incurred by a Creditor Party
in connection with:
|
|
(a)
|
any amendment or supplement to a Finance Document, or any proposal for such an amendment to be
made;
|
|
|
(b)
|
any consent or waiver by the Lenders, the Majority Lenders or the Creditor Party concerned under
or in connection with a Finance Document, or any request for such a consent or waiver;
|
|
|
(c)
|
the valuation of any security provided or offered under Clause 16 (
Security Cover
) or any
other matter relating to such security; or
|
|
|
(d)
|
any step taken by the Creditor Party concerned with a view to the protection, exercise or enforcement
of any right or Security Interest created by a Finance Document or for any similar purpose.
|
There shall be recoverable under
paragraph (d) the full amount of all legal expenses, whether or not such would be allowed under rules of court or any Taxation
or other procedure carried out under such rules.
|
|
21.4
|
Certification of amounts
|
A notice which is signed by 2 officers
of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause
21 (
Fees and expenses
) and which indicates (without necessarily specifying a detailed breakdown) the matters in respect
of which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
|
22.1
|
Indemnities regarding borrowing and repayment of Loan
|
The Borrower shall fully indemnify
the Agent and each Lender on the Agent's demand and the Security Trustee on its demand in respect of all claims, expenses, liabilities
and losses which are made or brought against or incurred by that Creditor Party, or which that Creditor Party reasonably and with
due diligence estimates that it will incur, as a result of or in connection with:
|
|
(a)
|
an Advance not being borrowed on the date specified in the Drawdown Notice for any reason other
than a default by the Lender claiming the indemnity;
|
|
|
(b)
|
the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the
last day of an Interest Period or other relevant period;
|
|
|
(c)
|
any failure (for whatever reason) by the Borrower to make payment of any amount due under a Finance
Document on the due date or, if so payable, on demand (after giving credit for any default interest paid by the Borrower on the
amount concerned under Clause 7 (
Default Interest
));
|
|
|
(d)
|
the occurrence of an Event of Default or a Potential Event of Default and/or the acceleration of
repayment of the Loan under Clause 20 (
Events of Default
).
|
Without limiting its generality,
Clause 22.1 (
Indemnities regarding borrowing and repayment of Loan
) covers any claim, expense, liability or loss, including
a loss of a prospective profit, incurred by a Lender:
|
|
(a)
|
in liquidating or employing deposits from third parties acquired or arranged to fund or maintain
all or any part of its Contribution and/or any overdue amount (or an aggregate amount which includes its Contribution or any overdue
amount); and
|
|
|
(b)
|
in terminating, or otherwise in connection with, any interest and/or currency swap or any other
transaction entered into (whether with another legal entity or with another office or department of the Lender concerned) to hedge
any exposure arising under this Agreement or a number of transactions of which this Agreement is one.
|
In the circumstances referred to
in paragraph (b) of Clause 22.1 (
Indemnities regarding borrowing and repayment of Loan
) such costs shall include an
amount equal to the Margin which would, but, for receipt or recovery of the relevant part of the Loan, have accrued on the relevant
part of the Loan, from the date of such receipt or recovery to the end of the then current Interest Period relating thereto.
|
|
22.3
|
Miscellaneous indemnities
|
The Borrower shall fully indemnify
each Creditor Party severally on their respective demands in respect of all claims, expenses, liabilities and losses which may
be made or brought against or incurred by a Creditor Party, in any country, as a result of or in connection with:
|
|
(a)
|
any action taken, or omitted or neglected to be taken, under or in connection with any Finance
Document by the Agent, the Security Trustee or any other Creditor Party or by any receiver appointed under a Finance Document;
or
|
|
|
(b)
|
any other Pertinent Matter,
|
other than claims, expenses, liabilities
and losses which are shown to have been directly and mainly caused by the dishonesty, gross negligence or wilful misconduct of
the officers or employees of the Creditor Party concerned.
Without prejudice to its generality,
this Clause 22.3 (
Miscellaneous indemnities
) covers any claims, expenses, liabilities and losses which arise, or are asserted,
under or in connection with any law relating to safety at sea, the ISM Code, the ISPS Code or any Environmental Law.
If any sum due from the Borrower
or any Security Party to a Creditor Party under a Finance Document or under any order or judgment relating to a Finance Document
has to be converted from the currency in which the Finance Document provided for the sum to be paid (the "
Contractual Currency
")
into another currency (the "
Payment Currency
") for the purpose of:
|
|
(a)
|
making or lodging any claim or proof against the Borrower or any Security Party, whether in its
liquidation, any arrangement involving it or otherwise; or
|
|
|
(b)
|
obtaining an order or judgment from any court or other tribunal; or
|
|
|
(c)
|
enforcing any such order or judgment,
|
the Borrower shall indemnify the
Creditor Party concerned against the loss arising when the amount of the payment actually received by that Creditor Party is converted
at the available rate of exchange into the Contractual Currency.
In this Clause
22.4 (
Currency indemnity
), the "available rate of exchange" means the rate at which the Creditor Party concerned
is able at the opening of business (London time) on the Business Day after it receives the sum concerned to purchase the Contractual
Currency with the Payment Currency.
This Clause 22.4 (
Currency indemnity
)
creates a separate liability of the Borrower which is distinct from its other liabilities under the Finance Documents and which
shall not be merged in any judgment or order relating to those other liabilities.
|
|
22.5
|
Certification of amounts
|
A notice which is signed by 2 officers
of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause
22 (
Indemnities
) and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which
the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
|
22.6
|
Sums deemed due to a Lender
|
For the purposes of this Clause 22
(
Indemnities
), a sum payable by the Borrower to the Agent or the Security Trustee for distribution to a Lender shall be
treated as a sum due to that Lender.
|
|
22.7
|
Sanctions and regulatory indemnities
|
The Borrower shall pay to the Agent
on demand, and the Borrower shall indemnify each Lender agai
n
st,
all costs, charges, expenses, claims, liabilities, losses, duties and fees (including, but not limited to, legal fees and expenses
on a full indemnity basis) and taxes thereon suffered or incurred by a Lender (other than in each case by reason of a Lender's
gross negligence, dishonesty or wilful misconduct):
|
|
(a)
|
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code,
any Environmental Law or any Sanctions Law; or
|
|
|
(b)
|
as a result of any claim, action, civil penalty or fine against, any settlement, and any other
kind of loss or liability, and as a result of conduct of the Borrower or any of their partners, directors, officers, employees
or agents that violates any Sanctions Laws.
|
|
|
23
|
No Set-Off or Tax Deduction
|
All amounts due from the Borrower
under a Finance Document shall be paid:
|
|
(a)
|
without any form of set-off, cross-claim or condition; and
|
|
|
(b)
|
free and clear of any Tax deduction except a Tax deduction which the Borrower is required by law
to make.
|
|
|
24
|
Tax Gross Up and Indemnities
|
"
Protected
Party
" means a Creditor Party which is or will be subject to any liability, or required to make any payment, for
or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable)
under a Finance Document.
"
Tax
Credit
" means a credit against, relief or remission for, or repayment of any Tax.
"
Tax
Deduction
" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other
than a FATCA Deduction.
"
Tax
Payment
" means either the increase in a payment made by the Borrower to a Creditor Party under Clause 24.2 (
Tax
gross-up
) or a payment under Clause 24.3 (
Tax indemnity
).
|
|
(a)
|
Unless a contrary indication appears, in this Clause 24 (
Tax Gross Up and Indemnities
) reference
to "
determines
" or "
determined
" means a determination made in the absolute discretion of the
person making the determination.
|
|
|
(a)
|
The Borrower shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction
is required by law.
|
|
|
(b)
|
The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there
is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent
on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall
notify the Borrower.
|
|
|
(c)
|
If a Tax Deduction is required by law to be made by the Borrower, the amount of the payment due
from the Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been required.
|
|
|
(d)
|
If the Borrower is required to make a Tax Deduction, the Borrower shall make that Tax Deduction
and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
|
|
(e)
|
Within 30 days of making either a Tax Deduction or any payment required in connection with that
Tax Deduction, the Borrower making that Tax Deduction shall deliver to the Agent for the Creditor Party entitled to the payment
evidence reasonably satisfactory to that Creditor Party that the Tax Deduction has been made or (as applicable) any appropriate
payment paid to the relevant taxing authority.
|
|
|
(a)
|
The Borrower shall (within three Business Days of demand by the Agent) pay to a Protected Party
an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
|
|
(b)
|
Paragraph (a) above shall not apply:
|
|
|
(i)
|
with respect to any Tax assessed on a Creditor Party:
|
|
|
(A)
|
under the law of the jurisdiction in which that Creditor Party is incorporated or, if different,
the jurisdiction (or jurisdictions) in which that Creditor Party is treated as resident for tax purposes; or
|
|
|
(B)
|
under the law of the jurisdiction in which that Creditor Party's Facility Office is located in
respect of amounts received or receivable in that jurisdiction,
|
if that Tax is imposed on or calculated
by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Creditor Party;
or
|
|
(ii)
|
to the extent a loss, liability or cost:
|
|
|
(A)
|
is compensated for by an increased payment under Clause 24.2 (
Tax gross-up
); or
|
|
|
(B)
|
relates to a FATCA Deduction required to be made by a Party.
|
|
|
(c)
|
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly
notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.
|
|
|
(d)
|
A Protected Party shall, on receiving a payment from the Borrower under this Clause 24.3 (
Tax
indemnity
), notify the Agent.
|
If the Borrower makes a Tax Payment
and the relevant Creditor Party determines that:
|
|
(a)
|
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that
Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
|
|
|
(b)
|
that Creditor Party has obtained and utilised that Tax Credit,
|
the Creditor Party shall pay an amount
to the Borrower which that Creditor Party determines will leave it (after that payment) in the same after-Tax position as it would
have been in had the Tax Payment not been required to be made by the Borrower.
The Borrower shall pay and, within
three Business Days of demand, indemnify each Creditor Party against any cost, loss or liability which that Creditor Party incurs
in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
|
|
(a)
|
All amounts expressed to be payable under a Finance Document by any Party to a Creditor Party which
(in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which
is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made
by any Creditor Party to any Party under a Finance Document and such Creditor Party is required to account to the relevant tax
authority for the VAT, that Party must pay to such Creditor Party (in addition to and at the same time as paying any other consideration
for such supply) an amount equal to the amount of the VAT (and such Creditor Party must promptly provide an appropriate VAT invoice
to that Party).
|
|
|
(b)
|
If VAT is or becomes chargeable on any supply made by any Creditor Party (the "
Supplier
")
to any other Creditor Party (the "
Recipient
") under a Finance Document, and any Party other than the Recipient
(the "
Relevant Party
") is required by the terms of any Finance Document to pay an amount equal to the consideration
for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
|
|
(i)
|
(where the Supplier is the person required to account to the relevant tax authority for the VAT)
the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount
of the VAT. The Recipient must (where this sub-paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any
credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to
the VAT chargeable on that supply; and
|
|
|
(ii)
|
(where the Recipient is the person required to account to the relevant tax authority for the VAT)
the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable
on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from
the relevant tax authority in respect of that VAT.
|
|
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Creditor Party for any
cost or expense, that Party shall reimburse or indemnify (as the case may be) such Creditor Party for the full amount of such cost
or expense, including such part of it as represents VAT, save to the extent that such Creditor Party reasonably determines that
it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
|
|
(d)
|
Any reference in this Clause 24.6 (
VAT
) to any Party shall, at any time when that Party
is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context
otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the
supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant
member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant
group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative
member (or representative or head) of that group or unity at the relevant time (as the case may be).
|
|
|
(e)
|
In relation to any supply made by a Creditor Party to any Party under a Finance Document, if reasonably
requested by such Creditor Party, that Party must promptly provide such Creditor Party with details of that Party's VAT registration
and such other information as is reasonably requested in connection with such Creditor Party's VAT reporting requirements in relation
to such supply.
|
|
|
(a)
|
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request
by another Party:
|
|
|
(i)
|
confirm to that other Party whether it is:
|
|
|
(A)
|
a FATCA Exempt Party; or
|
|
|
(B)
|
not a FATCA Exempt Party; and
|
|
|
(ii)
|
supply to that other Party such forms, documentation and other information relating to its status
under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
|
|
(iii)
|
supply to that other Party such forms, documentation and other information relating to its status
as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange
of information regime.
|
|
|
(b)
|
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that
it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party
shall notify that other Party reasonably promptly.
|
|
|
(c)
|
Paragraph (a) above shall not oblige any Creditor Party to do anything and sub-paragraph (iii)
of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute
a breach of:
|
|
|
(i)
|
any law or regulation;
|
|
|
(ii)
|
any fiduciary duty; or
|
|
|
(iii)
|
any duty of confidentiality.
|
|
|
(d)
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation
or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance
of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments
under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation,
forms, documentation or other information.
|
|
|
(a)
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required
in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such
a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
|
|
(b)
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there
is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition,
shall notify each Obligor and the Agent and the Agent shall notify the other Creditor Parties.
|
This Clause 25 (
Illegality, etc
)
applies if a Lender (the "
Notifying Lender
") notifies the Agent that it has become, or will with effect from a
specified date, become:
|
|
(a)
|
unlawful or prohibited as a result of the introduction of a new law, an amendment to an existing
law or a change in the manner in which an existing law is or will be interpreted or applied; or
|
|
|
(b)
|
contrary to, or inconsistent with, any regulation and/or contrary to or declared by any Sanctions
Authority to be contrary to Sanctions Laws,
|
for the Notifying Lender to maintain
or give effect to any of its obligations under this Agreement in the manner contemplated by this Agreement.
|
|
25.2
|
Notification of illegality
|
The Agent shall promptly notify the
Borrower, the Security Parties, the Security Trustee and the other Lenders of the notice under Clause 25.1 (
Illegality
)
which the Agent receives from the Notifying Lender.
|
|
25.3
|
Prepayment; termination of Commitment
|
On the Agent notifying the Borrower
under Clause 25.2 (
Notification of illegality
), the Notifying Lender's Commitment shall terminate; and thereupon or, if
later, on the date specified in the Notifying Lender's notice under Clause 25.1 (
Illegality
) as the date on which the notified
event would become effective the Borrower shall prepay the Notifying Lender's Contribution in accordance with Clause 8.
If circumstances arise which would
result in a notification under Clause 25.1 (
Illegality
) then, without in any way limiting the rights of the Notifying
Lender under Clause 25.3 (
Prepayment; termination of Commitment
), the Notifying Lender shall use reasonable endeavours
to transfer its obligations, liabilities and rights under this Agreement and the Finance Documents to another office or financial
institution not affected by the circumstances but the Notifying Lender shall not be under any obligation to take any such action
if, in its opinion, to do would or might:
|
|
(a)
|
have an adverse effect on its business, operations or financial condition; or
|
|
|
(b)
|
involve it in any activity which is unlawful or prohibited or any activity that is contrary to,
or inconsistent with, any regulation; or
|
|
|
(c)
|
involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
|
This Clause 26 (
Increased Costs
)
applies if a Lender (the "
Notifying Lender
") notifies the Agent that the Notifying Lender considers that as a
result of:
|
|
(a)
|
the introduction or alteration after the date of this Agreement of a law or an alteration after
the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the
application to payments under this Agreement of a tax on the Lender's overall net income); or
|
|
|
(b)
|
complying with any regulation (including any which relates to capital adequacy or liquidity controls
or which affects the manner in which the Notifying Lender allocates capital resources to its obligations under this Agreement)
which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Agreement;
|
|
|
(c)
|
the implementation, application of or compliance with Basel III or CRD IV or any law or regulation
that implements or applies Basel III or CRD IV,
|
the Notifying Lender (or a parent
company of it) has incurred or will incur an "
increased cost
".
|
|
26.2
|
In this Clause 26 (
Increased Costs
):
|
|
|
(a)
|
"
increased cost
" means,:
|
|
|
(i)
|
a reduction in the rate of return from the Loan or on a Creditor Party's (or its Affiliate's) overall
capital;
|
|
|
(ii)
|
an additional or increased cost; or
|
|
|
(iii)
|
a reduction of any amount due and payable under any Finance Document,
|
which is incurred or suffered by
a Creditor Party or any of its Affiliates to the extent that it is attributable to that Creditor Party having entered into its
Commitment or funding or performing its obligations under any Finance Document.
For the purposes of this Clause 26.2
the Notifying Lender may in good faith allocate or spread costs and/or losses among its assets and liabilities (or any class of
its assets and liabilities) on such basis as it considers appropriate.
|
|
(i)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel
III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework
for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical
capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or
restated;
|
|
|
(ii)
|
the rules for global systemically important banks contained in "Global systemically important
banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee
on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
|
|
(iii)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating
to "Basel III".
|
|
|
(i)
|
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential
requirements for credit institutions and investment firms and amending regulation (EU) No. 648/2012;
|
|
|
(ii)
|
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to
the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive
2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC; and
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(iii)
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any other law or regulation which implements Basel III.
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26.3
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Notification to Borrower of claim for increased costs
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The Agent shall promptly notify the
Borrower and the Security Parties of the notice which the Agent received from the Notifying Lender under Clause 26.1 (
Increased
costs
).
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26.4
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Payment of increased costs
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The Borrower shall pay to the Agent,
on the Agent's demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrower
that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.
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26.5
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Notice of prepayment
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If the Borrower is not willing to
continue to compensate the Notifying Lender for the increased cost under Clause 26.4 (
Payment of increased costs
), the Borrower
may give the Agent not less than 14 days' notice of its intention to prepay the Notifying Lender's Contribution at the end of an
Interest Period.
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26.6
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Prepayment; termination of Commitment
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A notice under Clause 26.5 (
Notice
of prepayment
) shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrower's notice of intended
prepayment; and:
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(a)
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on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall
be cancelled; and
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(b)
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on the date specified in its notice of intended prepayment, the Borrower shall prepay (without
premium or penalty) the Notifying Lender's Contribution, together with accrued interest thereon at the applicable rate plus the
Margin.
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Clause 26.1 (
Increased costs
)
does not apply to the extent any Increased Cost is:
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(a)
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attributable to a Tax Deduction required by law to be made by the Borrower;
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(b)
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attributable to a FATCA Deduction required to be made by a Party;
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(c)
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compensated for by Clause 24.3 (
Tax indemnity
) (or would have been compensated for under
Clause 24.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 24.3
(
Tax indemnity
) applied).
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26.8
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Application of prepayment.
Clause 8 (
Repayment and Prepayment
) shall apply in relation
to the prepayment.
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27.1
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Application of credit balances
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At any time after the occurrence
of an Event of Default which is continuing, each Creditor Party may without prior notice:
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(a)
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apply any balance (whether or not then due) which at any time stands to the credit of any account
in the name of the Borrower at any office in any country of that Creditor Party in or towards satisfaction of any sum then due
from the Borrower to that Creditor Party under any of the Finance Documents; and
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(i)
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break, or alter the maturity of, all or any part of a deposit of the Borrower;
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(ii)
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convert or translate all or any part of a deposit or other credit balance into Dollars; and
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(iii)
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enter into any other transaction or make any entry with regard to the credit balance which the
Creditor Party concerned considers appropriate.
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27.2
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Existing rights unaffected
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No Creditor Party shall be obliged
to exercise any of its rights under Clause 27.1 (
Application of credit balances
); and those rights shall be without prejudice
and in addition to any right of set-off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party
is entitled (whether under the general law or any document).
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27.3
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Sums deemed due to a Lender
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For the purposes of this Clause 27
(
Set-Off
), a sum payable by the Borrower to the Agent or the Security Trustee for distribution to, or for the account of,
a Lender shall be treated as a sum due to that Lender; and each Lender's proportion of a sum so payable for distribution to, or
for the account of, the Lenders shall be treated as a sum due to such Lender.
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27.4
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No Security Interest
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This Clause 27 (
Set-Off
) gives
the Creditor Parties a contractual right of set-off only and does not create any equitable charge or other Security Interest over
any credit balance of the Borrower.
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28
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Transfers and Changes in Lending Offices
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28.1
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Transfer by Borrower
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The Borrower may not transfer any
of its rights, liabilities or obligations under any Finance Document.
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28.2
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Transfer by a Lender
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Subject to Clause 28.4 (
Effective
Date of Transfer Certificate
), a Lender (the "
Transferor Lender
") may, at its own cost, with the prior written
consent of the Borrower (not to be unreasonably withheld or delayed) or without the consent of the Borrower if an Event of Default
or a Potential Event of Default has occurred and is continuing, cause:
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(a)
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its rights in respect of all or part of its Contribution; or
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(b)
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its obligations in respect of all or part of its Commitment; or
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(c)
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a combination of (a) and (b),
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to be (in the case of its rights)
transferred to, or (in the case of its obligations) assumed by, another bank or financial institution or a trust; fund or the entity
which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial
assets (a "
Transferee Lender
") by delivering to the Agent a completed certificate in the form set out in Schedule
4 (
Transfer Certificate
) with any modifications approved or required by the Agent (a "
Transfer Certificate
")
executed by the Transferor Lender and the Transferee Lender,
Provided that
a Lender may
cause such transfer without needing the consent of the Borrower or any Security Party if an Event of Default has occurred and is
continuing or if the Transferee Lender is:
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(d)
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another branch of the Transferor Lender;
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(e)
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a direct or indirect Subsidiary or Affiliate of the Transferor Lender;
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(f)
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a company of which the Transferor Lender is a Subsidiary; or
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(g)
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a company which is under the same control as the Lender.
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However any rights and obligations
of the Transferor Lender in its capacity as Agent or Security Trustee will have to be dealt with separately in accordance with
the Agency and Trust Agreement.
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28.3
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Transfer Certificate, delivery and notification
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As soon as reasonably practicable
after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate
may be defective):
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(a)
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sign the Transfer Certificate on behalf of itself, the Borrower, the Security Parties, the Security
Trustee and each of the other Lenders;
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(b)
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on behalf of the Transferee Lender, send to the Borrower letters or faxes notifying them of the
Transfer Certificate and attaching a copy of it;
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(c)
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send to the Transferee Lender copies of the letters or faxes sent under paragraph (b) above,
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but the Agent shall only be obliged
to execute a Transfer Certificate delivered to it by the Transferor Lender and the Transferee Lender once it is satisfied it has
complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in
relation to the transfer to that Transferee Lender.
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28.4
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Effective Date of Transfer Certificate
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A Transfer Certificate becomes effective
on the date, if any, specified in the Transfer Certificate as its effective date
Provided that
it is signed by the Agent
under Clause 27.3 (
Sums deemed due to a Lender
) on or before that date.
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28.5
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No transfer without Transfer Certificate
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No assignment or transfer of any
right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, the Borrower, any Security
Party, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.
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28.6
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Lender re-organisation; waiver of Transfer Certificate
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However, if a Lender enters into
any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in another person (the "
successor
"),
the Agent may, if it sees fit, by notice to the successor and the Borrower and the Security Trustee waive the need for the execution
and delivery of a Transfer Certificate; and, upon service of the Agent's notice, the successor shall become a Lender with the same
Commitment and Contribution as were held by the predecessor Lender.
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28.7
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Effect of Transfer Certificate
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A Transfer Certificate takes effect
in accordance with English law as follows:
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(a)
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to the extent specified in the Transfer Certificate, all rights and interests (present, future
or contingent) which the Transferor Lender has under or by virtue of the Finance Documents are assigned to the Transferee Lender
absolutely, free of any defects in the Transferor Lender's title and of any rights or equities which the Borrower or any Security
Party had against the Transferor Lender;
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(b)
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the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate;
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(c)
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the Transferee Lender becomes a Lender with the Contribution previously held by the Transferor
Lender and a Commitment of an amount specified in the Transfer Certificate;
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(d)
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the Transferee Lender becomes bound by all the provisions of the Finance Documents which are applicable
to the Lenders generally, including those about pro-rata sharing and the exclusion of liability on the part of, and the indemnification
of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those provisions (other than
those relating to exclusion of liability), the Transferor Lender ceases to be bound by them;
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(e)
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any part of the Loan which the Transferee Lender advances after the Transfer Certificate's effective
date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming
that any defects in the transferor's title and any rights or equities of the Borrower or any Security Party against the Transferor
Lender had not existed;
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(f)
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the Transferee Lender becomes entitled to all the rights under the Finance Documents which are
applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause
5.7 (
Market disruption
) and Clause 21 (
Fees and expenses
), and to the extent that the Transferee Lender becomes entitled
to such rights, the Transferor Lender ceases to be entitled to them; and
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(g)
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in respect of any breach of a warranty, undertaking, condition or other provision of a Finance
Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to
recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether
the original Lender would have incurred a loss of that kind or amount.
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The rights and equities of the Borrower
or any Security Party referred to above include, but are not limited to, any right of set off and any other kind of cross-claim.
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28.8
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Maintenance of register of Lenders
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During the Security Period the Agent
shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the
lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause
28.4 (
Effective Date of Transfer Certificate
)) of the Transfer Certificate; and the Agent shall make the register available
for inspection by any Lender, the Security Trustee and the Borrower during normal banking hours, subject to receiving at least
3 Business Days' prior notice.
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28.9
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Reliance on register of Lenders
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The entries on that register shall,
in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments
and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to
the Finance Documents for all purposes relating to the Finance Documents.
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28.10
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Authorisation of Agent to sign Transfer Certificates
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The Borrower, the Security Trustee
and each Lender irrevocably authorise the Agent to sign Transfer Certificates on its behalf.
In respect of any Transfer Certificate,
the Agent shall be entitled to recover a registration fee of $3,000 from the Transferee Lender.
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28.12
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Sub-participation; subrogation assignment
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A Lender may sub-participate all
or any part of its rights and/or obligations under or in connection with the Finance Documents without the consent of, or any notice
to, the Borrower, any Security Party, the Agent or the Security Trustee; and the Lenders may assign, in any manner and terms agreed
by the Majority Lenders, the Agent and the Security Trustee, all or any part of those rights to an insurer or surety who has become
subrogated to them.
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28.13
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Disclosure of information
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A Lender may with the consent of
the Borrower (such consent not to be unreasonably withheld or delayed) disclose to a potential Transferee Lender or sub-participant
any information which the Lender has received in relation to the Borrower, any Security Party or their affairs under or in connection
with any Finance Document, unless the information is clearly of a confidential nature.
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28.14
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Change of lending office
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A Lender may change its lending office
by giving notice to the Agent and the change shall become effective on the later of:
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(a)
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the date on which the Agent receives the notice; and
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(b)
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the date, if any, specified in the notice as the date on which the change will come into effect.
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On receiving such a notice, the Agent
shall notify the Borrower and the Security Trustee; and, until the Agent receives such a notice, it shall be entitled to assume
that a Lender is acting through the lending office of which the Agent last had notice.
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28.16
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Replacement of Reference Bank
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If any Reference Bank ceases to be
a Lender or is unable on a continuing basis to supply quotations for the purposes of Clause 5 (
Interest
) then, unless the
Borrower, the Agent and the Majority Lenders otherwise agree, the Agent, acting on the instructions of the Majority Lenders, and
after consulting the Borrower, shall appoint another bank (whether or not a Lender) to be a replacement Reference Bank; and, when
that appointment comes into effect, the first-mentioned Reference Bank's appointment shall cease to be effective.
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28.17
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Tax indemnity, tax gross-up and increased costs on assignment, transfer and change of lending office
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If:
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(a)
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the Lender assigns or transfers any rights or obligations under the Finance Documents pursuant
to Clause 28.2 (
Transfer by a Lender
) or changes its lending office; and
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(b)
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as a result of circumstances existing at the date of assignment, transfer or change occurs the
Borrower would be obliged to make a payment to the Transferee Lender or Lender acting through its new lending office under Clause
22.1 (
Indemnities regarding borrowing and repayment of Loan
) in respect of any tax, Clause 23 (
No Set-Off or Tax Deduction
)
or 25 (
Illegality, etc
),
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then the Transferee Lender or the
Lender acting through its new lending office is only entitled to receive payment under those Clauses to the same extent as the
Transferor Lender or the Lender acting through its previous lending office would have been if the assignment, transfer or change
had not occurred.
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28.18
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Security over Lenders' rights
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In addition to the other rights provided
to Lenders under this Clause 28 (
Transfers and Changes in Lending Offices
), each Lender may without consulting with or obtaining
consent from the Borrower, at any time charge, assign or otherwise create a Security Interest in or over (whether by way of collateral
or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
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(a)
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any charge, assignment or other Security Interest to secure obligations to a federal reserve or
central bank; and
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(b)
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in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted
to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security
for those obligations or securities,
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except that no such charge, assignment
or Security Interest shall:
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(i)
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release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary
of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or
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require any payments to be made by
the Borrower other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted
to the relevant Lender under the Finance Documents.
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29
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Variations and Waivers
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29.1
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Variations, waivers etc. by Majority Lenders
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Subject to Clause 29.2 (
Variations,
waivers etc. requiring agreement of all Lenders
), a document shall be effective to vary, waive, suspend or limit any provision
of a Finance Document, or any Creditor Party's rights or remedies under such a provision or the general law, only if the document
is signed, or specifically agreed to by fax, by the Borrower, by the Agent on behalf of the Majority Lenders, by the Agent and
the Security Trustee in their own rights, and, if the document relates to a Finance Document to which a Security Party is party,
by that Security Party.
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29.2
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Variations, waivers etc. requiring agreement of all Lenders
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However, as regards the following,
Clause 29.1 (
Variations, waivers etc. by Majority Lenders
) applies as if the words "by the Agent on behalf of the Majority
Lenders" were replaced by the words "by or on behalf of every Lender":
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(a)
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a change in the Margin or in the definition of LIBOR;
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(b)
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a change to the date for, the amount of, any payment of principal, interest, fees, or other sum
payable under this Agreement;
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(c)
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a change to any Lender's Commitment;
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(d)
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an extension of Availability Period;
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(e)
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a change to the definition of "Majority Lenders" or "Finance Documents";
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(f)
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a change to the preamble or to Clause 2 (
Facility
), 3 (
Position of the Lenders
),
4 (
Drawdown
), 5.1 (
Payment of normal interest
), 18 (
Application of Receipts
), 19 (
Application of Earnings
)
or 35 (
Law and Jurisdiction
);
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(g)
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a change to this Clause 29 (
Variations and Waivers
);
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(h)
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any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination
arrangement set out in a Finance Document; and
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(i)
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any other change or matter as regards which this Agreement or another Finance Document expressly
provides that each Lender's consent is required.
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29.3
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Exclusion of other or implied variations
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Except for a document which satisfies
the requirements of Clauses 29.1 (
Variations, waivers etc. by Majority Lenders
) and 29.2 (
Variations, waivers etc. requiring
agreement of all Lenders
), no document, and no act, course of conduct, failure or neglect to act, delay or acquiescence on
the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties
or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being
precluded (permanently or temporarily) from enforcing, relying on or exercising:
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(a)
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a provision of this Agreement or another Finance Document; or
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(b)
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an Event of Default; or
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(c)
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a breach by the Borrower or a Security Party of an obligation under a Finance Document or the general
law; or
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(d)
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any right or remedy conferred by any Finance Document or by the general law,
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and there shall not be implied into
any Finance Document any term or condition requiring any such provision to be enforced, or such right or remedy to be exercised,
within a certain or reasonable time.
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29.4
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Replacement of Screen Rate
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If the Screen Rate is not available
for dollars, any amendment or waiver which relates to providing for another benchmark rate to apply in relation to dollars, in
place of that Screen Rate (or which relates to aligning any provision of a Finance Document to the use of that benchmark rate)
may be made with the consent of the Majority Lenders and the Borrower.
Notwithstanding any other term of
any Finance Document or any other agreement, arrangement or understanding between the parties to a Finance Document, each Party
acknowledges and accepts that any liability of any party to a Finance Document under or in connection with the Finance Documents
may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
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(a)
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any Bail-In Action in relation to any such liability, including (without limitation):
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(i)
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a reduction, in full or in part, in the principal amount, or outstanding amount due (including
any accrued but unpaid interest) in respect of any such liability;
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(ii)
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a conversion of all, or part of, any such liability into shares or other instruments of ownership
that may be issued to, or conferred on, it; and
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(iii)
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a cancellation of any such liability; and
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(b)
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a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In
Action in relation to any such liability.
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31.1
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Communications in writing
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Any communication to be made under
or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.
The address and fax number (and the
department or officer, if any, for whose attention the communication is to be made) of each party to this Agreement for any communication
or document to be made or delivered under or in connection with the Finance Documents is:
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(a)
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in the case of the Borrower, that identified with its name below;
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(b)
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in the case of each Lender or any Security Party, that notified in writing to the Agent on or prior
to the date on which it becomes a party to this Agreement;
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(c)
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in the case of the Agent or the Security Trustee that identified with its name below,
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or any substitute address or fax
number or department or officer as the party to this Agreement may notify to the Agent (or the Agent may notify to the parties
to this Agreement, if a change is made by the Agent) by not less than five Business Days' notice:
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to the Borrower:
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De Gerlachekaai 20
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2000 Antwerp
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Fax No: +32 3 247 4409
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to the Lender:
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At the address below its name in Schedule 1 or (as the case may require) in the relevant Transfer Certificate
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to the Agent & Security Trustee:
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BNP Paribas – TGMO
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16 rue de Hanovre
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75002 Paris Cedex 2
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Code ACI: CAT04B1
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Attention: TGMO
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Email:tgmo.shipping@bnpparibas.com
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Fax No: +33 1 42 98 43 55
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or to such other address as the relevant
party may notify the Agent or, if the relevant party is the Agent or the Security Trustee, the Borrower, the Lenders and the Security
Parties.
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(a)
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Any communication or document made or delivered by one person to another under or in connection
with the Finance Documents will only be effective:
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(i)
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if by way of fax, when received in legible form; or
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(ii)
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if by way of letter, when it has been left at the relevant address or five Business Days after
being deposited in the post postage prepaid in an envelope addressed to it at that address;
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and, if a particular department or
officer is specified as part of its address details provided under Clause 31.2 (
Addresses
), if addressed to that department
or officer.
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(b)
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Any communication or document to be made or delivered to the Agent will be effective only when
actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified
with the Agent's signature below (or any substitute department or officer as the Agent shall specify for this purpose).
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(c)
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All notices from or to the Borrower or a Security Party shall be sent through the Agent.
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(d)
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Any communication or document made or delivered to the Borrower in accordance with this Clause
will be deemed to have been made or delivered to each Security Party.
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31.4
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Notification of address and fax number
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Promptly upon receipt of notification
of an address or fax number or change of address or fax number pursuant to Clause 31.2 (
Addresses
) or changing its own address
or fax number, the Agent shall notify the other parties to this Agreement.
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31.5
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Electronic communication.
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(a)
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Any communication to be made between the Agent and a Lender under or in connection with the Finance
Documents may be made by electronic mail or other electronic means, if the Agent and the relevant Lender:
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(i)
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agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
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(ii)
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notify each other in writing of their electronic mail address and/or any other information required
to enable the sending and receipt of information by that means; and
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(iii)
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notify each other of any change to their address or any other such information supplied by them.
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(b)
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Any electronic communication made between the Agent and a Lender will be effective only when actually
received in readable form and in the case of any electronic communication made by a Lender to the Agent only if it is addressed
in such a manner as the Agent shall specify for this purpose.
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(a)
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Any notice given under or in connection with any Finance Document must be in English.
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(b)
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All other documents provided under or in connection with any Finance Document must be:
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(ii)
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if not in English, and if so required by the Agent, accompanied by a certified English translation
and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
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32
|
Confidential Information
|
Each Creditor Party agrees to keep
all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 32.2 (
Disclosure
of Confidential Information
) and Clause 32.3 (
Disclosure to numbering service providers
) and to ensure that all Confidential
Information is protected with security measures and a degree of care that would apply to its own confidential information.
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32.2
|
Disclosure of Confidential Information
|
Any Creditor Party may disclose:
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(a)
|
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees,
professional advisers, auditors, partners and Representatives such Confidential Information as that Creditor Party shall consider
appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing
of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that
there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
|
|
(i)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any
of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as
Agent or Security Trustee and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional
advisers;
|
|
|
(ii)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly,
any sub-participation or risk participation in relation to, or any other transaction under which payments are to be made or may
be made by reference to, one or more Finance Documents and/or the Borrower and to any of that person's Affiliates, Related Funds,
Representatives and professional advisers;
|
|
|
(iii)
|
appointed by any Creditor Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b)
above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf;
|
|
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly
or indirectly, any transaction referred to in sub-paragraph (i) or (ii) of paragraph (b) above;
|
|
|
(v)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction
or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange
or pursuant to any applicable law or regulation;
|
|
|
(vi)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any
litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
|
|
(vii)
|
to whom or for whose benefit that Creditor Party charges, assigns or otherwise creates Security
(or may do so) pursuant to Clause 28.18 (
Security over Lenders' rights
);
|
|
|
(viii)
|
who is a Party, a member of the Group or any related entity of the Borrower;
|
|
|
(ix)
|
as a result of the registration of any Finance Document as contemplated by any Finance Document
or any legal opinion obtained in connection with any Finance Document; or
|
|
|
(x)
|
with the consent of the Borrower;
|
in each case, such Confidential Information
as that Creditor Party shall consider appropriate if:
|
|
(A)
|
in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to whom the
Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement
for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain
the confidentiality of the Confidential Information;
|
|
|
(B)
|
in relation to sub-paragraph (iv) of paragraph (b) above, the person to whom the Confidential Information
is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation
to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive
information;
|
|
|
(C)
|
in relation to sub-paragraphs (v), (vi) and (vii) of paragraph (b) above, the person to whom the
Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information
may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Creditor Party,
it is not practicable so to do in the circumstances;
|
|
|
(c)
|
to any person appointed by that Creditor Party or by a person to whom sub-paragraph (i) or (ii)
of paragraph (b) above applies to provide administration or settlement services in respect of one or more of the Finance Documents
including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential
Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this
paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a confidentiality agreement
substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers
or such other form of confidentiality undertaking agreed between the Borrower and the relevant Creditor Party;
|
|
|
(d)
|
to any rating agency (including its professional advisers) such Confidential Information as may
be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents
and/or the Borrower.
|
|
|
32.3
|
Disclosure to numbering service providers
|
|
|
(a)
|
Any Creditor Party may disclose to any national or international numbering service provider appointed
by that Creditor Party to provide identification numbering services in respect of this Agreement, the Loan and/or the Borrower
the following information:
|
|
|
(i)
|
name of the Borrower;
|
|
|
(ii)
|
country of domicile of the Borrower;
|
|
|
(iii)
|
place of incorporation of the Borrower;
|
|
|
(iv)
|
date of this Agreement;
|
|
|
(v)
|
Clause 35 (
Law and Jurisdiction
);
|
|
|
(vi)
|
the name of the Agent;
|
|
|
(vii)
|
date of each amendment and restatement of this Agreement;
|
|
|
(viii)
|
amount of Total Commitments;
|
|
|
(ix)
|
currency of the Loan;
|
|
|
(xii)
|
Maturity Date for Loan;
|
|
|
(xiii)
|
changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xii) above;
and
|
|
|
(xiv)
|
such other information agreed between such Creditor Party and the Borrower,
|
to enable such numbering service
provider to provide its usual syndicated loan numbering identification services.
|
|
(b)
|
The Parties acknowledge and agree that each identification number assigned to this Agreement, the
Loan and/or the Borrower by a numbering service provider and the information associated with each such number may be disclosed
to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
|
|
(c)
|
The Borrower represents that none of the information set out in sub-paragraphs (i) to (xiv) of
paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.
|
This Clause 32 (
Confidential Information
)
constitutes the entire agreement between the Parties in relation to the obligations of the Creditor Parties under the Finance Documents
regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
Each of the Creditor Parties acknowledges
that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information
may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse
and each of the Creditor Parties undertakes not to use any Confidential Information for any unlawful purpose.
|
|
32.6
|
Notification of disclosure
|
Each of the Creditor Parties agrees
(to the extent permitted by law and regulation) to inform the Borrower:
|
|
(a)
|
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph
(v) of paragraph (b) of Clause 32.2 (
Disclosure of Confidential Information
) except where such disclosure is made to any
of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
|
|
(b)
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 32
(
Confidential Information
).
|
|
|
32.7
|
Continuing obligations
|
The obligations in this Clause 32
(
Confidential Information
) are continuing and, in particular, shall survive and remain binding on each Creditor Party for
a period of 12 months from the earlier of:
|
|
(a)
|
the date on which all amounts payable by the Borrower under or in connection with this Agreement
have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
|
|
(b)
|
the date on which such Creditor Party otherwise ceases to be a Creditor Party.
|
|
|
33
|
Confidentiality of Funding Rates and Reference Bank Quotations
|
|
|
33.1
|
Confidentiality and disclosure
|
|
|
(a)
|
The Agent and the Borrower agree to keep each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (i), (j) and
(k) below.
|
|
|
(b)
|
The Agent may disclose:
|
|
|
(i)
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower
pursuant to Clause 5.4 (
Notification of Interest Periods and rates of normal interest
); and
|
|
|
(ii)
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration
services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide
those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially
in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other
form of confidentiality undertaking agreed between the Facility Agent and the relevant Lender or Reference Bank, as the case may
be.
|
|
|
(c)
|
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and the Borrower may disclose
any Funding Rate, to:
|
|
|
(i)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers,
auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant
to this sub-paragraph (i) is informed in writing of its confidential nature and that it may be price sensitive information except
that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
|
|
(ii)
|
any person to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is
to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there
shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is
not practicable to do so in the circumstances;
|
|
|
(iii)
|
any person to whom information is required to be disclosed in connection with, and for the purposes
of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding
Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive
information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor,
as the case may be, it is not practicable to do so in the circumstances; and
|
|
|
(iv)
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
|
|
(d)
|
The Agent's obligations in this Clause 33 (
Confidentiality of Funding Rates and Reference Bank
Quotations
) relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause
5.4 (
Notification of Interest Periods and rates of normal interest
)
provided that
(other than pursuant to sub-paragraph
(i) of paragraph (i) above) the Agent shall not include the details of any individual Reference Bank Quotation as part of any such
notification.
|
|
|
(a)
|
The Agent and the Borrower acknowledge that each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable
legislation including securities law relating to insider dealing and market abuse and the Agent and the Borrower undertake not
to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
|
|
(b)
|
The Agent and the Borrower agree (to the extent permitted by law and regulation) to inform the
relevant Lender or Reference Bank, as the case may be:
|
|
|
(i)
|
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of paragraph (j) of
Clause 33.1 (
Confidentiality and disclosure
) except where such disclosure is made to any of the persons referred to in that
paragraph during the ordinary course of its supervisory or regulatory function; and
|
|
|
(ii)
|
upon becoming aware that any information has been disclosed in breach of this Clause 33 (
Confidentiality
of Funding Rates and Reference Bank Quotations
).
|
No Event of Default will occur under
paragraph (c) of Clause 20.1 (
Events of Default
) by reason only of the Borrower's failure to comply with this Clause 33
(
Confidentiality of Funding Rates and Reference Bank Quotations
).
|
|
34.1
|
Rights cumulative, non-exclusive
|
The rights and remedies which the
Finance Documents give to each Creditor Party are:
|
|
(b)
|
may be exercised as often as appears expedient; and
|
|
|
(c)
|
shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude
or limit any right or remedy conferred by any law.
|
|
|
34.2
|
Severability of provisions
|
If any provision of a Finance Document
is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the
other provisions of that Finance Document or of the provisions of any other Finance Document.
A Finance Document may be executed
in any number of counterparts.
A person who is not a party to this
Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of
this Agreement.
This Agreement shall be governed
by, and construed in accordance with, English law.
|
|
35.2
|
Exclusive English jurisdiction
|
Subject to Clause 35.3 (
Choice
of forum for the exclusive benefit of the Creditor Parties
), the courts of England shall have exclusive jurisdiction to settle
any disputes which may arise out of or in connection with this Agreement.
|
|
35.3
|
Choice of forum for the exclusive benefit of the Creditor Parties
|
Clause 35.2 (
Exclusive English
jurisdiction
) is for the exclusive benefit of the Creditor Parties, each of which reserves the right:
|
|
(a)
|
to commence proceedings in relation to any matter which arises out of or in connection with this
Agreement in the courts of any country other than England and which have or claim jurisdiction to that matter; and
|
|
|
(b)
|
to commence such proceedings in the courts of any such country or countries concurrently with or
in addition to proceedings in England or without commencing proceedings in England.
|
The Borrower irrevocably appoints
Euronav (UK) Agencies Limited at its registered office for the time being, presently at 99 King’s Road, London, SW3 4PA,
England, to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the
English courts which are connected with this Agreement.
|
|
35.5
|
Creditor Party rights unaffected
|
Nothing in this Clause 35 (
Law
and Jurisdiction
) shall exclude or limit any right which any Creditor Party may have (whether under the law of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
35.6
|
Meaning of "proceedings"
|
In this Clause 35 (
Law and Jurisdiction
),
"
proceedings
" means proceedings of any kind, including an application for a provisional or protective measure.
This Agreement has been entered into on
the date stated at the beginning of this Agreement.
Schedule
1
Lenders
and Commitments
|
Lender
|
|
Lending Office
|
|
Commitment
(US Dollars)
|
|
|
|
|
|
|
|
|
|
|
BNP Paribas
|
|
16, rue de Hanovre,
75078 Paris Cedex 02, France
Fax no.: +33 (0)1 42 98 43 55
Department/Officer: Transportation Group
Middle Office – Shipping & offshore
Shipping Finance, ACI: CAT04B1
|
|
$
|
28,150,000
|
|
Schedule
2
Drawdown
Notice
acting through its office at
16, rue de Hanovre
75078 Paris Cedex 02
France
Attention: [Loans Administration]
[
·
]
2008
DRAWDOWN NOTICE
|
|
1
|
We refer to the loan agreement (the "
Loan Agreement
") dated 29 August 2008 (as
amended and restated on [
·
] March 2017) and made between ourselves,
as Borrower, the Lenders referred to therein, and yourselves Agent and as Security Trustee in connection with a facility of up
to US$67,500,000. Terms defined in the Loan Agreement have their defined meanings when used in this Drawdown Notice.
|
|
|
2
|
We request to borrow as follows:
|
|
|
(b)
|
Advance as specified in Clause 2.1 (
Amount of facility
) [first, second, third, etc.];
|
|
|
(c)
|
Drawdown Date: [
·
];
|
|
|
(d)
|
Duration of the first Interest Period shall be [
·
]
months; and
|
|
|
(e)
|
Payment instructions: account of [
·
]
and numbered [
·
] with [
·
]
of [
·
].
|
|
|
3
|
We represent and warrant that:
|
|
|
(a)
|
the representations and warranties in clause 10 of the Loan Agreement would remain true and not
misleading if repeated on the date of this notice with reference to the circumstances now existing; and
|
|
|
(b)
|
no Event of Default or Potential Event of Default has occurred or will result from the borrowing
of the Loan.
|
|
|
4
|
This notice cannot be revoked without the prior consent of the Majority Lenders.
|
|
|
5
|
We authorise you to deduct the arrangement fee referred to in Clause 21 (
Fees and expenses
)
from the amount of the Advance.
|
[Name of Signatory]
Director
for and on behalf of
EURONAV NV
Schedule
3
Condition
Precedent Documents
Part A
The following are the documents referred to
in paragraph (a) of Clause 9.1 (
Documents, fees and no default
) before the service of the first Drawdown Notice.
|
|
1
|
A duly executed original of this Agreement, the Supplemental Letter, the Agency and Trust Agreement,
the Negative Pledge, each Guarantee, the Counter Guarantee and the Account Security Deed.
|
|
|
2
|
Copies of the certificate of incorporation and constitutional documents of the Borrower, each Guarantor,
the Counter Guarantor and each Shareholder (and in relation to the Borrower a copy of the shareholders agreement or joint venture
agreement entered into by its shareholders).
|
|
|
3
|
Copies of resolutions of directors of the Borrower, each Guarantor (except for Guarantor B), the
Counter Guarantor and each Shareholder and copies of resolutions of the shareholders of the Borrower and the Counter Guarantor
authorising the execution of each of the Finance Documents to which the Borrower, that Guarantor, the Counter Guarantor or that
Shareholder is a party and, in the case of the Borrower, authorising named officers to give the Drawdown Notices and other notices
under this Agreement and ratifying the execution of the Shipbuilding Contract and the Supervision Agreement.
|
|
|
4
|
The original of any power of attorney under which any Finance Document is executed on behalf of
the Borrower, a Guarantor, the Counter Guarantor or the Shareholder.
|
|
|
5
|
Copies of all consents which the Borrower or any Security Party requires to enter into, or make
any payment under, any Finance Document or the Shipbuilding Contract or the Supervision Agreement.
|
|
|
6
|
The originals of any mandates or other documents required in connection with the opening or operation
of the Earnings Account.
|
|
|
7
|
Documentary evidence that the agent for service of process named in Clause 31 (
Notices
)
has accepted its appointment.
|
|
|
8
|
Favourable legal opinions from lawyers appointed by the Lender on such matters concerning the laws
of Hong Kong, Belgium, Panama, Bermuda and such other relevant jurisdictions as the Lender may require.
|
Part B
The following are the documents referred to
in paragraph (b) of Clause 9.1 (
Documents, fees and no default
) required before the drawdown of an Advance (other than the
final Advance):
|
|
1
|
Evidence that the relevant pre-delivery instalment of the Contract
Price payable under the Shipbuilding Contract has fallen due for payment and that such part of such instalment not being met out
of the proceeds of an Advance has been paid or shall be paid by the Borrower simultaneously with the making of such Advance.
|
|
|
2
|
A duly executed original of the Predelivery Security Assignment (and of each document required
to be delivered thereunder).
|
|
|
3
|
A certified copy of the Shipbuilding Contract and Supervision Agreement and a certified copy of
the Refund Guarantee.
|
|
|
4
|
Such documentary evidence as the Lender and its legal advisers may require in relation to the due
authorisation and execution by the Builder of the Shipbuilding Contract, by the Supervisor of the Supervision Agreement and by
the Refund Guarantor of the Refund Guarantee.
|
|
|
5
|
Favourable legal opinions from lawyers appointed by the Lender on such matters concerning the laws
of Korea and such other relevant jurisdictions as the Lender may require.
|
Part C
The following are the documents referred to
in paragraph (c) of Clause 9.1 (
Documents, fees and no default
) required before the Drawdown of the final Advance.
|
|
1
|
A duly executed original of the Mortgage, of the Charter Assignment
(if any) and of the General Assignment (and of each document to be delivered by each of them).
|
|
|
2
|
Documentary evidence that:
|
|
|
(a)
|
the Ship has been unconditionally delivered by the Builder to, and accepted by, the Borrower under
the Shipbuilding Contract, and the full purchase price payable under the Shipbuilding Contract (in addition to the part to be financed
by the Loan) has been duly paid;
|
|
|
(b)
|
the Ship is definitively and permanently registered in the name of the Borrower under the relevant
Approved Flag at its relevant port of registry;
|
|
|
(c)
|
the Ship is in the absolute and unencumbered ownership of the Borrower save as contemplated by
the Finance Documents;
|
|
|
(d)
|
the Ship maintains the class (namely A1(E), "Oil Carrier ESP", AMS, ACCU, SPM, VEC(-L),
CSR, Safeship-CM, RES, ES, TEM, Green Passport, POT, UWILD (sea chest blanking devices shall not be provided), CPS with American
Bureau of Shipping free of all recommendations and conditions of such Classification Society;
|
|
|
(e)
|
the Mortgage has been duly recorded against the Ship as a valid first preferred/priority ship mortgage
in accordance with the laws of the relevant Approved Flag;
|
|
|
(f)
|
the Ship is insured in accordance with the provisions of this Agreement and all requirements therein
in respect of insurances have been complied with; and
|
|
|
(g)
|
such part of the acquisition cost of the Ship which has not been funded out of the proceeds of
the Loan and which has been borrowed by the Borrower is subordinated to the obligations of the Borrower to the Lender under this
Agreement in terms satisfactory to the Lender in its absolute discretion;
|
|
|
3
|
Documents establishing that the Ship will, as from the final Drawdown Date, be managed by the Approved
Manager on terms acceptable to the Lender, together with:
|
|
|
(a)
|
a letter of undertaking executed by the Approved Manager in favour of the Lender in the terms agreed
between the Lender and the Approved Manager agreeing certain matters in relation to the management of the Ship and subordinating
the rights of the Approved Manager against the Ship and the Borrower to the rights of the Lender under the Finance Documents; and
|
|
|
(b)
|
copies of the Approved Manager's Document of Compliance and of the Ship's Safety Management Certificate
(together with any other details of the applicable safety management system which the Lender requires) and ISSC.
|
|
|
4
|
A favourable opinion from an independent insurance consultant acceptable to the Lender on such
matters relating to the insurances for the Ship as the Lender may require.
|
|
|
5
|
Favourable legal opinion from lawyers appointed by the Lender on such matters concerning the laws
of Greece (or such other jurisdiction as may be appropriate if the Ship is not registered on Greek flag) and such other relevant
jurisdiction as the Lender may require.
|
Schedule
4
Transfer
Certificate
The Transferor and the Transferee accept
exclusive responsibility for ensuring that this Certificate and the transaction to which it relates comply with all legal and regulatory
requirements applicable to them respectively.
To: BNP Paribas as Agent.
From: [
The Transferor Lender
] (the
"
Transferor
") and [
The Transferee Lender
] (the "
Transferee
")
Dated: [
·
]
2008
US$67,500,000 Loan Agreement to Euronav NV
dated 29 August 2008 (as amended and restated on [
·
] March
2017) (the "Agreement")
|
|
1
|
We refer to the Agreement. This is a Transfer Certificate. Terms
defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
|
|
2
|
We refer to Clause 28 (
Transfers and Changes in Lending Offices
) of the Agreement:
|
|
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender
by novation all of the Existing Lender's rights and obligations under the Agreement and the other Finance Documents which relate
to that portion of the Existing Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule
in accordance with Clause 28 (
Transfers and Changes in Lending Offices
) of the Agreement.
|
|
|
(b)
|
The proposed Transfer Date is [
·
].
|
|
|
(c)
|
The Facility Office and address, fax number and attention details for notices of the New Lender
for the purposes of Clause 31.2 (
Addresses
) of the Agreement are set out in the Schedule.
|
|
|
3
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set
out in paragraph 28 (
Transfers and Changes in Lending Offices
) of the Agreement.
|
|
|
4
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect
as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
|
|
5
|
This Transfer Certificate and any non-contractual obligations arising out of or in connection with
it are governed by English law.
|
|
|
6
|
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer
Certificate.
|
Note: The execution of this Transfer Certificate
may not transfer a proportionate share of the Existing Lender's interest in the Transaction Security in all jurisdictions. It is
the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer
of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so, to arrange for execution of those
documents and completion of those formalities.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention
details
for notices and account details for payments.]
|
[Transferor Lender]
|
[Transferee Lender]
|
|
|
|
|
By: [
·
]
|
By: [
·
]
|
This Transfer Certificate is accepted by the
Agent and the Transfer Date is confirmed as [
·
].
[Agent]
By: [
·
]
Schedule
5 Form of Certificate of Compliance
acting through its office at
16, rue de Hanovre
75078 Paris Cedex 02
France
[Date]
OFFICER'S CERTIFICATE
This Certificate is rendered pursuant to clause
12.6 (c) (
Provision of financial statements
) of the loan agreement dated [
·
]
2017 (the "
Loan Agreement
") and entered into between (i) Euronav NV as Borrower, (ii) the banks and financial
institutions listed in Schedule 1 therein as Lenders and (iii) BNP Paribas as Agent and Security Trustee, relating to a facility
of originally up to US$67,500,000. Words and expressions defined in the Loan Agreement shall have the same meanings when used herein.
I, the Chief Financial Officer of the Borrower,
hereby certify that:
|
|
1
|
Attached to this Certificate [are][is] the latest [audited consolidated accounts of the Group and
audited individual accounts of the Borrower for the financial year ending on [
·
]]
(the "
Accounts
").
|
|
|
2
|
Set out below are the respective amounts, in US Dollars, of the Cash, Consolidated Current Assets,
Consolidated Current Liabilities, Free Liquid Assets, Stockholders' Equity, Total Assets and Total Indebtedness of the Group as
at [
·
]:
|
|
|
|
US Dollars
|
|
|
|
|
|
Cash
|
|
[
·
]
|
|
|
|
|
|
Consolidated Current Assets
|
|
[
·
]
|
|
|
|
|
|
Consolidated Current Liabilities
|
|
[
·
]
|
|
|
|
|
|
Free Liquid Assets
|
|
[
·
]
|
|
|
|
|
|
Stockholders' Equity
|
|
[
·
]
|
|
|
|
|
|
Total Assets
|
|
[
·
]
|
|
|
|
|
|
Total Indebtedness
|
|
[
·
]
|
|
|
3
|
Accordingly, as at the date of this Certificate the financial covenants set out in clause 11.1
(
Financial Covenants
) of the Loan Agreement [are] [are not] complied with, in that as at [
·
]:
|
|
|
(a)
|
Consolidated Working Capital is US$[
·
];
|
|
|
(b)
|
Free Liquid Assets are US$[
·
];
|
|
|
(c)
|
Cash is US$[
·
]; and
|
|
|
(d)
|
the ratio of Stockholders' Equity to Total Assets is [
·
]
per cent.;
|
[or, as the case may be, specify
in what respect any of the financial covenants are not complied with.]
|
|
4
|
As at [
·
] no Event of Default
has occurred and is continuing.
|
[or, specify/identify any Event
of Default]
|
|
5
|
The Borrower is in compliance with clause 16.1 of the Loan Agreement.
|
[
If not, specify this
and what is proposed as regards Clause 16.2
]
The market value of the Ship is as follows
as at [
date
]:
|
Name of Ship
|
|
Name of first shipbroker
providing valuation
|
|
Name of second shipbroker
providing valuation
|
|
Average market value
|
|
|
|
|
|
|
|
|
|
[
·
]
|
|
[
·
]
|
|
[
·
]
|
|
[
·
]
|
|
|
|
|
|
|
|
Chief Financial Officer
|
|
|
EURONAV NV
|
|
Note: Supporting Schedules to be attached.
Execution Pages
BORROWER
|
SIGNED
by
|
)
|
|
for and on behalf of
|
)
|
|
EURONAV NV
|
)
|
|
in the presence of:
|
)
|
|
|
|
|
LENDERS
|
|
|
|
|
|
SIGNED
by
|
)
|
|
for and on behalf of
|
)
|
|
BNP PARIBAS
|
)
|
|
in the presence of:
|
)
|
|
|
|
|
AGENT
|
|
|
|
|
|
SIGNED
by
|
)
|
|
for and on behalf of
|
)
|
|
BNP PARIBAS
|
)
|
|
in the presence of:
|
)
|
|
|
|
|
SECURITY TRUSTEE
|
|
|
|
|
|
SIGNED
by
|
)
|
|
for and on behalf of
|
)
|
|
BNP PARIBAS
|
)
|
|
in the presence of:
|
)
|
Exhibit
10.18
Execution Version
Date 25 April 2017
EURONAV NV
as Borrower
– and –
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1
as Lenders
– and –
DNB (UK) LIMITED
ABN AMRO BANK N.V.
ING BANK, a branch of ING-DiBa AG
as Mandated Lead Arrangers and Co-Bookrunners
– and –
DNB BANK ASA, LONDON BRANCH
as ECA Coordinator
– and –
DNB BANK ASA, LONDON BRANCH
as Agent
and Security Trustee
– and –
DNB BANK ASA, LONDON BRANCH
as K-sure Agent
LOAN AGREEMENT
relating to a term loan facility of up to $110,000,000
Index
|
Clause
|
|
Page
|
|
|
|
|
|
1
|
Interpretation
|
1
|
|
2
|
Facility
|
23
|
|
3
|
Position of the Lenders
|
23
|
|
4
|
Drawdown
|
24
|
|
5
|
Interest
|
25
|
|
6
|
Interest Periods
|
29
|
|
7
|
Default Interest
|
30
|
|
8
|
Repayment, Prepayment and Cancellation
|
30
|
|
9
|
Conditions Precedent
|
34
|
|
10
|
Representations and Warranties
|
35
|
|
11
|
General Undertakings
|
39
|
|
12
|
Corporate Undertakings
|
42
|
|
13
|
Insurance
|
46
|
|
14
|
Ship Covenants
|
50
|
|
15
|
Security Cover
|
53
|
|
16
|
Payments and Calculations
|
55
|
|
17
|
Application of Receipts
|
58
|
|
18
|
Application of Earnings
|
58
|
|
19
|
Events of Default
|
59
|
|
20
|
Fees, Expenses and K-sure Premium
|
63
|
|
21
|
Indemnities
|
64
|
|
22
|
No Set-Off or Tax Deduction
|
66
|
|
23
|
Illegality, etc.
|
69
|
|
24
|
The Agent, the Arrangers and the Reference Banks
|
70
|
|
25
|
The Security Trustee
|
78
|
|
26
|
K-sure Agent
|
92
|
|
27
|
Conduct of Business by the Creditor Parties
|
93
|
|
28
|
Sharing among the Creditor Parties
|
93
|
|
29
|
Increased Costs
|
95
|
|
30
|
Set- Off
|
97
|
|
31
|
Transfers and Changes in Lending Offices
|
98
|
|
32
|
Confidential Information
|
103
|
|
33
|
Confidentiality of Funding Rates and Reference Bank Quotations
|
107
|
|
34
|
Variations and Waivers
|
108
|
|
35
|
Bail-In
|
109
|
|
36
|
Notices
|
110
|
|
37
|
Supplemental
|
112
|
|
38
|
Law and Jurisdiction
|
113
|
|
Schedules
|
|
|
|
|
|
Schedule 1 Lenders and Commitments
|
114
|
|
Part A Commercial Lenders
|
114
|
|
Part B K-sure Lenders
|
115
|
|
Schedule 2 Drawdown Notice
|
116
|
|
Schedule 3 Condition Precedent Documents
|
117
|
|
Part A
|
117
|
|
Part B
|
118
|
|
Schedule 4 Transfer Certificate
|
120
|
|
Schedule 5 Details of Ships
|
124
|
|
Schedule 6 Form of Certificate of Compliance
|
125
|
|
Schedule 7 Timetables
|
127
|
|
|
|
|
Execution
|
|
|
|
|
|
Execution Pages
|
128
|
THIS AGREEMENT
is
made on 25 April 2017
BETWEEN
|
|
(1)
|
EURONAV NV
, as
Borrower
|
|
|
(2)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Part A of Schedule 1 (
Lenders and
Commitments
), as
Commercial Lenders
|
|
|
(3)
|
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Part B of Schedule 1 (
Lenders and
Commitments
), as
K-sure Lenders
|
|
|
(4)
|
DNB (UK) LIMITED, ABN AMRO BANK N.V.
and
ING BANK
, a branch of ING-DiBa AG as
Mandated
Lead Arrangers
|
|
|
(5)
|
DNB (UK) LIMITED, ABN AMRO BANK N.V.
and
ING BANK
, a branch of ING-DiBa AG as
Co-Bookrunners
|
|
|
(6)
|
DNB BANK ASA, LONDON BRANCH
as
ECA Coordinator
|
|
|
(7)
|
DNB BANK ASA, LONDON BRANCH
, as
Agent
|
|
|
(8)
|
DNB BANK ASA, LONDON BRANCH
, as
Security Trustee
|
|
|
(9)
|
DNB BANK ASA, LONDON BRANCH
, as
K-sure Agent
|
BACKGROUND
|
|
(A)
|
The Lenders have agreed to make available to the Borrower a term loan facility of up to $110,000,000
for the purpose of financing up to 65 per cent. of the Fair Market Value of the Ships in two Tranches, one per Ship, with each
Tranche to be split in to a Commercial Advance and a K-sure Advance.
|
|
|
(B)
|
The Lenders have agreed to share in the security to be granted to the Security Trustee pursuant
to this Agreement on the terms described herein.
|
IT IS AGREED
as follows:
Subject to Clause 1.5 (
General
Interpretation
), in this Agreement:
"
Account
Charge
" means a deed creating security in respect of the Earnings Account in favour of the Security Trustee in
the Agreed Form.
"
Advance
"
means the borrowing of part of a Tranche under this Agreement.
"
Affected
Lender
" has the meaning given in Clause 5.8 (
Market disruption
).
"
Affiliate
"
means, in relation to any person, a subsidiary of that person or a Holding Company of that person or any other subsidiary of that
Holding Company.
"
Agent
"
means DNB Bank ASA, London Branch acting in such capacity through its office at 8
th
Floor, The Walbrook Building, 25
Walbrook, London EC4N 8AF, or any successor of it.
"
Agreed
Form
" means in relation to any document, that document in a form agreed in writing by the Agent (acting on the
instructions of the Lenders or, if agreed in the Finance Documents, the Majority Lenders) and (if applicable) the K-sure Agent
acting pursuant to the instructions of K-sure, or if otherwise approved in accordance with any other procedure specified in the
relevant provision of any Finance Document.
"
Anti-Corruption
Laws
" means the England and Wales Bribery Act 2010, the United States Foreign Corrupt Practices Act 1977 or other
applicable anti-corruption legislation in any other jurisdictions.
"
Approved
Classification Society
" means any of DNV GL, Bureau Veritas, Lloyds Register of Shipping, American Bureau of Shipping,
Nippon Kaiji Kyokai or such other classification society which the Agent has approved or selected (with the authorisation of the
Majority Lenders).
"
Approved
Flag
" means Belgian, French, Greek, Hong Kong, Liberian and Marshall Islands flags and any other flag approved
by the Agent (acting on the instructions of the Majority Lenders).
"
Approved
Manager
" means:
|
|
(a)
|
in relation to the technical management of each Ship:
|
|
|
(i)
|
Euronav Ship Management SAS of 15 Quai Ernest Renaud, Immeuble Les Salorges 1, 44000 Nantes, France
(with a Belgian branch office at De Gerlachekaai 20, B 2000 Antwerp 1, Belgium); or
|
|
|
(ii)
|
Anglo Eastern Ship Management Ltd of 23/F, 248 Queen's Road, East Wanchai, Hong Kong; or
|
|
|
(iii)
|
Anglo-Eastern (Antwerp) N.V. of Sneeuwbeslaan 14, 2610 Antwerp, Belgium; or
|
|
|
(iv)
|
Anglo-Eastern Tanker Management (Hong Kong) Limited of 27/F, 248 Queen's Road, East Wanchai, Hong
Kong; or
|
|
|
(v)
|
Anglo-Eastern (Labuan) Limited of Unit Level 11(A), Main Office Tower, Financial Park Labuan, Jalan
Merdeka, 87000 Federal Territory of Labuan, Malaysia; or
|
|
|
(vi)
|
any member of the Anglo-Eastern Univan Group; or
|
|
|
(vii)
|
Wallem of 9/F Dorset House, Taikou Place, 979 King's Road, Quarry Bay, Hong Kong; or
|
|
|
(viii)
|
V. Ships of 63 Queen Victoria Street, EC4N 4UA, London, England; or
|
|
|
(ix)
|
Euronav Ship Management (Hellas) Ltd. (Greek Branch) of 69 Akti Miaouli Str, Piraeus 185 37, Greece;
or
|
|
|
(x)
|
Northern Marine Limited, of Alba House, 2 Central Avenue, Clydebank, Glasgow, G81 2QR, Scotland;
and
|
|
|
(b)
|
in relation to the commercial management of each Ship:
|
|
|
(ii)
|
any wholly owned subsidiary of the Borrower; or
|
|
|
(iii)
|
Tankers International LLC of 3A Panteli Modestou Street, 3090 Limassol, Cyprus,
|
or, in each case,
any other company which the Agent may, with the authorisation of the Lenders, approve from time to time as the technical or commercial
manager of that Ship (such approval not to be unreasonably withheld).
"
Approved
Shipbroker
" means Clarksons Platou Securities AS, Arrow Sale & Purchase (UK) Limited, Braemar ACM, Fearnleys,
Maersk Broker K/S or such other independent sale and purchase shipbrokers which the Agent has approved or selected (with the authorisation
of the Lenders) and to which the Borrower may agree.
"
Arrangers
"
means, together, the Mandated Lead Arrangers, the ECA Coordinator and the Co-Bookrunners.
"
Authorisation
"
means an authorisation, consent, approval, resolution, licence, permit, ruling, exemption, filing, notarisation, legalisation or
registration.
"
Available
Commitment
" means, in relation to a Lender under each Tranche and at any time, its Commitment less its Contribution
at that time (and "
Total Available Commitments
" means the aggregate of the Available Commitments of all the Lenders).
"
Availability
Period
" means the period commencing on the date of this Agreement and ending on the earlier of:
|
|
(a)
|
31 May 2017 or such later date as may be agreed between the Borrower, the Lenders and K-sure; or
|
|
|
(b)
|
if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated.
|
"
Bail-In
Action
" means the exercise of any Write-down and Conversion Powers.
"
Bail-In
Legislation
" means in relation to an EEA Member Country which has implemented, or which at any time implements,
Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment
firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time.
"
Borrower
"
means Euronav NV, a company incorporated in Belgium whose registered office is at De Gerlachekaai 20, B-2000 Antwerp, Belgium.
"
Break
Costs
" means the amount (if any) by which:
|
|
(a)
|
the interest (excluding the applicable Margin) which a Lender should have received for the period
from the date of receipt of all or any part of its participation in the Loan or Unpaid Sum to the last day of the current Interest
Period in relation to the Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that
Interest Period,
|
exceeds
|
|
(b)
|
the amount which that Lender would be able to obtain by placing an amount equal to the principal
amount or Unpaid Sum received by it on deposit with a leading bank in the London interbank market for a period starting on the
Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
"
Business
Day
" means a day on which banks are open in London, Oslo and Antwerp and, in respect of a day on which a payment
is required to be made under a Finance Document, also New York City.
"
Change
of Control
" means, in relation to the Borrower, if 2 or more persons acting in concert or any individual person
in each case other than the Permitted Holders:
|
|
(a)
|
acquires legally and/or beneficially, and either directly or indirectly, in excess of 50 per cent.
of the issued share capital or voting rights of the Borrower; or
|
|
|
(b)
|
has the right or the ability to control, either directly or indirectly, the affairs or composition
of the majority of the board of directors (or equivalent) of the Borrower.
|
"
Co-
Bookrunners
"
means DNB (UK) Limited, ABN Amro Bank N.V. and ING Bank, a branch of ING-DiBa AG.
"
Code
"
means the United States Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"
Commercial
Advance
" means, in respect of each Tranche, an Advance in an amount equal to 25 per cent. of the amount of that
Tranche.
"
Commercial
Lender Commitment
" means, in relation to a Commercial Lender, the amount set opposite its name in Part A of
Schedule 1 (
Lenders and Commitments
), or, as the case may require, the amount specified in the relevant Transfer Certificate,
as that amount may be reduced, cancelled or terminated in accordance with this Agreement (and "
Total
Commercial Lender Commitments
" means the aggregate of the Commercial Lender Commitments of all the Commercial Lenders).
"
Commitment
"
means:
|
|
(a)
|
in relation to a Commercial Lender, its Commercial Lender Commitment; and
|
|
|
(b)
|
in relation to a K-sure Lender, its K-sure Lender Commitment.
|
"
Confidential
Information
" means all information relating to the Borrower, the Group, the Finance Documents or the Loan of which
a Creditor Party becomes aware in its capacity as, or for the purpose of becoming, a Creditor Party or which is received by a Creditor
Party in relation to, or for the purpose of becoming a Creditor Party under, the Finance Documents or the Loan from either:
|
|
(a)
|
any member of the Group or any of its advisers; or
|
|
|
(b)
|
another Creditor Party, if the information was obtained by that Creditor Party directly or indirectly
from any member of the Group or any of its advisers,
|
in whatever form,
and includes information given orally and any document, electronic file or any other way of representing or recording information
which contains or is derived or copied from such information but excludes:
|
|
(A)
|
is or becomes public information other than as a direct or indirect result of any breach by that
Creditor Party of Clause 32.2 (
Disclosure of Confidential Information
); or
|
|
|
(B)
|
is identified in writing at the time of delivery as non-confidential by any member of the Group
or any of its advisers; or
|
|
|
(C)
|
is known by that Creditor Party before the date the information is disclosed to it in accordance
with paragraphs (a) or (b) above or is lawfully obtained by that Creditor Party after that date, from a source which is, as far
as that Creditor Party is aware, unconnected with the Group and which, in either case, as far as that Creditor Party is aware,
has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
|
|
|
(ii)
|
any Funding Rate or Reference Bank Quotation.
|
"
Confidentiality
Undertaking
" means a confidentiality undertaking in substantially the appropriate form recommended by the Loan
Market Association from time to time (as logically amended to reflect the terms of this Agreement) or in any other form agreed
between the Borrower and the Agent.
