Exhibit 2.1
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Private & Confidential
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Execution version
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EJXM/LN79718
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BD-#21955460-v11
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Dated 2 FEBRUARY 2015
LOGITEL OFFSHORE RIG I PTE. LTD.
(as Borrower)
and
CITIBANK N.A., LONDON BRANCH
and others
(as Facility
Lenders)
and
CITIBANK INTERNATIONAL LIMITED
(as Facility Agent)
and
CITIBANK N.A., LONDON BRANCH
(as Facility Security Trustee)
and
CITIBANK N.A.,
LONDON BRANCH
and others
(as Mandated Lead Arrangers)
and
CITIBANK N.A.,
LONDON BRANCH
(as sole Bookrunner)
and
CITIBANK N.A.,
LONDON BRANCH
(as GIEK Agent)
SECURED TERM
LOAN FACILITY
of up to $150,000,000 in respect
of the floating accommodation unit with hull number N380
Contents
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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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4
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2
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The Loan and its Purposes
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5
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3
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Conditions of Utilisation
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6
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4
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Advance
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7
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5
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Repayment
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8
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6
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Prepayment
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9
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7
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Interest
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11
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8
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Indemnities
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13
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9
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Fees
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17
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10
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Security and Application of Moneys
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18
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11
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Representations and Warranties
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19
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12
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Undertakings and Covenants
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23
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13
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Events of Default
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29
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14
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Assignment and Sub-Participation
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34
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15
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The Facility Agent, the GIEK Agent, the Facility Security Trustee and the Facility Lenders
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37
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16
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Set-Off
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49
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17
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Payments
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50
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18
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Notices
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52
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19
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Partial Invalidity
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54
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20
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Remedies and Waivers
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54
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21
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Miscellaneous
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54
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22
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Law and Jurisdiction
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56
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Schedule 1 Part 1: The Facility Lenders and the Commitments
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57
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Part 2: The MLAs
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59
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Schedule 2
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60
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Part 1: conditions precedent to the Advance
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60
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Part 2: Conditions subsequent
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63
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Schedule 3 Form of Drawdown Notice
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64
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Schedule 4 Form of Transfer Certificate
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65
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Schedule 5 Schedule of Repayment Amounts
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67
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Schedule 6 Definitions
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68
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Schedule 7 Vessel Total Costs
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90
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Schedule 8 Form of Accession Deed
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91
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Schedule 9 Additional Facility Principles
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93
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LOAN AGREEMENT
(this
Agreement
) dated 2 FEBRUARY 2015
BETWEEN:
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(1)
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LOGITEL OFFSHORE RIG I PTE. LTD.,
a private limited company incorporated in Singapore whose registered office is at 435 Orchard Road #11-00,
Wisma Atria, Singapore, 238877 (the
Borrower
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(2)
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The banks and financial institutions listed in Schedule 1, Part 1 as commercial facility lenders, each acting through its office at the
address indicated against its name in Schedule 1, Part 1 (together the
Commercial Facility Lenders
and each a
Commercial Facility Lender
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(3)
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The banks and financial institutions listed in Schedule 1, Part 1 as GIEK facility lenders, each acting through its office at the address indicated
against its name in Schedule 1, Part 1 (together the
GIEK Facility Lenders
and each a
GIEK Facility Lender
);
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(4)
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CITIBANK INTERNATIONAL LIMITED
, acting as Facility Agent (in that capacity the
Facility Agent
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(5)
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The banks listed in Schedule 1, Part 2 acting as mandated lead arrangers (in that capacity the
MLAs
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(6)
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CITIBANK N.A., LONDON BRANCH
, acting as Facility Security Trustee (in that capacity the
Facility Security Trustee
);
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(7)
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CITIBANK N.A., LONDON BRANCH
, acting as sole bookrunner (in that capacity the
Bookrunner
); and
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(8)
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CITIBANK N.A., LONDON BRANCH
, acting as GIEK Agent (in that capacity the
GIEK Agent
).
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WHEREAS:
Each of the Facility Lenders
has agreed to advance to the Borrower its Commitment (aggregating, with all the other Commitments, a term loan facility of up to one hundred and fifty million Dollars ($150,000,000)) for (i) in respect of the GIEK Facility Lenders, financing
part of the Eligible Costs and (ii) in respect of the Commercial Facility Lenders, financing the remainder of the Vessel Total Costs.
IT IS
AGREED
as follows:
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1
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Definitions and Interpretation
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1.1
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In this Agreement unless the context otherwise requires, words and expressions defined in Schedule 6 have the same meanings in this Agreement.
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1.2.1
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words denoting the plural number include the singular and vice versa;
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1.2.2
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words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or
quasi-governmental bodies or authorities and vice versa;
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1.2.3
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references to Recitals, clauses and Schedules are references to recitals (being the paragraph under “Whereas”), clauses and schedules to
or of this Agreement;
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1.2.4
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references to this Agreement include the Recitals and the Schedules;
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1.2.5
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the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the
interpretation of this Agreement;
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1.2.6
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references to any document (including, without limitation, to all or any of the Transaction Documents) are, unless the context otherwise requires,
references to that document as amended, supplemented, novated, entered into or replaced from time to time;
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1.2.7
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references to statutes or provisions of statutes are references to those statutes, or those provisions, as from time to time amended, replaced or
re-enacted;
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1.2.8
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references to any Facility Beneficiary include its successors, transferees and assignees;
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1.2.9
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a time of day (unless otherwise specified) is a reference to London time;
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1.2.10
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references to a
regulation
include any regulation, rule, official directive, requirement, request or guideline (whether or not having the
force of law but if not having the force of law being one with which persons to whom it is addressed or applicable generally comply) of any governmental, intergovernmental or supranational body, agency, authority, department or central bank or any
regulatory, self-regulatory or other authority or organisation;
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1.2.11
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references to
assets
include all or part of any present and future business, undertaking, real property, personal property, uncalled
capital, revenue and any rights of any description (whether actual or contingent, present or future) to receive, or require delivery of, any of the foregoing;
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1.2.12
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guarantee
means any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect,
actual or contingent, to purchase or assume any Indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the
ability of such person to meet its Indebtedness and
guaranteed
shall be construed accordingly;
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1.2.13
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a
law
(1) includes any common law, statue, decree, constitution, regulation, order, judgment or directive of any governmental entity;
(2) includes any treaty, pact, compact or other agreement to which any Government Entity is a signatory or party; (3) includes any judicial or administrative interpretation or application thereof and (4) is a reference to that
provision as amended, substituted or re-enacted; and
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1.2.14
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references to any enactment shall be deemed to include references to such enactment as re-enacted, modified, amended or extended.
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This Agreement supersedes the terms and conditions contained in any correspondence relating to the subject matter of this
Agreement exchanged between any Facility Beneficiary and the Borrower or their representatives prior to the date of this Agreement.
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2
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The Loan and its Purposes
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Subject to the terms of this Agreement:
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2.1.1
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Each of the Commercial Facility Lenders agrees to make available to the Borrower its Commitment of a term loan facility in an aggregate amount not
exceeding the Total Commercial Facility Commitments.
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2.1.2
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Each of the GIEK Facility Lenders agree to make available to the Borrower its Commitment of a term loan facility in an aggregate amount not
exceeding the Total GIEK Facility Commitments.
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2.2
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Facility Beneficiaries’ obligations
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2.2.1
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The obligations of each Facility Beneficiary under the Facility Documents are several. Failure by a Facility Beneficiary to perform its obligations
under the Facility Documents does not affect the obligations of any other party to the Facility Documents. No Facility Beneficiary is responsible for the obligations of any other Facility Beneficiary under the Facility Documents.
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2.2.2
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The rights of each Facility Beneficiary under or in connection with the Facility Documents are separate and independent rights and any debt arising
under the Facility Documents to a Facility Beneficiary from a Security Party shall be a separate and independent debt.
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2.2.3
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A Facility Beneficiary may, except as otherwise stated in the Facility Documents, separately enforce its rights under the Facility Documents,
provided that no Facility Beneficiary acting alone in its capacity as a Facility Lender shall be entitled to declare an Event of Default.
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The Borrower shall apply the Loans for the purposes referred to in the Recital.
No Facility Beneficiary is bound to monitor or verify the application of any amount borrowed under this Agreement.
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3
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Conditions of Utilisation
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3.1
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Conditions precedent to the Advance
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The Facility Lenders will only be obliged to make the Advance if:
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3.1.1
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the Facility Agent (or its duly authorised representative) has received the documents and other evidence listed in Schedule 2, Part 1 of this
Agreement;
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3.1.2
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on the date of the Drawdown Notice and on the proposed Drawdown Date no Default is continuing or would result from the making of the Advance;
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3.1.3
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on the date of the Drawdown Notice and on the proposed Drawdown Date the representations made by the Borrower under clause 11 (other than that in
clauses 11.2, 11.6 and 11.18) are true in all material respects;
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3.1.4
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the amount of the Advance does not exceed the lower of (i) one hundred and fifty million Dollars ($150,000,000) and (ii) seventy per
cent. (70%) of the Vessel Total Costs; and
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3.1.5
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the Total GIEK Facility Commitments do not exceed eighty five per cent. (85%) of the aggregate of the Eligible Costs and the Hiload Eligible
Costs.
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The Facility Lenders will only be obliged to make the Advance if:
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3.2.1
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the proposed Drawdown Date is a Banking Day within the Availability Period;
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3.2.2
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there is no outstanding notice relating to the Facility from GIEK requiring the GIEK Facility Lenders to suspend the making of the Advance; and
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3.2.3
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the GIEK Agent (acting on the instructions of the GIEK Facility Lenders) is satisfied that the GIEK Guarantee is in full force and effect and shall
apply to the Advance.
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For the avoidance of doubt, only one (1) Advance shall be permitted to be
made under the terms of this Agreement and such Advance shall be in accordance with this clause 3.
No Facility Lender shall or shall be under any obligation to advance all or any part of its Commitment after the end of the
Availability Period and any such undrawn Commitments shall be reduced to zero on the last day of the Availability Period.
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3.4
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Conditions subsequent
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It is acknowledged and agreed that the Drawdown Date may occur three (3) Banking Days prior to the Delivery Date. The
Borrower undertakes to deliver or to cause to be delivered to the Facility Agent on, or as soon as reasonably practicable after, the Drawdown Date or, as the case may be, the Delivery Date (or within any time period specified in Schedule 2,
Part 2 of this Agreement) the additional documents and other evidence listed in Schedule 2, Part 2 of this Agreement.
If the Facility Lenders in their sole discretion agree to make the Advance to the Borrower before all of the documents and
evidence required by clause 3.1 have been delivered to or to the order of the Facility Agent, the Borrower undertakes to deliver all outstanding documents and evidence to or to the order of the Facility Agent no later than the date specified by the
Facility Agent, except to the extent expressly waived by the Facility Agent in writing.
The making of the Advance under
this clause 3.5 shall not be taken as a waiver of the Facility Lenders’ right to require production of all the documents and evidence required by clause 3.1.
All documents and evidence delivered to the Facility Agent under this clause 3 shall:
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3.6.1
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be in form and substance reasonably acceptable to the Facility Agent; and
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3.6.2
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if reasonably required by the Facility Agent, be certified, notarised, legalised or attested in a manner acceptable to the Facility Agent.
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Subject to clause 3, the Borrower may request the Advance to be advanced in one amount on any Banking Day prior to the end of
the Availability Period by delivering to the Facility Agent a duly completed Drawdown Notice not more than ten (10) and not fewer than three (3) Banking Days before the proposed Drawdown Date or such shorter period as the Facility Agent
may agree.
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4.2
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Facility Lenders’ participation
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Subject to clauses 2 and 3, the Facility Agent shall promptly notify each Facility Lender of the receipt of the Drawdown Notice
following which each Facility Lender shall advance the proportion which each Facility Lender’s Commitment bears to the Total Commitments, in each case, to the Borrower through the Facility Agent on the Drawdown Date.
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4.3
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Notwithstanding any other provision of a Facility Document to the contrary, if any GIEK Facility Lender or Commercial Facility Lender fails to make
available its participation in the Advance to the Facility Agent, no amount of that Advance shall be made available to the Borrower.
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5.1
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Repayment of the Loan
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The Borrower will, on each Application Date, repay the Loan in an amount equal to the Repayment Amounts relating to that
Application Date, with the amount specified in column (2) of the Schedule of Repayment Amounts being payable for the account of the GIEK Facility Lenders and the amount specified in column (3) of the Schedule of Repayment Amounts being
payable for the account of the Commercial Facility Lenders. The Borrower shall on the Commercial Final Maturity Date repay to the Facility Agent as agent for the Commercial Facility Lenders, the Commercial Final Payment, together with all interest
and all other amounts payable under this Agreement and the Facility Documents due to the Commercial Facility Lenders. The Borrower shall on the GIEK Final Maturity Date repay to the Facility Agent the GIEK Final Payment, together with all interest
and other amounts payable under this Agreement, the Facility Documents and the GIEK Guarantee due to the GIEK Facility Lenders.
No amounts repaid or prepaid under this Agreement may be reborrowed.
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5.3
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Replacement Schedule Repayment Amounts
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5.3.1
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The Original Schedule of Repayment Amounts has been prepared on the basis of the assumptions that:
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(a)
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The first Application Date shall occur six (6) months after the Drawdown Date;
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(b)
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There will be 20 Application Dates between the date hereof and the GIEK Final Maturity Date and there will be 12 Application Dates between the date
hereof and the Commercial Final Maturity Date;
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(c)
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The total amount advanced will be one hundred and fifty million Dollars ($150,000,000); and
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(d)
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The GIEK Facility and the Commercial Facility shall each have a ten (10) year repayment profile.
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5.3.2
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If any or all of the assumptions made in clause 5.3.1 above proves to be incorrect, the Facility Agent shall prepare a Replacement Schedule of
Repayment Amounts as soon as possible, however no later than ten (10) Banking Days following the last day of the Availability Period reflecting the actual facts and circumstances contemplated by those assumptions and such Replacement Schedule
of Repayment Amounts shall (in the absence of manifest error) replace the Original Schedule of Repayment Amounts and shall be the Schedule of Repayment Amounts for all purposes of this Agreement. The Facility Agent shall notify all other parties to
this Agreement (other than the Hedging Providers) of such recalculation and provide to them a copy of the Replacement Schedule of Repayment Amounts.
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5.3.3
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If at any time a prepayment of part of the Loan is made pursuant to the terms of this Agreement, the Facility Agent shall, following such
prepayment, re-calculate the Original Schedule of Repayment Amounts or, as the case may be, any Replacement Schedule of Repayment Amounts and prepare a Replacement Schedule of Repayment Amounts (which, in the absence of manifest error, shall replace
the existing Schedule of Repayment Amounts and shall be the Schedule of Repayment Amounts for all purposes of this Agreement) on the basis that the amount of such prepayment shall be applied in accordance with clause 6.12.4 of this Agreement. The
Facility Agent shall notify all other parties to this Agreement (other than the Hedging Providers) of such recalculation and provide to them a copy of the Replacement Schedule of Repayment Amounts.
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6.1
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Mandatory prepayment of Loan caused by Illegality
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If it becomes unlawful in any applicable jurisdiction for a Facility Lender to fund or maintain its Commitment as contemplated
by this Agreement or to fund or maintain the Loan:
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(a)
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that Facility Lender shall promptly notify the Facility Agent of that event;
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(b)
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upon the Facility Agent notifying the Borrower, the Commitment of that Facility Lender (to the extent not already advanced) will be immediately
cancelled; or
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(c)
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if advanced, the Borrower shall repay that Facility Lender’s Proportionate Share of the Loan on the last day of its current Interest Period
or, if earlier, the date specified by that Facility Lender in the notice delivered to the Facility Agent and notified by the Facility Agent to the Borrower (being no earlier than the last day of any applicable grace period permitted by law) and the
Loan shall be reduced by the amount of that Facility Lender’s Proportionate Share of the Loan. Prior to the date on which repayment is required to be made under this
sub-clause
(c) the affected Facility
Lender shall negotiate in good faith with the Borrower to find an alternative method or lending base in order to maintain its Commitment in the Facility.
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In the event of a sale or disposal of the Vessel, or any sale of (i) the shares in the Borrower, and/or (ii) shares
in the Bareboat Charterer or any interest in such shares, the Total Commitments shall be reduced to zero on the date of such sale or disposal. If any part of the Loan is outstanding the Borrower shall, on the date of the sale or disposal, prepay the
Loan in full together with any other outstanding amounts in relation to the Facility Documents. Any such prepayment shall oblige the Borrower to make payment of all interest and Commitment Fee accrued on the amount so reduced up to and including the
date of reduction together with any Break Costs in respect of such reduced amount if the date of such reduction is not the final day of an Interest Period. Any such reduction of the Total Commitments shall not be reversed.
In the event that the Vessel becomes a Total Loss, on the earlier to occur of (a) the date of receipt of the Total Loss
Proceeds and (b) the date falling one hundred and eighty (180) days after the occurrence of the Total Loss, the Total Commitments shall be reduced to zero. Any such reductions in the Total Commitments shall not be reversed. If any part of
the Loan is outstanding the Borrower shall, on the earlier to occur of (i) the date on which the Borrower receives such Total Loss Proceeds and (ii) the one hundred and eightieth day after the date of such Total Loss occurring, prepay the
Loan in full PROVIDED ALWAYS that if such date is not the final day of an Interest Period, the Borrower may instead place the relevant sum in an account specified by the Facility Agent (acting on the instructions of the Majority Facility Lenders),
charged to the Facility Security Trustee in a manner reasonably acceptable to the Majority Facility Lenders, with an irrevocable instruction to the Facility Agent to apply such sum in prepayment of the Loan on the final day of such Interest Period.
Any such prepayment shall not be reborrowed and clause 8.3 shall apply to any such prepayment.
If:
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(a)
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at a time when all management powers over the business and affairs of TOO are vested in a general partner:
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(i)
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Teekay ceases to own directly or indirectly a minimum of fifty per cent. (50%) of the voting rights in the General Partner; or
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(ii)
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the General Partner ceases to be the general partner of TOO; or
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(b)
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at a time when all management powers over the business and affairs of TOO become vested in a board of directors of TOO, Teekay ceases to own or
does not own, directly or indirectly, a minimum of fifty per cent. (50%) of the voting rights to elect the members of the board of directors of TOO or the voting rights to elect a minimum of fifty per cent. (50%) of the board of directors
of TOO,
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then unless such change of control has been remedied within thirty (30) days of such event
occurring, the Total Commitments shall immediately be reduced to zero and the Borrower shall prepay the Loan in full. Any such reductions in the Total Commitments shall not be reversed.
In the event that the Charter is terminated or the Vessel has not been accepted under the Charter by 15 June 2015, then,
unless a replacement charter is entered into within six (6) months, by the Bareboat Charterer and/or another Subsidiary of the Sponsor acceptable to the Facility Lenders (acting reasonably), on terms reasonably acceptable to the Facility
Lenders, then the Total Commitments shall be immediately reduced to zero and the Borrower shall prepay the Loan in full.
In the event that any Transaction Document or any material provision thereof becomes unlawful, unenforceable or ineffective for
any reason or any of the Facility Security Documents comprising a Security Interest ceases to constitute a valid first priority Security Interest over the asset or property to which it relates, and such unlawfulness, unenforceability,
ineffectiveness or, as the case may be, lack of valid first priority Security Interest is not remedied, if remediable, to the satisfaction of the Facility Agent within thirty (30) days after written notice from the Facility Agent, the Total
Commitments shall be reduced to zero and the Borrower shall prepay the Loan in full.
In the event that the Vessel is abandoned, the Total Commitments shall be reduced to zero and the Borrower shall prepay the
Loan in full.
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6.8
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Termination of GIEK Guarantee
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For so long as a GIEK Facility Lender is a Facility Lender, at any time the GIEK Guarantee ceases to be legal and enforceable
or is cancelled by GIEK for any reason, the Borrower shall, on the date falling thirty (30) days after the date of notice thereof to the Borrower, prepay the Loan in full whereupon each Facility Lender’s Commitment shall be reduced to
zero, unless prior to that time a replacement guarantee is issued by a guarantor acceptable to the GIEK Facility Lenders and which is in form and substance satisfactory to the GIEK Facility Lenders whereupon each GIEK Facility Lender’s
Commitment shall remain unchanged.
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6.9
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Insolvency of Charterer
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In the event that an Insolvency Event occurs in relation to the Charterer then unless a replacement charter is entered into
within one hundred and eighty (180) days by the Bareboat Charterer with a replacement charterer, in each case acceptable to the Facility Agent (acting on the instructions of all the Facility Lenders (acting reasonably)) and GIEK, then the Total
Commitments shall be immediately reduced to zero and the Borrower shall prepay the Loan in full.
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6.10
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Commercial Final Maturity Date
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If the Commercial Final Payment has not been refinanced on terms and conditions satisfactory to the GIEK Agent (acting on the
sole written instructions of GIEK) on or by the date falling two (2) months prior to the Commercial Final Maturity Date, the Borrower shall, if so requested on or by the date falling one (1) month prior to the Commercial Final Maturity
Date by the Facility Agent (acting on the written instructions of GIEK through the GIEK Agent) prepay, on the Commercial Final Maturity Date the GIEK Loan outstanding and owing to the GIEK Facility Lenders and whereupon the Total Commitments shall
be reduced to zero.
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6.11
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Voluntary prepayment of Loan
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6.11.1
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The Borrower may prepay the whole or any part of the Loan (but, if in part, being in a minimum amount of five million Dollars ($5,000,000) such
amount to be in integral multiples of five million Dollars ($5,000,000) or such other amount as may be agreed by the Facility Agent) provided that it gives the Facility Agent not less than thirty (30) days’ prior written notice.
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6.11.2
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If any Facility Lender is a Notified Lender or if the Borrower is required to gross up its payments to a Facility Lender due to a withholding:
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|
|
(a)
|
the Borrower may require that the Commitment of that Facility Lender (to the extent not already advanced) may be immediately cancelled; or
|
|
|
(b)
|
if advanced, the Borrower may repay that Facility Lender’s Proportionate Share of the Loan and the Loan shall be reduced by the amount of that
Facility Lender’s Proportionate Share of the Loan.
|
|
6.11.3
|
If any Facility Lender is a Defaulting Facility Lender, the Borrower may require that the Commitment of that Facility Lender (to the extent not
already advanced) may be immediately cancelled.
|
|
6.12
|
Restrictions and order of application
|
|
6.12.1
|
Any notice of prepayment given under this clause 6 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify
the date or dates upon which the relevant prepayment is to be made and the amount of that prepayment.
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|
6.12.2
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs which shall
be payable pursuant to clause 8.3, without premium or penalty. No amount prepaid shall be reborrowed.
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|
6.12.3
|
If the Facility Agent receives a notice under this clause 6 it shall promptly forward a copy of that notice to the Borrower and/or the Facility
Lenders, as appropriate.
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|
6.12.4
|
The amount of any prepayment (other than a prepayment made in accordance with clauses 6.1, 6.11.2, 6.11.3 and/or 6.8 and/or 6.10) shall be applied
towards prepayment of the Loans in inverse order of maturity of each Loan and on a pro rata basis across each Loan. For the avoidance of doubt, no prepayment fee shall apply.
|
Subject to clause 7.2, each Interest Period shall be for a duration of six (6) months or if elected by the Borrower by
written notice, three (3) months or such other duration as may be agreed by the Facility Agent (acting on the instructions of all the Facility Lenders) and provided in each case that the Facility Lenders have received two (2) Banking Days
prior notice of such alternative duration and that no Interest Period may overrun an Application Date.
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7.2
|
Beginning and end of Interest Periods
|
|
7.2.1
|
The initial Interest Period in respect of the Advance shall commence on the Drawdown Date for the Advance and end on the last day of that Interest
Period selected in accordance with clause 7.1, but so that no Interest Period shall overrun an Application Date.
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|
7.2.2
|
Any other Interest Period in respect of the Loan shall commence on the day following the last day of the previous Interest Period and shall end on
the last day of its current Interest Period selected in accordance with clause 7.1 provided that if an Interest Period would otherwise overrun an Application Date, the last day of that Interest Period shall be that Application Date.
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|
7.3
|
Interest Periods to meet GIEK Final Maturity Date, Commercial Final Maturity Date or Application Date
|
If an Interest Period would otherwise expire after the Commercial Final Maturity Date, the GIEK Final Maturity Date or any
Application Date, that Interest Period shall expire on the Commercial Final Maturity Date, the GIEK Final Maturity Date or Application Date.
If an Interest Period would otherwise end on a day which is not a Banking Day, that Interest Period will instead end on the
next Banking Day in that calendar month (if there is one) or the preceding Banking Day (if there is not).
During each Interest Period interest shall accrue on the Loans at the rate determined by the Facility Agent to be the aggregate
of (a) the applicable Margin and (b) LIBOR.
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7.6
|
Accrual and payment of interest
|
Interest, fees and/or premia shall accrue from day to day, shall be calculated on the basis of a 360 day year and the actual
number of days elapsed (or, in any circumstance where market practice differs, in accordance with the prevailing market practice) and shall be paid by the Borrower to the Facility Agent for the account of the Facility Lenders on the last day of each
Interest Period.
If the Borrower fails to pay any amount payable by it under a Facility Document on its due date, interest shall accrue on the
overdue amount from the due date, subject to any applicable grace period, up to the date of actual payment (both before and after judgment) at a rate which is one point five per cent (1.5%) higher than the rate which would have been payable if
the overdue amount had, during the period of non-payment, constituted the Loan for successive Interest Periods, each selected by the Facility Agent (acting reasonably). Any interest accruing under this clause 7.7 shall be immediately payable by the
Borrower on demand by the Facility Agent. If unpaid, any such interest will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
|
|
(a)
|
If a Market Disruption Event specified in clause 7.8.2(a) occurs in relation to the Loan for any Interest Period, then the rate of interest on each
Facility Lender’s share of the Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
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|
|
(i)
|
the applicable Margin; and
|
|
|
(ii)
|
the rate notified to the Facility Agent by that Facility 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 Facility Lender of funding its participation in the Loan from whatever source it may reasonably select.
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|
|
(b)
|
If a Market Disruption Event specified in clause 7.8.2(b) occurs in relation to the Loan for any Interest Period, then the rate of interest on each
Notified Lender’s share of the Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
|
|
|
(i)
|
the applicable Margin; and
|
|
|
(ii)
|
the rate notified to the Facility Agent by that Notified 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 Notified Lender of funding its participation in the Loan from whatever source it may reasonably select.
|
|
7.8.2
|
In this Agreement
Market Disruption Event
means:
|
|
|
(a)
|
at or about 11.00 am London time two (2) London Banking Days before the first day of the relevant Interest Period neither the Screen Rate nor
the Interpolated Screen Rate is available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for the relevant currency and Interest Period; or
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|
|
(b)
|
before close of business in London two (2) London Banking Days before the first day of the relevant Interest Period, the Facility Agent
receives notifications from a Facility Lender or Facility Lenders (whose participations in the Loan exceed fifty per cent. of the Loan or more) (each a
Notified Lender
) that the cost to it of obtaining matching deposits in the London
interbank market would be in excess of LIBOR.
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|
7.9
|
Alternative basis of interest or funding
|
|
7.9.1
|
If a Market Disruption Event occurs and the Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall enter into
negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
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|
7.9.2
|
Any alternative basis agreed pursuant to clause 7.9.1 above shall:
|
|
|
(a)
|
In the case of a Market Disruption Event specified in clause 7.8.2(a), with the prior consent of all the Facility Lenders and the Borrower, be
binding on all parties; and
|
|
|
(b)
|
In the case of a Market Disruption Event specified in clause 7.8.2(b), with the prior consent of all the Notified Lenders and the Borrower be
binding on all parties (but such alternative basis shall not be applicable to the Facility Lenders which are not Notified Lenders).
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|
7.10
|
Determinations conclusive
|
The Facility Agent shall promptly notify the Borrower of the determination of a rate of interest under this clause 7 and each
such determination shall (save in the case of manifest error) be final and conclusive.
The Borrower will, within fourteen (14) days of the Facility Agent’s written demand, pay the Facility Agent (for the
account of the Facility Beneficiaries and/or GIEK) the amount of all out of pocket costs and expenses (including legal fees reasonably incurred, the cost of obtaining an initial insurance report (and of obtaining further insurance reports only if
there is a material change in the terms of the Insurances or material change in the marine insurance market), and Value Added Tax or any similar or replacement tax if applicable) reasonably incurred by the Facility Beneficiaries and/or GIEK or any
of them in connection with:
|
8.1.1
|
the negotiation, preparation, printing, execution, syndication, administration and registration of the Facility Documents, the GIEK Guarantee and
the Hedging Agreements (whether or not any Facility Document, the GIEK Guarantee or the Hedging Agreement is actually executed or registered and whether or not the Advance is made);
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|
8.1.2
|
any amendment, addendum or supplement to any Facility Document, the GIEK Guarantee or the Hedging Agreement (whether or not completed); and
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|
8.1.3
|
any other document which may at any time be reasonably required by a Facility Beneficiary and/or GIEK to give effect to any Facility Document, the
GIEK Guarantee or the Hedging Agreement or which a Facility Beneficiary and/or GIEK is entitled to call for or obtain under any Facility Document, the GIEK Guarantee or the Hedging Agreement.
|
The Borrower shall indemnify each Facility Beneficiary, by payment to the Facility Agent (for the account of that Facility
Beneficiary) on the Facility Agent’s written demand, against all losses and costs incurred or sustained by that Facility Beneficiary if, for any reason due to a default or other action by the Borrower, the Advance is not made to the Borrower
after the Drawdown Notice has been given to the Facility Agent, or is advanced on a date other than that requested in the Drawdown Notice.
As a result of a Facility Beneficiary receiving any prepayment of all or any part of the Loan (whether pursuant to clause 6 or
otherwise) on a day other than the last day of an Interest Period, or any other payment under or in relation to the Facility Documents on a day other than the due date for payment of the sum in question, the Borrower shall indemnify each Facility
Beneficiary, by payment to the Facility Agent (for the account of that Facility Beneficiary) within three (3) Banking Days of the Facility Agent’s written demand, against all documented costs, losses, premiums or penalties incurred by that
Facility Beneficiary, including (without limitation) the Break Costs, any losses or costs incurred in liquidating or re-employing deposits from third parties acquired to effect or maintain all or any part of the Loan.
In the event of a Facility Beneficiary receiving or recovering any amount payable under a Facility Document in a currency other
than the Currency of Account, and if the amount received or recovered is insufficient when converted into the Currency of Account at the date of receipt to satisfy in full the amount due, the Borrower shall, on the Facility Agent’s written
demand, pay to the Facility Agent for the account of the relevant Facility Beneficiary such further amount in the Currency of Account as is sufficient to satisfy in full the amount due and that further amount shall be due to the Facility Agent on
behalf of the relevant Facility Beneficiary as a separate debt under this Agreement.
|
8.5
|
Increased costs (subject to clause 8.6)
|
If, by reason of any Change in Law:
|
8.5.1
|
a Facility Beneficiary (or the holding company of a Facility Beneficiary) shall be subject to any Tax with respect to payment of all or any part of
the Indebtedness (other than Tax on overall net income); or
|
|
8.5.2
|
the basis of Taxation of payments to a Facility Beneficiary in respect of all or any part of the Indebtedness shall be changed; or
|
|
8.5.3
|
any reserve requirements shall be imposed, modified or deemed applicable against assets held by or deposits in or for the account of or loans by
any branch of a Facility Beneficiary; or
|
|
8.5.4
|
the manner in which a Facility Beneficiary allocates capital resources to its obligations under this Agreement or any ratio (whether cash, capital
adequacy, liquidity or otherwise) which a Facility Beneficiary is required or requested to maintain shall be affected; or
|
|
8.5.5
|
there is imposed on a Facility Beneficiary (or on the holding company of a Facility Beneficiary) by an unconnected third party any other condition
in relation to the Indebtedness or the Facility Documents,
|
and the result of any of the above shall be
to increase the cost to a Facility Beneficiary (or to the holding company of a Facility Beneficiary) of that Facility Beneficiary making or maintaining its Commitment, or to cause a Facility Beneficiary (or to the holding company of a Facility
Beneficiary) to suffer (in its opinion) a material reduction in the rate of return on its overall capital below the level which it reasonably anticipated at the date of this Agreement and which it would have been able to achieve but for its entering
into this Agreement and/or performing its obligations under this Agreement, then, subject to clause 8.6, the Facility Beneficiary affected shall notify the Facility Agent and the Borrower shall from time to time pay to the Facility Agent on demand
for the account of that Facility Beneficiary the amount which shall compensate that Facility Beneficiary (or the relevant holding company) for such additional cost or reduced return. A certificate signed by an authorised signatory of that Facility
Beneficiary setting out the amount of that payment and the basis of its calculation shall be submitted to the Borrower and shall be conclusive evidence of such amount save for manifest error or on any question of law.
|
8.6
|
Exceptions to increased costs
|
Clause 8.5 does not apply to the extent any additional cost or reduced return referred to in that clause is:
|
8.6.1
|
compensated for by a payment made under clause 8.12; or
|
|
8.6.2
|
compensated for by a payment made under clause 17.3; or
|
|
8.6.3
|
attributable to the wilful breach by the relevant Facility Beneficiary (or the holding company of that Facility Beneficiary) of any law or
regulation; or
|
The Borrower shall indemnify each Facility Beneficiary and/or GIEK from time to time, by payment to the Facility Agent (for the
account of that Facility Beneficiary and/or GIEK) on the Facility Agent’s written demand, against all losses and costs incurred or sustained by that Facility Beneficiary and/or GIEK as a consequence of any Event of Default.
The Borrower shall pay to the Facility Agent (for the account of each Facility Beneficiary and/or GIEK) on the Facility
Agent’s written demand the amount of all costs and expenses (including legal fees) incurred by a Facility Beneficiary and/or GIEK in connection with the holding, enforcement of, or the preservation of any rights under, any Facility Document
and/or the GIEK Guarantee including (without limitation) any losses, costs and expenses which that Facility Beneficiary, and/or GIEK may from time to time sustain, incur or become liable for by reason of that Facility Beneficiary and/or GIEK being
mortgagee of the Vessel and/or holder of the Facility Secured Property and/or a lender to the Borrower, or by reason of that Facility Beneficiary and/or GIEK being deemed by any court or authority to be an operator or controller, or in any way
concerned in the operation or control, of the Vessel. No such indemnity will be given where any such loss or cost has occurred due to gross negligence or wilful misconduct on the part of that Facility Beneficiary and/or GIEK; however, this shall not
affect the right of any other Facility Beneficiary and/or GIEK to receive such indemnity.
The Borrower shall pay to the Facility Agent (for the account of each Facility Beneficiary) on the Facility Agent’s
written demand the amount of all sums which a Facility Beneficiary may pay or become actually or contingently liable for on account of the Borrower in connection with the Vessel (whether alone or jointly or jointly and severally with any other
person) including (without limitation) all sums which that Facility Beneficiary may pay or guarantees which it may give in respect of the Insurances, any expenses incurred by that Facility Beneficiary in connection with the maintenance or repair of
the Vessel or in discharging any lien, bond or other claim relating in any way to the Vessel, and any sums which that Facility Beneficiary may pay or guarantees which it may give to procure the release of the Vessel from arrest or detention.
|
8.10.1
|
The Borrower hereby agrees at all times to pay promptly or, as the case may be, indemnify and hold the Facility Beneficiaries, GIEK and the
Affiliates of any Facility Beneficiary, GIEK and each of them and their respective officers, directors, representatives, agents and employees (together the
Indemnified Parties
) harmless on a full indemnity basis from and against each and
every Loss suffered or incurred by or imposed on any Indemnified Party related to or arising out of:
|
|
|
(a)
|
the use of proceeds of the Facility;
|
|
|
(b)
|
the execution and delivery of any commitment letter, engagement letter, fee letter, the Facility Documents or any other document connected
therewith or the performance of the respective obligations thereunder, including without limitation environmental liabilities; or
|
|
|
(c)
|
any claim, action, suit, investigation or proceeding relating to the foregoing or the Security Parties, whether or not any Indemnified Party is a
party thereto or target thereof, or the Indemnified Parties’ roles in connection therewith, and will reimburse the Indemnified Parties, on demand, for all reasonable expenses (including reasonable counsel fees and expenses) as they are incurred
by the Indemnified Parties in connection with investigating, preparing for or defending any such claim, action, suit or proceeding (including any security holder actions or proceeding, inquiry or investigation), whether or not in connection with
pending or threatened litigation in which the Security Parties are a party.
|
|
8.10.2
|
The Borrower will not, however, be responsible for any claims, liabilities, losses, damages or expenses of an Indemnified Party that are finally
judicially determined by a court of competent jurisdiction to have resulted from the wilful misconduct or gross negligence by such Indemnified Party.
|
|
8.10.3
|
The foregoing shall be in addition to any rights that the Indemnified Parties may have at common law or otherwise and shall extend upon the same
terms to and inure to the benefit of any affiliate, director, officer, employee, agent or controlling person of an Indemnified Party.
|
|
8.11
|
Environmental indemnity
|
The Borrower shall indemnify on demand and hold harmless each of the Indemnified Parties in respect of each and every Loss, of
whatever nature (including, without limitation, those arising under Environmental Laws) which may be incurred or made against the Indemnified Parties at any time relating to, or arising directly or indirectly in any manner or for any cause or reason
whatsoever out of an Environmental Claim relating to the Vessel, the Borrower, the Bareboat Charterer and/or the Manager made or asserted against the Indemnified Parties which would or could not have been brought if the Indemnified Parties had not
entered into any of the Facility Documents or been involved in any of the transactions contemplated by the Facility Documents. To the extent that an Indemnified Party would be entitled to recover an Loss under clause 8.10 and/or this clause 8.11,
that Indemnified Party shall not be entitled to recover for that Loss or payment twice.
The Borrower shall pay all Taxes to which all or any part of the Facility Secured Obligations, any Facility Document and/or the
GIEK Guarantee may be at any time subject (other than Tax on a Facility Beneficiary’s and/or GIEK’s overall net income) and shall indemnify the Facility Beneficiaries and GIEK, by payment to the Facility Agent (for the account of the
Facility Beneficiaries and GIEK) on the Facility Agent’s written demand, against all liabilities, costs, claims and expenses resulting from any omission to pay or delay in paying any such Taxes.
The Borrower agrees, and shall procure that the other Security Parties agree, that if GIEK makes a payment to the GIEK Facility
Lenders (whether through the GIEK Agent or otherwise) pursuant to the GIEK Guarantee, the GIEK Facility Lenders (whether through the GIEK Agent or otherwise) may act on the instructions of GIEK and the Security Parties shall have no claims
whatsoever in respect of any loss, damage or expense suffered or incurred by them as a result of actions or lack of actions taken which are consistent with such instruction.
|
9.1.1
|
The Borrower shall pay to the Facility Agent (for the account of the Facility Lenders in proportion to their undrawn Commitments) a commitment fee
at a per annum rate of thirty per cent. (30%) of the applicable Margin on the daily undrawn and uncancelled amount of the Total Commitments accruing from the date of this Agreement until the earlier of (i) the end of the Availability
Period and (ii) the date upon which the Total Commitments are reduced to zero.
|
|
9.1.2
|
The Borrower shall pay to the Facility Agent (for the account of GIEK) a commitment fee at a per annum rate of thirty per cent. (30%) of the
GIEK Premium on the daily undrawn and uncancelled amount of the Total GIEK Facility Commitments accruing from the date of this Agreement until the end of the Availability Period.
|
|
9.1.3
|
The accrued Commitment Fee is payable in arrears on the last day of each successive period of six (6) months commencing from the date of this
Agreement and ending on the earlier of (i) the last day of the Availability Period, and (ii) the date upon which the Total Commitments are reduced to zero.
|
The Borrower shall pay any other fees set out in the Fee Letter in the amount and at the times agreed in the applicable Fee
Letter.
The Borrower shall pay to the Facility Agent an agency fee in the amount and at the times agreed in a Fee Letter.
The Borrower shall pay to the Facility Security Trustee a trustee fee in the amount and at the times agreed in a Fee Letter.
|
9.5.1
|
The Borrower acknowledges that the GIEK Facility Lenders shall procure the issue of the GIEK Guarantee either through the GIEK Agent or directly
with GIEK and shall benefit from it throughout the duration of the Facility Security Period. The Borrower agrees to pay to the Facility Agent (for the account of GIEK) the GIEK Premium on each Interest Payment Date.
|
|
9.5.2
|
The Borrower agrees that its obligation to make the payments set out in clause 9.5.1 to the Facility Agent in respect of the GIEK Premium (or any
part thereof) shall be an absolute obligation and shall not be affected by any matter whatsoever. The GIEK Premium (or any part thereof) shall not be refundable except in accordance with the terms of the GIEK Guarantee and GIEK’s internal
regulations.
|
|
9.5.3
|
The Borrower acknowledges that the amount of the GIEK Premium will be solely determined by GIEK and no Facility Beneficiary is in any way involved
in the determination of the amount of the GIEK Premium and agrees that the Borrower shall have no claim or defence against any Facility Beneficiary in connection with the amount of the GIEK Premium.
|
|
10
|
Security and Application of Moneys
|
|
10.1
|
Facility Security Documents
|
As security for the payment of the Facility Secured Obligations, the Borrower shall execute and deliver to the Facility
Security Trustee or cause to be executed and delivered to the Facility Security Trustee at the relevant time, the following documents in such forms and containing such terms and conditions as the Facility Agent and the Facility Security Trustee
shall require:
|
10.1.1
|
a first priority statutory mortgage over the Vessel together with a collateral deed of covenants;
|
|
10.1.2
|
a first priority deed of assignment of the Insurances, Earnings, Bareboat Charter and Requisition Compensation of the Vessel, and of the benefit of
the Bareboat Charterer Assignment (which includes an assignment of benefits under the Charter);
|
|
10.1.3
|
an irrevocable, unconditional, first priority on demand guarantee and indemnity from TOO;
|
|
10.1.4
|
a first priority charge from the Shareholder over all the shares in the Borrower;
|
|
10.1.5
|
a first priority account charge in respect of the Earnings Account and the Bareboat Charterer Earnings Account (which in both cases will be
unblocked prior to the occurrence of an Event of Default);
|
|
10.1.6
|
the Borrower Security Power of Attorney and the Bareboat Charterer Security Power of Attorney;
|
|
10.1.7
|
a first priority deed of charge over the Hedging Agreements;
|
|
10.1.8
|
if the Manager is not a member of either the TOO Group or Teekay Group, the Manager Undertaking.
|
|
10.2
|
Remittance of Revenue
|
At all times during the Facility Security Period, the Borrower shall procure that all Revenue, Earnings, Insurance Proceeds,
any amounts of cancellation fee or termination fee or other amount payable under or pursuant to the Charter and/or the Bareboat Charter, any amounts of warranty payments payable under or pursuant to the Building Contract and Total Loss Proceeds are
paid to the Earnings Account or the Bareboat Charterer Earnings Account or such other account as the Facility Agent shall from time to time specify by notice in writing to the Borrower.
|
10.3
|
General application of moneys
|
Whilst an Event of Default is continuing unremedied or unwaived the Borrower irrevocably authorises the Facility Agent and the
Facility Security Trustee to apply all sums which either of them may receive:
|
10.3.1
|
pursuant to a sale or other disposition of the Vessel or any right, title or interest in the Vessel; or
|
|
10.3.2
|
by way of payment of any sum in respect of the Insurances, Earnings, Revenue or Requisition Compensation; or
|
|
10.3.3
|
otherwise arising under or in connection with any Facility Document,
|
in or towards satisfaction, or by way of retention on account, of the Facility Secured Obligations, as follows:
|
|
(i)
|
first in payment of all fees, liabilities and expenses of the Facility Security Trustee which are outstanding under a Facility Document;
|
|
|
(ii)
|
secondly, in or towards payment on a pro rata and
pari passu
basis of all fees, liabilities and expenses of the Facility Agent and the GIEK
Agent which are outstanding under a Facility Document;
|
|
|
(iii)
|
thirdly in or towards payment on a
pari passu
and pro rata basis to the Facility Beneficiaries (other than the Hedging Providers) of an
amount equal to the Facility Secured Obligations (but excluding the Hedging Secured Obligations);
|
|
|
(iv)
|
fourthly in or towards payment on a pari passu and pro rata basis to the Hedging Providers of an amount equal to the Hedging Secured Obligations;
|
|
|
(v)
|
the balance, if any, shall be remitted to the Borrower.
|
|
11
|
Representations and Warranties
|
The Borrower represents and warrants to each of the Facility Beneficiaries at the date of this Agreement and (by reference to
the facts and circumstances then pertaining) at the date of the Drawdown Notice, at the Drawdown Date and at each Interest Payment Date as follows (except that the representation and warranty contained at clause 11.2 shall only be made on the date
of this Agreement and the representations and warranties contained at clauses 11.6 and 11.18 shall only be repeated on the Drawdown Date):
|
11.1
|
Status and Due Authorisation
|
Each of the Security Parties is a corporation, limited liability company or limited partnership duly incorporated or formed
under the laws of its jurisdiction of incorporation, organisation or formation (as the case may be) with power to enter into the Facility Documents and to exercise its rights and perform its obligations under the Facility Documents and all corporate
and other action required to authorise its execution of the Facility Documents and its performance of its obligations thereunder has been duly taken.
|
11.2
|
No Deductions or Withholding
|
Under the laws of the Security Parties’ respective jurisdictions of incorporation or formation in force at the date
hereof, none of the Security Parties will be required to make any deduction or withholding from any payment it may make under any of the Facility Documents.