"
Contractual
Currency
" has the meaning given in Clause 21.4 (
Currency indemnity
).
"
Contribution
"
means, in relation to a Lender, the part of the Loan which is owing to that Lender.
"
Corresponding
Debt
" means any amount, other than any Parallel Debt, which the Borrower owes to a Creditor Party under or in connection
with the Finance Documents.
"
Creditor
Party
" means the Agent, the Security Trustee, the K-sure Agent, the Mandated Lead Arrangers, the Co-Bookrunners,
the ECA Coordinator or any Lender, whether as at the date of this Agreement or at any later time.
"
Deed
of Covenant
" means, in relation to each Ship and where (in the opinion of the Agent) it is appropriate in the context
of the relevant Approved Flag, a deed of covenant collateral to the Mortgage on that Ship to be executed by the Borrower in favour
of the Security Trustee in the Agreed Form.
"
Defaulting
Lender
" means any Lender:
|
|
(a)
|
which has failed to make available the relevant proportion of its Commitment in respect of any
Advance or has given notice to the Agent that it will not make such amount available by the relevant Drawdown Date pursuant to
Clause 4.3 (
Notification to Lenders of receipt of a Drawdown Notice
); or
|
|
|
(b)
|
which has otherwise rescinded or repudiated a Finance Document; or
|
|
|
(c)
|
with respect to which an Insolvency Event has occurred and is continuing,
|
unless, in the case of paragraph (a)
above:
|
|
(i)
|
its failure to pay is caused by:
|
|
|
(A)
|
administrative or technical error; or
|
|
|
(B)
|
a Disruption Event; and
|
payment is made within 5 Business Days
of its due date; or
|
|
(ii)
|
the Lender is disputing in good faith whether it is contractually obliged to make the relevant
payment.
|
"
Delivery
Date
" means:
|
|
(a)
|
in respect of Ship A, 12 January 2017; and
|
|
|
(b)
|
in respect of Ship B, 20 January 2017.
|
"
Disruption
Event
" means either or both of:
|
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets
which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order
for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond
the control of, a party to this Agreement (a "
Party
");
or
|
|
|
(b)
|
the occurrence of any other event which results in a disruption (of a technical or systems-related
nature) to the treasury or payments operations of a Party preventing that, or any other, Party:
|
|
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
|
|
(ii)
|
from communicating with other parties in accordance with the terms of the Finance Documents,
|
and which (in each case) is not caused
by, and is beyond the control of, the Party whose operations are disrupted.
"
Dollars
"
and "
$
" means the lawful currency for the time
being of the United States of America.
"
Drawdown
Date
" means, in relation to a Tranche, the date requested by the Borrower for the Tranche to be made, or (as the
context requires) the date on which the Tranche is actually made.
"
Drawdown
Notice
" means a notice in the form set out in Schedule 2 (
Drawdown Notice
) (or in any other form which the
Agent approves or reasonably requires).
"
Earnings
"
means, in relation to a Ship, all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower
and which arise out of the use or operation of that Ship, including (but not limited to):
|
|
(a)
|
all freight, hire and passage moneys, compensation payable to the Borrower in the event of requisition
of that Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys and damages for breach (or
payments for variation or termination) of any charterparty or other contract for the employment of that Ship;
|
|
|
(b)
|
all moneys which are at any time payable under Insurances in respect of loss of earnings; and
|
|
|
(c)
|
if and whenever that Ship is employed on terms whereby any moneys falling within paragraphs (a)
or (b) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement
which is attributable to that Ship.
|
"
Earnings
Account
" means an account in the name of the Borrower with the Agent in London designated "[Name of Borrower]
- Earnings Account", or any other account (with that or another office of the Agent or with a bank or financial institution
other than the Agent) which is agreed by the Agent and the Borrower as the Earnings Account for the purposes of this Agreement.
"
ECA
Coordinator
" means DNB Bank ASA, London Branch.
"
Environmental
Approval
" means any present or future permit, ruling, variance or other Authorisation required under Environmental Laws.
"
Environmental
Claim
" means:
|
|
(a)
|
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental
Incident or an alleged Environmental Incident or which relates to any Environmental Law; or
|
|
|
(b)
|
any claim by any other person which relates to an Environmental Incident or to an alleged Environmental
Incident,
|
and "
claim
"
means a claim for damages, compensation, fines, penalties or any other payment of any kind whether or not similar to the foregoing;
an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement
or regulatory action, including the arrest or attachment of any asset.
"
Environmental
Incident
" means:
|
|
(a)
|
any release of Environmentally Sensitive Material from a Ship; or
|
|
|
(b)
|
any incident in which Environmentally Sensitive Material is released from a vessel other than a
Ship and which involves a collision between a Ship and such other vessel or some other incident of navigation or operation, in
either case, in connection with which a Ship is actually or is reasonably likely to be arrested, attached, detained or injuncted
and/or a Ship and/or the Borrower and/or any operator or manager of a Ship is at fault or allegedly at fault or is reasonably likely
to be subject to any legal or administrative action; or
|
|
|
(c)
|
any other incident in which Environmentally Sensitive Material is released otherwise than from
a Ship and in connection with which a Ship is actually or reasonably likely to be arrested and/or where the Borrower and/or any
operator or manager of a Ship is at fault or allegedly at fault or is reasonably likely to be subject to any legal or administrative
action.
|
"
Environmental
Law
" means any law relating to pollution or protection of the environment, to the carriage of Environmentally Sensitive
Material or to actual or threatened releases of Environmentally Sensitive Material.
"
Environmentally
Sensitive Material
" means oil, oil products and any other substance (including any chemical, gas or other hazardous
or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"
EU Bail-In
Legislation Schedule
" means the document described as such and published by the Loan Market Association (or any successor
person) from time to time.
"
Event
of Default
" means any of the events or circumstances described in Clause 19.1 (
Events of Default
).
"
Facility
Office
" means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes
a Lender (or, following that date, by not less than 5 Business Days' written notice) as the office or offices through which it
will perform its obligations under this Agreement.
"
FATCA
"
means
|
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations or other official guidance;
|
|
|
(b)
|
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating
to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation
of paragraph (a) above; or
|
|
|
(c)
|
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal
Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
"
FATCA
Application Date
" means:
|
|
(a)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code
(which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
|
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code
(which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources
within the US), 1 January 2019; or
|
|
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling
within paragraphs (a) or (b) above, 1 January 2019,
|
or, in each case, such other date
from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after
the date of this Agreement.
"
FATCA
Deduction
" means a deduction or withholding from a payment under a Finance Document required by or under FATCA.
"
FATCA
Exempt Party
" means a party to a Finance Document that is entitled to receive payments free from any FATCA Deduction.
"
Fair
Market Value
" means, in relation to a Ship, a valuation of its market price as determined in accordance with Clause
15.3 (
Valuation of Ships
).
"
Fee Letter
"
means any letter or letters dated on or about the date of this Agreement between any of the Mandated Lead Arrangers, the Agent
and the Security Trustee and the Borrower setting out any of the fees referred to in Clause 20.1 (
Fees
).
"
Finance
Documents
" means:
|
|
(c)
|
each Drawdown Notice;
|
|
|
(e)
|
the Deeds of Covenant;
|
|
|
(f)
|
the General Assignments;
|
|
|
(h)
|
any other document (whether creating a Security Interest or not, other than a Manager’s Undertaking)
which is executed at any time by the Borrower or any other person as security for, or to establish any form of subordination or
priorities arrangement in relation to, any amount payable to the Lenders under this Agreement or any of the other documents referred
to in this definition; or
|
|
|
(i)
|
any other document designated as such by the Agent and the Borrower.
|
"
Financial
Indebtedness
" means, in relation to a person (the "
debtor
"), a liability of the debtor:
|
|
(a)
|
for principal, interest or any other sum payable in respect of any moneys borrowed or raised by
the debtor;
|
|
|
(b)
|
under any loan stock, bond, note or other security issued by the debtor;
|
|
|
(c)
|
under any acceptance credit, guarantee or letter of credit facility made available to the debtor;
|
|
|
(d)
|
any amount raised under any other transaction (including any forward sale or purchase, sale and
sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under
IFRS;
|
|
|
(e)
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse
basis);
|
|
|
(f)
|
under a financial lease, a deferred purchase consideration arrangement or any other agreement having
the commercial effect of a borrowing or raising of money by the debtor;
|
|
|
(g)
|
under any foreign exchange transaction, any interest or currency swap or any other kind of derivative
transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of
mutual liabilities, the liability of the debtor for the net amount; or
|
|
|
(h)
|
under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability
of another person which would fall within paragraphs (a) to (e) if the references to the debtor referred to the other person.
|
"
Funding
Rate
"
means any individual rate notified by a Lender to the Agent pursuant to sub-paragraph (ii) of paragraph
(a) of Clause 5.9 (
Cost of funds
).
"
General
Assignment
" means, in relation to each Ship, a deed to be executed by the Borrower in favour of the Security Trustee
creating security in respect of the Earnings, the Insurances and any Requisition Compensation relating to that Ship and any Long
Term Charter in relation to that Ship and any guarantee of such charter in the Agreed Form.
"
Group
"
means the Borrower and each of its subsidiaries.
"
Holding
Company
" means, in relation to a person, any other person in relation to which it is a subsidiary.
"
IFRS
"
means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant
financial statements.
"
Impaired
Agent
" means the Agent at any time when:
|
|
(a)
|
it has failed to make (or has notified a party to a Finance Document that it will not make) a payment
required to be made by it under the Finance Documents by the due date for payment;
|
|
|
(b)
|
the Agent otherwise rescinds or repudiates a Finance Document;
|
|
|
(c)
|
(if the Agent is also a Lender), it is a Defaulting Lender under paragraph (a) or (b) of the definition
of "Defaulting Lender"; or
|
|
|
(d)
|
an Insolvency Event has occurred and is continuing with respect to the Agent;
|
unless, in the case of paragraph (a)
above:
|
|
(i)
|
its failure to pay is caused by:
|
|
|
(A)
|
administrative or technical error; or
|
|
|
(B)
|
a Disruption Event; and
|
|
|
(ii)
|
payment is made within 10 Business Days of its due date; or
|
|
|
(iii)
|
the Agent is disputing in good faith whether it is contractually obliged to make the payment in
question.
|
"
Insolvency
Event
" in relation to a Lender means that Lender:
|
|
(a)
|
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
|
|
(b)
|
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally
to pay its debts as they become due;
|
|
|
(c)
|
makes a general assignment, arrangement, or composition with or for the benefit of its creditors;
|
|
|
(d)
|
institutes or has instituted against it, by a regulator, supervisor or any similar official with
primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation
or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief
under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up
or liquidation by it or such regulator, supervisor or similar official;
|
|
|
(e)
|
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other
relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for
its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding
or petition is instituted or presented by a person or entity not described in paragraph (d) above and:
|
|
|
(i)
|
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making
of an order for its winding-up or liquidation; or
|
|
|
(ii)
|
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution
or presentation thereof;
|
|
|
(f)
|
has a resolution passed for its winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger);
|
|
|
(g)
|
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long
as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a
person or entity described in paragraph (d) above);
|
|
|
(h)
|
has a secured party take possession of all or substantially all its assets or has a distress, execution,
attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and
such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within
30 days thereafter;
|
|
|
(i)
|
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction,
has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or
|
|
|
(j)
|
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the foregoing acts.
|
"
Insurances
"
means, in relation to a Ship:
|
|
(a)
|
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity
or war risks association, which are effected in respect of that Ship, its Earnings or otherwise in relation to it; and
|
|
|
(b)
|
all rights and other assets relating to, or derived from, any of the foregoing, including any rights
to a return of a premium.
|
"
Interest
Period
" means a period determined in accordance with Clause 6 (
Interest Periods
).
"
Interpolated
Screen Rate
" means, in relation to the Loan or any part of the Loan, the rate (rounded to the same number of decimal
places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
|
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which
is less than the Interest Period of the Loan or that part of the Loan; and
|
|
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which
exceeds the Interest Period of the Loan or that part of the Loan,
|
each as of the Specified Time for
dollars.
"
ISM Code
"
means the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention (including the guidelines
on its implementation), adopted by the International Maritime Organisation, as the same may be amended or supplemented from time
to time (and the terms "
safety management system
", "
Safety Management Certificate
" and "
Document
of Compliance
" have the same meanings as are given to them in the ISM Code).
"
ISPS Code
"
means the International Ship and Port Facility Security (ISPS) Code as adopted by the International Maritime Organization's (IMO)
Diplomatic Conference of December 2002, as the same may be amended or supplemented from time to time.
"
ISSC
"
means an International Ship Security Certificate issued under the ISPS Code.
"
K-sure
Advance
" means, in respect of each Tranche, an Advance in an amount equal to 75 per cent. of the amount of that
Tranche.
"
K-sure
"
means Korea Trade Insurance Corporation at 2-16th Floors, Korea Trade Insurance Corporation Building, 14, Jong-ro, Jongro-gu, Seoul,
03187, Republic of Korea.
"
K-sure
Agent
" means DNB Bank ASA, London Branch, as agent of the other Creditor Parties with respect to the K-sure Insurance
Policy, acting in such capacity through its office at 8
th
Floor, The Walbrook Building, 25 Walbrook, London EC4N 8AF.
"
K-sure
Insurance Policy
" means an insurance policy issued or to be issued by K-sure in favour of the K-sure Lenders together
with the General Terms and Conditions of Medium and Long Term Export Insurance (Buyer's Credit, Standard Type) and the special
terms and conditions each attached to the insurance policy providing political and commercial risks cover and otherwise setting
out the terms and conditions of K-sure's insurance cover for an amount of 95 per cent. of each K-sure Advance and accrued interest
(other than interest payable under Clause 7 (
Default Interest
)) on it.
"
K-sure
Lender Commitment
" means, in relation to a K-sure Lender, the amount set opposite its name in Part B of Schedule
1 (
Lenders and Commitments
), or, as the case may require, the amount specified in the relevant Transfer Certificate, as
that amount may be reduced, cancelled or terminated in accordance with this Agreement (and "
Total
K-sure Lender Commitments
" means the aggregate of the K-sure Lender Commitments of all the K-sure Lenders).
"
K-sure
Premium
" means the amount of premium in respect of the K-sure Advances being payable or (as the context may require)
paid to K-sure under the terms of the K-sure Insurance Policy for such K-sure Advances on or prior to the first Drawdown Date.
"
Lender
"
means:
|
|
(a)
|
any Commercial Lender; and
|
acting through its branch indicated
in Schedule 1 (
Lenders and Commitments
) (or through another branch notified to the Borrower under Clause 31.13 (
Change
of lending office
) or its transferee, successor or assign.
"
LIBOR
"
means, in relation to the Loan or any part of the Loan:
|
|
(a)
|
the applicable Screen Rate as of the Specified Time for dollars and for a period equal in length
to the Interest Period of the Loan or that part of the Loan; or
|
|
|
(b)
|
as otherwise determined pursuant to Clause 5.6 (
Unavailability of Screen Rate
),
|
and if, in either case, that rate
is less than zero, LIBOR shall be deemed to be zero.
"
Loan
"
means the principal amount for the time being outstanding under this Agreement.
"
Long Term
Charter
" means any charter or other contract of employment for a Ship which is entered into by the Borrower for a term
which exceeds 36 months’ duration.
"
Manager's
Undertaking
" means, in relation to a Ship, the undertaking to be given by the Approved Manager in favour of the
Security Trustee in the Agreed Form.
"
Mandated
Lead Arrangers
" means DNB (UK) Limited, ABN Amro Bank
N.V. and ING Bank, a branch of ING-DiBa AG.
"
Major
Casualty
" means, in relation to a Ship, any casualty to that Ship in respect of which the claim or the aggregate
of the claims against all insurers, before adjustment for any relevant franchise or deductible, exceeds $5,000,000 or the equivalent
in any other currency.
"
Majority
Lenders
" means Lenders the aggregate of whose Commitments total at least 66 per cent. of the Total Commitments.
"
Margin
"
means:
|
|
(a)
|
in respect of each Commercial Advance, 1.95 per cent. per annum; and
|
|
|
(b)
|
in respect of each K-sure Advance, 1.50 per cent. per annum.
|
"
Maturity
Date
" means 12 January 2029.
"
Mortgage
"
means, in relation to each Ship, a first priority or preferred (as the case may be) mortgage on that Ship in the form appropriate
to the relevant Approved Flag in each case executed by the Borrower in favour of the Security Trustee (and/or such other Creditor
Parties as may be appropriate in the opinion of the Agent and in the context of the relevant Approved Flag), each such mortgage
to be in the Agreed Form and, where the relevant Approved Flag is Belgian or French flag, the amount secured by such mortgage shall
be limited to 125 per cent. of the Fair Market Value of the relevant Ship as at the date of the relevant mortgage.
"
Non-Consenting
Lender
" means any Lender which does not and continues not to consent or agree to:
|
|
(a)
|
a request of the Borrower or the Agent (at the request of the Borrower) to give a consent in relation
to, or to agree to a waiver or amendment of, any provision of the Finance Documents;
|
|
|
(b)
|
the consent, waiver or amendment in question requires the approval of all of the Lenders; and
|
|
|
(c)
|
Lenders whose Commitments aggregate more than 66
2
/
3
per cent. of the Total
Commitments have consented or agreed to such waiver or amendment.
|
"
Notifying
Lender
" has the meaning given in Clause 23 (
Illegality, etc.
) or Clause 29.1 (
Increased costs
) as
the context requires.
"
Payment
Currency
" has the meaning given in Clause 21.4 (
Currency indemnity
).
"
Parallel
Debt
" means any amount which the Borrower owes to the Security Trustee under Clause 25.2 (
Parallel Debt (Covenant
to pay the Security Trustee)
) or under that clause as incorporated by reference or in full in any other Finance Document.
"
Party
"
means a party to this Agreement.
"
Permitted
Holders
" means each of Saverco and Victrix (and (in each case) any parallel vehicle thereof and their respective
alternative investment vehicles) and their affiliates.
"
Permitted
Security Interests
" means:
|
|
(a)
|
Security Interests created by the Finance Documents;
|
|
|
(b)
|
liens for unpaid master's and crew's wages in accordance with usual maritime practice, provided
such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the Borrower in good
faith by appropriate steps);
|
|
|
(d)
|
liens arising by operation of law for not more than 2 months' prepaid hire under any charter in
relation to a Ship not prohibited by this Agreement;
|
|
|
(e)
|
liens for master's disbursements incurred in the ordinary course of trading and any other lien
arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of a Ship, provided such
liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the Borrower in good faith
by appropriate steps);
|
|
|
(f)
|
any Security Interest created in favour of a plaintiff or defendant in any action of the court
or tribunal before whom such action is brought as security for costs and expenses where the Borrower is prosecuting or defending
such proceedings or arbitration in good faith by appropriate steps provided such Security Interest does not (and is not likely
to) result in any sale, forfeiture or loss of a Ship; and
|
|
|
(g)
|
Security Interests arising by operation of law in respect of taxes which are not overdue for payment
or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been
made.
|
"
Pertinent
Document
" means:
|
|
(a)
|
any Finance Document;
|
|
|
(b)
|
any policy or contract of insurance contemplated by or referred to in Clause 13 (
Insurance
)
or any other provision of this Agreement or another Finance Document;
|
|
|
(c)
|
any other document contemplated by or referred to in any Finance Document; and
|
|
|
(d)
|
any document which has been or is at any time sent by or to a Servicing Bank in contemplation of
or in connection with any Finance Document or any policy, contract or document falling within paragraphs (c) or (d).
|
"
Pertinent
Jurisdiction
" in relation to a company, means:
|
|
(b)
|
the country under the laws of which the company is incorporated or formed;
|
|
|
(c)
|
a country in which the company has the centre of its main interests or in which the company's central
management and control is or has recently been exercised;
|
|
|
(d)
|
a country in which the overall net income of the company is subject to corporation tax, income
tax or any similar tax;
|
|
|
(e)
|
a country in which assets of the company (other than securities issued by, or loans to, related
companies) having a substantial value are situated, in which the company maintains a branch or a permanent place of business, or
in which a Security Interest created by the company must or should be registered in order to ensure its validity or priority; and
|
|
|
(f)
|
a country the courts of which have jurisdiction to make a winding up, administration or similar
order in relation to the company, whether as main or territorial or ancillary proceedings or which would have such jurisdiction
if their assistance were requested by the courts of a country referred to in paragraphs (b) or (c).
|
"
Pertinent
Matter
" means:
|
|
(a)
|
any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document;
or
|
|
|
(b)
|
any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph
(a);
|
and covers any such transaction,
matter or statement, whether entered into, arising or made at any time before the signing of this Agreement or on or at any time
after that signing.
"
Potential
Event of Default
" means an event or circumstance which, with the giving of any notice, the lapse of time, a reasonable
determination of the Majority Lenders and/or the satisfaction of any other condition, would constitute an Event of Default.
"
Quotation
Date
" means, in relation to any Interest Period (or any other period for which an interest rate is to be determined
under any provision of a Finance Document), 3 Business days before the first day of that period or the day on which quotations
would ordinarily be given by leading banks in the London Interbank Market for deposits in the currency in relation to which such
rate is to be determined for delivery on the first day of that Interest Period or other period.
"
Receiver
"
means a receiver or receiver and manager or administrative receiver of the whole or any part of the Security Assets.
"
Reference
Bank
" means DNB Bank ASA and its successors and assigns and/or such other entities as may be appointed by the Agent
in consultation with the Borrower.
"
Reference
Bank Quotation
" means any quotation supplied to the Agent by a Reference Bank.
"
Relevant
Person
" means:
|
|
(b)
|
each subsidiary of the Borrower; and
|
|
|
(c)
|
all respective directors, officers, employees, agents and representatives of each of the persons
mentioned in paragraphs (a) to (b) above;
|
"
Relevant
Jurisdiction
" means, in relation to the Borrower:
|
|
(a)
|
the jurisdiction under who laws the Borrower is incorporated as at the date of this Agreement;
|
|
|
(b)
|
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction
Security created, or intended to be created, by it is situated;
|
|
|
(c)
|
any jurisdiction where it conducts its business; and
|
|
|
(d)
|
the jurisdiction whose laws govern the perfection of any of the Finance Documents entered into
by it.
|
"
Repayment
Date
" means a date on which a repayment is required to be made under Clause 8 (
Repayment, Prepayment and Cancellation
).
"
Representative
"
means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
"
Requisition
Compensation
" includes all compensation or other moneys payable by reason of any act or event such as is referred
to in paragraph (b) of the definition of "
Total Loss
".
"
Resolution
Authority
" means any body which has authority to exercise any Write-down and Conversion Powers.
"
Restricted
Party
" means a person:
|
|
(a)
|
that is listed on any Sanctions List (whether designated by name or by reason of being included
in a class of person);
|
|
|
(b)
|
that is domiciled, registered as located or having its main place of business in, or is incorporated
under the laws of, a country which is subject to Sanctions Laws which attach legal effect to being domiciled, registered as located
or having its main place of business in such country; or
|
|
|
(c)
|
that is directly or indirectly owned or controlled by a person referred to in paragraph (a) and/or
(b) above; or
|
|
|
(d)
|
with which any member of the Group is prohibited from dealing or otherwise engaging in a transaction
with by any Sanctions Laws;
|
"
Sanctions
Authority
" means the Norwegian State, the United Nations, the United Kingdom, the European Union, the member states
of the European Union, the United States of America, Australia and Canada and any authority acting on behalf of any of them in
connection with Sanctions Laws.
"
Sanctions
Laws
" means the economic or financial sanctions laws and/or regulations, trade embargoes, prohibitions, restrictive
measures, decisions, executive orders or notices from regulators implemented, adapted, imposed, administered, enacted and/or enforced
by any Sanctions Authority.
"
Sanctions
List
" means any list of persons or entities published in connection with Sanctions Laws by or on behalf of any
Sanctions Authority as amended, revised, supplemented or substituted from time to time.
"
Saverco
"
means Saverco NV, a company incorporated in Belgium whose registered office is at de Gerlachekaai 20, B-2000 Antwerp, Belgium.
"
Screen
Rate
" means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other
person which takes over the administration of that rate) for dollars for the relevant period displayed (before any correction,
recalculation or republication by the administrator) on page LIBOR01 of the Thomson Reuters screen (or any replacement Thomson
Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from
time to time in place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another page or
service displaying the relevant rate after consultation with the Borrower.
"
Secured
Liabilities
" means all liabilities which the Borrower, the Security Parties or any of them have, at the date of
this Agreement or at any later time or times, under or in connection with any Finance Document or any judgment relating to any
Finance Document; and for this purpose, there shall be disregarded any total or partial discharge of these liabilities, or variation
of their terms, which is effected by, or in connection with, any bankruptcy, liquidation, arrangement or other procedure under
the insolvency laws of any country.
"
Security
Assets
" means all of the assets of the Borrower which from time to time are, or are expressed to be, the subject
of the Transaction Security.
"
Security
Interest
" means:
|
|
(a)
|
a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other
security interest of any kind;
|
|
|
(b)
|
the security rights of a plaintiff under an action in rem; and
|
|
|
(c)
|
any arrangement entered into by a person (A) the effect of which is to place another person (B)
in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over
an asset of A; but this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard
terms of business of a bank or financial institution.
|
"
Security
Party
" means any person other than the Borrower (except a Creditor Party) who, as a surety or mortgagor, as a party
to any subordination or priorities arrangement, or in any similar capacity, executes a document falling within the last paragraph
of the definition of "Finance Documents".
"
Security
Period
" means the period commencing on the date of this Agreement and ending on the date on which the Agent notifies
the Borrower, the Security Parties and the other Creditor Parties that:
|
|
(a)
|
all amounts which have become due for payment by the Borrower or any Security Party under the Finance
Documents have been paid;
|
|
|
(b)
|
no amount is owing or has accrued (without yet having become due for payment) under any Finance
Document and all Commitments have terminated;
|
|
|
(c)
|
neither the Borrower nor any Security Party has any future or contingent liability under Clause
20 (
Fees, Expenses
), Clause 21 (
Indemnities
) or Clause 22 (
No Set-Off or Tax Deduction
) or any other provision
of this Agreement or another Finance Document; and
|
|
|
(d)
|
the Agent, the Security Trustee and the Majority Lenders, acting reasonably, consider that there
is no significant risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed
or adjusted, in any present or possible future bankruptcy of the Borrower or a Security Party or in any present or possible future
proceeding relating to a Finance Document or any asset covered (or previously covered) by a Security Interest created by a Finance
Document.
|
"
Security
Property
" means:
|
|
(a)
|
the Transaction Security expressed to be granted in favour of the Security Trustee as trustee for
the Creditor Parties and all proceeds of that Transaction Security;
|
|
|
(b)
|
all obligations expressed to be undertaken by the Borrower to pay amounts in relation to the Secured
Liabilities to the Security Trustee as trustee for the Creditor Parties and secured by the Transaction Security together with all
representations and warranties expressed to be given by the Borrower or any other person in favour of the Security Trustee as trustee
for the Creditor Parties;
|
|
|
(c)
|
the Security Trustee's interest in any turnover trust created under the Finance Documents;
|
|
|
(d)
|
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual
or contingent, which the Security Trustee is required by the terms of the Finance Documents to hold as trustee on trust for the
Creditor Parties,
|
except:
|
|
(i)
|
rights intended for the sole benefit of the Security Trustee; and
|
|
|
(ii)
|
any moneys or other assets which the Security Trustee has transferred to the Agent or (being entitled
to do so) has retained in accordance with the provisions of this Agreement.
|
"
Security
Trustee
" means DNB Bank ASA, London Branch, acting in such capacity through its office at 8
th
Floor,
The Walbrook Building, 25 Walbrook, London EC4N 8AF, or any successor of it.
"
Servicing
Bank
" means the Agent or the Security Trustee.
"
Ship
"
means Ship A or Ship B.
"
Ship
A
" means m.v. ARDECHE, details of which are set out opposite its name in Schedule 5 (
Details of Ships
).
"
Ship
B
" means m.v. AQUITAINE, details of which are set out opposite its name in Schedule 5 (
Details of Ships
).
"
Shipbuilding
Contract
" means:
|
|
(a)
|
in respect of Ship A, the Shipbuilding Contract dated 20 January 2014 and originally made between
Hyundai Samho Heavy Industries Co., Ltd. and Prosperous Shipping LLC as subsequently novated to the Borrower pursuant to a novation
agreement dated 24 August 2016; and
|
|
|
(b)
|
in respect of Ship B, the Shipbuilding Contract dated 20 January 2014 and originally made between
Hyundai Samho Heavy Industries Co., Ltd. and Select Shipping LLC as subsequently novated to the Borrower pursuant to a novation
agreement dated 24 August 2016.
|
"
Specified
Time
" means a day or time determined in accordance with Schedule 7 (
Timetables
).
"
Tankers
International Pool
" means the Tankers International tanker pool governed by a pooling agreement entered into in
January 2000 (as amended and supplemented from time to time) made between the participants in the pool and Tankers International
LLC of 3A Panteli Modestou Street, 3090 Limassol, Cyprus.
"
Tax
Deduction
" has the meaning given in Clause 22.5 (
Tax Deduction
).
"
Third
Parties Act
" has the meaning given in Clause 37.4 (
Third Party rights
).
"
Total
Commitments
" means the aggregate of the Total Commercial Lender Commitments and the Total K-sure Lender Commitments.
"
Total
Loss
" means, in relation to a Ship:
|
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of that Ship;
|
|
|
(b)
|
any expropriation, confiscation, requisition or acquisition of that Ship, whether for full consideration,
a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government
or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding
a requisition for hire for a fixed period not exceeding 1 year without any right to an extension) unless it is within 90 days redelivered
to the Borrower's full control;
|
|
|
(c)
|
any condemnation of that Ship by any tribunal or by any person claiming to be a tribunal; and
|
|
|
(d)
|
any arrest, capture, seizure or detention of that Ship (including piracy or theft) unless it is
within 90 days redelivered to the Borrower's (as the case may be) full control.
|
"
Total
Loss Date
" means, in relation to a Ship:
|
|
(a)
|
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown,
the date when that Ship was last heard of;
|
|
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earliest
of:
|
|
|
(i)
|
the date on which a notice of abandonment is given to the insurers; and
|
|
|
(ii)
|
the date of any compromise, arrangement or agreement made by or on behalf of the Borrower with
that Ship's insurers in which the insurers agree to treat that Ship as a total loss; and
|
|
|
(c)
|
in the case of any other type of total loss, on the date (or the most likely date) on which it
appears to the Agent that the event constituting the total loss occurred.
|
"
Tranche
"
means the principal amount of each borrowing by the Borrower under this Agreement.
"
Transaction
Security"
means the Security Interest created or evidenced or expressed to be created or evidenced under the Finance
Documents.
"
Transfer
Certificate
" has the meaning given in Clause 31.2 (
Transfer by a Lender
).
"
Unpaid
Sum
" means any sum due and payable but unpaid by the Borrower under the Finance Documents.
"
VAT
"
means:
|
|
(a)
|
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system
of value added tax (EC Directive 2006/112); and
|
|
|
(b)
|
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution
for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
"
Victrix
"
means Victrix NV, a company incorporated in Belgium whose registered office is at Le Grellelei 20, 2600 Berchem, Belgium.
"
Write-down
and Conversion Powers
" means:
|
|
(a)
|
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time
to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
|
|
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
|
|
(i)
|
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person
that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation
in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those
powers; and
|
|
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation.
|
|
|
1.2
|
Construction of certain terms
|
In this Agreement:
"
administration
notice
" means a notice appointing an administrator, a notice of intended appointment and any other notice which is required
by law (generally or in the case concerned) to be filed with the court or given to a person prior to, or in connection with, the
appointment of an administrator.
"
approved
"
means, for the purposes of Clause 13 (
Insurance
), approved in writing by the Agent acting with the authorisation of the
Majority Lenders (which authorisation shall not be unreasonably withheld).
"
asset
"
includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or
other payment.
"
company
"
includes any partnership, joint venture and unincorporated association.
"
consent
"
includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalisation.
"
contingent
liability
" means a liability which is not certain to arise and/or the amount of which remains unascertained.
"
document
"
includes a deed; also a letter or fax.
"
excess
risks
" means, in relation to a Ship, the proportion of claims for general average, salvage and salvage charges not recoverable
under the hull and machinery policies in respect of the Ship in consequence of its insured value being less than the value at which
the Ship is assessed for the purpose of such claims.
"
expense
"
means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable value added or other
tax.
"
law
"
includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution
of the Council of the European Union, the European Commission, the United Nations or its Security Council.
"
legal
or administrative action
" means any legal proceeding or arbitration and any administrative or regulatory action or investigation.
"
liability
"
includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or
otherwise.
"
months
" shall be
construed in accordance with Clause 1.3 (
Meaning of "month"
).
"
obligatory
insurances
" means, in relation to a Ship, all insurances effected, or which the Borrower in relation to that Ship is obliged
to effect or procure are effected, under Clause 13 (
Insurance
) or any other provision of this Agreement or another Finance
Document.
"
parent company
"
has the meaning given in Clause 1.4 (
Meaning of "subsidiary"
).
"
person
"
includes any company; any state, political sub-division of a state and local or municipal authority; and any international organisation.
"
policy
",
in relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance
or its terms.
"
protection
and indemnity risks
" means the usual risks covered by a protection and indemnity association including pollution risks
and the 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 in them of clause 6 of the International Hull Clauses (01/11/02
or 01/11/03), clause 8 of the Institute Time Clauses (Hulls) (1/11/1995 or 1/10/83) or the Institute Amended Running Down Clause
(1/10/71) or any equivalent provision.
"
regulation
"
includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation.
"
subsidiary
" has
the meaning given in Clause 1.4 (
Meaning of "subsidiary"
).
"
tax
"
includes any present or future tax, duty, impost, levy or charge of any kind which is imposed by any state, any political sub-division
of a state or any local or municipal authority (including any such imposed in connection with exchange controls), and any connected
penalty, interest or fine.
"
war risks
"
includes the risk of mines and all risks excluded by clause 29 of the International Hull Clauses (1/11/02 or 1/11/03), clause 24
of the Institute Time Clauses (Hulls) (1/11/95) or clause 23 of the Institute Time Clauses (Hulls) (1/10/83).
A period of 1 or more "
months
"
ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started
("
the numerically corresponding day
"), but:
|
|
(a)
|
on the Business Day following the numerically corresponding day if the numerically corresponding
day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically
corresponding day; or
|
|
|
(b)
|
on the last Business Day in the relevant calendar month, if the period started on the last Business
Day in a calendar month or if the last calendar month of the period has no numerically corresponding day;
|
and "
month
" and
"
monthly
" shall be construed accordingly.
|
|
1.4
|
Meaning of "subsidiary"
|
A company (S) is a subsidiary of
another company (P) if:
|
|
(a)
|
a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited
rights to capital and income distributions) are directly owned by P or are indirectly attributable to P; or
|
|
|
(b)
|
P has direct or indirect control over a majority of the voting rights attaching to the issued shares
of S; or
|
|
|
(c)
|
P has the direct or indirect power to appoint or remove a majority of the directors of S; or
|
|
|
(d)
|
P otherwise has the direct or indirect power to ensure that the affairs of S are conducted in accordance
with the wishes of P;
|
and any company of which S is a subsidiary
is a parent company of S.
|
|
1.5
|
General Interpretation
|
In this Agreement:
|
|
(a)
|
references to, or to a provision of, a Finance Document or any other document are references to
it as amended or supplemented, whether before the date of this Agreement or otherwise;
|
|
|
(b)
|
references to, or to a provision of, any law include any amendment, extension, re-enactment or
replacement, whether made before the date of this Agreement or otherwise;
|
|
|
(c)
|
words denoting the singular number shall include the plural and vice versa;
|
|
|
(d)
|
Clauses 1.1 (
Definitions
) to 1.5 (
General Interpretation
) apply unless the contrary
intention appears;
|
|
|
(e)
|
an Event of Default or Potential Event of Default is "
continuing
" if it has not
been remedied or waived in writing; and
|
|
|
(f)
|
The Borrower acknowledges that:
|
|
|
(i)
|
in relation to matters which would adversely impact on the K-sure Insurance Policy or would result
in a derogation from express requirements of the K-sure Insurance Policy (a
K-sure Approval Matter
), each of the Agent and
the K-sure Lenders may be required to act or refrain from acting and to exercise any right, power, authority or discretion vested
in it under the Finance Documents in accordance with the K-sure Insurance Policy and with instructions duly given to it by K-sure
under or in connection with the K-sure Insurance Policy;
|
|
|
(ii)
|
if and whenever any such Creditor Party is expressed to be required to act "reasonably"
that Creditor Party shall be deemed to have so acted if it relates to a K-sure Approval Matter and if, and to the extent that,
it acts on the instructions of K-sure; and
|
|
|
(iii)
|
in the event of any conflict of inconsistency between the terms of this Agreement and the K-sure
Insurance Policy, the terms of the K-sure Insurance Policy shall prevail.
|
In interpreting a Finance Document
or any provision of a Finance Document, all clause, sub-clause and other headings in that and any other Finance Document shall
be entirely disregarded.
Subject to the other provisions of
this Agreement, the Lenders shall make available to the Borrower a term loan facility in an amount not exceeding the Total Commitments
in two Tranches, each Tranche to be in an amount equal to the lesser of (i) $55,000,000 and (ii) 65 per cent. of the Fair Market
Value of the Ship to which the Tranche relates calculated by reference to the valuations provided pursuant to Clause 9.1(a). Each
Tranche shall be split into (i) a Commercial Advance in the amount equal to 25 per cent. of the Tranche and (ii) a K-sure Advance
in the amount equal to 75 per cent. of the Tranche.
|
|
2.2
|
Lenders' participations
|
Subject to the other provisions of
this Agreement, each Lender shall participate in each Tranche in the proportion which, as at the relevant Drawdown Date, its Commitment
bears to the Total Commitments.
The Borrower undertakes with each
Creditor Party to use each Tranche only for the purposes stated in the preamble to this Agreement.
|
|
2.4
|
No obligations imposed on K-sure
|
K-sure shall not have any obligations
or liabilities under this Agreement unless and until it becomes a Lender in accordance with the terms of Clause 31.19 (
Transfers
to K-sure
) of this Agreement in which event its obligations and liabilities shall be limited to those it has as a Lender.
|
|
2.5
|
Obligations of the Borrower
|
The obligations of the Borrower under
this Agreement shall constitute absolute, unconditional and irrevocable financial obligations of the Borrower to the Creditor Parties.
Such obligations are independent and separate obligations to be performed or enforced irrespective of whether or not any person
has performed its obligations under any Shipbuilding Contract.
|
|
3
|
Position of the Lenders
|
The rights of the Lenders under this
Agreement are several.
|
|
3.2
|
Individual right of action
|
Each Lender shall be entitled to
sue for any amount which has become due and payable by the Borrower to it under a Finance Document without joining the Agent, the
Security Trustee, any Arranger or any other Lender as additional parties in the proceedings.
|
|
3.3
|
Proceedings requiring Majority Lender consent
|
Except as provided in Clause 3.2
(
Individual right of action
), no Lender may commence proceedings against the Borrower or any Security Party in connection
with a Finance Document without the prior consent of the Majority Lenders.
The obligations of the Lenders under
this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement shall not result in:
|
|
(a)
|
the obligations of the other Lenders being increased; nor
|
|
|
(b)
|
the Borrower, any Security Party or any other Lender being discharged (in whole or in part) from
its obligations under any Finance Document;
|
and in no circumstances shall a Lender
have any responsibility for a failure of another Lender to perform its obligations under this Agreement.
|
|
3.5
|
Security Trustee as joint and several creditor
|
|
|
(a)
|
The Borrower and each of the Creditor Parties agrees that the Security Trustee shall be the joint
creditor ("
hoofdelijke schuldeiser
") together with each other Creditor Party of each liability and obligation
of the Borrower towards any Creditor Party under any Finance Document, and that accordingly the Security Trustee will have its
own independent right to demand performance by the Borrower of those liabilities and obligations. However, any discharge of any
liability or obligation of the Borrower to one of the Security Trustee or another Creditor Party shall, to the same extent, discharge
the corresponding liability or obligation owing to the others.
|
|
|
(b)
|
Without limiting or affecting the Security Trustee's rights against the Borrower (whether under
this paragraph or under any other provision of the Finance Documents), the Security Trustee agrees with each other Creditor Party
(on a several and separate basis) that, subject as set out in the next sentence, it will not exercise its rights as a joint creditor
with a Creditor Party except with the consent of the relevant Creditor Party. However, for the avoidance of doubt, nothing in the
previous sentence shall in any way limit the Security Trustee's right to act in the protection or preservation of rights under
or to enforce any Finance Document (or to do any act reasonably incidental to any of the foregoing).
|
|
|
(c)
|
Subject to the provisions of this Clause 3.5 (
Security Trustee as joint and several creditor
),
the Security Trustee holds any security created by a Finance Document in its name and the Security Trustee shall have full and
unrestricted title to and authority in respect of that security, subject always to the terms of the Finance Documents.
|
|
|
4.1
|
Request for advance of a Tranche
|
Subject to the following conditions,
the Borrower may request that a Tranche be made by ensuring that the Agent receives a completed Drawdown Notice not later than
11.00 a.m. (London time) 3 Business Days prior to the intended Drawdown Date.
The conditions referred to in Clause
4.1 (
Request for advance of a Tranche
) are that:
|
|
(a)
|
a Drawdown Date has to be a Business Day during the Availability Period;
|
|
|
(b)
|
the amount of the Tranche complies with the requirements of Clause 2.1 (
Amount of facility
);
|
|
|
(c)
|
the Commercial Advance and K-sure Advance in respect of a Tranche shall be drawn down on the same
Drawdown Date;
|
|
|
(d)
|
the aggregate amount of the Tranches outstanding at any time shall not exceed the Total Commitments
at that time.
|
|
|
4.3
|
Notification to Lenders of receipt of a Drawdown Notice
|
The Agent shall promptly notify the
Lenders that it has received a Drawdown Notice and shall inform each Lender of:
|
|
(a)
|
the amount of the Tranche (and the Advances within that Tranche) and the Drawdown Date;
|
|
|
(b)
|
the amount of that Lender's participation in each Advance in respect of that Tranche; and
|
|
|
(c)
|
the duration of the Interest Period for that Tranche.
|
The Agent shall promptly after each
drawdown notify the K-sure Agent of the amount of the relevant Tranche and of the Drawdown Date.
|
|
4.5
|
Drawdown Notice irrevocable
|
A Drawdown Notice must be signed
by a duly authorised person on behalf of the Borrower; and once served, a Drawdown Notice cannot be revoked without the prior consent
of the Agent, acting with the authorisation of the Majority Lenders.
|
|
4.6
|
Lenders to make available Contributions
|
Subject to the provisions of this
Agreement, each Lender shall, on and with value on each Drawdown Date, make available to the Agent for the account of the Borrower
the amount due from that Lender on that Drawdown Date under Clause 2.2 (
Lenders' participations
).
|
|
4.7
|
Disbursement of a Tranche
|
Subject to the provisions of this
Agreement, the Agent shall on each Drawdown Date pay to, or for the account of, the Borrower the amounts which the Agent receives
from the Lenders under Clause 4.6 (
Lenders to make available Contributions
); and that payment shall be made to the account
which the Borrower specifies in the Drawdown Notice.
|
|
4.8
|
Disbursement of Tranche to third party
|
A payment by the Agent under Clause
4.7 (
Disbursement of a
Tranche) shall constitute the making of the relevant Tranche and the Borrower shall thereupon become
indebted, as principal and direct obligor, to each Lender in an amount equal to that Lender's Contribution.
|
|
4.9
|
Cancellation of Commitments
|
The Commitments which are not utilised
at the end of the Availability Period shall then be cancelled.
|
|
5.1
|
Payment of normal interest
|
Subject to the provisions of this
Agreement, interest on each Tranche in respect of an Interest Period shall be paid by the Borrower on the last date of that Interest
Period.
|
|
5.2
|
Normal rate of interest
|
Subject to the provisions of this
Agreement, the rate of interest on each Advance in respect of a Tranche in respect of an Interest Period shall be the aggregate
of the applicable Margin and LIBOR for that Interest Period.
|
|
5.3
|
Notification of rates of interest
|
|
|
(a)
|
The Agent shall notify the Borrower and each Lender of each rate of interest as soon as practicable
after each is determined.
|
|
|
(b)
|
The Agent shall promptly notify the Borrower of each Funding Rate relating to the Loan, any part
of the Loan or any Unpaid Sum.
|
|
|
5.4
|
Role of Reference Banks
|
|
|
(a)
|
No Reference Bank is under any obligation to provide a quotation or any other information to the
Agent.
|
|
|
(b)
|
No Reference Bank will be liable for any action taken by it under or in connection with any Finance
Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.
|
|
|
(c)
|
No Party (other than the relevant Reference Bank) may take any proceedings against any officer,
employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any
act or omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any Reference Bank Quotation,
and any officer, employee or agent of each Reference Bank may rely on this Clause 5.4 (
Role of Reference Banks
) subject
to Clause 37.4 (
Third Party rights
) and the provisions of the Third Parties Act.
|
|
|
5.5
|
Third Party Reference Banks
|
A Reference Bank which is not a Party
may rely on Clause 5.4 (
Role of Reference Banks
), Clause 5.13 (
Replacement of Screen Rate
) and Clause 33 (
Confidentiality
of Funding Rates and Reference Bank Quotations
) subject to Clause 37.4 (
Third Party rights
) and the provisions of the
Third Parties Act.
|
|
5.6
|
Unavailability of Screen Rate
|
|
|
(a)
|
Interpolated Screen Rate
: If no Screen Rate is available for LIBOR for the Interest Period
of the Loan or any part of the Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to
the Interest Period of the Loan or that part of the Loan.
|
|
|
(b)
|
Reference Bank Rate
: If no Screen Rate is available for LIBOR for:
|
|
|
(ii)
|
the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the
Interpolated Screen Rate,
|
the applicable LIBOR shall be the
Reference Bank Rate as of the Specified Time and for a period equal in length to the Interest Period of the Loan or that part of
the Loan.
|
|
(c)
|
Cost of funds
: If paragraph (b) above applies but no Reference Bank Rate is available for
dollars or the relevant Interest Period there shall be no LIBOR for the Loan or that part of the Loan (as applicable) and Clause
5.9 (
Cost of funds
) shall apply to the Loan or that part of the Loan for that Interest Period.
|
|
|
5.7
|
Calculation of Reference Bank Rate
|
|
|
(a)
|
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate
but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis
of the quotations of the remaining Reference Banks.
|
|
|
(b)
|
If at or about noon on the Quotation Date none or only one of the Reference Banks supplies a quotation,
there shall be no Reference Bank Rate for the relevant Interest Period.
|
If before close of business in London
on the Quotation Date for the relevant Interest Period the Agent receives notification from a Lender or Lenders (whose participations
in the Loan or the relevant part of the Loan exceed 50 per cent. of the Loan or the relevant part of the Loan as appropriate) (the
"
Affected Lender
") that the cost to it of funding its participation in the Loan or that part of the Loan from
whatever source it may reasonably select would be in excess of LIBOR then Clause 5.9 (
Cost of funds
) shall apply to the
Loan or that part of the Loan (as applicable) for the relevant Interest Period.
|
|
(a)
|
If this Clause 5.9 (
Cost of funds
) applies, the rate of interest on each Lender's share
of the Loan or the relevant part of the Loan for the relevant Interest Period shall be the percentage rate per annum which is the
sum of:
|
|
|
(i)
|
the applicable Margin; and
|
|
|
(ii)
|
the weighted average of the rates notified to the Agent by each Lender as soon as practicable and
in any event before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate
per annum the cost to the relevant Lender of funding its participation in the Loan or that part of the Loan from whatever source
it may reasonably select.
|
|
|
(b)
|
If paragraph (c) below does not apply and any rate notified to the Agent under sub-paragraph (ii)
of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.
|
|
|
(c)
|
If this Clause 5.9 (
Cost of funds
) applies pursuant to Clause 5.8 (
Market disruption
)
and:
|
|
|
(i)
|
a Lender's Funding Rate is less than LIBOR; or
|
|
|
(ii)
|
a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph
(a) above,
|
the cost to that Lender of funding
its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed, for the purposes of paragraph
(a) above, to be LIBOR.
|
|
(a)
|
The Borrower shall, within three Business Days of demand by a Creditor Party, pay to that Creditor
Party its Break Costs attributable to all or any part of the Loan or Unpaid Sum being paid by the Borrower on a day other than
the last day of an Interest Period for the Loan, the relevant part of the Loan or that Unpaid Sum.
|
|
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate
confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
|
|
5.11
|
Notification of market disruption
|
The Agent shall notify the Borrower
and each of the Lenders stating the circumstances falling within Clause 5.8 (
Market disruption
) which have caused its notice
to be given.
|
|
5.12
|
Suspension of drawdown
|
If the Agent’s notice under
Clause 5.11 (
Notification of market disruption
) is served before a Tranche is advanced the Lenders’ obligations to
make or participate in that Tranche (as the case may be) shall be suspended while the circumstances referred to in the Agent’s
notice continue.
|
|
5.13
|
Replacement of Screen Rate
|
|
|
(a)
|
If the Screen Rate is not available for dollars, any amendment or waiver which relates to providing
for another benchmark rate to apply in relation to dollars, in place of that Screen Rate (or which relates to aligning any provision
of a Finance Document to the use of that benchmark rate) may be made with the consent of the Majority Lenders and the Borrower.
|
|
|
(b)
|
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a)
above within three Business Days (unless the Borrower and the Agent agree to a longer time period in relation to any request) of
that request being made:
|
|
|
(i)
|
its Commitment shall not be included for the purpose of calculating the Total Commitments when
ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and
|
|
|
(ii)
|
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement
of any specified group of Lenders has been obtained to approve that request.
|
|
|
5.14
|
Negotiation of alternative rate of interest
|
If the Agent’s notice under
Clause 5.11 (
Notification of market disruption
) is served after a Tranche is advanced, the Borrower, the Agent and the Lenders
or (as the case may be) the Affected Lender shall use reasonable endeavours to agree, within the 15 days after the date on which
the Agent serves its notice under Clause 5.11 (
Notification of market disruption
) (the "
Negotiation Period
"),
an alternative interest rate or (as the case may be) an alternative basis for the Lenders or (as the case may be) the Affected
Lender to fund or continue to fund their or its Contribution during the relevant Interest Period concerned.
|
|
5.15
|
Application of agreed alternative rate of interest
|
Any alternative interest rate or
an alternative basis which is agreed during the Negotiation Period shall take effect in accordance with the terms agreed and shall,
with the prior consent of all the Lenders and the Borrower, be binding on all Parties.
|
|
5.16
|
Alternative rate of interest in absence of agreement
|
If an alternative interest rate or
alternative basis is not agreed within the Negotiation Period, and the relevant circumstances are continuing at the end of the
Negotiation Period, then the Agent shall, with the agreement of each Lender or (as the case may be) the Affected Lender, set an
interest period and interest rate representing the cost of funding of the Lenders or (as the case may be) the Affected Lender in
Dollars or in any available currency of their or its Contribution plus the applicable Margin; and the procedure provided for by
this Clause 5.16 (
Alternative rate of interest in absence of agreement
) shall be repeated if the relevant circumstances
are continuing at the end of the interest period so set by the Agent.
|
|
5.17
|
Notice of prepayment
|
If the Borrower does not agree with
an interest rate set by the Agent under Clause 5.16 (
Alternative rate of interest in absence of agreement
), the Borrower
may give the Agent not less than 10 Business Days’ notice of its intention to prepay the relevant Advance at the end of the
interest period set by the Agent.
A notice under Clause 5.17 (
Notice
of prepayment
) shall be irrevocable; the Agent shall promptly notify the Lenders or (as the case may require) the Affected
Lender of the Borrower's notice of intended prepayment; and on the last Business Day of the interest period set by the Agent, the
Borrower shall prepay (without premium or penalty) the relevant Advance, together with accrued interest thereon at the applicable
rate plus the applicable Margin.
|
|
5.19
|
Application of prepayment
|
The provisions of Clause 8 (
Repayment,
Prepayment and Cancellation
) shall apply in relation to the prepayment.
|
|
6.1
|
Commencement of Interest Periods
|
The first Interest Period applicable
to a Tranche shall commence on the Drawdown Date relating to that Tranche. Any Interest Period selected in respect of a Tranche
prior to the first Repayment Date for that Tranche which would otherwise extend beyond the first Repayment Date shall instead end
on that first Repayment Date. Each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.
|
|
6.2
|
Duration of normal Interest Periods
|
Subject to Clauses 6.3 (
Duration
of Interest Periods for repayment instalments
) and 6.4 (
No Interest Period to extend beyond Maturity Date
), each Interest
Period shall be:
|
|
(a)
|
1, 3 or 6 months as notified by the Borrower to the Agent not later than 11.00 a.m. (London time)
3 Business Days before the commencement of the Interest Period; or
|
|
|
(b)
|
3 months, if the Borrower fails to notify the Agent by the time specified in paragraph (a); or
|
|
|
(c)
|
in the case of the first Interest Period applicable to the second Tranche, a period ending on the
last day of the Interest Period applicable to the first Tranche;
|
|
|
(d)
|
in respect of a Commercial Tranche, such other period as the Agent (with the authorisation of all
the Lenders) may agree with the Borrower and, in respect of a K-sure Advance, such other period that is not more than 6 months
as the Agent (with the authorisation of all the K-sure Lenders) may agree with the Borrower.
|
|
|
6.3
|
Duration of Interest Periods for repayment instalments
|
In respect of an amount due to be
repaid under Clause 8 (
Repayment, Prepayment and Cancellation
) on a particular Repayment Date, an Interest Period shall
end on that Repayment Date.
|
|
6.4
|
No Interest Period to extend beyond Maturity Date
|
No Interest Period shall end after
the Maturity Date and any Interest Period which would otherwise extend beyond the Maturity Date shall instead end on the Maturity
Date.
|
|
6.5
|
Non-availability of matching deposits for Interest Period selected
|
If, after the Borrower has selected
and the Lenders have agreed an Interest Period longer than 3 months, any Lender notifies the Agent by 11.00 a.m. (London time)
on the second Business Day before the commencement of that Interest Period that it is not satisfied that deposits in Dollars for
a period equal to that Interest Period will be available to it in the London Interbank Market when that Interest Period commences,
that Interest Period shall be of 3 months unless otherwise agreed by the Agent (acting on the instructions of the Lenders) and
the Borrower.
If an Interest Period would otherwise
end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month
(if there is one) or the precedent Business Day (if there is not).
|
|
(a)
|
If the Borrower fails to pay any amount payable by it under a Finance Document on its due date,
interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at
a rate which, subject to paragraph (b) below, is two per centage points. per annum higher than the rate which would have been payable
if the Unpaid Sum had, during the period of non-payment, constituted part of the Loan in the currency of the Unpaid Sum for successive
Interest Periods, each of a duration selected by the Agent. Any interest accruing under this Clause 7.1 (
Default interest
)
shall be immediately payable by the Borrower on demand by the Agent.
|
|
|
(b)
|
If an Unpaid Sum consists of all or part of the Loan which became due on a day which was not the
last day of an Interest Period relating to the Loan or that part of the Loan:
|
|
|
(i)
|
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion
of the current Interest Period relating to the Loan or that part of the Loan; and
|
|
|
(ii)
|
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be two
per centage points. per annum higher than the rate which would have applied if that Unpaid Sum had not become due.
|
|
|
(c)
|
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at
the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
|
|
8
|
Repayment, Prepayment and Cancellation
|
|
|
8.1
|
Amount of repayment instalments
|
|
|
(a)
|
The Borrower shall repay each of the K-sure Advances by 24 equal consecutive semi-annual instalments
of $1,718,750 each.
|
|
|
(b)
|
The Borrower shall repay each of the Commercial Advances by 24 equal consecutive semi-annual instalments
of $114,585 each together with a balloon instalment of $10,999,960 payable simultaneously with the 24
th
and last such
instalment.
|
|
|
(c)
|
If less than the maximum amount of a Tranche is advanced, the repayment instalments for each Advance
under that Tranche, including the balloon instalment if applicable, shall be reduced proportionally.
|
|
|
(a)
|
The first instalment in respect of the K-sure Advance and the Commercial Advance under the first
Tranche to be drawn down shall be repaid on the date falling 6 months after the Delivery Date of the Ship to which that Tranche
relates and subsequent instalments shall be paid at semi-annual intervals. The last instalment and, if applicable, the balloon,
shall be repaid on the Maturity Date.
|
|
|
(b)
|
The first instalment in respect of the K-sure Advance and the Commercial Advance under the second
Tranche to be drawn down shall be repaid on the first Repayment Date in respect of the first Tranche and subsequent instalments
shall be paid at semi-annual intervals. The last instalment and, if applicable, the balloon instalment shall be repaid on the Maturity
Date.
|
|
|
(c)
|
The Facility Agent will provide a repayment schedule to the Lenders and the Borrower following
receipt of the first Drawdown Notice.
|
On the Maturity Date, the Borrower
shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance
Document.
|
|
(a)
|
Subject to the following conditions in Clauses 8.5 (
Conditions for voluntary prepayment
),
8.6 (
Effect of notice of prepayment
) and 8.7 (
Notification of notice of prepayment
), the Borrower may prepay the
whole or any part of the Loan.
|
|
|
(b)
|
Any voluntary prepayment pursuant to this Clause 8.4 (
Voluntary prepayment
) shall be applied
pro rata to each Tranche and, within each Tranche, pro rata to each Advance and pro rata to each repayment instalment then outstanding
(including any balloon) under each Advance.
|
|
|
8.5
|
Conditions for voluntary prepayment
|
The conditions referred to in Clause
8.4 (
Voluntary prepayment
) are that:
|
|
(a)
|
a partial prepayment shall be $1,000,000 or a higher integral multiple of $1,000,000;
|
|
|
(b)
|
the Agent has received from the Borrower at least 3 Business Days' prior written notice specifying
the amount to be prepaid and the date on which the prepayment is to be made; and
|
|
|
(c)
|
the Borrower has provided evidence satisfactory to the Agent that any consent required by the Borrower
or any Security Party in connection with the prepayment has been obtained and remains in force, and that any requirement relevant
to this Agreement which affects the Borrower or any Security Party has been complied with.
|
|
|
8.6
|
Effect of notice of prepayment
|
A prepayment notice may not be withdrawn
or amended without the consent of the Agent, given with the authorisation of the Majority Lenders, and the amount specified in
the prepayment notice shall become due and payable by the Borrower on the date for prepayment specified in the prepayment notice.
|
|
8.7
|
Notification of notice of prepayment
|
The Agent shall notify the Lenders
promptly upon receiving a prepayment notice, and shall provide any Lender which so requests with a copy of any document delivered
by the Borrower under paragraph (c) of Clause 8.5 (
Conditions for voluntary prepayment
).
|
|
8.8
|
Mandatory prepayment on sale or Total Loss
|
|
|
(a)
|
If a Ship is sold or becomes a Total Loss, the Borrower shall be obliged to prepay the outstanding
amount of the Tranche in respect of that Ship:
|
|
|
(i)
|
in the case of a sale, on or before the date on which the sale is completed by delivery of the
Ship to the buyer; or
|
|
|
(ii)
|
in the case of a Total Loss, on the earlier of the date falling 90 days after the Total Loss Date
and the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss.
|
|
|
(b)
|
This Clause 8.8 (
Mandatory prepayment on sale or Total Loss
) is without prejudice to the
provisions of Clause 15.1 (
Minimum required security cover
).
|
|
|
8.9
|
Mandatory prepayment and cancellation on Change of Control
|
If there is a Change of Control,
the Borrower shall be obliged to prepay the Loan in full and the Commitments shall terminate not later than 60 days following the
occurrence of the Change of Control.
|
|
8.10
|
Mandatory prepayment and cancellation on breach of financial covenants
|
If the Borrower is not in compliance
with the financial covenants in Clause 12.5 (
Financial Covenants
) at any time during the Security Period, the Borrower shall
be obliged to repay the Loan in full (and the Commitments shall be cancelled) not later than 5 days following a request in writing
from the Agent (acting on the instructions of the Majority Lenders) to the Borrower to repay the Loan.
|
|
8.11
|
Termination of K-sure Insurance Policy
|
If at any time during the Security
Period:
|
|
(a)
|
the K-sure Insurance Policy is terminated, repudiated, disclaimed, cancelled, becomes invalid or
unenforceable as against K-sure or otherwise ceases to be in full force and effect for whatever reason or it becomes unlawful or
impossible for K-sure to fulfil any of the obligations expressed to be assumed by it in the K-sure Insurance Policy; or
|
|
|
(b)
|
the Korean Government is no longer under a statutory obligation to cover the deficit incurred by
the “Trade Insurance Fund” managed by K-sure,
|
then the Agent
shall promptly notify the Borrower and as of the time of such notification:
|
|
(i)
|
the Lenders shall not be obliged to make any Tranche available;
|
|
|
(ii)
|
the Total Commitments shall be automatically cancelled; and
|
|
|
(iii)
|
the Borrower shall be obliged to prepay each K-sure Advance in full within 30 days or, if such
event is of a type that falls under paragraph (b), within 90 days.
|
|
|
8.12
|
Amounts payable on prepayment
|
A prepayment shall be made together
with accrued interest (and any other amount payable under Clause 21 (
Indemnities
) or otherwise) in respect of the amount
prepaid and, if the prepayment is not made on the last day of an applicable Interest Period, together with any sums payable under
Clause 21.1(b) but without premium or penalty.
No amount repaid may be reborrowed.
|
|
8.14
|
Voluntary cancellation of Commitments
|
Subject to the following conditions,
the Borrower may cancel the whole or any part of the Total Available Commitments.
|
|
8.15
|
Conditions for cancellation of Commitments
|
The conditions referred to in Clause
8.14 (
Voluntary cancellation of Commitments
) are that:
|
|
(a)
|
a partial cancellation shall be $1,000,000 or a higher integral multiple of $1,000,000; and
|
|
|
(b)
|
the Agent has received from the Borrower at least 3 Business Days' prior written notice specifying
the amount of the Total Commitments to be cancelled and the date on which the cancellation is to take effect.
|
|
|
8.16
|
Effect of notice of cancellation
|
The service of a cancellation notice
given under Clause 8.15 (
Conditions for cancellation of Commitments
) shall cause the amount of the Total Commitments specified
in the notice to be permanently cancelled and any partial cancellation shall be applied against the Commitment of each Lender pro
rata and the amount of the relevant Tranche(s).
|
|
(a)
|
Subject to paragraphs (b) and (c) below, a Lender may, by giving not less than 180 days prior written
notice to the Facility Agent, the other Lenders and K-sure require the Borrower to prepay its Contribution in respect of the Commercial
Advances and/or the K-sure Advances (the "
Relevant Contribution
")
on the seventh anniversary of the Delivery Date of Ship A such prepayment to be made together with accrued interest (and any other
amount payable under Clause 21 (
Indemnities
) or otherwise) in respect of the amount prepaid.
|
|
|
(b)
|
In addition to a Lender's right to give a notice prior to the 180 day period referred to in paragraph
(a) above, if another Lender has given a notice under paragraph (a), each other Lender shall have an additional 15 days to serve
such a notice (notwithstanding that that notice may be given less than 180 days before the seventh anniversary of the first Drawdown
Date).
|
|
|
(c)
|
A Lender may only serve a notice pursuant to paragraph (a) above in respect of its Contribution
in the K-sure Advances if such a notice has already been served by it in respect of its Contribution in the Commercial Advances.
|
|
|
(d)
|
If a Lender (the "
Outgoing Lender
")
serves a notice pursuant to paragraph (a) above, each other Lender shall have the option exercisable within 90 days of receipt
of such notice to assume the Relevant Contribution in such proportions to be agreed between the other Lenders.
|
|
|
(e)
|
If no Lender wishes to assume the Relevant Contribution or an agreement cannot be reached between
the other Lenders as to the proportions that will be assumed within 90 days of receipt of a notice pursuant to paragraph (a) above,
the Borrower may suggest another bank, financial institution, trust, fund or other entity (the "
Replacement
Lender
") to assume the Relevant Contribution, such Replacement Lender to be reasonably acceptable to the Lenders
(other than the Outgoing Lender) and K-sure.
|
|
|
(f)
|
The Relevant Contribution shall be transferred to the other Lenders or the Replacement Lender,
as applicable, no later than the seventh anniversary of the first Drawdown Date, pursuant to a Transfer Certificate to be executed
and delivered to the Agent by the Outgoing Lender and the other Lenders or the Replacement Lender, as applicable, as transferee
lenders and the provisions of Clauses 31.3 (
Transfer Certificate, delivery and notification
), 31.4 (
Effective Date of
Transfer Certificate
), 31.7 (
Effect of Transfer Certificate
) and 31.10 (
Authorisation of Agent to sign Transfer Certificates
)
shall apply to a transfer effected pursuant to this Clause.
|
|
|
8.18
|
Right of repayment and cancellation in relation to a single Lender
|
|
|
(a)
|
So long as no Potential Event of Default or Event of Default has occurred and is continuing, if:
|
|
|
(i)
|
any sum payable to any Lender by the Borrower is required to be increased under paragraph (c) of
Clause 22.2 (
Grossing-up for taxes
) or under that clause as incorporated by reference or in full in any other Finance Document;
or
|
|
|
(ii)
|
any Lender claims indemnification from the Borrower under Clause 21.1 (e) (
Indemnities regarding
borrowing and repayment of Loan
) or Clause 29 (
Increased Costs
);
|
the Borrower may whilst the circumstance
giving rise to the requirement for that increase or indemnification continues give the Agent notice of cancellation of the Commitment
of that Lender and its intention to procure the repayment of that Lender's participation in the Loan.
|
|
(b)
|
On receipt of a notice of cancellation referred to in paragraph (a) above, any Commitment of that
Lender shall immediately be reduced to zero.
|
|
|
(c)
|
On the last day of each Interest Period which ends after the Borrower has given notice of cancellation
under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Borrower in that notice), the Borrower
shall repay that Lender's participation in the Loan.
|
|
|
9.1
|
Documents, fees and no default
|
Each Lender's obligation to contribute
to a Tranche is subject to the following conditions precedent:
|
|
(a)
|
that, on or before the date of the first Drawdown Notice, the Agent receives the documents and
fees described in Part A of Schedule 3 (
Condition Precedent Documents
) in form and substance satisfactory to the Agent and
its lawyers;
|
|
|
(b)
|
that, on or before the Drawdown Date for each Ship:
|
|
|
(i)
|
the Agent receives the documents described in Part B of Schedule 3 (
Condition Precedent Documents
)
in form and substance satisfactory to the Agent and its lawyers; and
|
|
|
(ii)
|
during the period from 31 December 2016 to the date of the initial Drawdown Notice and the relevant
Drawdown Date, nothing shall have occurred (and neither the Agent nor any of the Lenders shall have become aware of any condition
or circumstance not previously known to it or them) which the Agent or the Lenders shall determine has had, or could reasonably
be expected to have, a material adverse effect (A) on the rights or remedies of the Lenders, (B) on the performance of the Borrower
and its subsidiaries of their respective obligations to the Lenders, (C) with respect to the Loan or (D) on the property, assets,
nature of assets, operations, liabilities or condition (financial or otherwise) of the Borrower or the Group;
|
|
|
(c)
|
that both at the date of each Drawdown Notice and at each Drawdown Date:
|
|
|
(i)
|
no Event of Default or Potential Event of Default has occurred and is continuing or would result
from the borrowing of the relevant Advance;
|
|
|
(ii)
|
the representations and warranties in Clause 10 (
Representations and Warranties
) and those
of the Borrower or any Security Party which are set out in the other Finance Documents would be true and not misleading if repeated
on each of those dates with reference to the circumstances then existing; and
|
|
|
(iii)
|
the Agent has not received, through the K-sure Agent, any notice from K-sure requesting the Lenders
to suspend the utilisation of the facility.
|
|
|
(iv)
|
none of the circumstances contemplated by Clause 5.8 (
Market disruption
) has occurred and
is continuing; and
|
|
|
(v)
|
since the filing of the latest audited financial statements, nothing shall have occurred (and neither
the Facility Agent nor any of the Lenders shall have become aware of any condition or circumstance not previously known to it or
them) which the Lenders shall determine has had, or could reasonably be expected to have, a material adverse effect (v) on the
rights or remedies of the Lenders, (w) on the performance of the Borrower and its subsidiaries of their obligations to the Lenders,
(x) with respect to this Agreement or (y) on the property, assets, nature of assets, operations, liabilities or condition (financial
or otherwise) of the Borrower and its subsidiaries;
|
|
|
(d)
|
that, if the ratio set out in Clause 15.1 (
Minimum required security cover
) were applied
on the basis of the most recently provided valuations and immediately following the making of the relevant Tranche, the Borrower
would not be obliged to provide additional security or prepay part of the Loan under that Clause; and
|
|
|
(e)
|
that the Agent has received, and found to be acceptable to it, any further opinions, consents,
agreements and documents in connection with the Finance Documents which the Agent may, with the authorisation of the Majority Lenders,
reasonably request by notice to the Borrower prior to the relevant Drawdown Date.
|
|
|
9.2
|
Waiver of conditions precedent
|
If the Majority Lenders, at their
discretion, permit a Tranche to be borrowed before certain of the conditions referred to in Clause 9.1 (
Documents, fees and
no default
) are satisfied, the Borrower shall ensure that those conditions are satisfied within 5 Business Days after the relevant
Drawdown Date (or such other period as the Agent may, with the authorisation of the Majority Lenders, specify).
|
|
10
|
Representations and Warranties
|
The Borrower represents and warrants
to each Creditor Party as follows.
It is duly incorporated,
validly existing and in good standing under the laws of, and has the centre of its main interests in, Belgium.
It has the corporate capacity, and
has taken all corporate action and obtained all consents necessary for it:
|
|
(a)
|
to execute the Finance Documents to which it is a party; and
|
|
|
(b)
|
to borrow under this Agreement and to make all the payments contemplated by, and to comply with,
those Finance Documents.
|
All the consents referred to in Clause
10.3 (
Corporate power
) remain in force and nothing has occurred which makes any of them liable to revocation.
|
|
10.5
|
Legal validity; effective Security Interests
|
The Finance Documents to which it
is a party, do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided for
in the Finance Documents):
|
|
(a)
|
constitute the Borrower's legal, valid and binding obligations enforceable against it in accordance
with their respective terms; and
|
|
|
(b)
|
create legal, valid and binding Security Interests enforceable in accordance with their respective
terms over all the assets to which they, by their terms, relate;
|
subject to any relevant mandatory
insolvency laws affecting creditors' rights generally and to general equity principles.
|
|
10.6
|
No third party Security Interests
|
Without limiting the generality of
Clause 10.5 (
Legal validity; effective Security Interests
), at the time of the execution and delivery of each Finance Document:
|
|
(a)
|
the Borrower will have the right to create all the Security Interests which that Finance Document
purports to create; and
|
|
|
(b)
|
no third party will have any Security Interest (except for Permitted Security Interests) or any
other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.
|
The execution by the Borrower of
each Finance Document to which it is a party, and the borrowing by the Borrower of the Loan, and the Borrower's compliance with
each Finance Document to which it is a party will not involve or lead to a contravention of:
|
|
(a)
|
any law or regulation; or
|
|
|
(b)
|
the constitutional documents of the Borrower; or
|
|
|
(c)
|
any contractual or other obligation or restriction which is binding on the Borrower or any of its
subsidiaries or any of their respective assets.
|
No Event of Default or Potential
Event of Default has occurred and is continuing.
All information which has been provided
in writing by or on behalf of the Borrower or any Security Party to the Mandated Lead Arrangers or any other Creditor Party in
connection with any Finance Document satisfied the requirements of Clause 11.4 (
Information provided to be accurate
); all
audited and unaudited accounts which have been so provided satisfied the requirements of Clause 11.6 (
Form of financial statements
);
and there has been no material adverse change in the property, assets, nature of assets, operations, liabilities or condition (financial
or otherwise) of the Borrower and its subsidiaries since 31 December 2016.
No litigation, arbitration or administrative
proceedings (including, but not limited to, investigative proceedings) involving the Borrower has been commenced or taken or, to
the Borrower's knowledge, is likely to be commenced or taken which, in any case, would be likely to have a material adverse effect
on the property, assets, nature of assets, operations, liabilities or condition (financial or otherwise) of the Borrower and its
subsidiaries or on the ability of the Borrower to perform its obligations under the Finance Documents.
|
|
10.11
|
Compliance with certain undertakings
|
At the date of this Agreement, the
Borrower is in compliance with Clauses 11.2 (
Title; negative pledge
) and 11.12 (
Principal place of business
).
The Borrower has paid all taxes applicable
to, or imposed on or in relation to, the Borrower and its business.
|
|
10.13
|
No money laundering
|
Without prejudice to the generality
of Clause 2.3 (
Purpose of Tranche
), in relation to the utilisation by the Borrower of the Tranches granted or to be granted
to it under this Agreement, the performance and discharge of its obligations and liabilities under the Finance Documents to which
it is a party, and the transactions and other arrangements effected or contemplated by the Finance Documents to which it is a party,
the Borrower confirms that it is acting for its own account and that the foregoing will not involve or lead to contravention of
any law, official requirement or other regulatory measure or procedure implemented to combat "money laundering" (as defined
in Article 1 of the Directive 2005/60/EC of the European Parliament and of the Council of the European Union of 26 October 2005).
|
|
10.14
|
Anti-Corruption Laws
|
The Borrower has conducted its business
in compliance with all applicable Anti-Corruption Laws and has instituted and maintained policies and procedures designed to promote
and achieve compliance with such laws.
Each Relevant Person has been and
is in compliance with all Sanctions Laws and no Relevant Person:
|
|
(a)
|
is a Restricted Party, or is involved in any transaction through which it is likely to become a
Restricted Party; or
|
|
|
(b)
|
has received formal notice in writing of any inquiry, claim, action, suit, proceeding or investigation
against it with respect to Sanctions Laws.
|
|
|
10.16
|
ISM Code and ISPS Code compliance
|
All requirements of the ISM Code
and the ISPS Code as they relate to the Borrower, the Approved Manager and the Ships have been, or will be, complied with at the
time of the Drawdown Date relating to each Ship.
|
|
10.17
|
Pari passu obligations
|
The payment obligations of the Borrower
under this Agreement and the other Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to the companies generally.
|
|
10.18
|
Environmental matters
|
Except as many have been disclosed
by the Borrower in writing to, and acknowledged in writing by, the Agent:
|
|
(a)
|
the Borrower has complied with the provisions of all Environmental Laws;
|
|
|
(b)
|
the Borrower has obtained all Environmental Approvals and is in compliance with all Environmental
Approvals;
|
|
|
(c)
|
the Borrower has not received notice of any Environmental Claim that alleges that it is not in
compliance with any Environmental Law of any Environmental Approval;
|
|
|
(d)
|
there is no Environmental Claim pending or, to the best of the Borrower's knowledge and belief
(having made due enquiry), threatened against the Borrower or either Ship; and
|
|
|
(e)
|
no Environmental Incident which could or might give rise to any Environmental Claim has occurred.
|
The Borrower is
not required to make any Tax Deduction from any payment it may make under any Finance Document.
|
|
10.20
|
No filing or stamp taxes
|
Under the laws of its relevant jurisdiction
it is not necessary that the Finance Documents to which the Borrower is a party be filed, recorded or enrolled with any court or
other authority in that jurisdiction or that any stamp, registration, notarial or similar taxes or fees be paid on or in relation
to the Finance Documents to which it is a party or the transactions contemplated by those Finance Documents except any filing,
recording or enrolling or any tax or fee payable in relation to any Finance Document which is referred to in any legal opinion
and which will be made or paid promptly after the date of the relevant Finance Document except the registration of each Mortgage
at the registry.
|
|
10.21
|
Governing law and enforcement
|
|
|
(a)
|
The choice of governing law of each Finance Document to which the Borrower is a party will be recognised
and enforced in its relevant jurisdictions.
|
|
|
(b)
|
Subject to any limitations set out in any legal opinion delivered pursuant to Clause 9 (Conditions
Precedent) any judgment obtained in relation to a Finance Document to which the Borrower is a party in the jurisdiction of the
governing law of that Finance Document will be recognised and enforced in its relevant jurisdictions.
|
No corporate action, legal proceeding
or other procedure or step described in paragraph (e) of Clause 19.1 (Event of Default) has been taken or, to its knowledge, threatened
in relation to the Borrower which would be likely to have a material adverse effect on the property, assets, nature of assets,
operations, liabilities or condition (financial or otherwise) of the Borrower and its subsidiaries or on the ability of the Borrower
to perform its obligations under the Finance Documents.
The Borrower has not breached any
law or regulation which would be likely to have a material adverse effect on the property, assets, nature of assets, operations,
liabilities or condition (financial or otherwise) of the Borrower and its subsidiaries or on the ability of the Borrower to perform
its obligations under the Finance Documents.
The Borrower undertakes with each
Creditor Party to comply with the following provisions of this Clause 11 (
General Undertakings
) at all times during the
Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit.
|
|
11.2
|
Title; negative pledge
|
The Borrower shall hold the legal
title to, and own the entire beneficial interest in each Ship, its Earnings and Insurances, free from all Security Interests and
other interests and rights of every kind, except for those created by the Finance Documents and the effect of assignments contained
in the Finance Documents and except for Permitted Security Interests.
The Borrower will not transfer, lease
or otherwise dispose of all or a substantial part of its assets, whether by one transaction or a number of transactions, whether
related or not except in the usual course of its business and for fair market value.
|
|
11.4
|
Information provided to be accurate
|
All financial and other information
which is provided in writing by or on behalf of the Borrower under or in connection with any Finance Document will be true, accurate
and not misleading and will not omit any material fact or consideration.
|
|
11.5
|
Provision of financial statements
|
The Borrower will
send to the Agent:
|
|
(a)
|
as soon as possible, but in no event later than 120 days after the end of each financial year of
the Borrower from and including the financial year ending 31 December 2016, the audited consolidated accounts of the Group;
|
|
|
(b)
|
as soon as possible, but in no event later than 75 days after the end of each financial half-year
of the Borrower (which half-year end shall, for the avoidance of doubt, occur annually), the unaudited consolidated semi-annual
accounts of the Group certified as to its correctness by the chief financial officer of the Borrower;
|
|
|
(c)
|
as soon as possible, but in no event later than 60 days after the end of each financial quarter
of the Borrower and provided that these documents have not been published on the Borrower’s website or sent to the Lenders
in the form of a press release, unaudited consolidated income statements of the Group certified as to their correctness by the
chief financial officer of the Borrower and unaudited individual income statements of the Borrower certified as to their correctness
by an officer or director of the Borrower;
|
|
|
(d)
|
as soon as possible, but not later than 120 days after the end of each financial year of the Borrower,
a financial projection for the Group for the next 3 years in a format which is acceptable to the Agent; and
|
|
|
(e)
|
together with each set of accounts referred to in paragraphs (a) to (d), a compliance certificate
(together with supporting schedules, if any) signed by the chief financial officer of the Borrower in the form attached as Schedule
6 (
Form of Certificate of Compliance
) (or in any other format which the Agent may approve and with such other information
as the Agent may require) evidencing compliance with the financial undertakings in Clause 12.5 (
Financial Covenants
) and
also listing the Fair Market Value of each of the Ships.
|
|
|
11.6
|
Form of financial statements
|
The audited accounts delivered under
Clause 11.5 (
Provision of financial statements
) will:
|
|
(a)
|
be prepared in accordance with all applicable laws and IFRS consistently applied;
|
|
|
(b)
|
give a true and fair view of the state of affairs of the Borrower at the date of those accounts
and of profit for the period to which those accounts relate; and
|
|
|
(c)
|
fully disclose or provide for all significant liabilities of the Borrower.
|
|
|
11.7
|
Provision of further information
|
|
|
(a)
|
The Borrower will, as soon as practicable after receiving a request from the Agent provide the
Agent with such additional financial information in relation to the Group which may be reasonably requested by the Agent, K-sure
or any Lender through the Agent.
|
|
|
(b)
|
The Borrower shall supply to the Agent, promptly upon becoming aware of them, the details of any
claim, action, suit, proceeding or investigation with respect to Sanctions Laws against it, any of its direct or indirect owners,
subsidiaries or any of their respective directors, officers, employees, agents or representatives.
|
The Borrower will send the Agent,
at the same time as they are despatched, copies of all material communications which are despatched to all of the Borrower's shareholders
or creditors or to the whole of any class of them.
The Borrower will maintain in force
and promptly obtain or renew, and will promptly send certified copies to the Agent of, all consents required:
|
|
(a)
|
for the Borrower to perform its obligations under any Finance Document to which it is a party;
|
|
|
(b)
|
for the validity or enforceability of any Finance Document to which it is a party;
|
and the Borrower will comply with
the terms of all such consents.
|
|
11.10
|
Maintenance of Security Interests
|
The Borrower will:
|
|
(a)
|
at its own cost, do all that it reasonably can to ensure that any Finance Document to which it
is a party validly creates the obligations and the Security Interests which it purports to create; and
|
|
|
(b)
|
without limiting the generality of paragraph (a), at its own cost, promptly register, file, record
or enrol any Finance Document to which it is a party with any court or authority in all Pertinent Jurisdictions, pay any stamp,
registration or similar tax in all Pertinent Jurisdictions in respect of any Finance Document to which it is a party, give any
notice or take any other step which, in the reasonable opinion of the Majority Lenders, is or has become necessary for any Finance
Document to which it is a party to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any
Security Interest which it creates.
|
|
|
11.11
|
Notification of litigation
|
The Borrower will provide the Agent
with details of any legal or administrative action involving the Borrower, any Security Party or a Ship as soon as such action
is instituted or it becomes apparent to the Borrower that it is likely to be instituted, unless it is clear that the legal or administrative
action cannot be considered material in the context of any Finance Document.
|
|
11.12
|
Principal place of business
|
The Borrower will notify the Agent
if it has a place of business in any jurisdiction which would require a Finance Document to which it is a party to be registered,
filed or recorded with any court or authority in that jurisdiction or if the centre of its main interests changes.
|
|
11.13
|
Notification of default
|
The Borrower will notify the Agent
as soon as it becomes aware of:
|
|
(a)
|
the occurrence of an Event of Default or Potential Event of Default; or
|
|
|
(b)
|
any matter which indicates that an Event of Default or Potential Event of Default may have occurred,
|
and will keep the Agent fully up-to-date
with all developments.
|
|
11.14
|
Access to books and records
|
The Borrower shall permit one or
more representatives of the Agent, at the request of the Agent, to have reasonable access to its books and records and to inspect
the same during normal business hours at its offices upon reasonable prior written notice.
The Borrower will send to the Agent,
at the same time as they are dispatched, copies of all press releases which are issued by it.
The Borrower's payment obligations
under this Agreement and any other Finance Document to which it is a party shall rank at least pari passu with the claims of all
its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
|
|
11.17
|
Conduct of business; compliance with laws
|
The Borrower shall conduct its business
in a proper and efficient manner in compliance with:
|
|
(a)
|
its constitutional documents;
|
|
|
(c)
|
all Anti-Corruption Laws;
|
|
|
(d)
|
all Environmental Laws; and
|
|
|
(e)
|
all other laws and regulations applicable to its business,
|
and shall notify the Agent immediately
upon becoming aware of any breach of any such document, law or regulation.
|
|
11.18
|
Know your customer requirements
|
Promptly upon the Agent's request
the Borrower will supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent
in order for each Creditor Party to carry out and be satisfied with the results of all necessary "know your client" or
other checks which it is required to carry out in relation to the transactions contemplated by the Finance Documents and to the
identity of any parties to the Finance Documents (other than Creditor Parties) and their directors and officers.
|
|
11.19
|
Compliance with Sanctions Laws
|
The Borrower shall:
|
|
(a)
|
ensure that neither it nor any of its subsidiaries is or will become a Restricted Party;
|
|
|
(b)
|
use reasonable endeavours to procure that no director, officer, employee, agent or representative
of it or any of its subsidiaries is or will become a Restricted Party; and
|
|
|
(c)
|
procure that no proceeds of any Tranche shall be made available, directly or indirectly, to or
for the benefit of a Restricted Party nor shall they otherwise be applied in a manner for a purpose prohibited by Sanctions Laws.
|
|
|
11.20
|
K-sure notification and information
|
|
|
(a)
|
The Borrower shall promptly notify the Agent and the K-sure Agent by facsimile confirmed by letter
of the occurrence of any event involving a political or commercial risk covered by and listed in Article 2 of the K-sure Insurance
Policy and shall:
|
|
|
(i)
|
pay upon demand by the K-sure Agent any resulting additional premium that is due and payable to
K-sure in respect of the K-sure Insurance Policy; and
|
|
|
(ii)
|
cooperate with the Agent and the K-sure Agent on its reasonable request to take all steps necessary
on the part of the Borrower to ensure the K-sure Insurance Policy remains in full force and effect throughout the Security Period.
|
|
|
(b)
|
The Borrower shall promptly provide the Agent and the K-sure Agent with copies of all financial
or other information required by the K-sure Agent to satisfy any request for information by K-sure pursuant to the K-sure Insurance
Policy to the extent that such information is not available on the Borrower's website.
|
|
|
12
|
Corporate Undertakings
|
The Borrower also undertakes with
each Creditor Party to comply with the following provisions of this Clause 12 (
Corporate Undertakings
) at all times during
the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit.
|
|
12.2
|
Maintenance of status
|
The Borrower will maintain its separate
corporate existence under the laws of, and the centre of its main interests in, Belgium and the Borrower shall maintain its listing
on the First Market of Euronext Brussels and the New York Stock Exchange or such other reputable international stock exchange approved
by the Agent (acting on the instructions of the Majority Lenders) in writing, such approval not to be unreasonably withheld or
delayed.
|
|
12.3
|
No change of business
|
The Borrower will not operate outside
the scope of its Articles of Association as at the date of this Agreement.
The Borrower will not, and will procure
that none of its subsidiaries will, enter into any form of merger, sub-division, amalgamation or other reorganisation which may,
in the reasonable opinion of the Majority Lenders, have a material adverse effect on the financial position the Borrower.
The Borrower will ensure that the
consolidated financial position of the Group shall at all times during the Security Period be such that:
|
|
(a)
|
Consolidated Working Capital shall not be less than $0;
|
|
|
(b)
|
Free Liquid Assets are not less than the higher of:
|
|
|
(ii)
|
5 per cent. of Total Indebtedness;
|
|
|
(c)
|
the amount of Cash shall equal or exceed US$30,000,000; and
|
|
|
(d)
|
the ratio of Stockholders’ Equity to Total Assets is not less than 30 per cent.
|
In this Clause 12.5 (
Financial
Covenants
):
"
Cash
"
means, at any date of determination under this Agreement, the aggregate value of the Group's credit balances on any deposit, savings
or current account and cash in hand with recognised and reputable banks or financial institutions but excluding any such credit
balances and cash subject to a Security Interest at any time;
"
Consolidated
Current Assets
" means, at any date of determination under this Agreement, the amount of the current assets of the
Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet and including any amounts
available under committed credit lines having remaining maturities of more than 12 months;
"
Consolidated
Current Liabilities
" means, at any date of determination under this Agreement, the amount of the current liabilities
of the Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet;
"
Consolidated
Working Capital
" means Consolidated Current Assets less Consolidated Current Liabilities;
"
Free
Liquid Assets
" means, at any date of determination under this Agreement, the aggregate amount of cash and cash
equivalents of the Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet but
excluding any of those assets subject to a Security Interest (other than a Security Interest in favour of the Security Trustee
pursuant to this Agreement) at any time and, for the avoidance of doubt, "cash and cash equivalents" include any amounts
available under committed credit lines having remaining maturities of more than 6 months;
"
Latest
Balance Sheet
" means, at any date, the consolidated balance sheet of the Group most recently delivered to the Agent
pursuant to Clause 11.5 (
Provision of financial statements
) and/or most recently made publicly available;
"
Stockholders'
Equity
" means, at any date of determination under this Agreement, the amount of the capital and reserves of the
Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet;
"
Total
Assets
" means, at any date of determination under this Agreement, the amount of the total assets of the Group determined
on a consolidated basis in accordance with IFRS and as shown in the Latest Balance Sheet; and
"
Total
Indebtedness
" means, at any date of determination under this Agreement, the amount of long-term loans (including
finance leases, banks loans and other long-term loans) and short-term loans of the Group determined on a consolidated basis in
accordance with IFRS and as shown in the Latest Balance Sheet.
If, at any time after the date of
this Agreement, any mandatory change is made to IFRS or any applicable law relating to the financial reporting (including but not
limited to accounting bases, policies, practices and procedures or reference periods) of the Group generally or any member of the
Group individually and the effect of complying with that change would result in the value for "Cash", "Consolidated
Current Assets", "Consolidated Current Liabilities", "Consolidated Working Capital", "Free Liquid
Assets", "Stockholders' Equity", "Total Assets" and/or "Total Indebtedness" being materially
different from its value if calculated in accordance with IFRS and all applicable laws in effect at the date of this Agreement
and of which the Lenders would reasonably expect to have been informed, the Borrower shall immediately notify the Agent of that
change and procure that, as soon as reasonably practicable thereafter, the Borrower's auditors deliver to the Agent:
|
|
(a)
|
a description of the change and what adjustments would need to be made to the financial statements
of the Group following that change in order to reverse the effects of that change so that the values of "Cash", "Consolidated
Current Assets", "Consolidated Current Liabilities", "Consolidated Working Capital", "Free Liquid
Assets", "Stockholders' Equity", "Total Assets" and/or "Total Indebtedness" will be the same
as if calculated in accordance with IFRS and all applicable laws in effect at the date of this Agreement; and
|
|
|
(b)
|
such information, in form and substance acceptable to the Agent, as may be required:
|
|
|
(i)
|
to enable the Lenders to determine whether there is a breach of any of the financial covenants
in respect of the Group set out in Clause 12.5 (
Financial Covenants
) (based on IFRS and all applicable laws in effect at
the date of this Agreement); and
|
|
|
(ii)
|
to assist the Lenders in making an accurate comparison between the financial position of the Group
indicated in the financial statements prepared following the change and those prepared prior to it.
|
In the event that the Lenders are
satisfied that, based on the information provided by the Borrower’s auditors, the financial covenants in Clause 12.5 (
Financial
Covenants
) have been complied with, the Lenders and the Borrower shall enter into discussions with a view to agreeing amendments
to this Agreement so as to mitigate the effect of the change.
|
|
12.7
|
Change of accounting period
|
The Borrower shall not change its
fiscal year end date being 31 December.
|
|
12.8
|
Restrictions on dividends
|
The Borrower may only pay a dividend
or make a distribution and/or buy-back its own common stock subject to the following conditions:
|
|
(a)
|
no Event of Default has occurred and is continuing or would result upon payment of the proposed
dividend, distribution or buy-back; and
|
|
|
(b)
|
the payment of such dividend or distribution would not cause any breach of any of the financial
covenants set out in Clause 12.5 (
Financial Covenants
).
|
The Borrower shall pay when due all
taxes applicable to, or imposed on or in relation to it, its business or a Ship to be owned by it.
|
|
12.10
|
Negative undertakings
|
The Borrower will not:
|
|
(a)
|
change its legal name, type of organisation or jurisdiction of incorporation; and
|
|
|
(b)
|
provide any form of credit or financial assistance to any person or enter into any transaction
with or involving any person on terms which are, in any respect, less favourable to the Borrower than those which it could obtain
in a bargain made at arms' length.
|
|
|
12.11
|
Notification of Sanctions
|
The Borrower shall:
|
|
(a)
|
supply to the Agent, promptly upon becoming aware of them, the details of any inquiry, claim, action,
suit, proceeding or investigation pursuant to Sanction Laws against (a) the Borrower, (b) any other Relevant Person or (c) any
owners of any Relevant Person (other than any owner of the Borrower), as well as information on what steps are being taken with
regards to answering or opposing the same;
|
|
|
(b)
|
inform the Agent promptly upon becoming aware that any of (a) the Borrower, (b) any other Relevant
Person or (c) any owners of any Relevant Person (other than any owner of the Borrower), has become or is likely to become a Restricted
Party.
|
|
|
12.12
|
Incurrence of Financial Indebtedness
|
The Borrower shall
not, without the prior consent of the Majority Lenders, incur any Financial Indebtedness or grant any guarantee in respect of Financial
Indebtedness if, as a result of incurring that Financial Indebtedness or incurring the contingent liability under that guarantee
(as assessed in accordance with IFRS), an Event of Default would occur, or one or more of the financial covenants in respect of
the Borrower set out in Clause 12.5 (
Financial Covenants
) would be breached, on the date of such incurrence.
The Borrower shall
not enter into any transaction with an Affiliate on terms which are, in any respect, less favourable to it that those which it
could obtain in a bargain made at arm’s length.
|
|
12.14
|
K-sure requirements
|
The Borrower shall not act (or omit
to act) in a manner that is inconsistent with any requirement of K-sure under or in connection with the K-sure Insurance Policy
and, in particular:
|
|
(a)
|
the Borrower shall do all that is necessary to ensure that all requirements of K-sure under or
in connection with the K-sure Insurance Policy are complied with; and
|
|
|
(b)
|
the Borrower will refrain from acting in any manner which could result in a breach of any requirements
of K-sure under or in connection with the K-sure Insurance Policy or affect the validity of it.
|
|
|
12.15
|
K-sure Insurance Policy protection
|
If at any time, in the opinion of
the K-sure Agent, any provision of a Finance Document contradicts or conflicts with any provision of the K-sure Insurance Policy,
the Borrower will:
|
|
(a)
|
take all steps as the Agent, the K-sure Agent and/or K-sure shall require to remove such contradiction
or conflict; and
|
|
|
(b)
|
take all steps as the Agent, the K-sure Agent and/or K-sure shall require to ensure that the K-sure
Insurance Policy remains in full force and effect.
|
The Borrower also undertakes with
each Creditor Party to comply with the following provisions of Clause 13 (
Insurance
) at all times during the Security Period
(in the case of each Ship after the Drawdown Date applicable to it) except as the Agent may, with the authorisation of the Majority
Lenders, otherwise permit.
|
|
13.2
|
Maintenance of obligatory insurances
|
The Borrower shall keep each Ship
insured at its own expense against:
|
|
(a)
|
fire and usual marine risks and war risks (including hull and machinery, hull and freight interest,
piracy, terrorism, missing vessel cover, blocking and trapping and confiscation); and
|
|
|
(b)
|
protection and indemnity risks (including pollution risks), on "full entry terms".
|
|
|
13.3
|
Terms of obligatory insurances
|
The Borrower shall, effect such insurances
in respect of each Ship:
|
|
(b)
|
in the case of fire and usual marine risks and war risks (including coverage for war protection
and indemnity with a separate limit for the same amounts insured under war hull), in an amount on an agreed value basis at least
the greater of (i) when aggregated with such insurances on the other Ships which are subject to a Mortgage, 120 per cent. of the
Loan and (ii) the Fair Market Value of that Ship;
|
|
|
(c)
|
in the case of hull and machinery insured values of each Ship in an amount not less than 70 per
cent. of the total insured value of that Ship;
|
|
|
(d)
|
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level
of cover from time to time available under basic protection and indemnity club entry with a protection and indemnity association
belonging to the International Group of Protection and Indemnity Associations;
|
|
|
(e)
|
in relation to protection and indemnity risks in respect of the Ship's full tonnage on full entry
terms;
|
|
|
(f)
|
on approved terms; and
|
|
|
(g)
|
through approved brokers and with approved insurance companies and/or underwriters or, in the case
of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations.
|
|
|
13.4
|
Further protections for the Creditor Parties
|
In addition to the terms set out
in Clause 13.3 (
Terms of obligatory insurances
), the Borrower shall procure that the obligatory insurances shall:
|
|
(a)
|
in relation to the obligatory insurances for fire and usual marine risks and war risks, whenever
the Security Trustee requires, name (or be amended to name) the Security Trustee as additional named assured for its rights and
interests, warranted no operational interest and with full waiver of rights of subrogation against the Security Trustee, but without
the Security Trustee thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect
of such insurance;
|
|
|
(b)
|
name the Security Trustee as loss payee with such directions for payment as the Security Trustee
may specify;
|
|
|
(c)
|
provide that all payments by or on behalf of the insurers under the obligatory insurances to the
Security Trustee shall be made without set-off, counterclaim or deductions or condition whatsoever;
|
|
|
(d)
|
provide that such obligatory insurances shall be primary without right of contribution from other
insurances which may be carried by the Security Trustee or any other Creditor Party; and
|
|
|
(e)
|
provide that the Security Trustee may make proof of loss if the Borrower fails to do so.
|
The Borrower shall ensure that:
|
|
(a)
|
before the expiry of any obligatory insurance, that obligatory insurance is renewed; and
|
|
|
(b)
|
promptly after each such renewal, there is provided to the Security Trustee details of the terms
and conditions on which such obligatory insurances have been renewed.
|
If there is a change in the insurers
and/or markets through whom the obligatory insurances are placed the Borrower shall procure that the Security Trustee is notified
within a reasonable time of the names of the insurers and/or markets employed for the purposes of the renewal of the obligatory
insurance and of the amounts in which they are renewed.
|
|
13.6
|
Letters of undertaking
|
In relation to all obligatory insurances
effected from time to time under Clause 13.2 (
Maintenance of obligatory insurances
), the Borrower shall ensure that all
brokers and any protection and indemnity or war risks associations in which a Ship is entered, in each case being approved by the
Security Trustee (such approval not to be unreasonably withheld), provide the Security Trustee with letters of undertaking:
|
|
(a)
|
in the case of a broker, in a form standard in the insurance market in which such broker operates
or any professional association of which that approved broker is a member;
|
|
|
(b)
|
in the case of a protection and indemnity or war risks association, in its standard form.
|
If any of the obligatory insurances
referred to in Clause 13.2(a) and/or 13.2(b) form part of a fleet cover, the Borrower will procure that any letter of undertaking
referred to in paragraph (a) of this Clause 13.6 (
Letters of undertaking
) is amended to provide that the relevant brokers
shall undertake to the Security Trustee that they shall neither set-off against any claims in respect of the relevant Ship any
premiums due in respect of other vessels under such fleet cover or any premiums due for other insurances, nor cancel the insurance
for reason of non-payment of premiums for other vessels under such fleet cover or of premiums for such other insurances.
|
|
13.7
|
Copies of certificates of entry
|
The Borrower shall ensure that any
protection and indemnity and/or war risks associations in which each Ship is entered provides the Security Trustee with a certified
copy of the certificate of entry for that Ship.
|
|
13.8
|
Deposit of original policies
|
The Borrower shall ensure that all
policies relating to obligatory insurances are deposited with the approved brokers through which the insurances are effected or
renewed.
The Borrower shall ensure that (taking
account of any applicable grace periods) all premiums, calls or contributions or other sums of money from time to time due in respect
of any obligatory insurances are paid in full and produce all relevant receipts when so required by the Security Trustee.
The Borrower shall arrange for the
execution and delivery of all guarantees and indemnities as may from time to time be required by a Ship's P&I Club or war risks
association.
|
|
13.11
|
Compliance with terms of insurances
|
The Borrower shall not do nor omit
to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance in relation
to a Ship invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or
in part; and, in particular:
|
|
(a)
|
the Borrower shall take all necessary action and comply with all requirements which may from time
to time be applicable to the obligatory insurances, and ensure that the obligatory insurances are not made subject to any exclusions
or qualifications to which the Security Trustee has not given its prior approval;
|
|
|
(b)
|
the Borrower shall not make any changes relating to the classification or classification society
or manager or operator of a Ship approved by the underwriters of the obligatory insurances;
|
|
|
(c)
|
the Borrower shall make (and on request promptly supply copies to the Agent of) all quarterly or
other voyage declarations which may be required by the protection and indemnity risks association in which a Ship it is entered
to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil
Pollution Act 1990 or any other applicable legislation); and
|
|
|
(d)
|
the Borrower shall not employ a Ship, nor allow it to be employed, otherwise than in conformity
with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with
any requirements (as to extra premium or otherwise) which the insurers specify.
|
|
|
13.12
|
Alteration to terms of insurances
|
The Borrower will procure that:
|
|
(a)
|
no adverse alteration is made to any obligatory insurance (which alteration is, in the reasonable
opinion of the Security Trustee, likely to materially adversely affect the Lenders) without the prior written consent of the Security
Trustee; and
|
|
|
(b)
|
all the steps under its control are taken to seek to avoid the occurrence of any act or omission
which would enable cancellation of any obligatory insurance or render any obligatory insurance invalid, void or unenforceable or
render any sum paid out under any obligatory insurance repayable in whole or in part.
|
|
|
13.13
|
Settlement of claims
|
The Borrower shall not settle, compromise
or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty, and the Borrower shall do all things
necessary and provide all documents, evidence and information to enable the Security Trustee to collect or recover any moneys which
at any time become payable in respect of the obligatory insurances.
|
|
13.14
|
Provision of information
|
The Borrower shall promptly provide
the Security Trustee (or any persons which it may designate) with any information which the Security Trustee (or any such designated
person) reasonably requests for the purpose of:
|
|
(a)
|
obtaining or preparing any report from an independent marine insurance broker as to the adequacy
of the obligatory insurances effected or proposed to be effected; and/or
|
|
|
(b)
|
effecting or renewing any such insurances as are referred to in Clause 13.15 (
Mortgagee's interest
and additional perils insurances
) or dealing with or considering any matters relating to any such insurances;
|
and the Borrower shall, forthwith
upon demand, indemnify the Security Trustee in respect of all fees and other expenses reasonably incurred by or for the account
of the Security Trustee in connection with any such report as is referred to in paragraph (a).
|
|
13.15
|
Mortgagee's interest and additional perils insurances
|
The Agent for the benefit of the
Security Trustee, or the Security Trustee itself, shall effect, maintain and renew a mortgagee's interest additional perils insurance
and a mortgagee's interest marine insurance in such amounts on such terms reasonably available in the market, through such insurers
and generally in such manner as the Security Trustee may from time to time consider appropriate and the Borrower shall upon demand
fully indemnify the Agent or the Security Trustee (as the case may be) in respect of all reasonable premiums and other reasonable
expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any such insurance or dealing
with, or considering, any matter arising out of any such insurance
Provided that
the cover in respect of the mortgagee’s
interest marine insurance shall not exceed 110 per cent. of the Loan.
Notwithstanding the above, if at
any time the Agent or Security Trustee proposes to effect any insurances of the nature referred to in this Clause, it shall first
notify the Borrower of the insurance which it proposes to effect, the terms on which it requires it to be effected and the date
from which it requires it to be so effected. If, before the date on which the Agent or Security Trustee (as the case may be) requires
that insurance to be effected, the Borrower can demonstrate to the Agent or Security Trustee (as the case may be) that a firm of
insurance brokers with a reputation acceptable to the Agent or the Security Trustee (as the case may be) is able to arrange that
insurance upon the same terms, before that date, for a price lower than that for which any firm of insurance brokers nominated
by the Agent or Security Trustee is prepared to arrange that insurance and with underwriters acceptable to the Agent or Security
Trustee (as the case may be), and if that firm of insurance brokers will enter into such agreements with the Agent or Security
Trustee (as the case may be) as it may require taking into account the identity of that firm of insurance brokers, the Agent or
Security Trustee (as the case may be) shall not unreasonably refuse to effect that insurance through that firm of insurance brokers
so nominated by the Borrower.
The Borrower also undertakes with
each Creditor Party to comply with the provisions of this Clause 14 (
Ship Covenants
) at all times during the Security Period
except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit (such permission not to be unreasonably
withheld in the case of Clause 14.2 (
Ship's name and registration
), 14.12 (
Restrictions on chartering, appointment of
managers etc.
) and 14.14 (
Sharing of Earnings
).
|
|
14.2
|
Ship's name and registration
|
The Borrower shall keep each Ship
registered in its name on an Approved Flag; and shall not do or allow to be done anything as a result of which such registration
might be cancelled or imperilled and shall not change the name or country of registry of the Ship
Provided that
the Borrower
may change the registry of the Ship to any Approved Flag without the consent of the Lenders subject to the Borrower providing the
Creditor Parties with replacement security at the time of such transfer (in form and substance satisfactory to the Agent) so that
the Creditor Parties have the same security on the Ship and subject to any appropriate consequential amendments to the Finance
Documents.
|
|
14.3
|
Repair and classification
|
The Borrower shall keep each Ship
in a good safe condition and state of repair:
|
|
(a)
|
consistent with first-class ship ownership and management practice;
|
|
|
(b)
|
so as to maintain that Ship's class as at the date of this Agreement free of overdue recommendations
and conditions affecting that Ship's class with a classification society which has been approved by the Agent; and
|
|
|
(c)
|
so as to comply with all laws and regulations applicable to vessels registered on the applicable
Approved Flag or to vessels trading to any jurisdiction to which that Ship may trade from time to time, including but not limited
to the ISM Code and the ISPS Code.
|
The Borrower shall not make any modification
or repairs to, or replacement of, a Ship or equipment installed on it which would or might materially and adversely alter the structure,
type or performance characteristics of a Ship or reduce its value.
The Borrower shall not remove any
material part of a Ship, or any item of equipment installed on a Ship, except in the normal course of maintenance and repair, unless
the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition
than the part or item removed, is free from any Security Interest or any right in favour of any person other than the Security
Trustee and becomes on installation on a Ship the property of the Borrower and subject to the security constituted by the relevant
Mortgage
Provided that
the Borrower may install equipment owned by a third party if the equipment can be removed without
any risk of damage to the Ship concerned.
The Borrower shall submit each Ship
regularly to such periodical or other surveys which may be required for that Ship's classification purposes and shall comply with
all conditions and recommendations affecting that Ship's class of the relevant classification society in accordance with their
terms unless waived.
The Borrower shall permit the Agent
(by surveyors or other persons appointed by it for that purpose, at the Borrower’s expense once per year) to board a Ship
at all reasonable times to inspect its condition (without interfering with that Ship's operation) or to satisfy themselves about
proposed or executed repairs and shall afford all proper facilities for such inspections.
|
|
14.8
|
Prevention of and release from arrest
|
The Borrower shall promptly discharge,
unless the same is being contested in good faith by the Borrower:
|
|
(a)
|
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable
against any such Ship, its Earnings or the Insurances in relation any such Ship;
|
|
|
(b)
|
all taxes, dues and other amounts charged in respect of any such Ship, its Earnings or the Insurances
in relation to any such Ship; and
|
|
|
(c)
|
all other outgoings whatsoever in respect of any such Ship, its Earnings or the Insurances in relation
to any such Ship;
|
and, forthwith upon receiving notice
of the arrest of a Ship, or of its detention in exercise or purported exercise of any lien or claim, unless the same is being contested
in good faith by the Borrower, the Borrower shall as soon as possible or in any event within 30 days (or such greater period as
may be agreed by the Agent) procure its release by providing bail or otherwise as the circumstances may require.
|
|
14.9
|
Compliance with laws etc.
|
The Borrower shall:
|
|
(a)
|
comply, or procure compliance with all laws or regulations:
|
|
|
(i)
|
relating to its business generally; and
|
|
|
(ii)
|
relating to each Ship, its ownership, employment, operation, management and registration,
|
including the ISM Code, the ISPS
Code, all Environmental Laws, all Sanctions Laws and the laws of the Approved Flag in relation to each Ship;
|
|
(b)
|
obtain, comply with and do all that is necessary to maintain in full force and effect any consents
required to be obtained and maintained by the Borrower in connection with any Environmental Laws;
|
|
|
(c)
|
without limiting paragraph (a) above, not employ a Ship nor allow its employment, operation or
management in any manner contrary to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental
Laws and all Sanctions Laws; and
|
|
|
(d)
|
procure that neither it nor any member of the Group is or becomes a Restricted Party.
|
|
|
14.10
|
Provision of information
|
The Borrower shall promptly provide
the Agent with any information which it reasonably requests regarding:
|
|
(a)
|
a Ship, its employment, position and engagements;
|
|
|
(b)
|
the Earnings and payments and amounts due to a Ship's master and crew;
|
|
|
(c)
|
any expenses incurred, or likely to be incurred, in connection with the operation, maintenance
or repair of a Ship and any payments made in respect of a Ship;
|
|
|
(d)
|
any towages and salvages;
|
|
|
(e)
|
the Borrower, the Approved Managers' or a Ship's compliance with the ISM Code and/or the ISPS Code,
|
and, upon the Agent's request, to
provide copies of any current charter relating to a Ship and of any current charter guarantee (unless the Borrower is prohibited
to do so under applicable confidentiality provisions and if there is any such confidentiality provision, the Borrower shall use
all reasonable endeavours to provide such copies) and copies of a Ship's Safety Management Certificate.
|
|
14.11
|
Notification of certain events
|
The Borrower shall immediately notify
the Agent by email, confirmed forthwith by letter, of:
|
|
(a)
|
any casualty of a Ship which is or is likely to be or to become a Major Casualty;
|
|
|
(b)
|
any occurrence as a result of which a Ship has become or is, by the passing of time or otherwise,
likely to become a Total Loss;
|
|
|
(c)
|
any requirement or recommendation made by any insurer or classification society or by any competent
authority in respect of a Ship which is not complied with within the applicable time limit;
|
|
|
(d)
|
any arrest or detention of a Ship, any exercise of any lien on a Ship or its Earnings or any requisition
of a Ship for hire which may be material in the context of this Agreement;
|
|
|
(e)
|
any Environmental Claim made against the Borrower or in connection with a Ship, or any Environmental
Incident;
|
|
|
(f)
|
any claim for breach of the ISM Code or the ISPS Code being made against an Borrower, an Approved
Manager or otherwise in connection with a Ship; or
|
|
|
(g)
|
any other matter, event or incident, actual or threatened, the effect of which will or could lead
to the ISM Code or the ISPS Code not being complied with;
|
and the Borrower shall keep the Agent
advised in writing on a regular basis and in such detail as the Agent shall require of the Borrower's, the Approved Manager's or
any other person's response to any of those events or matters.
|
|
14.12
|
Restrictions on chartering, appointment of managers etc.
|
The Borrower shall not:
|
|
(a)
|
let a Ship on demise charter for any period;
|
|
|
(b)
|
enter into any charter in relation to a Ship under which more than 2 months' hire (or the equivalent)
is payable in advance;
|
|
|
(c)
|
charter a Ship otherwise than on bona fide arm's length terms at the time when that Ship is fixed;
|
|
|
(d)
|
appoint a manager of a Ship other than the Approved Managers or agree to any material alteration
to the terms of an Approved Manager's appointment; or
|
|
|
(e)
|
put a Ship into the possession of any person for the purpose of work being done upon it in an amount
exceeding or likely to exceed $5,000,000 (or the equivalent in any other currency) unless either:
|
|
|
(i)
|
that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking
not to exercise any lien on that Ship or its Earnings for the cost of such work or for any other reason; or
|
|
|
(ii)
|
the cost of such work is covered by insurances; or
|
|
|
(iii)
|
the Borrower establishes to the reasonable satisfaction of the Agent that it has sufficient funds
to pay for the cost of such work.
|
The Borrower shall keep each Mortgage
registered against a Ship as a valid first priority mortgage, carry on board that Ship a certified copy of the Mortgage and place
and maintain in a conspicuous place in the navigation room and the Master's cabin of that Ship a framed printed notice stating
that that Ship is mortgaged by the Borrower to the Security Trustee.
|
|
14.14
|
Sharing of Earnings
|
The Borrower will not enter into
any agreement or arrangement for the sharing of any Earnings other than pursuant to a pooling agreement relating to the Tankers
International Pool.
The Borrower shall ensure that at
all times each Ship carries an inventory or similar document of all potentially hazardous materials on board that Ship or any equivalent
document as may be required by that Ship's classification society.
|
|
15.1
|
Minimum required security cover
|
Clause 15.2 (
Provision of additional
security; prepayment
) applies if the Agent notifies the Borrower that:
|
|
(a)
|
the aggregate of the Fair Market Values (determined as provided in Clause 15.3 (
Valuation of
Ships
) of each Ship subject to a Mortgage; plus
|
|
|
(b)
|
the net realisable value of any additional security previously provided under this Clause 15 (
Security
Cover
);
|
is below 125 per cent. of the Loan.
|
|
15.2
|
Provision of additional security; prepayment
|
If the Agent serves a notice on the
Borrower under Clause 15.1 (
Minimum required security cover
), the Borrower shall, within 30 days after the date on which
the Agent's notice is served:
|
|
(a)
|
provide, or ensure that a third party provides, acceptable additional security which, in the reasonable
opinion of the Majority Lenders, has a net realisable value (taking into account the amount of any prepayment made pursuant to
paragraph (b) of Clause 15.2 (
Provision of additional security; prepayment
) in response to the same notice) at least equal
to the shortfall and is documented in such terms as the Agent may, with the authorisation of the Majority Lenders, approve or require
and, for this purpose, it is agreed that acceptable additional security shall include cash collateral in Dollars valued at par;
and/or
|
|
|
(b)
|
prepay such part of the Loan as will eliminate the shortfall (taking into account the net realisable
value of any additional security provided pursuant to paragraph (a) of Clause 15.2 (
Provision of additional security; prepayment
)
in response to the same notice).
|
The Fair Market Value of a Ship at
any date is that shown by the average of 2 valuations:
|
|
(a)
|
as at a date not more than 30 days previously;
|
|
|
(b)
|
by an Approved Shipbroker;
|
|
|
(c)
|
without physical inspection of that Ship;
|
|
|
(d)
|
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as
between a willing seller and a willing buyer, free of any existing charter or other contract of employment;
|
|
|
(e)
|
after deducting the estimated amount of the usual and reasonable expenses which would be incurred
in connection with the sale.
|
If one valuation
in respect of a Ship differs by at least 10 per cent. from the other valuation, then a third valuation for that Ship shall be obtained
by an Approved Shipbroker selected by the Agent and the Fair Market Value of that Ship shall be the average of all three valuations.
The Borrower shall provide (at its
own cost) the valuations addressed to the Agent of each Ship which are required to determine its Fair Market Value pursuant to
this Clause 15.3 (
Valuation of Ships
) at the same time as the Borrower provides to the Agent the compliance certificates
pursuant to paragraph (e) of Clause 11.5 (
Provision of financial statements
) in respect of the financial statements provided
in accordance with paragraphs (a) and (b) of Clause 11.5 (
Provision of financial statements
) and after the occurrence of
an Event of Default which is continuing, whenever requested by the Agent.
|
|
15.4
|
Value of additional vessel security
|
The net realisable value of any additional
security which is provided under Clause 15.2 (
Provision of additional security; prepayment
) and which consists of a
Security Interest over a vessel shall be that shown by a valuation complying with the requirements of Clause 15.3 (
Valuation
of Ships
).
Any valuation under Clause 15.2 (
Provision
of additional security; prepayment
), 15.3 (
Valuation of Ships
) or 15.4 (
Value of additional vessel security
)
shall be binding and conclusive as regards the Borrower and the Lenders, as shall be any valuation which the Majority Lenders make
of any additional security which does not consist of or include a Security Interest over a vessel.
|
|
15.6
|
Provision of information
|
The Borrower shall promptly provide
the Agent and any shipbroker or expert acting under Clause 15.3 (
Valuation of Ships
) or 15.4 (
Value of additional vessel
security
) with any information which the Agent or the shipbroker or expert may reasonably request for the purposes of its valuation.
|
|
15.7
|
Payment of valuation expenses
|
Without prejudice to the generality
of the Borrower’s obligations under Clauses 20.3 (
Costs of negotiation, preparation etc.
), 20.4 (
Costs of variations,
amendments, enforcement etc.
) and 21.3 (
Miscellaneous indemnities
), the Borrower shall, on demand, pay the Agent the
amount of the fees and expenses of any shipbroker or expert instructed by the Agent under this Clause and all legal and other expenses
incurred by any Creditor Party in connection with any matter arising out of this Clause.
|
|
15.8
|
Application of prepayment
|
|
|
(a)
|
Clause 8 (
Repayment, Prepayment and Cancellation
) shall apply in relation to any prepayment
pursuant to paragraph (b) of Clause 15.2 (
Provision of additional security; prepayment
).
|
|
|
(b)
|
Any prepayment pursuant to paragraph (b) of Clause 15.2 shall be applied pro rata to each Tranche
and, within each Tranche, pro rata to each Advance and pro rata to each repayment instalment then outstanding (including any balloon)
under each Advance.
|
|
|
16
|
Payments and Calculations
|
|
|
16.1
|
Currency and method of payments
|
All payments to be made by the Lenders
or by the Borrower under a Finance Document shall be made to the Agent or to the Security Trustee, in the case of an amount payable
to it:
|
|
(a)
|
by not later than 11.00 a.m. (New York City time) on the due date;
|
|
|
(b)
|
in same day Dollar funds settled through the New York Clearing House Interbank Payments System
(or in such other Dollar funds and/or settled in such other manner as the Agent shall specify as being customary at the time for
the settlement of international transactions of the type contemplated by this Agreement);
|
|
|
(c)
|
in the case of an amount payable by a Lender to the Agent or by the Borrower to the Agent or any
Lender, to such account with such bank as the Agent may from time to time notify to the Borrower and the other Creditor Parties;
and
|
|
|
(d)
|
in the case of an amount payable to the Security Trustee, to such account as it may from time to
time notify to the Borrower and the other Creditor Parties.
|
|
|
16.2
|
Payment on non-Business Day
|
If any payment by the Borrower under
a Finance Document would otherwise fall due on a day which is not a Business Day:
|
|
(a)
|
the due date shall be extended to the next succeeding Business Day; or
|
|
|
(b)
|
if the next succeeding Business Day falls in the next calendar month, the due date shall be brought
forward to the immediately preceding Business Day;
|
and interest shall be payable during
any extension under paragraph (a) at the rate payable on the original due date.
|
|
16.3
|
Basis for calculation of periodic payments
|
All interest and commitment fee and
any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to day and shall
be calculated on the basis of the actual number of days elapsed and a 360 day year.
|
|
16.4
|
Distribution of payments to Creditor Parties
|
Subject to Clause 16.5 (
Permitted
deductions by Agent
), Clause 16.6 (
Agent only obliged to pay when monies received
) and Clause 16.7 (
Refund to Agent
of monies not received
):
|
|
(a)
|
any amount received by the Agent under a Finance Document for distribution or remittance to a Lender
or the Security Trustee shall be made available by the Agent to that Lender or, as the case may be, the Security Trustee by payment,
with funds having the same value as the funds received, to such account as the Lender or the Security Trustee may have notified
to the Agent not less than 5 Business Days previously; and
|
|
|
(b)
|
amounts to be applied in satisfying amounts of a particular category which are due to the Lenders
generally shall be distributed by the Agent to each Lender pro rata to the amount in that category which is due to it.
|
|
|
16.5
|
Permitted deductions by Agent
|
Notwithstanding any other provision
of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender, deduct and withhold
from that amount any sum which is then due and payable to the Agent from that Lender under any Finance Document or any sum which
the Agent is then entitled under any Finance Document to require that Lender to pay on demand.
|
|
16.6
|
Agent only obliged to pay when monies received
|
Notwithstanding any other provision
of this Agreement or any other Finance Document, the Agent shall not be obliged to make available to the Borrower or any Lender
any sum which the Agent is expecting to receive for remittance or distribution to the Borrower or that Lender until the Agent has
satisfied itself that it has received that sum.
|
|
16.7
|
Refund to Agent of monies not received
|
If and to the extent that the Agent
makes available a sum to the Borrower or a Lender, without first having received that sum, the Borrower or (as the case may be)
the Lender concerned shall, on demand:
|
|
(a)
|
refund the sum in full to the Agent; and
|
|
|
(b)
|
pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against
any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving
it.
|
|
|
16.8
|
Agent may assume receipt
|
Clause 16.7 (
Refund to Agent of
monies not received
) shall not affect any claim which the Agent has under the law of restitution, and applies irrespective
of whether the Agent had any form of notice that it had not received the sum which it made available.
|
|
16.9
|
Creditor Party accounts
|
Each Creditor Party shall maintain
accounts showing the amounts owing to it by the Borrower and each Security Party under the Finance Documents and all payments in
respect of those amounts made by the Borrower and any Security Party.
|
|
16.10
|
Agent's memorandum account
|
The Agent shall maintain a memorandum
account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security Trustee and each Lender
from the Borrower under the Finance Documents and all payments in respect of those amounts made by the Borrower and any Security
Party.
|
|
16.11
|
Accounts prima facie evidence
|
If any accounts maintained under
Clauses 16.9 (
Creditor Party accounts
) and 16.10 (
Agent's memorandum account
) show an amount to be owing by the Borrower
or a Security Party to a Creditor Party, those accounts shall be prima facie evidence that that amount is owing to that Creditor
Party.
|
|
(a)
|
If, at any time, the Agent becomes an Impaired Agent, the Borrower or a Lender which is required
to make a payment under the Finance Documents to the Agent in accordance with Clause 16.1 (
Currency and method of payments
)
may instead either pay that amount direct to the required recipient or pay that amount to an interest-bearing account held with
a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A or
higher by S&P or Fitch or A2 or higher by Moody’s or a comparable rating from an internationally recognised credit rating
agency and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Borrower or the Lender making
the payment and designated as a trust account for the benefit of the Creditor Party or Creditor Parties beneficially entitled to
that payment under the Finance Documents. In each case such payments must be made on the due date for payment under the Finance
Documents.
|
|
|
(b)
|
All interest accrued on the amount standing to the credit of the trust account shall be for the
benefit of the beneficiaries of that trust account pro rata to their respective entitlements.
|
|
|
(c)
|
Where the Borrower or a Lender has made a payment in accordance with this Clause 16.12 (
Impaired
Agent
) it shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit
risk with respect to the amounts standing to the credit of the trust account.
|
|
|
(d)
|
Promptly upon the appointment of a successor Agent in accordance with Clause 24 (
The Agent,
the Arrangers and the Reference Banks
) each party which has made a payment to a trust account in accordance with this Clause
16.12 (
Impaired Agent
) shall give all requisite instructions to the bank with whom the trust account is held to transfer
the amount (together with any accrued interest) to the successor Agent for distribution in accordance with Clause 16.4 (
Distribution
of payments to Creditor Parties
).
|
|
|
17
|
Application of Receipts
|
|
|
17.1
|
Normal order of application
|
Except as any Finance Document may
otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document shall
be applied:
|
|
(a)
|
FIRST: in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent and the
Security Trustee under the Finance Documents and any unpaid K-sure Premium;
|
|
|
(b)
|
SECONDLY: any unpaid fees, costs and expenses incurred at the request of K-sure pursuant to the
K-sure Insurance Policy;
|
|
|
(c)
|
THIRDLY: in or towards satisfaction of any amounts then due and payable to the Creditor Parties
under the Finance Documents (or any of them) in such order of application and/or such proportions as the Agent, acting with the
authorisation of the Lenders, may specify by notice to the Borrower, the Security Parties and the other Creditor Parties;
|
|
|
(d)
|
FOURTHLY: in retention of an amount equal to any amount not then due and payable to the Creditor
Parties under any Finance Document but which the Agent, by notice to the Borrower, the Security Parties and the other Creditor
Parties, states in its opinion will or may become due and payable in the future and, upon those amounts becoming due and payable,
in or towards satisfaction of them in accordance with the provisions of Clause (b); and
|
|
|
(e)
|
FIFTHLY: any surplus shall be paid to the Borrower or to any other person appearing to be entitled
to it.
|
|
|
17.2
|
Variation of order of application
|
The Agent may, with the authorisation
of the Lenders and, in the case of Clause 17.1(b), with the authorisation of K-sure, by notice to the Borrower, the Security Parties
and the other Creditor Parties provide for a different manner of application from that set out in Clause 17.1 (
Normal order
of application
) either as regards a specified sum or sums or as regards sums in a specified category or categories.
|
|
17.3
|
Notice of variation of order of application
|
The Agent may give notices under
Clause 17.2 (
Variation of order of application
) from time to time; and such a notice may be stated to apply not only to
sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the
third Business Day before the date on which the notice is served.
|
|
17.4
|
Appropriation rights overridden
|
This Clause 17 (
Application of
Receipts
) and any notice which the Agent gives under Clause 17.2 (
Variation of order of application
) shall override
any right of appropriation possessed, and any appropriation made, by the Borrower or any Security Party.
|
|
18
|
Application of Earnings
|
The Borrower undertakes with each
Creditor Party to ensure that throughout the Security Period (and subject only to the provisions of the General Assignments) all
the Earnings of each Ship and proceeds under any Insurances in relation to each Ship are paid to the Earnings Account without delay
or deductions
Provided that
the Earnings in respect of each Ship shall be available to the Borrower unless an Event of Default
has occurred and is continuing.
|
|
18.2
|
Location of accounts
|
The Borrower shall promptly:
|
|
(a)
|
comply with any requirement of the Agent as to the location or re-location of the Earnings Account;
and
|
|
|
(b)
|
execute any documents which the Agent reasonably specifies to create or maintain in favour of the
Security Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings
Account.
|
An Event of Default occurs if:
|
|
(a)
|
the Borrower or any Security Party fails to pay when due or, if payable on demand, on such demand,
any sum payable under a Finance Document or under any document relating to a Finance Document unless its failure to pay is caused
by an administrative or technical error and payment is made within 3 Business Days of its due date; or
|
|
|
(b)
|
any breach occurs of Clause 9.2 (
Waiver of conditions precedent
), Clause 10.15 (
Sanctions
),
Clause 11.2 (
Title; negative pledge
), Clause 11.3 (
Disposal of assets
), Clause 11.17 (
Conduct of business; compliance
with laws
) in so far as it relates to Sanctions Laws, Clause 11.19 (
Compliance with Sanctions Laws
), Clause 12.2 (
Maintenance
of status
), Clause 12.3 (
No change of business
), Clause 12.4 (
No merger etc.
), Clause 12.8 (
Restrictions on
dividends
), Clause 12.11 (
Notification
of Sanctions), Clause 13 (
Insurance
), paragraph (c) of Clause 14.9 (
Compliance
with laws etc.
), or Clause 15.2 (
Provision of additional security; prepayment
); or
|
|
|
(c)
|
(subject to any applicable grace period in the relevant Finance Documents) any breach by the Borrower
or any Security Party occurs of any provision of a Finance Document (other than a breach covered by paragraphs (a) or (b)) and
if, in the opinion of the Majority Lenders, such default is capable of remedy, such default continues unremedied 30 days after
written notice from the Agent requesting action to remedy the same; or
|
|
|
(d)
|
any representation, warranty or statement made by, or by an officer of, the Borrower or a Security
Party in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document is untrue or
misleading in any material respect when it is made; or
|
|
|
(e)
|
any of the following occurs in relation to a Relevant Person:
|
|
|
(i)
|
a Relevant Person becomes, in the opinion of the Majority Lenders, unable to pay its debts as they
fall due; or
|
|
|
(ii)
|
a Relevant Person fails to comply with or pay any sum due from it under any final judgment or any
final order made or given by any court of competent jurisdiction or any assets of a Relevant Person are subject to any form of
execution, attachment, arrest, sequestration or distress in respect of a sum of, or sums aggregating, $10,000,000 or more or the
equivalent in another currency; or
|
|
|
(iii)
|
an administrator is appointed (whether by the court or otherwise) in respect of a Relevant Person
or any administrative or other receiver is appointed over any asset of a Relevant Person; or
|
|
|
(iv)
|
a Relevant Person makes any formal declaration of bankruptcy or any formal statement to the effect
that it is insolvent or likely to become insolvent, or an administration notice is given or filed in relation to a Relevant Person,
or a winding up or administration order is made in relation to a Relevant Person, or the members or directors of a Relevant Person
pass a resolution to the effect that it should be wound up, placed in administration or cease to carry on business, save that this
paragraph does not apply to a fully solvent winding up of a Relevant Person other than the Borrower which is, or is to be, effected
for the purposes of an amalgamation or reconstruction previously approved by the Majority Lenders and effected not later than 3
months after the commencement of the winding up; or
|
|
|
(v)
|
a petition is presented in any Pertinent Jurisdiction for the winding up or administration, or
the appointment of a provisional liquidator, of a Relevant Person unless the petition is being contested in good faith and on substantial
grounds and is dismissed or withdrawn within 30 days of the presentation of the petition; or
|
|
|
(vi)
|
a Relevant Person petitions a court, or presents any proposal for, any form of judicial or non-judicial
suspension or deferral of payments, reorganisation of its debt (or certain of its debt) or arrangement with all or a substantial
proportion (by number or value) of its creditors or of any class of them or any such suspension or deferral of payments, reorganisation
or arrangement is effected by court order, contract or otherwise; or
|
|
|
(vii)
|
any meeting of the members or directors of a Relevant Person is summoned for the purpose of considering
a resolution or proposal to authorise or take any action of a type described in paragraphs (iii), (iv), (v) or (vi); or
|
|
|
(viii)
|
in a Pertinent Jurisdiction other than England, any event occurs or any procedure is commenced
which, in the opinion of the Majority Lenders, is similar to any of the foregoing; or
|
|
|
(f)
|
any repayment of principal in respect of, or any payment of interest on, any Financial Indebtedness
of the Borrower is not paid when due nor within any originally applicable grace period (unless the due date for payment thereof
is rescheduled with the agreement of the relevant creditor before the expiry of such grace period);or
|
|
|
(g)
|
any Financial Indebtedness of the Borrower is declared to be or otherwise becomes due and payable
prior to its specified maturity as a result of an event of default (howsoever described); or
|
|
|
(h)
|
any commitment to the Borrower for any Financial Indebtedness is cancelled by a creditor of the
Borrower by reason of an event of default (however described); or
|
|
|
(i)
|
any Financial Indebtedness of the Borrower becomes capable of being declared due and payable prior
to its specified maturity or any commitment to the Borrower for any Financial Indebtedness becomes capable of being cancelled in
either case as a result of an event of default (howsoever described) and the event giving rise to that event of default is not
waived or remedied to the satisfaction of the relevant creditor within 30 days of its occurrence;
|
provided that (with
respect to sub-paragraphs (f) to (i) above) no Event of Default will occur under these sub-paragraphs (f) to (i) above if the aggregate
amount of the Financial Indebtedness or commitment for Financial Indebtedness falling within sub-paragraphs (f) to (i) above is
less than $10,000,000 (or its equivalent in any other currency or currencies).
|
|
(j)
|
the Borrower ceases or suspends carrying on its business or a part of its business which, in the
opinion of the Majority Lenders, is material in the context of this Agreement; or
|
|
|
(k)
|
it becomes unlawful in any Pertinent Jurisdiction or impossible:
|
|
|
(i)
|
for the Borrower or any Security Party to discharge any liability under a Finance Document or to
comply with any other obligation which the Majority Lenders consider material under a Finance Document; or
|
|
|
(ii)
|
for the Agent, the Security Trustee or the Lenders to exercise or enforce any right under, or to
enforce any Security Interest created by, a Finance Document; or
|
|
|
(l)
|
any provision which the Majority Lenders consider material of a Finance Document proves to have
been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes invalid
or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest or
any other third party claim or interest; or
|
|
|
(m)
|
any event or circumstance occurs which the Majority Lenders determine has, or could reasonably
be expected to have, a material adverse effect on:
|
|
|
(i)
|
the ability of the Borrower to perform its obligations under the Finance Documents; or
|
|
|
(ii)
|
the property, assets, nature of assets, operations, liabilities or condition (financial or otherwise)
of the Borrower or any of its subsidiaries; or
|
|
|
(n)
|
at any time, the Borrower is not in compliance with all material Environmental Laws relating to
the Ship, its ownership, operation and management or to the business of the Borrower; or
|
|
|
(o)
|
the Borrower rescinds or repudiates a Finance Document.
|
|
|
19.2
|
Actions following an Event of Default
|
On, or at any time after, the occurrence
of an Event of Default which is continuing:
|
|
(a)
|
the Agent may, and if so instructed by the Majority Lenders, the Agent shall:
|
|
|
(i)
|
serve on the Borrower a notice stating that the Commitments and all other obligations of each Lender
to the Borrower under this Agreement are terminated; and/or
|
|
|
(ii)
|
serve on the Borrower a notice stating that the Loan, all accrued interest and all other amounts
accrued or owing under this Agreement are immediately due and payable or are due and payable on demand; and/or
|
|
|
(iii)
|
take any other action which, as a result of the Event of Default or any notice served under paragraph
(i) or (ii), the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law; and/or
|
|
|
(b)
|
the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of the
Majority Lenders, the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under
paragraph (a) (i) or (ii), the Security Trustee, the Agent and/or the Lenders are entitled to take under any Finance Document or
any applicable law.
|
|
|
19.3
|
Termination of Commitments
|
On the service of a notice under
paragraph (a)(i) of Clause 19.2 (
Actions following an Event of Default
), the Commitments and all other obligations of each
Lender to the Borrower under this Agreement shall terminate.
|
|
19.4
|
Acceleration of Loan
|
On the service of a notice under
paragraph (a)(ii) of Clause 19.2 (
Actions following an Event of Default
), the Loan, all accrued interest and all other amounts
accrued or owing from the Borrower or any Security Party under this Agreement and every other Finance Document shall become immediately
due and payable or, as the case may be, payable on demand.
|
|
19.5
|
Default interest upon the occurrence of an Event of Default
|
On and at any time after the occurrence
of an Event of Default (other than pursuant to Clause 19.1(a)), the Agent may by notice to the Borrower declare that from the date
such Event of Default occurs and while such Event of Default is continuing interest shall accrue on the Loan and any other amounts
outstanding under the Finance Documents at the rate set out in Clause 7.1 (
Default interest
).
|
|
19.6
|
Multiple notices; action without notice
|
The Agent may serve notices under
paragraphs (a)(i) and (ii) of Clause 19.2 (
Actions following an Event of Default
) simultaneously or on different dates and
it and/or the Security Trustee may take any action referred to in Clause 19.2 (
Actions following an Event of Default
) if
no such notice is served or simultaneously with or at any time after the service of both or either of such notices.
|
|
19.7
|
Notification of Creditor Parties and Security Parties
|
The Agent shall send to each Lender,
the Security Trustee and each Security Party a copy or the text of any notice which the Agent serves on the Borrower under Clause
19.2 (
Actions following an Event of Default
); but the notice shall become effective when it is served on the Borrower, and
no failure or delay by the Agent to send a copy or the text of the notice to any other person shall invalidate the notice or provide
the Borrower or any Security Party with any form of claim or defence.
|
|
19.8
|
Creditor Party rights unimpaired
|
Nothing in this Clause shall be taken
to impair or restrict the exercise of any right given to individual Lenders under a Finance Document or the general law; and, in
particular, this Clause is without prejudice to Clause 3.1 (
Interests several
).
|
|
19.9
|
Exclusion of Creditor Party liability
|
No Creditor Party, and no receiver
or manager appointed by the Security Trustee, shall have any liability to the Borrower or a Security Party:
|
|
(a)
|
for any loss caused by an exercise of rights under, or enforcement of a Security Interest created
by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or
|
|
|
(b)
|
as mortgagee in possession or otherwise, for any income or principal amount which might have been
produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value
of such an asset;
|
except that this does not exempt
a Creditor Party or a receiver or manager from liability for losses shown to have been directly and mainly caused by the dishonesty
or the wilful misconduct of such Creditor Party's own officers and employees or (as the case may be) such receiver's or manager's
own partners or employees.
In no event shall any Creditor Party
be liable on any theory of liability for any special, indirect, consequential or punitive damages and the Borrower hereby waives,
releases and agrees not to sue upon any such claim for any such damages, whether or not accrued and whether or not known or suspected
to exist in its favour.
In this Clause 19 (
Events of Default
)
a "
Relevant Person
" means the Borrower, a Security Party or any of the Borrower's subsidiaries, but excluding
any company which is dormant and the value of whose gross assets is $5,000,000 or less.
In Clause 19.1(e) references to an
event of default or a termination event include any event, howsoever described, which is similar to an event of default in a facility
agreement or a termination event in a finance lease; and in Clause 19.1(e) "
petition
" includes an application.
|
|
20
|
Fees, Expenses and K-sure Premium
|
The Borrower shall pay to the Agent:
|
|
(a)
|
on or before the date of this Agreement, an arrangement fee of $880,000 for distribution to the
Mandated Lead Arrangers;
|
|
|
(b)
|
quarterly in arrears during the period from the date of this Agreement to the last day of the Availability
Period (or, if earlier, the date on which this Agreement is terminated), for the account of the relevant Lenders, a commitment
fee at the rate of:
|
|
|
(i)
|
in respect of the K-sure Advances, 35% of the applicable Margin for those Advances (being 0.525
per cent.) per annum on the Total Available Commitments relating to those Advances; and
|
|
|
(ii)
|
in respect of the Commercial Advances, 35% of the applicable Margin for those Advances (being 0.6825
per cent.) per annum on the Total Available Commitments relating to those Advances; and
|
for distribution among the relevant
Lenders pro rata to their Commitments in respect of the relevant Advances.
|
|
(a)
|
The Borrower shall pay to the K-sure Agent (for the account of K-sure) the K-sure Premium on or
prior to the first Drawdown Date.
|
|
|
(b)
|
The obligation of the Borrower to pay the K-sure Premium shall be an absolute obligation and shall
not be affected by any matter whatsoever (including the failure of the Borrower to utilise the facility). No part of the K-sure
Premium shall be refundable except in accordance with the terms of the K-sure Insurance Policy and K-sure's internal regulations.
|
|
|
(c)
|
If a Creditor Party receives a refund of the K-sure Premium from K-sure and if all amounts due
and owing by the Borrower under the Finance Documents at that time have been discharged in full, such refund shall be paid to the
Borrower.
|
|
|
(d)
|
The Borrower acknowledges that the amount of the K-sure Premium will be determined solely by K-sure
and no Creditor Party is in any way involved in the determination of the amount of the K-sure Premium and agrees that the Borrower
shall have no claim or defence against any Creditor Party in connection with the amount of the K-sure Premium.
|
The Borrower shall pay to the K-sure
Agent on demand (for the account of K-sure) any additional premium payable in respect of any amendment or waiver permitted by Clause
34 (
Variations and Waivers
) pursuant to the terms of the K-sure Insurance Policy.
|
|
20.3
|
Costs of negotiation, preparation etc.
|
The Borrower shall pay to the Agent
and K-sure on its demand the amount of all expenses incurred by the Agent or the Security Trustee or K-sure in connection with
the negotiation, preparation, execution or registration of any Finance Document or any related document or with any transaction
contemplated by a Finance Document or a related document.
|
|
20.4
|
Costs of variations, amendments, enforcement etc.
|
The Borrower shall pay to the Agent
and K-sure, on the Agent's or K-sure’s demand, for the account of the Creditor Party concerned and/or K-sure the amount of
all expenses incurred by that Creditor Party and/or K-sure in connection with:
|
|
(a)
|
any amendment or supplement to a Finance Document or any proposal for such an amendment to be made;
|
|
|
(b)
|
any consent or waiver by the Lenders, the Majority Lenders, K-sure or the Creditor Party concerned
under or in connection with a Finance Document, or any request for such a consent or waiver;
|
|
|
(c)
|
the valuation of any security provided or offered under Clause 15 (
Security Cover
) or any
other matter relating to such security; or
|
|
|
(d)
|
any step taken by the Creditor Party or K-sure concerned with a view to the protection, exercise
or enforcement of any right or Security Interest created by a Finance Document or for any similar purpose.
|
There shall be recoverable under
paragraph (d) the full amount of all legal expenses, whether or not such as would be allowed under rules of court or any taxation
or other procedure carried out under such rules.
The Borrower shall promptly pay any
tax payable on or by reference to any Finance Document or the K-sure Insurance Policy, and shall, on the Agent's demand, fully
indemnify each Creditor Party against any claims, expenses, liabilities and losses resulting from any failure or delay by the Borrower
to pay such a tax.
|
|
20.6
|
Certification of amounts
|
A notice which is signed by 2 officers
of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause
20 (
Fees, Expenses
) and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of
which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
|
21.1
|
Indemnities regarding borrowing and repayment of Loan
|
The Borrower shall fully indemnify
the Agent, K-sure and each Lender on the Agent's demand and the Security Trustee on its demand in respect of all claims, expenses,
liabilities and losses which are made or brought against or incurred by that Creditor Party as a result of or in connection with:
|
|
(a)
|
a Tranche not being borrowed on the date specified in the relevant Drawdown Notice for any reason
other than a default by the Lender claiming the indemnity;
|
|
|
(b)
|
the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the
last day of the applicable Interest Period or other relevant period;
|
|
|
(c)
|
any failure (for whatever reason) by the Borrower to make payment of any amount due under a Finance
Document on the due date or, if so payable, on demand (after giving credit for any default interest paid by the Borrower on the
amount concerned under Clause 7 (
Default Interest
));
|
|
|
(d)
|
the occurrence and/or continuance of an Event of Default or a Potential Event of Default and/or
the acceleration of repayment of the Loan under Clause 19 (
Events of Default
); and
|
|
|
(e)
|
in respect of any tax (other than tax on its overall net income under the law of the jurisdiction
in which that Creditor Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Creditor Party
is treated as resident for tax purposes or to the extent a claim, liability or loss relates to a FATCA Deduction required to be
made by a party to this Agreement) for which a Creditor Party is liable in connection with any amount paid or payable to that Creditor
Party (whether for its own account or otherwise) under any Finance Document or the K-sure Insurance Policy.
|
Without limiting its generality,
Clause 21.1 (
Indemnities regarding borrowing and repayment of Loan
) covers any Break Costs.
|
|
21.3
|
Miscellaneous indemnities
|
The Borrower shall fully indemnify
each Creditor Party or K-sure severally on their respective demands in respect of all claims, expenses, liabilities and losses
which may be made or brought against or incurred by a Creditor Party or K-sure, in any country, as a result of or in connection
with:
|
|
(a)
|
any action taken, or omitted or neglected to be taken, under or in connection with any Finance
Document by the Agent, the Security Trustee or any other Creditor Party or by any receiver appointed under a Finance Document;
or
|
|
|
(b)
|
any other Pertinent Matter;
|
other than claims, expenses, liabilities
and losses which are shown to have been caused by the gross negligence, dishonesty or wilful misconduct of the officers or employees
of the party to be indemnified.
If any sum due from the Borrower
or any Security Party to a Creditor Party under a Finance Document or under any order or judgment relating to a Finance Document
has to be converted from the currency in which the Finance Document provided for the sum to be paid (the "
Contractual Currency
")
into another currency (the "
Payment Currency
") for the purpose of:
|
|
(a)
|
making or lodging any claim or proof against the Borrower or any Security Party, whether in its
liquidation, any arrangement involving it or otherwise; or
|
|
|
(b)
|
obtaining an order or judgment from any court or other tribunal; or
|
|
|
(c)
|
enforcing any such order or judgment;
|
the Borrower shall indemnify within
3 Business Days of demand the Creditor Party and K-sure concerned against the loss arising when the amount of the payment actually
received by that Creditor Party is converted at the available rate of exchange into the Contractual Currency.
In this Clause
21.4 (
Currency indemnity
), the "
available rate of exchange
" means the rate at which the Creditor Party
concerned is able at the opening of business (London time) on the Business Day after it receives the sum concerned to purchase
the Contractual Currency with the Payment Currency.
This Clause 21.4 (
Currency indemnity
)
creates a separate liability of the Borrower which is distinct from its other liabilities under the Finance Documents and which
shall not be merged in any judgment or order relating to those other liabilities.
|
|
21.5
|
Sanctions and regulatory indemnities
|
The Borrower shall pay to the Agent
and K-sure on demand, and the Borrower shall indemnify each Lender agai
n
st,
all costs, charges, expenses, claims, liabilities, losses, duties and fees (including, but not limited to, legal fees and expenses
on a full indemnity basis) and taxes thereon suffered or incurred by a Lender (other than in each case by reason of a Lender's
gross negligence, dishonesty or wilful misconduct):
|
|
(a)
|
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code,
any Environmental Law or any Sanctions Law; or
|
|
|
(b)
|
as a result of any claim, action, civil penalty or fine against, any settlement, and any other
kind of loss or liability, and as a result of conduct of the Borrower or any of the Borrower’s partners, directors, officers,
employees or agents that violates any Sanctions Laws.
|
|
|
21.6
|
Certification of amounts
|
A notice which is signed by 2 officers
of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause
21 (
Indemnities
) and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which
the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
|
21.7
|
Sums deemed due to a Lender
|
For the purposes of this Clause 21
(
Indemnities
), a sum payable by the Borrower to the Agent or the Security Trustee for distribution to a Lender shall be
treated as a sum due to that Lender.
|
|
22
|
No Set-Off or Tax Deduction
|
All amounts due from the Borrower
under a Finance Document shall be paid:
|
|
(a)
|
without any form of set-off, cross-claim or condition; and
|
|
|
(b)
|
free and clear of any Tax Deduction except a Tax Deduction which the Borrower is required by law
to make.
|
|
|
22.2
|
Grossing-up for taxes
|
Subject as provided in Clause 31.17
(
Tax indemnity, tax gross-up and increased costs on assignment, transfer and change of lending office
), if the Borrower
is required by law to make a Tax Deduction from any payment:
|
|
(a)
|
the Borrower shall notify the Agent as soon as it becomes aware of the requirement;
|
|
|
(b)
|
the Borrower shall pay the tax deducted to the appropriate taxation authority promptly, and in
any event before any fine or penalty arises;
|
|
|
(c)
|
the amount due in respect of the payment shall be increased by the amount necessary to ensure that
each Creditor Party receives and retains (free from any liability relating to the Tax Deduction) a net amount which, after the
Tax Deduction, is equal to the full amount which it would otherwise have received; and
|
|
|
(d)
|
the Borrower shall, as soon as reasonably practicable after making the relevant Tax Deduction,
deliver to the Agent a copy of the receipt from the relevant taxation authority evidencing that the tax had been paid to that authority.
|
|
|
22.3
|
Evidence of payment of taxes
|
Promptly, and in any event within
1 month after making any Tax Deduction, the Borrower concerned shall deliver to the Agent for the Creditor Party entitled to the
payment an original receipt (or certified copy thereof) satisfactory to that Creditor Party evidencing that the tax had been paid
to the appropriate taxation authority.