Under the laws of the Security Parties’ respective jurisdictions of incorporation or formation in force at the date
hereof, the Facility Secured Obligations will, to the extent that it exceeds the realised value of any security granted in respect of the Facility Secured Obligations, rank at least
pari passu
with all the Security Parties’ other
unsecured indebtedness save that which is preferred solely by any bankruptcy, insolvency or other similar laws of general application.
In any proceedings taken in any of the Security Parties’ respective jurisdictions of incorporation or formation in
relation to any of the Facility Documents, none of the Security Parties will be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process.
|
11.5
|
Governing Law and Judgments
|
In any proceedings taken in any of the Security Parties’ jurisdiction of incorporation or formation in relation to any of
the Facility Documents in which there is an express choice of the law of a particular country as the governing law thereof, that choice of law and any judgment or (if applicable) arbitral award obtained in that country will be recognised and
enforced.
|
11.6
|
Validity and Admissibility in Evidence
|
As at the Delivery Date, all acts, conditions and things required to be done, fulfilled and performed in order (a) to
enable each of the Security Parties lawfully to enter into, exercise its rights under and perform and comply with the obligations expressed to be assumed by it in the Facility Documents, (b) to ensure that the obligations expressed to be
assumed by each of the Security Parties in the Facility Documents are legal, valid and binding and (c) to make the Facility Documents admissible in evidence in the jurisdictions of incorporation or formation of each of the Security Parties,
have been done, fulfilled and performed save for (i) the Brazilian Certification and Registration Requirements which is a condition subsequent pursuant to Schedule 2, Part 2, paragraph 6 of this Agreement and (ii) the registration of
the relevant Facility Documents at the competent Registry of Deeds and Documents (
Cartório de Registro de Titulos e Documentos
) in Brazil and (iii) registration of particulars of charge created by the relevant Facility Documents
at the Accounting and Corporate Regulatory Authority in Singapore under section 131 of the Companies Act (Chapter 50) of Singapore.
|
11.7
|
Intentionally omitted
|
The obligations expressed to be assumed by each of the Security Parties in the Facility Documents are legal and valid
obligations, binding on each of them in accordance with the terms of the Facility Documents and no limit on any of their powers will be exceeded as a result of the borrowings, granting of security or giving of guarantees contemplated by the Facility
Documents or the performance by any of them of any of their obligations thereunder.
The Borrower has not taken any corporate or limited partnership action nor have any other steps been taken or legal proceedings
been started or (to the best of the Borrower’s knowledge and belief) threatened against the Borrower for its winding-up, dissolution, administration or reorganisation or for the appointment of a receiver, administrator, administrative receiver,
trustee or similar officer of it or of any or all of its assets or revenues which might have a material adverse effect on the business or financial condition of the TOO Group taken as a whole.
|
11.10.1
|
Neither the Borrower nor the TOO Group taken as a whole is unable, or admits or has admitted its inability, to pay its debts or has suspended
making payments in respect of any of its debts.
|
|
11.10.2
|
Neither the Borrower nor the TOO Group taken as a whole has by reason of actual or anticipated financial difficulties, commenced, or intends to
commence, negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
|
11.10.3
|
The value of the assets of each of the Borrower and the TOO Group taken as a whole is not less than the liabilities of such entity or the TOO Group
taken as a whole (as the case may be) (taking into account contingent and prospective liabilities).
|
|
11.10.4
|
No moratorium has been, or may, in the reasonably foreseeable future be, declared in respect of any indebtedness of the Borrower or of the TOO
Group taken as a whole.
|
|
11.11
|
No Material Defaults
|
|
11.11.1
|
Without prejudice to clause 11.11.2, the Borrower is not in breach of or in default under any agreement to which it is a party or which is binding
on it or any of its assets or any Applicable Law to an extent or in a manner which might have a material adverse effect on the business or financial condition of the TOO Group taken as a whole.
|
|
11.11.2
|
No Default is continuing or might reasonably be expected to result from the making of the Advance.
|
|
11.12
|
No Material Proceedings
|
No action or administrative proceeding of or before any court, arbitral body or agency which is not covered by adequate
insurance or which might have a material adverse effect on the business or financial condition of the TOO Group taken as a whole has been started or is reasonably likely to be started.
|
11.13
|
No Obligation to Create Security
|
The execution of the Facility Documents by the Security Parties and their exercise of their rights and performance of their
obligations thereunder will not result in the existence of nor oblige the Borrower to create any Security Interest (other than a Permitted Security Interest) over all or any of their present or future revenues or assets, other than pursuant to the
Facility Security Documents.
The execution of the Facility Documents by each of the Security Parties and their exercise of their rights and performance of
their obligations under any of the Facility Documents do not constitute and will not result in any breach of any agreement or treaty to which any of them is a party.
Each of the Security Parties is or will, on the Delivery Date be, the legal and beneficial owner of all assets and other
property which it purports to charge, mortgage, pledge, assign or otherwise secure pursuant to each Facility Security Document and those Facility Security Documents to which it is a party create and give rise to valid and effective security having
the ranking expressed in those Facility Security Documents.
|
11.16
|
Necessary Authorisations
|
The Necessary Authorisations required by each Security Party are in full force and effect, and each Security Party is in
compliance with the material provisions of each such Necessary Authorisation relating to it and, to the best of its knowledge, none of the Necessary Authorisations relating to it are the subject of any pending or threatened proceedings or
revocation.
Any amount borrowed hereunder, and the performance of the obligations of the Security Parties under the Facility Documents,
will be for the account of members of the TOO Group and will not involve any breach by any of them of any law or regulatory measure relating to “money laundering” as defined in Article 1 of the Directive (2005/60/EEC) of the Council
of the European Communities.
|
11.18
|
Disclosure of material facts
|
|
|
(a)
|
The Borrower is not aware of any material facts or circumstances which:
|
|
|
(i)
|
have not been disclosed to the Facility Agent; and
|
|
|
(ii)
|
if disclosed, might have reasonably been expected to adversely affect the decision of a person considering whether or not to make loan facilities
of the nature contemplated by this Agreement available to the Borrower and/or issue the GIEK Guarantee.
|
|
|
(b)
|
All information provided by any Security Party or member of the TOO Group to any of the Facility Beneficiaries in connection with the Transaction
Documents or the transactions referred to therein is accurate and correct in all material respects at the time it was given or made.
|
The Facility will be used for the purposes specified in the Recital.
|
11.20
|
Anti-Bribery and Corruption
|
The Borrower has conducted and is conducting its business in compliance with all anti-bribery and corruption laws and
anti-money laundering laws, and maintains and is maintaining policies and procedures designed to promote and achieve compliance with such laws.
|
11.21.1
|
Each of the Security Parties is not materially overdue in the filing of any Tax returns and each Security Party is not overdue in the payment of
any amount in respect of Tax of five million Dollars ($5,000,000) (or its equivalent in any other currency) or more, save in the case of Taxes which are being contested on bona fide grounds.
|
|
11.21.2
|
No claims or investigations are being made or conducted against any Security Party with respect to Taxes such that a liability of, or claim
against, any Security Party is reasonably likely to arise.
|
Neither the Borrower, nor any of its Subsidiaries, nor any of its or their respective officers, directors, employees, nor to
the knowledge of the Borrower, any Affiliate, or Security Party:
|
|
(a)
|
is, or is owned or controlled by a person or entity that is, the subject of any trade economic or financial sanction or restrictive measure
administered, enacted or enforced by the Office of Foreign Assets Control of the United States Department of the Treasury, the United States Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury
and/or other relevant sanctions authority (each a
Sanction
); or
|
|
|
(b)
|
is located, organised or residing in any country or territory to the extent that such country or territory itself is, or government is, the subject
of any Sanction (each a
Restricted Jurisdiction
); or
|
|
|
(c)
|
has engaged or is engaging in any trade, business or other activities which is in breach of any sanction.
|
Neither the Loan, nor the proceeds from the Loan, has been or shall be used, directly or (to the knowledge of the Borrower)
indirectly, to lend, contribute, provide or has otherwise made available to fund any activity or business in any Restricted Jurisdiction or to fund any activity or business or any person, vessel or entity located, organised or residing in any
Restricted Jurisdiction or who is the subject of any Sanction, or in any other manner that will result in any violation by any person (including but not limited to any Facility Beneficiary) of any Sanction.
|
11.23
|
Representations Limited
|
The representation and warranties of the Borrower in this clause 11 are subject to:
|
11.23.1
|
the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court;
|
|
11.23.2
|
the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and
other laws generally affecting or limiting the rights of creditors;
|
|
11.23.3
|
the time barring of claims under any applicable limitation acts;
|
|
11.23.4
|
the possibility that a court may strike out provisions for a contract as being invalid for reasons of oppression, undue influence or similar; and
|
|
11.23.5
|
any other reservations or qualifications of law expressed in any legal opinions obtained by the Facility Agent in connection with the Facility.
|
|
12
|
Undertakings and Covenants
|
The undertakings and covenants in this clause 12 remain in force for the duration of the Facility Security Period.
|
12.1
|
General Undertakings
|
|
12.1.1
|
Financial statements
|
The Borrower shall supply to the Facility Agent as soon as the same become available, but in any event within one hundred and
eighty (180) days after the end of each of its financial years, its audited unconsolidated financial statements for that financial year, prepared in accordance with GAAP, and cashflows.
|
12.1.2
|
Interim financial statements
|
The Borrower shall supply to the Facility Agent as soon as the same become available, but in any event within one hundred and
twenty (120) days after the end of each half financial year ending 30 June, its unaudited semi-annual unconsolidated financial statements for that fiscal half financial year, signed by a duly authorised representative of the Borrower, and
cashflows.
|
12.1.3
|
Maintenance of Legal Validity
|
The Borrower shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect:
|
|
(a)
|
all authorisations, approvals, licences and consents required in or by the laws and regulations of its jurisdiction of formation and all other
applicable jurisdictions, to enable it lawfully to enter into and perform its obligations under the Facility Documents and to ensure the legality, validity, enforceability or admissibility in evidence of the Facility Documents in its jurisdiction of
incorporation or organisation and all other applicable jurisdictions; and
|
|
|
(b)
|
the Earnings Account.
|
|
12.1.4
|
Notification of Event of Default
|
The Borrower shall promptly, upon becoming aware of the same, inform the Facility Agent in writing of the occurrence of any
Event of Default and, upon receipt of a written request to that effect from the Facility Agent, confirm to the Facility Agent that, save as previously notified to the Facility Agent or as notified in such confirmation, no Event of Default has
occurred.
|
12.1.5
|
Other notifications
|
The Borrower shall promptly, upon becoming aware of the same, inform the Facility Agent in writing of any Environmental Claim
pending or made against it or any of its Environmental Affiliates or in connection with the Vessel.
The Borrower shall ensure that at all times the claims of the Facility Beneficiaries against it under the Facility Documents
rank at least pari passu with the claims of all its other unsecured creditors save those whose claims are preferred by any bankruptcy, insolvency, liquidation, winding-up or other similar laws of general application.
|
12.1.7
|
Management of Vessel
|
The Borrower shall ensure that the Vessel is at all times technically and commercially managed by the Manager in accordance
with good industry standards.
The Borrower shall ensure that the Vessel maintains the highest classification required for the purpose of the relevant trade
of the Vessel which shall be with a Classification Society free from any overdue recommendations and conditions affecting the Vessel’s class.
The Borrower shall ensure that the only entity operating the Vessel shall be (i) the Manager or (ii) another person
acceptable to the Facility Agent (acting on the instructions of all the Lenders and GIEK, each acting reasonably) which has become a party to the Management Agreement.
The Borrower shall (and shall procure that each of its Subsidiaries shall) comply with all Sanctions.
The Borrower understands that the Facility Lenders – be it due to applicable laws, sanctions or internal rules and
regulations, are prohibited from conducting transactions, including finance transactions, with the government of or any person or entity owned or controlled by the government of a Restricted Jurisdiction (as such term is defined in clause 11.22 of
this Agreement), or Restricted Persons.
The Borrower shall, and shall procure that each Security Party shall not transfer,
lend, contribute, make use of or provide, directly or indirectly, the benefits of any money, proceeds or services provided by or received from the Facility Lenders to any Restricted Persons or conduct any business activity (such as entering into any
ship acquisition agreement, any ship refinancing agreement and/or any charter agreement) related to a vessel, project asset or otherwise which is the subject of Sanctions or for which money, proceeds or services have been received from the Facility
Lenders with any Restricted Persons or in any other manner which would reasonably be expected to result in any person (including but not limited to any Facility Beneficiary) being in breach of Sanctions or becoming a Restricted Person.
The Borrower shall, and shall procure that each Security Party shall, not fund
all or part of any payment in connection with a Facility Document out of proceeds derived from business or transaction with a Restricted Person or from any action which is in breach of any Sanction.
In this clause 12.1.10,
Restricted Persons
means persons, vessels, entities or any other parties: (i) located,
domiciled, resident or incorporated in a Restricted Jurisdiction; (ii) subject to any Sanction (as such term is defined in clause 11.22 of this Agreement); and/or (iii) owned or controlled by or affiliated with persons, entities or any
other parties as referred to in (i) and (ii).
The Borrower shall provide to the Facility Agent on an annual basis the budget outlining (i) the capital expenditure
requirements for the immediately following period of twelve (12) months including commentary on any technical issues, downtime and operational record and (ii) such capital expenditure should not exceed ten millions Dollars (US$10,000,000)
per annum unless any excess is funded by further equity or debt provided to the Borrower in accordance with the terms of clause 12.1.25(a).
The Borrower shall not create, or permit to subsist, any Security Interest over all or any part of its assets (including but
not limited to the Vessel and the Insurances) other than a Permitted Security Interest.
The Borrower shall not for the duration of the Facility Security Period change or permit a change to the flag of the Vessel
other than to a Flag State and/or bring its centre of main interests into the European Union or any country with which a Facility Lender is prohibited from doing business and which has been notified to the Facility Agent.
|
12.1.14
|
ISM and ISPS Compliance
|
With effect from seven (7) days of the Drawdown Date, the Borrower shall comply in all material respects with the ISM Code
and the ISPS Code or any replacements thereof and in particular (without prejudice to the generality of the foregoing) shall procure that the Manager holds (i) a valid and current DOC issued pursuant to the ISM Code and (ii) a valid and
current SMC issued in respect of the Vessel pursuant to the ISM Code and the Borrower shall within seven (7) days of the Delivery Date and promptly, upon request by the Facility Agent (acting on the instructions of the Majority Facility
Lenders or GIEK), supply the Facility Agent with copies of the same.
|
12.1.15
|
Necessary Authorisations
|
Without prejudice to any specific provision of the Facility Documents relating to an Authorisation, the Borrower shall
(i) obtain, comply with and do all that is necessary to maintain in full force and effect all Necessary Authorisations if a failure to do the same may cause a Material Adverse Effect; and (ii) promptly upon request, supply certified copies
to the Facility Agent of all Necessary Authorisations.
|
12.1.16
|
Compliance with Applicable Laws
|
The Borrower, and parties acting on its behalf, shall comply with (i) all material provisions of all applicable laws to
which it may be subject (including, but not limited to, Environmental Laws, anti-bribery and corruption laws and anti-money laundering laws), (ii) Sections 276a to 276c of the Norwegian Criminal Code and (iii) the Equator Principles.
|
12.1.17
|
Performance of Obligations
|
The Borrower shall comply with the material provisions of all Project Documents in relation to the Vessel and in determining
“material” the Facility Lenders will consider whether such non-compliance has a Material Adverse Effect.
|
12.1.18
|
Further Assurance
|
The Borrower shall, at its own expense, promptly take all such action as the Facility Agent may reasonably require for the
purpose of perfecting or protecting any Facility Beneficiary’s rights with respect to the security created or evidenced (or intended to be created or evidenced) by the Facility Security Documents.
|
12.1.19
|
Other information
|
The Borrower will promptly supply to the Facility Agent at any time such information and explanations as the Majority Facility
Lenders may from time to time reasonably require in connection with the operation of the Vessel and any reasonable financial information in connection with the Borrower, and will procure that the Facility Agent be given the like information and
explanations relating to all other Security Parties.
|
12.1.20
|
Inspection of records
|
The Borrower will permit the inspection of its financial records and accounts following an Event of Default which is continuing
unremedied or unwaived from time to time during business hours by the Facility Agent or its nominee.
The Borrower shall ensure at its own expense throughout the Facility Security Period that the Vessel is insured and operated in
accordance with the provisions set out in the relevant Facility Security Documents.
|
12.1.22
|
Change of Business
|
Except as expressly permitted in the Facility Documents the Borrower shall not carry on any business, other than that of
owning, chartering and operating the Vessel.
|
12.1.23
|
No disposal of assets
|
The Borrower shall not dispose of any of its material assets other than a sale of the Vessel which complies with clause 6.2.
|
12.1.24
|
“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 after the date of this Agreement; or
|
|
|
(c)
|
a proposed assignment or transfer by a Facility Lender of any of its rights and obligations under this Agreement to a party that is not a Facility
Lender prior to such assignment or transfer,
|
obliges the Facility Agent or any Facility Lender (or, in the case of
(c) above, any prospective new Facility 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 Facility Agent or any Facility Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Facility Lender) or any Facility Lender
for itself (or, in the case of (c) above, on behalf of any prospective new Facility Lender) in order for the Facility Agent or that Facility Lender (or, in the case of (c) above, any prospective new Facility 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 Facility Documents.
Other than under this Agreement the Borrower may only borrow:
|
|
(a)
|
from members of the TOO Group on a subordinated basis; and
|
|
|
(b)
|
from other parties in the ordinary course of its business and in an aggregate amount of no more than ten million Dollars ($10,000,000),
|
provided always that no Event of Default has occurred and is continuing unremedied and unwaived.
|
12.1.26
|
Enforcement of Obligations
|
The Borrower shall take all reasonable steps to enforce its rights under the Bareboat Charter and any other agreements relating
to the Vessel.
The Borrower shall not pay dividends or make other distributions to shareholders:
|
|
(a)
|
whilst an Event of Default has occurred and is continuing unremedied or unwaived; or
|
|
|
(b)
|
following breach of any of the covenants contained in this clause 12 or in clause 8 of the Financial Guarantee.
|
The Borrower shall not merge or consolidate with any other entity, split up or materially divest without the prior written
consent of the Facility Agent (acting on the instructions of the Facility Lenders and GIEK).
|
12.1.29
|
No Material Amendment to Project Documents
|
With the exception of any non-material amendments or variations the Borrower shall not agree to any amendment, variation or
termination of any of the Project Documents or Hedging Agreements to which it is a party without the prior written consent of the Majority Facility Lenders (such consent not to be unreasonably withheld).
The Borrower shall not enter into an interest rate hedging programme to hedge part or all of the floating rate interest
exposure under the Facility unless each Hedging Provider accedes to this Agreement and becomes a Hedging Provider for the purpose of the Facility Documents.
The Borrower shall procure that its legal and beneficial ownership remains the same as advised to the Facility Agent on or
about the date of this Agreement, other than permitted in accordance with the Facility Documents.
|
12.1.32
|
No Material Proceedings
|
The Borrower shall ensure that no litigation, arbitration or administrative proceeding on or before any court, arbitral body or
agency against any member of the TOO Group has been started or is reasonably likely to be started which have or, if adversely determined, are reasonably likely to have a Material Adverse Effect or which is not covered by adequate insurance.
|
12.1.33
|
[Intentionally omitted]
|
|
12.1.34
|
GIEK requirements
|
The Borrower shall procure that no Security Party shall act (or omit to act) in a manner that is inconsistent with any
requirement of GIEK under or in connection with the GIEK Guarantee and, in particular:
|
|
(a)
|
each Security Party shall do all that is reasonably necessary to ensure that all requirements of GIEK under or in connection with the GIEK
Guarantee are complied with;
|
|
|
(b)
|
each Security Party will refrain from acting in any manner which could result in a breach of any requirements of GIEK under or in connection
with the GIEK Guarantee or affect its validity; and
|
|
|
(c)
|
if documents and/or evidence are required by the GIEK Agent and/or GIEK Facility Lenders to make or substantiate a claim under the GIEK Guarantee,
each Security Party shall provide such documents and/or evidence which are in its power to provide.
|
|
12.1.35
|
GIEK Guarantee protection
|
If at any time in the opinion of the GIEK Agent, any provision of a Facility Document contradicts or conflicts with any
provision of the GIEK Guarantee, the Borrower will:
|
|
(a)
|
take all steps as the Facility Agent, the GIEK Agent and/or GIEK shall reasonably require to remove such contradiction or conflict; and
|
|
|
(b)
|
take all steps as the Facility Agent, the GIEK Agent and/or GIEK shall reasonably require to ensure that the GIEK Guarantee remains in full
force and effect.
|
|
12.1.36
|
No Filing or Stamp Taxes
|
The Borrower shall procure that each Security Party does and shall undertake to carry out in respect of any Facility Document
any filing, recording or enrollment under any court or other authority in its jurisdiction of incorporation or formation (including but not limited to (i) the relevant maritime registry, (ii) the Brazilian Certification and Registration
Requirements and/or (iii) the registration of the relevant Finance Document at the competent Registry of Deeds and Documents (
Cartório de Registro de Titulos e Documentos
) in Brazil, to the extent applicable) and that any stamp,
registration or similar tax will be paid on or in relation to any of the Facility Documents.
|
|
(a)
|
From the Delivery Date, the Borrower shall supply to the Facility Agent as soon as the same become available but in any event within one hundred
and eight (180) days after the end of each of its fiscal years, a Valuation in respect of the Vessel prepared at or around the end of its financial year;
|
|
|
(b)
|
If the Vessel is not operating under the Charter or any replacement charter approved by the Lenders, at the same time as delivering the Valuation,
the Borrower shall deliver evidence that the Hull Cover Ratio is at least one hundred and twenty per cent. (120%);
|
|
|
(c)
|
If at any time after the Delivery Date, the Hull Cover Ratio is tested pursuant to this Agreement and there is a breach of the Hull Cover Ratio
financial covenant calculated in accordance with this clause 12.1.37, then the Borrower may within ten (10) days of such testing date (i) prepay an amount of the Loan such that there is no longer a breach of the Hull Cover Ratio, and the
Total Commitments shall be reduced accordingly, and/or (ii) provide additional Security Interests to the Facility Beneficiaries, either in the form of freely available cash or other Security Interests in a form satisfactory to the Majority
Facility Lenders and GIEK (equal to the amount by which the Loan would need to be prepaid in order for there to be no breach of the Hull Cover Ratio) (the
Cure
). If the Borrower does not provide the Cure within such ten (10) day period,
a breach of the clause 12.1.37(b) shall occur.
|
|
12.1.38
|
Additional Facility
|
In relation to the financing of Rig 2 and/or Rig 3, but always at the option of the TOO Group, the Borrower and/or any other
member of the TOO Group agrees to:
|
|
(a)
|
enter into a Restatement (and the Facility Beneficiaries shall use reasonable endeavours to agree to the terms of a Restatement); or
|
|
|
(b)
|
if it is unable to agree on a Restatement and intends to enter into an Additional Facility, procure that it will not enter into such Additional
Facility, unless each of the Security Parties, the Facility Beneficiaries and the parties to the Additional Facility have entered into an intercreditor agreement in form and substance satisfactory to the Facility Beneficiaries and GIEK, together
with any amendments in relation to the Facility Documents and, in each case, based on the Additional Facility Principles, and without payment of additional fees (payable for the account of the Facility Beneficiaries and/or GIEK in respect of the
Vessel and/or the Loan) by the Security Parties.
|
Each of the events or circumstances set out in this clause 13.1 is an Event of Default.
Any Security Party fails to pay any amount due from it under a Facility Document at the time, in the currency and otherwise in
the manner specified herein provided that, if the relevant Security Party can demonstrate to the reasonable satisfaction of the Facility Agent that all necessary instructions were given to effect such payment and the non-receipt thereof is
attributable solely to an error in the banking system, such payment shall instead be deemed to be due, solely for the purposes of this paragraph, within three (3) Banking Days of the date on which it actually fell due under the relevant
Facility Document (if a payment of principal), five (5) Banking Days (if a payment of interest) or ten (10) Banking Days (if a sum payable on demand); or
Any representation or statement made by any Security Party in any Facility Document to which it is a party or in any notice or
other document, certificate or statement delivered by it pursuant thereto or in connection therewith is or proves to have been incorrect or misleading in any material respect, where the circumstances causing the same give rise to a Material Adverse
Effect; or
|
13.1.3
|
Specific Covenants
|
A Security Party fails duly to perform or comply with any of the obligations expressed to be assumed by or procured by the
Borrower under clauses 12.1.3, 12.1.6, 12.1.10, 12.1.13, 12.1.16 (but only insofar as such failure relates to anti-bribery, sanctions and corruption laws); or
|
13.1.4
|
Financial Covenants
|
There is any breach of the financial covenants set out in clause 8.1 of the Financial Guarantee and/or 12.1.37(b) of this
Agreement; or
A Security Party fails duly to perform or comply with any of the obligations expressed to be assumed by it in any Facility
Document (other than those referred to in clause 12.1.31, clause 13.1.3 (but only to the extent such failure constitutes an Event of Default under clause 13.1.3), clause 13.1.4 or clause 13.1.11) and such failure, where capable of remedy, is not
remedied within 30 days of the earlier of (a) the Borrower becoming aware of such failure to perform or comply and (b) the Facility Agent informing the Borrower in writing of such failure to perform or comply; or
|
|
(a)
|
Any indebtedness of any Security Party is not paid when due (or within any applicable grace period); or
|
|
|
(b)
|
any indebtedness of any Security Party is declared to be or otherwise becomes due and payable prior to its specified maturity,
|
where (in either case) the aggregate of all such unpaid or accelerated indebtedness (i) of the
Borrower or the Bareboat Charterer is equal to or greater than five million Dollars ($5,000,000) or its equivalent in any other currency; or (ii) of TOO or any of its Subsidiaries (other than the Borrower or the Bareboat Charterer) or the
Shareholder is equal to or greater than one hundred million Dollars ($100,000,000) or its equivalent in any other currency; or
|
13.1.7
|
Insolvency and Rescheduling
|
A Security Party is unable to pay its debts as they fall due, commences negotiations (by reason of actual or anticipated
financial difficulties) with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or makes a general assignment for the benefit of its creditors or a composition with its creditors unless in
respect of the Manager, if it has been replaced by another company in the TOO Group or another person acceptable to the Facility Agent (acting on the instructions of all Facility Lenders, acting reasonably) which has become party to a Management
Agreement, in each case within six (6) months of insolvency; or
A Security Party takes any corporate action or other steps are taken or legal proceedings are started for its
winding-up,
dissolution, administration or
re-organisation
or for the appointment of a liquidator, receiver, administrator, administrative receiver, conservator, custodian,
trustee or similar officer of it or of any or all of its revenues or assets or any moratorium is declared or sought in respect of any of its indebtedness unless the Facility Agent is satisfied, acting reasonably, that such actions, steps or
proceedings are frivolous or vexatious and are being contested appropriately by the relevant Security Party; or
|
13.1.9
|
Execution or Distress
|
|
|
(a)
|
Any Security Party fails to comply with or pay any sum due from it (within 30 days of such amount falling due) under any final judgment or any
final order made or given by any court or other official body of a competent jurisdiction, subject to the amount due being in an aggregate amount (i) for the Borrower or the Bareboat Charterer of equal to or greater than five million Dollars
($5,000,000) or its equivalent in any other currency; or (ii) for TOO or any of its Subsidiaries (other than the Borrower and the Bareboat Charterer) or the Shareholder, of equal to or greater than one hundred million Dollars ($100,000,000) or
its equivalent in any other currency, being a judgment or order against which there is no right of appeal or if a right of appeal exists, where the time limit for making such appeal has expired.
|
|
|
(b)
|
Any execution or distress is levied against, or an encumbrancer takes possession of, the whole or any part of, the property, undertaking or assets
of a Security Party, subject to the amount in question being in an aggregate amount (i) for the Borrower or the Bareboat Charterer, of equal to or greater than five million Dollars ($5,000,000) or its equivalent in any other currency; or
(ii) for TOO or any of its Subsidiaries (other than the Borrower and the Bareboat Charterer) or the Shareholder, of equal to or greater than one hundred million Dollars ($100,000,000) or its equivalent in any other currency, other than any
execution or distress which is being contested in good faith and which is either discharged within 30 days or in respect of which adequate security has been provided within 30 days to the relevant court or other authority to enable the relevant
execution or distress to be lifted or released.
|
|
|
(c)
|
Notwithstanding the foregoing paragraphs of this clause 13.1.9, any levy of any distress on or any arrest, condemnation, confiscation, requisition
for title or use, compulsory acquisition, seizure, detention or forfeiture of the Vessel (or any part thereof) or any exercise or purported exercise of any lien or claim on or against the Vessel where the release of or discharge of the lien or claim
on or against the Vessel has not been procured within 30 days; or
|
Any event occurs which, under the laws of any jurisdiction, has a similar or analogous effect to any of those events mentioned
in clauses 13.1.7, 13.1.8 and 13.1.9; or
Insurance is not maintained in respect of the Vessel in accordance with the terms of the Facility Security Documents; or
The Vessel has its classification withdrawn by the relevant Classification Society PROVIDED THAT if such withdrawal is (in the
opinion of the Facility Agent acting on the instructions of the Majority Facility Lenders and GIEK in their absolute discretion) capable of remedy such Event of Default shall only occur if the Vessel’s classification is not reinstated to the
satisfaction of the Facility Agent within twenty one (21) days; or
|
13.1.13
|
Environmental Matters
|
|
|
(a)
|
Any Environmental Claim is pending or made against the Borrower or the Bareboat Charterer or the Manager or any of their Environmental Affiliates
or in connection with the Vessel, where such Environmental Claim has a Material Adverse Effect; or
|
|
|
(b)
|
Any actual Environmental Incident occurs in connection with the Vessel, where such Environmental Incident has a Material Adverse Effect; or
|
Any Security Party repudiates any Facility Document or Project Document to which it is a party or does or causes to be done any
act or thing evidencing an intention to repudiate any such Facility Document or Project Document other than any repudiation to which clause 6.5 applies; or
|
13.1.15
|
Validity and Admissibility
|
At any time any act, condition or thing required to be done, fulfilled or performed in order:
|
|
(a)
|
to enable any Security Party lawfully to enter into, exercise its rights under and perform the respective obligations expressed to be assumed by it
in the Facility Documents;
|
|
|
(b)
|
to ensure that the obligations expressed to be assumed by each of the Security Parties in the Facility Documents are legal, valid and binding; or
|
|
|
(c)
|
to make the Facility Documents admissible in evidence in any applicable jurisdiction,
|
is not done, fulfilled or performed within 30 days after notification from the Facility Agent to the relevant Security Party
requiring the same to be done, fulfilled or performed; or
|
13.1.16
|
Material Adverse Change
|
At any time there shall occur a change in the business or operations of a Security Party or a change in the financial condition
of any Security Party which, in the reasonable opinion of the Majority Facility Lenders, materially impairs such Security Party’s ability to discharge its obligations under the Facility Documents in the manner provided therein and such change,
if capable of remedy, is not so remedied within 30 days of written notification from the Facility Agent; or
|
13.1.17
|
Qualifications of Financial Statements
|
The auditors of the TOO Group qualify their report on any audited consolidated financial statements of the TOO Group in any
regard which, in the reasonable opinion of the Facility Agent, has a Material Adverse Effect; or
|
13.1.18
|
Conditions Subsequent
|
If any of the conditions set out in clause 3.4 is not satisfied within thirty (30) days (or such other time as may be
specified in Schedule 2) of the Drawdown Date, or such other time period specified by the Facility Agent acting on the instructions of the Majority Facility Lenders; or
|
13.1.19
|
Revocation or Modification of consents etc.
|
If any Necessary Authorisation which is now or which at any time during the Facility Security Period becomes necessary to
enable any of the Security Parties to comply with any of their obligations in or pursuant to any of the Facility Security Documents is revoked, withdrawn or withheld, or modified in a manner which the Facility Agent reasonably considers is, or may
be, prejudicial to the interests of a Facility Beneficiary in a material manner, or if such Necessary Authorisation ceases to remain in full force and effect; or
|
13.1.20
|
Curtailment of Business
|
If the business of any of the Security Parties is wholly or materially curtailed by any intervention by or under authority of
any government, or if all or a substantial part of the undertaking, property or assets of any of the Security Parties is seized, nationalised, expropriated or compulsorily acquired by or under authority of any government or any Security Party
disposes or threatens to dispose of a substantial part of its business or assets; or
|
13.1.21
|
Reduction of Capital
|
If the Borrower reduces its committed or subscribed capital; or
|
13.1.22
|
Challenge to Registration
|
If the registration of the Vessel or the Mortgage becomes void or voidable or liable to cancellation or termination; or
If the country of registration of the Vessel becomes involved in war (whether or not declared) or civil war or is occupied by
any other power and the Facility Agent reasonably considers that, as a result, the security conferred by the Facility Security Documents is materially prejudiced unless within thirty (30) days thereof the Vessel is re-registered in another Flag
State subject to a first priority Mortgage and/or Deed of Covenants in form and substance satisfactory to the Facility Lenders and GIEK and confirmed by legal opinions from all relevant counsel, in each case is in form and substance reasonably
satisfactory to the Facility Lenders and GIEK; or
|
13.1.24
|
Notice of Termination
|
If the Sponsor gives notice to the Facility Agent to determine or terminate its obligations under the Financial Guarantee; or
|
13.1.25
|
Termination or material breach
|
If:
|
|
(a)
|
any of the Project Documents is terminated or cancelled other than any termination or cancellation to which clause 6.5 applies; or
|
|
|
(b)
|
any of the Project Documents is breached by a Security Party in a manner that gives rise to a right to terminate such Project Document or treat it
as repudiated by the Charterer or any of its Affiliates (or in the case of the Bareboat Charter only, the Borrower or the Bareboat Charterer) with the benefit of the cure rights and the grace periods set forth under the Project Documents,
|
Provided that in the case of the Bareboat Charter only, it is as a result of a voluntary reorganisation
of the TOO Group or otherwise contemplated by, and in accordance with, this Agreement, an Event of Default shall not occur if (i) a replacement Bareboat Charter has been entered into, (ii) the Facility Agent (acting on the instructions of
all the Facility Lenders and GIEK) is satisfied that replacement Facility Security Documents have been executed and the Facility Security Documents are in full force and effect at all times, and (iii) the Vessel remains in operation under the
Charter.
Any Security Party is declared to be a declared company under the provisions of Part IX of the Companies Act (Chapter 50) of
Singapore.
If an Event of Default is continuing unremedied or unwaived the Facility Agent may, and shall (at the request of the Majority
Facility Lenders), by notice to the Borrower cancel any part of the Commitments not then advanced and:
|
13.2.1
|
declare that the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Facility Documents are immediately
due and payable, whereupon they shall become immediately due and payable; and/or
|
|
13.2.2
|
declare that the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Facility Documents is payable on
demand, whereupon they shall immediately become payable on demand by the Facility Agent; and/or
|
|
13.2.3
|
declare the Commitments terminated and reduced to zero; and/or
|
|
13.2.4
|
exercise all of its rights under the Facility Documents; and/or
|
|
13.2.5
|
instruct the Facility Security Trustee to enforce its rights and those of the Facility Beneficiaries under the Facility Security Documents.
|
|
14
|
Assignment and Sub-Participation
|
|
14.1
|
Facility Lenders’ rights
|
|
14.1.1
|
A Facility Lender may assign any of its rights under this Agreement or transfer by novation any of its rights and obligations under this Agreement:
|
|
|
(i)
|
to any other branch or Affiliate of that Facility Lender, to a Facility Lender and/or, in the case of a GIEK Facility Lender, to GIEK; or
|
|
|
(ii)
|
(subject to the prior written consent of the Borrower, such consent not to be unreasonably withheld and to be deemed to be given unless notice to
the contrary is received within five (5) Banking Days of the request being given, but not to be required at any time after an Event of Default which is continuing unremedied or unwaived or if the assignment is in favour of a central bank or
federal reserve and in the case of an assignment or transfer of a GIEK Facility Lender, only, subject to GIEK’s approval) to any other bank, financial institution or other entity,
|
PROVIDED ALWAYS that any assignment or transfer under this clause 14 shall not result in any increased costs to the Borrower at
the date of and as a consequence of such assignment or transfer (other than in respect of assignments or transfers to GIEK to which this proviso shall not apply).
|
14.1.2
|
A Facility Lender may grant sub-participations in all or any part of its Commitment without the requirement for consent or to disclose any
sub-participation to any Security Party, provided that in the case of any such sub-participation that Facility Lender shall at all times remain liable for the performance of its obligations under this Agreement.
|
|
14.2
|
Borrower’s co-operation
|
The Borrower will co-operate fully with a Facility Lender in connection with any assignment, transfer or sub-participation by
that Facility Lender; will execute and procure the execution of such documents as that Facility Lender may reasonably require in that connection; and irrevocably authorises any Facility Beneficiary to disclose to any proposed assignee, transferee or
sub-participant, their Affiliates and professional advisers (whether before or after any assignment, transfer or sub-participation and whether or not any assignment, transfer or sub-participation shall take place) all information relating to the
Security Parties, the Loan, the Transaction Documents and the Vessel which any Facility Beneficiary may in its discretion consider necessary or desirable (subject to any duties of confidentiality applicable to the Facility Lenders generally).
Additionally, (but subject to the same duties of confidentiality), any Facility Lender may disclose the size and term of the Facility and the names of each Security Party to any investor or potential investor in a securitisation (or similar
transaction of broadly equivalent economic effect) of that Facility Lender’s rights and obligations under the Facility Documents.
Any assignee of a Facility Lender shall (unless limited by the express terms of the assignment) take the full benefit of every
provision of the Facility Documents benefiting that Facility Lender PROVIDED THAT an assignment will only be effective on notification by the Facility Agent to that Facility Lender and the assignee that the Facility Agent 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 assignment to the assignee.
|
14.4
|
In addition to the other rights provided to the Facility Lenders under this clause 14, each Facility Lender may without consulting with or
obtaining consent from the Borrower, at any time charge, assign or otherwise create security in or over (whether by way of collateral or otherwise) all or any of its rights under any Facility Document to secure obligations of that Facility Lender
including, without limitation, any charge, assignment or other security to secure obligations to a federal reserve or central bank except that no such charge, assignment or security shall:
|
|
|
(i)
|
release a Facility Lender from any of its obligations under the Facility Documents or (other than upon enforcement by the beneficiary of such
charge, assignment or security) substitute the beneficiary of the relevant charge, assignment or other security for the Facility Lender as a party to any of the Facility Documents; or
|
|
|
(ii)
|
require any payments to be made by the Borrower or grant to any person any more extensive rights than those required to be made or granted to the
relevant Facility Lender under the Facility Documents.
|
|
14.5
|
Transfer Certificates
|
If a Facility Lender wishes to transfer any of its rights and obligations under or pursuant to this Agreement, it may do so by
delivering to the Facility Agent and, if the Facility Lender is a GIEK Facility Lender, a copy to the GIEK Agent, a duly completed Transfer Certificate, in which event on the Transfer Date:
|
14.5.1
|
to the extent that that Facility Lender seeks to transfer its rights and obligations, the Borrower (on the one hand) and that Facility Lender (on
the other) shall be released from all further obligations towards the other;
|
|
14.5.2
|
the Borrower (on the one hand) and the transferee (on the other) shall assume obligations towards the other identical to those released pursuant to
clause 14.5.1; and
|
|
14.5.3
|
the Facility Agent, the GIEK Agent, each of the Facility Lenders, the other Facility Beneficiaries and the transferee shall have the same rights
and obligations between themselves as they would have had if the transferee had been an original Party as a Facility Lender,
|
PROVIDED THAT the Facility Agent shall only be obliged to execute a Transfer Certificate once:
|
|
(a)
|
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 the transferee;
|
|
|
(b)
|
the transferee has paid to the Facility Agent for its own account a transfer fee of three thousand Dollars; and
|
|
|
(c)
|
the amount transferred is not less than one million Dollars ($1,000,000) or, if the Commitment of the transferring Facility Lender is less than one
million Dollars ($1,000,000) the amount of that Facility Lender’s Commitment.
|
The Facility Agent is
hereby authorised to sign any Transfer Certificate and/or Accession Deed on behalf of each Facility Beneficiary and the Borrower and shall, as soon as reasonably practicable after it has executed a Transfer Certificate and/or Accession Deed, send to
the Borrower a copy of that Transfer Certificate and/or Accession Deed.