A Creditor Party which has obtained
(and has derived full use and benefit, on an affiliated group basis, of) a repayment or credit in respect of tax on account of
which the Borrower has made an increased payment under Clause 22.2 (
Grossing-up for taxes
) shall pay to the Borrower a sum
equal to the proportion of the repayment or credit which that Creditor Party allocates to the amount due from the Borrower in respect
of which the Borrower made the increased payment
Provided that
:
|
|
(a)
|
the Creditor Party shall not be obliged to allocate to this transaction any part of a tax repayment
or credit which is referable to a class or number of transactions;
|
|
|
(b)
|
nothing in this Clause 22.4 (
Tax credit
) shall oblige a Creditor Party to arrange its tax
affairs in any particular manner, to claim any type of relief, credit, allowance or deduction instead of, or in priority to, another
or to make any such claim within any particular time;
|
|
|
(c)
|
nothing in this Clause 22.4 (
Tax credit
) shall oblige a Creditor Party to make a payment
which would leave it in a worse position than it would have been in if the Borrower had not been required to make a Tax Deduction
from a payment;
|
|
|
(d)
|
any allocation or determination made by a Creditor Party under or in connection with this Clause
22.4 (
Tax credit
) shall be conclusive and binding on the Borrower and the other Creditor Parties;
|
|
|
(e)
|
nothing in this Clause 22.4 (
Tax credit
) shall oblige any Creditor Party to disclose any
information relating to its affairs (tax or otherwise) or those of its ultimate parent company (or any subsidiary thereof) or any
computations in respect of tax; and
|
|
|
(f)
|
the Creditor Party's tax affairs for its tax year in respect of which such credit or repayment
was obtained have been finally settled.
|
In this Clause 22 (
No Set-Off
or Tax Deduction
) "
Tax Deduction
" means any deduction or withholding for or on account of any present or future
tax other than a FATCA Deduction.
|
|
(a)
|
All amounts expressed to be payable under a Finance Document by any party to a Creditor Party shall
be deemed to be exclusive of any VAT. If VAT is chargeable on any supply made by any Creditor Party to any part in connection with
a Finance Document, that party shall pay to the Creditor Party (in additional to and at the same time as paying the consideration)
an amount equal to the amount of the VAT.
|
|
|
(b)
|
Where a Finance Document requires any party to reimburse a Creditor Party for any costs or expenses,
that party shall also at the same time pay and indemnify the Creditor Party against all VAT incurred by the Creditor Party in respect
of the costs or expenses to the extent that the Creditor Party reasonably determines that it is not entitled to credit or repayment
of the VAT.
|
|
|
(a)
|
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request
by another Party:
|
|
|
(i)
|
confirm to that other Party whether it is:
|
|
|
(A)
|
a FATCA Exempt Party; or
|
|
|
(B)
|
not a FATCA Exempt Party;
|
|
|
(ii)
|
supply to that other Party such forms, documentation and other information relating to its status
under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
|
|
(iii)
|
supply to that other Party such forms, documentation and other information relating to its status
as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange
of information regime.
|
|
|
(b)
|
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt
Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other
Party reasonably promptly.
|
|
|
(c)
|
Paragraph (a) above shall not oblige any Party to do anything, which would or might in its reasonable
opinion constitute a breach of:
|
|
|
(i)
|
any law or regulation;
|
|
|
(ii)
|
any fiduciary duty; or
|
|
|
(iii)
|
any duty of confidentiality.
|
|
|
(d)
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation
or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where
paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them)
as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation
or other information.
|
|
|
(a)
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required
in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such
a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
|
|
(b)
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there
is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition,
shall notify the Borrower and the Agent and the Agent shall notify the other Creditor Parties.
|
|
|
22.9
|
Benefit of this Clause
|
K-sure will have the benefit of a
Lender's rights under this Clause 22 (
No Set-Off or Tax Deduction
) to the extent that Lender's rights under this Clause
22 (
No Set-Off or Tax Deduction
) have been fully or partly and properly assigned, transferred, subrogated or novated to
K-sure, together with any other ancillary rights under the Finance Document required to give effect to this Clause 22 (
No Set-Off
or Tax Deduction
).
This Clause 23 (
Illegality, etc.
)
applies if a Lender (the "
Notifying Lender
") notifies the Agent that it has become, or will with effect from a
specified date, become:
|
|
(a)
|
unlawful or prohibited as a result of the introduction of a new law, an amendment to an existing
law or a change in the manner in which an existing law is or will be interpreted or applied; or
|
|
|
(b)
|
contrary to, or inconsistent with, any regulation and/or contrary to or declared by any Sanctions
Authority to be contrary to Sanctions Laws,
|
for the Notifying Lender to maintain
or give effect to any of its obligations under this Agreement in the manner contemplated by this Agreement.
|
|
23.2
|
Notification of illegality
|
The Agent shall promptly notify the
Borrower, the Security Parties, the Security Trustee and the other Lenders of the notice under Clause 23 (
Illegality, etc.
)
which the Agent receives from the Notifying Lender.
|
|
23.3
|
Prepayment; termination of Commitment
|
On the Agent notifying the Borrower
under Clause 23.2 (
Notification of illegality
), the Notifying Lender's Commitment shall terminate; and thereupon or, if
later, on the date specified in the Notifying Lender's notice under Clause 23 (
Illegality, etc.
) as the date on which the
notified event would become effective the Borrower shall prepay the Notifying Lender's Contribution in accordance with Clause 8
(
Repayment, Prepayment and Cancellation
).
If circumstances arise which would
result in a notification under Clause 23 (
Illegality, etc.
) then, without in any way limiting the rights of the Notifying
Lender under Clause 23.3 (
Prepayment; termination of Commitment
), the Notifying Lender shall use reasonable endeavours
to transfer its obligations, liabilities and rights under this Agreement and the Finance Documents to another office or financial
institution not affected by the circumstances but the Notifying Lender shall not be under any obligation to take any such action
if, in its opinion, to do would or might:
|
|
(a)
|
have an adverse effect on its business, operations or financial condition; or
|
|
|
(b)
|
involve it in any activity which is unlawful or prohibited or any activity that is contrary to,
or inconsistent with, any regulation; or
|
|
|
(c)
|
involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
|
|
|
24
|
The Agent, the Arrangers and the Reference Banks
|
|
|
24.1
|
Appointment of the Agent
|
|
|
(a)
|
Each of the Arrangers and the Lenders appoints the Agent to act as its agent under and in connection
with the Finance Documents.
|
|
|
(b)
|
Each of the Arrangers and the Lenders authorises the Agent to perform the duties, obligations and
responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under, or in connection
with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
|
|
(i)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising
any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:
|
|
|
(A)
|
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
|
|
(B)
|
in all other cases, the Majority Lenders; and
|
|
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with
sub-paragraph (i) above (or, if this Agreement stipulates the matter is a decision for any other Creditor Party or group of Creditor
Parties, in accordance with instructions given to it by that Creditor Party or group of Creditor Parties).
|
|
|
(b)
|
The Agent shall be entitled to request instructions, or clarification of any instruction, from
the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Creditor Party or
group of Creditor Parties, from that Creditor Party or group of Creditor Parties) as to whether, and in what manner, it should
exercise or refrain from exercising any right, power, authority or discretion and the Agent may refrain from acting unless and
until it receives any such instructions or clarification that it has requested.
|
|
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Creditor Party or group of
Creditor Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions
given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding
on all Creditor Parties.
|
|
|
(d)
|
Paragraph (a) above shall not apply:
|
|
|
(i)
|
where a contrary indication appears in a Finance Document;
|
|
|
(ii)
|
where a Finance Document requires the Agent to act in a specified manner or to take a specified
action;
|
|
|
(iii)
|
in respect of any provision which protects the Agent's own position in its personal capacity as
opposed to its role of Agent for the relevant Creditor Parties.
|
|
|
(e)
|
If giving effect to instructions given by the Majority Lenders would in the Agent's opinion have
an effect equivalent to an amendment or waiver referred to in Clause 34 (
Variations and Waivers
), the Agent shall not act
in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Agent) whose consent
would have been required in respect of that amendment or waiver.
|
|
|
(f)
|
In exercising any discretion to exercise a right, power or authority under the Finance Documents
where it has not received any instructions as to the exercise of that discretion the Agent shall do so having regard to the interests
of all the Creditor Parties.
|
|
|
(g)
|
The Agent may refrain from acting in accordance with any instructions of any Creditor Party or
group of Creditor Parties until it has received any indemnification and/or security that it may in its discretion require (which
may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss
or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
|
|
(h)
|
Without prejudice to the remainder of this Clause 24.2 (
Instructions
), in the absence of
instructions, the Agent shall not be obliged to take any action (or refrain from taking action) even if it considers acting or
not acting to be in the best interests of the Creditor Parties. The Agent may act (or refrain from acting) as it considers to be
in the best interest of the Creditor Parties.
|
|
|
(i)
|
The Agent is not authorised to act on behalf of a Creditor Party (without first obtaining that
Creditor Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not
apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Finance
Documents or enforcement of the Finance Documents.
|
|
|
(a)
|
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
|
|
(b)
|
Subject to paragraph (c) below, the Agent shall promptly forward to a Party the original or a copy
of any document which is delivered to the Agent for that Party by any other Party.
|
|
|
(c)
|
Without prejudice to Clause 31.3 (
Transfer Certificate, delivery and notification
), paragraph
(b) above shall not apply to any Transfer Certificate.
|
|
|
(d)
|
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review
or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
|
|
(e)
|
If the Agent receives notice from a Party referring to any Finance Document, describing an Event
of Default and stating that the circumstance described is an Event of Default, it shall promptly notify the other Creditor Parties.
|
|
|
(f)
|
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee
payable to a Creditor Party (other than the Agent, the Arranger or the Security Trustee) under this Agreement, it shall promptly
notify the other Creditor Parties.
|
|
|
(g)
|
The Agent shall have only those duties, obligations and responsibilities expressly specified in
the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
|
|
24.4
|
Role of the Arranger
|
Except as specifically provided in
the Finance Documents, the Arrangers have no obligations of any kind to any other Party under or in connection with any Finance
Document.
|
|
(a)
|
Nothing in any Finance Document constitutes the Agent or the Arranger as a trustee or fiduciary
of any other person.
|
|
|
(b)
|
Neither the Agent nor the Arranger shall be bound to account to other Creditor Party for any sum
or the profit element of any sum received by it for its own account.
|
|
|
24.6
|
Application of receipts
|
Except as expressly stated to the
contrary in any Finance Document, any moneys which the Agent receives or recovers in its capacity as Agent shall be applied by
the Agent in accordance with Clause 17 (
Application of Receipts
).
|
|
24.7
|
Business with the Group
|
The Agent and the Arrangers may accept
deposits from, lend money to, and generally engage in any kind of banking or other business with, any member of the Group.
|
|
24.8
|
Rights and discretions
|
|
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct
and appropriately authorised;
|
|
|
(A)
|
any instructions received by it from the Majority Lenders, any Creditor Parties or any group of
Creditor Parties are duly given in accordance with the terms of the Finance Documents; and
|
|
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
|
|
(iii)
|
rely on a certificate from any person:
|
|
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge
of that person; or
|
|
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or
thing,
|
as sufficient evidence that that is
the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.
|
|
(b)
|
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for
the Creditor Parties) that:
|
|
|
(i)
|
no Event of Default has occurred (unless it has actual knowledge of an Event of Default arising
under paragraph (a) of Clause 19.1 (
Events of Default
); and
|
|
|
(ii)
|
any right, power, authority or discretion vested in any Party or any group of Creditor Parties
has not been exercised.
|
|
|
(c)
|
The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers,
surveyors or other professional advisers or experts.
|
|
|
(d)
|
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent may
at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any
lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be desirable.
|
|
|
(e)
|
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors
or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any
damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
|
|
(f)
|
The Agent may act in relation to the Finance Documents and the Security Property through its officers,
employees and agents and shall not:
|
|
|
(i)
|
be liable for any error of judgment made by any such person; or
|
|
|
(ii)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct,
omission or default on the part of any such person, unless such error or such loss was directly caused by the Agent's gross negligence
or wilful misconduct.
|
|
|
(g)
|
Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party
any information it reasonably believes it has received as agent under the Finance Documents.
|
|
|
(h)
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent
nor the Arrangers are obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach
of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
|
|
(i)
|
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged
to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities
or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate
indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
|
|
24.9
|
Responsibility for documentation
|
Neither the Agent nor the Arrangers
are responsible or liable for:
|
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by
the Agent, the Security Trustee, the Arrangers, the Borrower or any other person in, or in connection with, any Finance Document
or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance Document; or
|
|
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Pertinent Document or
the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under
or in connection with, any Pertinent Document or the Security Property.
|
The Agent shall not be bound to enquire:
|
|
(a)
|
whether or not any Event of Default has occurred;
|
|
|
(b)
|
as to the performance, default or any breach by the Borrower of its obligations under any Finance
Document; or
|
|
|
(c)
|
whether any other event specified in any Finance Document has occurred.
|
|
|
24.11
|
Exclusion of liability
|
|
|
(a)
|
Without limiting paragraph (b) below (or any other provision of any Finance Document excluding
or limiting the liability of the Agent), the Agent will not be liable for:
|
|
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever
arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property,
unless directly caused by its gross negligence or wilful misconduct;
|
|
|
(ii)
|
exercising, or not exercising, any right, power, authority or discretion given to it by, or in
connection with, any Finance Document, the Security Property or any other agreement, arrangement or document entered into, made
or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
|
|
(iii)
|
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
|
|
(iv)
|
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses
to any person, any diminution in value or any liability whatsoever arising as a result of:
|
|
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
|
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
including (in each case and without
limitation) such damages, costs, losses, diminution in value or liability arising as a result of nationalisation, expropriation
or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the
execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction
of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism,
insurrection or revolution; or strikes or industrial action.
|
|
(b)
|
No Party other than the Agent may take any proceedings against any officer, employee or agent of
the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Agent
may rely on this Clause.
|
|
|
(c)
|
The Agent will not be liable for any delay (or any related consequences) in crediting an account
with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon
as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system
used by the Agent for that purpose.
|
|
|
(d)
|
Nothing in this Agreement shall oblige the Agent or the Arrangers to carry out:
|
|
|
(i)
|
any "know your customer" or other checks in relation to any person; or
|
|
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful
for any Creditor Party,
|
on behalf of any Creditor Party and
each Creditor Party confirms to the Agent and the Arrangers that it is solely responsible for any such checks it is required to
carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Arrangers.
|
|
(e)
|
Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability,
any liability of the Agent arising under or in connection with any Finance Document or the Security Property shall be limited to
the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the
date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference
to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall
the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special,
punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.
|
|
|
24.12
|
Lenders' indemnity to the Agent
|
|
|
(a)
|
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments
are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within
three Business Days of demand, against any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent's
gross negligence or wilful misconduct) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by
the Borrower pursuant to a Finance Document).
|
|
|
(b)
|
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for
any payment that Lender makes to the Agent pursuant to paragraph (a) above.
|
|
|
(c)
|
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which
the Lender claims reimbursement relates to a liability of the Agent to the Borrower.
|
|
|
24.13
|
Resignation of the Agent
|
|
|
(a)
|
The Agent may resign and appoint one of its Affiliates acting through an office as successor by
giving notice to the other Creditor Parties and the Borrower.
|
|
|
(b)
|
Alternatively, the Agent may resign by giving 30 days' notice to the other Creditor Parties and
the Borrower, in which case the Majority Lenders (after consultation with the Borrower) may appoint as a successor Agent any reputable
financial institution.
|
|
|
(c)
|
If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above
within 20 days after notice of resignation was given, the retiring Agent (after consultation with the Borrower) may appoint as
a successor Agent any reputable financial institution.
|
|
|
(d)
|
The retiring Agent shall make available to the successor Agent such documents and records and provide
such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance
Documents.
|
|
|
(e)
|
The Agent's resignation notice shall only take effect upon the appointment of a successor.
|
|
|
(f)
|
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation
in respect of the Finance Documents (other than its obligations under paragraph (d) above) but shall remain entitled to the benefit
of Clause 21.1 (
Indemnities regarding borrowing and repayment of Loan
) and this Clause 24 (
The Agent, the Arrangers and
the Reference Banks
) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or
to indemnify it) in acting as Agent. Any fees for the account of the retiring Agent shall cease to accrue from (and shall be payable
on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they
would have had if such successor had been an original Party.
|
|
|
(g)
|
After consultation with the Borrower, the Majority Lenders may, by notice to the Agent, require
it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.
|
|
|
(h)
|
The consent of the Borrower is not required for an assignment or transfer of rights and/or obligations
by the Agent.
|
|
|
(i)
|
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall
use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three
months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
|
|
(i)
|
the Agent fails to respond to a request under Clause 22.7 (
FATCA information
) and a Lender
reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application
Date;
|
|
|
(ii)
|
the information supplied by the Agent pursuant to Clause 22.7 (
FATCA information
) indicates
that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
|
|
(iii)
|
the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased
to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
and (in each case) a Lender reasonably
believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party,
and that Lender, by notice to the Agent, requires it to resign.
|
|
(a)
|
In acting as Agent for the Creditor Parties, the Agent shall be regarded as acting through its
agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
|
|
(b)
|
If information is received by a division or department of the Agent other than the division or
department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated
as confidential to that division or department, and the Agent shall not be deemed to have notice of it nor shall it be obliged
to disclose such information to any Party.
|
|
|
(c)
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent
nor the Arrangers are obliged to disclose to any other person (i) any confidential information or (ii) any other information if
the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary
duty.
|
|
|
24.15
|
Relationship with the other Creditor Parties
|
|
|
(a)
|
The Agent may treat the person shown in its records as Lender at the opening of business (in the
place of the Agent's principal office as notified to the Creditor Parties from time to time) as the Lender acting through its Facility
Office:
|
|
|
(i)
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
|
|
(ii)
|
entitled to receive and act upon any notice, request, document or communication or make any decision
or determination under any Finance Document made or delivered on that day,
|
unless it has received not less than
five Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement.
|
|
(b)
|
Each Creditor Party shall supply the Agent with any information that the Security Trustee may reasonably
specify (through the Agent) as being necessary or desirable to enable the Security Trustee to perform its functions as Security
Trustee. Each Creditor Party shall deal with the Security Trustee exclusively through the Agent and shall not deal directly with
the Security Trustee and any reference to any instructions being given by or sought from any Creditor Party or group of Creditor
Parties by or to the Security Trustee in this Agreement must be given or sought through the Agent.
|
|
|
(c)
|
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications,
information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address,
fax number and (where communication by electronic mail or other electronic means is permitted under Clause 36.7 (
Electronic
communication
) electronic mail address and/or any other information required to enable the transmission of information by that
means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as
a notification of a substitute address, fax number, electronic mail address (or such other information), department and officer
by that Lender for the purposes of Clause 36.2 (
Addresses for communications
) and Clause 36.7 (
Electronic communication
)
and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information
and documents as though that person were that Lender.
|
|
|
24.16
|
Credit appraisal by the Creditor Parties
|
Without affecting the responsibility
of the Borrower for information supplied by it or on its behalf in connection with any Document, each Creditor Party confirms to
the Agent and the Arrangers that it has been, and will continue to be, solely responsible for making its own independent appraisal
and investigation of all risks arising under, or in connection with, any Document including but not limited to:
|
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
|
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the
Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or
in connection with any Finance Document or the Security Property;
|
|
|
(c)
|
whether that Creditor Party has recourse, and the nature and extent of that recourse, against any
Party or any of its respective assets under, or in connection with, any Finance Document, the Security Property, the transactions
contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation
of, under or in connection with any Finance Document or the Security Property;
|
|
|
(d)
|
the adequacy, accuracy or completeness of any information provided by the Agent, any Party or by
any other person under, or in connection with, any Finance Document, the transactions contemplated by any Finance Document or any
other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance
Document; and
|
|
|
(e)
|
the right or title of any person in or to or the value or sufficiency of any part of the Security
Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Assets.
|
|
|
24.17
|
Deduction from amounts payable by the Agent
|
If any Party owes an amount to the
Agent under the Finance Documents, the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount
from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount
deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded
as having received any amount so deducted.
|
|
24.18
|
Reliance and engagement letters
|
Each Secured Party confirms that
each of the Arranger and the Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters
or reports already accepted by the Arrangers or the Agent) the terms of any reliance letter or engagement letters or any reports
or letters provided by accountants, auditors or providers of due diligence reports in connection with the Finance Documents or
the transactions contemplated in the Finance Documents and to bind it in respect of those, reports or letters and to sign such
letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters.
|
|
24.19
|
Full freedom to enter into transactions
|
Without prejudice to Clause 24.7
(
Business with the Group
) or any other provision of a Finance Document and notwithstanding any rule of law or equity to
the contrary, the Agent shall be absolutely entitled:
|
|
(a)
|
to enter into and arrange banking, derivative, investment and/or other transactions of every kind
with or affecting the Borrower or any person who is party to, or referred to in, a Finance Document (including, but not limited
to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent
and/or security trustee for, and/or participating in, other facilities to such Borrower or any person who is party to, or referred
to in, a Finance Document);
|
|
|
(b)
|
to deal in and enter into and arrange transactions relating to:
|
|
|
(i)
|
any securities issued or to be issued by the Borrower or any other person; or
|
|
|
(ii)
|
any options or other derivatives in connection with such securities; and
|
|
|
(c)
|
to provide advice or other services to the Borrower or any person who is a party to, or referred
to in, a Finance Document,
|
and, in particular, the Agent shall
be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such transactions and in connection
with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation) any information
or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings, transactions
or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits
derived from the dealings transactions or other matters.
|
|
(a)
|
The Security Trustee declares that it holds the Security Property on trust for the Creditor Parties
on the terms contained in this Agreement and shall deal with the Security Property in accordance with this Clause 25 (
The Security
Trustee
) and the other provisions of the Finance Documents.
|
|
|
(b)
|
Each other Creditor Party authorises the Security Trustee to perform the duties, obligations and
responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Trustee under,
or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
|
|
25.2
|
Parallel Debt (Covenant to pay the Security Trustee)
|
|
|
(a)
|
The Borrower irrevocably and unconditionally undertakes to pay to the Security Trustee its Parallel
Debt which shall be amounts equal to, and in the currency or currencies of, its Corresponding Debt.
|
The Parallel Debt of the Borrower:
|
|
(i)
|
shall become due and payable at the same time as its Corresponding Debt;
|
|
|
(ii)
|
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
|
|
(b)
|
For purposes of this Clause 25.2 (
Parallel Debt (Covenant to pay the Security Trustee))
,
the Security Trustee:
|
|
|
(i)
|
is the independent and separate creditor of each Parallel Debt;
|
|
|
(ii)
|
acts in its own name and not as agent, representative or trustee of the Creditor Parties and its
claims in respect of each Parallel Debt shall not be held on trust; and
|
|
|
(iii)
|
shall have the independent and separate right to demand payment of each Parallel Debt in its own
name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications
for and voting in any kind of insolvency proceeding).
|
|
|
(c)
|
The Parallel Debt of the Borrower shall be:
|
|
|
(i)
|
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid
or discharged; and
|
|
|
(ii)
|
increased to the extent that its Corresponding Debt has increased,
|
and the Corresponding Debt of the Borrower
shall be:
|
|
(A)
|
decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or
discharged; and
|
|
|
(B)
|
increased to the extent that its Parallel Debt has increased,
|
in each case provided that the Parallel
Debt of the Borrower shall never exceed its Corresponding Debt.
|
|
(d)
|
All amounts received or recovered by the Security Trustee in connection with this Clause 25.2 (
Parallel
Debt (Covenant to pay the Security Trustee))
to the extent permitted by applicable law, shall be applied in accordance with
Clause 17 (
Application of Receipts
).
|
|
|
(e)
|
This Clause 25.2 (
Parallel Debt (Covenant to pay the Security Trustee))
shall apply, with
any necessary modifications, to each Finance Document.
|
|
|
25.3
|
Enforcement through Security Trustee only
|
The Creditor Parties shall not have
any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any right, power, authority
or discretion arising under the Finance Documents except through the Security Trustee.
|
|
(a)
|
The Security Trustee shall:
|
|
|
(i)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising
any right, power, authority or discretion vested in it as Security Trustee in accordance with any instructions given to it by:
|
|
|
(A)
|
all Lenders (or the Agent on their behalf) if the relevant Finance Document stipulates the matter
is an all Lender decision; and
|
|
|
(B)
|
in all other cases, the Majority Lenders (or the Agent on their behalf); and
|
|
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with
sub-paragraph (i) above (or if this Agreement stipulates the matter is a decision for any other Creditor Party or group of Creditor
Parties, in accordance with instructions given to it by that Creditor Party or group of Creditor Parties).
|
|
|
(b)
|
The Security Trustee shall be entitled to request instructions, or clarification of any instruction,
from the Majority Lenders (or the Agent on their behalf) (or, if the relevant Finance Document stipulates the matter is a decision
for any other Creditor Party or group of Creditor Parties, from that Creditor Party or group of Creditor Parties) as to whether,
and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Trustee
may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
|
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Creditor Party or group of
Creditor Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions
given to the Security Trustee by the Majority Lenders shall override any conflicting instructions given by any other Parties and
will be binding on all Creditor Parties.
|
|
|
(d)
|
Paragraph (a) above shall not apply:
|
|
|
(i)
|
where a contrary indication appears in a Finance Document;
|
|
|
(ii)
|
where a Finance Document requires the Security Trustee to act in a specified manner or to take
a specified action;
|
|
|
(iii)
|
in respect of any provision which protects the Security Trustee's own position in its personal
capacity as opposed to its role of Security Trustee for the relevant Secured Parties.
|
|
|
(iv)
|
in respect of the exercise of the Security Trustee's discretion to exercise a right, power or authority
under any of:
|
|
|
(A)
|
Clause 25.28 (
Application of receipts
);
|
|
|
(B)
|
Clause 25.29 (
Permitted Deductions
); and
|
|
|
(C)
|
Clause 25.30 (
Prospective liabilities
).
|
|
|
(e)
|
If giving effect to instructions given by the Majority Lenders would in the Security Trustee's
opinion have an effect equivalent to an amendment or waiver referred to in Clause 34 (
Variations and Waivers
), the Security
Trustee shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than
the Security Trustee) whose consent would have been required in respect of that amendment or waiver.
|
|
|
(f)
|
In exercising any discretion to exercise a right, power or authority under the Finance Documents
where either:
|
|
|
(i)
|
it has not received any instructions as to the exercise of that discretion; or
|
|
|
(ii)
|
the exercise of that discretion is subject to sub-paragraph (iv) of paragraph (d) above,
|
the Security Trustee shall do so
having regard to the interests of all the Creditor Parties.
|
|
(g)
|
The Security Trustee may refrain from acting in accordance with any instructions of any Creditor
Party or group of Creditor Parties until it has received any indemnification and/or security that it may in its discretion require
(which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any
cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
|
|
(h)
|
Without prejudice to the remainder of this Clause 25.4 (
Instructions
), in the absence of
instructions, the Security Trustee may (but shall not be obliged to) take such action in the exercise of its powers and duties
under the Finance Documents as it considers in its discretion to be appropriate.
|
|
|
(i)
|
The Security Trustee is not authorised to act on behalf of a Creditor Party (without first obtaining
that Creditor Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall
not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Finance
Documents or enforcement of the Finance Documents.
|
|
|
25.5
|
Duties of the Security Trustee
|
|
|
(a)
|
The Security Trustee's duties under the Finance Documents are solely mechanical and administrative
in nature.
|
|
|
(b)
|
The Security Trustee shall promptly forward to a Party the original or a copy of any document which
is delivered to the Security Trustee for that Party by any other Party.
|
|
|
(c)
|
Except where a Finance Document specifically provides otherwise, the Security Trustee is not obliged
to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
|
|
(d)
|
If the Security Trustee receives notice from a Party referring to any Finance Document, describing
a Default and stating that the circumstance described is a Default, it shall promptly notify the other Creditor Parties.
|
|
|
(e)
|
The Security Trustee shall have only those duties, obligations and responsibilities expressly specified
in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
|
|
(a)
|
Nothing in any Finance Document constitutes the Security Trustee as an agent, trustee or fiduciary
of the Borrower.
|
|
|
(b)
|
The Security Trustee shall not be bound to account to any other Secured Party for any sum or the
profit element of any sum received by it for its own account.
|
|
|
25.7
|
Business with the Group
|
The Security Trustee may accept deposits
from, lend money to, and generally engage in any kind of banking or other business with, any member of the Group.
|
|
25.8
|
Rights and discretions
|
|
|
(a)
|
The Security Trustee may:
|
|
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct
and appropriately authorised;
|
|
|
(A)
|
any instructions received by it from the Majority Lenders, any Creditor Parties or any group of
Creditor Parties are duly given in accordance with the terms of the Finance Documents;
|
|
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked;
|
|
|
(C)
|
if it receives any instructions to act in relation to the Transaction Security, that all applicable
conditions under the Finance Documents for so acting have been satisfied; and
|
|
|
(iii)
|
rely on a certificate from any person:
|
|
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge
of that person; or
|
|
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or
thing,
|
as sufficient evidence that that is
the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.
|
|
(b)
|
The Security Trustee shall be entitled to carry out all dealings with the other Creditor Parties
through the Agent and may give to the Agent any notice or other communication required to be given by the Security Trustee to any
Creditor Party.
|
|
|
(c)
|
The Security Trustee may assume (unless it has received notice to the contrary in its capacity
as security trustee for the Creditor Parties) that:
|
|
|
(i)
|
no Event of Default has occurred; and
|
|
|
(ii)
|
any right, power, authority or discretion vested in any Party or any group of Creditor Parties
has not been exercised.
|
|
|
(d)
|
The Security Trustee may engage and pay for the advice or services of any lawyers, accountants,
tax advisers, surveyors or other professional advisers or experts.
|
|
|
(e)
|
Without prejudice to the generality of paragraph (c) above or paragraph (f) below, the Security
Trustee may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Trustee (and
so separate from any lawyers instructed by the Agent or the Lenders) if the Security Trustee in its reasonable opinion deems this
to be desirable.
|
|
|
(f)
|
The Security Trustee may rely on the advice or services of any lawyers, accountants, tax advisers,
surveyors or other professional advisers or experts (whether obtained by the Security Trustee or by any other Party) and shall
not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a
result of its so relying.
|
|
|
(g)
|
The Security Trustee may act in relation to the Finance Documents and the Security Property through
its officers, employees and agents and shall not:
|
|
|
(i)
|
be liable for any error of judgment made by any such person; or
|
|
|
(ii)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct,
omission or default on the part of any such person,
|
unless such error or such loss was
directly caused by the Security Trustee's gross negligence or wilful misconduct.
|
|
(h)
|
Unless a Finance Document expressly provides otherwise the Security Trustee may disclose to any
other Party any information it reasonably believes it has received as security trustee under the Finance Documents.
|
|
|
(i)
|
Notwithstanding any other provision of any Finance Document to the contrary, the Security Trustee
is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of confidentiality.
|
|
|
(j)
|
Notwithstanding any provision of any Finance Document to the contrary, the Security Trustee is
not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations
or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment
of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
|
|
25.9
|
Responsibility for documentation
|
None of the Security Trustee or any
Receiver is responsible or liable for:
|
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by
the Agent, the Security Trustee, the Arranger, the Borrower or any other person in, or in connection with, any Finance Document
or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance Document; or
|
|
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the
Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in
connection with, any Finance Document or the Security Property.
|
The Security Trustee shall not be
bound to enquire:
|
|
(a)
|
whether or not any Event of Default has occurred;
|
|
|
(b)
|
as to the performance, default or any breach by the Borrower of its obligations under any Finance
Document; or
|
|
|
(c)
|
whether any other event specified in any Finance Document has occurred.
|
|
|
25.11
|
Exclusion of liability
|
|
|
(a)
|
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance
Document excluding or limiting the liability of the Security Trustee or any Receiver), none of the Security Trustee nor any Receiver
will be liable for:
|
|
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever
arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property,
unless directly caused by its gross negligence or wilful misconduct;
|
|
|
(ii)
|
exercising, or not exercising, any right, power, authority or discretion given to it by, or in
connection with, any Finance Document, the Security Property or any other agreement, arrangement or document entered into, made
or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
|
|
(iii)
|
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
|
|
(iv)
|
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses
to any person, any diminution in value or any liability whatsoever arising as a result of:
|
|
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
|
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
including (in each case and without
limitation) such damages, costs, losses, diminution in value or liability arising as a result of nationalisation, expropriation
or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the
execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction
of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism,
insurrection or revolution; or strikes or industrial action.
|
|
(b)
|
No Party other than the Security Trustee or that Receiver (as applicable) may take any proceedings
against any officer, employee or agent of the Security Trustee or a Receiver in respect of any claim it might have against the
Security Trustee or a Receiver or in respect of any act or omission of any kind by that officer, employee or agent in relation
to any Finance Document or any Security Property.
|
|
|
(c)
|
The Security Trustee will not be liable for any delay (or any related consequences) in crediting
an account with an amount required under the Finance Documents to be paid by the Security Trustee if the Security Trustee has taken
all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised
clearing or settlement system used by the Security Trustee for that purpose.
|
|
|
(d)
|
Nothing in this Agreement shall oblige the Security Trustee to carry out:
|
|
|
(i)
|
any "know your customer" or other checks in relation to any person; or
|
|
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful
for any Creditor Party,
|
on behalf of any Creditor Party and
each Creditor Party confirms to the Security Trustee that it is solely responsible for any such checks it is required to carry
out and that it may not rely on any statement in relation to such checks made by the Security Trustee.
|
|
(e)
|
Without prejudice to any provision of any Finance Document excluding or limiting the liability
of the Security Trustee or any Receiver, any liability of the Security Trustee or any Receiver arising under or in connection with
any Finance Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined
to have been suffered (as determined by reference to the date of default of the Security Trustee or Receiver or, if later, the
date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known
to the Security Trustee or any Receiver at any time which increase the amount of that loss. In no event shall the Security Trustee
or any Receiver be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special,
punitive, indirect or consequential damages, whether or not the Security Trustee or the Receiver has been advised of the possibility
of such loss or damages.
|
|
|
25.12
|
Lenders' indemnity to the Security Trustee
|
|
|
(a)
|
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments
are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Trustee
and every Receiver, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise
than by reason of the Security Trustee's or Receiver's gross negligence or wilful misconduct) in acting as Security Trustee or
Receiver under the Finance Documents (unless the Security Trustee or Receiver has been reimbursed by the Borrower pursuant to a
Finance Document).
|
|
|
(b)
|
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for
any payment that Lender makes to the Security Trustee pursuant to paragraph (a) above.
|
|
|
(c)
|
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which
the Lender claims reimbursement relates to a liability of the Security Trustee to the Borrower.
|
|
|
25.13
|
Resignation of the Security Trustee
|
|
|
(a)
|
The Security Trustee may resign and appoint one of its Affiliates acting through an office as successor
by giving notice to the other Creditor Parties and the Borrower.
|
|
|
(b)
|
Alternatively, the Security Trustee may resign by giving 30 days' notice to the other Creditor
Parties and the Borrower, in which case the Majority Lenders (after consultation with the Borrower) may appoint as a successor
Security Trustee any reputable financial institution.
|
|
|
(c)
|
If the Majority Lenders have not appointed a successor Security Trustee in accordance with paragraph
(b) above within 20 days after notice of resignation was given, the retiring Security Trustee (after consultation with the Borrower)
may appoint as a successor Security Trustee any reputable financial institution.
|
|
|
(d)
|
The retiring Security Trustee shall make available to the successor Security Trustee such documents
and records and provide such assistance as the successor Security Trustee may reasonably request for the purposes of performing
its functions as Security Trustee under the Finance Documents. The Borrower shall, within three Business Days of demand, reimburse
the retiring Security Trustee for the amount of all costs and expenses (including legal fees) properly incurred by it in making
available such documents and records and providing such assistance.
|
|
|
(e)
|
The Security Trustee's resignation notice shall only take effect upon:
|
|
|
(i)
|
the appointment of a successor; and
|
|
|
(ii)
|
the transfer, by way of a document expressed as a deed, of all the Security Property to that successor.
|
|
|
(f)
|
Upon the appointment of a successor, the retiring Security Trustee shall be discharged, by way
of a document executed as a deed, from any further obligation in respect of the Finance Documents (other than its obligations under
paragraph (b) of Clause 25.25 (
Winding up of trust
) and paragraph (d) above) but shall remain entitled to the benefit of
Clause 21.1 (
Indemnities regarding borrowing and repayment of Loan
) and this Clause 25 (
The Security
Trustee) and
any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting
as Security Trustee. Any fees for the account of the retiring Security Trustee shall cease to accrue from (and shall be payable
on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they
would have had if such successor had been an original Party.
|
|
|
(g)
|
The Majority Lenders may, by notice to the Security Trustee, require it to resign in accordance
with paragraph (b) above. In this event, the Security Trustee shall resign in accordance with paragraph (b) above but the cost
referred to in paragraph (d) above shall be for the account of the Borrower.
|
|
|
(h)
|
The consent of the Borrower is not required for an assignment or transfer of rights and/or obligations
by the Security Trustee.
|
|
|
(a)
|
In acting as Security Trustee for the Creditor Parties, the Security Trustee shall be regarded
as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or departments.
|
|
|
(b)
|
If information is received by a division or department of the Security Trustee other than the division
or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be
treated as confidential to that division or department, and the Security Trustee shall not be deemed to have notice of it nor shall
it be obliged to disclose such information to any Party.
|
|
|
(c)
|
Notwithstanding any other provision of any Finance Document to the contrary, the Security Trustee
is not obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure
would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty.
|
|
|
25.15
|
Credit appraisal by the Creditor Parties
|
Without affecting the responsibility
of the Borrower for information supplied by it or on its behalf in connection with any Finance Document, each Creditor Party confirms
to the Security Trustee that it has been, and will continue to be, solely responsible for making its own independent appraisal
and investigation of all risks arising under, or in connection with, any Finance Document including but not limited to:
|
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
|
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the
Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or
in connection with any Finance Document or the Security Property;
|
|
|
(c)
|
whether that Creditor Party has recourse, and the nature and extent of that recourse, against any
Party or any of its respective assets under, or in connection with, any Finance Document, the Security Property, the transactions
contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation
of, under or in connection with any Finance Document or the Security Property;
|
|
|
(d)
|
the adequacy, accuracy or completeness of any information provided by the Security Trustee, any
Party or by any other person under, or in connection with, any Finance Document, the transactions contemplated by any Finance Document
or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with
any Finance Document; and
|
|
|
(e)
|
the right or title of any person in or to or the value or sufficiency of any part of the Security
Assets, the priority of any of the Transaction Security or the existence of any Security affecting the Security Assets.
|
|
|
25.16
|
Security Trustee's management time
|
|
|
(ii)
|
the Security Trustee being requested by the Borrower or the Majority Lenders to undertake duties
which the Security Trustee and the Borrower agree to be of an exceptional nature or outside the scope of the normal duties of the
Security Trustee under the Finance Documents; or
|
|
|
(iii)
|
the Security Trustee and the Borrower agreeing that it is otherwise appropriate in the circumstances,
|
the Borrower shall pay to the Security
Trustee any additional remuneration (together with any applicable VAT) that may be agreed between them or determined pursuant to
paragraph (b) below.
|
|
(b)
|
If the Security Trustee and the Borrower fail to agree upon the nature of the duties, or upon the
additional remuneration referred to in paragraph (a) above or whether additional remuneration is appropriate in the circumstances,
any dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Trustee
and approved by the Borrower or, failing approval, nominated (on the application of the Security Trustee) by the President for
the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by
the Borrower) and the determination of any investment bank shall be final and binding upon the Parties.
|
|
|
25.17
|
Reliance and engagement letters
|
Each Secured Party confirms that
the Security Trustee has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports
already accepted by the Security Trustee) the terms of any reliance letter or engagement letters or any reports or letters provided
by accountants, auditors or providers of due diligence reports in connection with the Finance Documents or the transactions contemplated
in the Finance Documents and to bind it in respect of those, reports or letters and to sign such letters on its behalf and further
confirms that it accepts the terms and qualifications set out in such letters.
|
|
25.18
|
No responsibility to perfect Transaction Security
|
The Security Trustee shall not be
liable for any failure to:
|
|
(a)
|
require the deposit with it of any deed or document certifying, representing or constituting the
title of the Borrower to any of the Security Assets;
|
|
|
(b)
|
obtain any licence, consent or other authority for the execution, delivery, legality, validity,
enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
|
|
(c)
|
register, file or record or otherwise protect any of the Transaction Security (or the priority
of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution of any Finance
Document or of the Transaction Security;
|
|
|
(d)
|
take, or to require the Borrower to take, any step to perfect its title to any of the Security
Assets or to render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation;
or
|
|
|
(e)
|
require any further assurance in relation to any Finance Document.
|
|
|
25.19
|
Insurance by Security Trustee
|
|
|
(a)
|
The Security Trustee shall not be obliged:
|
|
|
(i)
|
to insure any of the Security Assets;
|
|
|
(ii)
|
to require any other person to maintain any insurance; or
|
|
|
(iii)
|
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
and the Security
Trustee shall not be liable for any damages, costs or losses to any person as a result of the lack of, or inadequacy of, any such
insurance.
|
|
(b)
|
Where the Security Trustee is named on any insurance policy as an insured party, it shall not be
liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of any material fact relating
to the risk assumed by such insurers or any other information of any kind, unless the Majority Lenders request it to do so in writing
and the Security Trustee fails to do so within 14 days after receipt of that request.
|
|
|
25.20
|
Custodians and nominees
|
The Security Trustee may appoint
and pay any person to act as a custodian or nominee on any terms in relation to any asset of the trust as the Security Trustee
may determine, including for the purpose of depositing with a custodian this Agreement or any document relating to the trust created
under this Agreement and the Security Trustee shall not be responsible for any loss, liability, expense, demand, cost, claim or
proceedings incurred by reason of the misconduct, omission or default on the part of any person appointed by it under this Agreement
or be bound to supervise the proceedings or acts of any person.
|
|
25.21
|
Delegation by the Security Trustee
|
|
|
(a)
|
Each of the Security Trustee and any Receiver may, at any time, delegate by power of attorney or
otherwise to any person for any period, all or any right, power, authority or discretion vested in it in its capacity as such.
|
|
|
(b)
|
That delegation may be made upon any terms and conditions (including the power to sub delegate)
and subject to any restrictions that the Security Trustee or that Receiver (as the case may be) may, in its discretion, think fit
in the interests of the Secured Parties.
|
|
|
(c)
|
No Security Trustee or Receiver shall be bound to supervise, or be in any way responsible for any
damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any such delegate or sub delegate.
|
|
|
25.22
|
Additional Security Trustees
|
|
|
(a)
|
The Security Trustee may at any time appoint (and subsequently remove) any person to act as a separate
trustee or as a co-trustee jointly with it:
|
|
|
(i)
|
if it considers that appointment to be in the interests of the Creditor Parties; or
|
|
|
(ii)
|
for the purposes of conforming to any legal requirement, restriction or condition which the Security
Trustee deems to be relevant; or
|
|
|
(iii)
|
for obtaining or enforcing any judgment in any jurisdiction,
|
and the Security Trustee shall give
prior notice to the Borrower and the Creditor Parties of that appointment.
|
|
(b)
|
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding
those given to the Security Trustee under or in connection with the Finance Documents) and the duties, obligations and responsibilities
that are given or imposed by the instrument of appointment.
|
|
|
(c)
|
The remuneration that the Security Trustee may pay to that person (after consultation with the
Borrower), and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant
to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Trustee.
|
|
|
25.23
|
Acceptance of title
|
The Security Trustee shall be entitled
to accept without enquiry, and shall not be obliged to investigate, any right and title that the Borrower may have to any of the
Security Assets and shall not be liable for or bound to require the Borrower to remedy any defect in its right or title.
Upon a disposal of any of the Security
Assets pursuant to the enforcement of the Transaction Security by a Receiver or the Security Trustee, the Security Trustee is irrevocably
authorised (at the cost of the Borrower and without any consent, sanction, authority or further confirmation from any other Creditor
Party) to release, without recourse or warranty, that property from the Transaction Security and to execute any release of the
Transaction Security or other claim over that asset and to issue any certificates of non-crystallisation of floating charges that
may be required or desirable.
|
|
25.25
|
Winding up of trust
|
If the Security Trustee, with the
approval of the Agent determines that:
|
|
(a)
|
all of the Secured Liabilities and all other obligations secured by the Finance Documents have
been fully and finally discharged; and
|
|
|
(b)
|
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make
advances or provide other financial accommodation to the Borrower pursuant to the Finance Documents,
|
then
|
|
(i)
|
the trusts set out in this Agreement shall be wound up and the Security Trustee shall release,
without recourse or warranty, all of the Transaction Security and the rights of the Security Trustee under each of the Finance
Documents; and
|
|
|
(ii)
|
any Security Trustee which has resigned pursuant to Clause 25.13 (
Resignation of the Security
Trustee
) shall release, without recourse or warranty, all of its rights under each Finance Document.
|
|
|
25.26
|
Powers supplemental to Trustee Acts
|
The rights, powers, authorities and
discretions given to the Security Trustee under or in connection with the Finance Documents shall be supplemental to the Trustee
Act 1925 and the Trustee Act 2000 and in addition to any which may be vested in the Security Trustee by law or regulation or otherwise.
|
|
25.27
|
Disapplication of Trustee Acts
|
Section 1 of the Trustee Act 2000
shall not apply to the duties of the Security Trustee in relation to the trusts constituted by this Agreement and the other Finance
Documents. Where there are any inconsistencies between (i) the Trustee Acts 1925 and 2000 and (ii) the provisions of this Agreement
and any other Finance Document, the provisions of this Agreement and any other Finance Document shall, to the extent permitted
by law and regulation, prevail and, in the case of any inconsistency with the Trustee Act 2000, the provisions of this Agreement
and any other Finance Document shall constitute a restriction or exclusion for the purposes of the Trustee Act 2000.
|
|
25.28
|
Application of receipts
|
All amounts from time to time received
or recovered by the Security Trustee pursuant to the terms of any Finance Document, under Clause 25.2 (
Parallel Debt (Covenant
to pay the Security Trustee)
) or in connection with the realisation or enforcement of all or any part of the Security Property
(for the purposes of this Clause 25 (
The Security
Trustee), the "
Recoveries
") shall be held by the Security
Trustee on trust to apply them at any time as the Security Trustee (in its discretion) sees fit, to the extent permitted by applicable
law (and subject to the remaining provisions of this Clause 25 (
The Security
Trustee), in the following order of priority:
|
|
(a)
|
in discharging any sums owing to the Security Trustee (in its capacity as such) (other than pursuant
to Clause 25.2 (
Parallel Debt (Covenant to pay the Security Trustee)
) or any Receiver;
|
|
|
(b)
|
in payment or distribution to the Agent, on its behalf and on behalf of the other Creditor Parties,
for application towards the discharge of all sums due and payable by the Borrower under any of the Finance Documents in accordance
with Clause 17 (
Application of Receipts
);
|
|
|
(c)
|
if the Borrower is not under any further actual or contingent liability under any Finance Document,
in payment or distribution to any person to whom the Security Trustee is obliged to pay or distribute in priority to the Borrower;
and
|
|
|
(d)
|
the balance, if any, in payment or distribution to the Borrower.
|
|
|
25.29
|
Permitted Deductions
|
The Security Trustee may, in its
discretion:
|
|
(a)
|
set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings
(on account of Taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment
made by it under this Agreement; and
|
|
|
(b)
|
pay all Taxes which may be assessed against it in respect of any of the Security Property, or as
a consequence of performing its duties, or by virtue of its capacity as Security Trustee under any of the Finance Documents or
otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
|
|
|
25.30
|
Prospective liabilities
|
Following acceleration the Security
Trustee may, in its discretion, or at the request of the Agent, hold any Recoveries in an interest bearing suspense or impersonal
account(s) in the name of the Security Trustee with such financial institution (including itself) and for so long as the Security
Trustee shall think fit (the interest being credited to the relevant account) for later payment to the Agent for application in
accordance with Clause 25.28 (
Application of receipts
) in respect of:
|
|
(a)
|
any sum to the Security Trustee or any Receiver; and
|
|
|
(b)
|
any part of the Secured Liabilities,
|
that the Security Trustee or, in
the case of paragraph (b) only, the Agent, reasonably considers, in each case, might become due or owing at any time in the future.
|
|
25.31
|
Investment of proceeds
|
Prior to the payment of the proceeds
of the Recoveries to the Agent for application in accordance with Clause 25.28 (
Application of receipts
) the Security Trustee
may, in its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name
of the Security Trustee with such financial institution (including itself) and for so long as the Security Trustee shall think
fit (the interest being credited to the relevant account) pending the payment from time to time of those moneys in the Security
Trustee's discretion in accordance with the provisions of Clause 25.28 (
Application of receipts
).
|
|
25.32
|
Currency conversion
|
|
|
(a)
|
For the purpose of, or pending the discharge of, any of the Secured Liabilities the Security Trustee
may convert any moneys received or recovered by the Security Trustee from one currency to another, at a market rate of exchange.
|
|
|
(b)
|
The obligations of the Borrower to pay in the due currency shall only be satisfied to the extent
of the amount of the due currency purchased after deducting the costs of conversion.
|
|
|
(a)
|
Any payment to be made in respect of the Secured Liabilities by the Security Trustee may be made
to the Agent on behalf of the Creditor Parties and any payment made in that way shall be a good discharge, to the extent of that
payment, by the Security Trustee.
|
|
|
(b)
|
The Security Trustee is under no obligation to make the payments to the Agent under paragraph (a)
above in the same currency as that in which the obligations and liabilities owing to the relevant Creditor Party are denominated.
|
|
|
25.34
|
Amounts received by Borrower
|
If the Borrower receives or recovers
any amount which, under the terms of any of the Finance Documents, should have been paid to the Security Trustee, the Borrower
will hold the amount received or recovered on trust for the Security Trustee and promptly pay that amount to the Security Trustee
for application in accordance with the terms of this Agreement.
|
|
25.35
|
Full freedom to enter into transactions
|
Without prejudice to Clause 25.7
(
Business with the Group
) or any other provision of a Finance Document and notwithstanding any rule of law or equity to
the contrary, the Security Trustee shall be absolutely entitled:
|
|
(a)
|
to enter into and arrange banking, derivative, investment and/or other transactions of every kind
with or affecting the Borrower or any person who is party to, or referred to in, a Finance Document (including, but not limited
to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent
and/or security trustee for, and/or participating in, other facilities to such Borrower or any person who is party to, or referred
to in, a Finance Document);
|
|
|
(b)
|
to deal in and enter into and arrange transactions relating to:
|
|
|
(i)
|
any securities issued or to be issued by the Borrower or any other person; or
|
|
|
(ii)
|
any options or other derivatives in connection with such securities; and
|
|
|
(c)
|
to provide advice or other services to the Borrower or any person who is a party to, or referred
to in, a Finance Document,
|
and, in particular, the Security
Trustee shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such transactions
and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing
legislation) any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from
disclosing such dealings, transactions or other matters or any information acquired in connection with them and to retain for its
sole benefit all profits and benefits derived from the dealings transactions or other matters.
|
|
26.1
|
Appointment and duties of K-sure Agent
|
|
|
(a)
|
Each K-sure Lender appoints the K-sure Agent to act as its agent under and in connection with the
K-sure Insurance Policy and the Finance Documents.
|
|
|
(b)
|
Each K-sure Lender authorises the K-sure Agent to exercise the rights, powers, authorities and
discretions specifically given to the K-sure Agent under, or in connection with, the K-sure Insurance Policy and the Finance Documents
together with any other incidental rights, powers, authorities and discretions.
|
|
|
(c)
|
The K-sure Agent shall promptly forward to each K-sure Lender the original or a copy of any document
which is delivered to the K-sure Agent for that K-sure Lender by any other Party or by K-sure.
|
|
|
(d)
|
Except where the K-sure Insurance Policy or a Finance Document specifically provides otherwise,
the K-sure Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another
Party.
|
|
|
(e)
|
The K-sure Agent's duties under the K-sure Insurance Policy and the Finance Documents are solely
mechanical and administrative in nature.
|
|
|
26.2
|
Application of certain Clauses
|
The provisions of Clauses 24.7 (
Business
with the Group
), 24.8 (
Rights and discretions
), 24.2 (
Instructions
), 24.9 (
Responsibility for documentation
),
24.11 (
Exclusion of liability
), 24.12 (
Lenders' indemnity to the Agent
), 24.13 (
Resignation of the Agent
),
24.14 (
Confidentiality
), 24.15 (
Relationship with the other Creditor Parties
), 24.16 (
Credit appraisal by the
Creditor Parties
) and 24.19 (
Full freedom to enter into transactions
) shall apply in respect of the K-sure Agent in
its capacity as such as if each reference to the Agent were a reference to the K-sure Agent and each reference to the Finance Documents
included a reference to the K-sure Insurance Policy.
|
|
26.3
|
Lenders' representations
|
Each K-sure Lender represents and
warrants to the K-sure Agent that:
|
|
(a)
|
no information provided by it in writing to the K-sure Agent or to K-sure prior to the date of
this Agreement was untrue or incorrect in any material respect except to the extent that it, in the exercise of reasonable care
and due diligence prior to giving such information, could not have discovered the error or omission;
|
|
|
(b)
|
it has not taken (or failed to take), and agrees that it shall not take (or fail to take), any
action that would result in the K-sure Agent being in breach of any of its obligations in its capacity as K-sure Agent under the
K-sure Insurance Policy or any of the Finance Documents, or result in the K-sure Lenders being in breach of any of their respective
obligations as insured parties under the K-sure Insurance Policy, or which would otherwise prejudice the K-sure Agent's ability
to make a claim on behalf of the K-sure Lenders under the K-sure Insurance Policy;
|
|
|
(c)
|
it has reviewed the K-sure Insurance Policy and is aware of its provisions; and
|
|
|
(d)
|
the representations and warranties made by the K-sure Agent on its behalf under the K-sure Insurance
Policy are true and correct with respect to it in all respects.
|
|
|
26.4
|
Claims under K-sure Insurance Policy
|
|
|
(a)
|
All communication between the Creditor Parties and K-sure shall be carried out exclusively through
the K-sure Agent.
|
|
|
(b)
|
Each K-sure Lender acknowledges and agrees that it shall have no entitlement to make any claim
or to take any action whatsoever under or in connection with the K-sure Insurance Policy except through the K-sure Agent and that
all of the rights of the K-sure Lenders under the K-sure Insurance Policy shall only be exercised by the K-sure Agent.
|
|
|
27
|
Conduct of Business by the Creditor Parties
|
No provision of this Agreement will:
|
|
(a)
|
interfere with the right of any Creditor Party to arrange its affairs (tax or otherwise) in whatever
manner it thinks fit;
|
|
|
(b)
|
oblige any Creditor Party to investigate or claim any credit, relief, remission or repayment available
to it or the extent, order and manner of any claim; or
|
oblige any Creditor Party to disclose
any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
|
28
|
Sharing among the Creditor Parties
|
|
|
28.1
|
Payments to Creditor Parties
|
If a Creditor Party (a "
Recovering
Creditor Party
") receives or recovers any amount from the Borrower other than in accordance with Clause 16 (
Payments
and Calculations
) (a "
Recovered Amount
") and applies that amount to a payment due to it under the Finance
Documents then:
|
|
(a)
|
the Recovering Creditor Party shall, within three Business Days, notify details of the receipt
or recovery, to the Agent;
|
|
|
(b)
|
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering
Creditor Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance
with Clause 16 (
Payments and Calculations
), without taking account of any Tax which would be imposed on the Agent in relation
to the receipt, recovery or distribution; and
|
|
|
(c)
|
the Recovering Creditor Party shall, within three Business Days of demand by the Agent, pay to
the Agent an amount (the "
Sharing Payment
") equal to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Creditor Party as its share of any payment to be made, in accordance with Clause 17.1
(
Normal order of application
).
|
|
|
28.2
|
Redistribution of payments
|
The Agent shall treat the Sharing
Payment as if it had been paid by the Borrower and distribute it among the Creditor Parties (other than the Recovering Creditor
Party) (the "
Sharing Creditor Parties
") in accordance with Clause 17.1 (
Normal order of application
) towards
the obligations of the Borrower to the Sharing Creditor Parties.
|
|
28.3
|
Recovering Creditor Party's rights
|
On a distribution by the Agent under
Clause 28.2 (
Redistribution of payments
) of a payment received by a Recovering Creditor Party from the Borrower, as between
the Borrower and the Recovering Creditor Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated
as not having been paid by the Borrower.
|
|
28.4
|
Reversal of redistribution
|
If any part of the Sharing Payment
received or recovered by a Recovering Creditor Party becomes repayable and is repaid by that Recovering Creditor Party, then:
|
|
(a)
|
each Sharing Creditor Party shall, upon request of the Agent, pay to the Agent for the account
of that Recovering Creditor Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an
amount as is necessary to reimburse that Recovering Creditor Party for its proportion of any interest on the Sharing Payment which
that Recovering Creditor Party is required to pay) (the "
Redistributed Amount
"); and
|
|
|
(b)
|
as between the Borrower and each relevant Sharing Creditor Party, an amount equal to the relevant
Redistributed Amount will be treated as not having been paid by the Borrower.
|
|
|
(a)
|
This Clause 28 (
Sharing among the Creditor Parties
) shall not apply to the extent that the
Recovering Creditor Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against
the Borrower.
|
|
|
(b)
|
A Recovering Creditor Party is not obliged to share with any other Creditor Party any amount which
the Recovering Creditor Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
|
|
(i)
|
it notified that other Creditor Party of the legal or arbitration proceedings; and
|
|
|
(ii)
|
that other Creditor Party had an opportunity to participate in those legal or arbitration proceedings
but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
|
|
(a)
|
Subject to Clause 29.3 (
Exceptions
), the Borrower shall, within three Business Days of a
demand by the Agent, pay for the account of a Creditor Party the amount of any Increased Costs incurred by that Creditor Party
or any of its Affiliates as a result of:
|
|
|
(i)
|
the introduction of or any change in (or in the interpretation, administration or application of)
any law or regulation; or
|
|
|
(ii)
|
compliance with any law or regulation made,
|
in each case after the date of this
Agreement; or
|
|
(iii)
|
the implementation, application of or compliance with Basel III or CRD IV or any law or regulation
that implements or applies Basel III or CRD IV.
|
|
|
(A)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel
III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework
for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical
capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or
restated;
|
|
|
(B)
|
the rules for global systemically important banks contained in "Global systemically important
banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee
on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
|
|
(C)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating
to "Basel III".
|
|
|
(A)
|
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential
requirements for credit institutions and investment firms and amending regulation (EU) No. 648/2012;
|
|
|
(B)
|
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to
the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive
2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC; and
|
|
|
(C)
|
any other law or regulation which implements Basel III.
|
|
|
(iii)
|
"
Increased Costs
" means:
|
|
|
(A)
|
a reduction in the rate of return from a Facility or on a Creditor Party's (or its Affiliate's)
overall capital;
|
|
|
(B)
|
an additional or increased cost; or
|
|
|
(C)
|
a reduction of any amount due and payable under any Finance Document,
|
which is incurred or suffered by a
Creditor Party or any of its Affiliates to the extent that it is attributable to that Creditor Party having entered into its Commitment
or funding or performing its obligations under any Finance Document.
|
|
29.2
|
Increased cost claims
|
|
|
(a)
|
A Creditor Party intending to make a claim pursuant to Clause 29 (
Increased Costs
) shall
notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.
|
|
|
(b)
|
Each Creditor Party shall, as soon as practicable after a demand by the Agent, provide a certificate
confirming the amount of its Increased Costs.
|
Clause 29 (
Increased Costs
)
does not apply to the extent any Increased Cost is:
|
|
(a)
|
attributable to a Tax Deduction required by law to be made by the Borrower;
|
|
|
(b)
|
attributable to a FATCA Deduction required to be made by a Party;
|
|
|
(c)
|
compensated for by Clause 21.1 (e) (
Indemnities regarding borrowing and repayment of Loan
)
22.2 (
Grossing-up for taxes
) (or would have been compensated for under Clauses 21.1 (e) (
Indemnities regarding borrowing
and repayment of Loan
) or Clause 22.2 (
Grossing-up for taxes
) but was not so compensated solely because of any of the
exclusions therein applied), Clause 31.17 (
Tax indemnity, tax gross-up and increased costs on assignment, transfer and change
of lending office
) (or would have been compensated for under Clause 31.17 (
Tax indemnity, tax gross-up and increased costs
on assignment, transfer and change of lending office
) but was not so compensated solely because any of the exclusions in Clause
31.17 (
Tax indemnity, tax gross-up and increased costs on assignment, transfer and change of lending office
)applied); or
|
|
|
(d)
|
attributable to the wilful breach by the relevant Creditor Party or its Affiliates of any law or
regulation.
|
|
|
29.4
|
Notification to Borrower of claim for increased costs
|
The Agent shall promptly notify the
Borrower and the Security Parties of the notice which the Agent received from the Notifying Lender under Clause 29.1 (
Increased
costs
) and there shall then be a 60 day consultation period for the Borrower and Notifying Lender to discuss the particular
increased cost and amount to be paid to the Notifying Lender.
|
|
29.5
|
Payment of increased costs
|
Unless something to the contrary
is agreed by the Borrower and the Notifying Lender during the 60 day consultation period referred to in 29.4 (
Notification to
Borrower of claim for increased costs
), the Borrower shall pay to the Agent, on the Agent’s demand, for the account of
the Notifying Lender the amounts which the Agent from time to time notifies the Borrower that the Notifying Lender has specified
to be necessary to compensate the Notifying Lender for the increased cost.
|
|
29.6
|
Notice of prepayment
|
If the Borrower is not willing to
continue to compensate the Notifying Lender for the increased cost under Clause 29.5 (
Payment of increased costs
), the Borrower
may give the Agent not less than 5 Business Days’ notice of its intention to prepay the Notifying Lender’s Contribution
or to procure a Transferee Lender.
|
|
29.7
|
Prepayment; termination of Commitment
|
A notice of prepayment under Clause
29.6 (
Notice of prepayment
) shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrower's
notice of intended prepayment; and:
|
|
(a)
|
on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall
be cancelled; and
|
|
|
(b)
|
on the date specified in its notice of intended prepayment, the Borrower shall prepay (without
premium or penalty) the Notifying Lender's Contribution, together with accrued interest thereon at the applicable rate plus the
applicable Margin.
|
|
|
29.8
|
Application of prepayment
|
Clause 8 (
Repayment, Prepayment
and Cancellation
) shall apply in relation to the prepayment.
|
|
30.1
|
Application of credit balances
|
Each Creditor Party may, at any time
after the occurrence of an Event of Default which is continuing, without prior notice:
|
|
(a)
|
apply any balance (whether or not then due) which at any time stands to the credit of any account
in the name of the Borrower at any office in any country of that Creditor Party in or towards satisfaction of any sum then due
from the Borrower to that Creditor Party under any of the Finance Documents; and
|
|
|
(i)
|
break, or alter the maturity of, all or any part of a deposit of the Borrower;
|
|
|
(ii)
|
convert or translate all or any part of a deposit or other credit balance into Dollars;
|
|
|
(iii)
|
enter into any other transaction or make any entry with regard to the credit balance which the
Creditor Party concerned considers appropriate.
|
|
|
30.2
|
Existing rights unaffected
|
No Creditor Party shall be obliged
to exercise any of its rights under Clause 30.1 (
Application of credit balances
); and those rights shall be without prejudice
and in addition to any right of set-off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party
is entitled (whether under the general law or any document).
|
|
30.3
|
Sums deemed due to a Lender
|
For the purposes of this Clause 30
(
Set-
Off), a sum payable by the Borrower to the Agent or the Security Trustee for distribution to, or for the account of,
a Lender shall be treated as a sum due to that Lender; and each Lender's proportion of a sum so payable for distribution to, or
for the account of, the Lenders shall be treated as a sum due to such Lender.
|
|
30.4
|
No Security Interest
|
This Clause 30 (
Set-
Off)
gives the Creditor Parties a contractual right of set-off only and does not create any equitable charge or other Security Interest
over any credit balance of the Borrower.
|
|
31
|
Transfers and Changes in Lending Offices
|
|
|
31.1
|
Transfer by Borrower
|
The Borrower may not, without the
consent of the Agent given on the instructions of all the Lenders, transfer any of its rights, liabilities or obligations under
any Finance Document.
|
|
31.2
|
Transfer by a Lender
|
Subject to Clause 31.4 (
Effective
Date of Transfer Certificate
) and without prejudice to any requirement for the consent of K-sure under the terms of the K-sure
Insurance Policy, a Lender (the "
Transferor Lender
") may, at its own cost, with the prior written consent of the
Borrower (not to be unreasonably withheld or delayed) or without the consent of the Borrower if an Event of Default has occurred
and is continuing or if to an Affiliate of the Lender, cause:
|
|
(a)
|
its rights in respect of all or pro rata parts of its Contribution; or
|
|
|
(b)
|
its obligations in respect of all or pro rata parts of its Commitment; or
|
|
|
(c)
|
a combination of (a) and (b);
|
to be (in the case of its rights)
transferred to, or (in the case of its obligations) assumed by, another bank or financial institution, or to a trust, fund or other
entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or
other financial assets (a "
Transferee Lender
") by delivering to the Agent a completed certificate in the form
set out in Schedule 4 (
Transfer Certificate
) with any modifications approved or required by the Agent (a "
Transfer
Certificate
") executed by the Transferor Lender and the Transferee Lender
Provided that
a Lender may make such
transfer to any wholly owned subsidiary of it, to its parent company or to another subsidiary of its parent company without the
consent of the Borrower or the Agent and the fee referred to in Clause 31.11 (
Registration fee
) shall not apply in relation
to any such transfer.
Without prejudice to the foregoing,
any such transfer by a Lender shall be subject to the following further conditions:
|
|
(i)
|
the amount of the Contribution and/or Commitment of the Lender which is to be transferred shall
not be less than $10,000,000 or, if less, the remaining amount of its Contribution and Commitment, unless the Agent agrees otherwise;
|
|
|
(ii)
|
where no Potential Event of Default has occurred and is continuing or Event of Default has occurred
and is continuing, the Agent shall approve the transfer (such approval not to be unreasonably withheld);
|
|
|
(iii)
|
payment of the fee in accordance with Clause 31.11 (
Registration fee
).
|
|
|
31.3
|
Transfer Certificate, delivery and notification
|
As soon as reasonably practicable
after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate
may be defective):
|
|
(a)
|
sign the Transfer Certificate on behalf of itself, the Borrower, the Security Parties, the Security
Trustee and each of the other Lenders;
|
|
|
(b)
|
on behalf of the Transferee Lender, send to the Borrower and each Security Party letters or faxes
notifying them of the Transfer Certificate and attaching a copy of it;
|
|
|
(c)
|
send to the Transferee Lender copies of the letters or faxes sent under paragraph (b).
|
|
|
31.4
|
Effective Date of Transfer Certificate
|
A Transfer Certificate becomes effective
on the date, if any, specified in the Transfer Certificate as its effective date
Provided that
(i) it is signed by the Agent
under Clause 31.3 (
Transfer Certificate, delivery and notification
) on or before that date and (ii) the Agent has been provided
with all information and documentation they requested in order to carry out and be satisfied with all necessary "know your
customer" or other similar checks.
|
|
31.5
|
No transfer without Transfer Certificate
|
No assignment or transfer of any
right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, the Borrower, any Security
Party, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.
|
|
31.6
|
Lender re-organisation; waiver of Transfer Certificate
|
However, if a Lender enters into
any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in another person (the "
successor
"),
the Agent may, if it sees fit, by notice to the successor and the Borrower and the Security Trustee waive the need for the execution
and delivery of a Transfer Certificate; and, upon service of the Agent's notice, the successor shall become a Lender with the same
Commitment and Contribution as were held by the predecessor Lender.
|
|
31.7
|
Effect of Transfer Certificate
|
A Transfer Certificate takes effect
in accordance with English law as follows:
|
|
(a)
|
to the extent specified in the Transfer Certificate, all rights and interests (present, future
or contingent) which the Transferor Lender has under or by virtue of the Finance Documents are assigned to the Transferee Lender
absolutely, free of any defects in the Transferor Lender's title and of any rights or equities which the Borrower or any Security
Party had against the Transferor Lender;
|
|
|
(b)
|
the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate;
|
|
|
(c)
|
the Transferee Lender becomes a Lender with a Contribution and Commitment of the amounts specified
in the Transfer Certificate;
|
|
|
(d)
|
the Transferee Lender becomes bound by all the provisions of the Finance Documents which are applicable
to the Lenders generally, including those about pro-rata sharing and the exclusion of liability on the part of, and the indemnification
of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those provisions (other than
those relating to exclusion of liability), the Transferor Lender ceases to be bound by them;
|
|
|
(e)
|
any part of the Loan which the Transferee Lender advances after the Transfer Certificate's effective
date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming
that any defects in the Transferor Lender's title and any rights or equities of the Borrower or any Security Party against the
Transferor Lender had not existed;
|
|
|
(f)
|
the Transferee Lender becomes entitled to all the rights under the Finance Documents which are
applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause
5.8 (
Market disruption
) and Clause 20 (
Fees, Expenses
), and to the extent that the Transferee Lender becomes entitled
to such rights, the Transferor Lender ceases to be entitled to them; and
|
|
|
(g)
|
in respect of any breach of a warranty, undertaking, condition or other provision of a Finance
Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to
recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether
the original Lender would have incurred a loss of that kind or amount.
|
The rights and equities of the Borrower
or any Security Party referred to above include, but are not limited to, any right of set off and any other kind of cross-claim.
|
|
31.8
|
Maintenance of register of Lenders
|
During the Security Period the Agent
shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the
lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause
31.4 (
Effective Date of Transfer Certificate
)) of the Transfer Certificate; and the Agent shall make the register available
for inspection by any Lender, the Security Trustee and the Borrower during normal banking hours, subject to receiving at least
3 Business Days prior notice.
|
|
31.9
|
Reliance on register of Lenders
|
The entries on that register shall,
in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments
and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to
the Finance Documents for all purposes relating to the Finance Documents.
|
|
31.10
|
Authorisation of Agent to sign Transfer Certificates
|
The Borrower, the Security Trustee
and each Lender irrevocably authorise the Agent to sign Transfer Certificates on its behalf.