Unless otherwise expressly provided in any Facility Document or otherwise expressly agreed between a Facility Lender and any
proposed transferee and notified by that Facility Lender to the Facility Agent on or before the relevant Transfer Date, there shall automatically be assigned to the transferee with any transfer of a Facility Lender’s rights and obligations
under or pursuant to this Agreement the rights of that Facility Lender under or pursuant to the Facility Documents (other than this Agreement) which relate to the portion of that Facility Lender’s rights and obligations transferred by the
relevant Transfer Certificate.
|
14.7
|
No assignment or transfer by the Borrower
|
The Borrower may not assign any of its rights or transfer any of its rights or obligations under the Facility Documents.
|
14.8.1
|
If a GIEK Facility Lender receives a payment from GIEK under the GIEK Guarantee in respect of its participation in the GIEK Loan, then, to the
extent that it is required to do so by GIEK pursuant to the terms of the GIEK Guarantee (or otherwise), that GIEK Facility Lender shall, at the reasonable and documented cost of the Borrower and without the Borrower’s consent, transfer to GIEK
a part of its participation in the GIEK Loan equal to the amount paid to it by GIEK (but the transfer shall not limit the rights of that GIEK Facility Lender to recover any remaining part of its participation in the GIEK Loan or of any other moneys
owing to it), provided however that if GIEK makes any payment to the GIEK Facility Lenders under the GIEK Guarantee:
|
|
|
(a)
|
the obligations of the Security Parties and the Facility Beneficiaries (and of any of them) under this Agreement and each of the Facility Documents
shall not be discharged nor affected in any way;
|
|
|
(b)
|
GIEK shall be subrogated to the respective rights of the GIEK Facility Lenders against the Security Parties and the Facility Beneficiaries; and
|
|
|
(c)
|
GIEK shall be entitled to the extent of such payment to exercise the respective rights of the GIEK Facility Lenders (whether present or future)
against the Security Parties and the Facility Beneficiaries (and against any of them) pursuant to this Agreement and the Facility Documents or any relevant laws and/or regulations unless and until such payment and the interest accrued thereon are
fully reimbursed to GIEK; and
|
|
|
(d)
|
with respect to the obligations of the Security Parties owed to the Facility Beneficiaries under the Facility Documents (or any of them), such
obligations shall additionally be owed to GIEK by way of subrogation of the rights of the Facility Beneficiaries.
|
|
14.8.2
|
Each of the GIEK Facility Lenders agrees that as soon as GIEK pays in full all moneys due under the GIEK Guarantee then each of the relevant GIEK
Facility Lenders shall promptly transfer to GIEK one hundred per cent. (100%) of their respective GIEK Facility Commitments and/or GIEK Loan whereupon GIEK shall, upon receipt by the Facility Agent of a duly completed Transfer Certificate, and
modified to the extent agreed between the Facility Beneficiaries and GIEK for consistency with the terms and conditions of the GIEK Guarantee, be a transferee and as such shall be entitled to the rights and benefits of the GIEK Facility Lenders
under the Facility Documents to the extent of its participation. Notwithstanding any provisions to the contrary in any Facility Document, the Borrower consents to such assignment and transfer.
|
|
14.8.3
|
The Borrower shall indemnify GIEK in respect of any reasonable and documented costs or expenses (including legal fees) suffered or incurred by GIEK
in connection with the transfer referred to hereinabove or in connection with any review by GIEK of any Default or dispute between the Borrower and any of the Facility Beneficiaries occurring prior to the transfer referred to hereinabove.
|
|
15
|
The Facility Agent, the GIEK Agent, the Facility Security Trustee and the Facility Lenders
|
|
15.1.1
|
(a) Each Facility Lender appoints the Facility Agent to act as its agent under and in connection with the Facility Documents, (b) each GIEK
Facility Lender appoints the GIEK Agent to act as its agent in relation to the GIEK Guarantee, and (c) each Facility Lender, Hedging Provider, Mandated Lead Arranger, the Bookrunner, the GIEK Agent and the Facility Agent appoints the Facility
Security Trustee to act as its facility security trustee for the purpose of the Facility Documents and generally for the purpose of taking in its name and on its behalf such steps and exercising such powers that are granted to or delegated to the
Facility Security Trustee (or its successors and assigns in such capacity) thereunder or under this Agreement and those which would be the reasonable consequence thereof.
|
|
15.1.2
|
(a) Each Facility Lender authorises the Facility Agent, (b) each GIEK Facility Lender authorises the GIEK Agent, and (c) each Facility
Lender, Hedging Provider, Mandated Lead Arranger, the Bookrunner, the GIEK Agent and the Facility Agent authorises the Facility Security Trustee, to perform the duties and exercise the rights, powers, authorities and discretions specifically given
to the Facility Agent, the GIEK Agent or the Facility Security Trustee (as the case may be) under or in connection with the Facility Documents and in the case of the GIEK Agent, the GIEK Guarantee, together with any other incidental rights, powers,
authorities and discretions.
|
|
15.1.3
|
Except where the context otherwise requires, references in this clause 15 to the Facility Agent shall mean the
Facility Agent
and the
Facility Security Trustee individually and collectively.
|
(a) Each Facility Lender and Hedging Provider and, in the case of the Facility Security Trustee, the other Facility
Beneficiaries irrevocably authorises the Facility Security Trustee (in the case of clause 15.2.1, 15.2.3 and 15.2.4) and the Facility Agent (in the case of clauses 15.2.2, 15.2.3 and 15.2.4), (b) each GIEK Facility Lender irrevocably authorises
the GIEK Agent (in the case of clauses 15.2.2, 15.2.5 and 15.2.6), (in each case subject to clauses 15.4 and 15.18):
|
15.2.1
|
to execute any Facility Document (other than this Agreement and the Hedging Agreements) on its behalf;
|
|
15.2.2
|
to collect, receive, release or pay any money on its behalf in respect of the GIEK Agent only, in respect of administering payments from GIEK for
the benefit of the GIEK Facility Lenders under the terms of the GIEK Guarantee;
|
|
15.2.3
|
acting on the instructions from time to time of the Majority Facility Lenders (save where the terms of any Facility Document expressly provide
otherwise) to give or withhold any waivers, consents or approvals under or pursuant to any Facility Document and, in the case of the Facility Security Trustee, to act on the instructions of the Facility Agent on behalf of the Majority Facility
Lenders in respect of the foregoing;
|
|
15.2.4
|
acting on the instructions from time to time of the Majority Facility Lenders (save where the terms of any Facility Document expressly provide
otherwise) to exercise, or refrain from exercising, any rights, powers, authorities or discretions under or pursuant to any Facility Document and, in the case of the Facility Security Trustee, to act on the instructions of the Facility Agent on
behalf of the Majority Facility Lenders in respect of the foregoing;
|
|
15.2.5
|
to consult with GIEK in relation to waivers, consents or approvals under or pursuant to the Facility Documents and to inform the GIEK Facility
Lenders of the result of such consultation and if such waiver, consent or approval is:
|
|
|
(a)
|
a GIEK Decision, such GIEK Decision will be taken by the GIEK Agent (acting on the sole direction of GIEK) and the GIEK Facility Lenders shall not
instruct the GIEK Agent or the Facility Agent otherwise;
|
|
|
(b)
|
not a GIEK Decision and does not require the approval of all Facility Lenders, such waiver, consent or approval will be taken by the GIEK Agent
(acting on the direction of the Majority GIEK Facility Lenders provided GIEK also agrees to such waiver, consent or approval); and
|
|
|
(c)
|
not a GIEK Decision and requires the approval of all Facility Lenders, such waiver, consent or approval will be taken by the GIEK Agent (acting on
the direction of all GIEK Facility Lenders and GIEK);
|
|
15.2.6
|
to provide all information required by GIEK to GIEK in a timely manner provided that the GIEK Agent has received it in its capacity as GIEK Agent.
|
(b) The Facility Agent shall have no duties or responsibilities as agent or as Facility Security
Trustee, the GIEK Agent shall have no duties or responsibility as agent, in each case other than those expressly conferred on it by the Facility Documents and shall not be obliged to act on any instructions from the Facility Lenders or the Majority
Facility Lenders or the GIEK Facility Lenders if to do so would, in the opinion of the Facility Agent or the GIEK Agent, be contrary to any provision of the Facility Documents, or to any law or in respect of the GIEK Agent only, any provision of the
GIEK Guarantee, or would expose the Facility Agent or the GIEK Agent to any actual or potential liability to any third party.
The Facility Security Trustee agrees and declares, and each of the other Facility Beneficiaries acknowledges, that, subject to
the terms and conditions of this clause 15.3, the Facility Security Trustee holds the Secured Property on trust for itself and the Facility Beneficiaries absolutely. Each of the other Facility Beneficiaries agrees that the obligations, rights and
benefits vested in the Facility Security Trustee shall be performed and exercised in accordance with this clause 15.3. The Facility Security Trustee shall have the benefit of all of the provisions of this Agreement benefiting it in its capacity as
Facility Security Trustee for the Facility Beneficiaries, and all the powers and discretions conferred on trustees by the Trustees Act 1925 and the Trustee Act 2000 (to the extent not inconsistent with this Agreement). Where there are any
inconsistencies between the Trustee Act 1925 or the Trustee Act 2000 and the provisions of this Agreement, the provisions of this Agreement shall, to the extent allowed by law, prevail and, in the case of any inconsistency with the Trustee Act 2000,
the provisions of this Agreement shall constitute a restriction or exclusion for the purposes of that Act. In addition:
|
15.3.1
|
the Facility Security Trustee and any attorney, agent or delegate of the Facility Security Trustee may indemnify itself or himself out of the
Secured Property against all liabilities, costs, fees, damages, charges, losses and expenses sustained or incurred by it or him in relation to the taking or holding of any of the Secured Property or in connection with the exercise or purported
exercise of the rights, trusts, powers and discretions vested in the Facility Security Trustee or any other such person by or pursuant to the Facility Documents or in respect of anything else done or omitted to be done in any way relating to the
Facility Documents other than as a result of its gross negligence or wilful misconduct;
|
|
15.3.2
|
the other Facility Beneficiaries acknowledge that the Facility Security Trustee shall be under no obligation to insure any property nor to require
any other person to insure any property and shall not be responsible for any loss which may be suffered by any person as a result of the lack or insufficiency of any insurance and shall not be liable for any theft thereof; and
|
|
15.3.3
|
the Facility Beneficiaries agree that the perpetuity period applicable to the trusts declared by this Agreement shall be the period of one hundred
and twenty five years from the date of this Agreement.
|
|
15.4
|
Limitations on authority
|
|
15.4.1
|
Except with the prior written consent of all the Facility Lenders and in the case of the GIEK Facility Lenders, acting through the GIEK Agent and
in the case of clause 15.4.1(h), GIEK, the Facility Agent shall not be entitled to:
|
|
|
(a)
|
release or vary any security or guarantee given for the Borrower’s obligations under this Agreement unless expressly contemplated by the
Facility Documents; nor
|
|
|
(b)
|
waive the payment of any sum of money payable by any Security Party under the Facility Documents and/or waive the payment or reduce any sum of
money payable to any Facility Beneficiaries under the Facility Documents; nor
|
|
|
(c)
|
change the meaning of the expressions
Majority Facility Lenders
,
Commercial Facility Lenders
,
GIEK Facility Lenders
,
Facility Lenders
,
Margin
,
Default Rate
,
Sponsor
or
Charterer
;
nor
|
|
|
(d)
|
exercise, or refrain from exercising, any right, power, authority or discretion, or give or withhold any consent, the exercise or giving of which
is, by the terms of this Agreement, expressly reserved to the Facility Lenders; nor
|
|
|
(e)
|
extend the due date for the payment of any sum of money payable by any Security Party under any Facility Document; nor
|
|
|
(f)
|
take or refrain from taking any step if the effect of such action or inaction may lead to the increase of the obligations of a Facility Lender
under any Facility Document; nor
|
|
|
(g)
|
agree to change the currency in which any sum is payable under any Facility Document (other than in accordance with the terms of the relevant
Facility Document); nor
|
|
|
(h)
|
agree to amend this clause 15.4, clause 10.3 or any clause that refers to a unanimous approval of all Facility Lenders and/or GIEK; nor
|
|
|
(i)
|
increase any Commitment.
|
|
15.4.2
|
An amendment or waiver which relates to the rights or obligations of the Facility Agent or the GIEK Agent (each in their capacity as such) may not
be effected without the consent of the Facility Agent or the GIEK Agent, as the case may be.
|
|
15.4.3
|
Except with GIEK’s prior consent, the Facility Agent shall not be entitled to exercise or refrain from exercising any right, power, authority
or discretion, or give or withhold any consent, the exercise or giving of which, by the terms of this Agreement, would require GIEK’s prior consent and any amendment or waiver which relates to any matter which, by the terms of any Facility
Document, requires the prior consent of GIEK shall not be entered into or provided by the Facility Agent until GIEK has agreed to its terms.
|
|
15.4.4
|
Without limiting in any manner the rights of the Facility Lenders under the Facilities (other than the GIEK Facility), and subject and without
prejudice to any amendments, consents or waivers as may be given, consented or agreed to by the Facility Agent which is contrary to or inconsistent with any vote exercised by the GIEK Facility Lenders (acting on the instructions of GIEK);
|
|
|
(a)
|
in case of any conflict between the Facility Documents and the GIEK Guarantee, the GIEK Guarantee shall, as between the GIEK Facility Lenders and
GIEK, prevail, and to the extent of such conflict or inconsistency, none of the GIEK Facility Lenders or the GIEK Agent shall assert to GIEK, the terms of the relevant Facility Documents; and
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|
|
(b)
|
nothing in this Agreement or any Facility Document shall permit or oblige any GIEK Facility Lender or the GIEK Agent to act (or omit to act) in a
manner that is inconsistent with any requirement of GIEK under or in connection with the GIEK Guarantee.
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None of the Facility Agent, the GIEK Agent nor any of their directors, officers, employees or agents shall be liable to the
Facility Lenders, Facility Beneficiaries (in the case of the Facility Security Trustee) or GIEK for anything done or omitted to be done by the Facility Agent or, as the case may be, the GIEK Agent under or in connection with any of the Transaction
Documents or, in the case of GIEK Agent, the GIEK Guarantee unless as a result of the Facility Agent’s or, as the case may be, the GIEK Agent’s gross negligence or wilful misconduct.
Each Facility Lender, Security Party and Facility Beneficiary acknowledges that:
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15.6.1
|
it has not relied on any representation made by the Facility Agent, the GIEK Agent or any of the Facility Agent’s or the GIEK Agent’s
directors, officers, employees or agents or by any other person acting or purporting to act on behalf of the Facility Agent or the GIEK Agent to induce it to enter into any Facility Document;
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|
15.6.2
|
it has made and will continue to make without reliance on the Facility Agent or the GIEK Agent and based on such documents and other evidence as it
considers appropriate, its own independent investigation of the financial condition and affairs of the Security Parties in connection with the making and continuation of the Loan;
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|
15.6.3
|
it has made its own appraisal of the creditworthiness of the Security Parties;
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|
15.6.4
|
neither the Facility Agent nor the GIEK Agent shall have any duty or responsibility at any time to provide it with any credit or other information
relating to any Security Party or to do any know your customer checks unless that information is received by the Facility Agent or the GIEK Agent pursuant to the express terms of a Facility Document; and
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|
15.6.5
|
neither the Facility Agent nor the GIEK Agent is responsible for any determination as to whether any information provided or to be provided to any
Facility Lender, Security Party or Facility Beneficiary is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
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Each Facility Lender, each Security Party and each Facility Beneficiary agrees that it will not assert nor seek to assert
against any director, officer, employee or agent of the Facility Agent, the GIEK Agent or against any other person acting or purporting to act on behalf of the Facility Agent or the GIEK Agent any claim which it might have against them.
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15.7
|
Limitations on responsibility
|
|
15.7.1
|
Neither the Facility Agent nor the GIEK Agent shall have any responsibility to any Security Party, GIEK or to any Facility Lender or Facility
Beneficiary on account of:
|
|
|
(a)
|
the failure of a Facility Lender, GIEK or Facility Beneficiary or of any Security Party to perform any of its obligations under a Facility Document
or the GIEK Guarantee; nor
|
|
|
(b)
|
the financial condition of any Security Party; nor
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|
15.7.2
|
the completeness or accuracy of any statements, representations, information, communication or warranties made in or pursuant to or in connection
with any Facility Document, the GIEK Guarantee or in or pursuant to or in connection with any document delivered pursuant to or in connection with any Facility Document or the GIEK Guarantee or the Facility Secured Property; nor
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|
15.7.3
|
the negotiation, execution, effectiveness, genuineness, validity, enforceability, admissibility in evidence or sufficiency of any Facility
Document, the Facility Secured Property or the GIEK Guarantee or of any document executed or delivered pursuant to or in connection with any Facility Document, the Facility Secured Property or the GIEK Guarantee, nor the priority of any of the
Security Interests, the right or title of any person in or to any property comprised therein or the existence of any encumbrance affecting the same; nor
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|
15.7.4
|
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 Facility Document or the Facility Secured Property, unless directly caused by its gross negligence or wilful default. For the avoidance of doubt and notwithstanding anything contained in the Facility Documents,
the Facility Agent shall not in any event be liable for any indirect or consequential loss (including, without limitation, loss of profit, business or goodwill) regardless of whether it was informed of the likelihood of such loss and irrespective of
whether any such claim is made for breach of contract, in tort or otherwise; nor
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|
|
(a)
|
any act, event or circumstance not reasonably within its control; nor
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|
|
(b)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
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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 or, in
the case of the Facility Security Trustee, any shortfall which arises on the enforcement or realisation of the Facility Secured Property.
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15.7.5
|
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the
Facility Documents to be paid by the Facility Agent if the Facility 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 Facility Agent for that purpose.
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|
15.7.6
|
The duties of the Facility Agent, the Facility Security Trustee and the GIEK Agent are of a mechanical and administrative nature.
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|
15.8
|
The Facility Agent’s and the GIEK Agent’s rights
|
Each of the Facility Agent and the GIEK Agent may:
|
15.8.1
|
assume that all representations or warranties made or deemed repeated by any Security Party in or pursuant to any Facility Document are true and
complete, unless, in its capacity as the Facility Agent or the GIEK Agent, it has acquired actual knowledge to the contrary;
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|
15.8.2
|
assume that no Default has occurred unless, in its capacity as the Facility Agent or the GIEK Agent it has acquired actual knowledge to the
contrary (or, in the case of the Facility Security Trustee, written notice);
|
|
15.8.3
|
rely on any document or notice believed by it to be genuine;
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|
15.8.4
|
rely as to legal or other professional matters on opinions and statements of any legal or other professional advisers selected or approved by it
whether or not addressed to it and whether or not it contains a limit on liability by reference to monetary cap or otherwise;
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|
15.8.5
|
rely as to any factual matters which might reasonably be expected to be within the knowledge of any Security Party on a certificate signed by or on
behalf of that Security Party;
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|
15.8.6
|
refrain from exercising any right, power, discretion or remedy unless and until instructed to exercise that right, power, discretion or remedy and
as to the manner of its exercise by the Facility Lenders (or, where applicable, by the Majority Facility Lenders) and unless and until the Facility Agent has received from the Facility Lenders or the GIEK Agent has received from the GIEK Facility
Lenders any payment which the Facility Agent, or, as the case may be, the GIEK Agent may require on account of, or any security which the Facility Agent or as the case may be, the GIEK Agent may require for, any costs, claims, expenses (including
legal and other professional fees) and liabilities which it considers it may incur or sustain in complying with those instructions; and
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|
15.8.7
|
refrain from doing anything which in the Facility Agent’s opinion will or may be contrary to any relevant law, directive or regulation of any
jurisdiction and the Facility Agent may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation. The Facility Agent shall be entitled to seek out and rely upon the advice of any legal advisers or other
experts in order to determine whether any instruction received by it may conflict with any relevant law, directive or regulation of any jurisdiction.
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|
15.9
|
The Facility Agent’s duties
|
The Facility Agent (but not the Facility Security Trustee) shall:
|
15.9.1
|
if requested in writing to do so by a Facility Lender, make enquiry and advise the Facility Lenders as to the performance or observance of any of
the provisions of any Facility Document by any Security Party or as to the existence of an Event of Default; and
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|
15.9.2
|
inform the Facility Lenders promptly of any Event of Default of which the Facility Agent has actual knowledge.
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|
15.10
|
No deemed knowledge
|
Neither the Facility Agent nor the GIEK Agent shall be deemed to have actual knowledge of the falsehood or incompleteness of
any representation or warranty made or deemed repeated by any Security Party or actual knowledge of the occurrence of any Default unless a Facility Lender or a Security Party shall have given written notice thereof to the Facility Agent in its
capacity as the Facility Agent or the GIEK Agent in its capacity as GIEK Agent. Any information acquired by the Facility Agent or the GIEK Agent other than specifically in its capacity as the Facility Agent or the GIEK Agent shall not be deemed to
be information acquired by the Facility Agent in its capacity as the Facility Agent or the GIEK Agent in its capacity as GIEK Agent.
The Facility Agent and the GIEK Agent may disclose to any other party and/or GIEK any information it reasonably believes it has
received as agent under this Agreement.
Neither the Facility Agent nor the GIEK Agent is authorised to act on behalf of a
Facility Lender (without first obtaining that Facility Lender’s consent) in any legal or arbitration proceedings relating to any Facility Document.
In acting as agent for the Facility Beneficiaries and GIEK, the Facility Agent and GIEK 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.
The Facility Agent and/or the GIEK Agent may, without any liability to account to the Facility Lenders or the Facility
Beneficiaries (in the case of the Facility Security Trustee), generally engage in any kind of banking or trust business with a Security Party or with a Security Party’s subsidiaries or associated companies or with a Facility Lender or the
Facility Beneficiaries (in the case of the Facility Security Trustee) as if it were not the Facility Agent or, as the case may be, the GIEK Agent.
The execution by the Facility Agent and the GIEK Agent of the Facility Documents
constitutes, and the exercise of its rights and performance of its obligations thereunder will constitute, private and commercial activities done and performed for private and commercial purposes (rather than public and government purposes).
The Facility Lenders shall, promptly on the Facility Agent’s request, reimburse the Facility Agent in their respective
Proportionate Shares, for, and keep the Facility Agent fully indemnified in respect of all liabilities, damages, costs, actions, demands and expenses and claims sustained or incurred by the Facility Agent in connection with the Facility Documents,
or the performance of its duties and obligations, or the exercise of its rights, powers, discretions or remedies under or pursuant to any Facility Document, to the extent not paid by the Security Parties and not arising solely from the Facility
Agent’s gross negligence or wilful misconduct.
The GIEK Facility Lenders shall, promptly on the GIEK Agent’s
request, reimburse the GIEK Agent in their respective GIEK Proportionate Shares, for, and keep the GIEK Agent fully indemnified in respect of all liabilities, damages, costs and claims sustained or incurred by the GIEK Agent in connection with the
GIEK Guarantee, or the performance of its duties and obligations, or the exercise of its rights, powers, discretions or remedies under or pursuant to any Facility Document or the GIEK Guarantee, to the extent not paid by the Security Parties and not
arising solely from the GIEK Agent’s gross negligence or wilful misconduct.
This indemnity shall survive the
termination of this Agreement.
This clause 15.12 may not be amended without the consent of the Facility Agent or, as the
case may be, the GIEK Agent.
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15.13
|
Employment of agents
|
In performing its duties and exercising its rights, powers, discretions and remedies under or pursuant to the Facility
Documents, the Facility Agent shall be entitled to employ and pay agents to do anything which the Facility Agent is empowered to do under or pursuant to the Facility Documents (including the receipt of money and documents and the payment of money)
and to act or refrain from taking action in reliance on the opinion of, or advice or information obtained from, any lawyer, banker, broker, accountant, valuer or any other person believed by the Facility Agent in good faith to be competent to give
such opinion, advice or information and whether or not such opinion, advice or information contains a limit on liability by reference to monetary cap or otherwise if the Facility Agent uses reasonable care in the selection of such agent, it shall
have no responsibility for supervising such agent or be responsible for any act or omission thereof.
Without prejudice to
the generality of any other provision of this Agreement or any other Facility Security Document, the entry into possession of the Secured Property shall not render the Facility Security Trustee or any Receiver liable to account as mortgagee in
possession thereunder (or its equivalent in any other applicable jurisdiction) or take any action which would expose it to any liability in respect of Environmental Claims in respect of which it has not been indemnified and/or secured and/or
pre-funded to its satisfaction or to be liable for any loss on realisation or for any default or omission on realisation or for any default or omission for which a mortgagee in possession might be liable unless such loss, default or omission is
caused by its own gross negligence or wilful default.
The Facility Security Trustee shall not be bound to take any steps
to ascertain whether any event, condition or act, the happening of which would cause a right or remedy to become exercisable by the Facility Security Trustee or any agent under this Agreement or the other Facility Documents has happened or to
monitor or supervise the observance and performance by the Security Parties, any agent or any of the other parties thereto of their respective obligations thereunder and, until it shall have actual knowledge or express notice to the contrary, the
Facility Security Trustee shall be entitled to assume that no such event, condition or act has happened and that the Security Parties, the agents and the other parties thereto are observing and performing all their respective obligations thereunder.
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15.14
|
Distribution of payments
|
The Facility Agent but not the Facility Security Trustee who shall be entitled to pay any amounts due to the Facility Lenders
to the Facility Agent for onward distribution to such Facility Lenders shall pay promptly to the order of each Facility Lender that Facility Lender’s Proportionate Share of every sum of money received by the Facility Agent pursuant to the
Facility Documents (with the exception of any amounts payable pursuant to clause 9 and/or any Fee Letter and any amounts which, by the terms of the Facility Documents, are paid to the Facility Agent for the account of the Facility Agent alone or
specifically for the account of one or more Facility Lenders) and until so paid such amount shall be held by the Facility Agent to the order of that Facility Lender.
Upon receipt of any amount from GIEK by the GIEK Agent, the GIEK Agent shall promptly pay to the order of each GIEK Facility
Lender that GIEK Facility Lender’s GIEK Proportionate Share of such amount and until so paid such amount shall be held by the GIEK Agent on trust absolutely for that GIEK Facility Lender.
Neither the Facility Agent nor the GIEK Agent shall have any liability to pay any sum to a Facility Lender, Facility
Beneficiary or, as the case may be, GIEK Facility Lender until it has itself received payment of that sum. If, however, the Facility Agent does pay any sum to a Facility Lender on account of any amount prospectively due to that Facility Lender, a
Facility Beneficiary or the Facility Agent on behalf of the Facility Lenders, as applicable pursuant to clause 15.14 before it has itself received payment of that amount, and the Facility Agent does not in fact receive payment within five
(5) Banking Days after the date on which that payment was required to be made by the terms of the Facility Documents, that Facility Lender or Facility Beneficiary will, on demand by the Facility Agent, refund to the Facility Agent an amount
equal to the amount received by it, together with an amount sufficient to reimburse the Facility Agent for any amount which the Facility Agent may certify that it has been required to pay by way of interest on money borrowed to fund the amount in
question during the period beginning on the date on which that amount was required to be paid by the terms of the Facility Documents and ending on the date on which the Facility Agent receives reimbursement.
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15.16
|
Redistribution of payments
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Unless otherwise agreed between the Facility Lenders and the Facility Agent, if at any time a Facility Lender receives or
recovers by way of
set-off,
the exercise of any lien or otherwise from any Security Party, an amount greater than that Facility Lender’s Proportionate Share of any sum due from that Security Party to the
Facility Lenders under the Facility Documents (the amount of the excess being referred to in this clause 15.16 and in clause 15.17 as the
Excess Amount
) then:
|
15.16.1
|
that Facility Lender shall within three (3) Banking Days notify the Facility Agent (which shall promptly notify each other Facility Lender);
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|
15.16.2
|
that Facility Lender shall pay to the Facility Agent an amount equal to the Excess Amount within ten (10) days of its receipt or recovery of
the Excess Amount; and
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|
15.16.3
|
the Facility Agent shall treat that payment as if it were a payment by the Security Party in question on account of the sum due from that Security
Party to the Facility Lenders and shall account to the Facility Lenders in respect of the Excess Amount in accordance with the provisions of this clause 15.16.
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However, if a Facility Lender has commenced any legal proceedings to recover sums owing to it under the Facility Documents and,
as a result of, or in connection with, those proceedings has received an Excess Amount, the Facility Agent shall not distribute any of that Excess Amount to any other Facility Lender which had been notified of the proceedings and had the legal right
to, but did not, join those proceedings or commence and diligently prosecute separate proceedings to enforce its rights in the same or another court.
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15.17
|
Rescission of Excess Amount
|
If all or any part of any Excess Amount is rescinded or must otherwise be restored to any Security Party or to any other third
party, the Facility Lenders which have received any part of that Excess Amount by way of distribution from the Facility Agent pursuant to clause 15.16 shall repay to the Facility Agent for the account of the Facility Lender which originally received
or recovered the Excess Amount, the amount which shall be necessary to ensure that the Facility Lenders share rateably in accordance with their Proportionate Shares in the amount of the receipt or payment retained, together with interest on that
amount at a rate equivalent to that (if any) paid by the Facility Lender receiving or recovering the Excess Amount to the person to whom that Facility Lender is liable to make payment in respect of such amount, and clause 15.16.3 shall apply only to
the retained amount.
Where the Facility Agent is authorised or directed to act or refrain from acting in accordance with the instructions of the
Facility Lenders, GIEK or of the Majority Facility Lenders each of the Facility Lenders and GIEK (if applicable) shall provide the Facility Agent with instructions within seven (7) Banking Days of the Facility Agent’s request (which
request may be made orally or in writing). If a Facility Lender and GIEK (if applicable) does not provide the Facility Agent with instructions within that period, that Facility Lender and GIEK (if applicable) shall be bound by the decision of the
Facility Agent. Nothing in this clause 15.18 shall limit the right of the Facility Agent to take, or refrain from taking, any action without obtaining the instructions of the Facility Lenders, GIEK or the Majority Facility Lenders if the Facility
Agent in its discretion considers it necessary or appropriate to take, or refrain from taking, such action in order to preserve the rights of the Facility Lenders and GIEK (if applicable) under or in connection with the Facility Documents. In that
event, the Facility Agent will notify the Facility Lenders and GIEK (if applicable) of the action taken by it as soon as reasonably practicable, and the Facility Lenders and GIEK (if applicable) agree to ratify any action taken by the Facility Agent
pursuant to this clause 15.18.
For the purposes of this clause, the Facility Security Trustee shall be entitled to rely on
any instruction from the Facility Agent on behalf of the relevant Facility Lenders and it will not be liable for acting or refraining from acting in the absence of such instructions.
All amounts payable to a Facility Lender and/or GIEK under this clause 15, clause 9.5 and clause 9.1.2 shall be paid to such
account at such bank as that Facility Lender, or in the case of GIEK, the GIEK Agent or GIEK may from time to time direct in writing to the Facility Agent or, as the case may be, the GIEK Agent.
If any party owes an amount to the Facility Agent under the Facility Documents the Facility Agent may, after giving notice to
that party, deduct an amount not exceeding that amount from any payment to that party which the Facility Agent would otherwise be obliged to make under the Facility Documents and apply the amount deducted in or towards satisfaction of the amount
owed. For the purposes of the Facility Documents that party shall be regarded as having received any amount so deducted.
|
15.20
|
“Know your customer” checks
|
Each Facility Lender shall promptly upon the request of the Facility Agent or, as the case may be, the GIEK Agent supply, or
procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent or, as the case may be, the GIEK Agent (for itself), in order for the Facility Agent or, as the case may be, the GIEK Agent 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 Facility Documents.
Subject to a successor being appointed in accordance with this clause 15.21, the Facility Agent or the GIEK Agent may (and in
the case of the Facility Agent if requested by the Majority Facility Lenders and in the case of the GIEK Agent if requested by all of the GIEK Facility Lenders, will), resign as agent and/or the Facility Security Trustee may (and if requested by the
Majority Facility Lenders will), resign as Facility Security Trustee at any time without assigning any reason by giving to the Borrower and the Facility Lenders notice of its intention to do so, in which event the following shall apply:
|
15.21.1
|
with the consent of the Borrower not to be unreasonably withheld (but such consent not to be required at any time after an Event of Default which
is continuing unremedied or unwaived) the Facility Lenders may within thirty (30) days after the date of the notice from the Facility Agent, the GIEK Agent or the Facility Security Trustee (as the case may be) appoint a successor to act as
agent and/or Facility Security Trustee or, if they fail to do so with the consent of the Borrower, not to be unreasonably withheld (but such consent not to be required at any time after an Event of Default which is continuing unremedied or
unwaived), the Facility Agent, the GIEK Agent or the Facility Security Trustee (as the case may be) may appoint any other bank or financial institution as its successor;
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|
15.21.2
|
the resignation of the Facility Agent, the GIEK Agent or the Facility Security Trustee (as the case may be) shall take effect simultaneously with
the appointment of its successor on written notice of that appointment being given to the Borrower and the Facility Lenders;
|
|
15.21.3
|
the Facility Agent, the GIEK Agent or the Facility Security Trustee (as the case may be) shall thereupon be discharged from all further obligations
as agent and/or Facility Security Trustee but shall remain entitled to the benefit of the provisions of this clause 15; and
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|
15.21.4
|
the successor of the Facility Agent, the GIEK Agent or the Facility Security Trustee (as the case may be) and each of the other parties to this
Agreement shall have the same rights and obligations amongst themselves as they would have had if that successor had been a Party.
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|
15.22
|
Replacement of the Facility Agent for FATCA withholding
|
|
15.22.1
|
The Facility Agent shall resign in accordance with clause 15.21 above (and, to the extent applicable, shall use reasonable endeavours to appoint a
successor facility agent pursuant to clause 15.21 above) if on or after the date which is three (3) months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Facility Documents, either:
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|
|
(a)
|
the Facility Agent fails to respond to a request under clause 15.24 and a Facility Lender reasonably believes that the Facility Agent will not be
(or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
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|
|
(b)
|
the information supplied by the Facility Agent pursuant to clause 15.24 indicates that the Facility Agent will not be (or will have ceased to be) a
FATCA Exempt Party on or after that FATCA Application Date; or
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|
|
(c)
|
the Facility Agent notifies the Borrower and the Facility Lenders that the Facility 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 Facility Lender reasonably believes
that a Party will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and that Facility Lender, by notice to the Facility Agent, requires it to resign.
|
15.23
|
No fiduciary relationship
|
Neither the Facility Agent nor the GIEK Agent shall not have any fiduciary relationship with or be deemed to be a trustee of or
for any other person and nothing contained in any Facility Document, or, as the case may be, the GIEK Guarantee shall constitute a partnership between any two or more Facility Lenders or between the Facility Agent, the GIEK Agent and any other
person.
|
|
(a)
|
Subject to clause 15.24(c) below, each Party shall, within ten (10) Banking 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 (including its applicable
“passthru payment percentage” or other information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other
Party’s compliance with FATCA, provided however that such forms, documentation and other information may be given in accordance with law and other relevant obligations.
|
|
|
(b)
|
If a Party confirms to another Party pursuant to clause 15.24(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.
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|
|
(c)
|
Clause 15.24(a) above shall not oblige any Facility Beneficiary 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 policy of that Facility Beneficiary;
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|
|
(iv)
|
any duty of confidentiality.
|
|
|
(d)
|
If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with clause 15.24(a) above
(including, for the avoidance of doubt, where clause 15.24(c) above applies), then:
|
|
|
(i)
|
if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of the
Facility Documents as if it is not a FATCA Exempt Party; and
|
|
|
(ii)
|
if that Party failed to confirm its applicable “passthru payment percentage” then such Party shall be treated for the purposes of the
Facility Documents (and payments made thereunder) as if its applicable “passthru payment percentage” is 100%,
|
until (in each case) such time as the Party in question provides the requested confirmation, forms, documentation or other
information.
Each GIEK Facility Lender represents and warrants to the GIEK Agent that, with effect from the date it receives the GIEK
Guarantee, (i) it has reviewed the GIEK Guarantee and is aware of the provisions thereof, (ii) any representations and warranties made by the GIEK Agent on behalf of each GIEK Facility Lender under the GIEK Guarantee are true and correct
with respect to such GIEK Facility Lender in all respects, and (iii) no information provided by such GIEK Facility Lender in writing to the GIEK Agent or to GIEK prior to the date hereof was incomplete, untrue or incorrect in any respect except
to the extent that such GIEK Facility Lender, in the exercise of reasonable care and due diligence prior to the giving of the information, could not have discovered the error or omission. Each GIEK Facility Lender represents and warrants to the GIEK
Agent that it has not taken (or failed to take), and agrees with the GIEK Agent that it shall not take (or fail to take), any action that would result in the GIEK Agent being in breach of any of its obligations in its capacity as GIEK Agent under
the GIEK Guarantee or the Facility Documents, or result in any of GIEK Facility Lenders being in breach of any of their respective obligations as insured parties, under the GIEK Guarantee, or which would otherwise prejudice the GIEK Agent’s
ability to make a claim on behalf of the GIEK Facility Lenders under the GIEK Guarantee.
The GIEK Agent agrees to take such actions under the GIEK Guarantee (including with respect to any amendment, modification or
supplement to the GIEK Guarantee) as may be directed on the instructions of the Majority GIEK Facility Lenders from time to time; provided that, anything herein or in the GIEK Guarantee to the contrary notwithstanding, the GIEK Agent shall not be
obliged to take any such action or to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties or the exercise of any of its rights or powers hereunder or thereunder if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it or if such action would be contrary to applicable law.
|
15.27
|
Additional trustees
|
The Facility Security Trustee shall have power by notice in writing to the other Facility Beneficiaries and the Borrower to
appoint any person either to act as separate trustee or as co-trustee jointly with the Facility Security Trustee:
|
15.27.1
|
if the Facility Security Trustee reasonably considers such appointment to be in the best interests of the Facility Beneficiaries;
|
|
15.27.2
|
for the purpose of conforming with any legal requirement, restriction or condition in any jurisdiction in which any particular act is to be
performed; or
|
|
15.27.3
|
for the purpose of obtaining a judgment in any jurisdiction or the enforcement in any jurisdiction against any person of a judgment already
obtained,
|
and any person so appointed shall (subject to the provisions of this Agreement) have such
rights, powers, duties and obligations as shall be conferred or imposed by the instrument of appointment. The Facility Security Trustee shall have power to remove any person so appointed. At the request of the Facility Security Trustee, the other
parties to this Agreement (and the Borrower shall procure that the Security Parties) shall forthwith execute all such documents and do all such things as may be required to perfect such appointment or removal and each such party irrevocably
authorises the Facility Security Trustee in its name and on its behalf to do the same. Such a person shall accede to this Agreement as a Facility Security Trustee to the extent necessary to carry out their role on terms satisfactory to the Facility
Security Trustee and (subject always to the provisions of this Agreement) have such trusts, powers, authorities, liabilities and discretions (not exceeding those conferred on the Facility Security Trustee by this Agreement and the other Facility
Documents) and such duties and obligations as shall be conferred or imposed by the instrument of appointment (being no less onerous than would have applied to the Facility Security Trustee but for the appointment). The Facility Security Trustee
shall not be bound to supervise, or be responsible for any loss incurred by reason of any act or omission of, any such person if the Facility Security Trustee shall have exercised reasonable care in the selection of such person.
|
15.28
|
Custodians and nominees
|
The Facility Security Trustee may (to the extent legally permitted) appoint and pay any person to act as a custodian, nominee
or delegate on any terms in relation to any assets of the trust as the Facility Security Trustee may determine (including the power to sub-delegate) including for the purpose of depositing with a custodian this Agreement or any document relating to
the trust created under this Agreement and the Facility 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.
|
15.29
|
Acceptance of title
|
The Facility Security Trustee shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right
and title that any of the Security Parties have to any of the Secured Property and shall not be liable for or bound to require any Security Party to remedy any defect in its right or title.
|
15.30
|
Refrain from illegality
|
Notwithstanding anything to the contrary expressed or implied in the Transaction Documents, the Facility Security Trustee may
refrain without liability from doing anything which in its opinion will or may be contrary to any relevant law, directive or regulation of any applicable jurisdiction (including, but not limited to, the laws of England, the United States of America
or any jurisdiction forming part of it) or any directive, law or regulation of any agency of such state or jurisdiction and the Facility Security Trustee may do anything which is, in its opinion, necessary to comply with any such law, directive or
regulation.
|
15.31
|
Insurance by Facility Security Trustee
|
Where the Facility Security Trustee is named on any insurance policy (including the Insurances) as an insured party and/or loss
payee, the Facility Security Trustee shall not be responsible for any loss which may be suffered by reason of, directly or indirectly, 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.
|
15.32
|
No additional Security Interests
|
Each Facility Lender agrees it will not obtain the benefit of any Security Interests securing any Facility Secured Obligations
and not receive the benefit of any guarantee or indemnity of the Facility Secured Obligations except to the extent they are created by or arise under the Facility Documents or with the consent of the Majority Facility Lenders and GIEK.
Only a Facility Beneficiary (not the Borrower) may set off any matured obligation due from the Borrower under any Facility
Document (to the extent beneficially owned by that Facility Beneficiary) against any matured obligation owed by that Facility Beneficiary to the Borrower, regardless of the place of payment, booking branch or currency of either obligation. If the
obligations are in different currencies, that Facility Beneficiary may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
Each amount payable by the Borrower under a Facility Document shall be paid to such account at such bank as the Facility Agent
may from time to time direct to the Borrower in the Currency of Account and in such funds as are customary at the time for settlement of transactions in the relevant currency in the place of payment. Payment shall be deemed to have been received by
the Facility Agent on the date on which the Facility Agent receives authenticated advice of receipt, unless that advice is received by the Facility Agent on a day other than a Banking Day or at a time of day (whether on a Banking Day or not) when
the Facility Agent in its reasonable discretion considers that it is impossible or impracticable for the Facility Agent to utilise the amount received for value that same day, in which event the payment in question shall be deemed to have been
received by the Facility Agent on the next Banking Day following the date of receipt of advice by the Facility Agent.
|
17.2
|
No deductions or withholdings
|
Each payment (whether of principal or interest or otherwise) to be made by the Borrower under a Facility Document shall,
subject only to clause 17.3, be made free and clear of and without deduction for or on account of any Taxes or other deductions, withholdings, restrictions, conditions or counterclaims of any nature other than FATCA Deductions.
With the exception of a FATCA Deduction, if at any time any law requires (or is interpreted to require) the Borrower to make
any deduction or withholding from any payment, or to change the rate or manner in which any required deduction or withholding is made, the Borrower will promptly notify the Facility Agent and, simultaneously with making that payment, will pay to the
Facility Agent whatever additional amount (after taking into account any additional Taxes on, or deductions or withholdings from, or restrictions or conditions on, that additional amount) is necessary to ensure that, after making the deduction or
withholding, the relevant Facility Beneficiaries receive a net sum equal to the sum which they would have received had no deduction or withholding been made.
|
17.4
|
Evidence of deductions
|
If at any time the Borrower is required by law to make any deduction or withholding from any payment to be made by it under a
Facility Document, the Borrower will pay the amount required to be deducted or withheld to the relevant authority within the time allowed under the applicable law and will, no later than thirty (30) days after making that payment, deliver to
the Facility Agent an original receipt issued by the relevant authority, or other evidence reasonably acceptable to the Facility Agent, evidencing the payment to that authority of all amounts required to be deducted or withheld.
If the Borrower pays any additional amount under clause 17.3 and a Facility Beneficiary subsequently receives a refund or
allowance from any tax authority which that Facility Beneficiary identifies as being referable to that increased amount so paid by the Borrower, that Facility Beneficiary shall, as soon as reasonably practicable, pay to the Borrower an amount equal
to the amount of the refund or allowance received, if and to the extent that it may do so without prejudicing its right to retain that refund or allowance and without putting itself in any worse financial position than that in which it would have
been had the relevant deduction or withholding not been required to have been made. Nothing in this clause 17.5 shall be interpreted as imposing any obligation on any Facility Beneficiary to apply for any refund or allowance nor as restricting in
any way the manner in which any Facility Beneficiary organises its tax affairs, nor as imposing on any Facility Beneficiary any obligation to disclose to the Borrower any information regarding its tax affairs or tax computations.
|
17.6
|
Adjustment of due dates
|
If any payment or transfer of funds to be made under a Facility Document, other than a payment of interest on the Loan, shall
be due on a day which is not a Banking Day, that payment shall be made on the next succeeding Banking Day (unless the next succeeding Banking Day falls in the next calendar month in which event the payment shall be made on the next preceding Banking
Day). Any such variation of time shall be taken into account in computing any interest in respect of that payment.
|
17.7
|
[Intentionally omitted]
|
Each Hedging Provider agrees with and covenants to each of the other Facility Beneficiaries that until the end of the Facility
Security Period and without prejudice to any rights which that Hedging Provider may otherwise have against the Borrower (including, for the avoidance of doubt, any right to terminate transactions under its Hedging Agreement or close-out its Hedging
Agreement pursuant to a permitted termination event set out therein but subject to any other agreements or covenants of the Hedging Providers set out in any other provision of this Agreement):
|
17.8.1
|
it will not, without the prior written consent of the Facility Agent:
|
|
|
(a)
|
at any time when an Event of Default has occurred and is continuing unremedied and unwaived, accept or demand from the Borrower the payment or
repayment in whole or in part of any Indebtedness whatsoever now or hereafter due to it from the Borrower;
|
|
|
(b)
|
at any time when an Event of Default has occurred and is continuing unremedied and unwaived, otherwise accept, have the benefit of, or share in any
payment from, or composition with, the Borrower (other than pursuant to any contractual set-off and/or netting provisions contained in the Hedging Agreement to which it is a party and without prejudice to its rights as a Facility Beneficiary in
respect of the Facility Secured Property);
|
|
|
(c)
|
exercise any other right of whatsoever nature or claim or exercise any right of set-off or counterclaim which it may have against the Borrower
(other than pursuant to any contractual set-off and/or netting provisions contained in the Hedging Agreement to which it is a party and without prejudice to its rights as a Facility Beneficiary in respect of the Facility Secured Property);
|
|
|
(d)
|
accept or demand any Collateral Instrument from the Borrower in respect of any right referred to in paragraphs (a), (b) and
(c) above or dispose of any such right (but without prejudice to its rights as a Facility Beneficiary in respect of the Facility Secured Property);
|
|
|
(e)
|
take any step to enforce any right against the Borrower (by proceedings or otherwise) (but without prejudice to its rights as a Facility
Beneficiary in respect of the Facility Secured Property);
|
|
|
(f)
|
initiate or take any action which would result in any Insolvency Event in relation to the Borrower; or
|
|
|
(g)
|
claim or prove in any Insolvency Event in relation to the Borrower;
|
|
17.8.2
|
it will, if so directed by the Facility Agent, prove in any Insolvency Event in relation to the Borrower for the whole or any part of any claim
which it may have against the Borrower and on terms that the benefit of such proof and of all moneys received by it in respect thereof shall be held on trust for the Facility Beneficiaries and shall be applied in accordance with clause 10.3.
|
|
17.9.1
|
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.
|
|
17.9.2
|
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, the Facility Agent and the other Facility Beneficiaries.
|
|
17.10.1
|
Notwithstanding any other provision to this agreement, if a FATCA Deduction is or will be required to be made by any party under clause 17.9 in
respect of a payment to any Facility Lender which is a FATCA FFI (a “
FATCA Non-Exempt Lender
”), the FATCA Non-Exempt Lender may either:
|
|
|
(a)
|
transfer its entire interest in the Loan to a U.S. branch or affiliate; or
|
|
|
(b)
|
(subject to the prior written consent of the Borrower in the case of a transferee which is not already a Facility Lender, such consent not to be
unreasonably withheld or delayed) nominate one or more transferee lenders who upon becoming a Facility Lender would be a FATCA Exempt Party, by notice in writing to the Facility Agent and the Borrower specifying the terms of the proposed transfer,
and cause such transferee lender(s) to purchase all of the FATCA Non-Exempt Lender’s interest in the Loan.
|
|
18.1
|
Communications in writing
|
Any communication to be made under or in connection with this Agreement shall be made in writing and, unless otherwise stated,
may be made by fax or letter or (subject to clause 18.6) electronic mail.
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each
Party for any communication or document to be made or delivered under or in connection with this Agreement are:
|
18.2.1
|
in the case of the Borrower, c/o Teekay Shipping (Canada) Ltd, Suite 2000, Bentall 5, 550 Burrard Street, Vancouver, B.C., Canada V6C 2K2 (fax no:
+1 604 681 3011) marked for the attention of Renee Eng, Treasury Manager;
|
|
18.2.2
|
in the case of each Facility Lender, those appearing opposite its name in Schedule 1, Part 1;
|
|
18.2.3
|
in the case of each Hedging Provider those appearing opposite its name in an Accession Deed;
|
|
18.2.4
|
in the case of the Facility Agent, Citibank International Limited, Citigroup Centre, 5
th
Floor
CGC2, Canary Wharf, London E14 5LB (fax no: +44 (0)20 7 492 3980) marked for the attention of European Loans Agency Office and in the case of the Facility Security Trustee: Citibank, N.A., London Branch, Citigroup Centre, 13th Floor, Canada Square,
London E14 5LB, United Kingdom (fax no: +44(0) 207 500 5877) marked for the attention of Agency & Trust (email issuerpfla@citi.com);
|
|
18.2.5
|
in the case of the GIEK Agent, 25 Canada Square, London E14 5LB, for the attention of Guido Musso/Davide Alessandrini (Export Agency Finance -
CTS), (email:
guido.musso@citi.com
,
davide.alessandrini@citi.com
,
tarvinder.singh.basi@citi.com
,
marieve.gauthier@citi.com
,
youngsik.ahn@citi.com
and
frithiof.wilhelmsen@citi.com
with copies to
kara.catt@citi.com
and
romina.coates@citi.com
;),
|
or any substitute address, fax number, department or officer as any party may
notify to the Facility Agent (and in the case of a GIEK Facility Lender, the GIEK Agent) (or the Facility Agent or, as the case may be, the GIEK Agent, may notify to the other parties, if a change is made by the Facility Agent, or the GIEK Agent) by
not less than three (3) Banking Days’ notice.
Any communication or document made or delivered by one Party to another under or in connection this Agreement will only be
effective:
|
18.3.1
|
if by way of fax, when received in legible form; or
|
|
18.3.2
|
if by way of letter, when it has been left at the relevant address or five (5) days after being deposited in the post postage prepaid in an
envelope addressed to it at that address; or
|
|
18.3.3
|
if by way of electronic mail, in accordance with clause 18.6;
|
and, if a particular department or officer is specified as part of its address details provided under clause 18.2, if addressed
to that department or officer.
Any communication or document to be made or delivered to the Facility Agent, the Facility
Security Trustee or the GIEK Agent will be effective only when actually received by the Facility Agent, the Facility Security Trustee or the GIEK Agent.
All notices from or to the Borrower shall be sent through the Facility Agent.
The Facility Agent shall promptly forward to the applicable party a copy of any document which is delivered to it for another
party (including all documents addressed to, intended for, or otherwise for the benefit of, the Facility Lenders) and where such document is addressed to the GIEK Facility Lenders, the Facility Agent shall forward it to the GIEK Agent as well.
Any communication or document which becomes effective after 5:00pm London time in the place of receipt shall be deemed to
become effective on the following Banking Day.
|
18.4
|
Notification of address and fax number
|
Promptly upon receipt of notification of an address, fax number or change of address, pursuant to clause 18.2 or changing its
own address or fax number, the Facility Agent shall notify the other parties to this Agreement.
Any notice given under or in connection with this Agreement must be in English. All other documents provided under or in
connection with this Agreement must be:
|
18.5.2
|
if not in English, and if so required by the Facility 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.
|
|
18.6
|
Electronic communication
|
|
|
(a)
|
Any communication to be made in connection with this Agreement may be made by electronic mail or other electronic means, if the Borrower and the
relevant Facility Beneficiary and/or GIEK:
|
|
|
(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 Borrower and the relevant Facility Beneficiary will be effective only when actually received in
readable form and acknowledged by the recipient (it being understood that any system generated responses do not constitute an acknowledgement) and in the case of any electronic communication made by the Borrower to a Facility Beneficiary only if it
is addressed in such a manner as the Facility Beneficiary shall specify for this purpose.
|
If, at any time, any provision of a Facility Document 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, on the part of any Facility Beneficiary, any right or remedy under a
Facility Document 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.
No variation or amendment of a Facility Document shall be valid unless in writing and signed on behalf of all the Facility
Beneficiaries and the relevant Security Party.
If any provision of a Facility Document shall be invalid or unenforceable in whole or in part by reason of any present or
future law or any decision of any court, or if the documents at any time held by or on behalf of the Facility Beneficiaries or any of them are considered by the Facility Lenders for any reason insufficient to carry out the terms of this Agreement,
then from time to time the Borrower will promptly, on demand by the Facility Agent, execute or procure the execution of such further documents as in the opinion of the Facility Lenders are necessary to provide adequate security for the repayment of
the Facility Secured Obligations.
|
21.3
|
Rescission of payments etc.
|
Any discharge, release or reassignment by a Facility Beneficiary of any of the security constituted by, or any of the
obligations of a Security Party contained in, a Facility Document shall be (and be deemed always to have been) void if any act (including, without limitation, any payment) as a result of which such discharge, release or reassignment was given or
made is subsequently wholly or partially rescinded or avoided by operation of any law.
Any certificate or statement signed by an authorised signatory of the Facility Agent purporting to show the amount of the
Facility Secured Obligations (or any part of the Facility Secured Obligations) or any other amount referred to in any Facility Document shall, save for manifest error or on any question of law, be conclusive evidence as against the Borrower of that
amount.
This Agreement may be executed in any number of counterparts each of which shall be original but which shall together
constitute the same instrument.
|
21.6
|
Contracts (Rights of Third Parties) Act 1999
|
|
|
(a)
|
Unless expressly provided to the contrary in this agreement and subject to the following sentence, 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. GIEK and each Indemnified Party shall have the right to enforce and enjoy the benefit of any term of this Agreement which is expressed
to be for its benefit or expressly purports to confer a benefit on it. Notwithstanding any term of this Agreement, the consent of a person who is not a Party (unless otherwise expressly provided by this Agreement in respect of GIEK and without
prejudice to the provisions of the GIEK Guarantee) is not at any time required to rescind or amend this Agreement.
|
|
|
(b)
|
Each party agrees that GIEK shall not have any obligations or liabilities under this Agreement unless and until it becomes a Facility Lender in
accordance with the terms of this Agreement, and this Agreement may not be amended to limit, modify or eliminate any rights of GIEK without its prior written consent.
|
|
21.7
|
Disclosure of Information
|
The Borrower authorises each Facility Beneficiary to disclose any information and/or document(s) concerning its relationship
with such Facility Beneficiary or otherwise delivered pursuant to this Agreement (i) as may be compelled by judicial or legal process or to authorities in any other countries where such Facility Beneficiary or any Affiliate is represented
and/or where any Facility Beneficiary or any Affiliate may be requested information by any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law,
(ii) to parties to whom that Facility Beneficiary charges, assigns or otherwise creates security (or may do so) pursuant to clause 14.4 or, in the case of the Facility Security Trustee, to any agent or delegate it appoints in accordance with
the Facility Documents, (iii) to any Affiliate of that Facility Beneficiary including, without limitation, for the purposes of making it possible to consolidate the member of the TOO Group’s total commitments and offer the member of the
TOO Group any other products offered by that Facility Beneficiary or any Affiliate, subject always to the duties of confidentiality on the Facility Beneficiaries, (iv) in the case of the GIEK Facility Lender, to GIEK and the Borrower consents
to GIEK publishing key information concerning the GIEK Guarantee including; (A) the Borrower’s and Builder’s names and countries of residence; (B) the date of this Agreement; (C) the loan and guarantee amounts available
hereunder; and (D) the type of Vessel financed hereunder, and in connection with such publication, use the Borrower’s and/or the TOO Group’s (as applicable) logo and trademark;, (v) to any rating agency (including its
professional advisers), (vi) to any monoline insurers, verification agents and their professional advisers, (vii) to any person which invests in or otherwise finances or may potentially invest in or otherwise finance directly or indirectly
in any transaction relating to this Loan, (viii) to the professional advisers of any Facility Beneficiary or its Affiliates, (ix) to any related fund of a Facility Beneficiary and (x) to any person that provides administration or
settlement or numbering services in respect of the Facility Documents.
This Agreement and any non-contractual obligations arising from or in connection with it shall in all respects be governed by
and interpreted in accordance with English law.
For the exclusive benefit of the Facility Beneficiaries, the parties to this Agreement irrevocably agree that the courts of
England are to have jurisdiction to settle any dispute:
|
|
(a)
|
which may arise out of or in connection with this Agreement; or
|
|
|
(b)
|
relating to any non-contractual obligations arising from or in connection with this Agreement,
|
and that any proceedings may be brought in those courts.
|
22.3
|
Alternative jurisdictions
|
Nothing contained in this clause 22 shall limit the right of the Facility Beneficiaries to commence any proceedings against the
Borrower in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Borrower in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or
not.
|
22.4
|
Waiver of objections
|
The Borrower irrevocably waives any objection which it may now or in the future have to the laying of the venue of any
proceedings in any court referred to in this clause 22, and any claim that those proceedings have been brought in an inconvenient or inappropriate forum, and irrevocably agrees that a judgment in any proceedings commenced in any such court shall be
conclusive and binding on it and may be enforced in the courts of any other jurisdiction.
Without prejudice to any other mode of service allowed under any relevant law, the Borrower:
|
22.5.1
|
irrevocably appoints Teekay Shipping (UK) Limited of 2
nd
Floor, 86 Jermyn Street, London SW1Y
6JD England, United Kingdom as its agent for service of process in relation to any proceedings before the English courts in connection with this Agreement; and
|
|
22.5.2
|
agrees that failure by a process agent to notify the Borrower of the process will not invalidate the proceedings concerned.
|
Schedule 1
Part 1: The Facility Lenders and the Commitments
COMMERCIAL FACILITY LENDERS
|
|
|
|
|
|
|
The Commercial Facility Lenders
|
|
The Commercial
Facility Commitments
|
|
The Proportionate
Share
|
|
|
|
($)
|
|
(%)
|
|
Citibank N.A., London Branch
25 Canada Square
London E14 5LB,
England
Tel: +44 (20) 7508 6030 / + 44 (20) 7986 4578
Fax: +44 20 8636 3824
Email:
timothy.soe@citi.com
,
shreyas.chipalkatty@citi.com
Attention: Timothy Soe / Shreyas Chipalkatty
|
|
33,000,000
|
|
22%
|
|
Total
|
|
33,000,000
|
|
22%
|
GIEK FACILITY LENDERS
|
|
|
|
|
|
|
The GIEK Facility Lenders
|
|
The GIEK Facility
Commitments
|
|
The Proportionate
Share
|
|
|
|
($)
|
|
(%)
|
|
Citibank N.A., London Branch
25 Canada Square
London E14 5LB,
England
Tel: +44 (20) 7508-2950 / + 44 (20)
7508-0575
Fax: +44 20 8636 3824
Email: davide.alessandrini@citi.com, frithiof.wilhelmsen@citi.com, tarvinder.singh.basi@citi.com,
marieve.gauthier@citi.com
,
youngsik.ahn@citi.com
, kara.catt@citi.com, romina.coates@citi.com
Attention: Davide Alessandrini / Frithiof Wilhelmsen / Tarvinder
Singh Basi / Marieve Gauthier / Youngsik Ahn / Kara Catt / Romina Coates
|
|
92,000,000
|
|
61.33%
|
|
|
|
|
|
|
|
Kommunal Landspensjonskasse, Gjensidig Forsikringsselkap
Dronning Eufemias gate 10
Pb 400
Sentrum 0103
Oslo, Norway
|
|
25,000,000
|
|
16.67%
|
|
|
|
|
|
Credit related matters
Tel: +47 9006 5243
Fax: +47 2203
3600
Email:
anne.kristine.skappel@klp.no
klpfinans@klp.no
Attention: Anne Kristine Skappel
|
|
|
|
|
|
|
|
|
|
Operational matters
Tel: +47 9862 3977 / +47 9077 4226
Fax: +47 7353 3839
Email:
okontrd@klp.no
oen@klp.no
Attention: Anne Kristine Skappel
|
|
|
|
|
|
|
|
|
|
Total
|
|
117,000,000
|
|
78%
|
Part 2: The MLAs
The MLAS
Citibank
N.A, London Branch
25 Canada Square
London E14 5LB, England
Tel: +44
(20) 7508-2950 / + 44 (2) 7508-0575
Fax: +44 20 8636 3824
Email: davide.alessandrini@citi.com, frithiof.wilhelmsen@citi.com, tarvinder.singh.basi@citi.com,
marieve.gauthier@citi.com
,
youngsik.ahn@citi.com
, kara.catt@citi.com, romina.coates@citi.com
Attention: Davide Alessandrini / Frithiof Wilhelmsen / Tarvinder
Singh Basi / Marieve Gauthier / Youngsik Ahn / Kara Catt / Romina Coates
Schedule 2
Part 1: conditions precedent to the Advance
|
|
(a)
|
Constitutional Documents:
Copies of the constitutional documents of each Security Party (other than the Manager) together with such other
evidence as the Facility Agent may reasonably require that each such Security Party is duly formed or incorporated in its country of formation or incorporation and remains in existence with power to enter into, and perform its obligations under, the
Transaction Documents to which it is or is to become a party.
|
|
|
(b)
|
Certificates of good standing:
A certificate of good standing in respect of each Security Party (other than the Manager) (if such a
certificate can be obtained).
|
|
|
(c)
|
Board resolutions:
A copy of a resolution of the board of directors of each Security Party (other than the Manager) (or its sole member or
general partner):
|
|
|
(i)
|
approving the terms of, and the transactions contemplated by, the Transaction Documents to which it is a party and ratifying or resolving that it
execute those Transaction Documents; and
|
|
|
(ii)
|
if required authorising a specified person or persons to execute those Transaction Documents (and all documents and notices to be signed and/or
despatched under those documents) on its behalf.
|
|
|
(d)
|
Officer’s certificates:
A certificate of a duly authorised officer or representative of each Security Party (other than the Manager)
certifying that:
|
|
|
(i)
|
each copy document relating to it specified in this Part 1 of Schedule 2 (other than the certificates of good standing) is correct, complete
and in full force and effect as at a date no earlier than the date of this Agreement; and
|
|
|
(ii)
|
setting out the names of the directors and officers of that Security Party (or its sole member or general partner) and the proportion of shares
held by each shareholder;
|
|
|
(e)
|
Powers of attorney:
The notarially attested and legalised (where necessary for registration purposes) power of attorney of each Security
Party (other than the Manager) under which any documents are to be executed or transactions undertaken by that Security Party.
|
|
2
|
Security and related documents
|
|
|
(a)
|
Project Documents:
A photocopy, certified as true, accurate, complete and in full force and effect by a duly authorised representative of
the Borrower, of the Project Documents, together with all addenda, amendments or supplements.
|
|
|
(b)
|
Facility Documents:
An original of each Facility Document (including, but not limited to, each Facility Security Document but excluding
Hedging Agreements), in each case duly executed by each party thereto together with all other documents required by any of them, including, without limitation, all notices of assignment and/or charge, filing, registration and evidence that those
notices will be duly acknowledged by the recipients, in each case duly executed by each party thereto for the purpose of the effectiveness of the aforementioned Facility Documents.
|
Evidence acceptable to the Facility Agent that the notices of assignment (as required) will on the Delivery Date be served by
the Borrower and the Bareboat Charterer in respect of the Assignment and the Bareboat Charterer Assignment (for the avoidance of doubt excluding the Charterer Consent and notice of assignment given to the Charterer).
Legal opinions of the legal advisers to the Facility Agent in each relevant jurisdiction, substantially in the form provided to
the Facility Agent (and addressed to the Facility Security Trustee) or confirmation satisfactory to the Facility Agent that such an opinion will be given, namely:
|
|
(a)
|
an opinion on matters of English law from Norton Rose Fulbright LLP;
|
|
|
(b)
|
an opinion on matters of Marshall Island law and New York law from Watson, Farley & Williams LLP;
|
|
|
(c)
|
an opinion on matters of Norwegian law from Advokatfirmaet Schjodt AS;
|
|
|
(d)
|
an opinion on matters of Singapore law from Norton Rose Fulbright (Asia) LLP;
|
|
|
(e)
|
an opinion on matters of Brazilian law from Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados; and
|
|
|
(f)
|
an opinion on matters of Bahamas law from Higgs & Johnson.
|
|
5
|
Other documents and evidence
|
|
|
(a)
|
Process agent:
Evidence that any process agent referred to in clause 22.5.1 and any process agent appointed under each Facility Document
accepted its appointment.
|
|
|
(b)
|
Other authorisations:
Other than the Charterer Consent, a copy of any other consent, licence, approval, authorisation or other document,
opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any of the Transaction Documents
or for the validity and enforceability of any of the Transaction Documents.
|
|
|
(c)
|
Fees:
Evidence that the fees, costs and expenses then due from the Borrower under clause 8 and clause 9 have been paid or will be paid on
the date upon which they fall due.
|
|
|
(d)
|
“Know your customer” documents:
Such documentation and other evidence as is reasonably requested by the Facility Agent in order
for the Facility Lenders to comply with all necessary “know your customer” or similar identification procedures in relation to the transactions contemplated in the Facility Documents.
|
|
6
|
Certificate of ownership
|
Evidence satisfactory to the Facility Agent of the direct or indirect ownership (i) by the Sponsor of the shares in the
Shareholder, and (ii) by the Shareholder of the shares in the Borrower and the Bareboat Charterer.
|
|
(a)
|
The GIEK Guarantee has been issued and is in full force and effect.
|
|
|
(b)
|
A legal opinion from the legal advisers to the Facility Agent in Norway on matters of Norwegian law, which shall include confirmation that the
terms of the Facility Documents comply with the requirements of GIEK Guarantee, that the GIEK Guarantee has been duly issued for the benefit of the GIEK Facility Lenders by GIEK and that it is in full force and effect.
|
|
|
(c)
|
A confirmation from GIEK that the Eligible Costs are acceptable and confirmation of the amount of the Hiload Eligible Costs.
|
The Earnings Account and Bareboat Charterer Earnings Account shall each have been opened with the Account Bank.
Confirmation in form and substance satisfactory to the Facility Agent that any and all other amounts of indebtedness relating
to the Vessel are fully subordinated in terms of payment and security to the Facility Documents.
|
10
|
Security and related documents
|
|
|
(a)
|
Evidence of Borrower’s title:
Evidence satisfactory to the Facility Agent that the certificate of ownership and encumbrance (or
equivalent) issued by the Registrar of Ships (or equivalent official) of the Vessel’s Flag State will be issued on the Delivery Date confirming that (a) the Vessel is permanently registered under that flag in the ownership of the Borrower,
(b) the Mortgage has been registered with first priority against the Vessel and (c) there are no further or other Security Interests registered against the Vessel.
|
|
|
(b)
|
Certificate of no Security Interests:
A certificate from the Borrower that upon the Delivery Date the Vessel is free of Security Interests
other than Permitted Security Interests.
|
|
|
(c)
|
Evidence of insurance:
Evidence that the Vessel is insured in the manner required by the Facility Security Documents and that letters of
undertaking will be issued in the manner required by the Facility Security Documents, together with the written approval of the Insurances by an insurance adviser appointed by the Mandated Lead Arrangers and/or Facility Agent (acting on the
instructions of the Majority Facility Lenders).
|
|
|
(d)
|
Confirmation of class:
Certificate of Confirmation of Class confirming that the Vessel is classed with the highest class applicable to
Vessel of her type with a Classification Society.
|
A Valuation.
|
|
(a)
|
A copy, certified as a true copy by a duly authorised officer of the Borrower of the agreed drafts of the protocol of delivery and acceptance under
the Building Contract, with executed copies to be provided as soon as practicable on the Delivery Date, evidencing that the Vessel will be delivered to the Borrower.
|
|
|
(b)
|
Evidence satisfactory to the Lenders that the Borrower has paid, or the Security Parties have procured that there is paid, to the Builder an amount
equal to at least thirty per cent (30%) of the Vessel Total Cost from equity.
|
Part 2: Conditions subsequent
Within five (5) Banking Days after the Delivery Date, letters of undertaking in respect of the Insurances as required by
the Facility Documents together with copies of the relevant policies or cover notes or entry certificates duly endorsed with the interest of the Facility Beneficiaries.
|
2
|
Acknowledgements of notices
|
As soon as practicable after the execution of each relevant Facility Document but no later than ten (10) days after the
execution of each such Facility Document, acknowledgements of all notices of assignment and/or charge given pursuant to that Facility Document.
Within one hundred and eighty (180) days of the date of this Agreement, An opinion on matters of Dutch law from Norton
Rose Fulbright LLP, Amsterdam.
Such other legal opinions specified in this Schedule 2 as have not already been
provided to the Facility Agent.
Within thirty (30) days of the Drawdown Date for the Advance a budget for operation of the Vessel for the immediately
following period of twelve (12) months showing amongst other things proposed capital expenditure.
Within four (4) calendar months of the Delivery Date, a valid and current DOC issued pursuant to the ISM Code, a valid and
current SMC issued in respect of the Vessel pursuant to the ISM Code and any other certificates issued under any applicable code required to be observed by the Vessel or in relation to its operation under Applicable Law.
|
6
|
Brazilian Certification and Registration Requirements
|
By the earlier of (i) one hundred and eighty (180) days of the date of this Agreement, and (ii) ten
(10) Banking Days prior to the first Application Date, evidence satisfactory to the Facility Agent that the Brazilian Certification and Registration Requirements related to this Agreement, the Mortgage, the Deed of Covenants, the Bareboat
Charter Assignment, the Assignment, the Borrower Security Power of Attorney, the Bareboat Charterer Security Power of Attorney, the Notice of Assignment to the Charterer, and the Charter Consent have been performed.
Within one hundred and eighty (180) days of the date of this Agreement, the Facility Agent has received the Charterer
Consent and provided the Notice of Assignment to the Charterer.
Schedule 3
Form of Drawdown Notice
To:
[
●
]
[
●
]
Attention:
[
●
]
Fax No:
[
●
]
Email:
[
●
]
|
|
|
|
|
From: LOGITEL OFFSHORE RIG I PTE. LTD.
|
|
[Date]
|
Dear Sirs,
Drawdown Notice
We refer to the Loan Agreement dated [●] 2015 made between, amongst others, ourselves and yourselves (the
Agreement
).
Words and phrases defined in the Agreement have the same meaning when used in this Drawdown Notice.
Pursuant to clause 4.1 of the Agreement, we irrevocably request that you make the Advance in the sum of [●], being:
[●] in respect of the GIEK Facility Advance;
[●] in respect of the Commercial Facility Advance,
to us on [●], which is a Banking Day, by paying the amount of the Advance to [
●
].
The first Interest Period shall be for a duration of [3/6] months.
We warrant that the representations and warranties contained in clause 11 (except for clauses 11.2, 11.6 and 11.18) of the
Agreement are true and correct at the date of this Drawdown Notice and will be true and correct on [●], that no Default has occurred and is continuing, and that no Default will result from the advance of the sum requested in this Drawdown
Notice.
Yours faithfully
.............................
For and on behalf of
LOGITEL
OFFSHORE RIG I PTE. LTD.
Schedule 4
Form of Transfer Certificate
|
|
|
|
|
To:
|
|
[●]
|
|
|
|
[●]
|
|
|
|
|
|
|
Attention:
[
●
]
|
|
|
|
Fax No:
[
●
]
|
|
|
|
Email:
[
●
]
|
TRANSFER CERTIFICATE
This transfer certificate relates to a secured loan facility agreement (as from time to time amended, varied, supplemented or novated the
Loan Agreement
) dated [
●
] 2015, on the terms and subject to the conditions of which a secured term loan facility was made available to Logitel Offshore Rig I Pte. Ltd., by a syndicate of banks on whose behalf you act
as facility agent and facility security trustee.
|
1
|
Terms defined in the Loan Agreement shall, unless otherwise expressly indicated, have the same meaning when used in this certificate. The terms
Transferor
and
Transferee
are defined in the schedule to this certificate.
|
|
|
(a)
|
confirms that the details in the Schedule under the heading
Transferor’s Commitment
accurately summarise its Commitment; and
|
|
|
(b)
|
requests the Transferee to accept by way of novation the transfer to the Transferee of the amount of the Transferor’s Commitment specified in
the Schedule by counter-signing and delivering this certificate to the Facility Agent at its address for communications specified in the Loan Agreement.
|
|
3
|
The Transferee requests the Facility Agent to accept this certificate as being delivered to the Facility Agent pursuant to and for the purposes of
clause 14.5 of the Loan Agreement so as to take effect in accordance with the terms of that clause on the Transfer Date specified in the Schedule.
|
|
4
|
The Facility Agent confirms its acceptance of this certificate for the purposes of clause 14.4 of the Loan Agreement.
|
|
5
|
The Transferee confirms that:
|
|
|
(a)
|
it has received a copy of the Loan Agreement together with all other information which it has required in connection with this transaction;
|
|
|
(b)
|
it has not relied and will not in the future rely on the Transferor or any other party to the Loan Agreement to check or enquire on its behalf into
the legality, validity, effectiveness, adequacy, accuracy or completeness of any such information; and
|
|
|
(c)
|
it has not relied and will not in the future rely on the Transferor or any other party to the Loan Agreement to keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or nature of any Security Party.
|
|
6
|
Execution of this certificate by the Transferee constitutes its representation and warranty to the Transferor and to all other parties to the Loan
Agreement that it has the power to become a party to the Loan Agreement as a Facility Lender on the terms of the Loan Agreement and has taken all steps to authorise execution and delivery of this certificate.
|
|
7
|
The Transferee undertakes with the Transferor and each of the other parties to the Loan Agreement that it will perform in accordance with their
terms all those obligations which by the terms of the Loan Agreement will be assumed by it after delivery of this certificate to the Facility Agent and the satisfaction of any conditions subject to which this certificate is expressed to take effect.
|
|
8
|
The Transferor makes no representation or warranty and assumes no responsibility with respect to the legality, validity, effectiveness, adequacy or
enforceability of any Facility Document or any document relating to any Facility Document, and assumes no responsibility for the financial condition of any Facility Beneficiary or for the performance and observance by any Security Party of any of
its obligations under any Facility Document or any document relating to any Facility Document and any conditions and warranties implied by law are expressly excluded.
|
|
9
|
The Transferee acknowledges that nothing in this certificate or in the Loan Agreement shall oblige the Transferor to:
|
|
|
(a)
|
accept a re-transfer from the Transferee of the whole or any part of the rights, benefits and/or obligations transferred pursuant to this
certificate; or
|
|
|
(b)
|
support any losses directly or indirectly sustained or incurred by the Transferee for any reason including, without limitation, the non-performance
by any party to any Facility Document of any obligations under any Facility Document.
|
|
10
|
The address and fax number of the Transferee for the purposes of clause 18 of the Loan Agreement are set out in the Schedule.
|
|
11
|
This certificate may be executed in any number of counterparts each of which shall be original but which shall together constitute the same
instrument.
|
|
12
|
This certificate and all non-contractual obligations in connection with it shall be governed by and interpreted in accordance with English law.
|
THE SCHEDULE
Transferor:
Transferee:
Transfer Date
Transferor’s Commitment:
Amount transferred:
Transferee’s address and fax number for the purposes of clause 18 of the Loan Agreement:
|
|
|
|
|
[
name of Transferor]
|
|
[name of Transferee
]
|
|
|
|
|
By:
|
|
By:
|
|
|
|
|
Date:
|
|
Date:
|
[
l
] as Facility Agent and on behalf of each of the Facility Beneficiaries and the Borrower
By:
Date:
Schedule 5
Schedule of Repayment Amounts
|
|
|
|
|
|
|
|
|
|
|
(1)
Application Dates
|
|
(2)
Repayment
Amount ($)
(GIEK)
|
|
|
(3)
Repayment Amount
($)
(Commercial)
|
|
|
|
|
|
|
1
|
|
|
5,850,000
|
|
|
|
1,650,000
|
|
|
|
|
|
|
2
|
|
|
5,850,000
|
|
|
|
1,650,000
|
|
|
|
|
|
|
3
|
|
|
5,850,000
|
|
|
|
1,650,000
|
|
|
|
|
|
|
4
|
|
|
5,850,000
|
|
|
|
1,650,000
|
|
|
|
|
|
|
5
|
|
|
5,850,000
|
|
|
|
1,650,000
|
|
|
|
|
|
|
6
|
|
|
5,850,000
|
|
|
|
1,650,000
|
|
|
|
|
|
|
7
|
|
|
5,850,000
|
|
|
|
1,650,000
|
|
|
|
|
|
|
8
|
|
|
5,850,000
|
|
|
|
1,650,000
|
|
|
|
|
|
|
9
|
|
|
5,850,000
|
|
|
|
1,650,000
|
|
|
|
|
|
|
10
|
|
|
5,850,000
|
|
|
|
1,650,000
|
|
|
|
|
|
|
11
|
|
|
5,850,000
|
|
|
|
1,650,000
|
|
|
|
|
|
|
12
|
|
|
5,850,000
|
|
|
|
14,850,000
|
|
|
|
|
|
|
13
|
|
|
5,850,000
|
|
|
|
|
|
|
|
|
|
|
14
|
|
|
5,850,000
|
|
|
|
|
|
|
|
|
|
|
15
|
|
|
5,850,000
|
|
|
|
|
|
|
|
|
|
|
16
|
|
|
5,850,000
|
|
|
|
|
|
|
|
|
|
|
17
|
|
|
5,850,000
|
|
|
|
|
|
|
|
|
|
|
18
|
|
|
5,850,000
|
|
|
|
|
|
|
|
|
|
|
19
|
|
|
5,850,000
|
|
|
|
|
|
|
|
|
|
|
20
|
|
|
5,850,000
|
|
|
|
|
|
|
|
|
|
|
TOTAL
|
|
|
117,000,000
|
|
|
|
33,000,000
|
|
Schedule 6
Definitions
Accession
Deed
means an accession deed substantially in the terms of Schedule 8.
Account Bank
means in respect of the Earnings
Account, DNB Bank ASA, New York branch acting through its office at 200 Park Avenue, New York, NY, and in respect of the Bareboat Charterer Earnings Account, DNB Bank ASA, Oslo Branch acting through its office at Oslo Norway.
Account Charge
means the account charge relating to the Earnings Account executed or, as the context may require, to be executed by the
Borrower in favour of the Facility Security Trustee and the deposit account control agreement between the Borrower, the Account Bank and the Facility Security Trustee.
Accounting Reference Date
means 31 December.
Additional Facility
means an export credit supported term loan facility for the purpose of financing (in whole or part) Rig 2 and/or
Rig 3 upon delivery thereof (where there is to be cross-collateralisation between the Additional Facility and this Facility) but excludes a Restatement.
Additional Facility Principles
means each of the principles set out in Schedule 9.
Advance
means the amount advanced or to be advanced by the Facility Lenders to the Borrower under clause 4 of this Agreement.
Affiliate
means, in relation to any entity, a Subsidiary of that entity, a Holding Company of that entity or any other Subsidiary of
that Holding Company.
Agreed Form
in relation to any document, means that document in form, substance and terms approved in
writing by the Facility Agent (acting on the instructions of all of the Facility Lenders) and a Security Party or otherwise in accordance with any such other approval procedure detailed in any relevant provision of this Agreement and any other
Facility Document.
Applicable Law
means, in relation to any jurisdiction or the European Union, any law, regulation, treaty,
directive, decision, rule, regulatory requirement, judgment, order, ordinance request, guideline or direction or any other act of any Government Entity of such jurisdiction or of any EU Institution whether or not having the force of law and with
which any relevant person is required to comply.
Application Date
means (a) the date falling six (6) months after the
Drawdown Date, (b) each date falling six (6) months subsequently to the previous Application Date within the Facility Security Period, (c) the GIEK Final Maturity Date, and (d) the Commercial Final Maturity Date.
Approved Brokers
means H Clarkson & Co. Ltd, Simpson Spence & Young Shipbrokers Ltd, Fearnley AS, R.S. Platou AS,
Braemar Seascope and Kennedy Marr or such other firm or firms of reputable and independent ship brokers as may from time to time be approved in writing by the Facility Agent (acting on the instructions of the Majority Facility Lenders and GIEK,
acting reasonably).
Assignment
means the first priority security assignment executed or to be executed by the Borrower in favour
of the Facility Security Trustee, in the Agreed Form.
Authorisation
means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
Availability Period
means the period commencing at the date of this
Agreement and ending on the earlier of (i) the Drawdown Date for the Advance (ii) the Delivery Date, and (iii) 25 August 2015.
Banking Day
means a day (other than Saturday or Sunday) on which banks are open for normal banking business in London, Oslo, Singapore
and New York.
Bareboat Charter
means the time charter agreement, entered into or to be entered into
between the Bareboat Charterer and the Borrower in relation to the Vessel in the Agreed Form.
Bareboat Charterer
means Logitel
Offshore Norway AS, a company incorporated in Norway with registered company number 912 437 027 and its registered office at Verven 4, 4014 Stavanger, 1103 Norway.
Bareboat Charterer Account Charge
means the account charge relating to the Bareboat Charterer Earnings Account executed or, as the
context may require, to be executed by the Bareboat Charterer in favour of the Facility Security Trustee, in the Agreed Form.
Bareboat
Charterer Assignment
means the deed of assignment executed or, as the context may require, to be executed by the Bareboat Charterer in favour of the Borrower, in the Agreed Form.
Bareboat Charterer Earnings Account
means account number NO73 1250 0525 787 held by the Bareboat Charterer with the Account Bank and
includes any redesignation and sub-accounts thereof.
Bareboat Charterer Security Power of Attorney
means the power of attorney
coupled with security and issued or to be issued by the Bareboat Charterer in favour of the Facility Security Trustee in the Agreed Form.
Basel III
means, together:
|
|
(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”.
|
Bookrunner
means Citibank N.A., London Branch.
Borrowed Money
means Indebtedness (without double counting) in respect of (i) money borrowed or raised and debit balances at
banks, (ii) any bond, note, loan stock, debenture or similar debt instrument, (iii) acceptance or documentary credit facilities, (iv) receivables sold or discounted (otherwise than on a non-recourse basis), (v) deferred payments
for assets or services acquired having the commercial effect of a borrowing or raising of money (but not ordinary trade credit), (vi) finance leases and hire purchase contracts which, in accordance with GAAP, are at the relevant time treated as
a finance or capital lease (but only to the extent of such treatment), (vii) the marked to market value of Derivatives Contracts, (viii) any other transaction (including without limitation forward sale or purchase agreements) having the
commercial effect of a borrowing or raising of money or of any of (ii) to (vii) above and (ix) guarantees in respect of Indebtedness of any other person falling within any of (i) to (viii) above.
Borrower
means Logitel Offshore Rig I Pte. Ltd., a private limited company incorporated in Singapore whose registered office is at 435
Orchard Road #11-00, Wisma Atria, Singapore, 238877.
Borrower Security Power of Attorney
means the power of attorney coupled with
security and issued by the Borrower in favour of the Facility Security Trustee, in the Agreed Form.
Borrower Share Pledge
means
the first priority pledge agreement in respect of all of the shares in the Borrower executed or to be executed by the Shareholder in favour of the Facility Security Trustee, in the Agreed Form.
Brazilian Certification and Registration Requirements
means, in relation to a Facility
Document:
|
|
(a)
|
if any person executed that Facility Document in Brazil, certification (
reconhecimento de firma
) of that person’s signature;
|
|
|
(b)
|
if any person executed that Facility Document outside Brazil, certification by a notary of that person’s signature and (if the person executed
that Facility Document outside Brazil, Argentina, France, Spain, Italy, Paraguay and Uruguay) legalisation of the signature and seal of that notary in the relevant Brazilian Consulate; and
|
|
|
(c)
|
a certified translation of that Facility Document into Portuguese.
|
Break Costs
means the amount (if any) by which:
|
|
(a)
|
the interest (excluding the Margin) which a Facility Lender should have received for the period from the date of receipt of all or any part of its
participation in the Advance or the Loan or an Unpaid Sum to the last day of the current Interest Period in respect of that Advance or the Loan or that Unpaid Sum, had that Advance or the Loan or that Unpaid Sum been paid on the last day of that
Interest Period,
|
exceeds:
|
|
(b)
|
the amount which that Facility Lender would be able to obtain by placing an amount equal to the principal amount equal to its participation in that
Advance or the Loan or that Unpaid Sum received by it on deposit with a leading bank in the London Interbank Market for a period starting on the Banking Day following receipt or recovery and ending on the last day of the current Interest Period.
|
Builder
means, COSCO Nantong Shipyard Co. Ltd., of No. 1 Zhongyuan Road, Nantong City, Jiangsu,
Peoples’ Republic of China.
Building Contract
means the building contract dated 18 June 2013 between the Builder and the
Borrower.
Casualty Amount
means ten million Dollars ($10,000,000) or the equivalent in any other currency.
Change in Law
means the occurrence, after the date of this Agreement, of any of the following:
|
|
(a)
|
the adoption or taking effect of any law, rule, regulation or treaty;
|
|
|
(b)
|
any change in law, rule, regulation or treaty or in the administration, interpretation implementation or application thereof by any Government
Entity; or
|
|
|
(c)
|
the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Government Entity,
|
provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer
Protection Act of the United States of America, passed in 2010 and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for
International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a
“Change in Law” regardless of the date enacted, adopted or issued.
Charter
means the time charter agreement dated
8 November 2013 between the Bareboat Charterer, the Charterer and Sevan Marine ASA, as amended from time to time by a Permitted Amendment.
Charter Period
means the Term (as defined in the Charter).
Charter Proceeds
means all hires, freights, pool income and other sums payable to or for the account of the Bareboat Charterer in
respect of the Vessel including (without limitation) the account of all remuneration for salvage and towage services, demurrage and detention moneys, contributions in general average, compensation in respect of a requisition for hire and damages and
other payments (whether awarded by any court or arbitral tribunal or by agreement or otherwise) for breach, termination or variation of any contract for the operation, employment or use of the Vessel.
Charter Rate
means the full amount of that part of the daily rate payable under the Charter in Dollars (being initially one hundred and
fifty two thousand and five hundred Dollars ($152,500)).
Charterer
means Petrobras Netherlands B.V., a company incorporated under
the laws of the Kingdom of Netherlands with its registered office at Weenapoint, Toren A, Weena 722, 3e Verdieping, 3014 DA Rotterdam, The Netherlands.
Charterer Consent
means the written consent from the Charterer consenting to the assignment of the rights under the Charter pursuant to
the Assignment and the Bareboat Charterer Assignment in the Agreed Form.
Classification
means the class notation DNV +1A1,
Accommodation Unit ECO DYNPOS AUTRO, POSMOOR ATA/V(Option), CLEAN, HELDK-SH, CRANE, COMF C(3), COMF V(3) with the Classification Society and such other additional class notations (e.g. relating to self-propelled or operating environment or fatigue
analysis) in relation to the Vessel as the Facility Security Trustee shall, at the request of the Borrower, have agreed in writing which shall be treated as the Classification of the Vessel, for the purposes of this Agreement and the other Facility
Documents.
Classification Society
means any of DNV GL, Lloyds Register, American Bureau of Shipping (ABS) or Bureau Veritas or
such other classification society acceptable to the Majority Facility Lenders.
Collateral
means any and all assets over or in
respect of which any Security Interest is created or expressed to be created by any Security Party in favour of the Facility Beneficiaries or any of them pursuant to or in accordance with any of the Facility Security Documents.
Collateral Instruments
means notes, bills of exchange, certificates of deposit and other negotiable and non-negotiable instruments,
guarantees, indemnities and other assurances against financial loss and any other documents or instruments which contain or evidence an obligation (with or without security) to pay, discharge or be responsible directly or indirectly for any
indebtedness or liabilities of any person and includes any documents or instruments creating or evidencing an Security Interest.
Commercial Facility
means the term loan facility made available by the Commercial Facility Lenders under this Agreement as described in
clause 2 of this Agreement.
Commercial Facility Advance
means an advance of the Commercial Facility Commitments in accordance with
clause 4 of this Agreement.
Commercial Facility Commitment
means:
|
|
(a)
|
in relation to a Commercial Facility Lender at the date of this Agreement, the amount set opposite its name under the heading “Commercial
Facility Commitment” in Schedule 1, Part 1 and the amount of any other Commercial Facility Commitment transferred to it under this Agreement; and
|
|
|
(b)
|
in relation to any other Commercial Facility Lender, the amount of any Commercial Facility Commitment transferred to it under this Agreement,
|
to the extent not cancelled, reduced or transferred by it under this Agreement.
Commercial Facility Lenders
means:
|
|
(a)
|
the Commercial Facility Lenders set out in Schedule 1, Part 1 of this Agreement; and
|
|
|
(b)
|
any bank, financial institution or other regulated investment company which has become a party as a Commercial facility lender in accordance with
clause 14,
|
which in each case has not ceased to be a party in accordance with the terms of this Agreement.
Commercial Final Maturity Date
means the date falling on the sixth (6th) anniversary of the Drawdown Date.
Commercial Final Payment
means the amount of the Commercial Loan outstanding and owing to the Commercial Facility Lenders as of the
Commercial Final Maturity Date.
Commercial Loan
means a loan made or to be made under the Commercial Facility or the principal
amount outstanding for the time being of that loan.
Commitment
means, in relation to a Facility Lender, its GIEK Facility
Commitment and/or Commercial Facility Commitment.
Commitment Fee
means the commitment commission payable by the Borrower pursuant
to clause 9.1 of this Agreement.
Compulsory Acquisition
means requisition for use or title or other compulsory acquisition,
nationalisation, requisition, appropriation, expropriation, deprivation, forfeiture or confiscation for any reason of the Vessel by any Government Entity or other competent authority, whether de jure or de facto, but shall exclude requisition for
hire not involving requisition for title.
Contribution
means, in relation to a Facility Lender, the part of the Loan which is
owing to that Facility Lender.
Currency of Account
means, in relation to any payment to be made to a Facility Beneficiary under a
Facility Document, the currency in which that payment is required to be made by the terms of that Facility Document.
Deed of
Covenants
means the first priority deed of covenant collateral to the Mortgage executed or, as the context may require, to be executed by the Borrower in favour of the Facility Security Trustee, in the Agreed Form.
Default
means any Event of Default or any event or circumstance specified in clause 13.1 of this Agreement which would, with the giving
of a notice and/or the expiry of the relevant period and/or the fulfilment of any other condition, become an Event of Default.
Defaulting Facility Lender
means any Facility Lender which has failed to make its participation in the Advance available (or has
notified the Facility Agent or the Borrower (which has notified the Facility Agent) that it will not make its participation in the Advance available) by the Drawdown Date of the Advance in accordance with clause 4 unless:
|
|
(i)
|
its failure to pay is caused by:
|
|
|
(A)
|
administrative or technical error; or
|
|
|
(B)
|
a Disruption Event; and
|
payment is made within ten Banking Days of its due date; or
|
|
(ii)
|
the Facility Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
Default Rate
means the interest rate specified in clause 7.7 of this Agreement.
Delivery Date
means the date upon which the Vessel is delivered to, title is transferred to, and accepted by, the Borrower under the
Building Contract,
Derivatives Contract
means a contract, agreement or transaction which is:
|
|
(a)
|
a rate swap, basis swap, commodity swap, forward rate transaction, commodity option, equity (or equity or other index) swap or option, bond option,
interest rate option, foreign exchange transaction, cap, collar or floor, currency swap, currency option or any other similar transaction; and/or
|
|
|
(b)
|
any combination of such transactions,
|
in each case, whether on-exchange or otherwise.
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 Facility (or otherwise in order for the transactions contemplated by the Facility Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties;
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 Facility Documents; or
|
|
|
(ii)
|
from communicating with other Parties in accordance with the terms of the Facility Documents,
|
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
Distribution
means, in relation to a person, any payment by or distribution of assets by that person, whether in cash, property,
securities or otherwise.
DOC
means, in relation to the ISM Company, a valid Document of Compliance issued for the ISM Company by
the Administration under paragraph 13.2 of the ISM Code.
Dollars
and
$
mean the lawful currency of the United States of
America and in respect of all payments to be made under this Agreement and the other Transaction Documents in Dollars mean funds which are for same day settlement in the New York Clearing House Interbank Payments System (or such other US dollar
funds as may at the relevant time be customary for the settlement of international banking transactions denominated in US dollars).
Drawdown Date
means the date, being a Banking Day within the Availability Period, on which the Advance is, or is to be, drawn down or
made pursuant to clause 4 of this Agreement.
Drawdown Notice
means a notice in the form or substantially in the form of
Schedule 3 to this Agreement.
Earnings
means the Revenue and the Charter Proceeds.
Earnings Account
means account number 10860001 held by the Borrower with the Account Bank and includes any redesignation and
sub-accounts thereof.
Eligible Costs
means the costs, expressed in Dollars, incurred by the Borrower or any
other member of the TOO Group for the project involving the Vessel and Rig 2 which constitute Norwegian content.