In respect of any Transfer Certificate,
the Agent shall be entitled to recover a registration fee of $5,000 from the Transferor Lender or (at the Agent's option) the Transferee
Lender.
|
|
31.12
|
Sub-participation; subrogation assignment
|
|
|
(a)
|
A Lender may sub-participate all or any part of its rights and/or obligations under or in connection
with the Finance Documents without the consent of, or any notice to, any Security Party, the Agent or the Security Trustee and
(where an Event of Default has occurred and is continuing) the Borrower. Where no Event of Default has occurred and is continuing
the Borrower's consent to such sub-participation shall be required, such consent not to be unreasonably withheld or delayed.
|
|
|
(b)
|
The Lenders may assign, in any manner and terms agreed by the Majority Lenders, the Agent and the
Security Trustee, all or any part of those rights to an insurer or surety who has become subrogated to them.
|
|
|
31.13
|
Change of lending office
|
A Lender may change its lending office
by giving notice to the Agent and the change shall become effective on the later of:
|
|
(a)
|
the date on which the Agent receives the notice; and
|
|
|
(b)
|
the date, if any, specified in the notice as the date on which the change will come into effect.
|
On receiving such a notice, the Agent
shall notify the Borrower, each other Security Party and the Security Trustee; and, until the Agent receives such a notice, it
shall be entitled to assume that a Lender is acting through the lending office of which the Agent last had notice.
|
|
31.15
|
Replacement of Reference Bank
|
If any Reference Bank ceases to be
a Lender or is unable on a continuing basis to supply quotations for the purposes of Clause 5 (
Interest
) then, unless the
Borrower, the Agent and the Majority Lenders otherwise agree, the Agent, acting on the instructions of the Majority Lenders, and
after consulting the Borrower, shall appoint another bank (whether or not a Lender) to be a replacement Reference Bank; and, when
that appointment comes into effect, the first-mentioned Reference Bank's appointment shall cease to be effective.
|
|
31.16
|
Security over Lenders' rights
|
In addition to the other rights provided
to Lenders under this Clause 31 (
Transfers and Changes in Lending Offices
), each Lender may without consulting with or obtaining
consent from the Borrower or any Security Party, at any time charge, assign or otherwise create a Security Interest in or over
(whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender
including, without limitation:
|
|
(a)
|
any charge, assignment or other Security Interest to secure obligations to a federal reserve or
central bank; and
|
|
|
(b)
|
in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted
to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security
for those obligations or securities;
|
except that no such charge, assignment
or Security Interest shall:
|
|
(i)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary
of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or
|
|
|
(ii)
|
require any payments to be made by the Borrower or any Security Party or grant to any person any
more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.
|
|
|
31.17
|
Tax indemnity, tax gross-up and increased costs on assignment, transfer and change of lending office
|
If:
|
|
(a)
|
a Lender assigns or transfers any rights or obligations under the Finance Documents pursuant to
Clause 31.2 (
Transfer by a Lender
) other than to K-sure or changes its lending office; and
|
|
|
(b)
|
as a result of circumstances existing at the date the assignment, transfer or change occurs the
Borrower would be obliged to make a payment to the Transferee Lender or Lender acting through its new lending office under Clause
21.1 (
Indemnities regarding borrowing and repayment of Loan
) in respect of any tax, Clause 22 (
No Set-Off or Tax Deduction
)
or Clause 29 (
Increased Costs
),
|
then the Transferee Lender or the
Lender acting through its new lending office is only entitled to receive payment under those Clauses to the same extent as the
Transferor Lender or the Lender acting through its previous lending office would have been if the assignment, transfer or change
had not occurred.
|
|
31.18
|
Replacement of Lender by Borrower
|
The Borrower may, at any time unless
a Potential Event of Default or Event of Default has occurred and is continuing in respect of:
|
|
(a)
|
a Lender whose costs of funds charged to the Borrower are (in the Borrower's reasonable opinion)
materially higher than those of the other Lenders generally;
|
|
|
(b)
|
a Lender which is a Defaulting Lender; or
|
|
|
(c)
|
a Lender which is a Non-Consenting Lender,
|
by giving 10 Business Days' notice
to the Agent and that Lender (the "
Outgoing Lender
") replace the Outgoing Lender by requiring it to (and the Outgoing
Lender must) transfer in accordance with Clause 31 (
Transfers and Changes in Lending Offices
) all (and not part only) of
its rights and obligations under this Agreement to a Lender or other bank (a "
Replacement Lender
") selected by
the Borrower and (unless the Agent is an Impaired Agent) which is acceptable to the Agent (acting reasonably) for a purchase price
in cash payable at the time of transfer equal to the outstanding principal amount of the Outgoing Lender's Contribution and all
accrued interest, break costs and other amounts payable in relation to that Contribution under this Agreement and the other Finance
Documents.
Any transfer of rights and obligations
of an Outgoing Lender under this Clause is subject to the following conditions:
|
|
(i)
|
neither the Agent nor the Outgoing Lender will have any obligation to the Borrower to find a Replacement
Lender;
|
|
|
(ii)
|
the transfer must take place no later than 10 Business Days after the Borrower's notice referred
to above;
|
|
|
(iii)
|
in no event will the Outgoing Lender be required to pay or surrender to the Replacement Lender
any of the fees received by the Outgoing Lender under this Agreement and the other Finance Documents; and
|
|
|
(iv)
|
the Outgoing Lender shall only be obliged to transfer its rights and obligations under this Clause
once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable
laws and regulations in relation to that transfer and the Outgoing Lender shall perform the checks described in this paragraph
(iv) above as soon as reasonably practicable following delivery of a notice referred to in this Clause and shall notify the Agent
and the Borrower when it is satisfied that it has complied with those checks.
|
|
|
31.19
|
Transfers to K-sure
|
|
|
(a)
|
If a K-sure Lender receives a payment from K-sure under the K-sure Insurance Policy in respect
of its participation in the Loan, then, to the extent that it is required to do so by K-sure pursuant to the terms of the K-sure
Insurance Policy, that K-sure Lender shall, at the cost of the Borrower and without any requirement for the consent of the Borrower,
transfer to K-sure (in accordance with, and subject to, Clause 31 (
Transfers and Changes in Lending Offices
)) a part of
its participation in the Loan equal to the amount paid to it by K-sure.
|
|
|
(b)
|
A transfer pursuant to paragraph (a) above shall not limit the rights of the relevant K-sure Lender
to recover any remaining part of its participation in the Loan or any other moneys owing to it under this Agreement or any other
Finance Documents.
|
|
|
(c)
|
If K-sure makes any payment to a K-sure Lender under the K-sure Insurance Policy then, subject
to the terms of the K-sure Insurance Policy, the following shall apply:
|
|
|
(i)
|
the obligations and liabilities of the Borrower under this Agreement and each of the other Finance
Documents shall not be reduced, discharged nor affected in any way;
|
|
|
(ii)
|
K-sure shall be subrogated to the rights of that K-sure Lender against the Borrower under this
Agreement and each of the other Finance Documents;
|
|
|
(iii)
|
that K-sure Lender agrees that upon payment by K-sure of all amounts due under the K-sure Insurance
Policy, the relevant K-sure Lender shall assign to K-sure, upon K-sure's request, its rights to recover against the Borrower under
this Agreement and each of the other Finance Documents and until the assignment referred to in this subparagraph (iii), the relevant
K-sure Lender shall hold on trust for K-sure any payments made under this Agreement and each of the other Finance Documents and
pay or transfer them to K-sure in accordance with that K-sure Insurance Policy;
|
|
|
(iv)
|
K-sure shall be entitled to the extent of such payment to exercise the rights of that K-sure Lender
against the Borrower under this Agreement and each of the other Finance Documents or any relevant laws and/or regulations unless
and until such payment and the interest accrued on it are fully reimbursed to K-sure; and
|
|
|
(v)
|
with respect to the obligations and liabilities of the Borrower owed to that K-sure Lender under
the Finance Documents (or any of them), such obligations and liabilities shall additionally be owed to K-sure by way of subrogation
of the rights of that Lender.
|
|
|
(d)
|
The Borrower shall indemnify K-sure in respect of any costs or expenses (including legal fees)
suffered or incurred by K-sure in connection with any transfer referred to in paragraph (a) above.
|
|
|
32
|
Confidential Information
|
Each Creditor Party agrees to keep
all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 32.2 (
Disclosure
of Confidential Information
) and Clause 32.3 (
Disclosure to numbering service providers
) and to ensure that all Confidential
Information is protected with security measures and a degree of care that would apply to its own confidential information.
|
|
32.2
|
Disclosure of Confidential Information
|
Any Creditor Party may disclose:
|
|
(a)
|
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees,
professional advisers, auditors, partners and Representatives such Confidential Information as that Creditor Party shall consider
appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing
of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that
there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
|
|
(i)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any
of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as
Agent or Security Trustee and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional
advisers;
|
|
|
(ii)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly,
any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference
to, one or more Finance Documents and/or the Borrower and to any of that person's Affiliates, Related Funds, Representatives and
professional advisers;
|
|
|
(iii)
|
appointed by any Creditor Party or by a person to whom sub-paragraph (i) or (ii) of paragraph (b)
above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf
(including, without limitation, any person appointed under paragraph (d) of Clause 24.15 (
Relationship with the other Creditor
Parties
);
|
|
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly
or indirectly, any transaction referred to in sub-paragraph (i) or (ii) of paragraph (b) above;
|
|
|
(v)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction
or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange
or pursuant to any applicable law or regulation;
|
|
|
(vi)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any
litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
|
|
(vii)
|
to whom or for whose benefit that Creditor Party charges, assigns or otherwise creates Security
(or may do so) pursuant to Clause 31.16 (
Security over Lenders' rights
);
|
|
|
(viii)
|
who is a Party, a member of the Group or any related entity of the Borrower;
|
|
|
(ix)
|
as a result of the registration of any Finance Document as contemplated by any Finance Document
or any legal opinion obtained in connection with any Finance Document; or
|
|
|
(x)
|
with the consent of the Borrower;
|
in each case, such Confidential Information
as that Creditor Party shall consider appropriate if:
|
|
(A)
|
in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to whom the
Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement
for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain
the confidentiality of the Confidential Information;
|
|
|
(B)
|
in relation to sub-paragraph (iv) of paragraph (b) above, the person to whom the Confidential Information
is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation
to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive
information;
|
|
|
(C)
|
in relation to sub-paragraphs (v) , (vi) and (vii) of paragraph (b) above, the person to whom the
Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information
may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Creditor Party,
it is not practicable so to do in the circumstances;
|
|
|
(c)
|
to any person appointed by that Creditor Party or by a person to whom sub-paragraph (i) or (ii)
of paragraph (b) above applies to provide administration or settlement services in respect of one or more of the Finance Documents
including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential
Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this
paragraph (c) if the service provider to whom the Confidential Information is to be given has entered in to a confidentiality agreement
substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/ Settlement Service Providers
or such other form of confidentiality undertaking agreed between the Borrower and the relevant Creditor Party.
|
|
|
32.3
|
Disclosure to numbering service providers
|
|
|
(a)
|
Any Creditor Party may disclose to any national or international numbering service provider appointed
by that Creditor Party to provide identification numbering services in respect of this Agreement, the Loan and/or the Borrower
the following information:
|
|
|
(ii)
|
country of domicile of Borrower;
|
|
|
(iii)
|
place of incorporation of Borrower;
|
|
|
(iv)
|
date of this Agreement;
|
|
|
(v)
|
Clause 38 (
Law and Jurisdiction
);
|
|
|
(vi)
|
the names of the Agent and the Mandated Lead Arrangers;
|
|
|
(vii)
|
date of each amendment and restatement of this Agreement;
|
|
|
(viii)
|
amounts of, and names of, the relevant Loan;
|
|
|
(ix)
|
amount of Total Commitments;
|
|
|
(x)
|
currency of the relevant Loan;
|
|
|
(xi)
|
type of the relevant Loan;
|
|
|
(xii)
|
ranking of the relevant Loan;
|
|
|
(xiii)
|
Maturity Date(s) for the Loan;
|
|
|
(xiv)
|
changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xiii)
above; and
|
|
|
(xv)
|
such other information agreed between such Creditor Party and the Borrower,
|
to enable such numbering service
provider to provide its usual syndicated loan numbering identification services.
|
|
(b)
|
The Parties acknowledge and agree that each identification number assigned to this Agreement, the
Loan and/or the Borrower by a numbering service provider and the information associated with each such number may be disclosed
to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
|
|
(c)
|
The Borrower represents that none of the information set out in sub-paragraphs (i) to (xv) of paragraph
(a) above is, nor will at any time be, unpublished price-sensitive information.
|
|
|
32.4
|
Use of logo and/or trademark
|
The Agent and/or
the Mandated Lead Arrangers and/or K-sure have the right, at their expense, to publish information regarding their participation
in this Agreement and have the right to use the Borrower’s logo and trademark with the prior written consent of the Borrower
(not to be unreasonably withheld) in connection with such publication.
This Clause 32 (
Confidential Information
)
constitutes the entire agreement between the Parties in relation to the obligations of the Creditor Parties under the Finance Documents
regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
Each of the Creditor Parties acknowledges
that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information
may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse
and each of the Creditor Parties undertakes not to use any Confidential Information for any unlawful purpose.
|
|
32.7
|
Notification of disclosure
|
Each of the Creditor Parties agrees
(to the extent permitted by law and regulation) to inform the Borrower:
|
|
(a)
|
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph
(v) of paragraph (b) of Clause 32.2 (
Disclosure of Confidential Information
) except where such disclosure is made to any
of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
|
|
(b)
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 32
(
Confidential Information
).
|
|
|
32.8
|
Continuing obligations
|
The obligations in this Clause 32
(
Confidential Information
) are continuing and, in particular, shall survive and remain binding on each Creditor Party for
a period of 12 months from the earlier of:
|
|
(a)
|
the date on which all amounts payable by the Borrower under or in connection with this Agreement
have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
|
|
(b)
|
the date on which such Creditor Party otherwise ceases to be a Creditor Party.
|
|
|
33
|
Confidentiality of Funding Rates and Reference Bank Quotations
|
|
|
33.1
|
Confidentiality and disclosure
|
|
|
(a)
|
The Agent and the Borrower agree to keep each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and
(d) below.
|
|
|
(b)
|
The Agent may disclose:
|
|
|
(i)
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower
pursuant to Clause 5.3 (
Notification of rates of interest
)); and
|
|
|
(ii)
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration
services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide
those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially
in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other
form of confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.
|
|
|
(c)
|
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and the Borrower may disclose
any Funding Rate, to:
|
|
|
(i)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers,
auditors, partners and Representatives, if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant
to this paragraph (i) is informed in writing of its confidential nature and that it may be price sensitive information except that
there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
|
|
(ii)
|
any person to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is
to be given is informed in writing of its confidential nature and that it may be price sensitive information except that there
shall be no requirement to so inform if, in the opinion of the Agent or the Borrower, as the case may be, it is not practicable
to do so in the circumstances;
|
|
|
(iii)
|
any person to whom information is required to be disclosed in connection with, and for the purposes
of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding
Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price sensitive
information except that there shall be no requirement to so inform if, in the opinion of the Agent or the Borrower, as the case
may be, it is not practicable to do so in the circumstances; and
|
|
|
(iv)
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
|
|
(d)
|
The Agent's obligations in this Clause 33 (
Confidentiality of Funding Rates and Reference Bank
Quotations
) relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause
5.3 (
Notification of rates of interest
)
provided that
(other than pursuant to sub-paragraph (i) of paragraph (b)
above) the Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.
|
|
|
(a)
|
The Agent and the Borrower acknowledge that each Funding Rate (and, in the case of the Agent, each
Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable
legislation including securities law relating to insider dealing and market abuse and the Agent and the Borrower undertake not
to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
|
|
(b)
|
The Agent and the Borrower agree (to the extent permitted by law and regulation) to inform the
relevant Lender or Reference Bank, as the case may be:
|
|
|
(i)
|
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of paragraph (c) of
Clause 33.1 (
Confidentiality and disclosure
) except where such disclosure is made to any of the persons referred to in that
paragraph during the ordinary course of its supervisory or regulatory function; and
|
|
|
(ii)
|
upon becoming aware that any information has been disclosed in breach of this Clause 33 (
Confidentiality
of Funding Rates and Reference Bank Quotations).
|
|
|
34
|
Variations and Waivers
|
|
|
34.1
|
Variations, waivers etc. by Majority Lenders
|
Subject to Clause 34.2 (
Variations,
waivers etc. requiring agreement of all Lenders
), a document shall be effective to vary, waive, suspend or limit any provision
of a Finance Document, or any Creditor Party's rights or remedies under such a provision or the general law, only if the document
is signed, or specifically agreed to by fax, by the Borrower, by the Agent on behalf of the Majority Lenders, to the extent it
relates to a matter defined as K-sure Approved Matter in Clause 1.5(f), by the K-sure Agent pursuant to the instructions of K-sure,
by the Agent and the Security Trustee in their own rights, and, if the document relates to a Finance Document to which a Security
Party is party, by that Security Party.
The consent of the Borrower or any
Security Party shall not be required to any amendment or variation to a Finance Document if such amendment or variation does not,
in the opinion of the Agent (acting reasonably), materially and adversely affect the rights or interests of the Borrower or the
Security Parties.
|
|
34.2
|
Variations, waivers etc. requiring agreement of all Lenders
|
However, as regards the following,
Clause 34.1 (
Variations, waivers etc. by Majority Lenders
) applies as if the words "by the Agent on behalf of the Majority
Lenders" were replaced by the words "by or on behalf of every Lender":
|
|
(a)
|
a reduction in either Margin or change to the definition of LIBOR;
|
|
|
(b)
|
a change to the date for, the amount of, any payment of principal, interest, fees, or other sum
payable under this Agreement;
|
|
|
(c)
|
a change to any Lender's Commitment;
|
|
|
(d)
|
a change to the definition of "Majority Lenders" or "Finance Documents;"
|
|
|
(e)
|
a change to the preamble or to Clause 2 (
Facility
), Clause 3 (
Position of the Lenders
), Clause 4 (
Drawdown
), Clause 5.1 (
Payment of normal interest
), paragraph (b) of Clause 16.1 (
Currency and
method of payments
), Clause 17 (
Application of Receipts
), Clause 18 (
Application of Earnings
) or Clause 38 (
Law
and Jurisdiction
);
|
|
|
(f)
|
a change to this Clause 34 (
Variations and Waivers
);
|
|
|
(g)
|
any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination
arrangement set out in a Finance Document;
|
|
|
(h)
|
a change to the identity of the Borrower; and
|
|
|
(i)
|
any other change or matter as regards which this Agreement or another Finance Document expressly
provides that each Lender's consent is required.
|
|
|
34.3
|
Exclusion of other or implied variations
|
Except for a document which satisfies
the requirements of Clauses 34.1 (
Variations, waivers etc. by Majority Lenders
) and 34.2 (
Variations, waivers etc. requiring
agreement of all Lenders
), no document, and no act, course of conduct, failure or neglect to act, delay or acquiescence on
the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties
or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being
precluded (permanently or temporarily) from enforcing, relying on or exercising:
|
|
(a)
|
a provision of this Agreement or another Finance Document; or
|
|
|
(b)
|
an Event of Default; or
|
|
|
(c)
|
a breach by the Borrower or a Security Party of an obligation under a Finance Document or the general
law; or
|
|
|
(d)
|
any right or remedy conferred by any Finance Document or by the general law;
|
and there shall not be implied into
any Finance Document any term or condition requiring any such provision to be enforced, or such right or remedy to be exercised,
within a certain or reasonable time.
Notwithstanding any other term of
any Finance Document or any other agreement, arrangement or understanding between the parties to a Finance Document, each Party
acknowledges and accepts that any liability of any party to a Finance Document under or in connection with the Finance Documents
may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
|
|
(a)
|
any Bail-In Action in relation to any such liability, including (without limitation):
|
|
|
(i)
|
a reduction, in full or in part, in the principal amount, or outstanding amount due (including
any accrued but unpaid interest) in respect of any such liability;
|
|
|
(ii)
|
a conversion of all, or part of, any such liability into shares or other instruments of ownership
that may be issued to, or conferred on, it; and
|
|
|
(iii)
|
a cancellation of any such liability; and
|
|
|
(b)
|
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In
Action in relation to any such liability.
|
Unless otherwise specifically provided,
any notice under or in connection with any Finance Document shall be given by letter or fax and references in the Finance Documents
to written notices, notices in writing and notices signed by particular persons shall be construed accordingly.
|
|
36.2
|
Addresses for communications
|
A notice shall be sent:
|
(a)
|
to the Borrower:
|
de Gerlachekaai 20
|
|
|
|
B-2000 Antwerp
|
|
|
|
Belgium
|
|
|
|
|
|
|
|
Fax No:
|
32 3 247 4409
|
|
|
|
Attn:
|
Chief Financial Officer
|
|
(b)
|
to a Lender:
|
At the address below its name in Schedule 1 (
Lenders and Commitments
)
or (as the case may require) in the relevant Transfer Certificate.
|
|
|
|
|
|
(c)
|
to the K-sure Agent
|
8
th
Floor, the Walbrook Building
|
|
|
|
25 Walbrook
|
|
|
|
London EC2N 8AF
|
|
|
|
|
|
|
|
Tel:
|
0207 621 6040
|
|
|
|
Fax No:
|
0207 283 6931
|
|
|
|
Attn:
|
Shipping Offshore and Logistics
|
|
|
|
|
|
|
|
Admin matters:
|
|
|
|
Tel:
|
0207 621 6010
|
|
|
|
Fax No:
|
0207 283 6931
|
|
|
|
|
|
|
|
Email: cmoalondon @dnb.no
|
|
|
|
|
|
(d)
|
to the Agent and
|
8
th
Floor, the Walbrook Building
|
|
|
the Security Trustee:
|
25 Walbrook
|
|
|
|
London EC2N 8AF
|
|
|
|
|
|
|
|
Tel:
|
0207 621 6040
|
|
|
|
Fax No:
|
0207 283 6931
|
|
|
|
Attn:
|
Shipping Offshore and Logistics
|
|
|
|
|
|
|
|
Admin matters:
|
|
|
|
Tel:
|
0207 621 6010
|
|
|
|
Fax No:
|
0207 283 6931
|
|
|
|
|
|
|
|
Email: cmoalondon @dnb.no
|
or to such other address as the relevant
party may notify the Agent or, if the relevant party is the Agent or the Security Trustee, the Borrower, the Lenders and the Security
Parties.
|
|
36.3
|
Effective date of notices
|
Subject to Clauses 36.4 (
Service
outside business hours
) and 36.5 (
Illegible notices
):
|
|
(a)
|
a notice which is delivered personally or posted shall be deemed to be served, and shall take effect,
at the time when it is delivered;
|
|
|
(b)
|
a notice which is sent by fax shall be deemed to be served, and shall take effect, 2 hours after
its transmission is completed.
|
|
|
36.4
|
Service outside business hours
|
However, if under Clause 36.3 (
Effective
date of notices
) a notice would be deemed to be served:
|
|
(a)
|
on a day which is not a business day in the place of receipt; or
|
|
|
(b)
|
on such a business day, but after 5 p.m. local time;
|
the notice shall (subject to Clause
36.5 (
Illegible notices
) be deemed to be served, and shall take effect, at 9 a.m. on the next day which is such a business
day.
Clauses 36.3 (
Effective date of
notices
) and 36.4 (
Service outside business hours
) do not apply if the recipient of a notice notifies the sender within
1 hour after the time at which the notice would otherwise be deemed to be served that the notice has been received in a form which
is illegible in a material respect.
A notice under or in connection with
a Finance Document shall not be invalid by reason that its contents or the manner of serving it do not comply with the requirements
of this Agreement or, where appropriate, any other Finance Document under which it is served if:
|
|
(a)
|
the failure to serve it in accordance with the requirements of this Agreement or other Finance
Document, as the case may be, has not caused any party to suffer any significant loss or prejudice; or
|
|
|
(b)
|
in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the
party on which the notice was served what the correct or missing particulars should have been.
|
|
|
36.7
|
Electronic communication
|
Any communication to be made between
the Agent and another Creditor Party or the Borrower under or in connection with the Finance Documents may be made by electronic
mail or other electronic means (including by way of the Agent's Intralinks system), if the Agent and the relevant Creditor Party
or Borrower:
|
|
(a)
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
|
|
(b)
|
notify each other in writing of their electronic mail address and/or any other information required
to enable the sending and receipt of information by that means; and
|
|
|
(c)
|
notify each other of any change to their respective addresses or any other such information supplied
to them.
|
Any electronic communication made
between the Agent and another Creditor Party or the Borrower will be effective only when actually received in readable form and,
in the case of any electronic communication made by a Creditor Party or the Borrower to the Agent, only if it is addressed in such
a manner as the Agent shall specify for this purpose.
All Creditor Parties confirm that
they have consented to the use of the Agent’s Intralinks systems as an accepted method of communication under or in connection
with the Finance Documents and agree that the Intralinks system (or another electronic collaborative website) will be the primary
method of communication between the Agent and the other Creditor Parties. The Creditor Parties acknowledge that a communication
via Intralinks (or such other electronic collaborative website) will be effective once the communication is posted (in a readable
form) to Intralinks (or such other electronic collaborative website) by the Agent.
Any notice under or in connection
with a Finance Document shall be in English.
In this Clause 36 (
Notices
),
"
notice
" includes any demand, consent, authorisation, approval, instruction, waiver or other communication.
|
|
37.1
|
Rights cumulative, non-exclusive
|
The rights and remedies which the
Finance Documents give to each Creditor Party are:
|
|
(b)
|
may be exercised as often as appears expedient; and
|
|
|
(c)
|
shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude
or limit any right or remedy conferred by any law.
|
|
|
37.2
|
Severability of provisions
|
If any provision of a Finance Document
is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the
other provisions of that Finance Document or of the provisions of any other Finance Document.
A Finance Document may be executed
in any number of counterparts.
|
|
(a)
|
Subject to paragraph (b) below, a person who is not a Party has no right under the Contracts (Rights
of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
|
|
|
(b)
|
K-sure may rely on any Clause of this Agreement which expressly confers rights on it.
|
This Agreement (other than Clause
3.5 (
Security Trustee as joint and several creditor
) and any non-contractual obligations arising out of or in connection
with it shall be governed by, and construed in accordance with, English law. Clause 3.5 (
Security Trustee as joint and several
creditor
) shall be governed by, and construed in accordance with, Belgian law.
|
|
38.2
|
Exclusive English jurisdiction
|
Subject to Clause 38.3 (
Choice
of forum for the exclusive benefit of the Creditor Parties
), the courts of England shall have exclusive jurisdiction to settle
any Dispute.
|
|
38.3
|
Choice of forum for the exclusive benefit of the Creditor Parties
|
Clause 38.2 (
Exclusive English
jurisdiction
) is for the exclusive benefit of the Creditor Parties, each of which reserves the right:
|
|
(a)
|
to commence proceedings in relation to any Dispute in the courts of any country other than England
and which have or claim jurisdiction to that Dispute; and
|
|
|
(b)
|
to commence such proceedings in the courts of any such country or countries concurrently with or
in addition to proceedings in England or without commencing proceedings in England.
|
The Borrower shall not commence any
proceedings in any country other than England in relation to a Dispute.
The Borrower irrevocably appoints
Euronav (UK) Agencies Limited at its registered office for the time being, presently at 99 King’s Road, London, SW3 4PA,
England, to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the
English courts which are connected with this Agreement.
|
|
38.5
|
Creditor Party rights unaffected
|
Nothing in this Clause 38 (
Law
and Jurisdiction
) shall exclude or limit any right which any Creditor Party may have (whether under the law of any country,
an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any jurisdiction.
|
|
38.6
|
Meaning of "proceedings"
|
In this Clause 38 (
Law and Jurisdiction
),
"
proceedings
" means proceedings of any kind, including an application for a provisional or protective measure
and a "
Dispute
" means any dispute arising out of or in connection with this Agreement (including a dispute relating
to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with
this Agreement.
This Agreement has been entered into on
the date stated at the beginning of this Agreement.
Schedule
1
Lenders
and Commitments
Part A
Commercial
Lenders
|
Lender
|
|
Lending Office
|
|
Commercial
Lender
Commitment
|
|
|
|
|
|
|
|
|
|
DNB (UK) Limited
|
|
8
th
Floor, The Walbrook Building, 25 Walbrook, London EC4N 8AF
|
|
9,166,666.66
|
|
|
|
|
Credit Matters
|
|
|
|
|
|
|
Tel:
|
0207 621 6010
|
|
|
|
|
|
|
Telefax:
|
0207 283 6931
|
|
|
|
|
|
|
Attn:
|
Shipping Offshore and Logistics
|
|
|
|
|
|
|
Admin Matters
|
|
|
|
|
|
|
Tel:
|
0207 621 6040
|
|
|
|
|
|
|
Telefax:
|
0207 283 5935
|
|
|
|
|
|
|
E-mail:
|
cmoalondon@dnb.no
|
|
|
|
|
|
|
|
|
|
|
|
|
ABN AMRO BANK N.V.
|
|
Coolsingel 93, 3012 AE Rotterdam
|
|
9,166,666.66
|
|
|
|
|
The Netherlands
|
|
|
|
|
|
|
Tel:
|
+31 10 40 15 192
|
|
|
|
|
|
|
Telefax:
|
+31 10 4015 323
|
|
|
|
|
|
|
Attn:
|
Kees Tiemstra/Jesse van Schaik
|
|
|
|
|
|
|
|
Energy, Commodities & Transportation Clients
|
|
|
|
|
|
|
Email:
|
kees.tiemstra@nl.abnamro.com
|
|
|
|
|
|
|
|
serio.panday@sg.abnamro.com
|
|
|
|
|
|
|
|
jesse.van.schaik@nl.abnamro.com
|
|
|
|
|
|
|
|
|
|
|
|
|
ING BANK
, a branch of
|
|
Hamburger Allee 1
|
|
9,166,666.66
|
|
|
ING-DiBa AG
|
|
60486 Frankfurt am Main
|
|
|
|
|
|
|
Tel:
|
+49 69 7593 6415
|
|
|
|
|
|
|
Telefax:
|
+49 69 7593 6212
|
|
|
|
|
|
|
Attn:
|
Alexandra Asche
|
|
|
|
|
|
|
Email:
|
alexandra.asche@ing.de
|
|
|
|
|
|
|
With a copy to:
|
|
|
|
|
|
|
ING Bank N.V.
|
|
|
|
|
|
|
AMP D.06.007, Bijlmerplein 888
|
|
|
|
|
|
|
P.O. Box 1800, 1000 BV Amsterdam
|
|
|
|
|
|
|
The Netherlands
|
|
|
|
|
|
|
Tel:
|
+31 20 576 8088
|
|
|
|
|
|
|
Attn:
|
Andreas Tiniakos/Remco Steger
|
|
|
|
|
|
|
Email:
|
andreas.tiniakos@ing.nl
|
|
|
|
|
|
|
|
remco.steger@ingbank.com
|
|
|
|
Part B
K-sure Lenders
|
Lender
|
|
Lending Office
|
|
K-sure Lender
Commitment
|
|
|
|
|
|
|
|
|
|
DNB (UK) Limited
|
|
8
th
Floor, The Walbrook Building, 25 Walbrook, London EC4N 8AF
|
|
27,500,000
|
|
|
|
|
Credit Matters
|
|
|
|
|
|
|
Tel:
|
0207 621 6010
|
|
|
|
|
|
|
Telefax:
|
0207 283 6931
|
|
|
|
|
|
|
Attn:
|
Shipping Offshore and Logistics
|
|
|
|
|
|
|
Admin Matters
|
|
|
|
|
|
|
Tel:
|
0207 621 6040
|
|
|
|
|
|
|
Telefax:
|
0207 283 5935
|
|
|
|
|
|
|
E-mail:
|
cmoalondon@dnb.no
|
|
|
|
|
|
|
|
|
|
|
|
|
ABN AMRO BANK
|
|
Coolsingel 93, 3012 AE Rotterdam
|
|
27,500,000
|
|
|
N.V.
|
|
The Netherlands
|
|
|
|
|
|
|
Tel:
|
+31 10 40 15 192
|
|
|
|
|
|
|
Telefax:
|
+31 10 4015 323
|
|
|
|
|
|
|
Attn:
|
Kees Tiemstra/Jesse van Schaik
|
|
|
|
|
|
|
|
Energy, Commodities & Transportation Clients
|
|
|
|
|
|
|
Email:
|
kees.tiemstra@nl.abnamro.com
|
|
|
|
|
|
|
|
serio.panday@sg.abnamro.com
|
|
|
|
|
|
|
|
jesse.van.schaik@nl.abnamro.com
|
|
|
|
|
|
|
|
|
|
|
|
|
ING BANK
, a branch of
|
|
Hamburger Allee 1
|
|
27,500,000
|
|
|
ING-DiBa AG
|
|
60486 Frankfurt am Main
|
|
|
|
|
|
|
Tel:
|
+49 69 7593 6415
|
|
|
|
|
|
|
Telefax:
|
+49 69 7593 6212
|
|
|
|
|
|
|
Attn:
|
Alexandra Asche
|
|
|
|
|
|
|
Email:
|
alexandra.asche@ing.de
|
|
|
|
|
|
|
With a copy to:
|
|
|
|
|
|
|
ING Bank N.V.
|
|
|
|
|
|
|
AMP D.06.007, Bijlmerplein 888
|
|
|
|
|
|
|
P.O. Box 1800, 1000 BV Amsterdam
|
|
|
|
|
|
|
The Netherlands
|
|
|
|
|
|
|
Tel:
|
+31 20 576 8088
|
|
|
|
|
|
|
Attn:
|
Andreas Tiniakos/Remco Steger
|
|
|
|
|
|
|
Email:
|
andreas.tiniakos@ing.nl
|
|
|
|
|
|
|
|
remco.steger@ingbank.com
|
|
|
|
Schedule
2
Drawdown
Notice
|
|
To:
|
DNB Bank ASA, London Branch
|
8th Floor, The Walbrook Building,
25 Walbrook, London EC4N 8AF
|
|
Attn:
|
Loans Administration
|
[
·
]
DRAWDOWN NOTICE
|
|
1
|
We refer to the loan agreement (the "
Loan Agreement
") dated [
·
]
2017 and made between ourselves, as Borrower, the Lenders referred to therein, the Mandated Lead Arrangers, Co-Bookrunners and
the ECA Coordinator referred to therein, the Agent, Security Trustee and the K-sure Agent in connection with a term loan facility
of US$110,000,000. Terms defined in the Loan Agreement have their defined meanings when used in this Drawdown Notice.
|
|
|
2
|
We request to borrow the Tranche in respect of [Ship A][Ship B] as follows:
|
|
|
(b)
|
Drawdown Date: [
·
];
|
|
|
(c)
|
Duration of the [first] Interest Period shall be [
·
]
months;
|
|
|
(d)
|
Payment instructions: account of [
·
]
and numbered [
·
] with [
·
]
of [
·
].
|
|
|
3
|
We represent and warrant that:
|
|
|
(a)
|
the representations and warranties in Clause 10 (
Representations and Warranties
) of the
Loan Agreement would remain true and not misleading if repeated on the date of this notice with reference to the circumstances
now existing;
|
|
|
(b)
|
no Event of Default or Potential Event of Default has occurred or will result from the borrowing
of the Advance.
|
|
|
4
|
This notice cannot be revoked without the prior consent of the Majority Lenders.
|
|
|
[Name of Signatory]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
for and on behalf of
|
|
|
|
EURONAV NV
|
|
Schedule
3
Condition Precedent Documents
Part A
The following are the documents and fees referred
to in Clause 9.1(a).
|
|
1
|
A duly executed original of this Agreement.
|
|
|
2
|
Copies of the certificate of incorporation and constitutional documents of the Borrower and each
Security Party.
|
|
|
3
|
In each case if required for the provisions of the legal opinions referred to in paragraph 9, copies
of the resolutions of the directors and shareholders of the Borrower and each Security Party authorising the execution of each
of the Finance Documents to which the Borrower or Security Party (as the case may be) is a party.
|
|
|
4
|
The original of any power of attorney under which any Finance Document is to be executed on behalf
of the Borrower or Security Party.
|
|
|
5
|
Copies of all consents which the Borrower or Security Party requires to enter into, or make any
payment under any Finance Document.
|
|
|
6
|
Documentary evidence that the agent for service of process named in Clause 38 (
Law and Jurisdiction
)
has accepted its appointment.
|
|
|
7
|
The Agent and Lenders have been provided with all information and documentation they have requested
in order to carry out and be reasonably satisfied with all necessary "know your customer" or other similar checks under
all applicable laws and regulations pursuant to the transactions contemplated by this Agreement and to satisfy all internal compliance
policies of the Agent and the Lenders in relation to "know you customer" requirements.
|
|
|
8
|
Evidence that all other fees, costs and expenses then due from the Borrower pursuant to Clause
20 (
Fees, Expenses and K-sure Premium
) have been paid or will be paid by the date of this Agreement.
|
|
|
9
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws
of England, Belgium and such other relevant jurisdictions as the Agent may require.
|
|
|
10
|
Copies of the most recent financial statements of the Borrower together with a compliance certificate.
|
|
|
11
|
Evidence that the existing revolving credit facility made available to the Borrower by DNB Bank
ASA pursuant to a loan agreement dated 30 January 2017 made between the Borrower, the banks and financial institutions listed in
the schedule thereto and with DNB Bank ASA, London Branch as agent and security trustee has been cancelled by mutual consent.
|
|
|
12
|
A copy of any other authorisation or other document, opinion or assurance which the Agent considers
to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by this Agreement.
|
Part B
The following are the documents referred to
in Clause 9.1(b). The "
Ship
" means the Ship to which the Tranche relates.
|
|
1
|
In respect of the documents delivered by the Borrower to the
Agent pursuant to Part A of this Schedule 3 (
Condition Precedent Documents
), such other updating documents as the Agent
may require (including but not limited to a written confirmation from the Borrower stating that none of the documents delivered
by it to the Agent under Part A of this Schedule 3 (
Condition Precedent Documents
) have been modified, amended or supplemented,
or if any such document has been revoked, attaching a certified copy of any document replacing the one that has been revoked).
|
|
|
2
|
A duly executed original of the Mortgage, the Deed of Covenant (if applicable) and the General
Assignment in relation to the Ship executed on or prior to the relevant Drawdown Date (and of each document required to be delivered
by their respective terms).
|
|
|
3
|
A duly executed original of the Account Pledge (and of each document required to be delivered by
its terms).
|
|
|
4
|
Written confirmation from the Borrower stating that no Long Term Charter has been entered into
by it in respect of the Ship.
|
|
|
5
|
In each case if required for the provisions of the legal opinions referred to in paragraph 14,
copies of the resolutions of the directors and shareholders of the Borrower authorising the execution of each of the Finance Documents
to which the Borrower is a party.
|
|
|
6
|
The original of any power of attorney under which any Finance Document is to be executed on behalf
of the Borrower.
|
|
|
7
|
The originals of any mandates or other documents required in connection with the opening or operation
of the Earnings Account.
|
|
|
8
|
Documentary evidence that the agent for service of process named in each of the General Assignment
and Account Pledge has accepted its appointment.
|
|
|
9
|
The Agent and Lenders have been provided with all information and documentation they have requested
in order to carry out and be reasonably satisfied with all further necessary "know your customer" or other similar checks
under all applicable laws and regulations pursuant to the transactions contemplated by this Agreement and to satisfy all internal
compliance policies of the Agent and the Lenders in relation to "know you customer" requirements.
|
|
|
10
|
In respect of the first Drawdown Date, evidence that the K-sure Premium has been paid or will be
paid by the first Drawdown Date.
|
|
|
11
|
Documentary evidence that the Ship:
|
|
|
(a)
|
is definitively and permanently registered in the name of the Borrower under the relevant Approved
Flag;
|
|
|
(b)
|
is in the absolute and unencumbered ownership of the Borrower save as contemplated by the Finance
Documents;
|
|
|
(c)
|
maintains class acceptable to the Agent free of all overdue recommendations and conditions of an
Approved Classification Society;
|
|
|
(d)
|
the Mortgage in relation to it has been duly registered against that Ship as valid first priority
or preferred (as the case may be) ship mortgage in accordance with the laws of the relevant Approved Flag; and
|
|
|
(e)
|
it is insured in accordance with the provisions of this Agreement and all requirements therein
in respect of insurances have been complied with.
|
|
|
12
|
Documents establishing that the Ship will, as from the relevant Drawdown Date, be managed by the
Approved Manager on terms acceptable to the Lenders, together with:
|
|
|
(a)
|
the Manager's Undertaking in respect of the Ship; and
|
|
|
(b)
|
copies of the relevant Approved Manager's Document of Compliance and of that Ship's Safety Management
Certificate (together with any other details of the applicable safety management system which the Agent requires) and ISSC.
|
|
|
13
|
Valuations of each Ship to determine its Fair Market Value, addressed to the Agent, stated to be
for the purposes of this Agreement and dated not earlier than the date falling 100 days prior to the date of this Agreement and
obtained in accordance with Clause 15 (
Security Cover
) and showing that the aggregate Fair Market Value of the Ships is
equal to or greater than 125 per cent. of the Total Commitments (it being understood that if the drawdown to which this condition
precedent relates takes place on or prior to 30 April 2017, this condition shall be satisfied by provision of the valuations of
Braemar ACM Valuations and Clarksons Valuations Limited in respect of the Ship dated 23 January 2017 and 20 January 2017 respectively).
|
|
|
14
|
A copy of the duly executed K-sure Insurance Policy on terms satisfactory to the K-sure Agent and
all the Lenders, together with an English translation (such translation to be provided at the cost of the Borrower).
|
|
|
15
|
Confirmation from K-sure addressed to the K-sure Agent that the K-sure Premium has been paid in
full.
|
|
|
16
|
A letter addressed to the K-sure Agent from Lee & Ko, legal advisers to the K-sure Agent and
the Lenders in Korea, confirming that the terms of the Finance Documents are not, or will not upon execution be, inconsistent or
in conflict with the provisions of the K-sure Insurance Policy.
|
|
|
17
|
A legal opinion of Lee & Ko, legal advisers to the K-sure Agent and the Lenders in Korea, substantially
in the form distributed to the K-sure Agent and the Lenders before signing this Agreement and confirming, amongst other things,
that the K-sure Insurance Policy has been duly issued by K-sure and that it is legal, valid and binding on K-sure.
|
|
|
18
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws
of England, Belgium and, if a different jurisdiction, the country where the Borrower is incorporated and the country where the
Ship is registered and such other relevant jurisdictions as the Agent may require.
|
|
|
19
|
A favourable opinion from an independent insurance consultant acceptable to the Agent on such matters
relating to the insurances for the relevant Ship as the Agent may require.
|
|
|
20
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English
translation prepared by a translator approved by the Agent.
|
|
|
21
|
A copy of any other authorisation or other document,
opinion or assurance which the Agent considers to be necessary or desirable in connection with the entry into and performance
of the transactions contemplated by this Agreement.
|
Schedule
4
Transfer
Certificate
The Transferor and the Transferee accept
exclusive responsibility for ensuring that this Certificate and the transaction to which it relates comply with all legal and regulatory
requirements applicable to them respectively.
|
|
To:
|
[Name of Agent] for itself and for and on behalf of the Borrower, each Security Party, the Security
Trustee, each Lender and each Arranger, as defined in the Loan Agreement referred to below.
|
|
|
1
|
This Certificate relates to a loan agreement
(the "Loan Agreement") dated [
·
] 2017 and made between
(1) Euronav NV (the "Borrower"), (2) the banks and financial institutions named therein as Lenders, (3) the Mandated
Lead Arrangers as defined therein, (4) the Co-Bookrunners as defined therein, (5) DNB Bank ASA, London Branch as ECA Coordinator,
(6) DNB Bank ASA, London Branch as Agent and Security Trustee and (7) DNB Bank ASA, London Branch as K-sure Agent for a term loan
facility of up to US$110,000,000.
|
|
|
2
|
In this Certificate, terms defined in the Loan Agreement shall, unless the contrary intention appears,
have the same meanings and:
|
"
Relevant Parties
"
means the Agent, the Borrower, each Security Party, the Security Trustee, each Arranger and each Lender;
"
Transferor
" means
[full name] of [lending office]; and
"
Transferee
" means
[full name] of [lending office].
|
|
3
|
The effective date of this Certificate is [
·
]
Provided that
this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
|
|
4
|
The Transferor assigns to the Transferee absolutely all rights and interests (present, future or
contingent) which the Transferor has as Lender under or by virtue of the Loan Agreement and every other Finance Document in relation
to [
·
] per cent. of its Contribution, which percentage represent
$[
·
].
|
|
|
5
|
By virtue of this Transfer Certificate and Clause 31 (
Transfers and Changes in Lending Offices
)
of the Loan Agreement, the Transferor is discharged [entirely from its Commitment which amount to $[
·
]
[from [
·
] per cent. of its Commitment, which percentage represent
$[
·
]], and the Transferee acquires a Commitment of $[
·
].
|
|
|
6
|
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee
will observe and perform all the obligations under the Finance Documents which Clause 31 (
Transfers and Changes in Lending Offices
)
of the Loan Agreement provides will become binding on it upon this Certificate taking effect.
|
|
|
7
|
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent
itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance
with Clause 31 (
Transfers and Changes in Lending Offices
) of the Loan Agreement.
|
|
|
(a)
|
warrants to the Transferee and each Relevant Party that:
|
|
|
(i)
|
the Transferor has full capacity to enter into this transaction and has taken all corporate action
and obtained all consents which are required in connection with this transaction; and
|
|
|
(ii)
|
this Certificate is valid and binding as regards the Transferor;
|
|
|
(b)
|
warrants to the Transferee that the Transferor is absolutely entitled, free of encumbrances, to
all the rights and interests covered by the assignment in paragraph 4; and
|
|
|
(c)
|
undertakes with the Transferee that the Transferor 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 Certificate
or for a similar purpose.
|
|
|
(a)
|
confirms that it has received a copy of the Loan Agreement and each other Finance Document;
|
|
|
(b)
|
agrees that it will have no rights of recourse on any ground against either the Transferor, the
Agent, the Security Trustee, any Arranger or any Lender in the event that:
|
|
|
(i)
|
any of the Finance Documents prove to be invalid or ineffective,
|
|
|
(ii)
|
the Borrower or any Security Party fails to observe or perform its obligations, or to discharge
its liabilities, under any of the Finance Documents;
|
|
|
(iii)
|
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document,
or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or Security Party under the Finance
Documents;
|
|
|
(c)
|
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee,
any Arranger or any Lender in the event that this Certificate proves to be invalid or ineffective;
|
|
|
(d)
|
warrants to the Transferor and each Relevant Party that:
|
|
|
(i)
|
it has full capacity to enter into this transaction and has taken all corporate action and obtained
all consents which it needs to take or obtain in connection with this transaction; and
|
|
|
(ii)
|
this Certificate is valid and binding as regards the Transferee; and
|
|
|
(e)
|
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
|
|
10
|
The Transferor and the Transferee each undertake with the Agent and the Security Trustee severally,
on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including
all legal expenses) which they or either of them may incur in connection with this Certificate or any matter arising out of it,
except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's
or the Security Trustee's own officers or employees.
|
|
|
11
|
The Transferee shall repay to the Transferor on demand so much of any sum paid by the Transferor
under paragraph 10 as exceeds one-half of the amount demanded by the Agent or the Security Trustee in respect of a claim, proceeding,
liability or expense which was not reasonably foreseeable at the date of this Certificate; but nothing in this paragraph shall
affect the liability of each of the Transferor and the Transferee to the Agent or the Security Trustee for the full amount demanded
by it.
|
|
|
12
|
The Transferee confirms to the Transferor and each of the Creditor Parties that it:
|
|
|
(a)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial
condition and affairs of the Borrower and its related entities in connection with its participation in the Loan and has not relied
exclusively on any information provided to it by the Transferor or any other Creditor Party in connection with any Finance Document
or the Security Interests created by the Finance Documents; and
|
|
|
(b)
|
will continue to make its own independent appraisal of the creditworthiness of the Borrower and
its related entities throughout the Security Period.
|
|
|
13
|
The Transferor makes no representation or warranty and assumes no responsibility to the Transferee
for the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document
and any representations or warranties implied by law are excluded.
|
|
[Name of Transferor]
|
[Name of Transferee]
|
|
|
|
|
By:
|
By:
|
|
|
|
|
Date:
|
Date:
|
|
|
|
|
Agent
|
|
|
|
|
|
Signed for itself and for and on behalf of itself
|
|
|
as Agent and for every other Relevant Party
|
|
|
|
|
|
[Name of Agent]
|
|
|
|
|
|
By:
|
|
|
|
|
|
Date:
|
|
Administrative Details of Transferee
Name of Transferee:
Lending Office:
Contact Person
(Loan Administration Department):
Telephone:
Telex:
Fax:
Contact Person
(Credit Administration Department):
Telephone:
Telex:
Fax:
Account for payments:
|
|
Note
:
|
This Transfer Certificate alone may not be sufficient to transfer a proportionate share of the
Transferor's interest in the security constituted by the Finance Documents in the Transferor's or Transferee's jurisdiction. It
is the responsibility of each Lender to ascertain whether any other documents are required for this purpose.
|
Schedule
5
Details
of Ships
|
Ship Name
|
|
DWT
|
|
Built
|
|
Shipyard
|
|
Delivery Date
from Shipyard
|
|
Flag
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ARDECHE
|
|
298,642 mt
|
|
2017
|
|
Hyundai Samho Heavy Industries
|
|
12 January 2017
|
|
Belgian
|
|
|
|
|
|
|
|
|
|
|
|
|
|
AQUITAINE
|
|
298,768 mt
|
|
2017
|
|
Hyundai Samho Heavy Industries
|
|
20 January 2017
|
|
Belgian
|
Schedule
6
Form
of Certificate of Compliance
|
|
To:
|
DNB Bank ASA, London Branch
|
[Date]
OFFICER'S CERTIFICATE
This Certificate is rendered pursuant to clause
11.5(e) of the loan agreement dated [
·
] 2017 (the "
Loan
Agreement
") and entered into between (i) Euronav NV, as Borrower (ii) the banks and financial institutions listed
in Schedule 1 therein as Lenders, (iii) the Mandated Lead Arrangers as referred to therein, (iv) the Co-Bookrunners as referred
to therein, (v) the ECA Coordinator as referred to therein, (vi) DNB Bank ASA, London Branch as Agent and Security Trustee and
(vii) DNB Bank ASA, London Branch as K-sure Agent, relating to a term loan facility of up to US$110,000,000. Words and expressions
defined in the Loan Agreement shall have the same meanings when used herein.
I, the Chief Financial Officer of the Borrower,
hereby certify that:
|
|
1
|
Attached to this Certificate [are][is] the latest [audited consolidated accounts of the Group and
audited individual accounts of the Borrower for the financial year ending on [
·
]]
[unaudited consolidated balance sheet of the Group and the unaudited individual balance sheet of the Borrower in relation to the
[first] [second] six months of the financial year ending on [
·
]]
(the "
Accounts
").
|
|
|
2
|
Set out below are the respective amounts, in US Dollars, of the Cash, Consolidated Current Assets,
Consolidated Current Liabilities, Free Liquid Assets, Stockholders' Equity, Total Assets and Total Indebtedness of the Group as
at [
·
]:
|
|
|
|
US Dollars
|
|
|
|
|
|
Cash
|
|
[
·
]
|
|
|
|
|
|
Consolidated Current Assets
|
|
[
·
]
|
|
|
|
|
|
Consolidated Current Liabilities
|
|
[
·
]
|
|
|
|
|
|
Free Liquid Assets
|
|
[
·
]
|
|
|
|
|
|
Stockholders' Equity
|
|
[
·
]
|
|
|
|
|
|
Total Assets
|
|
[
·
]
|
|
|
|
|
|
Total Indebtedness
|
|
[
·
]
|
|
|
3
|
Accordingly, as at the date of this Certificate the financial covenants set out in clause 12.5
(
Financial Covenants
) of the Loan Agreement [are] [are not] complied with, in that as at [
·
]:
|
|
|
(a)
|
Consolidated Working Capital is US$[
·
];
|
|
|
(b)
|
Free Liquid Assets are US$[
·
];
|
|
|
(c)
|
Cash is US$[
·
]; and
|
|
|
(d)
|
the ratio of Stockholders' Equity to Total Assets is [
·
]
per cent.;
|
[or, as the case may be, specify
in what respect any of the financial covenants are not complied with.]
|
|
4
|
As at [
·
] no Event of Default
has occurred and is continuing.
|
[or, specify/identify any Event
of Default]
The Borrower is in compliance with clause 15.1
of the Loan Agreement.
[
If not, specify this and what is proposed
as regards Clause 15.2
]
The Fair Market Value of the Ships which are
subject to a Mortgage is as follows as at [
date
]:
|
Name of Ship
|
|
Name of first shipbroker
providing valuation
|
|
Name of second shipbroker
providing valuation
|
|
Average market value
|
|
|
|
|
|
|
|
|
|
[
·
]
|
|
[
·
]
|
|
[
·
]
|
|
[
·
]
|
|
|
|
|
Chief Financial Officer
|
|
|
EURONAV NV
|
|
Note: Supporting Schedules to be attached.
Schedule
7
Timetables
|
LIBOR is fixed
|
|
Quotation Date as of 11:00 am London time
|
|
|
|
|
|
Reference Bank Rate calculated by reference to available quotations in accordance with Clause 5.7 (
Calculation of Reference Bank Rate
)
|
|
Noon on the Quotation Date
|
Execution
Pages
|
BORROWER
|
|
|
|
|
|
|
|
SIGNED
by
|
)
|
/s/ Julie Walton
|
|
|
)
|
Julie Walton
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
EURONAV NV
|
)
|
|
|
in the presence of:
|
)
|
/s/ Oliver Johnson-Munday
|
|
|
|
Oliver Johnson-Munday
|
|
|
|
Trainee Solicitor
|
|
|
|
|
|
|
|
NORTON ROSE FULBRIGHT
|
|
|
|
Norton Rose Fulbright LLP
|
|
|
|
3 More London Riverside
|
|
|
|
London SE1 2AQ United Kingdom
|
|
|
|
nortonrosefulbright.com
|
|
|
|
|
|
COMMERCIAL LENDERS
|
|
|
|
|
|
|
|
SIGNED
by
|
)
|
/s/ Jasmine Lossouarn
|
|
|
)
|
Jasmine Lossouarn
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB (UK) LIMITED
|
)
|
|
|
in the presence of:
|
)
|
/s/ Aimee Myhre
|
|
|
|
Aimee Myhre
|
|
|
|
Trainee Solicitor
|
|
|
|
Watson Farley & Williams LLP
|
|
|
|
15 Appold Street
|
|
|
|
London EC2A 2HB
|
|
|
|
|
|
SIGNED
by
|
)
|
/s/ Jasmine Lossouarn
|
|
|
)
|
Jasmine Lossouarn
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
ABN AMRO BANK N.V.
|
)
|
|
|
in the presence of:
|
)
|
/s/ Aimee Myhre
|
|
|
|
Aimee Myhre
|
|
|
|
Trainee Solicitor
|
|
|
|
Watson Farley & Williams LLP
|
|
|
|
15 Appold Street
|
|
|
|
London EC2A 2HB
|
|
|
|
|
|
SIGNED
by
|
)
|
/s/ Jasmine Lossouarn
|
|
|
)
|
Jasmine Lossouarn
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
ING BANK
, a branch of
ING-DiBa AG
|
)
|
|
|
in the presence of:
|
)
|
/s/ Aimee Myhre
|
|
|
|
Aimee Myhre
|
|
|
|
Trainee Solicitor
|
|
|
|
Watson Farley & Williams LLP
|
|
|
|
15 Appold Street
|
|
|
|
London EC2A 2HB
|
|
|
|
|
|
K-SURE LENDERS
|
|
|
|
|
|
|
|
SIGNED
by
|
)
|
/s/ Jasmine Lossouarn
|
|
|
)
|
Jasmine Lossouarn
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB (UK) LIMITED
|
)
|
|
|
in the presence of:
|
)
|
/s/ Aimee Myhre
|
|
|
|
Aimee Myhre
|
|
|
|
Trainee Solicitor
|
|
|
|
Watson Farley & Williams LLP
|
|
|
|
15 Appold Street
|
|
|
|
London EC2A 2HB
|
|
SIGNED
by
|
)
|
/s/ Jasmine Lossouarn
|
|
|
)
|
Jasmine Lossouarn
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
ABN AMRO BANK N.V.
|
)
|
|
|
in the presence of:
|
)
|
/s/ Aimee Myhre
|
|
|
|
Aimee Myhre
|
|
|
|
Trainee Solicitor
|
|
|
|
Watson Farley & Williams LLP
|
|
|
|
15 Appold Street
|
|
|
|
London EC2A 2HB
|
|
|
|
|
|
SIGNED
by
|
)
|
/s/ Jasmine Lossouarn
|
|
|
)
|
Jasmine Lossouarn
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
ING BANK
, a branch of
ING-DiBa AG
|
)
|
|
|
in the presence of:
|
)
|
/s/ Aimee Myhre
|
|
|
|
Aimee Myhre
|
|
|
|
Trainee Solicitor
|
|
|
|
Watson Farley & Williams LLP
|
|
|
|
15 Appold Street
|
|
|
|
London EC2A 2HB
|
|
|
|
|
|
MANDATED LEAD ARRANGERS
|
|
|
|
|
|
|
|
SIGNED
by
|
)
|
/s/ Jasmine Lossouarn
|
|
|
)
|
Jasmine Lossouarn
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB (UK) LIMITED
|
)
|
|
|
in the presence of:
|
)
|
/s/ Aimee Myhre
|
|
|
|
Aimee Myhre
|
|
|
|
Trainee Solicitor
|
|
|
|
Watson Farley & Williams LLP
|
|
|
|
15 Appold Street
|
|
|
|
London EC2A 2HB
|
|
|
|
|
|
SIGNED
by
|
)
|
/s/ Jasmine Lossouarn
|
|
|
)
|
Jasmine Lossouarn
|
|
for and on behalf of
|
)
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Attorney-in-Fact
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ABN AMRO BANK N.V.
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)
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in the presence of:
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)
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/s/ Aimee Myhre
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Aimee Myhre
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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SIGNED
by
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)
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/s/ Jasmine Lossouarn
|
|
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)
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Jasmine Lossouarn
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for and on behalf of
|
)
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Attorney-in-Fact
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ING BANK
, a branch of
ING-DiBa AG
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)
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in the presence of:
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)
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/s/ Aimee Myhre
|
|
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Aimee Myhre
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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CO-BOOKRUNNERS
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SIGNED
by
|
)
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/s/ Jasmine Lossouarn
|
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)
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Jasmine Lossouarn
|
|
for and on behalf of
|
)
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Attorney-in-Fact
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DNB (UK) LIMITED
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)
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in the presence of:
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)
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/s/ Aimee Myhre
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Aimee Myhre
|
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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SIGNED
by
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)
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/s/ Jasmine Lossouarn
|
|
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)
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Jasmine Lossouarn
|
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for and on behalf of
|
)
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Attorney-in-Fact
|
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ABN AMRO BANK N.V.
|
)
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in the presence of:
|
)
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/s/ Aimee Myhre
|
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Aimee Myhre
|
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
|
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SIGNED
by
|
)
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/s/ Jasmine Lossouarn
|
|
|
)
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Jasmine Lossouarn
|
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for and on behalf of
|
)
|
Attorney-in-Fact
|
|
ING BANK
, a branch of
ING-DiBa AG
|
)
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in the presence of:
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)
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/s/ Aimee Myhre
|
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Aimee Myhre
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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ECA COORDINATOR
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SIGNED
by
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)
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/s/ Jasmine Lossouarn
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|
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)
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Jasmine Lossouarn
|
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for and on behalf of
|
)
|
Attorney-in-Fact
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DNB BANK ASA, LONDON BRANCH
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)
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in the presence of:
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)
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/s/ Aimee Myhre
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Aimee Myhre
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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K-SURE AGENT
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SIGNED
by
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)
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/s/ Jasmine Lossouarn
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|
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)
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Jasmine Lossouarn
|
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for and on behalf of
|
)
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Attorney-in-Fact
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DNB BANK ASA, LONDON BRANCH
|
)
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in the presence of:
|
)
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/s/ Aimee Myhre
|
|
|
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Aimee Myhre
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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AGENT
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SIGNED
by
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)
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/s/ Jasmine Lossouarn
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)
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Jasmine Lossouarn
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for and on behalf of
|
)
|
Attorney-in-Fact
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DNB BANK ASA, LONDON BRANCH
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)
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in the presence of:
|
)
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/s/ Aimee Myhre
|
|
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Aimee Myhre
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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SECURITY TRUSTEE
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SIGNED
by
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)
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/s/ Jasmine Lossouarn
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)
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Jasmine Lossouarn
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for and on behalf of
|
)
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Attorney-in-Fact
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DNB BANK ASA, LONDON BRANCH
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)
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in the presence of:
|
)
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/s/ Aimee Myhre
|
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Aimee Myhre
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Trainee Solicitor
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Watson Farley & Williams LLP
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15 Appold Street
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London EC2A 2HB
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Exhibit 10.19
6 June 2017
DEALER AGREEMENT
relating to the
EUR 50,000,000
Belgian Multi-currency Short-Term Treasury Notes Programme
of
as Issuer
and
BNP Paribas
Fortis SA/NV
as Arranger,
Domiciliary Agent and Dealer
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
TABLE OF CONTENTS
|
1.
|
INTERPRETATION
|
2
|
|
2.
|
APPOINTMENTS
|
5
|
|
3.
|
ISSUE PROCEDURE
|
6
|
|
4.
|
REPRESENTATIONS AND WARRANTIES
|
10
|
|
5.
|
CONDITIONS PRECEDENT
|
13
|
|
6.
|
COVENANTS AND AGREEMENTS
|
14
|
|
7.
|
OBLIGATIONS OF THE DEALER
|
20
|
|
8.
|
TERMINATION AND ADDITIONAL APPOINTMENT
|
21
|
|
9.
|
Transfers to affiliates
|
22
|
|
10.
|
CALCULATION AGENT
|
22
|
|
11.
|
STATUS OF THE DEALERS AND THE ARRANGER
|
22
|
|
12.
|
NOTICES
|
23
|
|
13.
|
PARTIAL INVALIDITY
|
23
|
|
14.
|
REMEDIES AND WAIVERS
|
23
|
|
15.
|
COUNTERPARTS
|
24
|
|
16.
|
APPLICABLE LAW AND JURISDICTION
|
24
|
|
SCHEDULE 1 CONDITION PRECEDENT DOCUMENTS
|
25
|
|
SCHEDULE 2 SELLING RESTRICTIONS
|
26
|
|
SCHEDULE 3 DEALER ACCESSION LETTER
|
28
|
|
SCHEDULE 4 NOTIFICATION LETTER FOR AN INCREASE IN THE PROGRAMME MAXIMUM AMOUNT
|
29
|
|
SCHEDULE 5 FORM OF TRADE CONFIRMATION
|
30
|
|
schedule 6 Initial settlement instructions
|
32
|
|
Schedule 7 AdDresses for notices
|
33
|
|
Schedule 8 form of calculation agency agreement
|
34
|
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
THIS AGREEMENT IS DATED
6 June 2017
AND MADE BETWEEN
Euronav NV
, a limited liability company
(“
naamloze vennootschap
” / “
société anonyme
”) incorporated under the laws of
Belgium and having its registered office at
De Gerlachekaai 20, 2000 Antwerp
, enterprise number 0860.402.767 (RPR/RPM Antwerpen)
as issuer (hereinafter referred to as the “
Issuer
”);
AND
BNP PARIBAS FORTIS SA/NV
, a credit institution
validly existing under the laws of the Kingdom of Belgium, having its registered office at Montagne du Parc 3, B-1000 Brussels,
Belgium, enterprise number 0403,199,702 (RPM/RPR Brussels) as arranger and dealer (the “
Arranger
” and the “
Dealer
”);
WHEREAS,
|
|
(i)
|
The Issuer has, further to a decision of its board of directors dated
6 June 2017,
established
a Multi-currency Short Term Treasury Notes Programme for the issue of Treasury Notes denominated in euro or any other foreign currency,
subject to the Terms and Conditions of the Treasury Notes (the “
Conditions
”) set out in the Information Memorandum
(as defined below) and in accordance with the law of 22 July 1991 relating to
billets de trésorerie et certificats de
dépôt / thesauriebewijzen en depositobewijzen
, as amended, and the royal decree of 14 October 1991 relating to
billets de trésorerie et certificats de dépôt / thesauriebewijzen en depositobewijzen
, as amended.
|
|
|
(ii)
|
The Issuer has appointed BNP Paribas Fortis SA/NV, which has accepted, to act as Domiciliary Agent
in relation to the Treasury Notes to be issued under the Programme pursuant to the Domiciliary Agency Agreement (as defined below).
|
|
|
(iii)
|
The Issuer, the Domiciliary Agent and the NBB (as defined below) have executed the Clearing Agreement
(as defined below) in relation to the clearing of the Treasury Notes to be issued by the Issuer.
|
THE PARTIES HERETO AGREE AS FOLLOWS:
In this Agreement:
“
Additional Dealer
” means
any institution appointed as a Dealer in accordance with Clause 8.3 (
Appointment of an Additional Dealer
).
“
Business Day
” means any
day, other than a Saturday or Sunday, that is (i) a TARGET Day and (ii) a day on which banks are open for general business in Brussels
and, in respect of payments to be made in respect of Treasury Notes issued in a Foreign Currency, in the principal financial centre
of such Foreign Currency.
“
Clearing Agreement
” means
the
Convention de service de clearing relatif aux billets de trésorerie dématérialises et aux certificats
de dépôt dématérialisés / Overeenkomst van dienstverlening inzake de clearing van gedematerialiseerde
thesauriebewijzen en gedematerialiseerde depositobewijzen
dated on or about the date hereof and made between the NBB, the Issuer
and the Domiciliary Agent, as amended, supplemented, or/and updated from time to time.
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
"
Clearing System
" means Clearstream
Banking, société anonyme ("Clearstream, Luxembourg"), Euroclear Bank S.A./N.V. ("Euroclear"),
the clearing system operated by the NBB, or any successor thereto or any other clearing system from time to time agreed between
the Dealers and the Issuer.
“
Dealer
” means the Dealer
(including BNP Paribas Fortis SA/NV in its capacity as Arranger) or the Dealer and any Additional Dealer but excluding any institution
whose appointment as a dealer has been terminated under Clause 8.2 (
Termination of and resignation by a Dealer
) provided
that where any such institution has been appointed as Dealer in relation to a particular issue of Treasury Notes or period of time,
the expression Dealer shall only mean or include such institution in relation to such Treasury Notes or that time period.
“
Disclosure Documents
” means,
at any particular date:
|
|
(a)
|
the Information Memorandum;
|
|
|
(b)
|
the most recently published audited financial statements of the Issuer and any subsequently prepared
interim financial statements (whether audited or unaudited, and including, if applicable, the information to be prepared in accordance
with the Treasury Notes Decree) of the Issuer; and
|
|
|
(c)
|
any other document delivered by the Issuer to a Dealer which the Issuer has expressly authorised
in writing to be distributed to actual or potential purchasers of Treasury Notes.
|
“
Domiciliary Agency Agreement
”
means the domiciliary agency agreement, dated on or about the date of this Agreement, between the Issuer and the Domiciliary Agent,
as amended, supplemented, or/and updated from time to time, providing for the issuance of and payment on the Treasury Notes.
“
Domiciliary Agent
” means
BNP Paribas Fortis SA/NV as domiciliary agent for the Treasury Notes and any successor agent appointed in accordance with the Domiciliary
Agency Agreement.
“
Dollars
” and “
USD
”
mean the lawful currency of the United States of America; and “
Dollar Treasury Note
” means a Treasury Note denominated
in Dollars.
“
euro
” and “
EUR
”
and "
€
" denote the single currency of the member states of the European Communities that adopt or have adopted
the euro as their lawful currency under the legislation of the European Community for Economic Monetary Union and “
euro
Treasury Note
” means a Treasury Note denominated in euro.
“
Euro Equivalent
” means
on any day:
|
|
(a)
|
in relation to any euro Treasury Note, the nominal amount
of such Treasury Note;
|
|
|
(b)
|
in relation to any Treasury Note denominated or to be denominated in any other currency, the amount
in euro which would be required to purchase the nominal amount of such Treasury Note as expressed in such other currency at the
spot rate of exchange for the purchase of such other currency with euro, as observed by the Issuer at or about 11.00 a.m. (Brussels
time) on such day.
|
“
Foreign Currency
” means
any lawful currency other than Euro for which the European Central Bank daily publishes Euro foreign exchange reference rates,
provided that the NBB accepts such currency and subject to compliance with all applicable legal and regulatory requirements (including
the rules of the Clearing System).
“
UK FSMA
” means the Financial
Services and Markets Act 2000.
“
Group
” means the Issuer
and its Subsidiaries.
“
Information Memorandum
”
means the information memorandum dated
6 June 2017
,containing information about the Issuer and the Treasury Notes (including
information incorporated therein by reference), as prepared by or on behalf of the Issuer pursuant to Article 5 of the Treasury
Notes Law for use by the Dealer and Additional Dealer, if any, in connection with the transactions contemplated by this Agreement,
as the same may be amended, supplemented, updated and/or substituted from time to time.
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
“
Issue Date
” means the date
on which Treasury Notes are to be issued in accordance with an agreement between the Issuer and the Dealer and Additional Dealer,
if any, for a Note Transaction.
“
NBB
” means the National
Bank of Belgium, provided that, if the NBB ceases to be the operator of the Clearing System in relation to the Treasury Notes,
references to the NBB shall henceforth refer to the successor operator thereof in relation to the Treasury Notes.
“
Note Transaction
” means
the issue by the Issuer and the subscription by a Dealer of Treasury Note(s) in accordance with Clause 3.2 (
Issue Procedure
).
“
Programme
” means the commercial
paper programme of the Issuer established by the Programme Agreements.
“
Programme Agreements
” means
this Agreement, any agreement for a Note Transaction, the Domiciliary Agency Agreement, and the Clearing Agreement.
“
Programme Maximum Amount
”
means EUR 50,000,000 or such other amount as may apply in accordance with Clause 3.6 (
Increase in Programme Maximum Amount
).
“
Ratings Agency
” means Fitch
Ratings Ltd. ("
Fitch
"), Moody's Investors Service, Limited ("
Moodys
") or Standard & Poor's
Credit Market Services Europe Limited ("
S&P
") or any other statistical ratings organisation which rates the
Issuer's debt securities.
“
Relevant Party
” means the
Arranger, the Dealer or an Additional Dealer, each of their respective affiliates and each person who controls them (within the
meaning of section 15 of the Securities Act of the United States Securities Exchange Act of 1933, as amended), together with each
of their respective directors, officers, employees and agents.
“
Sanctions
” means any economic
or financial sanctions or embargoes and/or restrictive measures administered or imposed by the Office of Foreign Assets Control
of the U.S. Department of the Treasury, the U.S. State Department, any other agency of the U.S. government, the United Nations,
the European Union or the United Kingdom.
"
Sterling
" and "
£
"
denote the lawful currency of the United Kingdom; and "
Sterling Note
" means a Treasury Note denominated in Sterling.
“
Subsidiary
” means:
|
|
(a)
|
an entity of which a person has direct or indirect control or owns directly or indirectly more
than 50% of the voting capital or similar right of ownership and control for this purpose means the power to direct the management
and the policies of the entity whether through the ownership of voting capital, by contract or otherwise; or
|
|
|
(b)
|
an entity whose financial statements are, in accordance with applicable law and generally accepted
accounting principles, consolidated with those of another person using the full consolidation method.
|
“
TARGET2
” means the Trans-European
Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched
on 19 November 2007.
“
TARGET Day
” means any day
on which TARGET2 is open for the settlement of payments in euro.
“
Trade Confirmation
” means
the trade confirmation confirming the terms of a Note Transaction substantially in the form of Schedule 5 to this Agreement (
Form
of Trade Confirmation
).
“
Trade Date
” means, in relation
to a given Note Transaction, the date on which an agreement for a Note Transaction is reached between the Issuer and a Dealer in
accordance with Clause 3.2 (
Issue procedure
) below.
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
“
Treasury Note
” means a
dematerialised treasury note (
billet de trésorerie / thesauriebewijs
) issued under and in accordance with the Treasury
Notes Law and the Treasury Notes Decree and issued by the Issuer in accordance with the Domiciliary Agency Agreement.
“
Treasury Notes Decree
”
means the Belgian royal decree of 14 October 1991 implementing the Treasury Notes Law, as amended or replaced from time to time.
“
Treasury Notes Law
” means
the Belgian law of 22 July 1991 on treasury notes and certificates of deposit (
loi relative aux billets de trésorerie
et aux certificats de dépôt
/
wet betreffende de thesauriebewijzen en de depositobewijzen),
as amended
or replaced from time to time.
|
|
(a)
|
In this Agreement, unless the contrary intention appears, a reference to:
|
|
|
(i)
|
a provision of a law is a reference to that provision as amended, extended, applied or re-enacted
and includes any subordinate legislation;
|
|
|
(ii)
|
a Clause or a Schedule is a reference to a clause of or a schedule to this Agreement;
|
|
|
(iii)
|
a person includes any individual, company, corporation, unincorporated association or
body (including a partnership, trust, joint venture or consortium), government, state, agency, organisation or any other entity
whether or not having separate legal personality, and references to any person shall include its successors in title, permitted
assigns and permitted transferees;
|
|
|
(iv)
|
assets includes present and future properties, revenues and rights of every description;
|
|
|
(v)
|
an authorisation includes any authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration;
|
|
|
(vi)
|
a regulation includes any regulation, rule, official directive, request or guideline (whether
or not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation; and
|
|
|
(vii)
|
any Programme Agreement or other document is a reference to that Programme Agreement or
other document as amended, novated, restated, superseded or supplemented.
|
|
|
(b)
|
Each capitalised term used in this Agreement and not expressly defined in this Agreement
shall, unless the context otherwise requires, have the meaning given to such term in the Information Memorandum.
|
|
|
(c)
|
The index to and the headings in this Agreement are for convenience only and may not be
considered in construing this Agreement.
|
|
|
2.1
|
Appointment of Arranger
|
The Issuer hereby appoints BNP Paribas
Fortis SA/NV as Arranger of the Programme. BNP Paribas Fortis SA/NV hereby accepts such appointment.