Environmental
Affiliate
means an agent or employee of the Borrower or the Bareboat Charterer or the Manager or a person in a contractual relationship with the Borrower or the Bareboat Charterer or the Manager (other than the Charterer) in respect of the
Vessel (including without limitation, the operation of or the carriage of cargo of the Vessel).
Environmental Approvals
means any
present or future permit, licence, approval, ruling, variance, exemption or other authorisation required under applicable Environmental Laws.
Environmental Claim
means any and all enforcement, clean-up, removal, administrative, governmental, regulatory or judicial actions,
orders demands or investigations instituted or completed pursuant to any Environmental Laws or Environmental Approvals together with any claims made by any third person relating to damage, contribution, loss or injury resulting from any
Environmental Incident.
Environmental Incident
means:
|
|
(a)
|
any release of Environmentally Sensitive Material from the Vessel; or
|
|
|
(b)
|
any incident in which Environmentally Sensitive Material is released from a vessel other than the Vessel which involves a collision between the
Vessel and such other vessel or some other incident of navigation or operation between the Vessel and such other vessel, in either case, in connection with which the Vessel is actually or potentially liable to be arrested, attached, detained or
injuncted and/or where any guarantor, any manager (or any sub-manager) of the Vessel or any of its officers, employees, or other persons retained or instructed by it (or such sub-manager) are at fault or are 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 Vessel and in connection with which the Vessel
is actually or potentially liable to be arrested and/or where any guarantor, any manager (or any sub-manager) of the Vessel or any of its officers, employees or other persons retained or instructed by it (or such sub-manager) are at fault or
allegedly at fault or otherwise liable to any legal or administrative action.
|
Environmental Law
includes all
present and future laws, regulations, treaties and contentions of any applicable jurisdiction which:
|
|
(a)
|
have as a purpose or effect the protection of, and/or prevention of, harm or damage to, the Environment;
|
|
|
(b)
|
relate to the carriage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material;
|
|
|
(c)
|
provide remedies or compensation for harm or damage to the environment; or
|
|
|
(d)
|
relate to Environmentally Sensitive Material or health, social or safety matters.
|
Environmentally Sensitive Material
means (i) oil and oil products and (ii) any other waste, pollutant, contaminant or other
substance (including any liquid, solid, gas, ion, living organism or noise) that may be harmful to human health or other life or the environment or a nuisance to any person or that may make the enjoyment, ownership or other territorial control of
any affected land, property or waters more costly for such person to a material degree.
Equator Principles
means the set of
environmental guidelines developed by commercial banks and the International Finance Corporation for the purpose of assessing and managing environmental and social issues related to private sector project financings, as adopted on 4 June 2003
and revised in June 2006 and as revised from time to time.
Event of Default
means any of the events or circumstances described in clause 13.1 of
this Agreement.
Expenses
means:
|
|
(a)
|
all Losses suffered, incurred or paid by any Facility Beneficiary, GIEK or any Insolvency Official in connection with the exercise of the rights,
remedies and powers granted by, referred to in, or otherwise contemplated by the Facility Documents; and
|
|
|
(b)
|
interest on those Losses at the Default Rate, from the date of demand by the relevant Facility Beneficiary, GIEK or Insolvency Official to the date
of payment (after as well as before judgment).
|
Facility
means each of the GIEK Facility and the Commercial
Facility, and
Facilities
means all of them.
Facility Agent
means Citibank International Limited acting through its office
at Citigroup Centre, 5
th
Floor CGC2, Canary Wharf, London E14 5LB or such other person as may be appointed agent for the Facility Lenders pursuant to clause 15.21 or clause 15.22 of this
Agreement.
Facility Beneficiaries
means together the Facility Agent, the Facility Security Trustee, the GIEK Agent, the Mandated
Lead Arrangers, the Bookrunner, the Hedging Providers and the Facility Lenders (each a
Facility Beneficiary
).
Facility
Documents
means:
|
|
(c)
|
the Financial Guarantee;
|
|
|
(d)
|
the Hedging Agreements;
|
|
|
(e)
|
the Payment Direction Letter;
|
|
|
(f)
|
the Letter of Undertaking;
|
|
|
(h)
|
the Facility Security Documents; and
|
|
|
(i)
|
each other document which the Borrower and the Facility Agent agree shall be a Facility Document for the purposes of the Facility Documents,
|
(each a
Facility Document
).
Facility Lenders
means together the GIEK Facility Lenders and the Commercial Facility Lenders (each a
Facility Lender
).
Facility Limit
means one hundred and fifty million Dollars ($150,000,000).
Facility Secured Obligations
means all monies, obligations and liabilities, present or future, actual or contingent, from time to time
owing or payable, undertaken, incurred or assumed by the Borrower or any other Security Party to the Facility Beneficiaries (or any of them) under or pursuant to this Agreement and the other Facility Documents and includes (without limitation) the
Hedging Secured Obligations.
Facility Secured Obligations Discharge Date
means the last day of the Facility Security
Period.
Facility Secured Property
means (i) the security, powers, rights, titles, benefits and interests (both present and
future, actual or contingent) constituted by and conferred upon the Facility Beneficiaries or any of them under or pursuant to the Facility Security Documents and any notices or acknowledgements or undertakings given in respect of or in connection
with any of the Facility Security Documents (including, without limitation, the benefit of all covenants, undertakings, representations, warranties and obligations given, made or undertaken to any Facility Beneficiary in the Facility Security
Documents and any notices or acknowledgements or undertakings given in respect of or in connection with any of the Facility Security Documents), (ii) all moneys and other assets paid or transferred to or vested in any Facility Beneficiary or
any agent of any Facility Beneficiary or any Insolvency Official or received or recovered by any Facility Beneficiary or any agent of any Facility Beneficiary or any Insolvency Official pursuant to, or in connection with, any of the Facility
Security Documents and any notices or acknowledgements or undertakings given in respect of or in connection with any of the Facility Security Documents, whether from any Security Party, any Project Counterparty or any other person, and
(iii) all moneys, investments, and other assets at any time representing or deriving from any of the foregoing, including all interest, income and other sums at any time received or receivable by any Facility Beneficiary or any agent of any
Facility Beneficiary or any Insolvency Official in respect of the same (or any part thereof).
Facility Security Documents
means
together:
|
|
(b)
|
the Borrower Share Pledge;
|
|
|
(e)
|
the Deed of Covenants;
|
|
|
(f)
|
the Bareboat Charterer Assignment;
|
|
|
(g)
|
the Notices of Assignment;
|
|
|
(h)
|
the Borrower Security Power of Attorney;
|
|
|
(i)
|
the Bareboat Charterer Security Power of Attorney;
|
|
|
(j)
|
the Bareboat Charterer Account Charge;
|
|
|
(k)
|
the Manager Undertaking (if any);
|
|
|
(l)
|
the Master Agreement Charge; and
|
|
|
(m)
|
each other document which the Borrower and the Facility Security Trustee agree shall be a Facility Security Document for the purposes of the
Facility Documents,
|
(each a
Facility Security Document
).
Facility Security Period
means the period commencing on the date of this Agreement and terminating on the date on which all of the
Facility Secured Obligations have been paid, repaid, satisfied, performed and discharged irrevocably and unconditionally in full.
Facility Security Rights
means any rights to enforce the Security Interest constituted by any Facility Document.
Facility Security Trustee
means Citibank N.A., London Branch acting through its head
office at Citigroup Centre, Canada Square, London E14 5LB, England in its capacity as security trustee on behalf of the Facility Beneficiaries for the purposes of the Facility Documents or such other person as may be appointed facility security
trustee pursuant to clause 15.21 of this Agreement.
FATCA
means:
|
|
(a)
|
sections 1471 to 1474 of the US Internal Revenue Code of 1986 (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 2017; 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 2017,
|
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 Facility Document required by FATCA.
FATCA Exempt Party
means a Party that is
entitled to receive payments free from any FATCA Deduction.
FATCA FFI
means a foreign financial institution as defined in section
1471(d)(4) of the Code which, if any Facility Beneficiary is not a FATCA Exempt Party, could be required to make a FATCA Deduction.
Fee Letters
means any letters entered into by reference to this Agreement in relation to any fees and
Fee Letter
means any one
of them.
Final Disposition
means the completion of the sale of the Vessel (or any part thereof) against payment in cash, whether
through an agent on its behalf or otherwise, or of all the Borrower’s rights, title and interest in and to the Vessel (or the relevant part), on terms that such right, title and interest will only pass to the purchaser on payment in full of
that cash.
Final Disposition Proceeds
means the aggregate amount of:
|
|
(a)
|
all cash consideration received upon, or as a result of, the Final Disposition of the Vessel; and
|
|
|
(b)
|
any non-refundable deposit paid by a person acquiring or proposing to acquire the Vessel under a contract or offer to purchase, or otherwise
acquire the Vessel which has been withdrawn, terminated or cancelled or has lapsed.
|
Financial Guarantee
means the guarantee entered into or to be entered into by the Sponsor
in favour of the Facility Security Trustee referring to the Facility Secured Obligations, in the Agreed Form.
Fixed Rate
means, in
relation to a Hedging Agreement, the fixed rate of interest by reference to which periodic payments and receipts to be made or received under that Hedging Agreement are calculated.
Flag State
means Bahamas or any other state or country in which the Vessel, with the prior written consent of the Facility Security
Trustee (acting after consultation with, and on the instructions of, the Facility Lenders and GIEK (but provided that Cyprus, Marshall Islands, Norwegian International Ship Register, Liberia, Panama, Isle of Man, Cayman Islands, Bermuda and
Singapore are pre-approved)), is from time to time registered in accordance with the provisions of this Agreement, the Assignment and the other Transaction Documents.
GAAP
means generally accepted accounting principles in the United States of America.
General Partner
means Teekay Offshore GP L.L.C., a limited liability company formed and existing according to the law of the Marshall
Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands MH-96960.
GIEK
means Garanti-Instituttet for Eksportkreditt acting through its office at Dronning Maudsgate 15, Vika N-0122, Oslo, Norway.
GIEK
Agent
means Citibank N.A., London Branch or such other person as may be appointed agent for the GIEK Facility Lenders
pursuant to clause 15.21 of this Agreement.
GIEK Decisions
means waivers, consents or approvals under or pursuant to the Facility
Documents which do not have the effect of varying, changing or amending:
|
|
(a)
|
the timing of the Advance (including time periods for notices);
|
|
|
(b)
|
the Availability Period;
|
|
|
(d)
|
the definition of LIBOR or any aspect of the interest rate setting mechanism;
|
|
|
(e)
|
an Interest Payment Date, an Application Date, an Interest Period or any amount due on or in respect of, such date;
|
|
|
(f)
|
the currency in which any sum is payable;
|
|
|
(g)
|
the identity of the Borrower and/or the Sponsor for “Know Your Customer” purposes;
|
|
|
(h)
|
the amount of, or due date for, any commitment fee; and/or
|
|
|
(i)
|
the amount of a GIEK Facility Commitment.
|
unless the approval of all Facility Lenders are required for such waiver, consent or approval, in which case the approval of GIEK is also
required.
GIEK Facility
means the term loan facility made available by the GIEK Facility Lenders under this Agreement as described
in clause 2.
GIEK Facility Advance
means an advance of the GIEK Facility Commitments in accordance with clause 4.
GIEK Facility Commitment
means:
|
|
(a)
|
in relation to a GIEK Facility Lender at the date of this Agreement, the amount set opposite its name under the heading “GIEK Facility
Commitment” in Schedule 1, Part 1 and the amount of any other GIEK Facility Commitment transferred to it under this Agreement; and
|
|
|
(a)
|
in relation to any other GIEK Facility Lender, the amount of any GIEK Facility Commitment transferred to it under this Agreement,
|
to the extent not cancelled, reduced or transferred by it under this Agreement.
GIEK Facility Contribution
means, in relation to a GIEK Facility Lender, the part of the GIEK Loan which is owing to that GIEK Facility
Lender.
GIEK Facility Lenders
means:
|
|
(b)
|
the GIEK Facility Lenders set out in Schedule 1, Part 1 of this Agreement; and
|
|
|
(c)
|
any bank, financial institution or other regulated investment company which has become a party as a GIEK facility lender in accordance with clause
14,
|
which in each case has not ceased to be a party in accordance with the terms of this Agreement.
GIEK Final Maturity Date
means the date falling on the tenth
(10
th
) anniversary of the Drawdown Date.
GIEK Final Payment
means the
amount of the GIEK Loan outstanding and owing to the GIEK Facility Lenders as at the GIEK Final Maturity Date.
GIEK Guarantee
means the guarantee issued or to be issued in favour of the GIEK Agent and/or the GIEK Facility Lenders pursuant to which GIEK has guaranteed or will guarantee the GIEK Facility Commitment of each GIEK Lender, together with, as the context may
require, the “Offer for Guarantee Policy Buyer Credit Guarantee No 300670”, in each case on terms agreed between the GIEK Facility Lenders, the GIEK Agent and GIEK.
GIEK Loan
means a loan made or to be made under the GIEK Facility or the principal amount outstanding for the time being of that loan.
GIEK Premium
means one point one per cent. (1.1%) per annum of a GIEK Facility Advance or GIEK Facility Loan being payable or
(as the context may require) paid to GIEK under the terms of the GIEK Guarantee at the end of each Interest Period.
GIEK Proportionate
Share
means, at any time prior to the Advance being made, the proportion which a GIEK Facility Lender’s GIEK Facility Commitment then bears to the aggregate GIEK Facility Commitments of all GIEK Facility Lenders and at any time after the
Advance has been made, the proportion which a GIEK Facility Lender’s Contribution then bears to the GIEK Loan.
Government
Entity
means and includes (whether having a distinct legal personality or not) (i) any national or local government authority, (ii) any board, commission, department, division, organ, instrumentality, court or agency of any entity
referred to in paragraph (i), however constituted, and (iii) any international association, organisation or institution of which any entity mentioned in paragraph (i) or (ii) above is a member or to whose jurisdiction any such entity
is subject or in whose activities any such entity is a participant.
Hedging Agreements
means (i) the confirmation or
confirmations (if any) for the purposes of managing the interest rate risk under the Facility (including, but not limited to, swaptions, options and interest caps), and/or (ii) the International Swaps and Derivatives Association Master
Agreement (the
Master Agreement
) entered into or, as the context may require, to be entered into, in each case, between the Hedging Providers (or any of them) as interest hedging provider or, as the case may be, swap provider and the Borrower
as counterparty and includes any schedule to that Master Agreement and any confirmation issued under that Master Agreement, and includes any replacement or amendment thereof approved by the Facility Lenders in accordance with clause 12.1.29 of this
Agreement.
Hedging Providers
means:
|
|
(a)
|
each bank or financial institution that becomes a party to this Agreement in its capacity as a Hedging Provider by way of Transfer Certificate or
Accession Deed; and which in each case
|
|
|
(b)
|
is party to a Hedging Agreement,
|
(each a
Hedging Provider
).
Hedging Secured Obligations
means all monies, obligations and liabilities, present or future, actual or contingent, from time to time
owing or payable, undertaken, incurred or assumed by the Borrower or any other Security Party to any Hedging Provider under or pursuant to the Hedging Agreements and the other Facility Documents (for the avoidance of doubt, without prejudice to and
after giving effect to any contractual set off and/or netting provisions contained in that Hedging Agreement and including, without limitation, any Swap Payments and/or termination sums).
Hiload Eligible Costs
means the costs, expressed in Dollars, incurred by any member of the TOO Group for the project involving the unit
known as the “HiLoad DP No. 1 Unit” which constitute Norwegian content up to an amount confirmed by GIEK.
Holding
Company
means, in relation to an entity, any other entity in respect of which the first is a Subsidiary.
Hull Cover Ratio
means at any time:
|
|
(a)
|
the amount of the latest Valuation delivered in accordance with clause 12.1.37;
|
|
|
(b)
|
divided by the Loan outstanding at that time;
|
|
|
(c)
|
multiplied by one hundred; and
|
|
|
(d)
|
then expressed as a percentage.
|
Indebtedness
means any obligation for the payment or repayment of money, whether as principal or as surety and whether present or
future, actual or contingent.
Indemnified Parties
shall have the meaning given to that term in clause 8.10 of this Agreement
(each an
Indemnified Party
).
Insolvency Event
means, in relation to any person, the occurrence of any of the following
events:
|
|
(a)
|
Insolvency: that person is unable to pay its debts as they fall due or admits its inability to pay its debts as they mature or suspends or
threatens to suspend making payment of all or a substantial part of its Indebtedness or makes a general assignment or assignation for the benefit of creditors or is subject to or applies for winding-up or liquidation proceedings or is successfully
put into forced or voluntary liquidation (except for the purposes of a voluntary reorganisation not involving the insolvency of that person and previously agreed in writing by the Facility Agent acting in accordance with the instructions of the
Majority Facility Lenders);
|
|
|
(b)
|
Winding up: any order is made, petition is presented, resolution is passed or other act or action is taken for the winding-up, liquidation,
administration or other formal insolvency of that person under any Applicable Law, whether now or hereafter in effect (save where the petition presented is frivolous or vexatious and is dismissed within a period of thirty (30) days);
|
|
|
(c)
|
Appointment of receivers and managers: any administrative or other receiver is appointed of that person or any substantial part of its assets or
any other steps (except for any frivolous or vexatious step or steps which are dismissed within a period of thirty (30) days) are taken to enforce any Security Interest over all or any material part of the assets of that person;
|
|
|
(d)
|
Seizure: other than the Vessel, all or a substantial part of the assets of that person are seized, nationalised, expropriated or compulsorily
acquired by or under the authority of any Government Entity provided that in respect of any person other than TOO, such seizure, nationalisation, expropriation or acquisition has not been reversed within thirty (30) days;
|
|
|
(e)
|
Analogous proceedings: there occurs, in relation to that person in any jurisdiction, any event which corresponds with, or has an effect equivalent
or similar to, any of the events mentioned in the foregoing paragraphs.
|
Insolvency Official
in respect of any
person, means any liquidator, receiver, administrator and/or manager or administrative receiver, judicial manager, trustee or similar officer appointed in respect of that person, whether appointed by a creditor, pursuant to any statute, by a court
or other tribunal or otherwise, for the purpose of recovering, realising, distributing or disposing of any of the assets or undertaking of that person.
Insurance Proceeds
means the proceeds of any Insurances other than Total Loss Proceeds and Liability Insurance Proceeds.
Insurances
means all policies and contracts of insurance which expression includes all entries of the Vessel in a protection and
indemnity or war risks association which are from time to time taken out or entered into in respect of or in connection with the Vessel or her increased value and all benefits under such contracts and policies including all claims of any nature and
returns of a premium.
Interest Payment Date
means the last day of an Interest Period.
Interest Period
means each period for the calculation of interest in respect of that Advance or the Loan ascertained in accordance with
clause 7 of this Agreement.
Interpolated Screen Rate
means, in relation to LIBOR for a particular period, the rate (rounded
upwards to the same number of decimal places as the Screen Rates referred to below) 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; and
|
|
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period,
|
each as of 11:00 a.m. London time two (2) London Banking Days before the first day of the relevant Interest Period
for the offering of the deposits in Dollars in an amount comparable to the Loan (or any other relevant part of the Loan) and, if that rate is less than zero, it shall be deemed to be zero.
ISM Code
means the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention constituted
pursuant to Resolution A.741(18) of the International Maritime Organisation and incorporated into the Safety of Life at Sea Convention, and includes any amendment of the foregoing and any regulation issued pursuant to the foregoing.
ISPS Code
means the International Ship and Port Facility Security Code of the International Maritime Organisation and includes any
amendments or extensions thereto and any regulation issued pursuant thereto.
ISS
means, if and whenever the same is required by Applicable Law and/or pursuant to or
for the purposes of the Insurances, the International Ship Security Certificate for the Vessel issued in accordance with the ISPS Code.
Letter of Undertaking
means the letter of undertaking between the Borrower, TOO and the Facility Agent.
Liability Insurance Proceeds
means:
|
|
(a)
|
the proceeds of the Insurances received in respect of protection and indemnity risks or collision liability;
|
|
|
(b)
|
any amounts paid by the Charterer to the Bareboat Charterer or any other person under or pursuant to the Charter as an indemnity for third party
operational or liability claims of any nature; and
|
|
|
(c)
|
any amounts paid by the Manager to the Bareboat Charterer or any other person under or pursuant to the Management Agreement as an indemnity for
third party operational or liability claims of any nature.
|
LIBOR
means, in relation to a particular period:
|
|
(a)
|
the applicable Screen Rate; or
|
|
|
(b)
|
if no Screen Rate is available for any Interest Period, the Interpolated Screen Rate; or
|
|
|
(c)
|
if no Screen Rate is available for any Interest Period and it is not possible to calculate an Interpolated Screen Rate for that Interest Period,
the Reference Bank Rate,
|
at, in the case of paragraphs (a) and (c) above, 11.00 a.m. London time two
(2) London Banking Days before the first day of the relevant Interest Period for the offering of deposits in Dollars in an amount comparable to the Loan (or any other relevant part of the Loan) and for a period comparable to the relevant
Interest Period provided always that if that rate is less than zero, LIBOR shall be deemed to be zero.
Loan
means the GIEK Loan
and the Commercial Loan and
Loans
means all of them.
London Banking Day
means a day (other than Saturday or Sunday) on
which banks are open for normal banking business in London.
Loss Payable Clause
means the provisions regulating the manner of
payment of sums receivable under the Insurances which are to be incorporated in the relevant insurance documents, such Loss Payable Clause to be in the form set out in Appendix C to the Assignment or in such other form as may from time to time
be reasonably required by the Facility Security Trustee acting on the instructions of the Majority Facility Lenders.
Losses
means
all losses, liabilities, costs, charges, expenses, damages and outgoings of whatsoever nature (including without limitation, Taxes (but excluding taxes levied on the overall income or profits of any Facility Beneficiary in the jurisdiction in which
its principal or Facility Office under the Facility Documents is located), stamp duties and other duties or charges, registration fees, repair costs, insurance premiums, fees of insurance advisers reasonably incurred, fees of technical consultants,
printing costs, out-of-pocket expenses and fees and disbursements of legal counsel reasonably incurred, together with any value added or similar tax payable in respect thereof) but excluding, for the avoidance of doubt, any loss of profits.
Majority Facility Lenders
means, together, at any relevant time, (i) the Facility Lenders the aggregate of whose Contributions
equal or exceed sixty-six and two-thirds per cent. (66.67%) of the Loan at that time, or (ii) if no Advance has been made, the Facility Lenders the aggregate of whose Commitments at that time equal or exceed sixty-six and two-thirds per
cent. (66.67%) of the Total Commitments at that time or, if all of the Commitments have been reduced to zero at or prior to that time, the Facility Lenders the aggregate of whose Contributions immediately prior to that reduction equalled or
exceeded sixty-six and two-thirds per cent. (66.67%) of the Loan at that time.
Majority GIEK Facility Lenders
means, together, at any relevant time, (i) the GIEK
Facility Lenders the aggregate of whose Contributions relating to the GIEK Loan equal or exceed sixty-six and two-thirds per cent. (66.67%) of the GIEK Loan at that time, or (ii) if no Advance has been made, the Facility Lenders the
aggregate of whose GIEK Facility Commitments at that time equal or exceed sixty-six and two-thirds per cent. (66.67%) of the Total GIEK Facility Commitments at that time or, if all of the GIEK Facility Commitments have been reduced to zero at
or prior to that time, the GIEK Facility Lenders the aggregate of whose Contributions relating to the GIEK Loan immediately prior to that reduction equalled or exceeded sixty-six and two-thirds per cent. (66.67%) of the GIEK Loan at that time.
Management Agreement
means the management agreement and/or arrangements between the Bareboat Charterer and/or the Borrower and the
Manager in relation to the Vessel.
Manager
means (a) Teekay Shipping Limited, a company incorporated under the laws of
Bermuda with its registered office at 4
th
Floor, Belvedere Building, 69 Pitts Bay Road, Hamilton, HM 08, Bermuda, (b) another company in the TOO Group or the Teekay Group, or (c) another
person acceptable to the Facility Agent (acting on the instructions of all the Facility Lenders and GIEK, acting reasonably) which has become a party to a Management Agreement.
Manager Undertaking
means the undertaking of the Manager which is not a member of either the TOO Group or Teekay Group, in favour of
the Facility Security Trustee in the form scheduled to the Deed of Covenants.
Mandated Lead Arrangers
means the banks listed in
Schedule 1, Part 2 of this Agreement.
Margin
means:
|
|
(a)
|
in relation to the GIEK Facility, zero point nine per cent (0.90%) per annum; and
|
|
|
(b)
|
in relation to the Commercial Facility, two per cent (2.00%) per annum.
|
Master Agreement Charge
means the first priority charge in respect of the Hedging Agreements executed or, as the context may require,
to be executed, by the Borrower in favour of the Facility Security Trustee, in the Agreed Form.
Material Adverse Effect
means a
material adverse change in, or a material adverse effect on:
|
|
(a)
|
the financial conditions, assets, prospects or business of any Security Party or on the consolidated financial condition, assets, prospects or
business of the TOO Group;
|
|
|
(b)
|
the ability of any Security Party to perform and comply with its obligations under the Facility Document or Project Document or to avoid any Event
of Default;
|
|
|
(c)
|
the validity, legality or enforceability of any Facility Document or Project Document; or
|
|
|
(d)
|
the validity, legality or enforceability of any security expressed to be created pursuant to any Facility Document or Project Document or the
priority and ranking of any such security,
|
provided that, in determining whether any of the foregoing circumstances
shall constitute such a material adverse change or material adverse effect for the purposes of this definition, the Facility Beneficiaries shall consider such circumstance in the context of (x) the TOO Group taken as a whole and (y) the
ability of the Security Parties to perform each of their obligations under the Facility Documents and Project Documents.
month
means a period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that (i) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Banking Day in that calendar month and
(ii) if the numerically corresponding day is not a Banking Day, that period shall end on the next Banking Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Banking Day,
and
months
and
monthly
shall be construed accordingly.
Mortgage
means the first priority mortgage over the Vessel
executed or to be executed by the Borrower in favour of the Facility Security Trustee and registered or to be registered against the Vessel in accordance with all Applicable Laws in the Flag State, in the Agreed Form.
Necessary Authorisations
means all Authorisations of any person including any government or other regulatory authority required by
Applicable Law to enable it to:
|
|
(a)
|
lawfully enter into and perform its obligations under the Facility Documents to which it is party;
|
|
|
(b)
|
ensure the legality, validity, enforceability or admissibility in evidence in England, the governing law of such document and, if different, its
jurisdiction of incorporation, of such Facility Documents to which it is party; and
|
|
|
(c)
|
carry on its business from time to time.
|
Notices of Assignment
means each notice and (where applicable) corresponding acknowledgment of assignment in the form set out in the
relevant Appendix (Notices of Assignment) to the Assignment, each other notice and (where applicable) corresponding acknowledgment of assignment issued pursuant to the Assignment and/or the Bareboat Charterer Assignment and/or the Master Agreement
Charge and each notice of assignment and (where applicable) corresponding acknowledgement of assignment issued pursuant to each other Facility Security Document.
Notified Lender
has the meaning given to it in clause 7.8.2(b) of this Agreement.
Original Schedule of Repayment Amounts
means Schedule 5 to this Agreement.
Payment Direction Letter
means the payment direction letter between the Borrower, TOO and the Facility Agent.
Party
means a party to this Agreement.
Permitted Amendment
means any amendment permitted pursuant to the terms of the Facility Documents.
Permitted Liens
means:
|
|
(a)
|
any repairer’s or outfitter’s possessory lien for a sum in aggregate at any time not (except with the prior written consent of the
Facility Agent) exceeding ten million Dollars ($10,000,000);
|
|
|
(b)
|
any lien on the Vessel for master’s, officer’s or crew’s wages arising in accordance with usual maritime practice which are not
overdue; and
|
|
|
(c)
|
any lien for salvage,
|
(each a
Permitted Lien
).
Permitted Security Interest
means:
|
|
(a)
|
any Security Interest created by the Facility Security Documents and any set-off rights granted under the Hedging Agreements;
|
|
|
(b)
|
any lien arising in the ordinary course of business or operation of the Vessel by statute or by operation of law in respect of obligations which
are not more than thirty (30) days overdue or which are being contested in good faith by appropriate proceedings (and for the payment of which adequate reserves have been provided) so long as any such proceedings or the continued existence of
such lien do not in the opinion of the Facility Agent involve any likelihood of the sale, forfeiture or loss of, or of any interest in, the Vessel or any Total Loss Proceeds;
|
|
|
(c)
|
any Security Interest arising out of any claims, judgments, or awards against a Security Party which are being contested in good faith by that
Security Party or which are the subject of a pending appeal (and for the payment of which adequate reserves have been provided) so long as any such claims, judgments or awards or the continued existence of such Security Interest do not in the
reasonable opinion of the Facility Agent involve any likelihood of the sale, forfeiture or loss of, or of any interest in, the Vessel or any Total Loss Proceeds; and
|
Proceeds
means:
|
|
(a)
|
all Final Disposition Proceeds of the type referred in paragraph (a) of that definition;
|
|
|
(b)
|
all Total Loss Proceeds and all Restricted Proceeds;
|
|
|
(c)
|
all Requisition Compensation; and
|
|
|
(d)
|
all and any other monies, property and other assets representing or deriving from all or any of the Facility Secured Property and the Collateral.
|
Project Counterparties
means together:
|
|
(c)
|
each other person who may from time to time replace any of the parties referred to above as party to any of the Project Documents,
|
(each a
Project Counterparty
).
Project Documents
means:
|
|
(a)
|
the Management Agreement;
|
|
|
(c)
|
the Bareboat Charter;
|
|
|
(d)
|
the Building Contract; and
|
|
|
(e)
|
any change orders or other deed, document, agreement or instrument amending, varying, supplementing, ratifying, confirming, extending or renewing
any of the foregoing documents or any of the terms and conditions thereof or consenting to the amendment or variation of the terms and conditions thereof,
|
(each a
Project Document
).
Proportionate Share
means, at any time prior to the Advance being made, the proportion which a Facility Lender’s Commitment then
bears to the aggregate Commitments of all the Facility Lenders being on the date of this Agreement the percentage indicated against the name of that Facility Lender in Schedule 1 of this Agreement, and at any time after the Advance has been
made, the proportion which a Facility Lender’s Contribution then bears to the Loan.
Receiver
means and includes any receiver and/or manager and/or receiver and manager of the
Facility Secured Property or any part thereof appointed under or pursuant to any Facility Document (and whether acting as agent for any Facility Beneficiary or otherwise).
Reference Banks
means in relation to LIBOR, any three (3) banks or financial institutions acceptable to the Facility Agent and the
Borrower.
Reference Bank Rate
means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the
Facility Agent at its request by the Reference Banks as the rate at which the relevant Reference Bank could borrow funds in the London interbank market, in the relevant currency and 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.
Repayment Amount
means, in
relation to any Application Date, the amount set out in the Schedule of Repayment Amounts in relation to that Application Date.
Replacement Schedule of Repayment Amounts
means any replacement Schedule of Repayment Amounts calculated by the Facility Agent in
accordance with clause 5.3 of this Agreement.
Requisition Compensation
means all sums of money or other compensation from time to
time payable during the Facility Security Period by reason of the Compulsory Acquisition of the Vessel.
Restatement
means an
amendment and restatement of the Facility Documents to finance Rig 2 and/or Rig 3 under or pursuant to this Agreement.
Restricted
Proceeds
means any Insurance Proceeds if the full amount of the same exceeds the Casualty Amount.
Revenue
means all moneys
whatsoever from time to time due or payable to the Borrower arising out of the use or operation of the Vessel including (but without limiting the generality of the foregoing) all Charter Rate, freight, hire and passage moneys, moneys arising under
any charter contract, time charter or other agreement between it and any operator, income, income arising under pooling arrangements, compensation payable to the Borrower in the event of requisition of the Vessel for hire, remuneration for salvage
and towage services, demurrage and detention moneys, and damages for breach of any such charterparty or other contract for the employment of the Vessel.
Rig 2
means the floating accommodation unit with hull number N381 currently under construction with the Builder.
Rig 3
means the floating accommodation unit with hull number N675 currently under construction with COSCO (Qidong) Offshore Co., Ltd.
Schedule of Repayment Amounts
means at any time the Original Schedule of Repayment Amounts or, if at such time a Replacement
Schedule of Repayment Amounts has been substituted therefor pursuant to and in accordance with clause 5.3 of this Agreement, the latest Replacement Schedule of Repayment Amounts.
Screen Rate
means in relation to LIBOR, the ICE Benchmark Administration Limited Interest Settlement Rate for the relevant currency and
period displayed on the appropriate page of the Reuters page LIBOR 01 (or such other page or pages or service which replace(s) such page or service for the purposes of displaying offered rates of leading banks) (before any correction, recalculation
or republication by the administrator) for deposits in Dollars.
Secured Property
means (i) the security, powers, rights, titles, benefits and
interests (both present and future, actual or contingent) constituted by and conferred upon the Facility Beneficiaries or any of them under or pursuant to the Facility Documents and any notices or acknowledgements or undertakings given in respect of
or in connection with any of the Facility Documents (including, without limitation, the benefit of all covenants, undertakings, representations, warranties and obligations given, made or undertaken to any Facility Beneficiary in the Facility
Documents and any notices or acknowledgements or undertakings given in respect of or in connection with any of the Facility Documents), (ii) all moneys and other assets paid or transferred to or vested in any Facility Beneficiary or any agent
of any Facility Beneficiary or any Insolvency Official or received or recovered by any Facility Beneficiary or any agent of any Facility Beneficiary or any Insolvency Official pursuant to, or in connection with, any of the Facility Documents and any
notices or acknowledgements or undertakings given in respect of or in connection with any of the Facility Documents, whether from any Security Party, any Project Counterparty or any other person, and (iii) all moneys, investments, and other
assets at any time representing or deriving from any of the foregoing, including all interest, income and other sums at any time received or receivable by any Facility Beneficiary or any agent of any Facility Beneficiary or any Insolvency Official
in respect of the same (or any part thereof).
Security
means any Security Interest created or purported to be created by any of
the Facility Security Documents.
Security Interest
means any mortgage, charge (whether fixed or floating), pledge, lien,
hypothecation, assignment by way of security, trust arrangement for the purpose of providing security or other security interest of any kind securing any obligation of any person or any other arrangement having the effect of conferring rights of
retention or set-off (but excluding any right of set-off arising in favour of a banker prior to such right becoming exercisable) or other disposal rights over an asset (including without limitation title transfer and/or retention arrangements having
a similar effect) and includes any agreement to create any of the foregoing but does not include liens arising in the ordinary course of trading by operation of law and not by way of contract.
Security Parties
means the Borrower, the Bareboat Charterer, the Manager, the Sponsor, the Shareholder and any other party which the
Borrower and the Facility Security Trustee agree (after the date of this Agreement) shall be a Security Party but excluding the Charterer (each a
Security Party
).
Shareholder
means Logitel Offshore Pte. Ltd. of 435 Orchard Road #11-00, Wisma Atria, Singapore 238877.
SMC
means a valid safety management certificate issued for the Vessel by or on behalf of the Administration under paragraph 13.7 of the
ISM Code.
Sponsor
means TOO.
Subsidiary
means any company or entity directly or indirectly controlled by another person, for which purpose
control
means
either ownership of more than fifty per cent. (50%) of the voting share capital (or equivalent right of ownership) of such company or entity or power to direct its policies and management whether by contract or otherwise.
Swap Payment
means, in relation to a Hedging Agreement and an Interest Payment Date, the amount (if any) payable by the Borrower under
and pursuant to that Hedging Agreement on that Interest Payment Date in respect of the difference between interest calculated at the Fixed Rate applicable under that Hedging Agreement and interest calculated at the floating rate then applicable
under that Hedging Agreement in respect of the Interest Period ending on that Interest Payment Date (after giving effect to any contractual set-off and/or netting provisions contained in that Hedging Agreement), but shall exclude, for the avoidance
of doubt, any amount payable by the Borrower under that Hedging Agreement as a result or consequence of any termination of, or default under, that Hedging Agreement.
Taxes
includes all present and future taxes, levies, imposts, duties, fees or charges of a similar nature together with interest
thereon and penalties in respect thereof, and
Tax
and
Taxation
shall be construed accordingly.
Teekay
means Teekay
Corporation, a corporation domesticated according to the law of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands MH-96960.
Teekay Group
means Teekay and each of its Subsidiaries.
TOO
means Teekay Offshore Partners L.P., a master limited partnership formed and existing according to the law of the Marshall Islands
whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands, MH-96960.
TOO Group
means TOO and each of its Subsidiaries.
Total Commercial Facility Commitments
means the aggregate of the Commercial Facility
Commitments, being thirty three million Dollars ($33,000,000) as at the date of this Agreement.
Total Commitments
means the Total
GIEK Facility Commitments and the Total Commercial Facility Commitments.
Total GIEK Facility Commitments
means the aggregate GIEK
Facility Commitments, being one hundred and seventeen million Dollars ($117,000,000) as at the date of this Agreement.
Total Loss
means:
|
|
(a)
|
the actual, constructive, arranged, agreed or compromised total loss of the Vessel; or
|
|
|
(b)
|
the requisition for title or compulsory acquisition, nationalisation or expropriation of the Vessel by or on behalf of any government or other
authority (other than by way of requisition for hire);
|
|
|
(c)
|
the capture, seizure, arrest, detention, hijacking, theft or confiscation of the Vessel unless the Vessel is released and returned to the
possession of the Borrower or the Bareboat Charterer within ninety (90) days after the capture, seizure, arrest, detention or confiscation in question.
|
Total Loss Proceeds
means any proceeds of the Insurances arising in respect of a Total Loss and any Requisition Compensation received
in respect of a Compulsory Acquisition.
Transaction Documents
means the Facility Documents and the Project Documents (each a
Transaction Document
).
Transfer Certificate
means a certificate substantially in the terms of Schedule 5 to this Agreement.
Transfer Date
means, in relation to any Transfer Certificate, the date of the making of the transfer specified in the schedule to
such Transfer Certificate.
Unpaid Sum
means any sum due and payable but unpaid by a Security Party under the Facility Documents.
Unrestricted Proceeds
means all Insurance Proceeds other than Restricted Proceeds.
Valuation
means one written valuation of the Vessel expressed in Dollars prepared by one of the Approved Brokers (or such other firm of
reputable independent shipbrokers as may be acceptable to the Majority Facility Lenders and GIEK (acting reasonably)). Such valuation shall be prepared at the Borrower’s expense (unless no Default has occurred and such valuation is requested by
the Facility Agent more frequently than once per financial year, in which case it shall be prepared at the Facility Lenders’ expense), without a physical inspection, on the basis of a sale for prompt delivery for cash at arm’s length
between a willing buyer and a willing seller without the benefit of any charterparty or other engagement on an open market basis.
Vessel
means the floating accommodation unit with hull number N380 as more particularly
described in the Charter and any and all appliances, spare parts, accessories, fittings, instruments, machinery, components, equipment and other facilities or materials allocated to, appropriated for, installed in, attached to or otherwise relating
thereto.
Vessel Total Costs
means the costs, expressed in Dollars, incurred by the Borrower or any Affiliate of TOO or of Teekay
for the project involving the Vessel, being the costs referred to in Schedule 7.
Schedule 7
Vessel Total Costs
|
|
|
|
|
|
|
Item
|
|
Dollars ($)
|
|
|
Construction Contract
|
|
|
179,500,000
|
|
|
Mobilisation Cost
|
|
|
19,800,000
|
|
|
Hull Value
|
|
|
20,500,000
|
|
|
Vessel Total Cost
|
|
|
219,800,000
|
|
Schedule 8
Form of Accession Deed
To:
[ ] as Facility Agent for and on behalf of the Facility Beneficiaries
From: [New Hedging Provider] (the
New Hedging
Provider
)
Dated:
Dear Sirs
ACCESSION DEED
|
1
|
We refer to the secured loan facility agreement (as from time to time amended, varied, supplemented or novated the
Loan Agreement
) dated
[●] 2015. This deed (the
Accession Deed
) shall take effect as an Accession Deed for the purposes of the Loan Agreement. Terms defined in the Loan Agreement have the same meaning in this Accession Deed unless given a different meaning in
this Accession Deed.
|
|
2
|
The New Hedging Provider agrees to become a Hedging Provider and to be bound by the terms of the Loan Agreement and the other Facility Documents as
a Hedging Provider.
|
|
3
|
The New Hedging Provider agrees to provide a copy of the Hedging Agreement to which it is a party to the Facility Agent.
|
|
4
|
The New Hedging Provider’s administrative details for the purposes of the Loan Agreement are as follows:
|
Address:
Fax No.:
Attention:
IT IS AGREED
as follows:
|
|
(a)
|
The New Hedging Provider and each of the Facility Beneficiaries agree that the Facility Security Trustee shall hold:
|
|
|
(i)
|
any Security in respect of Facility Secured Obligations created or expressed to be created pursuant to the Facility Documents; and
|
|
|
(ii)
|
all proceeds of that Security;
|
on trust for the Facility Beneficiaries (including the New Hedging Provider) on the terms and conditions contained in the Loan
Agreement.
|
|
(b)
|
The New Hedging Provider appoints the Facility Agent as its agent and the Facility Security Trustee as its facility security trustee on the terms
of, and in accordance with, clause 15 of the Loan Agreement.
|
|
5
|
The New Hedging Provider acknowledges that pursuant to the Master Agreement Charge, it has received notice that the Borrower has assigned and
charged its rights, title and interest in and to the Hedging Agreements in favour of the Facility Security Trustee acting on behalf of the Facility Beneficiaries and agrees to comply with the instructions contained in the notice attached to the
Master Agreement Charge.
|
|
6
|
This Accession Deed is a Facility Document.
|
|
7
|
This Accession Deed and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in
accordance with, English law.
|
THIS ACCESSION DEED
has been signed on behalf of the Facility Agent and executed
as a deed by [
New Hedging Provider
] and is delivered on the date stated above.
New Hedging Provider
|
|
|
|
|
|
|
EXECUTED
as a
DEED
|
|
)
|
|
|
|
|
|
|
|
By: [New Hedging Provider]
|
|
)
|
|
|
|
|
|
|
|
Witnessed by:
|
|
|
|
|
|
|
|
|
|
Facility Agent
|
|
|
|
|
|
|
|
|
|
EXECUTED
as a
DEED
|
|
)
|
|
|
|
|
|
|
|
By: [Facility Agent]
|
|
)
|
|
|
|
|
|
|
|
Witnessed by:
|
|
|
|
|
Schedule 9
Additional Facility Principles
|
1
|
Each of the Additional Facility and this Facility will be cross-collateralised (with the same priority), with the Facility Security Documents
amended and/or released and retaken to secure the obligations under the Additional Facility;
|
|
2
|
An Event of Default will occur under this Facility if an event of default occurs under the Additional Facility, and vice versa;
|
|
3
|
The parties to the Additional Facility (other than any member of the TOO Group or Teekay Group) will appoint (i) the Facility Security Trustee
as its trustee to hold the secured property under the Additional Facility and (ii) the Facility Agent as its agent under the Additional Facility;
|
|
4
|
All amounts received pursuant to the Facility Security Documents and the Additional Facility shall be applied against the amounts due to each
Facility Beneficiary (other than the Hedging Providers) and each facility beneficiary under the Additional Facility (other than hedging providers) on a pari passu basis;
|
|
5
|
The intercreditor agreement to be entered into pursuant to clause 12.1.38(b) shall also include the following provisions:
|
|
|
(a)
|
Prior to an event of default:
|
|
|
(i)
|
Subject to as otherwise provided herein, payments are made/distributed under this Facility and/or the Additional Facility in accordance with their
terms;
|
|
|
(ii)
|
The Facility Lenders take decisions under the Facility and the lenders take decisions under this Additional Facility, unless those decisions affect
the Security Interests for the facility and the Additional Facility or the rights in those Security Interests, in which case those decisions are taken by the Facility Lenders under this Facility and the lenders under the Additional Facility;
|
|
|
(iii)
|
Subject to the paragraph (iv) directly below relating to prepayments of this Facility or the Additional Facility in full, any voluntary
prepayments and cancellations shall be applied towards the obligations under this Facility and the Additional Facility on a pro rata and pari passu basis;
|
|
|
(iv)
|
If this Facility or the Additional Facility is fully prepaid, the Vessel, Rig 2 and/or Rig 3 which that facility financed and its owner, as the
case may be, shall be released provided that if this Facility is fully prepaid, there shall be a corresponding prepayment of the Additional Facility, to ensure that the loans outstanding under the Additional Facility are at a loan to value ratio
acceptable to the lenders (and any export credit agency) under the Additional Facility, after taking into account any charter on Rig 2 and Rig 3;
|
|
|
(v)
|
The decision to give notice of an Event of Default and/or an event of default under the Additional Facility would require the vote of the Majority
Facility Lenders and the majority lenders under the Additional Facility.
|
|
|
(b)
|
Upon an event of default under the Additional Facility, the decision to accelerate/enforce security (
Enforcement Event
) or to waive the
event of default is taken by a quota of Facility Lenders for the Facility and lenders the Additional Facility taken together.
|
|
|
(c)
|
After an Enforcement Event:
|
|
|
(i)
|
Proceeds of the Security Interests from the Facility and/or the Additional Facility are applied towards the obligations under the Facility and the
Additional Facility on a pro rata and pari passu basis;
|
|
|
(ii)
|
Any income received other than from the realisation of Security Interests, such as Earnings are applied towards the obligations under the Facility
and the Additional Facility on a pro rata and pari passu basis; and
|
|
|
(iii)
|
Decisions are taken by the relevant quota of the Facility Lenders and the lenders in the Additional Facility.
|
IN WITNESS
of which the parties to this Agreement have executed this Agreement the day and
year first before written.
|
|
|
|
|
|
|
|
|
Borrower
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
Emeline Yew
Attorney in fact
|
|
duly authorised for and on behalf
|
|
)
|
|
|
|
of
LOGITEL OFFSHORE RIG I PTE. LTD.
|
|
)
|
|
|
|
|
|
|
|
|
Commercial Facility Lenders
SIGNED
by ROBERT MURPHY
duly authorised for and on
behalf
of
CITIBANK N.A., LONDON BRANCH
|
|
)
)
)
|
|
|
|
|
|
|
|
|
|
|
GIEK Facility Lenders
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by ROBERT MURPHY
duly
authorised for and on behalf
of
CITIBANK N.A.,
LONDON BRANCH
|
|
)
)
)
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by ROBERT MURPHY
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
|
|
of
KOMMUNAL
|
|
)
|
|
|
|
|
LANDSPENSJONSKASSE, GJENSIDIG
|
|
)
|
|
|
|
|
FORSIKRINGSSELSKAP.
|
|
)
|
|
|
|
|
|
|
|
|
|
Facility Agent
SIGNED
by ROBERT MURPHY
duly authorised for and on
behalf
of
CITIBANK INTERNATIONAL LIMITED
|
|
)
)
)
|
|
|
|
|
|
|
|
|
|
|
Facility Security Trustee
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by ROBERT MURPHY
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
|
|
of
CITIBANK N.A.,
LONDON BRANCH
|
|
)
|
|
|
|
|
|
|
|
|
|
GIEK Agent
SIGNED
by ROBERT MURPHY
duly authorised for and on
behalf
of
CITIBANK N.A.,
LONDON BRANCH
|
|
)
)
)
|
|
|
|
|
|
|
|
|
|
|
Mandated Lead Arrangers
SIGNED
by ROBERT MURPHY
duly authorised for and on
behalf
of
CITIBANK N.A.,
LONDON BRANCH
|
|
)
)
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bookrunner
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by ROBERT MURPHY
duly
authorised for and on behalf
of
CITIBANK N.A., LONDON BRANCH
|
|
)
)
)
|
|
|
|
|
Exhibit 2.3
|
|
|
|
|
Private & Confidential
|
|
Execution Version
|
Dated 29 June 2015
PETROJARL I L.L.C.
(as
Borrower)
and
ABN AMRO CAPITAL USA LLC
and others
(as Facility
Lenders)
and
ABN AMRO CAPITAL USA LLC
(as Facility Agent)
and
ABN AMRO CAPITAL USA LLC
(as Facility Security Trustee)
and
ABN AMRO CAPITAL USA
LLC
and others
(as Mandated Lead Arrangers)
and
ABN AMRO CAPITAL USA
LLC
(as sole Bookrunner)
and
ABN AMRO BANK N.V.
(as ECA Agent)
SECURED TERM
LOAN FACILITY
of up to $180,000,000 in respect
of the FPSO known as “Petrojarl I”
Contents
|
|
|
|
|
|
|
|
|
Clause
|
|
|
|
Page
|
|
|
|
|
|
|
1
|
|
Definitions and Interpretation
|
|
|
1
|
|
|
|
|
|
|
2
|
|
The Loan and its Purposes
|
|
|
2
|
|
|
|
|
|
|
3
|
|
Conditions of Utilisation
|
|
|
3
|
|
|
|
|
|
|
4
|
|
Advance
|
|
|
7
|
|
|
|
|
|
|
5
|
|
Repayment
|
|
|
7
|
|
|
|
|
|
|
6
|
|
Prepayment
|
|
|
8
|
|
|
|
|
|
|
7
|
|
Interest
|
|
|
12
|
|
|
|
|
|
|
8
|
|
Indemnities
|
|
|
14
|
|
|
|
|
|
|
9
|
|
Fees
|
|
|
18
|
|
|
|
|
|
|
10
|
|
Security and Application of Moneys
|
|
|
19
|
|
|
|
|
|
|
11
|
|
Representations and Warranties
|
|
|
20
|
|
|
|
|
|
|
12
|
|
Undertakings and Covenants
|
|
|
24
|
|
|
|
|
|
|
13
|
|
Events of Default
|
|
|
29
|
|
|
|
|
|
|
14
|
|
Assignment and Sub-Participation
|
|
|
34
|
|
|
|
|
|
|
15
|
|
The Facility Agent, the ECA Agent, the Facility Security Trustee and the Facility Lenders
|
|
|
37
|
|
|
|
|
|
|
16
|
|
Set-Off
|
|
|
46
|
|
|
|
|
|
|
17
|
|
Payments
|
|
|
46
|
|
|
|
|
|
|
18
|
|
Notices
|
|
|
49
|
|
|
|
|
|
|
19
|
|
Partial Invalidity
|
|
|
51
|
|
|
|
|
|
|
20
|
|
Remedies and Waivers
|
|
|
51
|
|
|
|
|
|
|
21
|
|
Miscellaneous
|
|
|
51
|
|
|
|
|
|
|
22
|
|
Law and Jurisdiction
|
|
|
52
|
|
|
|
|
|
Schedule 1 Part 1: The Facility Lenders and the Commitments
|
|
|
54
|
|
|
|
|
|
Part 2: The MLAs
|
|
|
57
|
|
|
|
|
|
Schedule 2
|
|
|
58
|
|
|
|
|
|
Part 1: conditions precedent to first Advance
|
|
|
58
|
|
|
|
|
|
|
|
|
Part 2: Conditions precedent to Advances other than Final Advances or the Delivery Commercial Facility Advance
|
|
|
62
|
|
|
|
|
|
Part 3: Conditions precedent to Completion Time
|
|
|
63
|
|
|
|
|
|
Part 4: Conditions Precedent to Delivery Commercial Facility Advance
|
|
|
66
|
|
|
|
|
|
Part 5: Conditions precedent to final Advances
|
|
|
67
|
|
|
|
|
|
Part 6: Conditions subsequent
|
|
|
68
|
|
|
|
|
|
Schedule 3 Form of Drawdown Notice
|
|
|
69
|
|
|
|
|
|
Schedule 4 Form of Transfer Certificate
|
|
|
70
|
|
|
|
|
|
Schedule 5 Definitions
|
|
|
72
|
|
|
|
|
|
Schedule 6 Budget
|
|
|
96
|
|
|
|
|
|
Schedule 7 Form of Accession Deed
|
|
|
97
|
|
LOAN AGREEMENT
(this
Agreement
) dated 29 June 2015
BETWEEN:
|
(1)
|
PETROJARL I L.L.C.
, a limited liability company formed in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake
Road, Ajeltake Island, Majuro, MH 96960, Marshall Islands (the
Borrower
);
|
|
(2)
|
The financial institutions listed in Schedule 1, Part 1 as Atradius facility lenders, each acting through its office at the address indicated
against its name in Schedule 1, Part 1 (together the
Atradius Facility Lenders
and each an
Atradius Facility Lender
);
|
|
(3)
|
The banks listed in Schedule 1, Part 1 as commercial facility lenders, each acting through its office at the address indicated against its
name in Schedule 1, Part 1 (together the
Commercial Facility Lenders
and each a
Commercial Facility Lender
);
|
|
(4)
|
ABN AMRO CAPITAL USA LLC
acting as Facility Agent (in that capacity the
Facility Agent
);
|
|
(5)
|
The banks listed in Schedule 1, Part 2 acting as mandated lead arrangers (in that capacity the
MLAs
);
|
|
(6)
|
ABN AMRO CAPITAL USA LLC
acting as Facility Security Trustee (in that capacity the
Facility Security Trustee
);
|
|
(7)
|
ABN AMRO CAPITAL USA LLC
acting as sole bookrunner (in that capacity the
Bookrunner
); and
|
|
(8)
|
ABN AMRO BANK N.V.
acting as ECA Agent (in that capacity the
ECA Agent
).
|
WHEREAS:
Each of the Facility Lenders
has agreed to advance to the Borrower its Commitment (aggregating, with all the other Commitments, a term loan facility of up to one hundred and eighty million Dollars ($180,000,000)) for (i) in respect of the Atradius Facility,
(a) reimbursement of up to eighty five per cent. (85%) of payments to the Builder of the Contract Price, and (b) payments to Atradius of the Atradius Premium, and (ii) in respect of the Commercial Facility, the Refurbishment
Costs.
IT IS AGREED
as follows:
|
1
|
Definitions and Interpretation
|
|
1.1
|
In this Agreement unless the context otherwise requires, words and expressions defined in Schedule 5 have the same meanings in this Agreement.
|
|
1.2.1
|
words denoting the plural number include the singular and vice versa;
|
|
1.2.2
|
words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or
quasi-governmental bodies or authorities and vice versa;
|
|
1.2.3
|
references to Recitals, clauses and Schedules are references to recitals, clauses and schedules to or of this Agreement;
|
|
1.2.4
|
references to this Agreement include the Recitals and the Schedules;
|
|
1.2.5
|
the headings and contents page(s) are for the purpose of reference only, have no legal or other significance, and shall be ignored in the
interpretation of this Agreement;
|
1
|
1.2.6
|
references to any document (including, without limitation, to all or any of the Transaction Documents) are, unless the context otherwise requires,
references to that document as amended, supplemented, novated or replaced from time to time;
|
|
1.2.7
|
references to statutes or provisions of statutes are references to those statutes, or those provisions, as from time to time amended, replaced or
re-enacted;
|
|
1.2.8
|
references to any Facility Beneficiary include its successors, transferees and assignees;
|
|
1.2.9
|
a time of day (unless otherwise specified) is a reference to New York time;
|
|
1.2.10
|
references to a
regulation
include any regulation, rule, official directive, requirement, request or guideline (whether or not having the
force of law but if not having the force of law being one with which persons to whom it is addressed or applicable generally comply) of any governmental, intergovernmental or supranational body, agency, authority, department or central bank or any
regulatory, self-regulatory or other authority or organisation;
|
|
1.2.11
|
references to
assets
include all or part of any present and future business, undertaking, real property, personal property, uncalled
capital, revenue and any rights of any description (whether actual or contingent, present or future) to receive, or require delivery of, any of the foregoing;
|
|
1.2.12
|
guarantee
means any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect,
actual or contingent, to purchase or assume any Indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the
ability of such person to meet its Indebtedness and
guaranteed
shall be construed accordingly;
|
|
1.2.13
|
a
law
(1) includes any common law, statue, decree, constitution, regulation, order, judgment or directive of any governmental entity;
(2) includes any treaty, pact, compact or other agreement to which any Government Entity is a signatory or party; (3) includes any judicial or administrative interpretation or application thereof and (4) is a reference to that
provision as amended, substituted or re-enacted;
|
|
1.2.14
|
references to any enactment shall be deemed to include references to such enactment as re-enacted, modified, amended or extended; and
|
|
1.2.15
|
an Event of Default occurring as a result of a breach of the obligations under clause 12.1.10 may not be remedied and remains continuing unless or
until it has been waived.
|
This Agreement supersedes the terms and conditions contained in any correspondence relating to the subject matter of this
Agreement exchanged between any Facility Beneficiary and the Borrower or their representatives prior to the date of this Agreement.
|
2
|
The Loan and its Purposes
|
Subject to the terms of this Agreement:
|
2.1.1
|
Each of the Commercial Facility Lenders agrees to make available to the Borrower its Commercial Facility Commitment of a term loan facility in an
aggregate amount not exceeding the Total Commercial Facility Commitments.
|
|
2.1.2
|
Each of the Atradius Facility Lenders agrees to make available to the Borrower its Atradius Facility Commitment of a term loan facility in an
aggregate amount not exceeding the Total Atradius Facility Commitments.
|
2
|
2.2
|
Facility Beneficiaries’ obligations
|
|
2.2.1
|
The obligations of each Facility Beneficiary under the Facility Documents are several. Failure by a Facility Beneficiary to perform its obligations
under the Facility Documents does not affect the obligations of any other party to the Facility Documents. No Facility Beneficiary is responsible for the obligations of any other Facility Beneficiary under the Facility Documents.
|
|
2.2.2
|
The rights of each Facility Beneficiary under or in connection with the Facility Documents are separate and independent rights and any debt arising
under the Facility Documents to a Facility Beneficiary from a Security Party shall be a separate and independent debt.
|
|
2.2.3
|
A Facility Beneficiary may, except as otherwise stated in the Facility Documents, separately enforce its rights under the Facility Documents,
provided that no Facility Beneficiary acting alone in its capacity as a Facility Lender shall be entitled to declare an Event of Default.
|
The Borrower shall apply the Loan for the purposes referred to in the Recital.
No Facility Beneficiary is bound to monitor or verify the application of any amount borrowed under this Agreement.
|
3
|
Conditions of Utilisation
|
|
3.1
|
Conditions precedent to first Commercial Facility Advance or first Atradius Facility Advance
|
The Facility Lenders will only be obliged to make the first Advance if:
|
3.1.1
|
the Facility Agent (or its duly authorised representative) has received the documents and other evidence listed in Schedule 2, Part 1 of this
Agreement;
|
|
3.1.2
|
on the date of the Drawdown Notice and on the proposed Drawdown Date no Default or event or circumstance specified in clause 6.4 or 6.8 of this
Agreement is continuing or would result from the making of the first Advance; and
|
|
3.1.3
|
on the date of the Drawdown Notice and on the proposed Drawdown Date the representations made by the Borrower under clause 11 (other than that in
clauses 11.2, 11.6 and 11.18) are true in all material respects.
|
|
3.2
|
Conditions precedent to each subsequent Advance
|
The Facility Lenders will only be obliged to make an Advance (other than the first Advance, the Delivery Commercial Facility
Advance and the final Advances) if:
|
3.2.1
|
the Facility Agent (or its duly authorised representative) has received the documents and other evidence listed in Schedule 2, Part 2 of this
Agreement;
|
|
3.2.2
|
on the date of the Drawdown Notice and on the proposed Drawdown Date, no Default or event or circumstance specified in clause 6.4 or 6.8 of this
Agreement is continuing or would result from the making of that Advance;
|
|
3.2.3
|
on the date of the Drawdown Notice and on the proposed Drawdown Date, the representations made by the Borrower under clause 11 (other than that in
clauses 11.2, 11.6 and 11.18) are true in all material respects;
|
|
3.2.4
|
the first Advance referred to in clause 3.1 has been made.
|
3
|
3.3
|
Conditions precedent to Completion Time
|
The Borrower shall procure that the Facility Agent (or its duly authorised representative) has received the documents and other
evidence listed in Schedule 2, Part 3 of this Agreement by the earlier of (i) the date falling ten (10) Banking Days after the Delivery Date, and (ii) the date of the Delivery Commercial Facility Advance (the
Completion Time
).
|
3.4
|
Conditions precedent to the Delivery Commercial Facility Advance
|
The Commercial Facility Lenders will only be obliged to make the Delivery Commercial Facility Advance if:
|
3.4.1
|
the Facility Agent (or its duly authorised representative) has received the documents and other evidence listed in Schedule 2, Part 4 of this
Agreement;
|
|
3.4.2
|
on the date of the Drawdown Notice and on the proposed Drawdown Date, no Default or event or circumstance specified in clause 6.4 or 6.8 of this
Agreement is continuing or would result from the making of the Delivery Commercial Facility Advance;
|
|
3.4.3
|
on the date of the Drawdown Notice and on the proposed Drawdown Date, the representations made by the Borrower under clause 11 (other than that in
clauses 11.2, 11.6 and 11.18) are true in all material respects;
|
|
3.4.4
|
the Advance referred to in clause 3.1 has been made and the Delivery Date has occurred.
|
|
3.5
|
Conditions precedent to final Advances
|
The Facility Lenders will only be obliged to make the final Advances if:
|
3.5.1
|
the Facility Agent (or its duly authorised representative) has received the documents and other evidence listed in Schedule 2, Part 5 of this
Agreement;
|
|
3.5.2
|
on the date of the Drawdown Notice and on the proposed Drawdown Date, no Default or event or circumstance specified in clause 6.4 or 6.8 of this
Agreement is continuing or would result from the making of the final Advances;
|
|
3.5.3
|
on the date of the Drawdown Notice and on the proposed Drawdown Date, the representations made by the Borrower under clause 11 (other than that in
clauses 11.2, 11.6 and 11.18) are true in all material respects;
|
|
3.5.4
|
the Advances referred to in clause 3.1 and clause 3.4 have been made and the Completion Time has occurred.
|
The Facility Lenders will only be obliged to make an Advance if:
|
3.6.1
|
the proposed Drawdown Date is a Banking Day within the Availability Period;
|
|
3.6.2
|
if that Advance is an Atradius Facility Advance and there is no outstanding notice relating to the Facility from Atradius requiring the Atradius
Facility Lenders to suspend the making of that Atradius Facility Advance and no Atradius Facility Lender is required by the terms and conditions applying to the Atradius Insurance Policy to suspend the making of that Atradius Facility Advance; and
|
|
3.6.3
|
if that Advance is an Atradius Facility Advance, the ECA Agent (acting on the instructions of the Atradius Facility Lenders) is satisfied that the
Atradius Insurance Policy is in full force and effect, all conditions of the Atradius Insurance Policy have been satisfied in full and/or waived and the Atradius Insurance Policy applies to each Atradius Facility Advance (including that Atradius
Facility Advance).
|
4
For the avoidance of doubt, only eight (8) Drawdown Notices may be
submitted, with each Drawdown Notice specifying up to two Advances, being one Commercial Facility Advance and one Atradius Facility Advance, under the terms of this Agreement up to and including the end of the Availability Period and each such
Advance shall be in accordance with this clause 3.
No Facility Lender shall or shall be under any obligation to advance all or any part of its Commitment after the end of the
Availability Period and any such undrawn Commitments shall be reduced to zero on the last day of the Availability Period.
|
3.8
|
Conditions subsequent
|
The Borrower undertakes to deliver or to cause to be delivered to the Facility Agent on, or as soon as reasonably practicable
after, the relevant Drawdown Date (or within any time period specified in Schedule 2, Part 6 of this Agreement) the additional documents and other evidence listed in Schedule 2, Part 6 of this Agreement.
If the Facility Lenders in their sole discretion agree to make an Advance to the Borrower before all of the documents and
evidence required by clause 3.1, 3.2, 3.3, 3.4 and/or 3.5 have been delivered to or to the order of the Facility Agent, the Borrower undertakes to deliver all outstanding documents and evidence to or to the order of the Facility Agent no later than
the date specified by the Facility Agent, except to the extent expressly waived by the Facility Agent in writing.
The
making of an Advance under this clause 3.9 shall not be taken as a waiver of the Facility Lenders’ right to require production of all the documents and evidence required by clause 3.1, 3.2, 3.3, 3.4 and/or 3.5.
All documents and evidence delivered to the Facility Agent under this clause 3 shall:
|
3.10.1
|
be in form and substance reasonably acceptable to the Facility Agent; and
|
|
3.10.2
|
if reasonably required by the Facility Agent, be certified, notarised, legalised or attested in a manner acceptable to the Facility Agent.
|
|
3.11.1
|
The Facility Agent shall as soon as practicable following satisfaction of the conditions precedent in this clause 3, notify all the Facility
Lenders accordingly and provide to them a copy of any written confirmation received from the legal advisers to the Facility Agent.
|
|
3.11.2
|
For the avoidance of doubt, the Borrower shall not be prohibited from requesting an Advance in accordance with clause 4.1 solely as a result of any
of the conditions precedent in this clause 3 being incomplete or unsatisfied as of the date such Drawdown Notice is delivered in accordance with clause 4.1.
|
The Borrower may, by giving the Rebalancing Notice to the Facility Agent no later than ten (10) Banking Days prior to the
end of the Availability Period and in any event prior to the issuing of the Drawdown Notice for the final Advance, require, and the other parties to this Agreement agree, that once the full amount of the Contract Price has been paid to the Builder
and reimbursed by (to the extent permitted hereunder) Atradius Facility Advances:
5
|
3.12.1
|
If the Atradius Loan is less than the Atradius Facility Commitments (the
Decrease Amount
), the following occurs on the date specified in the
Rebalancing Notice (being no later than the Drawdown Date specified in the Drawdown Notice for the final Advance):
|
|
|
(a)
|
each Atradius Facility Lender shall transfer its rights and obligations in the undrawn Atradius Facility Commitments to the Commercial Facility
Lenders in their Commercial Proportionate Share;
|
|
|
(b)
|
each Commercial Facility Lender in its Commercial Proportionate Share shall assume those rights and obligations;
|
|
|
(c)
|
the Commercial Facility Commitments shall be increased by the Decrease Amount and be available for drawing under the Commercial Facility in
accordance with the terms of this Agreement and the Atradius Facility Commitments shall be decreased by the Decrease Amount and no longer be available for drawing as an Atradius Facility Advance in accordance with the terms of this Agreement;
|
|
|
(d)
|
the Borrower and each Commercial Facility Lender shall assume obligations towards one another and/or acquire rights against one another as the
Borrower and that Commercial Facility Lender would have assumed and/or acquired had the Decrease Amount been a Commercial Facility Commitment; and
|
|
|
(e)
|
the Borrower and each Atradius Facility Lender shall release its rights and obligations towards one another in respect of the Decrease Amount under
the Atradius Facility Commitments and no further Atradius Facility Advances may be made.
|
|
3.12.2
|
If eighty five per cent. (85%) of the Aggregate Dollar Equivalent Amount of the Contract Price is more than the Atradius Facility Commitments
(the
Increase Amount
) and there are undrawn Commercial Facility Commitments which are equal to or greater than the Increase Amount, the following occurs on the date specified in the Rebalancing Notice (being no later than the Drawdown Date
specified in the Drawdown Notice for the final Advance):
|
|
|
(a)
|
each Commercial Facility Lender shall transfer its rights and obligations in the undrawn Commercial Facility Commitments in their Commercial
Proportionate Share (up to a maximum of the Increase Amount) to the Atradius Facility Lenders in their Atradius Proportionate Share;
|
|
|
(b)
|
each Atradius Facility Lender in its Atradius Proportionate Share shall assume those rights and obligations;
|
|
|
(c)
|
the Atradius Facility Commitments shall be increased by the Increase Amount and be available for drawing under the Atradius Facility in accordance
with the terms of this Agreement and the Commercial Facility Commitments shall be decreased by the Increase Amount and such amount shall no longer be available for drawing as a Commercial Facility Advance in accordance with the terms of this
Agreement;
|
|
|
(d)
|
the Borrower and each Atradius Facility Lender shall assume obligations towards one another and/or acquire rights against one another as the
Borrower and that Atradius Facility Lender would have assumed and/or acquired had the Increase Amount been an Atradius Facility Commitment;
|
|
|
(e)
|
the Borrower and each Commercial Facility Lender shall release its rights and obligations towards one another in respect of the Increase Amount
under the Commercial Facility Commitments, PROVIDED (in the case of both clauses 3.12.1 and 3.12.2) that the ECA Agent is satisfied that the Atradius Insurance Policy is and continues to be valid and effective following the transfers and
increases/decreases referred to in this clause 3.12.
|
6
Subject to clause 3, the Borrower may request an Advance to be advanced in one amount on any Banking Day prior to the end of
the Availability Period by delivering to the Facility Agent a duly completed Drawdown Notice not more than ten (10) and not fewer than four (4) Banking Days before the proposed Drawdown Date or such shorter period as the Facility Agent may
agree.
|
4.2
|
Facility Lenders’ participation
|
Subject to clauses 2 and 3, the Facility Agent shall notify each Facility Lender of the receipt of a Drawdown Notice (attaching
a copy thereof) not fewer than four (4) Banking Days (or such shorter period as may be agreed by all Facility Lenders) before the proposed Drawdown Date, following which:
|
4.2.1
|
in the case of a Commercial Facility Advance, the Commercial Facility Lenders shall each advance their Commercial Proportionate Share of that
Commercial Facility Advance; and
|
|
4.2.2
|
in the case of an Atradius Facility Advance, the Atradius Facility Lenders shall each advance their Atradius Proportionate Share of that Atradius
Facility Advance,
|
in each case, to the Borrower through the Facility Agent on the relevant Drawdown
Date.
|
5.1
|
Repayment of the Loan
|
Subject to clause 5.3 below, the Borrower will, on each Application Date, repay the Atradius Loan in an amount equal to eight
million and eight hundred thousand Dollars ($8,800,000) and repay the Commercial Loan in an amount equal to nine million and two hundred thousand Dollars ($9,200,000). The Borrower shall on the Final Maturity Date repay to the Facility Agent as
agent for the Commercial Facility Lenders, the Commercial Final Payment, together with all interest and all other amounts payable under this Agreement and the Facility Documents due to the Commercial Facility Lenders. The Borrower shall on the Final
Maturity Date repay to the Facility Agent the Atradius Final Payment, together with all interest and other amounts payable under this Agreement, the Facility Documents and the Atradius Insurance Policy due to the Atradius Facility Lenders.
No amounts repaid or prepaid under this Agreement may be reborrowed.
|
5.3
|
Schedule of Repayment Amounts
|
|
5.3.1
|
The repayment amounts specified in clause 5.1 are based on the assumptions that:
|
|
|
(a)
|
The first Application Date shall occur on the earlier of the date falling (i) six (6) Months after the Charter Date of Acceptance, and
(ii) twelve Months after the Delivery Date;
|
|
|
(b)
|
Repayments will be based on a 5 year linear repayment profile commencing on the earlier of (i) the Charter Date of Acceptance, and
(ii) the date falling six (6) Months after the Delivery Date; and
|
7
|
|
(c)
|
The Atradius Loan will be eighty eight million Dollars ($88,000,000) and the Commercial Loan will be ninety two million Dollars ($92,000,000).
|
|
5.3.2
|
By no later than the date falling ten (10) Banking Days following the last day of the Availability Period, the Facility Agent shall prepare a
Schedule of Repayment Amounts reflecting the actual Application Dates, the actual facts and circumstances contemplated by those assumptions and the actual repayment amounts resulting therefrom, and such Schedule of Repayment Amounts shall (in the
absence of manifest error) be the Schedule of Repayment Amounts for all purposes of this Agreement. The Facility Agent shall provide to all other parties to this Agreement (other than the Hedging Providers) a copy of the Schedule of Repayment
Amounts but for the avoidance of doubt, the Facility Agent shall not be entitled to prepare the Schedule of Repayment Amounts in such a way which would otherwise require the consent of all the Facility Lenders pursuant to clause 15.4.1 of this
Agreement.
|
|
5.3.3
|
If at any time a prepayment of part of the Loan is made pursuant to the terms of this Agreement, the Facility Agent shall, following such
prepayment, re-calculate the Schedule of Repayment Amounts and prepare a replacement Schedule of Repayment Amounts (which, in the absence of manifest error, shall replace the existing Schedule of Repayment Amounts and shall be the Schedule of
Repayment Amounts for all purposes of this Agreement) on the basis that the amount of such prepayment shall be applied in accordance with clause 6.14.4 of this Agreement. The Facility Agent shall notify all other parties to this Agreement (other
than the Hedging Providers) of such recalculation and provide to them a copy of the replacement Schedule of Repayment Amounts.
|
|
6.1
|
Mandatory prepayment of Loan caused by Illegality
|
If it becomes unlawful in any applicable jurisdiction for a Facility Lender to fund or maintain its Commitment as contemplated
by this Agreement or to fund or maintain the Loan:
|
|
(a)
|
that Facility Lender shall promptly notify the Facility Agent of that event;
|
|
|
(b)
|
upon the Facility Agent notifying the Borrower, the Commitment of that Facility Lender (to the extent not already advanced) will be immediately
cancelled; or
|
|
|
(c)
|
if advanced, the Borrower shall repay that Facility Lender’s Proportionate Share of the Loan on the last day of its current Interest Period
or, if earlier, the date specified by that Facility Lender in the notice delivered to the Facility Agent and notified by the Facility Agent to the Borrower (being no earlier than the last day of any applicable grace period permitted by law) and the
Loan shall be reduced by the amount of that Facility Lender’s Proportionate Share of the Loan. Prior to the date on which repayment is required to be made under this
sub-clause
(c) the affected
Facility Lender shall negotiate in good faith with the Borrower to find an alternative method or lending base in order to maintain its Commitment in the Facility.
|
In the event of a sale or disposal or scrapping of the Vessel, the Total Commitments shall be reduced to zero on the date of
such sale or disposal or scrapping. If any part of the Loan is outstanding the Borrower shall, on the date of the sale or disposal or scrapping, prepay the Loan in full together with any other outstanding amounts in relation to the Facility
Documents. Any such prepayment shall oblige the Borrower to make payment of all interest and Commitment Fee accrued on the amount so reduced up to and including the date of reduction together with any Break Costs in respect of such reduced amount if
the date of such reduction is not the final day of an Interest Period. Any such reduction of the Total Commitments shall not be reversed.
8
In the event that the Vessel becomes a Total Loss, on the earlier to occur of (a) the date of receipt of the Total Loss
Proceeds and (b) the date falling one hundred and eighty (180) days after the occurrence of the Total Loss, the Total Commitments shall be reduced to zero. Any such reductions in the Total Commitments shall not be reversed. If any part of
the Loan is outstanding the Borrower shall, on the earlier to occur of (i) the date on which the Borrower receives such Total Loss Proceeds and (ii) the one hundred and eightieth day after the date of such Total Loss occurring, prepay the
Loan in full PROVIDED ALWAYS that if such date is not the final day of an Interest Period, the Borrower may instead place the relevant sum in an account with the Facility Agent, charged to the Facility Agent in a manner reasonably acceptable to the
Facility Lenders, with an irrevocable instruction to the Facility Agent to apply such sum in prepayment of the Loan on the final day of such Interest Period. Any such prepayment shall not be reborrowed and clause 8.3 shall apply to any such
prepayment.
|
|
(a)
|
at a time when all management powers over the business and affairs of TOO are vested in a general partner:
|
|
|
(i)
|
Teekay ceases to own a minimum of fifty per cent. (50%) of the voting rights in the General Partner; or
|
|
|
(ii)
|
the General Partner ceases to be the general partner of TOO; or
|
|
|
(b)
|
at a time when all management powers over the business and affairs of TOO become vested in a board of directors of TOO, Teekay ceases to own or
does not own, directly or indirectly, a minimum of fifty per cent. (50%) of the voting rights to elect the members of the board of directors of TOO or the voting rights to elect a minimum of fifty per cent. (50%) of the board of directors
of TOO,
|
then unless such change of control has been remedied within thirty (30) days of such event
occurring, the Total Commitments shall immediately be reduced to zero and the Borrower shall prepay the Loan in full. Any such reductions in the Total Commitments shall not be reversed.
|
6.4.2
|
If there is any sale of any membership interests of the Borrower and/or any shares in the Bareboat Charterer and/or any interest in such membership
interests or shares or any other change in the legal or beneficial ownership of the Borrower from that advised to the Facility Agent at the date of this Agreement without the Facility Agent’s prior written consent (provided that the Facility
Agent’s consent shall not be required to any change of ownership within the TOO Group) then the Total Commitments shall immediately be reduced to zero and the Borrower shall prepay the Loan in full. Any such reductions in the Total Commitments
shall not be reversed.
|
|
|
(a)
|
any of the Project Documents is terminated by the Borrower, the Bareboat Charterer, the Operator or any of their respective Affiliates by reason of
breach by the Charterer, Builder, a Charterer Guarantor and/or QGEP; or
|
|
|
(b)
|
any of the Project Documents is breached by the Charterer, Builder, a Charterer Guarantor, the Bond Guarantor and/or QGEP, in a manner that gives
rise to a right to terminate such Project Document or treat it as repudiated, by the Borrower and/or the Bareboat Charterer and/or the Operator and such breach has a Material Adverse Effect of the type referred to in sub-paragraph (b) of that
definition; or
|
9
|
|
(c)
|
any of the Project Documents is terminated by the Charterer, Builder, QGEP and/or a Charterer Guarantor by reason of a force majeure event or
termination for convenience (howsoever described) in the Charter, Refurbishment Contract, the Charter Guarantees and/or Operations Agreement (as the case may be),
|
then, unless:
|
|
(i)
|
in the case of the Operations Agreement, a replacement Operations Agreement (as applicable) is entered into within sixty (60) days;
|
|
|
(ii)
|
in the case of the Refurbishment Contract, a replacement Refurbishment Contract is entered into within ninety (90) days; or
|
|
|
(iii)
|
in the case of any other Project Document (excluding the Operations Agreement and Refurbishment Contract), a replacement Project Document is
entered into within one hundred and eighty (180) days,
|
by (as the case may be) the Borrower,
Bareboat Charterer and/or the Operator and/or another Subsidiary of the relevant Sponsor acceptable to the Facility Lenders (acting reasonably), on terms reasonably acceptable to the Facility Lenders, then the Total Commitments shall be immediately
reduced to zero and the Borrower shall prepay the Loan in full.
In the event that any Transaction Document or any material provision thereof becomes unlawful, unenforceable or ineffective for
any reason or any of the Facility Security Documents comprising a Security Interest ceases to constitute a valid first priority Security Interest over the asset or property to which it relates, and such unlawfulness, unenforceability,
ineffectiveness or, as the case may be, lack of valid first priority Security Interest is not remedied, if remediable, to the satisfaction of the Facility Agent within thirty (30) days after written notice from the Facility Agent, the Total
Commitments shall be reduced to zero and the Borrower shall prepay the Loan in full.
In the event that the Vessel is abandoned (other than where clause 6.3 applies), on the date of abandonment the Total
Commitments shall be reduced to zero and the Borrower shall prepay the Loan in full.
|
6.8
|
Termination of the Atradius Insurance Policy
|
|
6.8.1
|
If at any time during the Facility Security Period any of the obligations of Atradius (to the extent such obligations are continuing) under the
Atradius Insurance Policy is terminated, cancelled, becomes invalid, unenforceable or otherwise ceases to be in full force and effect, then:
|
|
|
(a)
|
no Atradius Facility Lender shall be obliged to fund an Atradius Facility Advance;
|
|
|
(b)
|
the Total Atradius Facility Commitments shall be reduced to zero; and
|
|
|
(c)
|
as of the time falling fifteen (15) Banking Days after such event occurs the Atradius Loan together with accrued interest and all other sums
payable under this Agreement and any other Facility Document to the Atradius Facility Lenders shall be immediately due and payable.
|
10
|
6.9
|
Insolvency of Project Counterparties
|
In the event that an Insolvency Event occurs in relation to the Charterer, the Builder and/or Operator (in each case only at
any time at which that Project Counterparty (other than the Builder) has any actual or contingent obligations under a Project Document), then unless (a) in the case of an Insolvency Event in respect of the Charterer, a replacement charter is
entered into within one hundred and eighty (180) days by the Bareboat Charterer with a replacement charterer, (b) in the case of an Insolvency Event in respect of the Builder, either (i) a replacement construction contract is entered
into within ninety (90) days by the Borrower with a replacement builder, or (ii) the Delivery Date has occurred, and/or (c) in the case of an Insolvency Event in respect of the Operator, a replacement operations agreement is entered
into within sixty (60) days by a replacement operator in favour of QGEP, in each case acceptable to the Facility Agent (acting on the instructions of all the Facility Lenders (acting reasonably) and Atradius), then the Total Commitments shall
be immediately reduced to zero and the Borrower shall prepay the Loan in full.
|
6.10
|
Charter Date of Acceptance
|
If, the Charter Date of Acceptance has not occurred by 7 October 2016, then the Total Commitments shall be immediately
reduced to zero and the Borrower shall, on such date, prepay the Loan in full.
|
6.11
|
Refurbishment Contract
|
In the event that the Refurbishment Contract is materially amended without prior written consent of all the Facility Lenders
(and for the avoidance of doubt, utilisation by the Borrower of all or any part of the Contingency Amount in the Budget (to the extent still available) shall not, in and of itself, be material), transferred, sold, novated, terminated or cancelled
(other than in the circumstances set out in clause 6.5, in which case clause 6.5 shall apply), then the Total Commitments shall be reduced to zero and the Borrower shall prepay the Loan in full.
If the Valuation provided pursuant to Part 3 of Schedule 2 evidences that the Loan is more than eighty per cent (80%) of
the value of the Vessel, the Borrower shall within ten (10) days of delivery of the Valuation prepay the Loan by an amount equal to the amount of the excess.
|
6.13
|
Voluntary prepayment of Loan
|
|
6.13.1
|
The Borrower may prepay the whole or any part of the Loan (but, if in part, being in a minimum amount of one million Dollars ($1,000,000) such
amount to be in integral multiples of one million Dollars ($1,000,000) or such other amount as may be agreed by the Facility Agent) provided that it gives the Facility Agent not less than five (5) days’ prior written notice.
|
|
6.13.2
|
If any Facility Lender is a Notified Lender:
|
|
|
(a)
|
the Borrower may require that the Commitment of that Facility Lender (to the extent not already advanced) may be immediately cancelled; or
|
|
|
(b)
|
if advanced, the Borrower may repay that Facility Lender’s Proportionate Share of the Loan and the Loan shall be reduced by the amount of that
Facility Lender’s Proportionate Share of the Loan.
|
|
6.13.3
|
If any Facility Lender is a Defaulting Facility Lender:
|
|
|
(a)
|
the Borrower may require that the Commitment of that Facility Lender (to the extent not already advanced) may be immediately cancelled; or
|
|
|
(b)
|
if advanced, the Borrower may repay that Facility Lender’s Proportionate Share of the Loan and the Loan shall be reduced by the amount of that
Facility Lender’s Proportionate Share of the Loan.
|
11
|
6.14
|
Restrictions and order of application
|
|
6.14.1
|
Any notice of prepayment given under this clause 6 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify
the date or dates upon which the relevant prepayment is to be made and the amount of that prepayment.
|
|
6.14.2
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs which shall
be payable pursuant to clause 8.3, without premium or penalty. No amount prepaid shall be reborrowed.
|
|
6.14.3
|
If the Facility Agent receives a notice under this clause 6 it shall promptly forward a copy of that notice to the Borrower and/or the Facility
Lenders, as appropriate.
|
|
6.14.4
|
The amount of any prepayment (other than a prepayment made in accordance with clauses 6.1, 6.13.2, 6.13.3 and/or 6.8) shall be applied towards
prepayment of the Loans in inverse order of maturity of each Loan and on a pro rata basis across each Loan.
|
Subject to clause 7.2, each Interest Period shall be for a duration of three (3) Months or such other duration as may be
agreed by the Facility Agent (acting on the instructions of all the Facility Lenders) and provided that the Facility Lenders have received two (2) Banking Days prior notice of such alternative duration.
|
7.2
|
Beginning and end of Interest Periods
|
|
7.2.1
|
The initial Interest Period in respect of the first Advance shall commence on the Drawdown Date for the first Advance and shall end on the next
following Quarter Date and each subsequent Interest Period in respect of the first Advance shall commence on the expiry of the previous Interest Period and end on the next following Quarter Date;
|
|
7.2.2
|
The initial Interest Period for any other Advance shall commence on the Drawdown Date for that Advance and shall end on the last day of the then
current Interest Period in respect of the Loan and, on the last day of such Interest Period, the amount of that Advance shall be consolidated with the Loan and shall thereafter together constitute the Loan;
|
|
7.2.3
|
The Interest Period commencing on the second Quarter Date falling on or after the earlier of (i) the Charter Date of Acceptance and
(ii) six (6) Months after the Delivery Date, shall commence on that Quarter Date and end on the first Application Date; and
|
|
7.2.4
|
Any other Interest Period in respect of the Loan shall commence on the day following the previous Application Date or previous Interest Period and
shall end on the last day of its current Interest Period selected in accordance with clause 7.1.
|
|
7.3
|
Interest Periods to meet Final Maturity Date or Application Date
|
If an Interest Period would otherwise expire after the Final Maturity Date or any Application Date, that Interest Period shall
expire on the Final Maturity Date or that Application Date, as the case may be.
If an Interest Period would otherwise end on a day which is not a Banking Day, that Interest Period will instead end on the
next Banking Day in that calendar month (if there is one) or the preceding Banking Day (if there is not).
12
During each Interest Period interest shall accrue on the Loans at the rate determined by the Facility Agent to be the aggregate
of (a) the applicable Margin and (b) LIBOR.
|
7.6
|
Accrual and payment of interest
|
Interest shall accrue from day to day, shall be calculated on the basis of a 360 day year and the actual number of days elapsed
(or, in any circumstance where market practice differs, in accordance with the prevailing market practice) and shall be paid by the Borrower to the Facility Agent for the account of the Facility Lenders on the last day of each Interest Period.
If the Borrower fails to pay any amount payable by it under a Facility Document on its due date, interest shall accrue on the
overdue amount from the due date, subject to any applicable grace period, up to the date of actual payment (both before and after judgment) at a rate which is one point five per cent (1.5%) higher than the rate which would have been payable if
the overdue amount had, during the period of non-payment, constituted the Loan for successive Interest Periods, each selected by the Facility Agent (acting reasonably). Any interest accruing under this clause 7.7 shall be immediately payable by the
Borrower on demand by the Facility Agent. If unpaid, any such interest will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
|
|
(a)
|
If a Market Disruption Event specified in clause 7.8.2(a) occurs in relation to the Loan for any Interest Period, then the rate of interest on each
Facility Lender’s share of the Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
|
|
|
(i)
|
the applicable Margin; and
|
|
|
(ii)
|
the rate notified to the Facility Agent by that Facility 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 Facility Lender of funding its participation in the Loan from whatever source it may reasonably select.
|
|
|
(b)
|
If a Market Disruption Event specified in clause 7.8.2(b) occurs in relation to the Loan for any Interest Period, then the rate of interest on each
Notified Lender’s share of the Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
|
|
|
(i)
|
the applicable Margin; and
|
|
|
(ii)
|
the rate notified to the Facility Agent by that Notified 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 Notified Lender of funding its participation in the Loan from whatever source it may reasonably select.
|
|
7.8.2
|
In this Agreement
Market Disruption Event
means:
|
|
|
(a)
|
at or about 11.00 am London time two (2) Banking Days before the first day of the relevant Interest Period neither the Screen Rate nor the
Interpolated Screen Rate is available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for the relevant currency and Interest Period; or
|
|
|
(b)
|
before close of business in London two (2) Banking Days before the first day of the relevant Interest Period, the Facility Agent receives
notifications from a Facility Lender or Facility Lenders (whose participations in the Loan exceed fifty per cent. of the Loan or more) (each a
Notified Lender
) that the cost to it of obtaining matching deposits in the London interbank market
would be in excess of LIBOR.
|
13
|
7.9
|
Alternative basis of interest or funding
|
|
7.9.1
|
If a Market Disruption Event occurs and the Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall enter into
negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
|
|
7.9.2
|
Any alternative basis agreed pursuant to clause 7.9.1 above shall:
|
|
|
(a)
|
In the case of a Market Disruption Event specified in clause 7.8.2(a), with the prior consent of all the Facility Lenders and the Borrower, be
binding on all parties; and
|
|
|
(b)
|
In the case of a Market Disruption Event specified in clause 7.8.2(b), with the prior consent of all the Notified Lenders and the Borrower be
binding on all parties (but such alternative basis shall not be applicable to the Facility Lenders which are not Notified Lenders).
|
|
7.10
|
Determinations conclusive
|
The Facility Agent shall promptly notify the Borrower of the determination of a rate of interest under this clause 7 and each
such determination shall (save in the case of manifest error) be final and conclusive.
The Borrower will, within fourteen (14) days of the Facility Agent’s written demand, pay the Facility Agent (for the
account of the Facility Beneficiaries and/or Atradius) the amount of all reasonable out of pocket costs and expenses (including legal fees, the cost of obtaining an initial insurance report (and of obtaining further insurance reports only if there
is a material change in the terms of the Insurances or material change in the marine insurance market), and Value Added Tax or any similar or replacement tax if applicable) incurred by the Facility Beneficiaries and/or Atradius or any of them in
connection with:
|
8.1.1
|
the negotiation, preparation, printing, execution, syndication administration and registration of the Facility Documents, the Atradius Insurance
Policy and the Hedging Agreements (whether or not any Facility Document, the Atradius Insurance Policy or Hedging Agreement is actually executed or registered and whether or not an Advance is made);
|
|
8.1.2
|
any amendment, addendum or supplement to any Facility Document, the Atradius Insurance Policy or Hedging Agreement (whether or not completed); and
|
|
8.1.3
|
any other document which may at any time be reasonably required by a Facility Beneficiary, and/or Atradius to give effect to any Facility Document,
the Atradius Insurance Policy or Hedging Agreement or which a Facility Beneficiary and/or Atradius is entitled to call for or obtain under any Facility Document, the Atradius Insurance Policy or Hedging Agreement.
|
The Borrower shall indemnify each Facility Beneficiary, by payment to the Facility Agent (for the account of that Facility
Beneficiary) on the Facility Agent’s written demand, against all losses and costs incurred or sustained by that Facility Beneficiary if, for any reason due to a default or other action by the Borrower, an Advance is not made to the Borrower
after the relevant Drawdown Notice has been given to the Facility Agent, or is advanced on a date other than that requested in the Drawdown Notice.