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
The Arranger will submit the Programme
to the NBB for acceptance in the Clearing System. The Arranger will submit the Programme to any other clearing service that may
from time to time be relevant for the clearing of the Treasury Notes.
The Issuer agrees that the Information
Memorandum and the content thereof will be deemed to be approved by and prepared under the sole liability of the Issuer when an
original version thereof has been signed on the signature page by authorised signatories of the Issuer. The Issuer further agrees
that any supplement thereto and the content thereof will be deemed to be approved by and prepared under the sole liability of the
Issuer when signed by authorised signatories of the Issuer.
|
|
2.2
|
Appointment of the Dealer
|
The Issuer hereby appoints the Dealer
with respect to the issue of Treasury Notes under this Agreement, and the Dealer hereby accepts such appointment upon the terms
of this Agreement and subject to Clause 7.1 (
Selling Restrictions
).
|
|
2.3
|
The Uncommitted Programme
|
The Issuer shall not be under any
obligation to issue Treasury Notes, and a Dealer shall not be under any obligation to subscribe for or procure the subscription
of any Treasury Notes, until such time as an agreement for a Note Transaction has been reached between the Issuer and that Dealer.
|
|
3.1
|
Issue of Treasury Notes
|
|
|
(a)
|
Subject to the terms of this Agreement, the Issuer may issue Treasury Notes to the Dealer
or any Additional Dealer from time to time upon such terms and such prices as the Issuer and the relevant Dealer may agree. The
Issuer acknowledges that the Dealer or any Additional Dealer may resell the Treasury Notes subscribed for by such Dealer or hold
the same in portfolio.
|
|
|
(b)
|
Each issue of Treasury Notes having the same Issue Date, Maturity Date, currency and yield
and redemption basis will form one series of Treasury Notes.
|
|
|
(c)
|
The Tenor of each Treasury Note shall not be less than one day or greater than 364 days,
with that Tenor being calculated from (and including) the Issue Date to (but excluding) the Maturity Date of that Treasury Note.
|
|
|
(d)
|
Treasury Notes shall be issued with a minimum denomination of EUR 250,000 (or integral multiples
thereof) or such other conventionally accepted denominations in those currencies as may be agreed between the Issuer and the relevant
Dealer from time to time, subject in each case to compliance with all applicable legal and regulatory requirements and provided
that the equivalent of that denomination in euro (as determined by the Issuer on the Trade Date and on the Issue Date) is not less
than EUR 250,000.
|
|
|
(e)
|
Treasury Notes shall be issued in accordance with the Conditions of the Treasury Notes,
and said Conditions are hereby incorporated by reference.
|
|
|
(f)
|
The aggregate amount of Treasury Notes outstanding at any time will not exceed the Programme Maximum
Amount. For the purposes of calculating the amount of Treasury Notes issued under the Programme, the Issuer shall take the principal
amount of any outstanding Treasury Notes denominated in any currency other than euro as the Euro Equivalent of such principal amount
as at the Trade Date of the relevant Treasury Notes.
|
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
|
|
(a)
|
Whenever the Issuer wishes to issue Treasury Notes, any of its authorised officers shall
contact the Dealer or any Additional Dealer directly by telephone, to advise such Dealer(s) of the desired Tenor(s), currency,
amount(s) and Issue Date of the Treasury Notes it wishes to issue, if possible together with any other financial terms and conditions.
|
|
|
(b)
|
After a request from the Issuer in accordance with paragraph (a) above,
|
|
|
(i)
|
each Dealer may agree with the Issuer to subscribe for such Treasury Notes, in which case,
the Issuer shall be obliged to issue and such Dealer shall be obliged to subscribe and pay for the Treasury Notes on the terms
so agreed; or
|
|
|
(ii)
|
if agreed between a relevant Dealer and the Issuer, such relevant Dealer shall use its
best effort to identify potential investors for Treasury Notes and invite them:
|
|
|
(A)
|
to subscribe for Treasury Notes at the financial conditions and in accordance with the terms
proposed by the Issuer after consultation with the relevant Dealer; or
|
|
|
(B)
|
to bid for the subscription of Treasury Notes up to the amount and for the Tenor proposed
by the Issuer after consultation with the relevant Dealer, and
|
if in such case
a Dealer is not able to subscribe for or procure the subscription of all or part of the amount allocated to it, the other Dealer,
if any, shall have the right but not the obligation to subscribe for or procure the subscription of such amount of Treasury Notes.
As soon as possible,
but in any event before 12.00 noon (Brussels time) on the Trade Date, each relevant Dealer(s) shall inform the Issuer, in the case
of paragraph (b)(ii)(A) above, of the amount of Treasury Notes for which it is able to arrange the subscription or, in the case
of paragraph (b)(ii)(B) above of the financial conditions at which it would be possible to arrange the subscription of the requested
amount of Treasury Notes.
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(c)
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If at any time, an investor approaches a Dealer to request the issue of Treasury Notes by
the Issuer, such Dealer shall inform the Issuer of such demand. The Issuer shall, subject to the other terms of this Agreement,
have the right but not the obligation to issue Treasury Notes.
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3.3
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Agreements for Note Transactions
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(a)
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If the Issuer and the relevant Dealer have agreed by telephone on the terms of the subscription
of any Treasury Note by or procured by such Dealer (including, but not limited to, with respect to the date of issue, purchase
price, principal amount, maturity and interest or discount thereof) pursuant to this Agreement:
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(i)
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the Issuer, or if requested by the Issuer, the Dealer or an Additional Dealer shall at the latest
by 2 p.m. (CET) on the Business Day preceding the proposed Issue Date for issues of Treasury Notes denominated in euro, and 2 p.m.
(CET) on the second Business Day before the proposed Issue Date for issues of Treasury Notes denominated in any other currency,
confirm by telephone to the Domiciliary Agent the information set out in the form of Trade Confirmation set out in Schedule 5 in
respect of the Treasury Notes;
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(ii)
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the Issuer and the Dealer shall confirm on the Trade Date or at the latest by 4 p.m. (CET)
on the Business Day preceding the proposed Issue Date for issues of Treasury Notes denominated in euro, and 4 p.m. (CET) on the
second Business Day before the proposed Issue Date for issues of Treasury Notes denominated in any other currency, amongst each
other in writing the terms of the relevant agreement for a Note Transaction using the Trade Confirmation; and
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(iii)
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the Issuer, or if requested by the Issuer, the Dealer, shall send at the latest by 6 p.m.
(CET) on the Business Day preceding the proposed Issue Date for issues of Treasury Notes denominated in euro, and 6 p.m. (CET)
on the second Business Day before the proposed Issue Date for issues of Treasury Notes denominated in any other currency in writing
to the Domiciliary Agent, a copy of the Trade Confirmation duly signed or countersigned by the Issuer, or any other document signed
or countersigned by the Issuer confirming the terms of the relevant agreement for a Note Transaction.
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(b)
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Failure to confirm
:
Any failure by the Issuer or the relevant Dealer to confirm, if so requested, its agreement
with or rejection of the Trade Confirmation sent to it by the other party before 5 p.m.
(CET) on the Business Day preceding the proposed Issue Date for issues of Treasury Notes
denominated in euro, and 5 p.m. (CET) on the second Business Day before the proposed
Issue Date for issues of Treasury Notes denominated in any other currency, shall be deemed
an acceptance of the terms of the proposed issue, subject to Clause 3.4 (
Recordings
and disagreements
).
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(c)
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Execution of transaction
:
The transaction shall be executed according to the terms set out in the Trade Confirmation
or other document signed or countersigned by the Issuer and provided to the Domiciliary
Agent pursuant to paragraph (a)(iii) above, unless the Issuer contacts the Domiciliary
Agent, at the latest at 6 p.m. (CET) on the Business Day preceding the proposed Issue
Date for issues of Treasury Notes denominated in euro, and 6 p.m. (CET) on the second
Business Day before the proposed Issue Date for issues of Treasury Notes denominated
in any other currency, to advise it of any error or discrepancy therein.
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(d)
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Settlement instructions
:
The relevant Dealer shall notify the Domiciliary Agent and the Issuer of the payment
and delivery instructions applicable to such Treasury Note in accordance with the prevailing
market practice and in sufficient time to enable the Domiciliary Agent to deliver such
Treasury Notes (or make the same available for collection) against payment on the relevant
Issue Date; the initial settlement instructions in respect of each Dealer and the Domiciliary
Agent are set out in Schedule 6 (
Initial Settlement Instructions)
, and each party
may change the instructions applicable to it subject to prior written notice at least
two Business Days prior to any date on which payment in respect of Treasury Notes is
due.
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(e)
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Delivery and payment
:
On the Issue Date, each Dealer shall pay the purchase
price for the Treasury Notes issued to it pursuant to the relevant agreement for a Note Transaction by transfer of the requisite
amount in same day funds to the account of the Domiciliary Agent with the relevant clearing system, against delivery of the Treasury
Notes to such securities account at the relevant clearing system as specified by the relevant Dealer.
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Any payment to be
made to the Domiciliary Agent that is not made through a clearing system against delivery of Treasury Notes shall be made by transfer
of same-day funds settled through the TARGET2-system, or such other payment system designated by the Domiciliary Agent, to such
account as the Domiciliary Agent shall from time to time have specified for this purpose.
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3.4
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Recordings and disagreements
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Each party to this Agreement acknowledges
and agrees that any telephone conversation in respect of or in relation to the issue of Treasury Notes may be recorded and kept
by each relevant party.
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– Dealer Agreement – 6 June 2017 – Execution Version
In case of any disagreement between
the Issuer and the Dealer or an Additional Dealer as to the terms and conditions of an issue of Treasury Notes, the recording of
the relevant telephone conversations shall be decisive, provided that no such recording shall overrule a Trade Confirmation duly
signed or countersigned by the Issuer. Each Dealer undertakes for the benefit of the Domiciliary Agent, and the Issuer agrees,
to make available the recordings of such telephone conversations to the Domiciliary Agent in case of any disagreement between the
Issuer and the Domiciliary Agent on the terms and conditions of Treasury Notes issued.
The terms and conditions of an issue
may not be challenged after a period of two (2) months following the Trade Date, after which any such recordings may be destroyed.
If, for any reason (including, without
limitation, the failure of the relevant trade), the Issuer and the relevant Dealer agree that a Treasury Note is not to be issued
in accordance with an agreement for a Note Transaction, the Issuer together with the relevant Dealer shall immediately notify the
Domiciliary Agent of that fact. No cancellation of any issue will be possible after 10 a.m. (Brussels time) on the Business Day
before the Issue Date in case the Treasury Notes are denominated in euro, and before 10 a.m. (Brussels time) on the Business Day
before the Issue Date of such Treasury Notes, in case the Treasury Notes are denominated in any Foreign Currency (or such other
time as from time to time agreed with or imposed by the NBB), after which time no such cancellation shall be possible.
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3.6
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Increase in Programme Maximum Amount
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The Issuer may
from time to time, subject to the prior consent of the Domiciliary Agent, increase the Programme Maximum Amount by:
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(a)
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giving at least 10 days’ notice by letter in substantially the form of Schedule 4
(
Notification Letter for an Increase in the Programme Maximum Amount
) to the Dealer and the Additional Dealer, if any, and
to the Domiciliary Agent; and
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(b)
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delivering to each Dealer with that letter the documents referred to in that letter, in
each case in form and substance acceptable to each Dealer.
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Any agreement for a Note Transaction
for a Treasury Note denominated in any Foreign Currency (other than U.S. Dollars) shall be conditional upon:
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(a)
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it being lawful and in compliance with all requirements of any relevant central bank and
any other relevant fiscal, monetary, regulatory or other authority from time to time, for deposits to be made in such currency
and for such Treasury Note to be issued, offered for sale, sold and delivered;
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(b)
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it being denominated in any lawful currency other than Euro for which the European Central
Bank daily publishes Euro foreign exchange reference rates, provided that the NBB accepts such currency and subject to (i) compliance
with any applicable legal and regulatory requirements and (ii) the prior approval of the Domiciliary Agent on such currency.
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(c)
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the written consent of the Domiciliary Agent to that currency having been given; and
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(d)
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any appropriate amendments required, or considered by the Domiciliary Agent to be required, to
be made to this Agreement and/or the Domiciliary Agency Agreement.
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EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
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3.8
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Dematerialised Treasury Notes
|
Each Treasury Note will be issued
in dematerialised form and represented by book entries in securities accounts only (and not by any bearer document or register)
maintained with the Clearing System itself or with participants or sub-participants in such system approved by the Belgian Financial
Services and Markets Authority for the purposes of maintaining such securities accounts.
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4.
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REPRESENTATIONS
AND WARRANTIES
|
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4.1
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Representations and warranties
|
The Issuer makes the representations
and warranties in this Clause 4 to the Arranger, the Dealer and any Additional Dealer, if any.
It is a company duly incorporated
and validly existing under the laws of Belgium (in respect of the Issuer), with full power and authority to own its assets and
to conduct its business as it is being conducted.
It has the power to enter into, perform
and deliver, and has taken all necessary action to authorise the entry into, the performance and delivery of, the Treasury Notes
and the Programme Agreements to which it is a party and the transactions contemplated by those Programme Agreements and Treasury
Notes.
The obligations expressed to be assumed
by it in each of the Programme Agreements to which it is a party and (when issued and paid for) the Treasury Notes are legal, valid,
binding and enforceable obligations.
It shall use the proceeds of issues
of Treasury Notes for general corporate purposes.
All authorisations required to enable
it to lawfully enter into, exercise its rights and comply with its obligations under the Programme Agreements to which it is a
party and the Treasury Notes, and to make the Programme Agreements to which it is a party and the Treasury Notes admissible in
evidence in Belgium have been obtained or effected and are in full force and effect.
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4.7
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Financial requirements
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The Issuer complies with the financial
requirements set out in Article 13 of the Treasury Notes Decree.
The entry into and delivery by it
of the Programme Agreements to which it is a party and the performance by it of the obligations under such Programme Agreements
will not conflict with, or constitute a default under,
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(a)
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its constitutional documents;
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– Dealer Agreement – 6 June 2017 – Execution Version
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(b)
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any law or regulation which is applicable to it; or
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(c)
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any term of any agreement or any instrument to which it is a party or by which it or any
of its assets may be bound.
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The obligations of the Issuer under
the Programme Agreements to which it is a party and, when issued and paid for, the Treasury Notes rank at least
pari passu
with all present and future unsecured and unsubordinated obligations of the Issuer, as the case may be, other than obligations
preferred by law applying to companies generally.
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4.10
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Disclosure Documents
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(a)
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To the best of the Issuer’s knowledge and belief, in the context of the Programme
Agreements and the transactions contemplated by the Programme Agreements, the press release(s) or/and financial statements contained
or incorporated by reference in the Disclosure Documents is true and accurate in all material respects and not misleading in any
material respect and there are no other facts in relation to the Issuer or any Treasury Notes the omission of which makes the Disclosure
Documents or any such information contained or incorporated by reference therein misleading in any material respect.
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(b)
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The Information Memorandum, as supplemented to incorporate by reference press release(s)
or/and financial statements, has been approved by and is prepared under the sole liability of the Issuer and contains all necessary
information on the Issuer, the Programme and the rights attached to and the terms and conditions of the Treasury Notes.
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(c)
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Any statements of intention, opinion, belief or expectation contained in the Disclosure
Documents are, or will be at the date of their publication, honestly and reasonably made by the Issuer.
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4.11
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Financial Information
|
The most recently published financial
statements of the Issuer, which are incorporated by reference in the Information Memorandum:
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(a)
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were prepared in accordance with the requirements of applicable law and with generally accepted
accounting principles in the jurisdiction of incorporation of the Issuer and are (other than in respect of changes required pursuant
to a change in applicable laws or accounting principles and/or changes disclosed in the notes to such financial statements) consistently
applied throughout the periods involved; and
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(b)
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fairly represent its financial condition and operations as at the date on which they were
prepared.
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4.12
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Adverse Change and Litigation
|
Except as otherwise disclosed
by any Disclosure Document:
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(a)
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there has been no material adverse change in the business, financial or other condition
of the Issuer since the date of the most recently published audited consolidated financial statements; and
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(b)
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there is no material litigation, arbitration or governmental proceeding pending or, to the knowledge
of the Issuer, threatened against or affecting any member of the Group,
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which in any case could reasonably
be expected to be capable to affect the assessment by an investor of the Treasury Notes.
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
The Issuer is not in default in respect
of any indebtedness for borrowed money or any obligation having a similar commercial effect.
The Issuer is not required by any
law or regulation or any relevant taxing authority or any political subdivision or any authority thereof having the power to tax
in the jurisdiction in which the Issuer is resident for tax purposes to make any withholding or deduction from any payment due
under the Treasury Notes or any Programme Agreement to which it is party for or on account of any taxes or duties of whatever nature,
provided that such Treasury Notes are held by an investor that qualifies under Article 4 of the Royal Decree of 26 May 1994 in
an Exempt Account (X-Account) with a qualifying clearing system in accordance with the Belgian law of 6 August 1993 relating to
transactions in certain securities and its implementation decrees.
The aggregate outstanding principal
amount of the Treasury Notes on the Trade Date of any Treasury Note does not and will not exceed the Programme Maximum Amount.
Neither the Issuer nor any of its
Subsidiaries, nor to the knowledge of the Issuer any director, officer, agent, employee or other person associated with or acting
on behalf of the Issuer or any of its Subsidiaries, has used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is in violation of any provision of any applicable anti-bribery
or anti-corruption law, rule or regulation enacted in any jurisdiction; or made, offered or promised to make, or authorised the
payment or giving of any bribe, rebate, payoff, influence payment, facilitation payment, kickback or other unlawful payment or
gift of money or anything of value prohibited under any applicable law, rule or regulation.
Neither the Issuer nor any of its
Subsidiaries nor, to the knowledge of the Issuer any director, officer, agent, employee or affiliate of the Issuer or any of its
Subsidiaries is currently the subject of any Sanctions or conducting business in breach of any Sanctions.
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4.18
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Money Laundering Laws
|
The operations of the Issuer and
its Subsidiaries are and have been conducted at all times in compliance with applicable financial record keeping and reporting
requirements and money laundering statutes in the jurisdiction of Issuer and of all jurisdictions in which the Issuer and its Subsidiaries
conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any applicable governmental agency (collectively, “Money Laundering Laws”).
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4.19
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United States Investment Company Act
|
The Issuer is not, or as a result
of any issue of Treasury Notes or the receipt or application of the proceeds thereof will not become, an investment company as
defined in the United States Investment Company Act of 1940.
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– Dealer Agreement – 6 June 2017 – Execution Version
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4.20
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U.S. selling restrictions
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The Issuer represents, warrants and
agrees:
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(a)
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that neither it, nor any of its affiliates (as defined in Rule 405 under the U.S. Securities Act
of 1933, as amended (the "Securities Act")), nor any person (other than the Dealers, as to whom no representation or
warranty is made) acting on its behalf or on behalf of any of its affiliates, has engaged or will engage in any directed selling
efforts (as defined in Regulation S under the Securities Act ("Regulation S")) in the United States with respect to any
Treasury Notes; and
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(b)
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that it is a foreign issuer and reasonably believes that there is no substantial U.S. market interest
(as those terms are defined in Regulation S) in its debt securities; and
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(c)
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that it will not offer or sell, nor solicit offers to buy, securities under circumstances that
would require registration of the Treasury Notes under the Securities Act.
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The Issuer is a
‘foreign issuer’ (as such term is defined in Regulation S) and the Issuer believes that there is no ‘substantial
U.S. market interest’ (as such term is defined in Regulation S) in the Issuer’s debt securities.
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4.22
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Times for making representations and warranties
|
The representations and
warranties set out in this Clause 4:
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(a)
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are made on the date of this Agreement; and
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(b)
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are deemed to be repeated on each date a Note Transaction is agreed and each date upon which
any Treasury Note is, or is to be, issued by reference to the facts and circumstances then existing.
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When a representation or warranty
under Clauses 4.10 (
Disclosure Documents
) and 4.12 (
Adverse Change and Litigation
) is repeated under paragraph (b)
above, the reference to Disclosure Documents shall be deemed to be only the Disclosure Documents which have been published before
the date on which a relevant Note Transaction is made (in the case of that Note Transaction and the corresponding issue of Treasury
Notes).
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4.23
|
Notice of inaccuracy
|
If, before a Treasury Note is issued
and delivered to or for the account of, the relevant Dealer, any event occurs which would render any of the representations and
warranties in this Clause 4 immediately, or with the lapse of time, untrue or incorrect in any material respect, the Issuer will
inform the relevant Dealer as soon as reasonably practicable of the occurrence of such event. In either case, the relevant Dealer
shall inform the Issuer without any undue delay whether it wishes to continue or discontinue the issuance and delivery of the respective
Treasury Notes.
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5.1
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Initial conditions precedent
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At the latest at the date falling
five Business Days before the date upon which the Issuer and the Dealer or Additional Dealer, if any, shall first agree terms for
a Note Transaction (or such other period as agreed between the Issuer and that Dealer), the Issuer shall deliver to that Dealer
each of the documents listed in Schedule 1 (
Condition Precedent Documents
), in form and substance satisfactory to that Dealer.
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– Dealer Agreement – 6 June 2017 – Execution Version
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5.2
|
Further conditions precedent
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The obligations of the Dealer and
Additional Dealer, if any (in respect of any agreement for a Note Transaction and each issue of Treasury Notes) shall be conditional
upon:
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(a)
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the representations and warranties of the Issuer as set out in Clause 4 (
Representations
and warranties
) of this Agreement being true and correct on each date upon which an agreement for a Note Transaction is made
and on any Issue Date, by reference to the facts and circumstances existing at each such date;
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(b)
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there being, as at the date of any agreement for a Note Transaction and any Issue Date of
such Treasury Notes, no breach in the performance of the obligations of the Issuer under any Programme Agreement and there being
no event of default as set out in Condition 15 (
Events of Default
) of the Conditions which is continuing;
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(c)
|
the total amount of outstanding Treasury Notes does not exceed, and will not exceed as a
consequence of the proposed trade of Treasury Notes, the Programme Maximum Amount; and
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(d)
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the Issuer has complied with its obligations under Article 22 of the Treasury Notes Decree.
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5.3
|
Conditions precedent for updates or supplements
|
Any update of the Information Memorandum
or any Programme Agreement that concerns a change of the Issuer or an increase in the Programme Maximum Amount will be subject
to the satisfaction of the conditions set out, and the delivery of the documents referred to, in Schedule 1 (
Condition Precedent
Documents
).
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6.
|
COVENANTS
AND AGREEMENTS
|
The undertakings in this Clause 6
remain in force from the date of this Agreement for so long as any Programme Agreement is in force and any amount is or may be
outstanding under any Programme Agreement or any Treasury Note.
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6.2
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Financial information
|
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(a)
|
Whenever the Issuer publishes or makes available to its shareholders (or any class of them)
or to its creditors generally (or any class of them) or to the public (by filing with any regulatory authority, securities exchange
or otherwise) any information which could reasonably be expected to be material in the context of the Programme Agreements and
the Treasury Notes and the transactions contemplated by the Programme Agreements and the Treasury Notes and to the extent such
information is not published on the Issuer’s website, the Issuer shall:
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(i)
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notify the Dealer as to the nature of such information;
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(ii)
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upon request from the Dealer or Additional Dealer, if any, advise such Dealer as to whether
any such information has been published or made available;
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(iii)
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make a reasonable number of copies of such information available to the Dealer or Additional
Dealer, if any, on demand upon request and permit distribution of that information to actual or potential purchasers of Treasury
Notes; and
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(iv)
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take such action as may be necessary to ensure that the representation and warranty contained in
Clause 4.10 (
Disclosure Documents
) is true and accurate on the dates when it is made or deemed to be repeated.
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EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
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(b)
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The Issuer shall provide to the Dealer and the Additional Dealer, if any, on demand:
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(i)
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as soon as the same is approved by its shareholders and published, and at the latest six
months after the end of each of its financial years, its annual accounts, either under the form of its most recent annual report
or, if no annual report is published, under the form of the report delivered to the
Centrale des bilans de la Banque Nationale
de Belgique / Balanscentrale van de Nationale Bank van België
, including, at least, the balance sheet, the income statement,
the report by the board of directors and the auditors' report; and
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(ii)
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as soon as available, and in any event within four months after the end of the first half
of each of the financial years of the Issuer, the information required to be prepared by the Issuer pursuant to Article 22 of the
Treasury Notes Decree.
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6.3
|
Authorisation information
|
Whenever the Issuer is required to
obtain or effect any authorisation in order to comply with the representation and warranty contained in Clause 4.6 (
Authorisations
),
the Issuer shall:
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(a)
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notify the Dealer or Additional Dealer, if any, as to the nature of such authorisation;
and
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(b)
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upon request by the Dealer or Additional Dealer, if any, make a reasonable number of copies
of such authorisation available to that Dealer.
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The Issuer will ensure that the consolidated
financial position of the Euronav Group shall at all times be such that:
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(a)
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Consolidated Working Capital shall not be less than $0;
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(b)
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Free Liquid Assets are not less than the higher of:
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(ii)
|
5 per cent, of Total Indebtedness;
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(iii)
|
the amount of Cash shall equal or exceed US$30,000,000; and
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(c)
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the ratio of Stockholders' Equity to Total Assets is not less than 30 per cent.
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In this Clause 6.4 (Financial Covenants):
"
Cash
" means, at
any date of determination, the aggregate value of the Euronav Group's credit balances on any deposit, savings or current account
and cash in hand with recognised and reputable banks or financial institutions but excluding any such credit balances and cash
subject to a Security Interest at any time;
"
Consolidated Current Assets
"
means, at any date of determination, the amount of the current assets of the Euronav Group determined on a consolidated basis in
accordance with IFRS and as shown in the Latest Annual Account and including any amounts available under committed credit lines
and revolving credit facilities having remaining maturities of more than 12 months;
"
Consolidated Current Liabilities
"
means, at any date of determination, the amount of the current liabilities of the Euronav Group determined on a consolidated basis
in accordance with IFRS and as shown in the Latest Annual Account;
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
"
Consolidated Working Capital
"
means Consolidated Current Assets less Consolidated Current Liabilities;
"
Euronav Group
"
means the Issuer and each of its subsidiaries.
"
Free Liquid Assets
"
means, at any date of determination, the aggregate amount of cash and cash equivalents of the Euronav Group determined on a consolidated
basis in accordance with IFRS and as shown in the Latest Annual Account but excluding any of those assets subject to a Security
Interest at any time and, for the avoidance of doubt, "cash and cash equivalents" include any amounts available under
committed credit lines and revolving credit facilities having remaining maturities of more than 6 months;
"
Latest Public Account
"
means, at any date, the consolidated public account of the Euronav Group most recently delivered to the Dealer pursuant to Clause
6.2 (Financial Information) and/or most recently made publicly available;
"
Security Interest
"
means:
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(a)
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a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lient or any other
security interest of any kind;
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(b)
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the security rights of a plaintiff under an action in rem; and
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(c)
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any arrangement entered into by a person (A) the effect of which is to place another person (B)
in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over
an asset of A; but this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard
terms of business of a bank or financial institution.
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"
Stockholders' Equity
"
means, at any date of determination, the amount of the capital and reserves of the Euronav Group determined on a consolidated basis
in accordance with IFRS and as shown in the Latest Annual Account;
"
Total Assets
" means,
at any date of determination, the amount of the total assets of the Euronav Group determined on a consolidated basis in accordance
with IFRS and as shown in the Latest Annual Account; and
"
Total Indebtedness
"
means, at any date of determination, the amount of bonds, notes, debentures, debenture stocks, loan stocks, certificates or other
instruments which are listed, quoted or traded, or for which there is an intention to make an application for listing, quotation
or trading, on any stock exchange or in any securities market (including, without limitation, any over-the-counter market) of the
Euronav Group determined on a consolidated basis in accordance with IFRS and as shown in the Latest Annual Account
The Issuer undertakes to inform the
Dealer or Additional Dealer, if any, promptly upon becoming aware, and at the latest at such time as the relevant information is
published or made public by the Issuer in any form whatsoever, of any new fact, event or circumstance with regard to it or its
financial situation that could:
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(a)
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be material in the context of the Programme Agreements, the transactions contemplated thereby,
and the Treasury Notes;
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(b)
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constitute an Event of Default;
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EURONAV NV
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(c)
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cause the Information Memorandum to include an untrue statement of a material fact or the
omission therein of a material fact necessary for the information contained therein not to be misleading or for it to present a
true and fair view of the Issuer’s financial situation; or
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|
|
(d)
|
render any of the representations set out in Clause 4 (
Representations and warranties
)
untrue or incorrect in any material respect;
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to provide the
Dealer or Additional Dealer, if any, from time to time with such information as such Dealer may reasonably request in respect of
(i) its operations and financial condition, (ii) the due authorisation and execution of the Programme Agreements and the Treasury
Notes, or (iii) its ability to repay the amounts due in respect of the Treasury Notes upon their maturity.
The Issuer and the Dealer or Additional
Dealer, if any, agree (i) to consider all non-public information provided in the context of the Treasury Notes as strictly confidential,
(ii) not to disclose any of this information unless with the other party's written agreement or to their respective advisers (provided
such advisers are bound by legal or contractual confidentially obligations) or to the extent it is required by a court of law or
an applicable regulatory body (including stock market regulations), or if such information becomes generally available to the public
(other than as a result of disclosure by any party to this agreement in breach of its undertaking) and (iii) to take all precautions
necessary to maintain such information strictly confidential.
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6.6
|
Updates of the Information Memorandum and the Programme
|
The Issuer undertakes:
|
|
(a)
|
to prepare and publish (at the cost and expense of the Issuer) an update or supplement to
the Information Memorandum as soon as possible after the occurrence of any significant new factor, material mistake or inaccuracy
relating to the Issuer, the Treasury Notes and/or the information included in the Information Memorandum which is capable of affecting
the assessment of the securities and which arises or is noted after the date of the Information Memorandum; and
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(b)
|
to prepare and publish (at the cost and expense of the Issuer) an update of the Information
Memorandum, and to discuss and agree upon an update of the Programme in general (including the Programme Agreements) with the Arranger
and the Dealer or Additional Dealer, if any, on or before the date falling five years after the date of the Information Memorandum
or, if later, the date of the latest update of the Information Memorandum and/or the Programme.
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6.7
|
Tenor and Currencies of issue of the Treasury Notes
|
The Issuer shall
not issue or trade any Treasury Notes in currencies other than euro or US Dollars (other than as provided in Clause 3.7 (
Optional
currencies
)), nor with a Tenor less than 1 day or longer than 364 days.
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(a)
|
Without prejudice to the other rights or remedies of the Dealers, the Issuer undertakes
to each Dealer that if that Dealer or any of its Relevant Parties incurs any liability, damages, cost, loss or expense (including,
without limitation, reasonable legal fees, costs and expenses) (a Loss) arising out of or in connection with or based on
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(i)
|
the Issuer's failure to make due payment under the Treasury Notes;
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(ii)
|
any Treasury Notes not being issued for any reason attributable to Issuer after an agreement for
that Note Transaction has been made;
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EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
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(iii)
|
any breach or alleged breach of the representations, warranties, covenants or agreements
made or deemed to be repeated by the Issuer in this Agreement or any other Programme Agreement to which it is a party unless, in
the case of an alleged breach only, the allegation is being made by that Relevant Party; or
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(iv)
|
any untrue statement or alleged untrue statement of any material fact contained in the
Disclosure Documents or the omission or alleged omission to state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading in any material respect unless, in the case
of an alleged untrue statement, the allegation is being made by that Relevant Party.
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the Issuer shall
pay to that Dealer on demand an amount equal to such Loss on an after tax basis. No Dealer shall have any duty or obligation, whether
as fiduciary or trustee for any Relevant Party or otherwise, to recover any such payment or to account to any other person for
any amounts paid to it under this paragraph (a).
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(b)
|
In case any allegation as described in subparagraphs (iii) or (iv) above is made or any
action is brought against any Relevant Party in respect of which recovery may be sought from the Issuer under this Clause 6.7,
the Relevant Party shall promptly notify the Issuer (although failure to do so will not relieve the Issuer from any liability under
this Agreement). If any such allegation is made, the parties agree to consult in good faith with respect to the nature of the allegation.
Subject to paragraph (c) below, the Issuer may participate at its own expense in the defence of any action.
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(c)
|
If it so elects within a reasonable time after receipt of the notice referred to in paragraph
(b) above, the Issuer may assume the defence of the action with legal advisers chosen by it and approved by the Relevant Party
(such approval not to be unreasonably withheld or delayed). Notwithstanding such election a Relevant Party may employ separate
legal advisers reasonably acceptable to the Issuer and the Issuer shall bear the reasonable fees and expenses of such separate
legal advisers if:
|
|
|
(i)
|
the use of the legal advisers chosen by the Issuer to represent the Relevant Party would
present such legal advisers with a conflict of interest;
|
|
|
(ii)
|
the actual or potential defendants in, or targets of, any such action include both the
Relevant Party and the Issuer and the Relevant Party concludes that there may be legal defences available to it and/or other Relevant
Parties which are different from or additional to those available to the Issuer;
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|
(iii)
|
the Issuer has not employed legal advisers reasonably satisfactory to the Relevant Party
to represent the Relevant Party within a reasonable time after notice of the institution of such action; or
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|
(iv)
|
the Issuer authorises the Relevant Party to employ separate legal advisers at the expense
of the Issuer.
|
|
|
(d)
|
If the Issuer assumes the defence of the action, the Issuer shall not be liable for any
fees and expenses of legal advisers of the Relevant Party incurred thereafter in connection with the action, except as stated in
paragraph (c) above.
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(e)
|
The Issuer shall not be liable in respect of any settlement of any action effected without its
written consent, such consent not to be unreasonably withheld or delayed. The Issuer shall not, without the prior written consent
of the Relevant Party (such consent not to be unreasonably withheld or delayed) settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim or action in respect of which recovery may be sought (whether or not
any Relevant Party is an actual or potential party to such claim or action) unless such settlement, compromise or consent includes
an unconditional release of each Relevant Party from all liability arising out of such claim or action and does not include a statement
as to or an admission of fault, culpability or failure to act by or on behalf of a Relevant Party.
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EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
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(f)
|
Each Dealer will indemnify the Issuer against any and all losses, claims, damages, liabilities
or expenses (including, without limitation, costs of investigation and defence, reasonable legal fees and disbursements) to which
the Issuer may be subject directly arising out of or based upon any failure by that Dealer to comply with its obligations under
this Agreement caused by any gross negligence of wilful misconduct of that Dealer.
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The Issuer will:
|
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(a)
|
pay, or reimburse the Arranger for, all reasonable costs and expenses (including value added
tax and any other taxes or duties and, subject each time to the Issuer’s prior approval, fees and disbursements of counsel
to the Arranger) incurred by the Arranger in connection with the preparation, negotiation, printing, execution and delivery of
the Programme Agreements and the Treasury Notes and all documents contemplated by the Programme Agreements and the Treasury Notes;
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(b)
|
pay, or reimburse the Dealer or any Additional Dealer, if any, for, all costs and expenses
(including value added tax and any other taxes or duties and, subject each time to the Issuer’s prior approval, fees and
disbursements of counsel to such Dealer) incurred by that Dealer in connection with the enforcement or protection of its rights
under the Programme Agreements, the Treasury Notes and all documents contemplated by the Programme Agreements and the Treasury
Notes; and
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(c)
|
pay any stamp duty or other taxes (including any penalties and interest in respect thereof)
payable in connection with the entry into, delivery and performance of any Programme Agreement or any Treasury Notes, and will
indemnify and hold harmless each Dealer on demand from all liabilities arising from any failure to pay or delay in paying, by Issuer,
such duty or taxes.
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|
|
6.10
|
Changes to the Programme
|
|
|
(a)
|
The Issuer will notify the Dealer and any Additional Dealer, if any, of:
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|
|
(i)
|
any change in the Domiciliary Agent, or any change in any of the offices of such Domiciliary
Agent; and
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|
|
(ii)
|
any amendment to or termination of the Domiciliary Agency Agreement,
|
by no later than
10 Business Days before the making of that change, amendment or termination.
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(b)
|
The Issuer shall use commercially reasonable efforts to prevent from becoming effective
any change, amendment or termination to the Domiciliary Agency Agreement which could reasonably be expected to adversely affect
the interests of any Dealer or the holder of any Treasury Notes then outstanding.
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6.11
|
Continuing obligations
|
The Issuer will take such steps (in
conjunction with the Dealer or any Additional Dealer, if any, where appropriate) to ensure that any laws and regulations or requirements
of any governmental agency, authority or institution which may from time to time be applicable to any Treasury Notes shall be fully
observed and complied with, including (without limitation) its obligations under Clauses 6.12 (
US selling restrictions
)
and 6.13 (
United Kingdom
).
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
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6.12
|
US selling restrictions
|
The Issuer and the Dealer or Additional
Dealer, if any, represent, warrant and agree that neither them, nor any of their affiliates, nor any person acting on their behalf
or on behalf of any of their affiliates, have engaged or will engage in any directed selling efforts in the United States with
respect to any Treasury Notes, and that it and its affiliates have complied and will comply with the offering restrictions requirement
of Regulation S under the United States Securities Act of 1933, as amended and the Issuer reasonably believes that there is no
substantial US market interest in its debt securities. The Issuer and the Dealer or Additional Dealer, if any, agrees that it will
not offer or sell, nor solicit offers to buy, securities under circumstances that would require registration of the Treasury Notes
under the United States Securities Act of 1933, as amended. Terms used in this Clause 6.12 have the meanings given to them by that
Regulation S.
The Issuer and the Dealer or Additional
Dealer, if any, will issue Treasury Notes under the Programme only if the following conditions apply (or the Treasury Notes can
otherwise be issued without contravention of Section 19 of the UK FSMA):
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|
(a)
|
the relevant Dealer covenants in the terms set out in Schedule 2 paragraph 2; and
|
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(b)
|
the redemption value of each Treasury Note is not less than £100,000 (or an amount
of equivalent value denominated wholly or partly in a currency other than Sterling), and no part of any Treasury Note may be transferred
unless the redemption value of that part is not less than £100,000 (or such an equivalent amount).
|
The Issuer will ensure that proceeds
raised in connection with the issue of any Treasury Notes will not directly or indirectly be lent, contributed or otherwise made
available to any person or entity (whether or not related to the Issuer) in a manner or for a purpose prohibited by any Sanctions.
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|
7.
|
OBLIGATIONS
OF THE DEALER
|
Each Dealer represents covenants
and agrees that it has complied and will comply with the selling restrictions set out in Schedule 2. Subject to those restrictions,
each Dealer is authorised by the Issuer to circulate the Disclosure Documents to actual or potential purchasers of Treasury Notes.
No Dealer has been authorised to
give any information or to make any representation, warranty or undertaking other than as contained in the Information Memorandum
or in the documents specifically referred to therein.
The obligations of the Dealer or
Additional Dealer, if any, under this Agreement are several and not joint. No Dealer shall be responsible for the obligations of
any other Dealer under this Agreement.
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
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|
7.3
|
Secondary market sales
|
If any Treasury Noteholder wishes
to sell any Treasury Note before its Maturity Date, the Dealer or Additional Dealer, if any, shall – on a best effort basis
– seek a buyer, without any commitment to find a buyer for such Treasury Note or to acquire such Treasury Note itself.
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8.
|
TERMINATION
AND ADDITIONAL APPOINTMENT
|
|
|
(a)
|
If any event occurs which in the reasonable opinion of the Arranger would prevent it to
continue to act as Arranger for the establishment of the Programme, it may resign as such by giving not less than 20 calendar days
prior written notice thereof to the Issuer. Hence, the Issuer shall appoint a new arranger and shall inform each Dealer thereof.
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(b)
|
Nothing above shall prevent the Issuer from appointing a new arranger for the management
of the Programme, provided it shall give the Arranger not less than 20 calendar days’ prior written notice of its discharge.
The Issuer shall inform each Dealer thereof.
|
|
|
8.2
|
Termination of and resignation by a Dealer
|
|
|
(a)
|
The Issuer may terminate the appointment of any Dealer on not less than 30 days' written
notice to the relevant Dealer. Each Dealer may resign on not less than 30 days' notice to the Issuer. The Issuer shall promptly
inform the other Dealer or Dealers, if any, and the Domiciliary Agent of such termination or resignation.
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|
|
(b)
|
The rights and obligations of each party to this Agreement shall not terminate in respect
of any rights or obligations accrued or incurred before the date on which such termination takes effect and the provisions of Clauses
6.7 (
Indemnification
) and 6.8 (
Costs and expenses
) shall survive termination of this Agreement.
|
|
|
8.3
|
Appointment of an Additional Dealer
|
|
|
(a)
|
The Issuer may appoint one or more Additional Dealers upon the terms of this Agreement by
sending a dealer accession letter to the Additional Dealer substantially in the form of Schedule 3. The appointment will only become
effective if (i) the existing Dealers consent to such appointment (such consent not to be unreasonably withheld or delayed) and
(ii) the Additional Dealer confirms acceptance of its appointment to the Issuer by signing that dealer accession letter and delivering
it to the Issuer. The Issuer may limit that appointment to a particular issue of Treasury Notes or for a particular period of time
(which need not be a finite period of time).
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|
|
(b)
|
The Additional Dealer shall become a party to this Agreement on the later of:
|
|
|
(i)
|
the date of the signature of the dealer accession letter by the Additional Dealer in accordance
with paragraph (a) above; and
|
|
|
(ii)
|
the date specified in the dealer accession letter as the date of appointment, and the Additional
Dealer shall then be vested with all the authority, rights, powers, duties and obligations as if originally named as a Dealer under
this Agreement.
|
|
|
(c)
|
If the appointment of that Additional Dealer is limited to a particular issue of Treasury
Notes or period of time:
|
|
|
(i)
|
such authority, rights, powers, duties and obligations shall extend to the relevant Treasury Notes
or period only; and
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EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
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|
(ii)
|
following the relevant issue of Treasury Notes or the expiry of the time period, the relevant
Additional Dealer shall have no further authority, rights, powers, duties or obligations except such as may have accrued or been
incurred prior to, or in connection with, the issue of such Treasury Notes or during that time period.
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(d)
|
The Issuer shall promptly notify the Domiciliary Agent and each other Dealer of any appointment.
The Issuer agrees to supply to such Additional Dealer, upon appointment, a copy of the conditions precedent documents specified
in Schedule 1, if requested by the Additional Dealer.
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(e)
|
Notwithstanding any other provision of this Agreement, the Issuer agrees and commits to
not appoint any other dealer, and each Dealer agrees not to resign, during the 6 months following the date of this Agreement.
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|
9.
|
Transfers
to affiliates
|
If, at any time, the Dealer or Additional
Dealer, if any, transfers all or substantially all of its commercial paper business to any of its affiliates then, on the date
that transfer becomes effective, the relevant affiliate shall become the successor to that Dealer under this Agreement without
the execution or filing of any paper or any further act on the part of the parties to this Agreement. Upon that transfer becoming
effective, all references in this Agreement to the relevant Dealer shall be deemed to be references to the relevant affiliate.
The relevant Dealer shall, promptly following that effective date, give notice of the transfer to the Issuer with a copy to the
Domiciliary Agent.
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|
(a)
|
If floating rate Notes are to be issued, the Issuer will, at its discretion, appoint either the
relevant Dealer or the Domiciliary Agent or any other person to be the Calculation Agent in respect of such floating rate Notes.
The prior consent of that Dealer, Domiciliary Agent or other person is required for this appointment.
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(b)
|
If a Dealer has agreed to be the Calculation Agent, its appointment as such shall be on the terms
of the form of agreement set out in Schedule 8, and that Dealer will be deemed to have entered into an agreement in that form for
a particular calculation if it is named as Calculation Agent in the redemption calculation attached to or endorsed on the relevant
Note.
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|
|
(c)
|
If the Domiciliary Agent has agreed to be the Calculation Agent, its appointment shall be on the
terms set out in the Domiciliary Agency Agreement.
|
|
|
(d)
|
If the person who has agreed to act as Calculation Agent is not a Dealer or the Domiciliary Agent,
that person shall execute (if it has not already done so) an agreement substantially in the form of the agreement set out in Schedule
8.
|
|
|
11.
|
STATUS
OF THE DEALERS AND THE ARRANGER
|
The Arranger shall have only those
duties, obligations and responsibilities expressly specified in this Agreement. Each of the Dealers agrees that the Arranger has
only acted in an administrative capacity to facilitate the establishment and/or maintenance of the Programme and has no responsibility
to it for:
|
|
(e)
|
the adequacy, accuracy, completeness or reasonableness of any representation, warranty, undertaking,
agreement, statement or information in the Information Memorandum, this Agreement or any information provided by it in connection
with the Programme; or
|
|
|
(f)
|
the nature and suitability to it of all legal, tax and accounting matters and all documentation
in connection with the Programme or any Treasury Notes.
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EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
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|
12.1
|
Written Communication
|
Any communication to be made under
this Agreement shall be made in writing and, unless otherwise agreed, may be made by fax, letter, e-mail or by telephone (in the
latter case to be confirmed promptly by fax, letter or e-mail).
|
|
(a)
|
Any communication by letter shall be made to the intended recipient and marked for the attention
of the person, or any one of them, at its relevant address and shall be deemed to have been made upon delivery.
|
|
|
(b)
|
Any communication to be made by fax shall be made to the intended recipient and marked for
the attention of the person, or any one of them, at its relevant fax number and shall be deemed to have been received when that
fax communication has been received by the intended recipient in legible form.
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(c)
|
Any communication to be made by e-mail shall be made to the address from time to time designated
by the relevant party and shall be deemed to have been received when that email has been actually received in readable form at
the correct address.
|
|
|
(d)
|
Any communication to be made by telephone shall be made to the intended recipient at the
relevant telephone number from time to time designated by that party to the other parties for the purpose of this Agreement and
shall be deemed to have been received when made provided that prompt confirmation of that communication is given by fax or letter.
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|
|
(e)
|
A communication given under this Agreement after 4.00 p.m. on a Business Day will only be
deemed to be given on the next Business Day.
|
For purposes of Clause 12.2 (
Delivery
),
the relevant contact details of each party to this Agreement shall be as set out in Schedule 7 (
Addresses for notices
) to
this Agreement, or as otherwise notified by any party to each other party to this Agreement.
Any notice or other
document given in connection with a Programme Agreement or Treasury Note must be in English or French or Dutch.
If, at any time, any provision of
this Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the
law of any other jurisdiction will in any way be affected or impaired.
No failure to exercise, nor any delay
in exercising any right or remedy under the Programme Agreements shall operate as a waiver, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies
provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
This Agreement may be executed in
any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
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|
16.
|
APPLICABLE
LAW AND JURISDICTION
|
This Agreement shall be governed
by and construed in accordance with the laws of the Kingdom of Belgium and any dispute in relation therewith will be subject to
the exclusive jurisdiction of the courts of Brussels, Belgium. Each of the Issuer, and the Dealer or Additional Dealer, if any,
irrevocably submit to the jurisdiction of such courts and waive any objection to proceedings in such courts whether on the ground
of venue or on the ground that the proceedings have been brought in an inconvenient forum.
This Agreement is executed in 2 original copies,
of which each party hereto acknowledges having received one.
for the Issuer,
Euronav NV
|
/s/ Egied Verbeeck
|
|
/s/ Hugo De Stoop
|
|
Name Egied Verbeeck
|
|
Name Hugo De Stoop
|
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Title Member Executive Committee
|
|
Title CFO, Member of Exec
|
for the Arranger and Dealer
BNP Paribas Fortis SA/NV
|
/s/ Martin De Patoul
|
|
/s/ Martine Van Sway
|
|
Name Martin De
Patoul
|
|
Name Martine Van Sway
|
|
Title Company Lawyer
|
|
Title CP Dealer
|
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
SCHEDULE
1
CONDITION PRECEDENT DOCUMENTS
|
|
1.
|
A certified copy of the Issuer’s constitutional documents.
|
|
|
2.
|
A certified copy of all documents evidencing the internal authorisations required to be granted
by the Issuer:
|
|
|
(a)
|
approving the terms of, and the transactions contemplated by, the Treasury Notes and Programme
Agreements to which it is a party and resolving that it execute the Treasury Notes and Programme Agreements to which it is a party;
|
|
|
(b)
|
authorising a specified person or persons to negotiate the terms and execute the Programme Agreements
to which it is a party on its behalf; and
|
|
|
(c)
|
authorising a specified person, or persons on its behalf, to sign and/or despatch all documents
and notices to be signed and/or despatched by it under or in connection with Treasury Notes and Programme Agreements to which it
is a party.
|
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3.
|
A certified copy of any other power of attorney, authorisation or delegation pursuant to which
specified persons may take any action on behalf of the Issuer in relation to the Programme and/or the issue of Treasury Notes thereunder.
|
|
|
4.
|
A certified copy of any governmental or other consents required for the issue of Treasury Notes
and for the Issuer to enter into, deliver and perform its obligations under the Treasury Notes and the Programme Agreements (as
applicable).
|
|
|
5.
|
A copy of any financial information that is available and that is required to be delivered pursuant
to Clause 6.2.
|
|
|
6.
|
A copy of a duly executed version of:
|
|
|
(a)
|
the Information Memorandum;
|
|
|
(c)
|
the Domiciliary Agency Agreement; and
|
|
|
(d)
|
the Clearing Services Agreement.
|
|
|
7.
|
A list of the names and titles and specimen signatures of the persons authorised:
|
|
|
(a)
|
to sign on behalf of the Issuer the Programme Agreements to which it is a party;
|
|
|
(b)
|
to sign on behalf of the Issuer all notices and other documents to be delivered in connection with
the Programme Agreements and the Treasury Notes; and
|
|
|
(c)
|
to take any other action on behalf of the Issuer in relation to the commercial paper programme
established by the Programme Agreements and/or the issue of Treasury Notes thereunder.
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EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
SCHEDULE
2
SELLING
RESTRICTIONS
Each Dealer has represented, warranted and
agreed, and each further Dealer appointed under the Programme will be required to represent, warrant and agree, that it will observe
all applicable laws and regulations in any jurisdiction in which it may offer, sell or deliver Treasury Notes and it will not directly
or indirectly offer, sell, resell, re-offer or deliver Treasury Notes or distribute the Information Memorandum, advertisement or
other offering material in any country or jurisdiction except under circumstances that will result, to the best of its knowledge
and belief, in compliance with all applicable laws and regulations. This Information Memorandum does not constitute, and may not
be used in connection with, an offer or solicitation by anyone in any jurisdiction in which such offer or solicitation is not authorized
or in which the person making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful to make
such offer or solicitation.
Any Treasury Note may only be offered, sold
or transferred to an investor (i) that is not a private individual (
personne physique / natuurlijk persoon
) and (ii) that
directly or indirectly holds the Treasury Note on a securities account opened in the in the clearing system of the NBB (or with
a custodian) on which no Belgian withholding tax is due or will be levied (an “
X-account
”).
This Information Memorandum has not been submitted
for approval to the Belgian Financial Services and Markets Authority and, accordingly, the Treasury Notes may not be distributed
in Belgium by way of public offering, as defined for the purposes of the law of 16 June 2006 on public offerings of investment
instruments and the admission of investment instruments to trading on regulated markets, as amended or replaced from time to time.
In addition, (i) the Treasury Notes are to
be kept at all times on a securities account with a participant in the Clearing System, and (ii) no issuance or transfer of Treasury
Notes may result in any investor holding Treasury Notes less than the minimum amount stipulated by or established in accordance
with Article 4 of the Treasury Notes Law and/or stipulated by or established in accordance with Article 6 of the Treasury Notes
Decree.
|
|
3.
|
Public Offer Selling Restriction under the Prospectus Directive
(European Economic Area)
|
In
relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “
Relevant
Member State
”), each Dealer has represented and agreed, and each further Dealer appointed
under the Programme will be required to represent and agree, that with effect from and including the date on which the Prospectus
Directive is implemented in that Member State (the “
Relevant Implementation Date
”)
it has not made and will not make an offer of Treasury Notes to the public in that Relevant Member State.
The
expression Prospectus Directive means Directive 2003/71/EC (and each and all amendments thereto, including the 2010 PD Amending
Directive, to the extent implemented to the Relevant Member State), and includes any relevant implementing measure in each Relevant
Member State and the expression 2010 PD Amending Directive means Directive 2010/73/EU.
The Dealer has represented and agreed, and
each further Dealer appointed under the Programme will be required to represent and agree, that:
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
|
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(a)
|
in relation to any Treasury Notes, (i) it is a person whose ordinary activities involve it in acquiring,
holding, managing or disposing of investments (as principal or agent) for the purposes of its business and (ii) it has not offered
or sold and will not offer or sell any Treasury Notes other than to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or as agent) for the purposes of their businesses or who it is reasonable
to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses where
the issue of the Treasury Notes would otherwise constitute a contravention of Section 19 of the UK FSMA by the Issuer;
|
|
|
(b)
|
it has only communicated or caused to be communicated and will only communicate or cause to be
communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the UK FSMA) received
by it in connection with the issue or sale of any Treasury Notes in circumstances in which Section 21(1) of the UK FSMA does not
apply to the Issuer; and
|
|
|
(c)
|
it has complied and will comply with all applicable provisions of the UK FSMA with respect to anything
done by it in relation to any Treasury Notes in, from or otherwise involving the United Kingdom.
|
|
|
5.
|
United States of America
|
The Treasury Notes have not been and will not
be registered under the U.S. Securities Act of 1933 (the “
Securities Act
”) and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons except in accordance with an exemption from the registration
requirements of the Securities Act. Each Dealer represented that it has offered and sold, and agrees that they will offer and sell,
Treasury Notes only outside the United States to non-US persons in accordance with Rule 903 of Regulation S under the Securities
Act (“
Regulation S
”). Accordingly, none of the Dealer, its affiliates or any persons acting on its or their
behalf have engaged or will engage in any directed selling efforts in the United States with respect to the Treasury Notes, and
it and they have complied and will comply with the requirements of Regulation S, including implementing the applicable offering
restrictions. Each Dealer and its affiliates also agree that, at or prior to confirmation of sale of Treasury Notes, they will
have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Treasury
Notes from them during the distribution compliance period a confirmation or notice to substantially the following effect:
“The
securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “
Securities Act
”)
and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the completion of the distribution of an identifiable tranche of
which such Treasury Notes are a part in accordance with Regulation S under the Securities Act. Terms used above have the meanings
given to them by Regulation S under the Securities Act.”
Terms used in this paragraph have the meanings
given to them by Regulation S.
The
Notes have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Act No. 25 of 1948, as
amended; (the “
FIEA
”). Accordingly, each
Dealer has represented and agreed (and each further Dealer appointed under the Programme will be required to represent and agree)
that it has not, directly or indirectly, offered or sold and will not, directly or indirectly, offer or sell any Notes in Japan
or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any
corporation or other entity organised under the laws of Japan) or to others for re-offering or resale, directly or indirectly,
in Japan or to, or for the benefit of, a resident of Japan, except pursuant to an exemption from the registration requirements
of, and otherwise in compliance with, the FIEA and other applicable laws, regulations and ministerial guidelines of Japan.
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
SCHEDULE
3
DEALER
ACCESSION LETTER
[Letterhead of Issuer]
[Date]
|
|
cc.:
|
[list all existing Dealers]
|
|
|
cc.:
|
BNP Paribas Fortis SA/NV as Domiciliary Agent
|
Dear Sirs
EUR [___________________] Belgian Multi-currency
Short-Term Treasury Notes Programme
We
refer to a dealer agreement dated
6 June 2017
(the “
Dealer Agreement
”) between ourselves Issuer, BNP
Paribas Fortis SA/NV
[
l
]
,
and
[
l
]
as
Dealer(s) and BNP Paribas Fortis SA/NV as Arranger, relating to an EUR [___________________] Belgian Multi-currency Short-Term
Treasury Notes Programme. Terms used in the Dealer Agreement shall have the same meaning in this letter.
In accordance with Clause 8.3 (
Appointment
of Additional Dealer
) of the Dealer Agreement, we hereby appoint you as an Additional Dealer for the Programme upon the terms
of the Dealer Agreement with [immediate effect/effect from [date]][for [ ] issue of Treasury
Notes/for the period [ ] to [ ]]. [Copies of
each of the condition precedent documents set out in Schedule 1 to the Dealer Agreement have been sent to you, as requested].
Please confirm acceptance of your appointment
upon such terms by signing and returning to us the enclosed copy of this letter, whereupon you will, in accordance with Clause
8.3 (
Appointment of Additional Dealer
) of the Dealer Agreement, become a party to the Dealer Agreement vested with all the
authority, rights, powers, duties and obligations set out in that Clause 8.3.
Yours faithfully
|
|
|
|
for and on behalf of
|
|
|
[_______________________]
|
|
We hereby confirm acceptance of our appointment
as a Dealer upon the terms of the Dealer Agreement referred to above. For the purposes of Clause [12] (
Notices
) of the Dealer
Agreement our contact details are as follows:
[NAME OF DEALER]
|
Address: [ ]
|
|
|
Telephone:
|
[ ]
|
|
|
Fax:
|
[ ]
|
|
Contact: [ ]
|
Dated:
|
|
|
|
Signed:
|
|
|
|
|
for [Name of new Dealer]
|
|
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
SCHEDULE
4
NOTIFICATION
LETTER FOR AN INCREASE IN THE PROGRAMME MAXIMUM AMOUNT
[Letterhead of Issuer]
|
|
To:
|
The Dealer referred to below
|
|
|
cc.
|
BNP Paribas Fortis SA/NV (as Domiciliary Agent)
|
|
|
cc.
|
BNP Paribas Fortis SA/NV (as Arranger)
|
[Date]
Dear Sirs
EUR [__________________] Belgian Multi-currency
Short-Term Treasury Notes Programme
We
refer to a dealer agreement dated
6 June 2017
(the “
Dealer Agreement
”) between ourselves as Issuer, BNP
Paribas Fortis SA/NV
[
l
]
,
and
[
l
]
as
Dealer(s) and the Arranger relating to an EUR [____________] Belgian Multi-currency Short-Term Treasury Notes Programme. Terms
used in the Dealer Agreement shall have the same meaning in this letter.
In accordance with Clause 3.6 (
Increase
in Programme Maximum Amount
) of the Dealer Agreement, we hereby notify each of the addressees listed above that the Maximum
Amount is to be increased from EUR [_______________] to EUR [_________________] with effect from [date], subject to delivery to
the Dealers, the Arranger and the Domiciliary Agent of the following documents:
|
|
(a)
|
a certificate from a duly authorised officer of the Issuer confirming that no changes have
been made to the constitutional documents of the Issuer since the date of the Dealer Agreement or, if there has been a change,
a certified copy of the constitutional documents currently in force;
|
|
|
(b)
|
certified copies of all documents evidencing the internal authorisations and approvals required
to be granted by the Issuer for such an increase in the Programme Maximum Amount;
|
|
|
(c)
|
certified copies of the written consent of the Domiciliary Agent [and] [specify any applicable
governmental or other consents required by the Issuer] in relation to the increase];
|
|
|
(d)
|
a list of names, titles and specimen signatures of the persons authorised to sign on behalf
of the Issuer all notices and other documents to be delivered in connection with such an increase in the Programme Maximum Amount;
|
|
|
(e)
|
an updated or supplemental Information Memorandum reflecting the increase in the Programme Maximum
Amount of the Programme; and
|
Yours faithfully,
|
Name:
|
|
|
Title:
|
|
|
for and on behalf of
|
|
[
l
]
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
SCHEDULE
5
FORM
OF TRADE CONFIRMATION
|
To:
|
[_________________________]
|
|
Attention:
|
[_________________________]
|
|
Fax:
|
[_________________________]
|
|
To:
|
BNP Paribas Fortis SA/NV as Domiciliary Agent
, Montagne du Parc/Warandeberg 3, 1000 Brussels, Belgium
|
|
Attention:
|
CP Desk
|
|
Fax:
|
+32 (0)2 565 62 56
|
|
E-mail:
|
belgiumdomestic@bnpparibasfortis.com
|
Dealer Agreement dated 6 June 2017
We hereby confirm your instruction to prepare,
complete, authenticate and issue Treasury Notes (in accordance with the terms of the above Dealer Agreement and the Domiciliary
Agency Agreement (as defined therein)) and instruct you to:
A copy
of this Trade Confirmation countersigned by the Issuer shall be sent by fax at the latest by 6 PM (CET) on the Business Day before
the Issue Date (or, in respect of issues in currencies other than euro, by 6 PM (CET) on the second Business Day before the Issue
Date) to the Domiciliary Agent at:
|
BNP Paribas Fortis SA/NV, Montagne du Parc /Warandeberg 3, 1000 Brussels, Belgium
|
|
Attention:
|
back office primary market
|
|
Fax:
|
+32 (0)2 565 62 56
|
|
E-mail:
|
belgiumdomestic@bnpparibasfortis.com
|
|
Name of relevant Dealer:
|
[__________________]
|
|
Account of relevant Dealer:
|
[
only if different than number referred to in Schedule 6 to the Dealer Agreement
] [Euroclear/Clearstream, Luxembourg]
|
Credit the account of [
name of Dealer
]
with [NBB/Euroclear/Clearstream, Luxembourg] with the following Treasury Notes:
|
(a)
|
Currency:
|
[
|
]
|
|
(b)
|
Nominal Amount:
|
[
|
]
|
|
(c)
|
Denomination:
|
[
|
]
|
|
(d)
|
Trade Date:
|
[
|
]
|
|
(e)
|
Issue Date:
|
[
|
]
|
|
(f)
|
Maturity Date:
|
[
|
]
|
|
(g)
|
Yield/Interest Rate:
|
[
|
]
|
|
(h)
|
Interest Amount:
|
[
|
]
|
|
(i)
|
Number of days:
|
[
|
]
|
|
(j)
|
Basis (day count fraction):
|
[
|
]
|
|
(k)
|
Discounted Amount:
|
[
|
]
|
|
(l)
|
Calculation Agent:
|
[
|
]
|
|
(m)
|
Other:
|
[
|
]
|
against payment of [
currency
]
[
amount
].
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
[
unless originally sent by the Dealer in
electronic form or by an automated system, in which case a signature from the relevant Dealer will not be required
] SIGNED
on behalf of
[NAME DEALER]
|
|
|
|
|
Name
|
|
Name
|
|
Title
|
|
Title
|
|
|
|
|
|
Euronav NV
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Name
|
|
Title
|
|
Title
|
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
schedule
6
Initial
settlement instructions
|
Dealer
|
Account
|
|
BNP Paribas Fortis SA/NV
|
NBB GEBABEBB36A
|
|
|
|
|
Domiciliary Agent
|
|
|
BNP Paribas Fortis SA/NV
|
GEBABEBB36A for a direct clearing in the X/N
system operated by the NBB; or
-Euroclear 94783 for a clearing through Euroclear/Clearstream
|
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
Schedule
7
AdDresses
for notices
|
If to the Issuer:
|
|
|
Euronav NV
De Gerlachekaai 20
2000 Antwerpen
Attn: Hugo De Stoop
E-Mail:
financial@euronav.com
Phone : + 32 3 247 44 05
Fax : + 32 3 247 44 09
|
|
|
|
|
|
If to the Arranger
|
|
|
BNP Paribas Fortis SA/NV
Montagne du Parc / Warandeberg 3
1000 Brussels, Belgium
Attn: Legal CIB Capital Markets
Securities
Tel: +32 (0)2 228 92 09
Fax: +32 (0)2 565 98 04
e-mail: docsecurities.mbc@bnpparibasfortis.com
|
|
|
If to the Domiciliary
Agent
BNP Paribas Fortis SA/NV
Montagne du Parc / Warandeberg 3
1000 Brussels, Belgium
Attn: CP Desk
Tel: +32 (0)2 565 75 30
Fax: +32 (0)2 565 98 29
Attn: Back Office
Fax: +32 (0)2 565 62 56
E-mail: belgiumdomestic@bnpparibasfortis.com
|
|
|
If to the Dealer:
|
|
|
BNP Paribas Fortis SA/NV
Attn: CP Desk
Tel: +32 (0)2 565 75 30
Fax: +32 (0)2 565 98 29
E-mail: belgiumdomestic@bnpparibasfortis.com
|
|
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
Schedule
8
form
of calculation agency agreement
THIS
AGREEMENT
is made on [
l
]
BETWEEN
:
|
|
(1)
|
Euronav NV
as issuer (the “
Issuer
”);
|
|
|
(2)
|
[
CALCULATION AGENT
], as the Calculation Agent appointed pursuant to the terms hereof (the “
Calculation
Agent
”, which expression shall include any successor thereto).
|
WHEREAS
:
|
|
(A)
|
Under a dealer agreement (as amended, supplemented and/or restated from time to time, the “
Dealer Agreement
”)
dated 6 June 2017 and made between, among others, the Issuer and the Dealer(s) referred to therein, and a domiciliary agency agreement
(as amended, supplemented and/or restated from time to time, the “
Domiciliary Agency Agreement
”) dated 6 June
2017 and made between, among others, the Issuer and the agent[s] referred to therein, the Issuer established a euro-commercial
paper programme (the “
Programme
”).
|
|
|
(B)
|
The Dealer Agreement contemplates,
inter alia
, the issue under the Programme of floating rate notes and provides for
the appointment of calculation agents in relation thereto. Each such calculation agent's appointment shall be on substantially
the terms and subject to the conditions of this Agreement.
|
IT IS AGREED
as follows:
|
|
(a)
|
Terms not expressly defined herein shall have the meanings given to them in the Dealer Agreement or the Domiciliary
Agency Agreement.
|
|
|
(b)
|
Any reference in this Agreement to a statute, any provision thereof or to any statutory instrument, order or regulation
made thereunder shall be construed as a reference to such statute, provision, statutory instrument, order or regulation as the
same may have been, or may from time to time be, amended or re-enacted.
|
|
|
(c)
|
“
Relevant Notes
” means such floating rate notes in respect of which the Calculation Agent is appointed.
|
|
|
2.
|
APPOINTMENT OF CALCULATION AGENT
|
|
|
|
The Issuer appoints the Calculation Agent as its agent for the purpose of calculating the amount of interest in respect
of the Relevant Notes upon the terms and subject to the conditions of this Agreement. The Calculation Agent accepts such
appointment.
|
|
|
3.
|
DETERMINATION AND NOTIFICATION
|
|
|
(a)
|
The Calculation Agent shall determine the amount of interest payable on, each Relevant Note in
accordance with the redemption calculation applicable thereto.
|
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
|
|
(d)
|
The Calculation Agent shall as soon as it has made its determination as provided for in paragraph (a) above (and, in
any event, no later than the close of business on the date on which the determination is made) notify the Issuer and the Domiciliary
Agent (if other than the Calculation Agent) of the amount of interest so payable.
|
The Issuer will pay any stamp, registration
and other similar taxes and duties (including any interest and penalties thereon or in connection therewith) payable in connection
with the execution, delivery and performance of this Agreement.
|
|
5.
|
INDEMNITY AND LIABILITY
|
|
|
(e)
|
The Issuer shall indemnify and hold harmless on demand the Calculation Agent, on an after tax basis, against any claim,
demand, action, liability, damages, cost, loss or expense (including, without limitation, legal fees and any applicable value added
tax) which it may incur arising out of, in connection with or based upon the exercise of its powers and duties as Calculation Agent
under this Agreement, except such as may result from its own negligence, default or bad faith or that of its officers, employees
or agents.
|
|
|
(f)
|
The Calculation Agent shall indemnify and hold harmless on demand the Issuer on an after tax basis, against any claim,
demand, action, liability, damages, cost, loss or expense (including, without limitation, legal fees and any applicable value added
tax) which it may incur or which may be made against the Issuer as a result of or in connection with the appointment or the exercise
of the powers and duties of the Calculation Agent under this Agreement resulting from the negligence, default or bad faith of the
Calculation Agent or that of its officers, employees or agents.
|
|
|
(g)
|
The Calculation Agent may, after prior written approval of the Issuer, consult as to legal matters with lawyers selected
by it, who may be employees of, or lawyers to, the Issuer. If such consultation is made, the Calculation Agent shall be protected
and shall incur no liability for action taken or not taken by it as Calculation Agent or suffered to be taken with respect to such
matters in good faith (after consultation with the Issuer), without negligence and in accordance with the opinion of such lawyers,
as addressed to both parties.
|
|
|
6.
|
CONDITIONS OF APPOINTMENT
|
The Calculation Agent and the Issuer
agree that its appointment will be subject to the following conditions:
|
|
(a)
|
in acting under this Agreement, the Calculation Agent shall act as an independent expert and shall not assume any obligations
towards or relationship of agency or trust for the Issuer or the owner or holder of any of the Relevant Notes or any interest therein;
|
|
|
(b)
|
unless otherwise specifically provided in this Agreement, any order, certificate, notice, request, direction or other
communication from the Issuer made or given under any provision of this Agreement shall be sufficient if signed or purported to
be signed by a duly authorised employee of the Issuer;
|
|
|
(c)
|
the Calculation Agent shall be obliged to perform only those duties which are set out in this Agreement;
|
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
|
|
(d)
|
the Calculation Agent and its officers and employees, in its individual or any other capacity, may become the owner
of, or acquire any interest in, any Relevant Notes with the same rights that the Calculation Agent would have if it were not the
Calculation Agent hereunder; and
|
|
|
(e)
|
all calculations and determinations made pursuant to this Agreement by the Calculation Agent shall (save in the case
of manifest error) be binding on the Issuer, the Calculation Agent and (if other than the Calculation Agent) the holder(s) of the
Relevant Notes and no liability to such holder(s) shall attach to the Calculation Agent in connection with the exercise by the
Calculation Agent of its powers, duties or discretion under or in respect of the Relevant Notes in accordance with the provisions
of this Agreement.
|
|
|
7.
|
ALTERNATIVE APPOINTMENT
|
If, for any reason,
the Calculation Agent ceases to act as such or fails to comply with its obligations under Clause 3, the Issuer shall appoint
the Agent as Calculation Agent in respect of the Relevant Notes.
|
|
8.
|
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
|
A person who is not a party to this
Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does
not affect any right or remedy of any person which exists or is available apart from that Act.
This Agreement and every agreement for
the issue and purchase of Notes and any non-contractual obligations arising out of or in connection with any of them shall be governed
by, and construed in accordance with, English law.
|
|
(a)
|
The English courts have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination of this Agreement and any dispute relating to any non-contractual
obligations arising out of or in connection with this Agreement) and each party submits to the exclusive jurisdiction of the English
courts.
|
|
|
(b)
|
The parties to this Agreement agree that the English courts are the most appropriate and convenient courts to settle
any such dispute and accordingly no such party will argue to the contrary.
|
|
|
(c)
|
To the extent allowed by law, the Calculation Agent may take:
|
|
|
(i)
|
proceedings in any other court with jurisdiction; and
|
|
|
(ii)
|
concurrent proceedings in any number of jurisdictions.
|
EURONAV NV
– Dealer Agreement – 6 June 2017 – Execution Version
|
|
(a)
|
The Issuer irrevocably appoints [ ] as its agent under this Agreement for service of process
in any proceedings before the English courts in connection with this Agreement.
|
|
|
(b)
|
If any person appointed as process agent is unable for any reason to act as agent for service of process, the Issuer
must immediately appoint another agent on terms acceptable to the Calculation Agent. Failing this, the Calculation Agent may appoint
another agent for this purpose.
|
|
|
(c)
|
The Issuer agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.
|
|
|
(d)
|
This Clause does not affect any other method of service allowed by law.]
|
[NB –
include if the Issuer is not incorporated in England and Wales]
If, at any time, any provision of this
Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the
law of any other jurisdiction will in any way be affected or impaired.
This Agreement may be signed in any
number of counterparts. This has the same effect as if the signatures on the counterpart were on a single copy of this Agreement.
This Agreement has been entered into on the date
stated at the beginning of this Agreement.
Euronav NV
[NAME OF CALCULATION AGENT]
Exhibit 10.20
6 June 2017
DOMICILIARY AGENCY AGREEMENT
between
as Issuer
and
BNP Paribas Fortis SA/NV
as Domiciliary
Agent
Euronav NV
–
Domiciliary Agency Agreement Execution Version 06 June 2017
|
1.
|
INTERPRETATION
|
2
|
|
2.
|
APPOINTMENT AND DUTIES
|
3
|
|
3.
|
THE TREASURY NOTES
|
4
|
|
4.
|
ISSUE OF TREASURY NOTES
|
4
|
|
5.
|
PAYMENT & SETTLEMENT
|
6
|
|
6.
|
MISCELLANEOUS DUTIES OF THE DOMICILIARY AGENT
|
8
|
|
7.
|
THE CALCULATION AGENT
|
9
|
|
8.
|
REPRESENTATIONS AND UNDERTAKINGS OF THE ISSUER
|
9
|
|
9.
|
INDEMNITY
|
10
|
|
10.
|
RECOURSE TO THE ISSUER
|
11
|
|
11.
|
TERMINATION – RESIGNATION – SUCCESSION
|
12
|
|
12.
|
FEES
|
13
|
|
13.
|
MISCELLANEOUS
|
13
|
|
14.
|
NOTICES
|
14
|
|
15.
|
GOVERNING LAW & JURISDICTION
|
15
|
Euronav NV
–
Domiciliary Agency Agreement Execution Version 06 June 2017
BETWEEN
Euronav NV
, a limited liability company
(“
naamloze vennootschap
” / “
société anonyme
”) incorporated under the laws of
Belgium and having its registered office at
De Gerlachekaai 20, 2000 Antwerp
, enterprise number 0860.402.767 (RPR/RPM Antwerpen)
(hereinafter referred to as the “
Issuer
”);
AND
BNP Paribas Fortis SA/NV
, a credit institution
validly existing under the laws of the Kingdom of Belgium, having its registered office at Montagne du Parc 3, B-1000 Brussels,
Belgium, enterprise number 0403,199,702 (RPM/RPR Brussels) (the “
Domiciliary Agent
”).
WHEREAS,
|
|
(i)
|
The Issuer has, further to a decision of its board of directors dated
6 June 2017
, established
a Multi-currency Short Term Treasury Notes Programme for the issue of Treasury Notes denominated in Euro or in USD or in any other
foreign currency, subject to the Terms and Conditions of the Treasury Notes (the “
Conditions
”) set out in the
Information Memorandum (as defined below) and in accordance with the law of 22 July 1991 relating to
billets de trésorerie
et certificats de dépôt / thesauriebewijzen en depositocertificaten
, as amended, and the royal decree of 14 October
1991 relating to
billets de trésorerie et certificats de dépôt / thesauriebewijzen en depositocertificaten
,
as amended.
|
|
|
(ii)
|
The Issuer has appointed BNP Paribas Fortis SA/NV, which has accepted, to act as Dealer pursuant
to the dealer Agreement dated
6 June 2017,
as amended or/and supplemented from time to time (the ”
Dealer Agreement’
).
|
|
|
(iii)
|
The Issuer, the Domiciliary Agent and the National Bank of Belgium (“
NBB
”) have
executed the Clearing Agreement (as defined below) in relation to the clearing of the Treasury Notes to be issued by the Issuer.
|
THE PARTIES HERETO AGREE AS FOLLOWS:
|
|
(a)
|
In this Agreement, unless the contrary intention appears, a reference to:
|
|
|
(i)
|
a provision of a law is a reference to that provision as amended, extended, applied or re-enacted
and includes any subordinate legislation;
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|
|
(ii)
|
a Clause or a Schedule is a reference to a clause of or a schedule to this Agreement;
|
|
|
(iii)
|
a person includes any individual, company, corporation, unincorporated association or body (including
a partnership, trust, joint venture or consortium), government, state, agency, organisation or any other entity whether or not
having separate legal personality, and references to any person shall include its successors in title, permitted assigns and permitted
transferees;
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|
|
(iv)
|
assets includes present and future properties, revenues and rights of every description;
|
|
|
(v)
|
an authorisation includes any authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration;
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(vi)
|
a regulation includes any regulation, rule, official directive, request or guideline (whether or
not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory
or other authority or organisation;
|
|
|
(vii)
|
Programme Agreements means, within the framework of the Programme, the Dealer Agreement, any agreement
for a Note Transaction, the Domiciliary Agency Agreement, and the Clearing Agreement; and
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|
(viii)
|
any Programme Agreement or other document is a reference to that Programme Agreement or other document
as amended, novated, restated, superseded or supplemented.
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|
|
(ix)
|
“
Note Transaction
” means the issue by the Issuer and the subscription by a Dealer
of Treasury Note(s).
|
|
|
(x)
|
“
Information Memorandum
” means the information memorandum dated
6 June 2017
,containing
information about the Issuer and the Treasury Notes (including information incorporated therein by reference), as prepared by or
on behalf of the Issuer pursuant to Article 5 of the Treasury Notes Law for use by the Dealers in connection with the transactions
contemplated by this Agreement, as the same may be amended, supplemented, updated and/or substituted from time to time.
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|
|
(xi)
|
“
Clearing Agreement
” means the
Service contract concerning the issue of dematerialised
treasury certificates and certificates of deposit
dated on or about the date hereof and made between the NBB, the Issuer and
the Domiciliary Agent, as amended, supplemented, or/and updated from time to time.
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|
(b)
|
Each capitalised term used in this Agreement shall, unless the context otherwise requires, have
the meaning given to such term in the Information Memorandum.
|
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|
(c)
|
In case of any discrepancy between this Agreement and the Clearing Agreement, the Clearing Agreement
shall prevail.
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|
(d)
|
The index to and the headings in this Agreement are for convenience only and may not be considered
in construing this Agreement.
|
|
|
2.
|
APPOINTMENT AND DUTIES
|
Upon and subject to the terms of
this Agreement, the Issuer hereby appoints the Domiciliary Agent:
|
|
(a)
|
as its domiciliary agent to represent and act as agent for the Issuer in the Clearing System, and
to perform all obligations imposed on it by this Agreement, the Conditions and the Clearing Agreement (or, if applicable, any clearing
agreement to be concluded with such successor operator of the Clearing System);
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(b)
|
as its paying agent for the purpose of paying sums due on the Treasury Notes in accordance with
the provisions of the Conditions and this Agreement and performing all other duties and obligations imposed on it by the Conditions
and this Agreement; and
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(c)
|
to act as calculation agent in accordance with this Agreement and the Conditions.
|
The Domiciliary Agent accepts
such appointments.
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2.2
|
Role of the Domiciliary Agent
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(a)
|
The Domiciliary Agent shall only be obliged to perform such duties as set out in this Agreement,
the Clearing Agreement and the Conditions and any duties necessarily incidental thereto. No implied duties or obligations shall
be read into any such documents. The Domiciliary Agent shall not be obliged to perform additional duties unless it shall have previously
agreed to perform such duties. The Domiciliary Agent shall, in general, not be under any obligation to take any action in relation
to its appointment which it expects will result in any expense or liability for the Domiciliary Agent, the payment of which the
Domiciliary Agent, after having consulted with the Issuer, reasonably believes is unlikely to be obtained by it from the Issuer
in due time upon request.
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|
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(b)
|
The Domiciliary Agent shall perform the duties imposed on the Issuer in the Clearing Agreement,
in which respect it shall only act as agent, and in accordance with the instructions, of the Issuer.
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|
|
(c)
|
The Domiciliary Agent shall act in accordance with good banking practices and shall be entitled
to deal with each amount received by it hereunder in the same manner as other amounts paid to it as banker by its customers provided
that (i) it shall not exercise any lien, right of set-off or similar claim in respect thereof and (ii) it shall not be liable to
any person for interest thereon.
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(d)
|
The Domiciliary Agent shall not be:
|
|
|
(i)
|
liable for any action taken, suffered or omitted to be taken, provided that the Domiciliary Agent
has acted with reasonable care and diligence and in accordance with the terms of this Agreement, the Conditions, the Clearing Agreement
and good banking practices;
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(ii)
|
liable for or in respect of any action taken, omitted to be taken or anything suffered by it relying
upon any transfer, notice, consent, certificate, affidavit, statement or other paper or document, reasonably and according to good
banking practices believed by it to be genuine and to have been signed by authorised persons;
|
|
|
(iii)
|
responsible to ensure the Programme Maximum Amount is respected, and shall not incur any liability
whatsoever in this respect; and
|
|
|
(iv)
|
responsible for the use of the proceeds of the Treasury Notes by the Issuer.
|
The Treasury Notes will be issued
in dematerialised form under the treasury note regime set out by the Treasury Notes Law and the Treasury Notes Decree. Treasury
Notes may be issued in Euro or USD or, subject to (i) the terms of the Dealer Agreement, (ii) the written consent of the Domiciliary
Agent on such currency and (iii) compliance with any applicable legal and regulatory requirements (including the rules of the Clearing
System), in any other any other Foreign Currency, and in each case at least in the minimum denomination set out in the Conditions.
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4.
|
ISSUE OF TREASURY NOTES
|
The obligations of the Domiciliary
Agent in respect of each issue of Treasury Notes under this Agreement are subject to the satisfaction of the following conditions
precedent:
|
|
(a)
|
the Domiciliary Agent shall have received all information, documents or instructions that are necessary
or relevant in relation to the proposed issue in due time before such issue;
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(b)
|
each Programme Agreement is in full force and effect;
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(c)
|
the Issuer shall have complied with its obligations and undertakings under this Agreement and the
other Programme Agreements, other than obligations or undertakings that are not material in the context of this Agreement;
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(d)
|
the Domiciliary Agent shall have received a signatory list of persons entitled to give instructions
or take decisions on behalf of the Issuer together with a list of their specimen signatures; and
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|
(e)
|
the proposed issue of Treasury Notes complies with the rules and regulations imposed by the NBB
and applicable at the time of the proposed issue.
|
|
|
(a)
|
When an agreement has been reached between a Dealer, the Issuer and an investor, the Issuer shall,
or shall procure such Dealer will:
|
|
|
(i)
|
as soon as possible (but in any event not later than 2.00 p.m.( CET) on the Business Day before
the proposed Issue Date for Treasury Notes denominated in euro and 2.00 p.m. (CET) on the second Business Day before the proposed
Issue Date for Treasury Notes denominated in any Foreign Currency (or such later time as may be agreed between the Issuer and the
Domiciliary Agent)), contact the Domiciliary Agent by phone in order to confirm to the Domiciliary Agent the following information
in respect of the Treasury Notes to be issued: name of the Issuer, name of the Dealer, principal or nominal amount, issue amount,
interest rate or discount, issue date, maturity date and settlement instructions (as set out in the form of Trade Confirmation
comprised as Schedule 5 to the Dealer Agreement); and
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(ii)
|
as soon as possible (but in any event not later than 6.00 p.m.(CET) on the Business Day before
the proposed Issue Date for Treasury Notes denominated in euro and 6.00 p.m (CET) on the second Business Day before the proposed
Issue Date for Treasury Notes denominated in any Foreign Currency (or such later time as may be agreed between the Issuer and the
Domiciliary Agent)) send a completed trade confirmation by e-mail (such confirmation being executed by the Issuer if the e-mail
is sent by the relevant Dealer), substantially in the form of the Trade Confirmation attached as Schedule 5 to the Dealer Agreement).
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(b)
|
Upon receipt by the Domiciliary Agent of the necessary information in accordance with paragraph
(a) above, the Domiciliary Agent shall:
|
|
|
(i)
|
request the allocation of an ISIN-code to the Treasury Notes proposed to be issued;
|
|
|
(ii)
|
notify the NBB of the proposed issue of Treasury Notes and the financial terms and conditions of
such Treasury Notes;
|
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|
(iii)
|
provide the NBB with the Descriptive Card at the latest at 11.00 a.m. (CET) on the Issue Date of
such Treasury Notes, in case the Treasury Notes are denominated in euro, and at 11.00 a.m (CET). on the Business Day before the
Issue Date of such Treasury Notes, in case the Treasury Notes are denominated in any Foreign Currency (or provide such other information
or at such other time as from time to time agreed with or imposed by the NBB);
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(iv)
|
take any other step that may be necessary in order to ensure the creation, issuance and settlement
of the Treasury Notes proposed to be issued; and
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(v)
|
instruct the Clearing System to transfer the Treasury Notes on the Issue Date free of payment to
the securities account(s) of the Domiciliary Agent that it has designated for this purpose.
|
|
|
(c)
|
The Domiciliary Agent shall instruct the Clearing System, Euroclear and/or Clearstream, Luxembourg,
as applicable, to transfer against payment the Treasury Notes on the Issue Date to the securities accounts of the relevant Dealers,
the relevant purchasers of Treasury Notes or the participants in the Clearing System through which they will hold the Treasury
Notes, as applicable and in accordance with the regulations of the Clearing System.
|
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(d)
|
Upon receipt of the purchase price by
the Domiciliary Agent on its account with the NBB or otherwise (on a delivery versus payment basis with the relevant Dealer), the
Domiciliary Agent shall credit the Issuer's account n° BE20 0014 0339 1956
at BNP Paribas Fortis SA/NV, Brussels (BIC: GEBEBABB) (the “
Issuer’s
Account
”) with the purchase price for same day value as the Business Day of receipt.
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|
4.3
|
Cancellation of issue
|
|
|
(a)
|
If for any reason the Issuer wishes to cancel a proposed issue of Treasury Notes, the Issuer shall
notify the Domiciliary Agent and the relevant Dealer immediately, in any case before 10 a.m. (Brussels time) on the Issue Date
of such Treasury Notes, in case the Treasury Notes are denominated in euro, and before 10 a.m. (Brussels time) on the Business
Day before the Issue Date of such Treasury Notes, in case the Treasury Notes are denominated in any Foreign Currency (or such other
time as from time to time agreed with or imposed by the NBB), after which time no such cancellation shall be possible.
|
|
|
(b)
|
Upon receipt of a written confirmation before the time limit set out in paragraph (a), the Domiciliary
Agent shall contact the NBB and notify it of the cancellation of the proposed issue (and the Descriptive Card) pertaining thereto.
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|
(c)
|
The Issuer shall indemnify and hold harmless the Domiciliary Agent and the relevant Dealer for
any costs, expenses or liabilities incurred by them in relation to such cancellation.
|
|
|
4.4
|
Communication in respect of issues
|
For the purpose of this clause, the
Domiciliary Agent shall be entitled, save in case of manifest error or fraud, to comply with a telephone communication subsequently
confirmed by telefax or e-mail, from a person whom such Domiciliary Agent believes, acting with reasonable care and in accordance
with good banking practice, to have been duly authorised by the Issuer to act on its behalf in relation to the issue of Treasury
Notes.
|
|
5.1
|
Payments to the Agent
|
|
|
(a)
|
On any date on which a payment is due in respect of the Treasury Notes, the Domiciliary Agent will
make the relevant payments due in respect of the Treasury Notes itself or through the Clearing System to the extent the amount
standing to the credit (including any overdraft facilities available) of the Issuer’s Account is sufficient to make all payments
due.
|
|
|
(b)
|
To allow the Domiciliary Agent to make such payments, the Issuer shall ensure that the Issuer’s
Account is credited for value at the latest the relevant Interest Payment Date or Maturity Date in immediately available freely
transferable funds and in the currency in which the payment due under the relevant Treasury Notes should be made, or has a credit
balance that is, together with any overdraft facilities available, at least equal to, the amount due on such date in respect of
the Treasury Notes.
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(c)
|
To this effect, the Issuer will, if any such transfer of funds is made, at the latest at 12.00
a.m. (noon) (CET) on the Business Day prior to any date on which a payment is due, confirm to the Domiciliary Agent, if requested
by the Domiciliary Agent, that either the credit balance, including any overdraft facilities available, of the Issuer’s Account
will be sufficient or that it has given irrevocable instructions for the transfer of such funds to be made to the Issuer’s
Account or, in case of payments to be made in a Foreign Currency and if instructed by the Domiciliary Agent, the relevant cash
account of the Domiciliary Agent with its relevant correspondent depending on the currency of the Treasury Notes, and confirm,
in such case, the name and account of the bank through which such transfer will be made.
|
|
|
(d)
|
The Issuer will provide evidence of the transfer instructions, if any, referred to in paragraph
(c) above to the Domiciliary Agent. If the Domiciliary Agent has not received any such confirmation by 2.00 p.m. (CET) on the Business
Day prior to such due date, the Issuer and the Domiciliary Agent will liaise in good faith to agree on a remedy for this situation.
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|
|
5.2
|
Payments to the Treasury Noteholders & Settlement
|
|
|
(a)
|
Payments to the Treasury Noteholders
|
Upon receipt of the funds from the
Issuer and on the relevant Maturity Date or, if applicable, Interest Payment Date, the Domiciliary Agent:
|
|
(i)
|
shall (and is authorised by the Issuer to) debit the Issuer’s Account with the amount due
in respect of the Treasury Notes on such date; and
|
|
|
(a)
|
in respect of payments on Treasury Notes denominated in euro, allow the NBB to debit the Domiciliary
Agent’s account with the Clearing System with the amount due (rounded up or down in accordance with Clause 4 of the Clearing
Agreement) in respect of such Treasury Notes on such date, for payment, if applicable after deduction of Withholding Tax, to the
relevant Treasury Noteholders; or
|
|
|
(b)
|
in respect of payments on Treasury Notes denominated in any Foreign Currency:
|
|
|
(i)
|
pay the amounts due to the relevant Treasury Noteholders, on the basis of the amounts registered
on their account at the end of the third Business Day prior to the relevant Interest Payment Date or Maturity Date; and
|
|
|
(ii)
|
allow the NBB to debit the account of the Domiciliary Agent with the amount of Withholding Tax
(if any) due (rounded up or down in accordance with Clause 4 of the Clearing Agreement) in respect of such payment.
|
In case of payments made at the occasion
of maturity of the relevant Treasury Notes, and provided the transactions referred to above have been settled, the securities account
of the relevant Treasury Noteholder shall be debited to cancel the amount of Treasury Notes that have been redeemed.
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5.3
|
Late or insufficient payment by the Issuer
|
If for any reason,
prior to 2.00 p.m. (CET) on the Business Day prior to the date on which a payment is due, (i) the amount paid by the Issuer to
the Domiciliary Agent is insufficient to allow the payment of all amounts due in respect of the Treasury Notes (other than by reason
of the gross negligence, wilful misconduct or breach of this Agreement by the Domiciliary Agent) or (ii) if the Domiciliary Agent,
after having consulted with the Issuer, reasonably estimates that it will not receive the amounts due on the date on which the
payment is due or (iii) the situation referred to in Clause 5.1(d) has not been remedied to the reasonable satisfaction of the
Domiciliary Agent:
|
|
(a)
|
the Domiciliary Agent shall not be bound to satisfy or pay any claim until either the Domiciliary
Agent has received from the Issuer, the full amount thereof or other arrangements satisfactory to the Domiciliary Agent have been
made; and
|
|
|
(b)
|
the Domiciliary Agent will be entitled to give notice to the NBB in accordance with Clause 7 of
the Clearing Agreement, or to otherwise suspend the payment processes set out in paragraph (a) of Clause 5.2 above.
|
|
|
(a)
|
If the Maturity Date or, if applicable, the relevant Interest Payment Date for any Treasury Note
is not a Business Day, payment in respect of such Treasury Note will not be made and credit or transfer instructions shall not
be given until the next following Business Day and the Treasury Noteholder shall not be entitled to any interest or other sums
in respect of such postponed payment.
|
|
|
(b)
|
The Domiciliary Agent may, subject to the prior consent of the Issuer, suspend, postpone or refuse
to make payments or to settle payments regarding Treasury Notes issued under the Programme when it deems the settlement risk involved
to be too important.
|
|
|
6.
|
MISCELLANEOUS DUTIES OF THE DOMICILIARY AGENT
|
|
|
(a)
|
The Domiciliary Agent shall provide the NBB on behalf of the Issuer with any information required
pursuant to Clause 2.1 and 3.1 of the Clearing Agreement.
|
|
|
(b)
|
The Domiciliary Agent shall, and is authorized by the Issuer to make the Information Memorandum
and the Descriptive Card available to any persons upon request (subject to the selling restrictions set out in the Information
Memorandum).
|
|
|
(c)
|
The Domiciliary Agent shall keep full and complete record of all Treasury Notes and of their payment
and cancellation and shall make such records available to the Issuer as the Issuer may request from time to time.
|
|
|
(d)
|
The Domiciliary Agent shall inform the Issuer promptly at cost of the Issuer (and in no event later
than five Business Days after reception by it) of:
|
|
|
(i)
|
any notice received by it from holders of Treasury Notes pursuant to the provisions under Condition
15 (
Events of Default
) of the Treasury Notes; and
|
|
|
(ii)
|
any other notice or communication received by it and addressed to the Issuer in connection with
the Treasury Notes and having an effect on the interests of the Issuer, including any notice of any legal action or proceeding
which may be brought against the Issuer.
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The Domiciliary Agent shall in respect
of the Treasury Notes bearing interest at a floating rate (i) obtain such quotes and rates and/or make such determinations, calculations,
adjustments, notifications and publications as may be required to be made by it by the Conditions at the times and otherwise in
accordance with the Conditions and (ii) maintain a record of all quotations obtained by it and of all amounts, rates and other
items determined or calculated by it and make such record available for inspection at all reasonable times by the Issuer.
|
|
8.
|
REPRESENTATIONS AND UNDERTAKINGS OF THE ISSUER
|
|
|
(a)
|
The Issuer shall comply with their obligations under the Treasury Notes Law and the Treasury Notes
Decree. In particular, the Issuer shall prepare all supplements to the Information Memorandum, financial statements, periodical
reports, and other documents to be annexed with the Information Memorandum in accordance with Article 5 of the Treasury Notes Law
and Articles 16 or 22 of the Treasury Notes Decree.
|
|
|
(b)
|
The Issuer shall from time to time upon request provide the Domiciliary Agent with:
|
|
|
(i)
|
sufficient copies of the Information Memorandum and all supplements thereto, financial statements,
periodical reports, and other documents to be annexed therewith; and
|
|
|
(ii)
|
sufficient copies of all other documents required to be available for inspection as provided in
the Information Memorandum.
|
|
|
(c)
|
The Issuer undertakes:
|
|
|
(i)
|
to comply with the rules and regulations of the Clearing System;
|
|
|
(ii)
|
to comply with its obligations under this Agreement and the Clearing Agreement;
|
|
|
(iii)
|
to not issue Treasury Notes if such issue would lead to a total outstanding principal amount of
Treasury Notes exceeding the Programme Maximum Amount (or its equivalent in any other relevant currency);
|
|
|
(iv)
|
to not to (i) amend the Conditions from time to time or (ii) increase the Programme Maximum Amount,
without having received the prior written consent of the Domiciliary Agent (such consent not to be unreasonably withheld or delayed);
|
|
|
(v)
|
to ensure to not trade at any time, and then not issue:
|
|
|
(a)
|
Treasury Notes for value on a business day for which the sum of the net proceeds of the Treasury
Notes expected to be issued on that business day would exceed EUR 20,000,000 (or the equivalent in case of Treasury Notes issued
in currencies other than EUR); and
|
|
|
(b)
|
Treasury Notes if the sum of the redemption amount of each Treasury Note to be redeemed on a business
day would exceed EUR 20,000,000 for such business day (or the equivalent in case of Treasury Notes issued in currencies other than
EUR); and
|
|
|
(vi)
|
to provide the Domiciliary Agent with any supplement to, or new version of, the Information Memorandum
in due time and in any case before its signing date.
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(d)
|
The Issuer shall not issue or trade any Treasury Notes in currencies other than Euro and USD or,
subject to (i) the terms of the Dealer Agreement, (ii) the written consent of the Domiciliary Agent and (iii) compliance with any
applicable legal and regulatory requirements (including the rules of the Clearing System), any other Foreign Currency, nor with
a Tenor longer than 364 days.
|
|
|
(e)
|
The Issuer represents and warrants to the Domiciliary Agent that, to its best knowledge, the Information
Memorandum has been approved by it and contains all necessary information on the Issuer, as the case may be, the Programme and
the rights attached to and the terms and conditions of the Treasury Notes, and that the information contained or incorporated by
reference in the Information Memorandum is true and accurate in all material respects and not misleading and there are no other
facts the omission of which makes the Information Memorandum as a whole or any information contained or incorporated by reference
therein misleading.
|
|
|
(f)
|
The Issuer undertakes that, as long as any Treasury Notes are outstanding or as long as any sums
may be due in respect of Treasury Notes, the Issuer’s Account shall remain in full force and effect, and that on any Interest
Payment Date or Maturity Date, the Domiciliary Agent shall have at the right and possibility to directly debit the Issuer’s
Account for a maximum amount equal to the amount standing to the credit of the Issuer’s Account (including any overdraft
facilities available).
|
|
|
(a)
|
The Issuer will indemnify and hold harmless on demand the Domiciliary Agent, each of its respective
affiliates and each person who controls it, and each of its respective directors, officers, employees and agents (each an “
Indemnified
Party
”), against any and all losses, claims, damages, liabilities or expenses (including, without limitation, costs of
investigation and defence, reasonable legal fees and disbursements) to which that indemnified party may be subject directly arising
out of or based upon:
|
|
|
(i)
|
the Issuer’s failure to make due payment under the Treasury Notes;
|
|
|
(ii)
|
any Treasury Notes not being issued for any reason (other than as a result of the gross negligence
or wilful misconduct of the Domiciliary Agent or the failure of any Dealer to pay for such Treasury Notes) after an agreement for
a Note Transaction has been made;
|
|
|
(iii)
|
any breach or alleged breach of the representations, warranties, covenants or agreements made or
deemed to be repeated by the Issuer in this Agreement or any other Programme Agreement to which it is a party unless, in the case
of an alleged breach only, the allegation is being made by an Indemnified Party; or
|
|
|
(iv)
|
any untrue statement or alleged untrue statement of any material fact contained in the Disclosure
Documents or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading in any material respect unless, in the case of an
alleged untrue statement, the allegation is being made by an Indemnified Party.
|
|
|
(b)
|
In case any allegation as described in subparagraphs (iii) or (iv) above is made or any action
is brought against any Indemnified Party in respect of which recovery may be sought from the Issuer under this Clause 9, the Indemnified
Party shall promptly notify the Issuer (although failure to do so will not relieve the Issuer from any liability under this Agreement).
If any such allegation is made, the parties agree to consult in good faith with respect to the nature of the allegation. Subject
to paragraph (c) below, the Issuer may participate at its own expense in the defence of any action.
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(c)
|
If it so elects within a reasonable time after receipt of the notice referred to in paragraph (b)
above, the Issuer may assume the defence of the action with legal advisers chosen by it and approved by the Indemnified Party (such
approval not to be unreasonably withheld or delayed). Notwithstanding such election an Indemnified Party may employ separate legal
advisers reasonably acceptable to the Issuer and the Issuer shall bear the reasonable fees and expenses of such separate legal
advisers if:
|
|
|
(i)
|
the use of the legal advisers chosen by the Issuer to represent the Indemnified Party would present
such legal advisers with a conflict of interest;
|
|
|
(ii)
|
the actual or potential defendants in, or targets of, any such action include both the Indemnified
Party and the Issuer and the Indemnified Party concludes that there may be legal defences available to it and/or other Indemnified
Parties which are different from or additional to those available to the Issuer;
|
|
|
(iii)
|
the Issuer has not employed legal advisers reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party within a reasonable time after notice of the institution of such action; or
|
|
|
(iv)
|
the Issuer authorises the Indemnified Party to employ separate legal advisers at the expense of
the Issuer.
|
|
|
(d)
|
If the Issuer assumes the defence of the action, the Issuer shall not be liable for any fees and
expenses of legal advisers of the Indemnified Party incurred thereafter in connection with the action, except as stated in paragraph
(c) above.
|
|
|
(e)
|
The Issuer shall not be liable in respect of any settlement of any action effected without its
written consent, such consent not to be unreasonably withheld or delayed. The Issuer shall not, without the prior written consent
of the Indemnified Party (such consent not to be unreasonably withheld or delayed) settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim or action in respect of which recovery may be sought (whether or
not any Indemnified Party is an actual or potential party to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Party from all liability arising out of such claim or action and does not
include a statement as to or an admission of fault, culpability or failure to act by or on behalf of a Indemnified Party.
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|
|
(f)
|
The Domiciliary Agent will indemnify the Issuer against any and all losses, claims, damages, liabilities
or expenses (including, without limitation, costs of investigation and defence, legal fees and disbursements) to which the Issuer
may be subject directly arising out of or based upon any failure by the Domiciliary Agent to comply with its obligations under
this Agreement caused by any gross negligence of wilful misconduct of the Domiciliary Agent.
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|
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10.
|
RECOURSE TO THE ISSUER
|
|
|
(a)
|
If the Domiciliary Agent has on any particular Business Day:
|
|
|
(i)
|
made a payment pursuant to Clause 5 above for the account of the Issuer in advance of confirmation
of receipt of funds from the Dealer on that Business Day and/or
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|
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(ii)
|
made a payment pursuant to Clause 5 above on any Treasury Notes in advance of confirmation of receipt
of funds from the Issuer on that Business Day,
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Euronav NV
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Domiciliary Agency Agreement Execution Version 06 June 2017
then the Domiciliary
Agent may, at any time on or after such Business Day, require the Issuer to refund to or reimburse the Domiciliary Agent, on demand, the
amount(s) still due by the Issuer or the relevant Dealer at such time within the framework of the payments made by the Domiciliary
Agent under sub-paragraph(s) (i) or/and (ii) above.
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|
(b)
|
If the Domiciliary Agent has on any particular Business Day made a payment to the Issuer in advance
of confirmation of receipt of funds from the Dealer on that Business Day, and the amount for which such Dealer has subscribed for
Treasury Notes has not been received by the Domiciliary Agent for value the date on which it has made such payment, the Domiciliary
Agent will instruct the NBB to cancel such Treasury Notes upon receipt of the amount by the Domiciliary Agent from the Issuer in
respect thereof.
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|
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(c)
|
In addition to refunding or reimbursing any funds to the Domiciliary Agent pursuant to paragraph
(a) or (b) above, as applicable, the Issuer shall pay to the Domiciliary Agent on demand (in addition to any other amounts which
then remain due from the Issuer to the Domiciliary Agent under this Agreement) interest for the period from and including the Business
Day on which such funds should have been received by the Domiciliary Agent up to but excluding the Business Day on which the Domiciliary
Agent receives reimbursement thereof, on an amount equal to the full amount of the payments made by the Domiciliary Agent and referred
to in paragraphs (i) and (ii) of (a) above, calculated in conformity with market practice at the interest rate of one per cent
(1%) per annum over the cost to the Domiciliary Agent of funding such amount in whatever manner it may reasonably select. Such
interest shall accrue from day to day and shall be debited from the Issuer’s account with such frequency as the Domiciliary
Agent may select as aforesaid.
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|
11.
|
TERMINATION – RESIGNATION – SUCCESSION
|
|
|
11.1
|
Termination - resignation
|
|
|
(a)
|
The Issuer may terminate the appointment of the Domiciliary Agent and appoint another domiciliary
agent as successor domiciliary agent under this agreement, and the Domiciliary Agent may resign from its appointment hereunder,
at any time and in each case upon giving the other parties to this Agreement at least 30 days prior written notice to that effect.
The Issuer agrees not to terminate the appointment of the Domiciliary Agent, or to appoint another Domiciliary Agent, and the Domiciliary
Agent agrees not to resign from its appointment, in each case during a period of twelve months from the date of this Agreement.
|
Neither the resignation
of the Domiciliary Agent nor the termination by the Issuer of its appointment as domiciliary agent shall take effect until the
appointment of the successor domiciliary agent becomes effective and until all conditions of Clause 1.2 of the Clearing Agreement
with respect to such succession or resignation are satisfied. Any change of domiciliary agent shall be notified to Treasury Noteholders
upon at least 15 days’ notice.
Such termination
or resignation shall not affect or alter the obligations of any party hereunder in respect of any Treasury Note outstanding at
the time of the giving of such notice and for as long as such Treasury Notes remain outstanding.
If the Domiciliary
Agent resigns or its appointment is terminated, the Domiciliary Agent shall, on the date on which such resignation or termination
takes effect, pay to the successor domiciliary agent any amount held by it for payment in respect of the Treasury Notes and deliver
to the successor domiciliary agent all Treasury Notes, records and other documents held by it pursuant to this agreement. Notwithstanding
its resignation or the termination of its appointment, the Domiciliary Agent shall remain fully liable for the commitments, if
not fulfilled by the said payment and delivery to the successor domiciliary agent, resulting from the Clearing Agreement that relate
to Treasury Notes issued prior to the change of the Domiciliary Agent.
Euronav NV
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Domiciliary Agency Agreement Execution Version 06 June 2017
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(b)
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The appointment of the Domiciliary Agent shall automatically terminate if at any time the Domiciliary
Agent becomes incapable of acting, or is adjudged bankrupt or insolvent, or files a voluntary petition in bankruptcy or makes an
assignment for the benefit of its creditors or consents to the appointment of a receiver, administrator or other similar official
of all or any substantial part of its property or admits in writing its inability to pay or meet its debts as they mature or suspends
payment thereof, or if a resolution is passed or an order made for the winding up or dissolution of the Domiciliary Agent or if
a receiver, administrator or other similar official of the Domiciliary Agent or all or any substantial part of its property is
appointed, or if any order of any court is entered approving any petition filed by or against it under the provisions of any applicable
bankruptcy or insolvency law, or if any public officer takes charge or control of the Domiciliary Agent or its property or affairs
for the purpose of rehabilitation, conservation or liquidation. The Issuer shall notify such termination to the NBB.
|
Any company into which the Domiciliary
Agent may be merged or converted or any corporation with which the Domiciliary Agent may be consolidated or any corporation resulting
from any merger, conversion or consolidation to which the Domiciliary Agent shall be a party shall, to the extent permitted by
applicable law, be the successor Domiciliary Agent under this agreement. Notice of any such merger, conversion or consolidation
shall forthwith be given to the Issuer.
The Domiciliary Agent may assign
its appointment hereunder to any other legal entity provided that the Issuer grants its approval in writing at least 10 days before
such assignment is to take place (such approval not to be unreasonably withheld or delayed)
The Issuer undertakes to pay in respect
of the services under this Domiciliary Agency Agreement such fees and expenses as agreed in the expenses side letter dated on or
about the date of this Domiciliary Agency Agreement.
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|
(a)
|
Other relationships
: Subject always to the Selling Restrictions, the Domiciliary
Agent and any other person, whether or not acting for itself, may acquire, hold or dispose of any Treasury Note or other security
(or any interest therein) of the Issuer or any other person, may enter into or be interested in any contract or transaction with
any such person, and may act on, or as depositary, trustee or agent for, any committee or body of holders of securities of any
other person, in each case with the same rights as it would have had if that Domiciliary Agent were not a Domiciliary Agent and
need not account for any profit.
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|
|
(b)
|
Holder to be treated as owner
: Except as otherwise required by law, the Domiciliary
Agent shall treat the holder of a Treasury Note as its absolute owner, and shall not be liable for doing so.
|
|
|
(c)
|
Purchase
: Any Treasury Note purchased by the Issuer on the secondary market shall
forthwith be cancelled; to that end the Issuer shall promptly inform the Domiciliary Agent, which shall in turn inform NBB and
request cancellation of Treasury Notes so purchased.
|
|
|
(d)
|
Reliance on documents
: The Domiciliary Agent shall not be liable in respect of anything
done or suffered by it in reliance on a Treasury Note or other document or information from any electronic or other source reasonably
believed by it to be genuine (when possible depending on the communication means and on the information provided by the Issuer,
after having checked it with appropriate and reasonable diligence based on the specimen of signature to be supplied in due time
by the Issuer) and to have been signed or otherwise given or disseminated by the proper parties.
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Euronav NV
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Domiciliary Agency Agreement Execution Version 06 June 2017
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(e)
|
List of authorised persons
: The Issuer shall provide the Domiciliary Agent with a
copy of the certified list of persons authorised to take action on behalf of it in connection with this Agreement and shall notify
the Domiciliary Agent promptly in writing if any of such persons ceases to be so authorised or if any additional person becomes
so authorised. Unless and until notified of any such change, the Domiciliary Agent may rely on the certificate(s) most recently
delivered to it and all instructions given in accordance with such certificate(s) shall be binding on the Issuer.
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|
|
(f)
|
Amendments
: The Domiciliary Agent and the Issuer may agree without the consent of
the holders of the Treasury Notes to any modification of the provisions of this Agreement or any agreement supplemental to this
Agreement either (i) which in the Domiciliary Agent’s opinion is of a formal, minor or technical nature or is made to correct
a manifest error or to comply with mandatory provisions of law and (ii) any other modification to the provisions of this Agreement
or any agreement supplemental to this Agreement.
|
All notices under this Domiciliary
Agency Agreement shall be given by mail, by e-mail, by telephone (promptly confirmed by facsimile) or by facsimile.
If the Domiciliary Agent changes
the office through which it is acting for the purposes of this Domiciliary Agency Agreement (as set in the execution page of this
Domiciliary Agency Agreement), it shall give to the Issuer and the Dealer(s) not less than 30 days prior written notice to that
effect giving the address of the new office.
A notice shall be deemed received
(if by mail) when delivered, (if by telephone) when made and (if by facsimile) when dispatched. Any notice by telephone or facsimile
shall be promptly confirmed by mail.
If any notice is given
to the Issuer, to:
Euronav NV
De Gerlachekaai 20
2000 Antwerpen
Belgium
Attn: Hugo De Stoop
E-Mail: finance@euronav.com
Phone : +32 3 247 44 11
Fax : +32 3 247 44 09
If any notice is given
to the Domiciliary Agent, to:
BNP Paribas Fortis SA/NV
Montagne du Parc 3
B-1000 Brussels
Attn : Back Office
Primary Market
Phone : + 32 2 565 75 30
Fax : + 32 2 565 62 56
E-Mail : belgiumdomestic@bnpparibasfortis.com
with a copy to docsecurities.mbc@bnpparibasfortis.com
or +32 2 565 98 04 (fax) for any communication other than related to a trade confirmation
Euronav NV
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Domiciliary Agency Agreement Execution Version 06 June 2017
If the Domiciliary Agent shall receive
any notice or demand addressed to the Issuer by any Treasury Noteholder, the Domiciliary Agent shall promptly forward such notice
or demand to the Issuer. The Domiciliary Agent will give notice to any Treasury Noteholder to the extent required by the Terms
and Conditions, pursuant to written instructions of the Issuer.
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|
15.
|
GOVERNING LAW & JURISDICTION
|
This Domiciliary Agency Agreement
shall be governed by and construed in accordance with the laws of the Kingdom of Belgium and any dispute in relation therewith
will be subject to the exclusive jurisdiction of the courts of Brussels, Belgium. The Issuer and the Domiciliary Agent irrevocably
submit to the jurisdiction of such courts and waive any objection to proceedings in such courts whether on the ground of venue
or on the ground that the proceedings have been brought in an inconvenient forum.
This Domiciliary Agency Agreement
may be executed in any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single
copy of this Domiciliary Agency Agreement.
The present Domiciliary Agency Agreement
is executed on
6 June 2017
in 2 original copies, of which each party hereto acknowledges having received one.
for the Issuer,
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Euronav NV
|
|
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|
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/s/ Egied Verbeeck
|
|
/s/
H. De Stoop
|
|
Name
Egied Verbeeck
|
|
Name H. De Stoop
|
|
Title: Member of the Executive Committee
|
|
Title: Member of the Executive Committee
|
for the Domiciliary Agent,
BNP Paribas Fortis SA/NV
|
/s/ Martin de Patoul
|
|
/s/ Martine Van Sinay
|
|
Name
Martin de Patoul
|
|
Name Martine Van Sinay
|
Title
Company lawyer
BNP
Paribas Fortis
|
|
Title CP Dealer
|
Exhibit 10.21
Exhibit 10.22
EXECUTION
VERSION
BOND TERMS
FOR
EURONAV LUXEMBOURG
S.A.
SENIOR UNSECURED
BOND ISSUE 2017/2022
ISIN NO001079388.8
Contents
|
Clause
|
|
Page
|
|
|
|
|
|
1.
|
INTERPRETATION
|
3
|
|
2.
|
THE BONDS
|
10
|
|
3.
|
THE BONDHOLDERS
|
11
|
|
4.
|
ADMISSION TO LISTING
|
12
|
|
5.
|
REGISTRATION OF THE BONDS
|
12
|
|
6.
|
CONDITIONS FOR DISBURSEMENT
|
12
|
|
7.
|
REPRESENTATIONS AND WARRANTIES
|
14
|
|
8.
|
PAYMENTS IN RESPECT OF THE BONDS
|
15
|
|
9.
|
INTEREST
|
17
|
|
10.
|
REDEMPTION AND REPURCHASE OF BONDS
|
18
|
|
11.
|
PURCHASE AND TRANSFER OF BONDS
|
18
|
|
12.
|
GUARANTEE AND INDEMNITY
|
19
|
|
13.
|
INFORMATION UNDERTAKINGS
|
20
|
|
14.
|
GENERAL UNDERTAKINGS
|
21
|
|
15.
|
FINANCIAL COVENANTS
|
24
|
|
16.
|
EVENTS OF DEFAULT AND ACCELERATION OF THE BONDS
|
25
|
|
17.
|
BONDHOLDERS’ DECISIONS
|
28
|
|
18.
|
THE BOND TRUSTEE
|
32
|
|
19.
|
AMENDMENTS AND WAIVERS
|
36
|
|
20.
|
MISCELLANEOUS
|
37
|
|
21.
|
GOVERNING LAW AND JURISDICTION
|
39
|
|
|
|
|
|
ATTACHMENT 1 COMPLIANCE CERTIFICATE
|
|
|
ATTACHMENT 2 RELEASE NOTICE – ESCROW ACCOUNT
|
|
|
BOND TERMS
|
|
|
|
|
ISSUER:
|
Euronav Luxembourg S.A., a public limited liability company
(
société anonyme) existing under the laws of Luxembourg with registration number B 51212, 25 boulevard Prince Henri, L-1724 Luxembourg, Grand Duchy of Luxembourg;
|
|
|
|
|
PARENT:
|
Euronav NV, a public limited liability company existing under the laws of Belgium with registration number 0860.402.767; and
|
|
|
|
|
BOND TRUSTEE:
|
Nordic Trustee ASA, a company existing under the laws of Norway with registration number 963 342 624.
|
|
|
|
|
DATED:
|
30 May 2017
|
These Bond Terms shall remain in effect for
so long as any Bonds remain outstanding.
The following terms will have the
following meanings:
“
Additional Bonds
”
means Bonds issued under a Tap Issue.
“
Affiliate
” means,
in relation to any specified person:
|
|
(a)
|
any person which is a Subsidiary of the specified person;
|
|
|
(b)
|
any person who has Decisive Influence over the specified person (directly or indirectly); and
|
|
|
(c)
|
any person which is a Subsidiary of an entity who has Decisive Influence (directly or indirectly)
over the specified person.
|
“
Annual Financial Statements
”
means the audited statutory annual financial statements of the Issuer and the audited consolidated annual financial statements
of the Guarantor for any financial year, prepared in accordance with GAAP , such financial statements to include a profit and loss
account, balance sheet and cash flow statement.
“
Attachment
”
means each of the attachments to these Bond Terms.
“
Bond Terms
”
means these terms and conditions, including all Attachments hereto which shall form an integrated part of the Bond Terms, in each
case as amended and/or supplemented from time to time.
“
Bond Trustee
”
means the company designated as such in the preamble to these Bond Terms, or any successor, acting for and on behalf of the Bondholders
in accordance with these Bond Terms.
“
Bond Trustee Agreement
”
means the agreement entered into between the Issuer and the Bond Trustee relating among other things to the fees to be paid by
the Issuer to the Bond Trustee for its obligations relating to the Bonds.
“
Bondholder
”
means a person who is registered in the CSD as directly registered owner or nominee holder of a Bond, subject however to Clause
3.3 (
Bondholders’ rights
).
“
Bondholders' Meeting
”
means a meeting of Bondholders as set out in Clause 17.
“
Bonds
” means
the debt instruments issued by the Issuer pursuant to these Bond Terms, including any Additional Bonds.
“
Business Day
”
means a day on which both the relevant CSD settlement system and the relevant Bond currency settlement system are open and on which
banks are open for general business in Oslo, London and New York.
“
Business Day Convention
”
means that if the last day of any Interest Period originally falls on a day that is not a Business Day, no adjustments will be
made to the Interest Period.
“
CSD
” means the
central securities depository in which the Bonds are registered, being VPS ASA.
“
Change of Control Event
”
means if any person or group of persons acting in concert (other than Saverco and Victrix) gains Decisive Influence over the Parent.
“
Compliance Certificate
”
means a statement substantially in the form as set out in Attachment 1 hereto.
“
Decisive Influence
”
means a person having, as a result of an agreement, understanding and/or other arrangement and/or through the direct and/or indirect
ownership of shares and/or other ownership interests in another person:
|
|
(a)
|
a majority of the voting rights in that other person; or
|
|
|
(b)
|
a right to elect or remove a majority of the members of the board of directors of that other person.
|
“
Default Notice
”
means a written notice to the Issuer as described in Clause 16.2 (
Acceleration of the Bonds
).
“
Default Repayment Date
”
means the settlement date set out by the Bond Trustee in a Default Notice requesting early redemption of the Bonds.
“
Escrow Account
”
means an account in the name of the Issuer, pledged and blocked on first priority as security for the Issuer`s obligations under
the Finance Documents.
“
Escrow Account Pledge
”
means the pledge over the Escrow Account, where the bank operating the account has waived any set-off rights.
“
Event of Default
”
means any of the events or circumstances specified in Clause 16.1 (
Events of Default
).
“
Exchange
” means:
|
|
(b)
|
any regulated market as such term is understood in accordance with the Markets in Financial Instruments
Directive (Directive 2004/39/EC) or the Markets in Financial Instruments Directive 2014/65/EU (MiFID II), as applicable.
|
“
Finance Documents
”
means these Bond Terms, the Bond Trustee Agreement, the Escrow Account Pledge agreement, the Security Agent Agreement and any other
document designated by the Issuer and the Bond Trustee as a Finance Document.
“
Financial Indebtedness
”
means any indebtedness for or in respect of:
|
|
(a)
|
moneys borrowed and debt balances at banks or other financial institutions;
|
|
|
(b)
|
any amount raised by acceptance under any acceptance credit facility or dematerialized equivalent;
|
|
|
(c)
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures,
loan stock or any similar instrument, including the Bonds;
|
|
|
(d)
|
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance
with IFRS, be treated as a finance or capital lease (meaning that the lease is capitalized as an asset and booked as a corresponding
liability in the balance sheet);
|
|
|
(e)
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse
basis provided that the requirements for de-recognition under IFRS are met);
|
|
|
(f)
|
any derivative transaction entered into and, when calculating the value of any derivative transaction,
only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative
transaction, that amount shall be taken into account);
|
|
|
(g)
|
any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter
of credit or any other instrument issued by a bank or financial institution in respect of an underlying liability of a person which
is not a Group Company which liability would fall within one of the other paragraphs of this definition;
|
|
|
(h)
|
any amount raised by the issue of redeemable shares which are redeemable (other than at the option
of the Issuer) before the Maturity Date or are otherwise classified as borrowings under IFRS;
|
|
|
(i)
|
any amount of any liability under an advance or deferred purchase agreement, if (a) the primary
reason behind entering into the agreement is to raise finance or (b) the agreement is in respect of the supply of assets or services
and payment is due more than 120 calendar days after the date of supply;
|
|
|
(j)
|
any amount raised under any other transaction (including any forward sale or purchase agreement)
having the commercial effect of a borrowing or otherwise being classified as a borrowing under IFRS; and
|
|
|
(k)
|
without double counting, the amount of any liability in respect of any guarantee for any of the
items referred to in paragraphs a) to j) above.
|
“
Financial Reports
”
means the Annual Financial Statements and the Interim Accounts.
“
GAAP
” means
generally accepted accounting practices and principles in the country in which the Issuer is incorporated including, if applicable,
International Financial Reporting Standards (IFRS) and guidelines and interpretations issued by the International Accounting Standards
Board (or any predecessor and successor thereof), in force from time to time.
“
Group
” means
the Parent and its (direct and indirect) Subsidiaries from time to time, and a "
Group Company
" means the Parent
or any of its Subsidiaries.
“
Guarantee
” means
an irrevocable Norwegian law corporate guarantee (Norwegian: "
Selvskyldnergaranti
") from the Guarantor, pursuant
to Clause 12.
“
Guarantor
” means
the Parent.
“
Initial Bond Issue
”
means the aggregate Nominal Amount of all Bonds issued on the Issue Date.
“
Initial Nominal Amount
”
means the nominal amount of each Bond as set out in Clause 2.1 (
Amount, denomination and ISIN of the Bonds
).
“
Insolvent
” means
that a person:
|
|
(a)
|
is unable or admits inability to pay its debts as they fall due;
|
|
|
(b)
|
suspends making payments on any of its debts generally; or
|
|
|
(c)
|
is otherwise considered insolvent or bankrupt within the meaning of the relevant bankruptcy legislation
of the jurisdiction which can be regarded as its center of main interest as such term is understood pursuant to Council Regulation
(EC) no. 1346/2000 on insolvency proceedings (as amended).
|
“
Interest Payment Date
”
means the last day of each Interest Period, the first Interest Payment Date being 30 November 2017 and the last Interest Payment
Date being the Maturity Date.
“
Interest Period
”
means, subject to adjustment in accordance with the Business Day Convention, the period between May and November each year, provided
however that an Interest Period shall not extend beyond the Maturity Date.
“
Interest Rate
”
means 7.50% percentage point per annum.
“
Interim Accounts
”
means the unaudited unconsolidated and consolidated quarterly financial statements of the Guarantor for the quarterly period ending
on each 31 March, 30 June, 30 September and 31 December in each year, prepared in accordance with IFRS.
“
ISIN
” means
International Securities Identification Number – the identification number of the Bonds.
"
Issue Date
" means
31 May 2017.
“
Issuer
” means
the company designated as such in the preamble to these Bond Terms.
“
Issuer’s Bonds
”
means any Bonds which are owned by any Obligor or any Affiliate of an Obligor.
“
Longstop Date
”
means 30 June 2017.
“
Manager
” means
DNB Bank ASA, DNB Markets, Dronning Eufemias gate 30, NO-0191, Oslo, Norway, Nordea Bank AB (publ), filial i Norge, P.O. Box 1166
Sentrum, NO-0107 Oslo, Norway and Arctic Securities AS, P.O. Box 1833, NO-0123, Oslo Norway.
“
Material Adverse Effect
”
means a material adverse effect on:
|
|
(a)
|
the ability of the Issuer and/or the Parent to perform and comply with its obligations under the
Bond Terms and the Guarantee respectively; or
|
|
|
(b)
|
the validity or enforceability of each of the Bond Terms and the Guarantee.
|
“
Maturity Date
”
means 31 May 2022 (5 years after the Issue Date), adjusted according to the Business Day Convention.
“
Maximum Issue Amount
”
shall have the meaning ascribed to such term in Clause 2.1 (
Amount, denomination, ISIN and tenor
).
“
Nominal Amount
”
means the Initial Nominal Amount less the aggregate amount by which each Bond has been partially redeemed pursuant to Clause 10
(
Redemption and repurchase of Bonds
).
“
Obligor
” means
the Issuer and any Guarantor.
“
Outstanding Bonds
”
means any Bonds issued in accordance with these Bond Terms to the extent not redeemed or otherwise discharged.
“
Overdue Amount
”
means any amount required to be paid by the Issuer under any of the Finance Documents but not made available to the Bondholders
on the relevant Payment Date or otherwise not paid on its applicable due date.
“
Parent
” means
the company designated as such in the preamble to these Bond Terms.
“
Paying Agent
”
means the legal entity appointed by the Issuer to act as its paying agent with respect to the Bonds in the CSD, being DNB Bank
ASA.
“
Payment Date
”
means any Interest Payment Date or any Repayment Date.
“
Put Option
”
shall have the meaning ascribed to such term in Clause 10.2 (
Mandatory repurchase due to a Put Option Event
).
“
Put Option Event
”
means a Change of Control Event.
“
Put Option Repayment Date
”
means the settlement date for the Put Option Event pursuant to Clause 10.2 (
Mandatory repurchase due to a Put Option Event
).
“
Relevant Jurisdiction
”
means the country in which the Bonds are issued, being Norway.
“
Relevant Record Date
”
means the date on which a Bondholder’s ownership of Bonds shall be recorded in the CSD as follows:
|
|
(a)
|
in relation to payments pursuant to these Bond Terms, the date designated as the Relevant Record
Date in accordance with the rules of the CSD from time to time;
|
|
|
(b)
|
for the purpose of casting a vote in a Bondholders’ Meeting, the date falling on the immediate
preceding Business Day to the date of that Bondholders' Meeting being held, or another date as accepted by the Bond Trustee; and
|
|
|
(c)
|
for the purpose of casting a vote in a Written Resolution:
|
|
|
(i)
|
the date falling 3 Business Days after the Summons have been published; or,
|
|
|
(ii)
|
if the requisite majority in the opinion of the Bond Trustee has been reached prior to the date
set out in paragraph (i) above, on the date falling on the immediate Business Day prior to the date on which the Bond Trustee declares
that the Written Resolution has been passed with the requisite majority.
|
“
Repayment Date
”
means the Default Repayment Date, the Put Option Repayment Date or the Maturity Date.
"
Saverco
" means
Saverco NV, a company incorporated in Belgium whose registered office is at de Gerlachekaai 20, B-2000 Antwerp, Belgium.
"
Secured Parties
"
means the Security Agent and the Bond Trustee on behalf of itself and the Bondholders.
“
Securities Trading Act
”
means the Securities Trading Act of the Relevant Jurisdiction.
“
Security
” means
a mortgage, charge, pledge, lien, security assignment or other security interest securing any obligation of any person or any other
agreement or arrangement having a similar effect.
"
Security Agent
"
means the Bond Trustee or any successor Security Agent, acting for and on behalf of the Secured Parties in accordance with any
Security Agent Agreement or any other Finance Document.
"
Security Agent Agreement
"
means any agreement whereby the Security Agent is appointed to act as such in the interest of the Bond Trustee (on behalf of itself
and the Bondholders.
“
Subsidiary
”
means a company over which another company has Decisive Influence.
“
Summons
” means
the call for a Bondholders’ Meeting or a Written Resolution as the case may be.
“
Tap Issue
” shall
have the meaning ascribed to such term in Clause 2.1 (
Amount, denomination, ISIN and tenor)
.
“
Tap Issue Addendum
”
shall have the meaning ascribed to such term in Clause 2.1 (
Amount, denomination, ISIN and tenor)
.
"
Transaction Security
"
means the Security created or expressed to be created in favour of the Security Agent (on behalf of the Secured Parties) pursuant
to the Transaction Security Documents.
"
Transaction Security Documents
"
means, collectively, the Escrow Account Pledge and all of the documents which shall be executed or delivered pursuant to Clause
2.5(Transaction Security) expressed to create any Security by the relevant grantor thereof in respect of the Issuer`s obligations
under any of the Finance Documents.
"
Victrix
" means
Victrix NV, a company incorporated in Belgium whose registered office is at Le Grellelei 20, 2600 Berchem, Belgium.
“
Voting Bonds
”
means the Outstanding Bonds less the Issuer’s Bonds and a Voting Bond shall mean any single one of those Bonds.
“
Written Resolution
”
means a written (or electronic) solution for a decision making among the Bondholders, as set out in Clause 17.5 (
Written Resolutions
).
In these Bond Terms, unless the
context otherwise requires:
|
|
(a)
|
headings are for ease of reference only;
|
|
|
(b)
|
words denoting the singular number will include the plural and vice versa;
|
|
|
(c)
|
references to Clauses are references to the Clauses of these Bond Terms;
|
|
|
(d)
|
references to a time are references to Oslo time unless otherwise stated;
|
|
|
(e)
|
references to a provision of “
law
” is a reference to that provision as amended
or re-enacted, and to any regulations made by the appropriate authority pursuant to such law;
|
|
|
(f)
|
references to a “
regulation
” includes any regulation, rule, official directive,
request or guideline by any official body;
|
|
|
(g)
|
references to a “
person
” means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, unincorporated organization, government, or any agency or political
subdivision thereof or any other entity, whether or not having a separate legal personality;
|
|
|
(h)
|
references to Bonds being “
redeemed
” means that such Bonds are cancelled and
discharged in the CSD in a corresponding amount, and that any amounts so redeemed may not be subsequently re-issued under these
Bond Terms;
|
|
|
(i)
|
references to Bonds being “
purchased
” or “
repurchased
” by
the Issuer means that such Bonds may be dealt with by the Issuer as set out in Clause 11.1 (
Issuer’s purchase of Bonds
).
|
|
|
(j)
|
references to persons “
acting in concert
” shall be interpreted pursuant to the
relevant provisions of the Securities Trading Act; and
|
|
|
(k)
|
an Event of Default is “
continuing
” if it has not been remedied or waived.
|
|
|
2.1
|
Amount, denomination and ISIN of the Bonds
|
|
|
(a)
|
The Issuer has resolved to issue a series of Bonds in the maximum amount of USD 200,000,000 (the
“
Maximum Issue Amount
”). The Bonds may be issued on different issue dates and the Initial Bond Issue will be
in the amount of up to USD 150,000,000. The Issuer may, provided that the conditions set out in Clause 6.3 (
Tap Issues
)
are met, at one or more occasions issue Additional Bonds (each a “
Tap Issue
”) until the Nominal Amount of all
Additional Bonds equals in aggregate the Maximum Issue Amount less the Initial Bond Issue. Each Tap Issue will be subject to identical
terms as the Bonds issued pursuant to the Initial Bond Issue in all respects as set out in these Bond Terms, except that Additional
Bonds may be issued at a different price than for the Initial Bond Issue and which may be below or above the Nominal Amount. The
Bond Trustee shall prepare an addendum to these Bond Terms evidencing the terms of each Tap Issue (a “
Tap Issue Addendum
”).
|
|
|
(b)
|
The Bonds are denominated in US Dollars (USD), being the legal currency of the United States of
America.
|
|
|
(c)
|
The Initial Nominal Amount of each Bond is USD 200,000.
|
|
|
(d)
|
The minimum subscription amount and allotment shall be USD 200,000.
|
|
|
(e)
|
The ISIN of the Bonds is NO 001079388.8. All Bonds issued under the same ISIN will have identical
terms and conditions as set out in these Bond Terms.
|
The tenor of the Bonds is from and
including the Issue Date to but excluding the Maturity Date.
The Issuer will use the net proceeds
from the issuance of the Bonds for general corporate purposes.
The Bonds will constitute senior
unsecured debt obligations of the Issuer. The Bonds will rank pari passu between themselves and will rank at least pari passu with
all other senior unsecured obligations of the Issuer (save for such claims which are preferred by bankruptcy, insolvency, liquidation
or other similar laws of general application). The Bonds shall rank ahead of subordinated debt.
The
Bonds will be secured by the Escrow Account Pledge (subject to Clause 6.2(b) and otherwise be unsecured.
|
|
3.1
|
Bond Terms binding on all Bondholders
|
|
|
(a)
|
Upon registration of the Bonds in the CSD, the Bondholders shall be bound by the terms and conditions
of these Bond Terms and any other Finance Document without any further action or formality being required to be taken or satisfied.
|
|
|
(b)
|
The Bond Trustee is always acting with binding effect on behalf of all the Bondholders.
|
|
|
3.2
|
Limitation of rights of action
|
|
|
(a)
|
No Bondholder is entitled to take any enforcement action, instigate any insolvency procedures,
or take other action against the Issuer or any other party in relation to any of the liabilities of the Issuer or any other party
under or in connection with the Finance Documents, other than through the Bond Trustee and in accordance with these Bond Terms,
provided, however, that the Bondholders shall not be restricted from exercising any of their individual rights derived from these
Bond Terms, including the right to exercise the Put Option.
|
|
|
(b)
|
Each Bondholder shall immediately upon request by the Bond Trustee provide the Bond Trustee with
any such documents, including a written power of attorney (in form and substance satisfactory to the Bond Trustee), as the Bond
Trustee deems necessary for the purpose of exercising its rights and/or carrying out its duties under the Finance Documents. The
Bond Trustee is under no obligation to represent a Bondholder which does not comply with such request.
|
|
|
(a)
|
If a beneficial owner of a Bond not being registered as a Bondholder wishes to exercise any rights
under the Finance Documents, it must obtain proof of ownership of the Bonds, acceptable to the Bond Trustee.
|
|
|
(b)
|
A Bondholder (whether registered as such or proven to the Bond Trustee’s satisfaction to
be the beneficial owner of the Bond as set out in paragraph (a) above) may issue one or more powers of attorney to third parties
to represent it in relation to some or all of the Bonds held or beneficially owned by such Bondholder. The Bond Trustee shall only
have to examine the face of a power of attorney or similar evidence of authorisation that has been provided to it pursuant to this
Clause 3.3 (
Bondholders’ rights
) and may assume that it is in full force and effect, unless otherwise is apparent
from its face or the Bond Trustee has actual knowledge to the contrary.
|
The Issuer has
applied, or shall within 6 months of the Issue Date apply, for the Bonds to be admitted to listing on Oslo Børs.
|
|
5.
|
REGISTRATION OF THE BONDS
|
|
|
5.1
|
Registration in the CSD
|
The Bonds shall
be registered in dematerialised form in the CSD according to the relevant securities registration legislation and the requirements
of the CSD.
|
|
5.2
|
Obligation to ensure correct registration
|
The Issuer will
at all times ensure that the registration of the Bonds in the CSD is correct and shall immediately upon any amendment or variation
of these Bond Terms give notice to the CSD of any such amendment or variation.
The Bonds have
not been issued under any other country’s legislation than that of the Relevant Jurisdiction. Save for the registration of
the Bonds in the CSD, the Issuer is under no obligation to register, or cause the registration of, the Bonds in any other registry
or under any other legislation than that of the Relevant Jurisdiction.
|
|
6.
|
CONDITIONS FOR DISBURSEMENT
|
|
|
6.1
|
Conditions precedent for disbursement to the Issuer
|
|
|
(a)
|
Payment of the net proceeds from the issuance of the Bonds into the Escrow Account shall be conditional
on the Bond Trustee having received in due time (as determined by the Bond Trustee) prior to the Issue Date each of the following
documents, in form and substance satisfactory to the Bond Trustee:
|
|
|
(i)
|
these Bond Terms duly executed by all parties thereto;
|
|
|
(ii)
|
the Escrow Account Pledge duly executed by all parties thereto and perfected in accordance with
applicable law;
|
|
|
(iii)
|
certified copies of all corporate resolutions of the Issuer required for the Issuer to issue the
Bonds and execute the Finance Documents to which it is a party;
|
|
|
(iv)
|
a certified copy of a power of attorney from the Issuer to relevant individuals for their execution
of the Finance Documents to which it is a party, or extracts from the relevant register or similar documentation evidencing such
individuals’ authorisation to execute such Finance Documents on behalf of the Issuer;
|
|
|
(v)
|
certified copies of the Issuer's articles of association and of a full extract from the relevant
company register in respect of the Issuer evidencing that the Issuer is validly existing;
|
|
|
(vi)
|
copies of the Parent’s latest Financial Reports ;
|
|
|
(vii)
|
confirmation that the applicable prospectus requirements (set forth in chapter 7 of the Norwegian
Securities Trading Act) have been fulfilled;
|
|
|
(viii)
|
confirmation that the Bonds are registered in the CSD;
|
|
|
(ix)
|
the Bond Trustee Agreement duly signed by all parties thereto;
|
|
|
(x)
|
copies of any written documentation used in marketing the Bonds or made public by the Issuer or
any Manager in connection with the issuance of the Bonds;
|
|
|
(xi)
|
legal opinions as may be required by the Bond Trustee (including in respect of corporate matters
relating to the Issuer and the Guarantor and the legality, validity and enforceability of these Bond Terms and the Finance Documents);
|
|
|
(xii)
|
certified copies of all corporate resolutions of the Parent required for the Parent to approve
and execute the Finance Documents to which it is a party;
|
|
|
(xiii)
|
a certified copy of a power of attorney from the Parent to relevant individuals for their execution
of the Finance Documents to which it is a party, or extracts from the relevant register or similar documentation evidencing such
individuals’ authorisation to execute such Finance Documents on behalf of the Parent;
|
|
|
(xiv)
|
certified copies of the Parent's articles of association and of a full extract from the relevant
company register in respect of the Parent evidencing that the Parent is validly existing; and
|
|
|
(xv)
|
any other Finance Documents duly signed by all parties thereto.
|
|
|
(b)
|
The Bond Trustee, acting in its reasonable discretion, may waive the deadline or the requirements
for documentation set out in this Clause 6.1 (C
onditions precedent for disbursement to the Issuer
), or decide in its discretion
that delivery of any such documents shall be made subject to an agreed closing procedure between the Bond Trustee and the Issuer.
|
|
|
(a)
|
Disbursement of the proceeds from the issuance of the Bonds is conditional on the Bond Trustee’s
confirmation to the Paying Agent that the conditions in Clause 6.1 (
Conditions precedent for disbursement to the Issuer
)
have been either satisfied in the Bond Trustee’s discretion or waived by the Bond Trustee pursuant to paragraph 6.1(b) above.
|
|
|
(b)
|
Disbursement of the net proceeds from the Bond Issue from the Escrow Account to the Issuer in accordance
with Clause 2.3 is subject to the Bond Trustee having received no later than on the Longstop Date,
|
|
|
(i)
|
a release notice substantially in the form as set out in Attachment 2 hereto,
|
|
|
(ii)
|
accompanied by such evidence as specified therein that the Change of Control provision as described
in Clause 10.2 (
Mandatory repurchase due to a Put Option Event
)
juncto
Clause 12 (
Guarantee and Indemnity
)
of the Bond Terms has been approved by a duly convened general assembly of the Parent (item (i) and (ii) the “
Release
Documents
”).
|
On the day of
receipt by the Bond Trustee of the Release Documents, the Escrow Account Pledge shall be discharged and the Escrow Account shall
be released and as of the same date the Issuer shall be entitled to avail itself freely of the net proceeds from the Bond Issue
in accordance with Clause 2.3.