14
As a result of a Facility Beneficiary receiving any prepayment of all or any part of the Loan (whether pursuant to clause 6 or
otherwise) on a day other than the last day of an Interest Period, or any other payment under or in relation to the Facility Documents on a day other than the due date for payment of the sum in question, the Borrower shall indemnify each Facility
Beneficiary, by payment to the Facility Agent (for the account of that Facility Beneficiary) within three (3) Banking Days of the Facility Agent’s written demand, against all documented costs, losses, premiums or penalties incurred by that
Facility Beneficiary, including (without limitation) the Break Costs, any losses or costs incurred in liquidating or re-employing deposits from third parties acquired to effect or maintain all or any part of the Loan.
In the event of a Facility Beneficiary receiving or recovering any amount payable under a Facility Document in a currency other
than the Currency of Account, and if the amount received or recovered is insufficient when converted into the Currency of Account at the date of receipt to satisfy in full the amount due, the Borrower shall, on the Facility Agent’s written
demand, pay to the Facility Agent for the account of the relevant Facility Beneficiary such further amount in the Currency of Account as is sufficient to satisfy in full the amount due and that further amount shall be due to the Facility Agent on
behalf of the relevant Facility Beneficiary as a separate debt under this Agreement.
|
8.5
|
Increased costs (subject to clause 8.6)
|
If, by reason of any Change in Law:
|
8.5.1
|
a Facility Beneficiary (or the holding company of a Facility Beneficiary) shall be subject to any Tax with respect to payment of all or any part of
the Indebtedness (other than Tax on overall net income); or
|
|
8.5.2
|
the basis of Taxation of payments to a Facility Beneficiary in respect of all or any part of the Indebtedness shall be changed; or
|
|
8.5.3
|
any reserve requirements shall be imposed, modified or deemed applicable against assets held by or deposits in or for the account of or loans by
any branch of a Facility Beneficiary; or
|
|
8.5.4
|
the manner in which a Facility Beneficiary allocates capital resources to its obligations under this Agreement or any ratio (whether cash, capital
adequacy, liquidity or otherwise) which a Facility Beneficiary is required or requested to maintain shall be affected; or
|
|
8.5.5
|
there is imposed on a Facility Beneficiary (or on the holding company of a Facility Beneficiary) by an unconnected third party any other condition
in relation to the Indebtedness or the Facility Documents,
|
and the result of any of the above shall be
to increase the cost to a Facility Beneficiary (or to the holding company of a Facility Beneficiary) of that Facility Beneficiary making or maintaining its Commitment, or to cause a Facility Beneficiary (or to the holding company of a Facility
Beneficiary) to suffer (in its opinion) a material reduction in the rate of return on its overall capital below the level which it reasonably anticipated at the date of this Agreement and which it would have been able to achieve but for its entering
into this Agreement and/or performing its obligations under this Agreement, then, subject to clause 8.6, the Facility Beneficiary affected shall notify the Facility Agent and the Borrower shall from time to time pay to the Facility Agent on demand
for the account of that Facility Beneficiary the amount which shall compensate that Facility Beneficiary (or the relevant holding company) for such additional cost or reduced return. A certificate signed by an authorised signatory of that Facility
Beneficiary setting out the amount of that payment and the basis of its calculation shall be submitted to the Borrower and shall be conclusive evidence of such amount save for manifest error or on any question of law.
15
|
8.6
|
Exceptions to increased costs
|
Clause 8.5 does not apply to the extent any additional cost or reduced return referred to in that clause is:
|
8.6.1
|
compensated for by a payment made under clause 8.12; or
|
|
8.6.2
|
compensated for by a payment made under clause 17.3; or
|
|
8.6.3
|
attributable to the wilful breach by the relevant Facility Beneficiary (or the holding company of that Facility Beneficiary) of any law or
regulation; or
|
The Borrower shall indemnify each Facility Beneficiary and/or Atradius from time to time, by payment to the Facility Agent (for
the account of that Facility Beneficiary and/or Atradius) on the Facility Agent’s written demand, against all losses and costs incurred or sustained by that Facility Beneficiary and/or Atradius as a consequence of any Event of Default and/or
acceleration of the Facility (including but not limited to Break Costs) pursuant to clause 13.2.
The Borrower shall pay to the Facility Agent (for the account of each Facility Beneficiary and/or Atradius) on the Facility
Agent’s written demand the amount of all costs and expenses (including legal fees) incurred by a Facility Beneficiary and/or Atradius in connection with the enforcement of, or the preservation of any rights under, any Facility Document and/or
the Atradius Insurance Policy including (without limitation) any losses, costs and expenses which that Facility Beneficiary and/or Atradius may from time to time sustain, incur or become liable for by reason of that Facility Beneficiary and/or
Atradius being mortgagee of the Vessel and/or a lender to the Borrower, or by reason of that Facility Beneficiary and/or Atradius being deemed by any court or authority to be an operator or controller, or in any way concerned in the operation or
control, of the Vessel. No such indemnity will be given where any such loss or cost has occurred due to gross negligence or wilful misconduct on the part of that Facility Beneficiary and/or Atradius; however, this shall not affect the right of any
other Facility Beneficiary and/or Atradius to receive such indemnity.
The Borrower shall pay to the Facility Agent (for the account of each Facility Beneficiary) on the Facility Agent’s
written demand the amount of all sums which a Facility Beneficiary may pay or become actually or contingently liable for on account of the Borrower in connection with the Vessel (whether alone or jointly or jointly and severally with any other
person) including (without limitation) all sums which that Facility Beneficiary may pay or guarantees which it may give in respect of the Insurances, any expenses incurred by that Facility Beneficiary in connection with the maintenance or repair of
the Vessel or in discharging any lien, bond or other claim relating in any way to the Vessel, and any sums which that Facility Beneficiary may pay or guarantees which it may give to procure the release of the Vessel from arrest or detention.
|
8.10.1
|
The Borrower hereby agrees at all times to pay promptly or, as the case may be, indemnify and hold the Facility Beneficiaries, Atradius and the
Related Companies of any Facility Beneficiary, Atradius and each of them and their respective officers, directors, representatives, agents and employees (together the
Indemnified Parties
) harmless on a full indemnity basis from and against
each and every Loss suffered or incurred by or imposed on any Indemnified Party related to or arising out of:
|
|
|
(a)
|
the use of proceeds of the Facility;
|
16
|
|
(b)
|
the execution and delivery of any commitment letter, engagement letter, fee letter, the Facility Documents or any other document connected
therewith or the performance of the respective obligations thereunder, including without limitation environmental liabilities; or
|
|
|
(c)
|
any claim, action, suit, investigation or proceeding relating to the foregoing or the Security Parties, whether or not any Indemnified Party is a
party thereto or target thereof, or the Indemnified Parties’ roles in connection therewith, and will reimburse the Indemnified Parties, on demand, for all reasonable expenses (including reasonable counsel fees and expenses) as they are incurred
by the Indemnified Parties in connection with investigating, preparing for or defending any such claim, action, suit or proceeding (including any security holder actions or proceeding, inquiry or investigation), whether or not in connection with
pending or threatened litigation in which the Security Parties are a party.
|
|
8.10.2
|
The Borrower will not, however, be responsible for any claims, liabilities, losses, damages or expenses of an Indemnified Party that are finally
judicially determined by a court of competent jurisdiction to have resulted principally from the wilful misconduct or gross negligence by such Indemnified Party.
|
|
8.10.3
|
The foregoing shall be in addition to any rights that the Indemnified Parties may have at common law or otherwise and shall extend upon the same
terms to and inure to the benefit of any affiliate, director, officer, employee, agent or controlling person of an Indemnified Party.
|
|
8.11
|
Environmental indemnity
|
The Borrower shall indemnify on demand and hold harmless each of the Indemnified Parties in respect of each and every Loss, of
whatever nature (including, without limitation, those arising under Environmental Laws) which may be incurred or made against the Indemnified Parties at any time relating to, or arising directly or indirectly in any manner or for any cause or reason
whatsoever out of an Environmental Claim relating to the Vessel, the Borrower, the Bareboat Charterer and/or the Operator made or asserted against the Indemnified Parties which would or could not have been brought if the Indemnified Parties had not
entered into any of the Facility Documents or been involved in any of the transactions contemplated by the Facility Documents. To the extent that an Indemnified Party would be entitled to recover an Loss under clause 8.10 and/or this clause 8.11,
that Indemnified Party shall not be entitled to recover for that Loss or payment twice.
The Borrower shall pay all Taxes to which all or any part of the Facility Secured Obligations, any Facility Document and/or the
Atradius Insurance Policy may be at any time subject (other than Tax on a Facility Beneficiary’s and/or Atradius’s overall net income) and shall indemnify the Facility Beneficiaries and Atradius, by payment to the Facility Agent (for the
account of the Facility Beneficiaries and Atradius) on the Facility Agent’s written demand, against all liabilities, costs, claims and expenses resulting from any omission to pay or delay in paying any such Taxes.
The Borrower agrees, and shall procure that the other Security Parties agree, that if Atradius makes a payment to the Atradius
Facility Lenders (whether through the ECA Agent or otherwise) pursuant to the Atradius Insurance Policy, the Atradius Facility Lenders (whether through the ECA Agent or otherwise) may act on the instructions of Atradius and the Security Parties
shall have no claims whatsoever in respect of any loss, damage or expense suffered or incurred by them as a result thereof.
17
|
9.1.1
|
The Borrower shall pay to the Facility Agent (for the account of the Facility Lenders in proportion to their undrawn Commitments) a commitment fee
at a per annum rate of forty per cent. (40%) of the applicable Margin on the daily undrawn and uncancelled amount of the Total Commitments accruing from the date of this Agreement until the earlier of (i) end of the Availability Period and
(ii) the date upon which the Total Commitments are cancelled.
|
|
9.1.2
|
The accrued Commitment Fee is payable in arrears on the last day of each successive period of six (6) Months commencing from the date of this
Agreement and ending on the earlier of (i) the last day of the Availability Period, and (ii) the date upon which the Total Commitments are cancelled.
|
|
9.1.3
|
In the event that there is a Rebalancing, prior to date of the final Advance, the Facility Agent shall re-calculate the commitment fee in respect
of the Facility which has been increased in accordance with clause 3.12, and the Borrower shall pay any amount of commitment fee due and owing on or prior to the earlier of (i) the date of the final Advance, (ii) the last day of the
Availability Period and (iii) the date upon which the Total Commitments are cancelled.
|
The Borrower shall pay any other fees set out in the Fee Letter in the amount and at the times agreed in the applicable Fee
Letter.
The Borrower shall pay to the Facility Agent an agency fee in the amount and at the times agreed in a Fee Letter and the
Borrower shall pay to the ECA Agent an agency fee in the amount and at the times agreed in the applicable Fee Letter.
|
9.4.1
|
The Borrower acknowledges that the Atradius Facility Lenders shall procure the placement of the Atradius Insurance Policy either through the ECA
Agent or directly with Atradius and shall benefit from it throughout the duration of the Facility Security Period. The Borrower agrees to pay to the Facility Agent (for the account of Atradius) the Atradius Premium on or prior to the Drawdown Date
of the first Atradius Facility Advance.
|
|
9.4.2
|
The Borrower agrees that its obligation to make the payments set out in clause 9.4.1 to the Facility Agent in respect of the Atradius Premium (or
any part thereof) shall be an absolute obligation and shall not be affected by any matter whatsoever. The Atradius Premium (or any part thereof) shall not be refundable except in accordance with the terms of the relevant Atradius Insurance Policy
and internal regulations and clause 9.4.4.
|
|
9.4.3
|
The Borrower acknowledges that the amount of the Atradius Premium will be solely determined by Atradius and no Facility Beneficiary is in any way
involved in the determination of the amount of the Atradius Premium and agrees that the Borrower shall have no claim or defence against any Facility Beneficiary in connection with the amount of the Atradius Premium.
|
|
9.4.4
|
In the event that there is a Rebalancing, the ECA Agent shall request Atradius after the date of the final Advance to re-calculate the Atradius
Premium in respect of the Atradius Facility which has been increased and/or decreased in accordance with clause 3.12 and shall use reasonable endeavours to obtain a response from Atradius. If the Atradius Premium paid to Atradius is less than the
amount which should have been paid (the
Shortfall
), the Borrower shall pay the Shortfall to the Facility Agent (for the account of Atradius) within five (5) Banking Days of its request. If the Atradius Premium paid to the Facility Agent
(for the account of Atradius) is greater than the amount which should have been paid (the
Excess
), the Facility Agent shall request Atradius to reimburse such amount to the ECA Agent, for onward payment to the Borrower.
|
18
|
10
|
Security and Application of Moneys
|
|
10.1
|
Facility Security Documents
|
As security for the payment of the Facility Secured Obligations, the Borrower shall execute and deliver to the Facility
Security Trustee or cause to be executed and delivered to the Facility Security Trustee at the relevant time, the following documents in such forms and containing such terms and conditions as the Facility Security Trustee shall require:
|
10.1.1
|
a first priority statutory mortgage over the Vessel together with a collateral deed of covenants;
|
|
10.1.2
|
a first priority deed of assignment and charge from the Borrower over the Refurbishment Contract, the Performance Bond, the Refurbishment
Guarantee, the Insurance Proceeds payable to the Borrower under the Refurbishment Contract and the Total Loss Proceeds;
|
|
10.1.3
|
a first priority deed of assignment from the Borrower of its interest in the Insurances, Earnings, Bareboat Charter and Requisition Compensation;
|
|
10.1.4
|
a first priority deed of assignment from the Bareboat Charterer of its interest in the Insurances, Earnings, the Charter, Charterer Guarantees and
Requisition Compensation;
|
|
10.1.5
|
an irrevocable, unconditional, first priority on demand guarantee and indemnity from TOO;
|
|
10.1.6
|
a first priority charge from each Shareholder over all the membership interests in the Borrower and all the shares in the Bareboat Charterer;
|
|
10.1.7
|
a first priority deed of charge over the Hedging Agreements;
|
|
10.1.8
|
a first priority account charge in respect of the Earnings Account;
|
|
10.1.9
|
a first priority account charge in respect of the Bareboat Charterer Earnings Account and the Bareboat Charterer NOK Account;
|
|
10.1.10
|
a quiet enjoyment undertaking from the Charterer; and
|
|
10.1.11
|
a Security Power of Attorney from each of the Borrower, Bareboat Charterer and the Operator.
|
|
10.2
|
Remittance of Revenue
|
At all times during the Facility Security Period, the Borrower shall procure that each Advance, all Revenue, Insurance
Proceeds, Total Loss Proceeds, any amounts of cancellation fee, termination fee or force majeure fee payable under or pursuant to the Charter, amounts payable under or pursuant to the Charterer Guarantees and amounts payable under or pursuant to the
Refurbishment Contract and/or the Performance Bond are paid to the Earnings Account or the Bareboat Charterer Earnings Account or such other account as the Facility Agent shall from time to time specify by notice in writing to the Borrower.
|
10.3
|
General application of moneys
|
Whilst an Event of Default is continuing unremedied or unwaived the Borrower irrevocably authorises the Facility Agent and the
Facility Security Trustee to apply all sums which either of them may receive:
|
10.3.1
|
pursuant to a sale or other disposition of the Vessel or any right, title or interest in the Vessel; or
|
|
10.3.2
|
by way of payment of any sum in respect of the Insurances, Earnings, Revenue or Requisition Compensation; or
|
19
|
10.3.3
|
otherwise arising under or in connection with any Facility Document, in or towards satisfaction, or by way of retention on account, of the Facility
Secured Obligations, as follows:
|
|
|
(i)
|
first in payment of all outstanding fees and expenses of the Facility Agent, the ECA Agent and the Facility Security Trustee;
|
|
|
(ii)
|
secondly in or towards payment on a
pari passu
and pro rata basis to the Facility Beneficiaries (other than the Hedging Providers) of an
amount equal to the Facility Secured Obligations (but excluding any Hedging Secured Obligations);
|
|
|
(iii)
|
thirdly in or towards payment on a
pari passu
and pro rata basis to the Hedging Providers, of an amount equal to the Hedging Secured
Obligations; and
|
|
|
(iv)
|
the balance, if any, shall be remitted to the Borrower.
|
|
11
|
Representations and Warranties
|
The Borrower represents and warrants to each of the Facility Beneficiaries at the date of this Agreement and (by reference to
the facts and circumstances then pertaining) at the date of each Drawdown Notice, at each Drawdown Date and at each Interest Payment Date as follows (except that the representations and warranties contained at clauses 11.2, 11.6 and 11.18 shall only
be made on the date of this Agreement):
|
11.1
|
Status and Due Authorisation
|
Each of the Security Parties is a corporation, limited liability company or limited partnership duly incorporated or formed
under the laws of its jurisdiction of incorporation, organisation or formation (as the case may be) with power to enter into the Facility Documents and to exercise its rights and perform its obligations under the Facility Documents and all corporate
and other action required to authorise its execution of the Facility Documents and its performance of its obligations thereunder has been duly taken.
|
11.2
|
No Deductions or Withholding
|
Under the laws of the Security Parties’ respective jurisdictions of incorporation or formation in force at the date
hereof, none of the Security Parties will be required to make any deduction or withholding from any payment it may make under any of the Facility Documents.
Under the laws of the Security Parties’ respective jurisdictions of incorporation or formation in force at the date
hereof, the Facility Secured Obligations will, to the extent that it exceeds the realised value of any security granted in respect of the Facility Secured Obligations, rank at least
pari passu
with all the Security Parties’ other
unsecured indebtedness save that which is preferred solely by any bankruptcy, insolvency or other similar laws of general application.
In any proceedings taken in any of the Security Parties’ respective jurisdictions of incorporation or formation in
relation to any of the Facility Documents, none of the Security Parties will be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process.
|
11.5
|
Governing Law and Judgments
|
In any proceedings taken in any of the Security Parties’ jurisdiction of incorporation or formation in relation to any of
the Facility Documents in which there is an express choice of the law of a particular country as the governing law thereof, that choice of law and any judgment or (if applicable) arbitral award obtained in that country will be recognised and
enforced.
20
|
11.6
|
Validity and Admissibility in Evidence
|
All acts, conditions and things required to be done, fulfilled and performed in order (a) to enable each of the Security
Parties lawfully to enter into, exercise its rights under and perform and comply with the obligations expressed to be assumed by it in the Facility Documents, (b) to ensure that the obligations expressed to be assumed by each of the Security
Parties in the Facility Documents are legal, valid and binding and (c) to make the Facility Documents admissible in evidence in the jurisdictions of incorporation or formation of each of the Security Parties, have been done, fulfilled and
performed, save for (i) the Brazilian Certification and Registration Requirements which is a condition subsequent pursuant to Schedule 2, Part 6, paragraph 5 of this Agreement and (ii) the registration of the relevant Facility
Documents at the competent Registry of Deeds and Documents (
Cartório de Registro de Titulos e Documentos
) in Brazil.
|
11.7
|
No Filing or Stamp Taxes
|
Under the laws of the Security Parties’ respective jurisdictions of incorporation or formation in force at the date
hereof, it is not necessary that any of the Facility Documents be filed, recorded or enrolled with any court or other authority in its jurisdiction of incorporation or formation (other than the relevant maritime registry, (ii) the Brazilian
Certification and Registration Requirements and/or (iii) the registration of the relevant Facility Document at the competent Registry of Deeds and Documents (
Cartório de Registro de Titulos e Documentos
) in Brazil, to the extent
applicable) or that any stamp, registration or similar tax be paid on or in relation to any of the Facility Documents.
The obligations expressed to be assumed by each of the Security Parties in the Facility Documents are legal and valid
obligations, binding on each of them in accordance with the terms of the Facility Documents and no limit on any of their powers will be exceeded as a result of the borrowings, granting of security or giving of guarantees contemplated by the Facility
Documents or the performance by any of them of any of their obligations thereunder.
The Borrower has not taken any corporate, limited liability company or limited partnership action nor have any other steps been
taken or legal proceedings been started or (to the best of the Borrower’s knowledge and belief) threatened against the Borrower for its winding-up, dissolution, administration or reorganisation or for the appointment of a receiver,
administrator, administrative receiver, trustee or similar officer of it or of any or all of its assets or revenues which might have a material adverse effect on the business or financial condition of the Group taken as a whole.
|
11.10.1
|
Neither the Borrower nor the Group taken as a whole is unable, or admits or has admitted its inability, to pay its debts or has suspended making
payments in respect of any of its debts.
|
|
11.10.2
|
Neither the Borrower nor the Group taken as a whole has by reason of actual or anticipated financial difficulties, commenced, or intends to
commence, negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
|
11.10.3
|
The value of the assets of each of the Borrower and the Group taken as a whole is not less than the liabilities of such entity or the Group taken
as a whole (as the case may be) (taking into account contingent and prospective liabilities).
|
|
11.10.4
|
No moratorium has been, or may, in the reasonably foreseeable future be, declared in respect of any indebtedness of the Borrower or of the Group
taken as a whole.
|
21
|
11.11
|
No Material Defaults
|
|
11.11.1
|
Without prejudice to clause 11.11.2, the Borrower is not in breach of or in default under any agreement to which it is a party or which is binding
on it or any of its assets or any Applicable Law to an extent or in a manner which might have a material adverse effect on the business or financial condition of the Group taken as a whole.
|
|
11.11.2
|
No Event of Default is continuing or might reasonably be expected to result from the making of any Advance.
|
|
11.12
|
No Material Proceedings
|
No action or administrative proceeding of or before any court, arbitral body or agency which is not covered by adequate
insurance or which might have a material adverse effect on the business or financial condition of the Group taken as a whole has been started or is reasonably likely to be started.
|
11.13
|
No Obligation to Create Security
|
The execution of the Facility Documents by the Security Parties and their exercise of their rights and performance of their
obligations thereunder will not result in the existence of nor oblige the Borrower to create any Security Interest (other than a Permitted Security Interest) over all or any of their present or future revenues or assets, other than pursuant to the
Facility Security Documents.
The execution of the Facility Documents by each of the Security Parties and their exercise of their rights and performance of
their obligations under any of the Facility Documents do not constitute and will not result in any breach of any agreement or treaty to which any of them is a party.
Each of the Security Parties is the legal and beneficial owner of all assets and other property which it purports to charge,
mortgage, pledge, assign or otherwise secure pursuant to each Facility Security Document and those Facility Security Documents to which it is a party create and give rise to valid and effective security having the ranking expressed in those Facility
Security Documents.
|
11.16
|
Necessary Authorisations
|
The Necessary Authorisations required by each Security Party are in full force and effect, and each Security Party is in
compliance with the material provisions of each such Necessary Authorisation relating to it and, to the best of its knowledge, none of the Necessary Authorisations relating to it are the subject of any pending or threatened proceedings or
revocation.
Any amount borrowed hereunder, and the performance of the obligations of the Security Parties under the Facility Documents,
will be for the account of members of the Group and will not involve any breach by any of them of any law or regulatory measure relating to “money laundering” as defined in Article 1 of the Directive (2005/60/EEC) of the Council of
the European Communities and/or as defined under any other Applicable Law.
|
11.18
|
Disclosure of material facts
|
|
|
(a)
|
The Borrower is not aware of any material facts or circumstances which:
|
|
|
(i)
|
have not been disclosed to the Facility Agent; and
|
22
|
|
(ii)
|
if disclosed, might have reasonably been expected to adversely affect the decision of a person considering whether or not to make loan facilities
of the nature contemplated by this Agreement available to the Borrower and/or issue the Atradius Insurance Policy.
|
|
|
(b)
|
All information provided by any Security Party or member of the Group to any of the Facility Beneficiaries in connection with the Transaction
Documents or the transactions referred to therein is accurate and correct in all material respects at the time it was given or made.
|
The Facility will be used for the purposes specified in the Recital.
Neither it nor any Security Party is a FATCA FFI or a US Tax Obligor, unless clause 12.1.32 has been complied with.
|
11.21.1
|
Each of the Security Parties is not materially overdue in the filing of any Tax returns and each Security Party is not overdue in the payment of
any amount in respect of Tax of five million Dollars ($5,000,000) (or its equivalent in any other currency) or more, save in the case of Taxes which are being contested on bona fide grounds.
|
|
11.21.2
|
No claims or investigations are being made or conducted against any Security Party with respect to Taxes such that a liability of, or claim
against, any Security Party is reasonably likely to arise, in the case of any Security Party other than TOO, of an amount of five million Dollars ($5,000,000) or more, and/or, in the case of TOO, which may cause a Material Adverse Effect.
|
No Security Party, nor any of their respective directors, officers or employees:
|
11.22.1
|
is a Restricted Person; or
|
|
11.22.2
|
has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions
Authority; or
|
|
11.22.3
|
is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions.
|
|
11.23
|
Representations Limited
|
The representation and warranties of the Borrower in this clause 11 are subject to:
|
11.23.1
|
the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court;
|
|
11.23.2
|
the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and
other laws generally affecting or limiting the rights of creditors;
|
|
11.23.3
|
the time barring of claims under any applicable limitation acts;
|
|
11.23.4
|
the possibility that a court may strike out provisions for a contract as being invalid for reasons of oppression, undue influence or similar; and
|
|
11.23.5
|
any other reservations or qualifications of law expressed in any legal opinions obtained by the Facility Agent in connection with the Facility.
|
23
|
12
|
Undertakings and Covenants
|
The undertakings and covenants in this clause 12 remain in force for the duration of the Facility Security Period.
|
12.1
|
General Undertakings
|
|
12.1.1
|
Financial statements
|
The Borrower shall supply to the Facility Agent (for onward transmission to the Facility Lenders) as soon as the same become
available, but in any event within one hundred and eighty (180) days after the end of each of its financial years, its unaudited consolidated financial statements for that financial year, prepared in accordance with GAAP, and cashflows.
|
12.1.2
|
Interim financial statements
|
The Borrower shall supply to the Facility Agent (for onward transmission to the Facility Lenders) as soon as the same become
available, but in any event within one hundred and twenty (120) days after the end of each fiscal quarter year during each of its financial years, its unaudited quarterly consolidated financial statements (comprising a balance sheet and income
statement) for that fiscal quarter, signed by a duly authorised representative of the Borrower.
|
12.1.3
|
Maintenance of Legal Validity
|
The Borrower shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect:
|
|
(a)
|
all authorisations, approvals, licences and consents required in or by the laws and regulations of its jurisdiction of formation and all other
applicable jurisdictions, to enable it lawfully to enter into and perform its obligations under the Facility Documents and to ensure the legality, validity, enforceability or admissibility in evidence of the Facility Documents in its jurisdiction of
incorporation or organisation and all other applicable jurisdictions; and
|
|
|
(b)
|
the Earnings Account.
|
|
12.1.4
|
Notification of Default
|
The Borrower shall promptly, upon becoming aware of the same, inform the Facility Agent in writing (who shall in turn notify
all the Facility Lenders and the ECA Agent (who shall in turn notify Atradius)) of the occurrence of any Event of Default and, upon receipt of a written request to that effect from the Facility Agent, confirm to the Facility Agent that, save as
previously notified to the Facility Agent or as notified in such confirmation, no Event of Default has occurred.
|
12.1.5
|
Other notifications
|
The Borrower shall promptly, upon becoming aware of the same, inform the Facility Agent in writing of any Environmental Claim
pending or made against it or any of its Environmental Affiliates or in connection with the Vessel and of any material litigation, arbitration or administrative proceedings which are current, threatened or pending against any Security Party, and
which, if adversely determined, are reasonably likely to have a Material Adverse Effect.
The Borrower shall ensure that at all times the claims of the Facility Beneficiaries against it under the Facility Documents
rank at least pari passu with the claims of all its other unsecured creditors save those whose claims are preferred by any bankruptcy, insolvency, liquidation, winding-up or other similar laws of general application.
24
|
12.1.7
|
Management of Vessel
|
With effect from the Delivery Date, the Borrower shall ensure that the Vessel is at all times technically and commercially
managed by the Operator in accordance with good industry standards.
With effect from the Delivery Date, the Borrower shall ensure that the Vessel maintains the highest classification required for
the purpose of the relevant trade of the Vessel which shall be with a Classification Society free from any overdue recommendations and conditions affecting the Vessel’s class.
The Borrower shall ensure that the only entity operating the Vessel shall be (i) the Operator, (ii) another company
in the TOO Group, or (iii) another person acceptable to the Facility Agent (acting on the instructions of all the Facility Lenders, acting reasonably) which has become party to an Operations Agreement.
|
|
(a)
|
The Borrower shall, and shall procure that each Security Party shall, comply in all respects with all Sanctions.
|
|
|
(b)
|
The Borrower undertakes to procure that it, each other Security Party, and each director, officer, employee or person employed and acting on behalf
of any Security Party, is not a Restricted Person and does not act directly or indirectly on behalf of a Restricted Person.
|
|
|
(c)
|
The Borrower undertakes to procure that no Security Party shall use any revenue or benefit derived from any activity or dealing with a Restricted
Person in discharging any obligation due or owing to the Facility Beneficiaries.
|
|
|
(d)
|
The Borrower shall procure that each Security Party shall, to the extent permitted by law, promptly upon becoming aware of them supply to the
Facility Agent details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority.
|
|
|
(e)
|
The Borrower shall not, and shall not permit or authorise any Security Party to, directly or indirectly, make available any proceeds of the
Facility to fund or facilitate trade, business or other activities (i) involving or for the benefit of any Restricted Person or (ii) in any other manner that could result in any Security Party or a Facility Beneficiary being in breach of
any Sanctions or becoming a Restricted Person.
|
The Borrower shall not create, or permit to subsist, any Security Interest over all or any part of its assets (including but
not limited to the Vessel and the Insurances) other than a Permitted Security Interest.
The Borrower shall not for the duration of the Facility Security Period change or permit a change to the flag of the Vessel
other than to a Flag State and/or bring its centre of main interests into the European Union or any country with which a Facility Lender is prohibited from doing business and which has been notified to the Facility Agent.
25
|
12.1.13
|
ISM and ISPS Compliance
|
With effect from seven (7) days after the Delivery Date, the Borrower shall comply in all material respects with the ISM
Code and the ISPS Code or any replacements thereof and in particular (without prejudice to the generality of the foregoing) shall procure that the Operator holds (i) a valid and current DOC issued pursuant to the ISM Code, (ii) a valid and
current SMC issued in respect of the Vessel pursuant to the ISM Code, and (iii) an ISSC in respect of the Vessel, and the Borrower shall promptly, upon request, supply the Facility Agent with copies of the same.
|
12.1.14
|
Necessary Authorisations
|
Without prejudice to any specific provision of the Facility Documents relating to an Authorisation, the Borrower shall
(i) obtain, comply with and do all that is necessary to maintain in full force and effect all Necessary Authorisations if a failure to do the same may cause a Material Adverse Effect; and (ii) promptly upon request, supply certified copies
to the Facility Agent of all Necessary Authorisations.
|
12.1.15
|
Compliance with Applicable Laws
|
|
|
(a)
|
The Borrower, and parties acting on its behalf (including but not limited to the Security Parties), shall comply with (i) all material
provisions of all applicable laws to which it may be subject (including, but not limited to, Environmental Laws, anti-bribery and corruption laws and anti-money laundering laws) and (ii) the Equator Principles.
|
|
|
(b)
|
The Borrower shall, and shall procure that each of the Security Parties shall, conduct its business in compliance with applicable anti-corruption
laws.
|
|
12.1.16
|
Performance of Obligations
|
The Borrower shall comply with the material provisions of all Project Documents in relation to the Vessel and in determining
“material” the Facility Lenders will consider whether such non-compliance has a Material Adverse Effect.
|
12.1.17
|
Further Assurance
|
The Borrower shall, at its own expense, promptly take all such action as the Facility Agent may reasonably require for the
purpose of perfecting or protecting any Facility Beneficiary’s rights with respect to the security created or evidenced (or intended to be created or evidenced) by the Facility Security Documents.
|
12.1.18
|
Other information
|
The Borrower will promptly supply to the Facility Agent each quarter commercial uptime figures relating to operations of the
Vessel under the Charter and, at any time such other information and explanations as the Majority Facility Lenders or Atradius may from time to time reasonably require in connection with the operation of the Vessel and any reasonable financial
information in connection with the Borrower, and will procure that the Facility Agent be given the like information and explanations relating to all other Security Parties.
|
12.1.19
|
Inspection of records
|
The Borrower will permit the inspection of its financial records and accounts following an Event of Default which is continuing
unremedied or unwaived from time to time during business hours by the Facility Agent or its nominee.
26
The Borrower shall ensure at its own expense throughout the Facility Security Period that the Vessel is insured and operated in
accordance with the provisions set out in the relevant Facility Security Documents.
|
12.1.21
|
Change of Business
|
Except as expressly permitted in the Facility Documents the Borrower shall not carry on any business, other than that of
owning, chartering and operating the Vessel.
|
12.1.22
|
No disposal of assets
|
The Borrower shall not dispose of any of its material assets other than a sale of the Vessel which complies with clause 6.2.
|
12.1.23
|
“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 after the date of this Agreement; or
|
|
|
(c)
|
a proposed assignment or transfer by a Facility Lender of any of its rights and obligations under this Agreement to a party that is not a Facility
Lender prior to such assignment or transfer,
|
obliges the Facility Agent or any Facility Lender (or, in
the case of (c) above, any prospective new Facility 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 Facility Agent or any Facility Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Facility Lender) or any
Facility Lender for itself (or, in the case of (c) above, on behalf of any prospective new Facility Lender) in order for the Facility Agent or that Facility Lender (or, in the case of (c) above, any prospective new Facility 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 Facility Documents.
The Borrower may only borrow:
|
|
(a)
|
from members of the TOO Group on a subordinated and unsecured basis;
|
|
|
(b)
|
from other parties for trade credit in the ordinary course of its business; and
|
|
|
(c)
|
from other parties in the ordinary course of its business and in an aggregate amount of no more than ten million Dollars ($10,000,000),
|
provided always that no Event of Default has occurred and is continuing unremedied and unwaived and that
no payments under or in connection with such borrowing shall be made by the Borrower:
|
|
(i)
|
whilst an Event of Default has occurred and is continuing unremedied or unwaived; or
|
|
|
(ii)
|
following breach of any of the covenants contained in this clause 12 or in clause 8 of the Financial Guarantee.
|
27
|
12.1.25
|
Enforcement of Obligations
|
The Borrower shall take all reasonable steps to enforce its rights under the Bareboat Charter and any other agreements relating
to the Vessel.
The Borrower shall not pay dividends or make other distributions to shareholders or members:
|
|
(a)
|
whilst an Event of Default has occurred and is continuing unremedied or unwaived; or
|
|
|
(b)
|
following breach of any of the covenants contained in this clause 12 or in clause 8 of the Financial Guarantee.
|
The Borrower shall not merge or consolidate with any other entity, split up or materially divest without the prior written
consent of the Facility Agent (acting on the instructions of the Facility Lenders).
|
12.1.28
|
No Material Amendment to Project Documents
|
With the exception of the Operator Novation Agreement and/or non-material amendments (and for the avoidance of doubt, in
respect of the Refurbishment Contract only, utilisation of all or any part of the Contingency Amount in the Budget (to the extent still available) shall not, in and of itself, be material), the Borrower shall not agree to any amendment, variation or
termination of any of the Project Documents or Hedging Agreements to which it is a party without the prior written consent of the Majority Facility Lenders (such consent not to be unreasonably withheld) and the ECA Agent.
The Borrower may (but shall have no obligation to) liaise with the Hedge Coordinator to conclude interest rate hedges or
similar hedging instruments in relation to the Facility, provided that the counterparties of those interest rate hedges or similar hedging agreements are Hedging Providers.
The Borrower shall procure that its legal and beneficial ownership remains the same as advised to the Facility Agent on or
about the date of this Agreement, other than permitted in accordance with the Facility Documents and if the ownership of any Security Party changes, the Borrower shall supply a group structure chart detailing those changes to the Facility Agent.
|
12.1.31
|
No Material Proceedings
|
The Borrower shall ensure that no litigation, arbitration or administrative proceeding on or before any court, arbitral body or
agency against any member of the Group has been started or is reasonably likely to be started which have or, if adversely determined, are reasonably likely to have a Material Adverse Effect or which is not covered by adequate insurance.
|
12.1.32
|
Application of FATCA
|
The Borrower shall procure that no Security Party shall become a US Tax Obligor unless it has given notice thereof to the
Facility Agent (on behalf of the Facility Lenders) and has discussed in good faith with the Facility Beneficiaries the effect of that Security Party becoming a US Tax Obligor and any reasonable amendments or restructuring which should be made to
this Agreement to mitigate the risk to any Facility Beneficiaries which are not already a FATCA Exempt Party of a FATCA Deduction applying, which cannot be mitigated pursuant to clause 17.10.
28
By 31 December of each year during the Facility Security Period the Borrower shall provide an updated budget and forecast
for the immediately following period of twelve (12) Months including commentary on any technical issues, downtime/operation record and updates or changes to the field.
|
12.1.34
|
Atradius requirements
|
|
|
(a)
|
The Borrower shall procure that no Security Party shall act (or omit to act) in a manner that is inconsistent with any requirement of Atradius
under or in connection with the Atradius Insurance Policy and, in particular:
|
|
|
(i)
|
each Security Party shall do all that is reasonably necessary to ensure that all requirements of Atradius under or in connection with the Atradius
Insurance Policy are complied with; and
|
|
|
(ii)
|
each Security Party will refrain from acting in any manner which could result in a breach of any requirements of Atradius under or in connection
with the Atradius Insurance Policy or affect its validity.
|
|
|
(b)
|
The Borrower shall promptly:
|
|
|
(i)
|
notify the Facility Agent promptly of the occurrence of any event involving political or commercial risk covered by the Atradius Insurance Policy;
and
|
|
|
(ii)
|
provide the Facility Agent and/or ECA Agent with copies of all financial or other information required by the Facility Agent and/or ECA Agent to
satisfy any request for information by Atradius pursuant to the Atradius Insurance Policy.
|
|
12.1.35
|
Atradius Policy protection
|
If at any time in the opinion of the ECA Agent (acting reasonably), any provision of a Facility Document contradicts or
conflicts with any provision of the Atradius Insurance Policy, the Borrower will:
|
|
(a)
|
take all steps as the Facility Agent, the ECA Agent and/or Atradius shall reasonably require to remove such contradiction or conflict; and
|
|
|
(b)
|
take all steps as the Facility Agent, the ECA Agent and/or Atradius shall reasonably require to ensure that the Atradius Insurance Policy remains
in full force and effect, including but not limited to, payment of any increased Atradius Premium.
|
Each of the events or circumstances set out in this clause 13.1 is an Event of Default.