The Issuer may issue Additional
Bonds, always subject to any restrictions on the Issuer`s ability to incur further Financial Indebtedness, if:
|
|
(a)
|
the Bond Trustee has executed a Tap Issue Addendum; and
|
|
|
(b)
|
the representations and warranties contained in Clause 7 (
Representations and Warranties
)
of these Bond Terms are true and correct in all material respects and repeated by the Issuer as at the date of issuance of such
Additional Bonds.
|
|
|
7.
|
REPRESENTATIONS AND WARRANTIES
|
The Issuer makes the representations
and warranties set out in this Clause 7 (
Representations and warranties
), in respect of itself and in respect of each Group
Company to the Bond Trustee (on behalf of the Bondholders) at the following times and with reference to the facts and circumstances
then existing:
|
|
(b)
|
on each date of disbursement of proceeds from the Escrow Account; and
|
|
|
(c)
|
at the date of issuance of any Additional Bonds.
|
All information
which has been presented to the Bond Trustee or the Bondholders in relation to the Bonds is, to the best knowledge of the Issuer,
having taken all reasonable measures to ensure the same:
|
|
(a)
|
true and accurate in all material respects as at the date the relevant information is expressed
to be given; and
|
|
|
(b)
|
does not omit any material information likely to affect the accuracy of the information as regards
the evaluation of the Bonds in any material respects unless subsequently disclosed to the Bond Trustee in writing or otherwise
made publicly known.
|
No Event of Default exists or is
likely to result from the issuance of the Bonds or the entry into, the performance of, or any transaction contemplated by, these
Bond Terms or the other Finance Documents.
|
|
7.3
|
Escrow Account Pledge
|
The entry into
and the granting of the Escrow Account Pledge do not and will not conflict with:
|
|
(a)
|
any law or regulation applicable to it or any other Group Company;
|
|
|
(b)
|
its constitutional documents or those of any other Group Company; or
|
|
|
(c)
|
any agreement or instrument binding upon it or any other Group Company.
|
|
|
8.
|
PAYMENTS IN RESPECT OF THE BONDS
|
|
|
(a)
|
The Issuer will unconditionally make available to or to the order of the Bond Trustee and/or the
Paying Agent all amounts due on each Payment Date pursuant to the terms of these Bond Terms at such times and to such accounts
as specified by the Bond Trustee and/or the Paying Agent in advance of each Payment Date or when other payments are due and payable
pursuant to these Bond Terms.
|
|
|
(b)
|
All payments to the Bondholders in relation to the Bonds shall be made to each Bondholder registered
as such in the CSD at the Relevant Record Date, by, if no specific order is made by the Bond Trustee, crediting the relevant amount
to the bank account nominated by such Bondholder in connection with its securities account in the CSD.
|
|
|
(c)
|
Payment constituting good discharge of the Issuer’s payment obligations to the Bondholders
under these Bond Terms will be deemed to have been made to each Bondholder once the amount has been credited to the bank holding
the bank account nominated by the Bondholder in connection with its securities account in the CSD. If the paying bank and the receiving
bank are the same, payment shall be deemed to have been made once the amount has been credited to the bank account nominated by
the Bondholder in question.
|
|
|
(d)
|
If a Payment Date or a date for other payments to the Bondholders pursuant to the Finance Documents
falls on a day on which either of the relevant CSD settlement system or the relevant currency settlement system for the Bonds are
not open, the payment shall be made on the first following possible day on which both of the said systems are open, unless any
provision to the contrary have been set out for such payment in the relevant Finance Document.
|
|
|
(a)
|
Default interest will accrue on any Overdue Amount from and including the Payment Date on which
it was first due to and excluding the date on which the payment is made at the Interest Rate plus an additional three (3) per cent
per annum.
|
|
|
(b)
|
Default interest accrued on any Overdue Amount pursuant to this Clause 8.2 (
Default interest
)
will be added to the Overdue Amount on each Interest Payment Date until the Overdue Amount and default interest accrued thereon
have been repaid in full.
|
|
|
(a)
|
If the Paying Agent or the Bond Trustee receives a payment that is insufficient to discharge all
amounts then due and payable under the Finance Documents (a “
Partial Payment
”), such Partial Payment shall,
in respect of the Issuer’s debt under the Finance Documents be considered made for discharge of the debt of the Issuer in
the following order of priority:
|
|
|
(i)
|
firstly, towards any outstanding fees, liabilities and expenses of the Bond Trustee (and any Security
Agent);
|
|
|
(ii)
|
secondly, towards accrued interest due but unpaid; and
|
|
|
(iii)
|
thirdly, towards any principal amount due but unpaid.
|
|
|
(b)
|
Notwithstanding paragraph (a) above, any Partial Payment which is distributed to the Bondholders
shall, subject to paragraph (c) below, be applied pro rata pursuant to the procedures of the CSD towards payment of any accrued
interest due but unpaid and of any principal amount due but unpaid.
|
|
|
(c)
|
A Bondholders' Meeting can only resolve that any overdue payment of any instalment will be reduced
if there is a pro rata reduction of the principal that has not fallen due, however, the meeting may resolve that accrued interest
(whether overdue or not) shall be reduced without a corresponding reduction of principal.
|
|
|
(a)
|
Each Obligor is responsible for withholding any withholding tax imposed by applicable law on any
payments to be made by it in relation to the Finance Documents.
|
|
|
(b)
|
Each Obligor shall, if any tax is withheld in respect of the Bonds under the Finance Documents:
|
|
|
(i)
|
gross up the amount of the payment due from it up to such amount which is necessary to ensure that
the Bondholders or the Bond Trustee, as the case may be, receive a net amount which is (after making the required withholding)
equal to the payment which would have been received if no withholding had been required; and
|
|
|
(ii)
|
at the request of the Bond Trustee, deliver to the Bond Trustee evidence that the required tax
deduction or withholding has been made.
|
|
|
(b)
|
Any public fees levied on the trade of Bonds in the secondary market shall be paid by the Bondholders,
unless otherwise provided by law or regulation, and the Issuer shall not be responsible for reimbursing any such fees.
|
|
|
(a)
|
All amounts payable under the Finance Documents shall be payable in the denomination of the Bonds
set out in Clause 2.1 (
Amount, denomination and ISIN of the Bonds
). If, however, the denomination differs from the currency
of the bank account connected to the Bondholder’s account in the CSD, any cash settlement may be exchanged and credited to
this bank account.
|
|
|
(b)
|
Any specific payment instructions, including foreign exchange bank account details, to be connected
to the Bondholder's account in the CSD must be provided by the relevant Bondholder to the Paying Agent (either directly or through
its account manager in the CSD) within five Business Days prior to a Payment Date. Depending on any currency exchange settlement
agreements between each Bondholder’s bank and the Paying Agent, and opening hours of the receiving bank, cash settlement
may be delayed, and payment shall be deemed to have been made once the cash settlement has taken place, provided, however, that
no default interest or other penalty shall accrue for the account of the Issuer for such delay.
|
|
|
8.6
|
Set-off and counterclaims
|
The Issuer may not apply or perform
any counterclaims or set-off against any payment obligations pursuant to these Bond Terms or any other Finance Document.
|
|
9.1
|
Calculation of interest
|
|
|
(a)
|
Each Outstanding Bond will accrue interest at the Interest Rate on the Nominal Amount for each
Interest Period, commencing on and including the first date of the Interest Period, and ending on but excluding the last date of
the Interest Period.
|
|
|
(b)
|
Interest will accrue on the Nominal Amount of any Additional Bond for each Interest Period starting
with the Interest Period commencing on the Interest Payment Date immediately prior to the issuance of the Additional Bonds (or,
if the date of the issuance is not an Interest Payment Date and there is no Interest Payment Date prior to such date of issuance,
starting with the Interest Period commencing on the IssueDate).
|
|
|
(c)
|
Interest shall be calculated on the basis of a 360-day year comprised of twelve months of 30 days
each and, in case of an incomplete month, the actual number of days elapsed (30/360-days basis).
|
Interest shall fall due on each
Interest Payment Date for the corresponding preceding Interest Period and, with respect to accrued interest on the principal amount
then due and payable, on each Repayment Date.
|
|
10.
|
REDEMPTION AND REPURCHASE OF BONDS
|
The Outstanding
Bonds will mature in full on the Maturity Date and shall be redeemed by the Issuer on the Maturity Date at a price equal to 100
per cent of the Nominal Amount.
|
|
10.2
|
Mandatory repurchase due to a Put Option Event
|
|
|
(a)
|
Upon the occurrence of a Put Option Event, each Bondholder will have the right (the “
Put
Option
”) to require that the Issuer purchases all or some of the Bonds held by that Bondholder at a price equal to 101
per cent of the Nominal Amount (plus accrued interest).
|
|
|
(b)
|
The Put Option must be exercised within 30 calendar days after the Issuer has given notice to the
Bond Trustee and the Bondholders that a Put Option Event has occurred pursuant to Clause 13.3 (
Put Option Event
). Once notified,
the Bondholders’ right to exercise the Put Option will not fall away due to subsequent events related to the Issuer.
|
|
|
(c)
|
Each Bondholder may exercise its Put Option by written notice to its account manager for the CSD,
who will notify the Paying Agent of the exercise of the Put Option. The Put Option Repayment Date will be the fifth Business Day
after the end of the 30 calendar days exercise period referred to in paragraph (b) above.
|
|
|
(d)
|
If Bonds representing more than 90 per cent of the Outstanding Bonds have been repurchased pursuant
to this Clause 10.2 (
Mandatory repurchase due to a Put Option Event
), the Issuer is entitled to repurchase all the remaining
Outstanding Bonds at the price stated in paragraph (a) above by notifying the remaining Bondholders of its intention to do so no
later than 20 calendar days after the Put Option Repayment Date. Such prepayment may occur at the earliest on the 15
th
calendar day following the date of such notice.
|
|
|
10.3
|
Mandatory early redemption at the Longstop Date
|
In the event that the condition
precedent set out in Clause 6.2(b) (
Distribution)
has not been fulfilled on or prior to the Longstop Date, the Issuer shall
immediately redeem the Bonds at a price of 100 per cent. of the Nominal Value plus accrued interest, by inter alia applying the
funds deposited on the Escrow Account for such redemption.
|
|
11.
|
PURCHASE AND TRANSFER OF BONDS
|
|
|
11.1
|
Issuer's purchase of Bonds
|
The Issuer may purchase and hold
Bonds and such Bonds may be retained, sold or cancelled in the Issuer's sole discretion, (including with respect to Bonds purchased
pursuant to Clause 10.2 (
Mandatory repurchase due to a Put Option Event
)).
|
|
(a)
|
Certain purchase or selling restrictions may apply to Bondholders under applicable local laws and
regulations from time to time. Neither the Issuer nor the Bond Trustee shall be responsible to ensure compliance with such laws
and regulations and each Bondholder is responsible for ensuring compliance with the relevant laws and regulations at its own cost
and expense.
|
|
|
(b)
|
A Bondholder who has purchased Bonds in breach of applicable restrictions may, notwithstanding
such breach, benefit from the rights attached to the Bonds pursuant to these Bond Terms (including, but not limited to, voting
rights), provided that the Issuer shall not incur any additional liability by complying with its obligations to such Bondholder.
|
|
|
12.
|
GUARANTEE AND INDEMNITY
|
The
Guarantor hereby, irrevocably and unconditionally:
|
|
(a)
|
guarantees to the Bond Trustee (on behalf of the Bondholders) as for its own debt and not merely
as surety (Norwegian:
selvskyldnerkausjon
), the due and punctual performance by the Issuer of all its obligations under
the Finance Documents and accepts that the Bond Trustee may make a demand to the Guarantor for immediate payment of any due and
unpaid amount (interest, principal and/or other) under any Finance Document; and
|
|
|
(b)
|
undertakes with the Bond Trustee (on behalf of the Bondholders) that, whenever the Issuer does
not pay any amount when due under or in connection with any Finance Document, the Guarantor shall, on the Bond Trustee`s first
written demand and in no event any later than 5 Business Days after the Guarantor`s receipt of such demand, pay that amount to
the Bond Trustee or as it directs as if it were the principal obligor in respect of that amount.
|
The Guarantor
hereby waives:
|
|
(a)
|
any requirement that the Bond Trustee or any of the Bondholders in case of any Event of Default
first have to make demand upon or seek to enforce remedies against the Issuer;
|
|
|
(b)
|
any right to exercise a right of subrogation into the rights of the Bondholders under the Bond
Terms, without the prior written consent of the Bond Trustee until such time that no amounts are outstanding under these Bond Terms
and any other Finance Documents;
|
|
|
(c)
|
any right to claim reimbursement from the Issuer and/or itself for payment made hereunder until
such time that no amounts are outstanding under these Bond Terms and any other Finance Document; and
|
|
|
(d)
|
any requirement that additional Security shall be provided or maintained.
|
|
|
12.3
|
Continuing
Guarantee
|
The Guarantee
is a continuing Guarantee and will extend to the ultimate balance of all sums payable by the Issuer under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
|
|
13.
|
INFORMATION UNDERTAKINGS
|
|
|
(a)
|
The Issuer and the Parent shall prepare Annual Financial Statements in the English language and
make them available directly to the Bond Trustee unless published on its website (
https://www.euronav.com
) as soon as they
become available, and not later than 120 days after the end of the financial year, always subject to any exemptions, waivers or
extension granted by Oslo Børs.
|
|
|
(b)
|
The Parent shall prepare Interim Accounts in the English language and make them available directly
to the Bond Trustee unless published on its website (
https://www.euronav.com
) as soon as they become available, and not
later than 60 days after the end of the relevant interim period, always subject to any exemptions, waivers or extension granted
by Oslo Børs.
|
|
|
13.2
|
Requirements as to Financial Reports
|
|
|
(a)
|
The Parent shall supply to the Bond Trustee, in connection with the publication of its Financial
Reports pursuant to Clause 13.1 (b) (
Financial Reports
), however only once for each relevant reporting period, a Compliance
Certificate with a copy of the Financial Report attached thereto. The Compliance Certificate shall be duly signed by an authorised
signatory of the Parent, certifying i.a that the Financial Statements are fairly representing its financial condition as at the
date of those financial statements and setting out (in reasonable detail) computations evidencing compliance with Clause 15 (
Financial
Covenants
) as at such date.
|
|
|
(b)
|
The Parent shall procure that the Financial Reports delivered pursuant to Clause 13.1 (
Financial
Reports
) are prepared (i) in the case of the Issuer, using GAAP consistently applied, and (ii) in the case of the Parent, using
IFRS consistently applied.
|
The Issuer shall inform the Bond
Trustee in writing as soon as possible after becoming aware that a Put Option Event has occurred.
|
|
13.4
|
Information: Miscellaneous
|
The Issuer shall:
|
|
(a)
|
promptly inform the Bond Trustee in writing of any Event of Default or any event or circumstance
which the Issuer understands or could reasonably be expected to understand may lead to an Event of Default (and the steps, if any,
being taken to remedy it);
|
|
|
(b)
|
at the request of the Bond Trustee, report the balance of the Issuer’s Bonds (to the best
of its knowledge, having made due and appropriate enquiries);
|
|
|
(c)
|
send the Bond Trustee copies of any statutory notifications of the Issuer, including but not limited
to in connection with mergers, de-mergers and reduction of the Issuer’s share capital or equity;
|
|
|
(d)
|
if the Bonds are listed on an Exchange, send a copy to the Bond Trustee of its notices to the Exchange;
|
|
|
(e)
|
if the Issuer and/or the Bonds are rated, inform the Bond Trustee of its and/or the rating of the
Bonds, and any changes to such rating;
|
|
|
(f)
|
inform the Bond Trustee of changes in the registration of the Bonds in the CSD; and
|
|
|
(g)
|
within a reasonable time, provide such information about the Issuer’s and the Group’s
business, assets and financial condition as the Bond Trustee may reasonably request.
|
The Parent undertakes to (and shall,
where applicable, procure that the other Group Companies will) comply with the undertakings set forth in this Clause 14 (
General
Undertakings
).
The Parent shall, and shall procure
that each other Group Company will, in all material respects obtain, maintain and comply with the terms of any authorisation, approval,
license and consent required for the conduct of its business as carried out at the date of these Bond Terms if a failure to do
so would have Material Adverse Effect.
The Parent shall:
|
|
(a)
|
not change its or the Issuer's type of organization or jurisdiction of organization; and
|
|
|
(b)
|
ensure that no other Group Company changes its type of organization or jurisdiction of organization,
|
if such change
may have a Material Adverse Effect.
|
|
14.3
|
Compliance with laws
|
The Parent shall, and shall ensure
that each other Group Company shall, carry on its business in accordance with acknowledged, careful and sound practices in all
material aspects and comply in all material respects with all laws and regulations, including any sanction laws and regulations,
it or they may be subject to from time to time (including any environmental laws and regulations).
|
|
14.4
|
Continuation of business
|
The Parent shall not, and shall
procure that no Group Company will, cease to carry on the general nature or scope of its business, if such cessation would have
a Material Adverse Effect. The Parent shall procure that no material change is made to the general nature or scope of the business
of the Group from that carried on at the date of the Bond Terms, or as contemplated by the Bond Terms.
|
|
14.5
|
Mergers and de-mergers
|
The Parent shall
not, and shall procure that no Group Company will:
|
|
(a)
|
carry out any merger or other business combination or corporate reorganization involving consolidating
the assets and obligations of such Group Company with any other company or entity; and/or
|
|
|
(b)
|
carry out any de-merger or other corporate reorganization involving splitting of any Group Company
into two or more separate companies or entities,
|
if such merger,
demerger, combination or reorganisation would have a Material Adverse Effect.
The Parent shall not, and shall
procure that no other Group Company will, sell, transfer or otherwise dispose of all or substantially all of the Group`s assets
(including shares or other securities in any person) or operations if such disposal or sale would have a Material Adverse Effect.
|
|
14.7
|
Subordination of Shareholder Loans
|
The Parent shall ensure that any
existing and future loan provided by any direct or indirect shareholder (having disclosed its shareholding under applicable law
or regulation) of the Parent (a "
Shareholder Loan
") to any Group Company shall be unsecured and fully subordinated
to the Bonds and the Guarantee and otherwise be on arm’s length terms.
|
|
14.8
|
Intra-group transactions
|
All transactions between any Group
Companies shall be on commercial or otherwise customary terms, and shall comply with all provisions of corporate law applicable
to such transactions.
|
|
14.9
|
Transactions with shareholders, directors and affiliated companies
|
The Parent shall ensure that all
transactions between any Group Company and (i) any shareholder thereof not part of the Group (being a shareholder having disclosed
its shareholding under applicable law or regulation), (ii) any director or senior member of management in any Group Company, (iii)
any company in which any Group Company holds more than 10 per cent of the shares, or (iv) any company, person or entity controlled
by or affiliated with any of the foregoing, are entered into on commercial or otherwise customary terms. All such transactions
shall comply with all provisions of corporate law applicable to such transactions.
The Parent shall, promptly upon
becoming aware of them, send the Bond Trustee such relevant details of any:
|
|
(a)
|
litigations, arbitrations or administrative proceedings which have been or might be started by
or against any Group Company and which, if decided adversely is likely to have a Material Adverse Effect; and
|
|
|
(b)
|
other events which have occurred or might occur and which is likely to have a Material Adverse
Effect.
|
|
|
14.11
|
Distribution Restrictions
|
The Parent shall not:
|
|
(a)
|
declare or make any dividend payment or distribution, whether in cash or kind,
|
|
|
(b)
|
repurchase any of its shares or undertake other similar transactions (including, but not limited
to total return swaps related to shares in the Parent), or
|
|
|
(c)
|
grant any loans or make other distributions or transactions constituting a transfer of value to
its shareholders
|
(items (a) –
(c) are collectively referred to as the “
Distributions
”), unless the Parent on a consolidated basis immediately
after such Distributions maintain minimum Free Liquid Assets of USD 100,000,000.
|
|
14.12
|
Subsidiaries and/or joint venture companies` distributions
|
The Parent shall not (and shall
ensure that no Group Company shall) permit any Subsidiary or a joint venture company to create or permit to exist any contractual
obligation or encumbrance (except to the extent required to comply with customary cash waterfall provisions, financial covenants
or other similar restrictions in financing agreements) restricting the right to:
|
|
(a)
|
pay dividends or make other distributions to its shareholders;
|
|
|
(b)
|
service any Financial Indebtedness to a Group Company;
|
|
|
(c)
|
make any loans to a Group Company; or
|
|
|
(d)
|
transfer any of its assets and/or properties to a Group Company,
|
if the creation of such contractual
obligation or encumbrance is reasonably likely to prevent the Issuer or the Parent from complying with its obligations under the
Bond Terms or the Guarantee.
Unless otherwise specified or implied
in these Bond Terms, the Parent shall (and shall ensure that all Group Companies shall) use its best endeavours (hereunder by voting
rights in any capacity) to ensure compliance with the general undertakings as described herein in any joint venture company.
The
Parent shall ensure that its ordinary shares remain listed on the New York Stock Exchange or another recognised stock exchange.
|
|
15.1
|
Financial definition
|
“
Book Equity
”
means the amount of the capital and reserves of the Parent determined on a consolidated basis in accordance with IFRS and as shown
in the Parent’s latest balance sheet.
“
Book Equity Ratio
”
means the ratio of Book Equity to Total Assets.
“
Consolidated Current
Assets
” means the amount of the current assets of the Parent determined on a consolidated basis in accordance with IFRS
and as shown in the Parent’s latest balance sheet and including any amounts available under committed credit lines having
remaining maturities of more than 12 months.
“
Consolidated Current
Liabilities
” means the amount of the current liabilities of the Parent determined on a consolidated basis in accordance
with IFRS and shown in the Parent’s latest balance sheet.
“
Consolidated Working
Capital
” means Consolidated Current Assets less Consolidated Current Liabilities.
“
Free Liquid Assets
”
means, at any relevant time, the aggregate amount of cash and cash equivalents of the Parent determined on a consolidated basis
in accordance with IFRS and as shown in the Parent’s latest balance sheet, but excluding any of those assets subject to a
security interest at any time and, “cash and cash equivalents” shall include any amounts available under committed
credit lines having remaining maturities of more than 6 months.
“
Total Assets
”
means the amount of the total assets of the Parent determined on a consolidated basis in accordance with IFRS and as shown in the
Parent’s latest balance sheet.
“
Total Indebtedness
”
means the amount of long-term debt (including finance leases, bank loans and other long-term debt) and short-term debt of the Parent
determined on a consolidated basis in accordance with IFRS and as shown in the Parent’s latest balance sheet.
The Parent shall comply at all
times with the following:
Free Liquidity
Assets to be not less than the higher of (i) USD 50 000 000 and (ii) 5% of Total Indebtedness.
Book Equity Ratio
to be greater than or equal to 30%.
Consolidated Working Capital shall
be positive.
All financial covenants shall be
calculated on a consolidated basis for the Group in accordance with all applicable laws and IFRS.
|
|
15.3
|
Changes to the accounting requirements
|
Should the IFRS requirements after
the Issue Date materially change so as to impact the financial covenants, the Issuer and the Bond Trustee shall discuss the required
amendments to the financial covenants so at to reflect the aforementioned changes, however always subject to the Bond Trustee`s
approval, or the Bondholders` Meeting`s approval if deemed necessary by the Bond Trustee.
The original IFRS requirements shall
be applicable under these Bond Terms until any amendments have been approved by the Bond Trustee or the Bondholder`s Meeting (as
the case may be).
|
|
16.
|
EVENTS OF DEFAULT AND ACCELERATION OF THE BONDS
|
Each of the events or circumstances
set out in this Clause 16.1 shall constitute an Event of Default:
Any Obligor fails to pay any amount
payable by it under the Finance Documents when such amount is due for payment, unless:
|
|
(i)
|
its failure to pay is caused by administrative or technical error in payment systems or the CSD
and payment is made within five (5) Business Days following the original due date; or
|
|
|
(ii)
|
in the discretion of the Bond Trustee, the Issuer has substantiated that it is likely that such
payment will be made in full within five (5) Business Days following the original due date.
|
|
|
(b)
|
Breach of other obligations
|
An Obligor does not comply with
any provision of the Finance Documents other than set out under paragraph (a) (
Non-payment
) above, unless such failure is
capable of being remedied and is remedied within 20 Business Days after the earlier of the Issuer’s actual knowledge thereof,
or notice thereof is given to the Issuer by the Bond Trustee.
Any representation, warranty or
statement (including statements in Compliance Certificates) made under or in connection with any Finance Documents is or proves
to have been incorrect, inaccurate or misleading in any material respect when made or deemed to have been made, unless the circumstances
giving rise to the misrepresentation are capable of remedy and are remedied within 20 Business Days of the earlier of the Bond
Trustee giving notice to the Issuer or the Issuer becoming aware of such misrepresentation.
If for the Issuer, the Parent and
any other Group Company:
|
|
(i)
|
any Financial Indebtedness is not paid when due nor within any applicable grace period; or
|
|
|
(ii)
|
any Financial Indebtedness is accelerated as a result of an event of default (however described),
|
provided however that the aggregate
amount of such Financial Indebtedness falling within paragraphs (i) or (ii) above exceeds a total of USD 15,000,000 (or the equivalent
thereof in any other currency).
|
|
(e)
|
Insolvency and insolvency proceedings
|
Any Obligor:
|
|
(ii)
|
is object of any corporate action or any legal proceedings is taken in relation to:
|
|
|
(A)
|
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration
or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) other than a solvent liquidation or reorganization;
or
|
|
|
(B)
|
a composition, compromise, assignment or arrangement with any creditor which may materially impair
the Issuer’s ability to perform its obligations under these Bond Terms; or
|
|
|
(C)
|
the appointment of a liquidator (other than in respect of a solvent liquidation), receiver, administrative
receiver, administrator, compulsory manager or other similar officer of any of its assets; or
|
|
|
(D)
|
enforcement of any Security over any of its or their assets having an aggregate value exceeding
the threshold amount set out in paragraph 16.1 (d) (
Cross default
) above;
|
|
|
(E)
|
for (A) - (D) above, any analogous procedure or step is taken in any jurisdiction in respect of
any such company, however this shall not apply to any petition which is frivolous or vexatious and is discharged, stayed or dismissed
within 20 Business Days of commencement.
|
Any expropriation, attachment, sequestration,
distress or execution affects any asset or assets of any Obligor having an aggregate value exceeding the threshold amount set out
in paragraph 16.1 (d) (
Cross (default)
and is not discharged within 20 Business Days.
It is or becomes unlawful for an
Obligor to perform or comply with any of its obligations under the Finance Documents to the extent this may materially impair:
|
|
(i)
|
the ability of such Obligor to perform its obligations under these Bond Terms; or
|
|
|
(ii)
|
the ability of the Bond Trustee or any Security Agent to exercise any material right or power vested
to it under the Finance Documents.
|
|
|
16.2
|
Acceleration of the Bonds
|
If an Event of Default has occurred
and is continuing, the Bond Trustee may, in its discretion in order to protect the interests of the Bondholders, or upon instruction
received from the Bondholders pursuant to Clause 16.3 (
Bondholders’ instructions
) below, by serving a Default Notice:
|
|
(a)
|
declare that the Outstanding Bonds, together with accrued interest and all other amounts accrued
or outstanding under the Finance Documents be immediately due and payable on demand at which time they shall become immediately
due and payable on demand by the Bond Trustee;
|
|
|
(b)
|
declare that the Outstanding Bonds, together with accrued interest and all other amounts accrued
or outstanding under the Finance Documents be immediately due and payable, at which time they shall become immediately due and
payable; and/or
|
|
|
(c)
|
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or
discretions under the Finance Documents or take such further measures as are necessary to recover the amounts outstanding under
the Finance Documents.
|
|
|
16.3
|
Bondholders’ instructions
|
The Bond Trustee shall serve a Default
Notice pursuant to Clause 16.2 (
Acceleration of the Bonds
) if:
|
|
(a)
|
the Bond Trustee receives a demand in writing from Bondholders representing a simple majority of
the Voting Bonds, that an Event of Default shall be declared, and a Bondholders' Meeting has not made a resolution to the contrary;
or
|
|
|
(b)
|
the Bondholders' Meeting, by a simple majority decision, has approved the declaration of an Event
of Default.
|
|
|
16.4
|
Calculation of claim
|
The claim derived from the Outstanding
Bonds due for payment as a result of the serving of a Default Notice will be calculated at the price set out in Clause 10.2
(Mandatory
repurchase due to a Put Option Event)
.
|
|
17.
|
BONDHOLDERS’ DECISIONS
|
|
|
17.1
|
Authority of the Bondholders' Meeting
|
|
|
(a)
|
A Bondholders' Meeting may, on behalf of the Bondholders, resolve to alter any of these Bond Terms,
including, but not limited to, any reduction of principal or interest and any conversion of the Bonds into other capital classes.
|
|
|
(b)
|
The Bondholders' Meeting may not adopt resolutions which will give certain Bondholders an unreasonable
advantage at the expense of other Bondholders.
|
|
|
(c)
|
Subject to the power of the Bond Trustee to take certain action as set out in Clause 18.1 (
Power
to represent the Bondholders
), if a resolution by, or an approval of, the Bondholders is required, such resolution may be passed
at a Bondholders' Meeting. Resolutions passed at any Bondholders' Meeting will be binding upon all Bondholders.
|
|
|
(d)
|
At least 50% of the Voting Bonds must be represented at a Bondholders' Meeting for a quorum to
be present.
|
|
|
(e)
|
Resolutions will be passed by simple majority of the Voting Bonds represented at the Bondholders'
Meeting, unless otherwise set out in paragraph (f) below.
|
|
|
(f)
|
Save for any amendments or waivers which can be made without resolution pursuant to Clause 19.1
(
Procedure for amendments and waivers
) paragraph (a), section (i) and (ii), a majority of at least 2/3 of the Voting Bonds
represented at the Bondholders' Meeting is required for approval of any waiver or amendment of any provisions of these Bond Terms,
including a change of Issuer and change of Bond Trustee.
|
|
|
17.2
|
Procedure for arranging a Bondholders’ Meeting
|
|
|
(a)
|
A Bondholders' Meeting shall be convened by the Bond Trustee upon the request in writing of:
|
|
|
(ii)
|
Bondholders representing at least 1/10 of the Voting Bonds;
|
|
|
(iii)
|
the Exchange, if the Bonds are listed and the Exchange is entitled to do so pursuant to the general
rules and regulations of the Exchange; or
|
The request shall clearly state
the matters to be discussed and resolved.
|
|
(b)
|
If the Bond Trustee has not convened a Bondholders' Meeting within ten (10) Business Days after
having received a valid request for calling a Bondholders’ Meeting pursuant to paragraph (a) above, then the re-questing
party may itself call the Bondholders’ Meeting.
|
|
|
(c)
|
Summons to a Bondholders' Meeting must be sent no later than ten (10) Business Days prior to the
proposed date of the Bondholders' Meeting. The Summons shall be sent to all Bondholders registered in the CSD at the time the Summons
is sent from the CSD. If the Bonds are listed, the Issuer shall ensure that the Summons is published in accordance with the applicable
regulations of the Exchange. The Summons shall also be published on the website of the Bond Trustee (alternatively by press release
or other relevant information platform).
|
|
|
(d)
|
Any Summons for a Bondholders’ Meeting must clearly state the agenda for the Bondholders’
Meeting and the matters to be resolved. The Bond Trustee may include additional agenda items to those requested by the person calling
for the Bondholders’ Meeting in the Summons. If the Summons contains proposed amendments to these Bond Terms, a description
of the proposed amendments must be set out in the Summons.
|
|
|
(e)
|
Items which have not been included in the Summons may not be put to a vote at the Bondholders'
Meeting.
|
|
|
(f)
|
By written notice to the Issuer, the Bond Trustee may prohibit the Issuer from acquiring or dispose
of Bonds during the period from the date of the Summons until the date of the Bondholders' Meeting, unless the acquisition of Bonds
is made by the Issuer pursuant to Clause 10 (
Redemption and Repurchase of Bonds
).
|
|
|
(g)
|
A Bondholders' Meeting may be held on premises selected by the Bond Trustee, or if paragraph (b)
above applies, by the person convening the Bondholders’ Meeting (however to be held in the capital of the Relevant Jurisdiction).
The Bondholders' Meeting will be opened and, unless otherwise decided by the Bondholders' Meeting, chaired by the Bond Trustee.
If the Bond Trustee is not present, the Bondholders' Meeting will be opened by a Bondholder and be chaired by a representative
elected by the Bondholders' Meeting.
|
|
|
(h)
|
Each Bondholder, the Bond Trustee and, if the Bonds are listed, representatives of the Exchange,
or any person or persons acting under a power of attorney for a Bondholder, shall have the right to attend the Bondholders' Meeting
(each a “
Representative
”). The chair of the Bondholders' Meeting may grant access to the meeting to other persons
not being Representatives, unless the Bondholders' Meeting decides otherwise. In addition, each Representative has the right to
be accompanied by an advisor. In case of dispute or doubt with regard to whether a person is a Representative or entitled to vote,
the chair of the Bondholders' Meeting will decide who may attend the Bondholders' Meeting and exercise voting rights.
|
|
|
(i)
|
Representatives of the Issuer have the right to attend the Bondholders' Meeting. The Bondholders
Meeting may resolve to exclude the Issuer’s representatives and/or any person holding only Issuer's Bonds (or any representative
of such person) from participating in the meeting at certain times, however, the Issuer’s representative and any such other
person shall have the right to be present during the voting.
|
|
|
(j)
|
Minutes of the Bondholders' Meeting must be recorded by, or by someone acting at the instruction
of, the chair of the Bondholders' Meeting. The minutes must state the number of Voting Bonds represented at the Bondholders' Meeting,
the resolutions passed at the meeting, and the results of the vote on the matters to be decided at the Bondholders' Meeting. The
minutes shall be signed by the chair of the Bondholders' Meeting and at least one other person. The minutes will be deposited with
the Bond Trustee who shall make available a copy to the Bondholders and the Issuer upon request.
|
|
|
(k)
|
The Bond Trustee will ensure that the Issuer, the Bondholders and the Exchange are notified of
resolutions passed at the Bondholders' Meeting and that the resolutions are published on the website of the Bond Trustee (or other
relevant electronically platform or press release).
|
|
|
(l)
|
The Issuer shall bear the costs and expenses incurred in connection with convening a Bondholders'
Meeting regardless of who has convened the Bondholders’ Meeting, including any reasonable costs and fees incurred by the
Bond Trustee.
|
|
|
(a)
|
Each Bondholder (or person acting for a Bondholder under a power of attorney) may cast one vote
for each Voting Bond owned on the Relevant Record Date, ref. Clause 3.3 (
Bondholders’ rights
). The chair of the Bondholders’
Meeting may, in its sole discretion, decide on accepted evidence of ownership of Voting Bonds.
|
|
|
(b)
|
Issuer's Bonds shall not carry any voting rights. The chair of the Bondholders’ Meeting shall
determine any question concerning whether any Bonds will be considered Issuer's Bonds.
|
|
|
(c)
|
For the purposes of this Clause 17 (
Bondholders’ decisions
), a Bondholder that has
a Bond registered in the name of a nominee will, in accordance with Clause 3.3 (
Bondholders’ rights
), be deemed to
be the owner of the Bond rather than the nominee. No vote may be cast by any nominee if the Bondholder has presented relevant evidence
to the Bond Trustee pursuant to Clause 3.3 (
Bondholders’ rights
) stating that it is the owner of the Bonds voted for.
If the Bondholder has voted directly for any of its nominee registered Bonds, the Bondholder’s votes shall take precedence
over votes submitted by the nominee for the same Bonds.
|
|
|
(d)
|
Any of the Issuer, the Bond Trustee and any Bondholder has the right to demand a vote by ballot.
In case of parity of votes, the chair of the Bondholders’ Meeting will have the deciding vote.
|
|
|
17.4
|
Repeated Bondholders’ Meeting
|
|
|
(a)
|
Even if the necessary quorum set out in paragraph (d) of Clause 17.1 (
Authority of the Bondholders’
Meeting
) is not achieved, the Bondholders’ Meeting shall be held and voting completed for the purpose of recording the
voting results in the minutes of the Bondholders’ Meeting. The Bond Trustee or the person who convened the initial Bondholders'
Meeting may, within ten Business Days of that Bondholders’ Meeting, convene a repeated meeting with the same agenda as the
first meeting.
|
|
|
(b)
|
The provisions and procedures regarding Bondholders’ Meetings as set out in Clause 17.1 (
Authority
of the Bondholders’ Meeting
), Clause 17.2 (
Procedure for arranging a Bondholders’ Meeting
) and Clause 17.3
(
Voting rules
) shall apply
mutatis mutandis
to a repeated Bondholders’ Meeting, with the exception that the
quorum requirements set out in paragraph (d) of Clause 17.1 (
Authority of the Bondholders’ Meeting
) shall not apply
to a repeated Bondholders' Meeting. A Summons for a repeated Bondholders’ Meeting shall also contain the voting results obtained
in the initial Bondholders’ Meeting.
|
|
|
(c)
|
A repeated Bondholders’ Meeting may only be convened once for each original Bondholders’
Meeting. A repeated Bondholders’ Meeting may be convened pursuant to the procedures of a Written Resolution in accordance
with Clause 17.5 (
Written Resolutions
), even if the initial meeting was held pursuant to the procedures of a Bondholders’
Meeting in accordance with Clause 17.2 (
Procedure for arranging a Bondholders’ Meeting
) and vice versa.
|
|
|
(a)
|
Subject to these Bond Terms, anything which may be resolved by the Bondholders in a Bondholders’
Meeting pursuant to Clause 17.1 (
Authority of the Bondholders’ Meeting
) may also be resolved by way of a Written Resolution.
A Written Resolution passed with the relevant majority is as valid as if it had been passed by the Bondholders in a Bondholders’
Meeting, and any reference in any Finance Document to a Bondholders’ Meeting shall be construed accordingly.
|
|
|
(b)
|
The person requesting a Bondholders’ Meeting may instead request that the relevant matters
are to be resolved by Written Resolution only, unless the Bond Trustee decides otherwise.
|
|
|
(c)
|
The Summons for the Written Resolution shall be sent to the Bondholders registered in the CSD at
the time the Summons is sent from the CSD and published at the Bond Trustee’s web site, or other relevant electronic platform
or via press release.
|
|
|
(d)
|
The provisions set out in Clause 17.1 (
Authority of the Bondholders’ Meeting
), 17.2
(
Procedure for arranging a Bondholder’s Meeting
), Clause 17.3 (
Voting Rules
) and Clause 17.4 (
Repeated Bondholders’
Meeting
) shall apply
mutatis mutandis
to a Written Resolution, except that:
|
|
|
(i)
|
the provisions set out in paragraphs (g), (h) and (i) of Clause 17.2 (
Procedure for arranging
Bondholders Meetings
); or
|
|
|
(ii)
|
provisions which are otherwise in conflict with the requirements of this Clause 17.5 (
Written
Resolution
),
|
shall not apply
to a Written Resolution.
|
|
(e)
|
The Summons for a Written Resolution shall include:
|
|
|
(i)
|
instructions as to how to vote to each separate item in the Summons (including instructions as
to how voting can be done electronically if relevant); and
|
|
|
(ii)
|
the time limit within which the Bond Trustee must have received all votes necessary in order for
the Written Resolution to be passed with the requisite majority (the “
Voting Period
”), such Voting Period to
be at least three (3) Business Days but not more than 15 Business Days from the date of the Summons, provided however that the
Voting Period for a Written Resolution summoned pursuant to Clause 17.4 (
Repeated Bondholders’ Meeting
) shall be at
least ten (10) Business Days but not more than 15 Business Days from the date of the Summons.
|
|
|
(f)
|
Only Bondholders of Voting Bonds registered with the CSD on the Relevant Record Date, or the beneficial
owner thereof having presented relevant evidence to the Bond Trustee pursuant to Clause 3.3 (
Bondholders’ rights
),
will be counted in the Written Resolution.
|
|
|
(g)
|
A Written Resolution is passed when the requisite majority set out in paragraph (e) or paragraph
(f) of Clause 17.1 (
Authority of Bondholders’ Meeting
) has been achieved, based on the total number of Voting Bonds,
even if the Voting Period has not yet expired. A Written Resolution may also be passed if the sufficient numbers of negative votes
are received prior to the expiry of the Voting Period.
|
|
|
(h)
|
The effective date of a Written Resolution passed prior to the expiry of the Voting Period is the
date when the resolution is approved by the last Bondholder that results in the necessary voting majority being achieved.
|
|
|
(i)
|
If no resolution is passed prior to the expiry of the Voting Period, the number of votes shall
be calculated at the close of business on the last day of the Voting Period, and a decision will be made based on the quorum and
majority requirements set out in paragraphs (d) to (f) of Clause 17.1(
Authority of Bondholders’ Meeting
).
|
|
|
18.1
|
Power to represent the Bondholders
|
|
|
(a)
|
By virtue of being registered as a Bondholder (directly or indirectly) with the CSD, the Bondholders
are bound by these Bond Terms and any other Finance Document, without any further action required to be taken or formalities to
be complied with. The Bond Trustee has power and authority to act on behalf of, and/or represent, the Bondholders in all matters,
including but not limited to taking any legal or other action, including enforcement of these Bond Terms, and the commencement
of bankruptcy or other insolvency proceedings against the Issuer, or others.
|
|
|
(b)
|
The Issuer shall promptly upon request provide the Bond Trustee with any such documents, information
and other assistance (in form and substance satisfactory to the Bond Trustee), that the Bond Trustee deems necessary for the purpose
of exercising its and the Bondholders’ rights and/or carrying out its duties under the Finance Documents.
|
|
|
18.2
|
The duties and authority of the Bond Trustee
|
|
|
(a)
|
The Bond Trustee shall represent the Bondholders in accordance with the Finance Documents, including,
inter alia, by following up on the delivery of any Compliance Certificates and such other documents which the Issuer is obliged
to disclose or deliver to the Bond Trustee pursuant to the Finance Documents and, when relevant, in relation to accelerating and
enforcing the Bonds on behalf of the Bondholders.
|
|
|
(b)
|
The Bond Trustee is not obligated to assess or monitor the financial condition of the Issuer or
any other Obligor unless to the extent expressly set out in these Bond Terms, or to take any steps to ascertain whether any Event
of Default has occurred. Until it has actual knowledge to the contrary, the Bond Trustee is entitled to assume that no Event of
Default has occurred. The Bond Trustee is not responsible for the valid execution or enforceability of the Finance Documents, or
for any discrepancy between the indicative terms and conditions described in any marketing material presented to the Bondholders
prior to issuance of the Bonds and the provisions of these Bond Terms.
|
|
|
(c)
|
The Bond Trustee is entitled to take such steps that it, in its sole discretion, considers necessary
or advisable to protect the rights of the Bondholders in all matters pursuant to the terms of the Finance Documents. The Bond Trustee
may submit any instructions received by it from the Bondholders to a Bondholders' Meeting before the Bond Trustee takes any action
pursuant to the instruction.
|
|
|
(d)
|
The Bond Trustee is entitled to engage external experts when carrying out its duties under the
Finance Documents.
|
|
|
(e)
|
The Bond Trustee shall hold all amounts recovered on behalf of the Bondholders on separated accounts.
|
|
|
(f)
|
The Bond Trustee will ensure that resolutions passed at the Bondholders' Meeting are properly implemented,
provided, however, that the Bond Trustee may refuse to implement resolutions that may be in conflict with these Bond Terms, any
other Finance Document, or any applicable law.
|
|
|
(g)
|
Notwithstanding any other provision of the Finance Documents to the contrary, the Bond Trustee
is not obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation.
|
|
|
(h)
|
If the cost, loss or liability which the Bond Trustee may incur (including reasonable fees payable
to the Bond Trustee itself) in:
|
|
|
(i)
|
complying with instructions of the Bondholders; or
|
|
|
(ii)
|
taking any action at its own initiative,
|
will not, in
the reasonable opinion of the Bond Trustee, be covered by the Issuer or the relevant Bondholders pursuant to paragraphs (e) and
(g) of Clause 18.4 (Expenses,
liability and indemnity
), the Bond Trustee may refrain from acting in accordance with such
instructions, or refrain from taking such action, until it has received such funding or indemnities (or adequate security has been
provided therefore) as it may reasonably require.
|
|
(i)
|
The Bond Trustee shall give a notice to the Bondholders before it ceases to perform its obligations
under the Finance Documents by reason of the non-payment by the Issuer of any fee or indemnity due to the Bond Trustee under the
Finance Documents.
|
|
|
(j)
|
The Bond Trustee may instruct the CSD to split the Bonds to a lower nominal amount in order to
facilitate partial redemptions, restructuring of the Bonds or other situations.
|
|
|
18.3
|
Equality and conflicts of interest
|
|
|
(a)
|
The Bond Trustee shall not make decisions which will give certain Bondholders an unreasonable advantage
at the expense of other Bondholders. The Bond Trustee shall, when acting pursuant to the Finance Documents, act with regard only
to the interests of the Bondholders and shall not be required to have regard to the interests or to act upon or comply with any
direction or request of any other person, other than as explicitly stated in the Finance Documents.
|
|
|
(b)
|
The Bond Trustee may act as agent, trustee, representative and/or security agent for several bond
issues relating to the Issuer notwithstanding potential conflicts of interest. The Bond Trustee is entitled to delegate its duties
to other professional parties.
|
|
|
18.4
|
Expenses, liability and indemnity
|
|
|
(a)
|
The Bond Trustee will not be liable to the Bondholders for damage or loss caused by any action
taken or omitted by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful
misconduct. The Bond Trustee shall not be responsible for any indirect or consequential loss. Irrespective of the foregoing, the
Bond Trustee shall have no liability to the Bondholders for damage caused by the Bond Trustee acting in accordance with instructions
given by the Bondholders in accordance with these Bond Terms.
|
|
|
(b)
|
Any liability for the Bond Trustee for damage or loss is limited to the amount of the Outstanding
Bonds. The Bond Trustee is not liable for the content of information provided to the Bondholders by or on behalf of the Issuer
or any other person.
|
|
|
(c)
|
The Bond Trustee shall not be considered to have acted negligently if it has:
|
|
|
(i)
|
acted in accordance with advice from or opinions of reputable external experts; or
|
|
|
(ii)
|
acted with reasonable care in a situation when the Bond Trustee considers that it is detrimental
to the interests of the Bondholders to delay any action.
|
|
|
(d)
|
The Issuer is liable for, and will indemnify the Bond Trustee fully in respect of, all losses,
expenses and liabilities incurred by the Bond Trustee as a result of negligence by the Issuer (including its directors, management,
officers, employees and agents) in connection with the performance of the Bond Trustee’s obligations under the Finance Documents,
including losses incurred by the Bond Trustee as a result of the Bond Trustee's actions based on misrepresentations made by the
Issuer in connection with the issuance of the Bonds, the entering into or performance under the Finance Documents, and for as long
as any amounts are outstanding under or pursuant to the Finance Documents.
|
|
|
(e)
|
The Issuer shall cover all costs and expenses incurred by the Bond Trustee in connection with it
fulfilling its obligations under the Finance Documents. The Bond Trustee is entitled to fees for its work and to be indemnified
for costs, losses and liabilities on the terms set out in the Finance Documents. The Bond Trustee's obligations under the Finance
Documents are conditioned upon the due payment of such fees and indemnifications. The fees of the Bond Trustee will be further
set out in the Bond Trustee Agreement.
|
|
|
(f)
|
The Issuer shall on demand by the Bond Trustee pay all costs incurred for external experts engaged
after the occurrence of an Event of Default, or for the purpose of investigating or considering (i) an event or circumstance which
the Bond Trustee reasonably believes is or may lead to an Event of Default or (ii) a matter relating to the Issuer or any of the
Finance Documents which the Bond Trustee reasonably believes may constitute or lead to a breach of any of the Finance Documents
or otherwise be detrimental to the interests of the Bondholders under the Finance Documents.
|
|
|
(g)
|
Fees, costs and expenses payable to the Bond Trustee which are not reimbursed in any other way
due to an Event of Default, the Issuer being Insolvent or similar circumstances pertaining to the Obligors, may be covered by making
an equal reduction in the proceeds to the Bondholders hereunder of any costs and expenses incurred by the Bond Trustee or the Security
Agent in connection therewith. The Bond Trustee may withhold funds from any escrow account (or similar arrangement) or from other
funds received from the Issuer or any other person, irrespectively of such funds being subject to Transaction Security, and to
set-off and cover any such costs and expenses from those funds.
|
|
|
(h)
|
As a condition to effecting any instruction from the Bondholders (including, but not limited to,
instructions set out in Clause 16.3 (
Bondholders’ instructions
) or Clause 17.2 (
Procedure for arranging a Bondholders’
Meeting
)), the Bond Trustee may require satisfactory Security, guarantees and/or indemnities for any possible liability and
anticipated costs and expenses from those Bondholders who have given that instruction and/or who voted in favour of the decision
to instruct the Bond Trustee.
|
|
|
18.5
|
Replacement of the Bond Trustee
|
|
|
(a)
|
The Bond Trustee may be replaced according to the procedures set out in Clause 17 (
Bondholders’
Decision
), and the Bondholders may resolve to replace the Bond Trustee without the Issuer’s approval.
|
|
|
(b)
|
The Bond Trustee may resign by giving notice to the Issuer and the Bondholders, in which case a
successor Bond Trustee shall be elected pursuant to this Clause 18.5 (
Replacement of the Bond Trustee
), initiated by the
retiring Bond Trustee.
|
|
|
(c)
|
If the Bond Trustee is Insolvent, or otherwise is permanently unable to fulfil its obligations
under these Bond Terms, the Bond Trustee shall be deemed to have resigned and a successor Bond Trustee shall be appointed in accordance
with this Clause 18.5 (
Replacement of the Bond Trustee
). The Issuer may appoint a temporary Bond Trustee until a new Bond
Trustee is elected in accordance with paragraph (a) above.
|
|
|
(d)
|
The change of Bond Trustee's shall only take effect upon execution of all necessary actions to
effectively substitute the retiring Bond Trustee, and the retiring Bond Trustee undertakes to co-operate in all reasonable manners
without delay to such effect. The retiring Bond Trustee shall be discharged from any further obligation in respect of the Finance
Documents from the change takes effect, but shall remain liable under the Finance Documents in respect of any action which it took
or failed to take whilst acting as Bond Trustee. The retiring Bond Trustee remains entitled to any benefits under the Finance Documents
before the change has taken place.
|
|
|
(e)
|
Upon change of Bond Trustee the Issuer shall co-operate in all reasonable manners without delay
to replace the retiring Bond Trustee with the successor Bond Trustee and release the retiring Bond Trustee from any future obligations
under the Finance Documents and any other documents.
|
|
|
(a)
|
The Bond Trustee is appointed to act as Security Agent for the Bonds, unless any other person is
appointed. The main functions of the Security Agent may include holding Transaction Security on behalf of the Secured Parties and
monitoring compliance by the Issuer and other relevant parties of their respective obligations under the Transaction Security Documents
with respect to the Transaction Security on the basis of information made available to it pursuant to the Finance Documents.
|
|
|
(b)
|
The Bond Trustee shall, when acting as Security Agent for the Bonds, at all times maintain and
keep all certificates and other documents received by it, that are bearers of right relating to the Transaction Security in safe
custody on behalf of the Bondholders. The Bond Trustee shall not be responsible for or required to insure against any loss incurred
in connection with such safe custody.
|
|
|
(c)
|
Before the appointment of a Security Agent other than the Bond Trustee, the Issuer shall be given
the opportunity to state its views on the proposed Security Agent, but the final decision as to appointment shall lie exclusively
with the Bond Trustee.
|
|
|
(d)
|
The functions, rights and obligations of the Security Agent may be determined by a Security Agent
Agreement to be entered into between the Bond Trustee and the Security Agent, which the Bond Trustee shall have the right to require
each Obligor and any other party to a Finance Document to sign as a party, or, at the discretion of the Bond Trustee, to acknowledge.
The Bond Trustee shall at all times retain the right to instruct the Security Agent in all matters, whether or not a separate Security
Agent Agreement has been entered into.
|
|
|
(e)
|
The provisions set out in Clause 16.4 (Expenses, liability and indemnity)
shall apply mutatis mutandis to any expenses and liabilities of the Security Agent in connection with the Finance Documents.
|
|
|
19.
|
AMENDMENTS AND WAIVERS
|
|
|
19.1
|
Procedure for amendments and waivers
|
The Issuer and
the Bond Trustee (acting on behalf of the Bondholders) may agree to amend the Finance Documents or waive a past default or anticipated
failure to comply with any provision in a Finance Document, provided that:
|
|
(i)
|
such amendment or waiver is not detrimental to the rights and benefits of the Bondholders in any
material respect, or is made solely for the purpose of rectifying obvious errors and mistakes; or
|
|
|
(ii)
|
such amendment or waiver is required by applicable law, a court ruling or a decision by a relevant
authority; or
|
|
|
(iii)
|
such amendment or waiver has been duly approved by the Bondholders in accordance with Clause 17
(
Bondholders’ Decisions
).
|
(b) Any
changes to these Bond Terms necessary or appropriate in connection with the appointment of a Security Agent other than the Bond
Trustee shall be documented in an amendment to these Bond Terms, signed by the Bond Trustee (in its discretion). If so desired
by the Bond Trustee, any or all of the Transaction Security Documents shall be amended, assigned or re-issued, so that the Security
Agent is the holder of the relevant Security (on behalf of the Bondholders). The costs incurred in connection with such amendment,
assignment or re-issue shall be for the account of the Issuer.
|
|
19.2
|
Authority with respect to documentation
|
If the Bondholders
have resolved the substance of an amendment to any Finance Document, without resolving on the specific or final form of such amendment,
the Bond Trustee shall be considered authorised to draft, approve and/or finalise (as applicable) any required documentation or
any outstanding matters in such documentation without any further approvals or involvement from the Bondholders being required.
|
|
19.3
|
Notification of amendments or waivers
|
The Bond Trustee
shall as soon as possible notify the Bondholders of any amendments or waivers made in accordance with this Clause 19 (
Amendments
and waivers
), setting out the date from which the amendment or waiver will be effective, unless such notice obviously is unnecessary.
The Issuer shall ensure that any amendment to these Bond Terms is duly registered with the CSD.
|
|
20.1
|
Limitation of claims
|
All claims under the Finance Documents
for payment, including interest and principal, will be subject to the legislation regarding time-bar provisions of the Relevant
Jurisdiction.
|
|
20.2
|
Access to information
|
|
|
(a)
|
These Bond Terms will be made available to the public and copies may be obtained from the Bond
Trustee or the Issuer. The Bond Trustee will not have any obligation to distribute any other information to the Bondholders or
any other person, and the Bondholders have no right to obtain information from the Bond Trustee, other than as explicitly stated
in these Bond Terms or pursuant to statutory provisions of law.
|
|
|
(b)
|
The Issuer hereby irrevocably appoints each of the Bond Trustee and such persons employed by the
Bond Trustee and the Paying Agent as its attorneys with full power and authority to independently obtain information directly from
the CSD. The Issuer may not revoke any such power of attorney while the Bonds are outstanding unless directed by the Bond Trustee.
The Issuer shall without undue delay issue separate powers of attorney, if so requested by the CSD. In order to carry out its functions
and obligations under these Bond Terms, the Bond Trustee will have access to the relevant information regarding ownership of the
Bonds, as recorded and regulated with the CSD.
|
|
|
(c)
|
The information referred to in paragraph (b) and (c) above may only be used for the purposes of
carrying out their duties and exercising their rights in accordance with the Finance Documents and shall not disclose such information
to any Bondholder or third party unless necessary for such purposes.
|
|
|
20.3
|
Notices, contact information
|
Written notices to the Bondholders
made by the Bond Trustee will be sent to the Bondholders via the CSD with a copy to the Issuer and the Exchange (if the Bonds are
listed). Any such no-tice or communication will be deemed to be given or made via the CSD, when sent from the CSD.
|
|
(a)
|
The Issuer’s written notifications to the Bondholders will be sent to the Bondholders via
the Bond Trustee or through the CSD with a copy to the Bond Trustee and the Exchange (if the Bonds are listed).
|
|
|
(b)
|
Unless otherwise specifically provided, all notices or other communications under or in connection
with these Bond Terms between the Bond Trustee and the Issuer will be given or made in writing, by letter, e-mail or fax. Any such
notice or communication will be deemed to be given or made as follows:
|
|
|
(i)
|
if by letter, when delivered at the address of the relevant party;
|
|
|
(ii)
|
if by e-mail, when received; and
|
|
|
(iii)
|
if by fax, when received.
|
|
|
(c)
|
The Issuer and the Bond Trustee shall each ensure that the other party is kept informed of changes
in postal address, e-mail address, telephone and fax numbers and contact persons.
|
|
|
(d)
|
When determining deadlines set out in these Bond Terms, the following will apply (unless otherwise
stated):
|
|
|
(i)
|
if the deadline is set out in days, the first day of the relevant period will not be included and
the last day of the relevant period will be included;
|
|
|
(ii)
|
if the deadline is set out in weeks, months or years, the deadline will end on the day in the last
week or the last month which, according to its name or number, corresponds to the first day the deadline is in force. If such day
is not a part of an actual month, the deadline will be the last day of such month; and
|
|
|
(iii)
|
if a deadline ends on a day which is not a Business Day, the deadline is postponed to the next
Business Day.
|
|
|
(a)
|
Subject to paragraph (b) below and provided that:
|
|
|
(i)
|
An amount sufficient for the payment of principal and interest on the Outstanding Bonds to the
Maturity Date (including, to the extent applicable, any premium payable upon exercise of the Call Option), and always subject to
paragraph (c) below (the “
Defeasance Amount
”) is credited by the Issuer to an account in a financial institution
acceptable to the Bond Trustee (the “
Defeasance Account
”);
|
|
|
(ii)
|
the Defeasance Account is irrevocably pledged and blocked in favour of the Bond Trustee on such
terms as the Bond Trustee shall request (the “
Defeasance Pledge”
); and
|
|
|
(iii)
|
the Bond Trustee has received such legal opinions and statements reasonably required by it, including
(but not necessarily limited to) with respect to the validity and enforceability of the Defeasance Pledge,
|
then;
|
|
(A)
|
the Issuer will be relieved from its obligations under Clause 13.2 (
Requirements as to Financial
Reports
) paragraph (a), Clause 13.3 (
Put Option Event
), Clause 13.4 (
Information: miscellaneous
) and Clause 14
(
General undertakings
);
|
|
|
(B)
|
any Transaction Security shall be released and the Defeasance Pledge shall be considered replacement
of the Transaction Security; and
|
|
|
(C)
|
any Obligor shall be released from any Guarantee or other obligation applicable to it under any
Finance Document.
|
|
|
(b)
|
The Bond Trustee shall be authorised to apply any amount credited to the Defeasance Account towards
any amount payable by the Issuer under any Finance Document on the due date for the relevant payment until all obligations of the
Issuer and all amounts outstanding under the Finance Documents are repaid and discharged in full.
|
|
|
(c)
|
The Bond Trustee may, if the Defeasance Amount cannot be finally and conclusively determined, decide
the amount to be deposited to the Defeasance Account in its discretion, applying such buffer amount as it deems required.
|
A defeasance
established according to this Clause 18.4 may not be reversed.
|
|
21.
|
GOVERNING LAW AND JURISDICTION
|
These Bond Terms are governed by
the laws of the Relevant Jurisdiction, without regard to its conflict of law provisions.
The Bond Trustee and the Issuer
agree for the benefit of the Bond Trustee and the Bondholders that the City Court of the capital of the Relevant Jurisdiction shall
have jurisdiction with respect to any dispute arising out of or in connection with these Bond Terms. The Issuer agrees for the
benefit of the Bond Trustee and the Bondholders that any legal action or proceedings arising out of or in connection with these
Bond Terms against the Issuer or any of its assets may be brought in such court.
|
|
21.3
|
Alternative jurisdiction
|
Clause 21 (
Governing law and
jurisdiction
) is for the exclusive benefit of the Bond Trustee and the Bondholders and the Bond Trustee have the right:
|
|
(a)
|
to commence proceedings against the Issuer or any other Obligor or their respective assets in any
court in any jurisdiction; and
|
|
|
(b)
|
to commence such proceedings, including enforcement proceedings, in any competent jurisdiction
concurrently.
|
——000——
These Bond Terms have been executed
in three originals, of which the Issuer, the Parent and the Bond Trustee shall retain one each.
SIGNATURES:
|
The Issuer:
|
|
The Bond Trustee:
|
|
|
|
|
|
Euronav Luxembourg S.A.
|
|
Nordic Trustee ASA
|
|
|
|
|
|
/s/ Hugo De Stoop
|
|
/s/ Vivian Trosch
|
|
By: Hugo De Stoop
|
|
By: Vivian Trosch
|
|
|
|
|
|
Position: Director
|
|
Position: Attorney-at-Law
|
|
The Parent and Guarantor:
|
|
|
|
|
|
Euronav NV
|
|
|
|
|
|
/s/ Hugo De Stoop
|
|
|
By: Hugo De Stoop
|
|
|
|
|
|
Position: Member of the Executive Committee
|
|
ATTACHMENT 1
COMPLIANCE CERTIFICATE
[date]
Euronav NV - Senior Unsecured Bond Issue
2017/2022 ISIN [●]
We refer to the Bond Terms for the above captioned
Bonds made between Nordic Trustee ASA as Bond Trustee on behalf of the Bondholders and Euronav Luxembourg SA as Issuer and the
undersigned as Guarantor. Pursuant to Clause 13.2 of the Bond Terms a Compliance Certificate shall be issued in connection with
each delivery of Financial Statements to the Bond Trustee.
This letter constitutes the Compliance Certificate
for the period [●].
Capitalised terms used herein will have the
same meaning as in the Bond Terms.
With reference to Clause 13.2 (
Requirements
as to Financial Reports
) we hereby certify that all information delivered under cover of this Compliance Certificate is true
and accurate and there has been no material adverse change to the financial condition of the Issuer or the Parent since the date
of the last accounts or the last Compliance Certificate submitted to you. Copies of our latest consolidated [Financial Statements]
/ [Interim Accounts] are enclosed.
The Financial Covenants set out in Clause 15
(
Financial Covenants)
are met, please see the calculations and figures in respect of the ratios attached hereto.
We confirm that, to the best of our knowledge,
no Event of Default has occurred or is likely to occur.
Yours faithfully,
Euronav NV
___________________
Name of authorised person
Enclosure: Financial Statements; [and any
other written documentation]
ATTACHMENT 2
RELEASE NOTICE –
ESCROW ACCOUNT
[date]
Dear Sirs,
EURONAV LUXEMBOURG SA – SENIOR UNSECURED
BOND ISSUE 2017/2022 ISIN NO0010793888
We refer to the Bond Terms for the above captioned
Bonds made between Nordic Trustee ASA as Bond Trustee on behalf of the Bondholders and the undersigned as Issuer.
Capitalised terms used herein will have the
same meaning as in the Bond Terms.
This release notice and its enclosure constitute
the Release Documents as defined in Clause 6.2 (b) of the Bond Terms.
We hereby give you notice that we wish to draw
on the first Business Day following the date hereof the net proceeds of the Bond Issue from the Escrow Account, to be applied pursuant
to the purpose set out in the Bond Terms. We hereby request you to confirm that that Escrow Account Pledge has been discharged
and that the bank holding the Escrow Account has been instructed to release the above mentioned funds with effect as of the date
hereof.
We hereby represent and warrant that (i) no
Event of Default has occurred and is continuing or is likely to occur as a result of the release from the Escrow Account, and (ii)
we repeat the representations and warranties set out in the Bond Terms as being still true and accurate in all material respects
at the date hereof.
Yours faithfully,
Euronav Luxembourg S.A.
Public limited liability company (société
anonyme)
25 boulevard Prince Henri
L-1724 Luxembourg
Grand Duchy of Luxembourg
RCS Luxembourg B 51212
_______________
Name of authorized person
Enclosure: a legal opinion issued by the Bond
Trustee`s Belgian counsel certifying that the Change of Control provision as described in Clause 10.2 (
Mandatory repurchase
due to a Put Option Event
)
juncto
Clause 12 (
Guarantee and Indemnity
) of the Bond Terms has been approved by
a duly convened general assembly of the Parent
Exhibit 10.23
AGREEMENT REGARDING THE BOND TRUSTEE’S
FEES (the “Fee Agreement”)
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Issuer:
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Euronav Luxembourg SA
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Bond Trustee:
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Nordic Trustee ASA
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|
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ISIN (the Bonds):
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NO0010793888
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Annual Fee:
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NOK 150 000
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Annual Payment Date:
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May 31
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Date of Agreement:
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30 May 2017
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1.
|
Annual Fee
: The Issuer shall pay the Annual Fee
on the Annual Payment Date as set out in the schedule above. The Annual Fee covers the work related to the establishing and the
supervision of the Bonds according to the bond agreement for the Bonds (the “
Bond Agreement
”). The Annual Fee
is payable in advance and falls due for the first time together with the issue of the Bonds, and subsequently on each Annual Payment
Date. The Annual Fee will be adjusted annually in accordance with the Norwegian Consumer Price Index (the “
CPI
”).
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2.
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Break Fee:
In the event the Bond Agreement or this
Fee Agreement is terminated prior to its original final maturity date, the Bond Trustee may require a fee (the “
Break
Fee
”) as compensation for loss of income, but always limited to one Annual Fee.
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3.
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Security Fee:
If the Bond Trustee according to the
Bond Agreement shall hold security documents or act as security trustee, this may be charged the Issuer separately (the “
Security
Fee
”).
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4.
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Tap Issues:
In connection with any tap issues under the Bond Agreement the Issuer shall pay a
separate fee if an amendment agreement to the Bond Agreement is prepared (the “
Tap
Issue Fee
”). The applicable Tap Issue Fee is published on the website
www.nordictrustee.no
.
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5.
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The Bondholders'
Meeting;
The Issuer will be charged a fixed standard fee for any bondholders’
meeting to be held (the “
Fixed Meeting Fee
”), regardless of who requested
the meeting, except when a bondholders' meeting is requested with the purpose of electing
a new Bond Trustee and this is due to the Bond Trustee's failure to fulfil its duties.
The applicable Fixed Meeting Fee is published on the website
www.nordictrustee.no
.
The Fixed Meeting Fee includes preparation of the standard documents for the meeting,
inter alia the standard formal part of the summons, agenda, notice and minutes and also
includes the use of the premises of the Bond Trustee related to the bondholders’
meeting, and the Bond Trustee's participation at and management of the meeting.
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The Issuer will be billed for any documented
costs which inter alia will include costs related to external meeting facilities, postage and the registry of securities. Any additional
work a bondholders' meeting entails for the Bond Trustee, including any preparation of case documents or any costs related to assistance
from consultants, financial and legal advisors will be charged separately as described in clause 6.
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6.
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Work Fee:
The Issuer shall pay the Bond Trustee for any work (the “
Work Fee
”)
related to extraordinary situations under the Bond Agreement or any other Finance Document
(as defined in the Bond Agreement), such as, but not limited to, requests from the Issuer
regarding waivers or amendment requirements, restructuring processes, enforcements or
any recovery procedures and default situations. The Work Fee will be charged on a case
to case basis, either by an hourly rate or based on an assessed fixed rate for the process.
The applicable hourly rates for Work Fee are published on the website
www.nordictrustee.no
.
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7.
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Costs:
The Issuer shall also cover any documented
cost incurred by the Bond Trustee (the “
Costs
”) which may include inter alia the costs for assistance from
legal advisors related to inter alia the establishment of the Bond Agreement, any security or any part of a restructuring process.
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8.
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Taxes:
The Issuer will be charged any value added
tax (“
VAT
”) or other taxes or duties applicable.
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9.
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Invoice Handling Fee:
All through-invoicing will
be added a handling fee (“
Handling Fee
”) of 2.50% of the invoice amount up to NOK 100 000 and 1.00% of the
part of the invoice amount exceeding NOK 100 000.
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10.
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Termination:
This Fee Agreement terminates without
further notice from any of the parties when all obligations under the Bond Agreement and any other Finance Document and the Fee
Agreement (as defined in the Bond Agreement) are fulfilled, including interest, expenses and any other sums payable thereunder
or subsequent to a bondholders’ meeting decision to appoint a new Bond Trustee.
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11.
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Conflict, dispute resolution and legal venue:
In
case of any conflict between this Fee Agreement and the related Bond Agreement, this Fee Agreement shall have precedence, provided
that this will not infringe the bondholders' rights under the Bond Agreement. This Fee Agreement and all disputes arising out
of, or in connection with this Fee Agreement, between the Bond Trustee and the Issuer shall be governed by Norwegian law. All
disputes arising out of, or in connection with this Fee Agreement, between the Bond Trustee and the Issuer shall be exclusively
resolved by the courts of Norway, with the District Court of Oslo as sole legal venue.
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/s/ Hugo De Stoop
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/s/ Vivian Trosch
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Issuer
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Bond Trustee
|
|
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EuronavLuxemberg S.A.
|
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Vivian Trosch
|
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Public limited liability company (societie anonyme)
|
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Attorney-at-Law
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25 boulevard Prince Henri
|
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L-1724 Luxembourg
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Grand Duchy of Luxembourg
|
|
|
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RCS Luxembourg B 51212
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Exhibit 21.1
Euronav NV Subsidiaries
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Name of Subsidiary
|
|
Jurisdiction of
Incorporation or
Organization
|
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Euronav (UK) Agencies Limited
|
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UK
|
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Euronav Luxembourg SA
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Luxembourg
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Euronav SAS
|
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France
|
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Euronav Ship Management SAS
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France
|
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Euronav Ship Management (Hellas) Ltd.
|
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Liberia
|
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Euronav Hong Kong Limited
|
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Hong Kong
|
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Euronav Singapore Pte. Ltd.
|
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Singapore
|
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E.S.M.C. Euro-Ocean Ship Management (Cyprus) Ltd.
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Cyprus
|
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Euronav Shipping NV
|
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Belgium
|
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Euronav Tankers NV
|
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Belgium
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Fiorano Shipholding Limited
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Hong Kong
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Larvotto Shipholding Limited
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Hong Kong
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Euronav MI Inc.
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Marshall Islands
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Joint ventures
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Kingswood Co. Ltd.
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Marshall Islands
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Seven Seas Shipping Ltd.
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Marshall Islands
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TI Africa Ltd.
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Hong Kong
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TI Asia Ltd.
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Hong Kong
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Tankers (UK) Agencies Ltd.
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UK
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Tankers International Ltd.
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UK
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Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration
Statement on Form F-4 of Euronav NV of our report dated March 13, 2017, relating to the consolidated financial statements of Gener8
Maritime, Inc. and subsidiaries (the “Company”), appearing in the Annual Report on Form 10-K of Gener8 Maritime, Inc.
for the year ended December 31, 2016, and to the reference to us under the heading “Experts” in the Prospectus, which
is part of this Registration Statement.
|
/s/ Deloitte & Touche LLP
|
|
|
|
|
|
New York, New York
|
|
|
February 14, 2018
|
|
Exhibit 23.4
Consent of Independent Registered Public
Accounting Firm
The Board of Directors of Euronav NV:
We consent to the use of our report dated
April 14, 2017, with respect to the consolidated statements of financial position of Euronav NV and subsidiaries as of December
31, 2016 and 2015, and the related consolidated statements of profit or loss, comprehensive income, changes in equity, and cash
flows for each of the years in the three-year period ended December 31, 2016, and the effectiveness of internal control over financial
reporting as of December 31, 2016, incorporated herein by reference and to the reference to our firm under the heading “Experts”
in the registration statement.
/s/ KPMG Bedrijfsrevisoren –
Réviseurs d’Entreprises Burg. CVBA
|
Götwin Jackers
|
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|
Bedrijfsrevisor / Réviseur d’Entreprises
|
|
|
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Brussels, BELGIUM
|
|
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February 14, 2018
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Exhibit 23.5
CONSENT OF NOMINEE FOR DIRECTOR OF EURONAV
NV
I hereby consent to all references to me in
the proxy statement/prospectus included in the registration statement on Form F-4 of Euronav NV, as filed with the U.S.
Securities and Exchange Commission on February 14, 2018.
/s/ Steven D.
Smith
Name: Steven D. Smith
Date: February 14, 2018
Exhibit 23.6
Euronav NV
De Gerlachekaai
20
2000 Antwerpen
Belgium
February 6, 2018
Dear Sir/Madam:
Reference is made to the registration statement
on Form F-4
and the proxy statement and prospectus contained therein
,
including any amendments or supplements thereto (the “Registration Statement”) of Euronav NV (the “Company”).
We hereby consent to all references to our name in the Registration Statement and to the use of the statistical information supplied
by us as set forth in the Registration Statement, including any such information that has been incorporated by reference into the
Registration Statement from the Company’s annual report on Form 20-F for the year ended December 31, 2016 (the “Form
20-F”). We further advise the Company that our role has been limited to the provision of such statistical data supplied by
us. With respect to such statistical data, we advise you that:
(1) we have accurately described the information
and data of the tanker shipping industry, subject to the availability and reliability of the data supporting the statistical and
graphical information presented; and
(2) our methodologies for collecting information
and data may differ from those of other sources and does not reflect all or even necessarily a comprehensive set of the actual
transactions occurring in the tanker shipping industry.
We hereby consent to the filing of this
letter as an exhibit to the Registration Statement to be filed with the U.S. Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, and to any reference to our firm in the Registration Statement.
Yours faithfully,
|
/s/
Nigel Gardiner
|
|
|
Nigel Gardiner
|
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Group Managing Director
|
|
|
Drewry Shipping Consultants Ltd
|
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LONDON | DELHI | SINGAPORE | SHANGHAI
Drewry Shipping Consultants, 15-17 Christopher Street, London
EC2A 2BS, United Kingdom
t
: +44 (0) 20 7538 0191
f
:
+44 (0) 20 7987 9396
e
: enquiries@drewry.co.uk
Registered in England No. 3289135 Registered
VAT No. 830 3017 77
www.drewry.co.uk
Exhibit 23.7
|
Energy Maritime Associates Pte Ltd
E: fps@energymaritimeassociates.com
W: www.energymaritimeassociates.com
|
|
February 7, 2018
Euronav NV
De Gerlachekaai 20
2000 Antwerpen
Belgium
Ladies and Gentlemen:
Reference is made to the registration statement on Form F-4
and the proxy statement and prospectus contained therein, including any amendments or supplements thereto (the “Registration
Statement”) of Euronav NV (the “Company”). We hereby consent to all references to our name in the Registration
Statement and to the use of the statistical information supplied by us set forth in the Registration Statement including any such
information that has been incorporated by reference into the Registration Statement from the Company’s annual report on Form
20-F for the year ended December 31, 2016. We further advise the Company that our role has been limited to the provision of such
statistical data supplied by us. With respect to such statistical data, we advise you that:
(1) we have accurately described the
offshore oil and gas industry, subject to the availability and reliability of the data supporting the statistical and
graphical information presented; and
(2) our methodologies for collecting information and data may
differ from those of other sources and does not reflect all or even necessarily a comprehensive set of the actual transactions
occurring in the offshore oil and gas industry.
We hereby consent to the filing of this letter as an exhibit
to the Registration Statement to be filed with the U.S. Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, and to any references to our firm in the sections of the Registration Statement.
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Yours faithfully,
|
|
|
|
|
|
/s/ David Boggs
|
|
|
Energy Maritime Associates Pte Ltd
|
|
|
David Boggs, Managing Director
|
|
David Boggs
Managing Director
Energy Maritime Associates Pte Ltd
Westech Building, 237 Pandan Loop #08-04,
Singapore 128424
Exhibit 99.1
CONSENT OF UBS SECURITIES LLC
We hereby consent to (i)
the use of our opinion letter dated December 20, 2017 to each of the transaction advisory committee of the Board of Directors and
the Board of Directors of Gener8 Maritime, Inc. (“Gener8“), and its inclusion as Annex C to the proxy statement/prospectus
which forms a part of the Registration Statement on Form F-4 of Euronav NV, as filed by Euronav NV on February 14, 2018 (the “Registration
Statement”), relating to the proposed merger of Gener8 with Euronav NV and Euronav MI Inc. and (ii) the references in the
Registration Statement to such opinion and our firm under the headings “Summary—Opinion of UBS, Gener8’s Financial
Advisor”, “Risk Factors—Risks Related to the Merger”, “The Merger—Background of the Merger”,
“The Merger—Gener8’s Reasons for the Merger; Recommendation of Gener8’s Board of Directors”, “The
Merger—Opinion of UBS, Gener8’s Financial Advisor” and “The Merger—Unaudited Prospective Financial
Information”.
In giving such consent,
we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder, nor do we admit that we are
experts with respect to any part of such Registration Statement within the meaning of the term “Experts” as used in
the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
/s/ UBS SECURITIES LLC
New York, New York
February 14, 2018
Exhibit 99.2
Euronav NV
De Gerlachekaai 20
2000 Antwerpen
Belgium
14
th
February 2018
Ref: cvl/20648-17
Dear Sirs,
Reference is made to the Registration Statement
on Form F-4, including the proxy statement/prospectus contained therein, of Gener8 Maritime Inc (as the same may be amended or
supplemented, the “
Registration Statement
”). We hereby consent to (i) the inclusion in the Registration Statement
of our appraisal report, dated September 26, 2017, valuing 35 of the vessels of Gener8 Maritime Inc as at September 26, 2017, our
appraisal report dated September 21, 2017 valuing 15 of the vessels of Euronav NV as at June 30, 2017 and our appraisal report
dated September 21, 2017 valuing 49 of the vessels of Euronav NV as at September 21, 2017 (the “
Reports
”) and
use in the Registration Statement of any of the information contained in such Reports, and (ii) all references in the Registration
Statement to us, including all references to us as having provided such Reports and information. We further consent to
the
filing of this letter as an exhibit to the Registration Statement. In giving such consent, we do not admit that we are “experts”
within the meaning of the U.S. Securities Act of 1933, as amended, or the rules and regulations of the U.S. Securities and Exchange
Commission thereunder with respect to any part of the Registration Statement.
We further advise that our role has been
limited to the provision of the Reports. With respect to the Reports, we advise you that:
|
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·
|
Valuations may be based on brokers’ estimates or subjective brokers’ opinions (especially
where no comparable ship has been sold recently) supplied to Clarkson Valuations Limited;
|
|
|
·
|
Valuations are prepared with reference to a specific point in time and do not provide a guide to
values on any other date:
|
|
|
·
|
Valuations from other appraisers may vary from ourselves;
|
|
/s/ Michael Garlick
|
|
/s/ Andrew Johnson
|
|
For and on behalf of
|
|
For and on behalf of
|
|
Clarkson Valuations Limited
|
|
Clarkson Valuations Limited
|
|
Name: Michael Garlick
|
|
Name: Andrew Johnson
|
|
Title: Director
|
|
Title: Authorized Signatory
|
Clarkson Valuations Limited
Registered office address: Commodity Quay, St Katharine Docks, London, E1W 1BF, UK. England No 3354934
T: +44 (0) 20 7334 0000 www.clarksons.com
Quality system registered under ISO 9001, Certified
by BSI, Licence Number FS 30573
VAT Number: GB 245 9035 56
Exhibit 99.7
Consent of
VesselsValue.com
We hereby consent to references
in the registration statement on Form F-4 of Euronav NV, as the same may be amended (the “Registration
Statement”) to our two (2) fleet valuations dated December 19, 2017 under the caption “Opinion of UBS,
Gener8’s Financial Advisor – Net Asset Value Analysis” to the joint proxy statement/prospectus contained
in the Registration Statement, and to the inclusion of our valuations therein. In giving such consent, we do not admit that
we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules and regulations of the Securities and Exchange Commission thereunder, nor do we hereby admit that we are experts
with respect to any part of such Registration Statement within the meaning of the term “experts” as used in the
Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
|
VESSELSVALUE.COM
|
|
|
|
|
|
|
By:
|
/s/ Tom Evans
|
|
|
Name:
|
Tom Evans
|
|
|
Title:
|
Director
|
|
|
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Dated: February 14
th
, 2018
|
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