Any Security Party fails to pay any amount due from it under a Facility Document at the time, in the currency and otherwise in
the manner specified herein provided that, if the relevant Security Party can demonstrate to the reasonable satisfaction of the Facility Agent that all necessary instructions were given to effect such payment and the non-receipt thereof is
attributable to an error in the banking system, such payment shall instead be deemed to be due, solely for the purposes of this paragraph, within three (3) Banking Days of the date on which it actually fell due under the relevant Facility
Document (if a payment of principal), five (5) Banking Days (if a payment of interest) or ten (10) Banking Days (if a sum payable on demand); or
29
Any representation or statement made by any Security Party in any Facility Document to which it is a party or in any notice or
other document, certificate or statement delivered by it pursuant thereto or in connection therewith is or proves to have been incorrect or misleading in any material respect, where the circumstances causing the same give rise to a Material Adverse
Effect; or
|
13.1.3
|
Specific Covenants
|
A Security Party fails duly to perform or comply with any of the obligations expressed to be assumed by or procured by the
Borrower under clauses 12.1.3, 12.1.6, 12.1.9, 12.1.15 (but only insofar as such failure relates to anti-bribery and corruption laws) or 12.1.28 (but only insofar as such non-compliance relates to a Project Document or Hedging Agreement which is
assigned by way of security or charged by way of security in favour of the Facility Beneficiaries); or
|
13.1.4
|
Financial Covenants
|
There is any breach of the financial covenants set out in clause 8.1 of the Financial Guarantee; or
A Security Party fails duly to perform or comply with any of the obligations expressed to be assumed by it in any Facility
Document (other than those referred to in clause 12.1.32, clause 13.1.3, clause 13.1.4 or clause 13.1.11) and such failure is not remedied within 30 days of the earlier of (a) the Borrower becoming aware of such failure to perform or comply and
(b) the Facility Agent informing the Borrower in writing of such failure to perform or comply; or
Any indebtedness of any Security Party is not paid when due (or within any applicable grace period) or any indebtedness of any
Security Party is declared to be or otherwise becomes due and payable prior to its specified maturity where (in either case) the aggregate of all such unpaid or accelerated indebtedness (i) of the Borrower, the Bareboat Charterer or the
Operator is equal to or greater than five million Dollars ($5,000,000) or its equivalent in any other currency; or (ii) of TOO or any of its Subsidiaries (other than the Borrower, the Bareboat Charterer or the Operator), is equal to or greater
than one hundred million Dollars ($100,000,000) or its equivalent in any other currency; or
|
13.1.7
|
Insolvency and Rescheduling
|
A Security Party is unable to pay its debts as they fall due, commences negotiations with any one or more of its creditors with
a view to the general readjustment or rescheduling of its indebtedness or makes a general assignment for the benefit of its creditors or a composition with its creditors unless in respect of the Operator, if it has been replaced by another company
in the TOO Group or another person acceptable to the Facility Agent (acting on the instructions of all Facility Lenders, acting reasonably) which has become party to an Operations Agreement, in each case within six (6) Months of insolvency; or
A Security Party takes any corporate action or other steps are taken or legal proceedings are started for its
winding-up,
dissolution, administration or
re-organisation
or for the appointment of a liquidator, receiver, administrator, administrative receiver, conservator, custodian,
trustee or similar officer of it or of any or all of its revenues or assets or any moratorium is declared or sought in respect of any of its indebtedness unless the Facility Agent is satisfied, acting reasonably, that such actions, steps or
proceedings are frivolous or vexatious and are being contested appropriately by the relevant Security Party; or
30
|
13.1.9
|
Execution or Distress
|
|
|
(a)
|
Any Security Party fails to comply with or pay any sum due from it (within 30 days of such amount falling due) under any final judgment or any
final order made or given by any court or other official body of a competent jurisdiction, subject to the amount due being in an aggregate amount (i) for the Borrower or the Bareboat Charterer of equal to or greater than five million Dollars
($5,000,000) or its equivalent in any other currency; or (ii) for TOO or any of its Subsidiaries (other than the Borrower and the Bareboat Charterer) or the Operator, of equal to or greater than one hundred million Dollars ($100,000,000) or its
equivalent in any other currency, being a judgment or order against which there is no right of appeal or if a right of appeal exists, where the time limit for making such appeal has expired.
|
|
|
(b)
|
Any execution or distress is levied against, or an encumbrancer takes possession of, the whole or any part of, the property, undertaking or assets
of a Security Party, subject to the amount in question being in an aggregate amount (i) for the Borrower or the Bareboat Charterer, of equal to or greater than five million Dollars ($5,000,000) or its equivalent in any other currency; or
(ii) for TOO or any of its Subsidiaries (other than the Borrower and the Bareboat Charterer) or the Operator, of equal to or greater than one hundred million Dollars ($100,000,000) or its equivalent in any other currency, other than any
execution or distress which is being contested in good faith and which is either discharged within 30 days or in respect of which adequate security has been provided within 30 days to the relevant court or other authority to enable the relevant
execution or distress to be lifted or released.
|
|
|
(c)
|
Notwithstanding the foregoing paragraphs of this clause 13.1.9, any levy of any distress on or any arrest, condemnation, confiscation, requisition
for title or use, compulsory acquisition, seizure, detention or forfeiture of the Vessel (or any part thereof) or any exercise or purported exercise of any lien or claim on or against the Vessel where the release of or discharge of the lien or claim
on or against the Vessel has not been procured within 30 days; or
|
Any event occurs which, under the laws of any jurisdiction, has a similar or analogous effect to any of those events mentioned
in clauses 13.1.7, 13.1.8 and 13.1.9; or
Insurance is not maintained in respect of the Vessel in accordance with the terms of the Facility Security Documents; or
The Vessel has its classification withdrawn by the relevant Classification Society PROVIDED THAT if such withdrawal is (in the
opinion of the Facility Agent in its absolute discretion) capable of remedy such Event of Default shall only occur if the Vessel’s classification is not reinstated to the satisfaction of the Facility Agent within twenty one (21) days; or
|
13.1.13
|
Environmental Matters
|
|
|
(a)
|
Any Environmental Claim is pending or made against the Borrower or the Bareboat Charterer or the Operator or any of their Environmental Affiliates
or in connection with the Vessel, where such Environmental Claim has a Material Adverse Effect; or
|
|
|
(b)
|
Any actual Environmental Incident occurs in connection with the Vessel, where such Environmental Incident has a Material Adverse Effect; or
|
31
Any Security Party repudiates any Facility Document or Project Document to which it is a party or does or causes to be done any
act or thing evidencing an intention to repudiate any such Facility Document or Project Document other than any repudiation to which clause 6.5 applies; or
|
13.1.15
|
Validity and Admissibility
|
At any time any act, condition or thing required to be done, fulfilled or performed in order:
|
|
(a)
|
to enable any Security Party lawfully to enter into, exercise its rights under and perform the respective obligations expressed to be assumed by it
in the Facility Documents;
|
|
|
(b)
|
to ensure that the obligations expressed to be assumed by each of the Security Parties in the Facility Documents are legal, valid and binding; or
|
|
|
(c)
|
to make the Facility Documents admissible in evidence in any applicable jurisdiction
|
is not done, fulfilled or performed within 30 days after notification from the Facility Agent to the relevant Security Party
requiring the same to be done, fulfilled or performed; or
|
13.1.16
|
Material Adverse Change
|
At any time there shall occur a change in the business or operations of a Security Party or a change in the financial condition
of any Security Party which, in the reasonable opinion of the Majority Facility Lenders, materially impairs such Security Party’s ability to discharge its obligations under the Facility Documents in the manner provided therein and such change,
if capable of remedy, is not so remedied within 30 days of written notification from the Facility Agent; or
|
13.1.17
|
Qualifications of Financial Statements
|
The auditors of the Group qualify their report on any audited consolidated financial statements of the Group in any regard
which, in the reasonable opinion of the Facility Agent, has a Material Adverse Effect; or
|
13.1.18
|
Conditions Subsequent
|
If any of the conditions set out in clause 3.8 is not satisfied within thirty (30) days (or such shorter time as may be
specified in Schedule 2) of a Drawdown Date, or such other time period specified by the Facility Agent acting on the instructions of the Majority Facility Lenders; or
|
13.1.19
|
Revocation or Modification of consents etc.
|
If any Necessary Authorisation which is now or which at any time during the Facility Security Period becomes necessary to
enable any of the Security Parties to comply with any of their obligations in or pursuant to any of the Facility Security Documents is revoked, withdrawn or withheld, or modified in a manner which the Facility Agent reasonably considers is, or may
be, prejudicial to the interests of a Facility Beneficiary in a material manner, or if such Necessary Authorisation ceases to remain in full force and effect; or
|
13.1.20
|
Curtailment of Business
|
If the business of any of the Security Parties is wholly or materially curtailed by any intervention by or under authority of
any government, or if all or a substantial part of the undertaking, property or assets of any of the Security Parties is seized, nationalised, expropriated or compulsorily acquired by or under authority of any government or any Security Party
disposes or threatens to dispose of a substantial part of its business or assets, or if any Security Party suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business; or
32
|
13.1.21
|
Reduction of Capital
|
If the Borrower reduces its committed or subscribed capital; or
|
13.1.22
|
Challenge to Registration
|
If the registration of the Vessel or the Mortgage becomes void or voidable or liable to cancellation or termination; or
If the country of registration of the Vessel becomes involved in war (whether or not declared) or civil war or is occupied by
any other power and the Facility Agent reasonably considers that, as a result, the security conferred by the Facility Security Documents is materially prejudiced; or
|
13.1.24
|
Notice of Termination
|
If the Sponsor gives notice to the Facility Agent to determine or terminate its obligations under the relevant Financial
Guarantee; or
|
13.1.25
|
Termination or material breach
|
If:
|
|
(a)
|
any of the Project Documents is terminated by the Charterer, QGEP, the Builder or any of their Affiliates by reason of breach by a Security Party;
or
|
|
|
(b)
|
any of the Project Documents is breached by a Security Party in a manner that gives rise to a right to terminate such Project Document (in the case
of the Operations Agreement, only after the expiry of any applicable grace or cure period under or pursuant to the Operations Agreement) or treat it as repudiated by the Charterer, QGEP, the Builder or any of its Affiliates.
|
If an Event of Default is continuing unremedied or unwaived the Facility Agent may, and shall (at the request of the Majority
Facility Lenders), by notice to the Borrower cancel any part of the Commitments not then advanced and:
|
13.2.1
|
declare that the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Facility Documents are immediately
due and payable, whereupon they shall become immediately due and payable; and/or
|
|
13.2.2
|
declare that the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Facility Documents is payable on
demand, whereupon they shall immediately become payable on demand by the Facility Agent; and/or
|
|
13.2.3
|
declare the Commitments terminated and reduced to zero; and/or
|
|
13.2.4
|
exercise all of its rights under the Facility Documents.
|
33
|
14
|
Assignment and Sub-Participation
|
|
14.1
|
Facility Lenders’ rights
|
|
14.1.1
|
A Facility Lender may assign any of its rights under this Agreement or transfer by novation any of its rights and obligations under this Agreement:
|
|
|
(i)
|
(in the case of an Atradius Facility Lender, subject to the consent of Atradius) to any other branch or Affiliate of that Facility Lender, to a
Facility Lender and in the case of an Atradius Facility Lender, to Atradius; or
|
|
|
(ii)
|
(subject to (a) the prior written consent of the Borrower, such consent not to be unreasonably withheld and to be deemed to be given unless
notice to the contrary is received within five (5) Banking Days of the request being given, but not to be required at any time after an Event of Default which is continuing unremedied or unwaived or if the assignment is in favour of a central
bank or federal reserve, and/or (b) in the case of an Atradius Facility Lender, the consent of Atradius) to any other bank, financial institution or other entity, provided that at the date of and as a consequence of such assignment or transfer,
no FATCA Deduction would be payable,
|
PROVIDED ALWAYS that any assignment or transfer under this clause
14 shall not result in any increased costs to the Borrower at the date of and as a consequence of such assignment or transfer (other than in respect of assignments or transfers to Atradius to which this proviso shall not apply).
|
14.1.2
|
A Facility Lender may grant sub-participations in all or any part of its Commitment without the requirement for consent or to disclose any
sub-participation to any Security Party, provided that in the case of any such sub-participation that Facility Lender shall at all times remain liable for the performance of its obligations under this Agreement.
|
|
14.2
|
Borrower’s co-operation
|
The Borrower will co-operate fully with a Facility Lender in connection with any assignment, transfer or sub-participation by
that Facility Lender; will execute and procure the execution of such documents as that Facility Lender may reasonably require in that connection; and irrevocably authorises any Facility Beneficiary to disclose to any proposed assignee, transferee or
sub-participant, their Affiliates and professional advisers (whether before or after any assignment, transfer or sub-participation and whether or not any assignment, transfer or sub-participation shall take place) all information relating to the
Security Parties, the Loan, the Transaction Documents and the Vessel which any Facility Beneficiary may in its discretion consider necessary or desirable (subject to any duties of confidentiality applicable to the Facility Lenders generally).
Additionally, (but subject to the same duties of confidentiality), any Facility Lender may disclose the size and term of the Facility and the names of each Security Party to any investor or potential investor in a securitisation (or similar
transaction of broadly equivalent economic effect) of that Facility Lender’s rights and obligations under the Facility Documents.
Any assignee of a Facility Lender shall (unless limited by the express terms of the assignment) take the full benefit of every
provision of the Facility Documents benefiting that Facility Lender PROVIDED THAT an assignment will only be effective on notification by the Facility Agent to that Facility Lender and the assignee that the Facility Agent 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 assignment to the assignee.
|
14.4
|
In addition to the other rights provided to the Facility Lenders under this clause 14, each Facility Lender may without consulting with or
obtaining consent from the Borrower, at any time charge, assign or otherwise create security in or over (whether by way of collateral or otherwise) all or any of its rights under any Facility Document to secure obligations of that Facility Lender
including, without limitation, any charge, assignment or other security to secure obligations to a federal reserve or central bank except that no such charge, assignment or security shall:
|
|
|
(i)
|
release a Facility Lender from any of its obligations under the Facility Documents or (other than upon enforcement by the beneficiary of such
charge, assignment or security) substitute the beneficiary of the relevant charge, assignment or other security for the Facility Lender as a party to any of the Facility Documents; or
|
34
|
|
(ii)
|
require any payments to be made by the Borrower or grant to any person any more extensive rights than those required to be made or granted to the
relevant Facility Lender under the Facility Documents.
|
|
14.5
|
Transfer Certificates
|
If a Facility Lender wishes to transfer any of its rights and obligations under or pursuant to this Agreement, it may do so by
delivering to the Facility Agent and, if the Facility Lender is an Atradius Facility Lender, the ECA Agent a duly completed Transfer Certificate, in which event on the Transfer Date:
|
14.5.1
|
to the extent that that Facility Lender seeks to transfer its rights and obligations, the Borrower (on the one hand) and that Facility Lender (on
the other) shall be released from all further obligations towards the other;
|
|
14.5.2
|
the Borrower (on the one hand) and the transferee (on the other) shall assume obligations towards the other identical to those released pursuant to
clause 14.5.1; and
|
|
14.5.3
|
the Facility Agent, the ECA Agent, each of the Facility Lenders, the other Facility Beneficiaries and the transferee shall have the same rights and
obligations between themselves as they would have had if the transferee had been an original Party as a Facility Lender,
|
PROVIDED THAT the Facility Agent shall only be obliged to execute a Transfer Certificate once:
|
|
(a)
|
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 the transferee; and
|
|
|
(b)
|
if that Facility Lender which is a transferor is also (or an Affiliate of that Facility Lender is) a Hedging Provider and it wishes (at its option)
to novate its Hedging Agreement (or a portion thereof) to the transferee it is satisfied that the Hedging Provider which is (or is an Affiliate of) the Facility Lender wishing to transfer any of its rights and obligations under or pursuant to this
Agreement, has novated or will novate simultaneously all of its rights and obligations under and pursuant to the Hedging Agreement to which it is a party in favour of the transferee; and
|
|
|
(c)
|
the transferee has paid to the Facility Agent for its own account a transfer fee of three thousand Dollars.
|
The Facility Agent is hereby authorised to sign any Transfer Certificate on behalf of each Facility Beneficiary and the
Borrower and shall, as soon as reasonably practicable after it has executed a Transfer Certificate, send to the Borrower a copy of that Transfer Certificate.
The Facility Agent is hereby authorised to sign any Accession Deed on behalf of each Facility Beneficiary and the Borrower and
shall, as soon as reasonably practicable after it has executed an Accession Deed, send to the Borrower a copy of that Accession Deed.
Unless otherwise expressly provided in any Facility Document or otherwise expressly agreed between a Facility Lender and any
proposed transferee and notified by that Facility Lender to the Facility Agent on or before the relevant Transfer Date, there shall automatically be assigned to the transferee with any transfer of a Facility Lender’s rights and obligations
under or pursuant to this Agreement the rights of that Facility Lender under or pursuant to the Facility Documents (other than this Agreement) which relate to the portion of that Facility Lender’s rights and obligations transferred by the
relevant Transfer Certificate.
35
|
14.7
|
No assignment or transfer by the Borrower
|
The Borrower may not assign any of its rights or transfer any of its rights or obligations under the Facility Documents.
|
14.8
|
Transfer to Atradius
|
|
14.8.1
|
If an Atradius Facility Lender receives a payment from Atradius under any Atradius Insurance Policy in respect of its participation in the Atradius
Loan, then, to the extent that it is required to do so by Atradius pursuant to the terms of the relevant Atradius Insurance Policy, that Atradius Facility Lender shall, at the reasonable and documented cost of the Borrower and without the
Borrower’s consent, transfer to Atradius a part of its participation in the Atradius Loan equal to the amount paid to it by Atradius (but the transfer shall not limit the rights of that Atradius Facility Lender to recover any remaining part of
its participation in the Atradius Loan or of any other moneys owing to it), Provided however that if Atradius makes any payment to the Atradius Facility Lenders under the Atradius Insurance Policy:
|
|
|
(a)
|
the obligations of the Security Parties and the Facility Beneficiaries (and of any of them) under this Agreement and each of the Facility Documents
shall not be discharged nor affected in any way;
|
|
|
(b)
|
Atradius shall be subrogated to the respective rights of the Atradius Facility Lenders against the Security Parties and the Facility Beneficiaries;
and
|
|
|
(c)
|
Atradius shall be entitled to the extent of such payment to exercise the respective rights of the Atradius Facility Lenders (whether present or
future) against the Security Parties and the Facility Beneficiaries (and against any of them) pursuant to this Agreement and the Facility Documents or any relevant laws and/or regulations unless and until such payment and the interest accrued
thereon are fully reimbursed to Atradius; and
|
|
|
(d)
|
with respect to the obligations of the Security Parties owed to the Facility Beneficiaries under the Facility Documents (or any of them), such
obligations shall additionally be owed to Atradius by way of subrogation of the rights of the Facility Beneficiaries.
|
|
14.8.2
|
Each of the Atradius Facility Lenders agrees that as soon as Atradius irrevocably and unconditionally pays in full all moneys due under an Atradius
Insurance Policy then each of the relevant Atradius Facility Lenders shall promptly transfer to Atradius ninety-five per cent. (95%) of their respective Atradius Facility Commitments and/or Atradius Loan in proportion to and in accordance with
the schedule of payments made by Atradius under the Atradius Insurance Policy whereupon Atradius shall, upon receipt by the Facility Agent of a duly completed Transfer Certificate, and modified to the extent agreed between the Facility Beneficiaries
and Atradius for consistency with the terms and conditions of the Atradius Insurance Policy, be a transferee and as such shall be entitled to the rights and benefits of the Atradius Facility Lenders under the Facility Documents to the extent of its
participation (but the transfer shall not limit the rights of that Atradius Facility Lender to recover any remaining part of its participation in the Atradius Loan or of any other moneys owing to it). Notwithstanding any provisions to the contrary
in any Facility Document, the Borrower consents to such assignment and transfer.
|
|
14.8.3
|
The Borrower shall indemnify Atradius in respect of any reasonable and documented costs or expenses (including legal fees) suffered or incurred by
Atradius in connection with the transfer referred to hereinabove or in connection with any review by Atradius of any Event of Default or dispute between the Borrower and any of the Facility Beneficiaries occurring prior to the transfer referred to
hereinabove.
|
36
|
15
|
The Facility Agent, the ECA Agent, the Facility Security Trustee and the Facility Lenders
|
|
15.1.1
|
(a) Each Facility Lender appoints the Facility Agent to act as its agent under and in connection with the Facility Documents, (b) each
Atradius Facility Lender appoints the ECA Agent to act as its agent in relation to the Atradius Insurance Policy and (c) each Facility Lender, Hedging Provider, Mandated Lead Arranger, the Bookrunner, the ECA Agent and the Facility Agent
appoints the Facility Security Trustee to act as its facility security trustee for the purpose of the Facility Documents, and generally for the purpose of taking in its name and on its behalf such steps and exercising such powers that are granted to
or delegated to the Facility Security Trustee (or its successors and assigns in such capacity) thereunder or under this Agreement and those which would be the reasonable consequence thereof.
|
|
15.1.2
|
(a) Each Facility Lender authorises the Facility Agent, (b) each Atradius Facility Lender authorises the ECA Agent and (c) each Facility
Lender, Hedging Provider, Mandated Lead Arranger, the Bookrunner, the ECA Agent and the Facility Agent authorises the Facility Security Trustee, to perform the duties and exercise the rights, powers, authorities and discretions specifically given to
the Facility Agent, the ECA Agent or the Facility Security Trustee (as the case may be) under or in connection with the Facility Documents and in the case of the ECA Agent, the Atradius Insurance Policy, together with any other incidental rights,
powers, authorities and discretions.
|
|
15.1.3
|
Except where the context otherwise requires, references in this clause 15 to the Facility Agent shall mean the
Facility Agent
and the
Facility Security Trustee individually and collectively.
|
(a) Each Facility Lender and Hedging Provider irrevocably authorises the Facility Security Trustee (in the case of clause
15.2.1) and the Facility Agent (in the case of clauses 15.2.2, 15.2.3 and 15.2.4) and (b) each Atradius Facility Lender irrevocably authorises the ECA Agent (in the case of clauses 15.2.2, 15.2.5 and 15.2.6), (in each case subject to clauses
15.4 and 15.18):
|
15.2.1
|
to execute any Facility Document (other than this Agreement and the Hedging Agreements) on its behalf;
|
|
15.2.2
|
to collect, receive, release or pay any money on its behalf and in respect of the ECA Agent only, in respect of administering payments from
Atradius for the benefit of the Atradius Facility Lenders under the terms of the Atradius Insurance Policy;
|
|
15.2.3
|
acting on the instructions from time to time of the Majority Facility Lenders (save where the terms of any Facility Document expressly provide
otherwise) to give or withhold any waivers, consents or approvals under or pursuant to any Facility Document;
|
|
15.2.4
|
acting on the instructions from time to time of the Majority Facility Lenders (save where the terms of any Facility Document expressly provide
otherwise) to exercise, or refrain from exercising, any rights, powers, authorities or discretions under or pursuant to any Facility Document;
|
|
15.2.5
|
to consult with Atradius (where necessary) in relation to waivers, consents or approvals under or pursuant to the Facility Documents and to inform
the Atradius Facility Lenders of the result of such consultation and if such waiver, consent or approval is within the scope of the Atradius Insurance Policy (at the discretion of the ECA Agent after consulting with Atradius) (
Atradius
Decisions
), such Atradius Decision will be taken by the ECA Agent (acting on the sole direction of Atradius and the Atradius Facility Lenders); and
|
37
|
15.2.6
|
to provide all information required by Atradius to Atradius in a timely manner provided that the ECA Agent has received it in its capacity as ECA
Agent. The Facility Agent shall have no duties or responsibilities as agent or as Facility Security Trustee and the ECA Agent shall have no duties or responsibility as agent, in each case other than those expressly conferred on it by the Facility
Documents and shall not be obliged to act on any instructions from the Facility Lenders or the Majority Facility Lenders or the Atradius Facility Lenders if to do so would, in the opinion of the Facility Agent or the ECA Agent, be contrary to any
provision of the Facility Documents, or to any law or in respect of the ECA Agent only, any provision of the Atradius Insurance Policy, or would expose the Facility Agent or the ECA Agent to any actual or potential liability to any third party.
|
The Facility Security Trustee agrees and declares, and each of the other Facility Beneficiaries acknowledges, that, subject to
the terms and conditions of this clause 15.3, the Facility Security Trustee holds the Secured Property on trust for the Facility Beneficiaries absolutely. Each of the other Facility Beneficiaries agrees that the obligations, rights and benefits
vested in the Facility Security Trustee shall be performed and exercised in accordance with this clause 15.3. The Facility Security Trustee shall have the benefit of all of the provisions of this Agreement benefiting it in its capacity as Facility
Security Trustee for the Facility Beneficiaries, and all the powers and discretions conferred on trustees by the Trustees Act 1925 and the Trustee Act 2000 (to the extent not inconsistent with this Agreement). In addition:
|
15.3.1
|
the Facility Security Trustee and any attorney, agent or delegate of the Facility Security Trustee may indemnify itself or himself out of the
Secured Property against all liabilities, costs, fees, damages, charges, losses and expenses sustained or incurred by it or him in relation to the taking or holding of any of the Secured Property or in connection with the exercise or purported
exercise of the rights, trusts, powers and discretions vested in the Facility Security Trustee or any other such person by or pursuant to the Facility Documents or in respect of anything else done or omitted to be done in any way relating to the
Facility Documents other than as a result of its gross negligence or wilful misconduct;
|
|
15.3.2
|
the other Facility Beneficiaries acknowledge that the Facility Security Trustee shall be under no obligation to insure any property nor to require
any other person to insure any property and shall not be responsible for any loss which may be suffered by any person as a result of the lack or insufficiency of any insurance; and
|
|
15.3.3
|
the Facility Beneficiaries agree that the perpetuity period applicable to the trusts declared by this Agreement shall be the period of one hundred
and twenty five years from the date of this Agreement.
|
|
15.4
|
Limitations on authority
|
|
15.4.1
|
Except with the prior written consent of all the Facility Lenders and in the case of the Atradius Facility Lenders, acting through the ECA Agent in
respect of Atradius Decisions and in the case of clause 15.4.1(h), Atradius, the Facility Agent shall not be entitled to:
|
|
|
(a)
|
release or vary any security or guarantee given for the Borrower’s obligations under this Agreement unless expressly contemplated by the
Facility Documents; nor
|
|
|
(b)
|
waive the payment of any sum of money payable by any Security Party under the Facility Documents and/or waive the payment or reduce any sum of
money payable to any Facility Beneficiaries under the Facility Documents; nor
|
|
|
(c)
|
change the meaning of the expressions
Majority Facility Lenders, Atradius Facility Lenders, Facility Lenders, Margin, Default Rate, Sponsor
or
Charterer
;
nor
|
|
|
(d)
|
exercise, or refrain from exercising, any right, power, authority or discretion, or give or withhold any consent, the exercise or giving of which
is, by the terms of this Agreement, expressly reserved to the Facility Lenders; nor
|
38
|
|
(e)
|
extend the due date for the payment of any sum of money payable by any Security Party under any Facility Document; nor
|
|
|
(f)
|
take or refrain from taking any step if the effect of such action or inaction may lead to the increase of the obligations of a Facility Lender
under any Facility Document; nor
|
|
|
(g)
|
agree to change the currency in which any sum is payable under any Facility Document (other than in accordance with the terms of the relevant
Facility Document); nor
|
|
|
(h)
|
agree to amend this clause 15.4, clause 10.3 or any clause that refers to a unanimous approval of all Facility Lenders and/or Atradius; nor
|
|
|
(i)
|
increase any Commitment.
|
|
15.4.2
|
Except with Atradius’s prior consent, the Facility Agent shall not be entitled to exercise or refrain from exercising any right, power,
authority or discretion, or give or withhold any consent, the exercise or giving of which, by the terms of this Agreement, would require Atradius’s prior consent and any amendment or waiver which relates to any matter which, by the terms of any
Facility Document, requires the prior consent of Atradius shall not be entered into or provided by the Facility Agent until Atradius has agreed to its terms.
|
|
15.4.3
|
Without limiting in any manner the rights of the Facility Lenders under the Facilities (other than the Atradius Facility), and subject and without
prejudice to any amendments, consents or waivers as may be given, consented or agreed to by the Facility Agent which is contrary to or inconsistent with any vote exercised by the Atradius Facility Lenders (acting on the instructions of Atradius);
|
|
|
(a)
|
in case of any conflict between the Facility Documents and the Atradius Insurance Policy, the Atradius Insurance Policy shall, as between the
Atradius Facility Lenders and Atradius, prevail, and to the extent of such conflict or inconsistency, none of the Atradius Facility Lenders or the ECA Agent shall assert to Atradius, the terms of the relevant Facility Documents; and
|
|
|
(b)
|
nothing in this Agreement or any Facility Document shall permit or oblige any Atradius Facility Lender or the ECA Agent to act (or omit to act) in
a manner that is inconsistent with any requirement of Atradius under or in connection with the Atradius Insurance Policy.
|
|
|
(a)
|
None of the Facility Agent, the ECA Agent nor any of their directors, officers, employees or agents shall be liable to the Facility Lenders or
Atradius for anything done or omitted to be done by the Facility Agent or the ECA Agent under or in connection with any of the Transaction Documents or, in the case of ECA Agent, the Atradius Insurance Policy, unless as a result of the Facility
Agent’s or the ECA Agent’s gross negligence or wilful misconduct.
|
|
|
(b)
|
Without prejudice to any provision of any Facility Document excluding or limiting the Facility Agent’s and/or the ECA Agent’s liability,
any liability of the Facility Agent and/or the ECA Agent arising under or in connection with any Facility Document or the Transaction Documents 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 Facility Agent and/or the ECA 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 Facility Agent and/or the ECA Agent at any time which increase the amount of that loss. In no event shall the Facility Agent and/or the ECA 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 Facility Agent and/or the ECA Agent has been advised of the possibility of such loss or damages.
|
39
Each Facility Lender acknowledges that:
|
15.6.1
|
it has not relied on any representation made by the Facility Agent, the ECA Agent or any of the Facility Agent’s or the ECA Agent’s
directors, officers, employees or agents or by any other person acting or purporting to act on behalf of the Facility Agent or the ECA Agent induce it to enter into any Facility Document;
|
|
15.6.2
|
it has made and will continue to make without reliance on the Facility Agent or the ECA Agent and based on such documents and other evidence as it
considers appropriate, its own independent investigation of the financial condition and affairs of the Security Parties in connection with the making and continuation of the Loan;
|
|
15.6.3
|
it has made its own appraisal of the creditworthiness of the Security Parties; and
|
|
15.6.4
|
neither the Facility Agent, nor the ECA Agent shall have any duty or responsibility at any time to provide it with any credit or other information
relating to any Security Party unless that information is received by the Facility Agent or the ECA Agent pursuant to the express terms of a Facility Document.
|
Each Facility Lender agrees that it will not assert nor seek to assert against any director, officer, employee or agent of the
Facility Agent or the ECA Agent or against any other person acting or purporting to act on behalf of the Facility Agent or the ECA Agent any claim which it might have against them in respect of any of the matters referred to in this clause 15.6.
|
15.7
|
Limitations on responsibility
|
Neither the Facility Agent nor the ECA Agent shall have any responsibility to any Security Party, Atradius or to any Facility
Lender on account of:
|
15.7.1
|
the failure of a Facility Lender, Atradius or of any Security Party to perform any of its obligations under a Facility Document or the Atradius
Insurance Policy; nor
|
|
15.7.2
|
the financial condition of any Security Party; nor
|
|
15.7.3
|
the completeness or accuracy of any statements, representations or warranties made in or pursuant to any Facility Document or the Atradius
Insurance Policy or in or pursuant to any document delivered pursuant to or in connection with any Facility Document or the Atradius Insurance Policy; nor
|
|
15.7.4
|
the negotiation, execution, effectiveness, genuineness, validity, enforceability, admissibility in evidence or sufficiency of any Facility
Document, the Atradius Insurance Policy or of any document executed or delivered pursuant to or in connection with any Facility Document or the Atradius Insurance Policy.
|
|
15.8
|
The Facility Agent’s and the ECA Agent’s rights
|
Each of the Facility Agent and the ECA Agent may:
|
15.8.1
|
assume that all representations or warranties made or deemed repeated by any Security Party in or pursuant to any Facility Document are true and
complete, unless, in its capacity as the Facility Agent or the ECA Agent, it has acquired actual knowledge to the contrary;
|
|
15.8.2
|
assume that no Default has occurred unless, in its capacity as the Facility Agent or the ECA Agent, it has acquired actual knowledge to the
contrary;
|
|
15.8.3
|
rely on any document or notice believed by it to be genuine;
|
|
15.8.4
|
rely as to legal or other professional matters on opinions and statements of any legal or other professional advisers selected or approved by it;
|
40
|
15.8.5
|
rely as to any factual matters which might reasonably be expected to be within the knowledge of any Security Party on a certificate signed by or on
behalf of that Security Party; and
|
|
15.8.6
|
refrain from exercising any right, power, discretion or remedy unless and until instructed to exercise that right, power, discretion or remedy and
as to the manner of its exercise by the Facility Lenders (or, where applicable, by the Majority Facility Lenders) and unless and until the Facility Agent has received from the Facility Lenders or the ECA Agent has received from the Atradius Facility
Lenders any payment which the Facility Agent or the ECA Agent may require on account of, or any security which the Facility Agent or the ECA Agent may require for, any costs, claims, expenses (including legal and other professional fees) and
liabilities which it considers it may incur or sustain in complying with those instructions.
|
|
15.9
|
The Facility Agent’s duties
|
The Facility Agent shall:
|
15.9.1
|
if requested in writing to do so by a Facility Lender, make enquiry and advise the Facility Lenders as to the performance or observance of any of
the provisions of any Facility Document by any Security Party or as to the existence of an Event of Default; and
|
|
15.9.2
|
inform the Facility Lenders promptly of any Event of Default of which the Facility Agent has actual knowledge.
|
The duties of the Facility Agent and the ECA Agent are of a mechanical and administrative nature.
|
15.10
|
No deemed knowledge
|
Neither the Facility Agent nor the ECA Agent shall be deemed to have actual knowledge of the falsehood or incompleteness of any
representation or warranty made or deemed repeated by any Security Party or actual knowledge of the occurrence of any Default unless a Facility Lender or a Security Party shall have given written notice thereof to the Facility Agent in its capacity
as the Facility Agent or the ECA Agent in its capacity as ECA Agent. Any information acquired by the Facility Agent or the ECA Agent other than specifically in its capacity as the Facility Agent or the ECA Agent shall not be deemed to be information
acquired by the Facility Agent in its capacity as the Facility Agent or the ECA Agent in its capacity as ECA Agent.
The Facility Agent and/or the ECA Agent may, without any liability to account to the Facility Lenders, generally engage in any
kind of banking or trust business with a Security Party or with a Security Party’s subsidiaries or associated companies or with a Facility Lender as if it were not the Facility Agent or the ECA Agent.
The Facility Lenders shall, promptly on the Facility Agent’s request, reimburse the Facility Agent in their respective
Proportionate Shares, for, and keep the Facility Agent fully indemnified in respect of all liabilities, damages, costs and claims sustained or incurred by the Facility Agent in connection with the Facility Documents, or the performance of its duties
and obligations, or the exercise of its rights, powers, discretions or remedies under or pursuant to any Facility Document, to the extent not paid by the Security Parties and not arising solely from the Facility Agent’s gross negligence or
wilful misconduct.
The Atradius Facility Lenders shall, promptly on the ECA Agent’s request, reimburse the ECA Agent
in their respective Atradius Proportionate Shares, for, and keep the ECA Agent fully indemnified in respect of all liabilities, damages, costs and claims sustained or incurred by the ECA Agent in connection with the Atradius Insurance Policy, or the
performance of its duties and obligations, or the exercise of its rights, powers, discretions or remedies under or pursuant to any Facility Document or the Atradius Insurance Policy, to the extent not paid by the Security Parties and not arising
solely from the ECA Agent’s gross negligence or wilful misconduct.
41
This clause 15.12 may not be amended without the consent of the Facility Agent or
the ECA Agent.
|
15.13
|
Employment of agents
|
In performing its duties and exercising its rights, powers, discretions and remedies under or pursuant to the Facility
Documents, the Facility Agent shall be entitled to employ and pay agents to do anything which the Facility Agent is empowered to do under or pursuant to the Facility Documents (including the receipt of money and documents and the payment of money)
and to act or refrain from taking action in reliance on the opinion of, or advice or information obtained from, any lawyer, banker, broker, accountant, valuer or any other person believed by the Facility Agent in good faith to be competent to give
such opinion, advice or information.
|
15.14
|
Distribution of payments
|
The Facility Agent shall pay promptly to the order of each Facility Lender that Facility Lender’s Proportionate Share of
every sum of money received by the Facility Agent pursuant to the Facility Documents (with the exception of any amounts payable pursuant to clause 9 and/or any Fee Letter and any amounts which, by the terms of the Facility Documents, are paid to the
Facility Agent for the account of the Facility Agent alone or specifically for the account of one or more Facility Lenders) and until so paid such amount shall be held by the Facility Agent on trust absolutely for that Facility Lender.
Upon receipt of any amount from Atradius by the ECA Agent, the ECA Agent shall promptly pay to the order of each Atradius
Facility Lender that Atradius Facility Lender’s Atradius Proportionate Share of such amount and until so paid such amount shall be held by the ECA Agent on trust absolutely for that Atradius Facility Lender.
Neither the Facility Agent nor the ECA Agent shall have any liability to pay any sum to a Facility Lender or Atradius Facility
Lender until it has itself received payment of that sum. If, however, the Facility Agent does pay any sum to a Facility Lender on account of any amount prospectively due to that Facility Lender pursuant to clause 15.14 before it has itself received
payment of that amount, and the Facility Agent does not in fact receive payment within five (5) Banking Days after the date on which that payment was required to be made by the terms of the Facility Documents, that Facility Lender will, on
demand by the Facility Agent, refund to the Facility Agent an amount equal to the amount received by it, together with an amount sufficient to reimburse the Facility Agent for any amount which the Facility Agent may certify that it has been required
to pay by way of interest on money borrowed to fund the amount in question during the period beginning on the date on which that amount was required to be paid by the terms of the Facility Documents and ending on the date on which the Facility Agent
receives reimbursement.
|
15.16
|
Redistribution of payments
|
Unless otherwise agreed between the Facility Lenders and the Facility Agent, if at any time a Facility Lender receives or
recovers by way of
set-off,
the exercise of any lien or otherwise from any Security Party, an amount greater than that Facility Lender’s Proportionate Share of any sum due from that Security Party to the
Facility Lenders under the Facility Documents (the amount of the excess being referred to in this clause 15.16 and in clause 15.17 as the Excess Amount) then:
|
15.16.1
|
that Facility Lender shall within three (3) Banking Days notify the Facility Agent (which shall promptly notify each other Facility Lender);
|
|
15.16.2
|
that Facility Lender shall pay to the Facility Agent an amount equal to the Excess Amount within ten (10) days of its receipt or recovery of
the Excess Amount; and
|
42
|
15.16.3
|
the Facility Agent shall treat that payment as if it were a payment by the Security Party in question on account of the sum due from that Security
Party to the Facility Lenders and shall account to the Facility Lenders in respect of the Excess Amount in accordance with the provisions of this clause 15.16.
|
However, if a Facility Lender has commenced any legal proceedings to recover sums owing to it under the Facility Documents and,
as a result of, or in connection with, those proceedings has received an Excess Amount, the Facility Agent shall not distribute any of that Excess Amount to any other Facility Lender which had been notified of the proceedings and had the legal right
to, but did not, join those proceedings or commence and diligently prosecute separate proceedings to enforce its rights in the same or another court.
|
15.17
|
Rescission of Excess Amount
|
If all or any part of any Excess Amount is rescinded or must otherwise be restored to any Security Party or to any other third
party, the Facility Lenders which have received any part of that Excess Amount by way of distribution from the Facility Agent pursuant to clause 15.16 shall repay to the Facility Agent for the account of the Facility Lender which originally received
or recovered the Excess Amount, the amount which shall be necessary to ensure that the Facility Lenders share rateably in accordance with their Proportionate Shares in the amount of the receipt or payment retained, together with interest on that
amount at a rate equivalent to that (if any) paid by the Facility Lender receiving or recovering the Excess Amount to the person to whom that Facility Lender is liable to make payment in respect of such amount, and clause 15.16.3 shall apply only to
the retained amount.
Where the Facility Agent is authorised or directed to act or refrain from acting in accordance with the instructions of the
Facility Lenders, Atradius or of the Majority Facility Lenders each of the Facility Lenders and Atradius (if applicable) shall provide the Facility Agent with instructions within seven (7) Banking Days of the Facility Agent’s request
(which request may be made orally or in writing). If a Facility Lender and Atradius (if applicable) does not provide the Facility Agent with instructions within that period, that Facility Lender and Atradius (if applicable) shall be bound by the
decision of the Facility Agent. Nothing in this clause 15.18 shall limit the right of the Facility Agent to take, or refrain from taking, any action without obtaining the instructions of the Facility Lenders, Atradius or the Majority Facility
Lenders if the Facility Agent in its discretion considers it necessary or appropriate to take, or refrain from taking, such action in order to preserve the rights of the Facility Lenders and Atradius (if applicable) under or in connection with the
Facility Documents. In that event, the Facility Agent will notify the Facility Lenders and Atradius (if applicable) of the action taken by it as soon as reasonably practicable, and the Facility Lenders and Atradius (if applicable) agree to ratify
any action taken by the Facility Agent pursuant to this clause 15.18.
All amounts payable to a Facility Lender and/or Atradius under this clause 15, clause 9.4, clause 9.5 clause 9.6 and clause
9.1.2 shall be paid to such account at such bank as that Facility Lender, in the case of Atradius, the ECA Agent or Atradius may from time to time direct in writing to the Facility Agent or the ECA Agent.
|
15.20
|
“Know your customer” checks
|
Each Facility Lender shall promptly upon the request of the Facility Agent or the ECA Agent supply, or procure the supply of,
such documentation and other evidence as is reasonably requested by the Facility Agent or the ECA Agent (for itself), in order for the Facility Agent or the ECA Agent, 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 Facility Documents.
43
Subject to a successor being appointed in accordance with this clause 15.21, the Facility Agent or the ECA Agent may (and, in
the case of the Facility Agent if requested by the Majority Facility Lenders and in the case of the ECA Agent if requested by all of the Atradius Facility Lenders, will), resign as agent and/or the Facility Security Trustee may (and if requested by
the Majority Facility Lenders will), resign as Facility Security Trustee at any time without assigning any reason by giving to the Borrower and the Facility Lenders notice of its intention to do so, in which event the following shall apply:
|
15.21.1
|
with the consent of the Borrower not to be unreasonably withheld (but such consent not to be required at any time after an Event of Default which
is continuing unremedied or unwaived) the Facility Lenders may within thirty (30) days after the date of the notice from the Facility Agent, the ECA Agent or the Facility Security Trustee (as the case may be) appoint a successor to act as agent
and/or Facility Security Trustee or, if they fail to do so with the consent of the Borrower, not to be unreasonably withheld (but such consent not to be required at any time after an Event of Default which is continuing unremedied or unwaived), the
Facility Agent, the ECA Agent or the Facility Security Trustee (as the case may be) may appoint any other bank or financial institution as its successor;
|
|
15.21.2
|
the resignation of the Facility Agent, the ECA Agent or the Facility Security Trustee (as the case may be) shall take effect simultaneously with
the appointment of its successor on written notice of that appointment being given to the Borrower and the Facility Lenders;
|
|
15.21.3
|
the Facility Agent, the ECA Agent or the Facility Security Trustee (as the case may be) shall thereupon be discharged from all further obligations
as agent and/or Facility Security Trustee but shall remain entitled to the benefit of the provisions of this clause 15; and
|
|
15.21.4
|
the successor of the Facility Agent, the ECA Agent or the Facility Security Trustee (as the case may be) and each of the other parties to this
Agreement shall have the same rights and obligations amongst themselves as they would have had if that successor had been a Party.
|
|
15.22
|
Replacement of the Facility Agent for FATCA withholding
|
|
15.22.1
|
The Facility Agent shall resign in accordance with clause 15.21 above (and, to the extent applicable, shall use reasonable endeavours to appoint a
successor facility agent pursuant to clause 15.21 above) if on or after the date which is three (3) Months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Facility Documents, either:
|
|
|
(a)
|
the Facility Agent fails to respond to a request under clause 15.24 and a Facility Lender reasonably believes that the Facility Agent will not be
(or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
|
|
(b)
|
the information supplied by the Facility Agent pursuant to clause 15.24 indicates that the Facility Agent will not be (or will have ceased to be) a
FATCA Exempt Party on or after that FATCA Application Date; or
|
|
|
(c)
|
the Facility Agent notifies the Borrower and the Facility Lenders that the Facility 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 Facility Lender reasonably believes
that a Party will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and that Facility Lender, by notice to the Facility Agent, requires it to resign.
|
15.23
|
No fiduciary relationship
|
Except as provided in clauses 15.3 and 15.14, neither the Facility Agent, nor the ECA Agent shall not have any fiduciary
relationship with or be deemed to be a trustee of or for any other person and nothing contained in any Facility Document, or the Atradius Insurance Policy shall constitute a partnership between any two or more Facility Lenders or between the
Facility Agent, the ECA Agent and any other person.
44
|
|
(a)
|
Subject to clause 15.24(c) below, each Party shall, within ten (10) Banking 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 (including its applicable
“passthru payment percentage” or other information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other
Party’s compliance with FATCA, provided however that such forms, documentation and other information may be given in accordance with law and other relevant obligations.
|
|
|
(b)
|
If a Party confirms to another Party pursuant to clause 15.24(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)
|
Clause 15.24(a) above shall not oblige any Facility Beneficiary to do anything which would or might in its reasonable opinion constitute a breach
of:
|
|
|
(i)
|
any law or regulation;
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|
|
(ii)
|
any fiduciary duty; or
|
|
|
(iii)
|
any policy of that Facility Beneficiary;
|
|
|
(iv)
|
any duty of confidentiality.
|
|
|
(d)
|
If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with clause 15.24(a) above
(including, for the avoidance of doubt, where clause 15.24(c) above applies), then:
|
|
|
(i)
|
if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of the
Facility Documents as if it is not a FATCA Exempt Party; and
|
|
|
(ii)
|
if that Party failed to confirm its applicable “passthru payment percentage” then such Party shall be treated for the purposes of the
Facility Documents (and payments made thereunder) as if its applicable “passthru payment percentage” is 100%,
|
until (in each case) such time as the Party in question provides the requested confirmation, forms, documentation or other
information.
45
|
15.25
|
Atradius Insurance Policy
|
Each Atradius Facility Lender represents and warrants to the ECA Agent that, with effect from the date it receives the Atradius
Insurance Policy, (i) it has reviewed the Atradius Insurance Policy and is aware of the provisions thereof, (ii) any representations and warranties made by the ECA Agent on behalf of each Atradius Facility Lender under the Atradius
Insurance Policy are true and correct with respect to such Atradius Facility Lender in all respects, and (iii) no information provided by such Atradius Facility Lender in writing to the ECA Agent or to Atradius prior to the date hereof was
incomplete, untrue or incorrect in any respect except to the extent that such Atradius Facility Lender, in the exercise of reasonable care and due diligence prior to the giving of the information, could not have discovered the error or omission.
Each Atradius Facility Lender represents and warrants to the ECA Agent that it has not taken (or failed to take), and agrees with the ECA Agent that it shall not take (or fail to take), any action that would result in the ECA Agent being in breach
of any of its obligations in its capacity as ECA Agent under the Atradius Insurance Policy or the Facility Documents, or result in any of Atradius Facility Lenders being in breach of any of their respective obligations as insured parties, under the
Atradius Insurance Policy, or which would otherwise prejudice the ECA Agent’s ability to make a claim on behalf of the Atradius Facility Lenders under the Atradius Insurance Policy.
The ECA Agent agrees to take such actions under the Atradius Insurance Policy (including with respect to any amendment,
modification or supplement to the Atradius Insurance Policy) as may be directed on the unanimous instructions of the Atradius Facility Lenders from time to time; provided that, anything herein or in the Atradius Insurance Policy to the contrary
notwithstanding, the ECA Agent shall not be obliged to take any such action or to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties or the exercise of any of its rights or powers hereunder or
thereunder if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it or if such action would be contrary to applicable law.
Only a Facility Beneficiary (not the Borrower) may set off any matured obligation due from the Borrower under any Facility
Document (to the extent beneficially owned by that Facility Beneficiary) against any matured obligation owed by that Facility Beneficiary to the Borrower, regardless of the place of payment, booking branch or currency of either obligation. If the
obligations are in different currencies, that Facility Beneficiary may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
Each amount payable by the Borrower under a Facility Document shall be paid to such account at such bank as the Facility Agent
may from time to time direct to the Borrower in the Currency of Account and in such funds as are customary at the time for settlement of transactions in the relevant currency in the place of payment. Payment shall be deemed to have been received by
the Facility Agent on the date on which the Facility Agent receives authenticated advice of receipt, unless that advice is received by the Facility Agent on a day other than a Banking Day or at a time of day (whether on a Banking Day or not) when
the Facility Agent in its reasonable discretion considers that it is impossible or impracticable for the Facility Agent to utilise the amount received for value that same day, in which event the payment in question shall be deemed to have been
received by the Facility Agent on the Banking Day next following the date of receipt of advice by the Facility Agent.
|
17.2
|
No deductions or withholdings
|
Each payment (whether of principal or interest or otherwise) to be made by the Borrower under a Facility Document shall,
subject only to clause 17.3, be made free and clear of and without deduction for or on account of any Taxes or other deductions, withholdings, restrictions, conditions or counterclaims of any nature other than FATCA Deductions.
46
With the exception of a FATCA Deduction, if at any time any law requires (or is interpreted to require) the Borrower to make
any deduction or withholding from any payment, or to change the rate or manner in which any required deduction or withholding is made, the Borrower will promptly notify the Facility Agent and, simultaneously with making that payment, will pay to the
Facility Agent whatever additional amount (after taking into account any additional Taxes on, or deductions or withholdings from, or restrictions or conditions on, that additional amount) is necessary to ensure that, after making the deduction or
withholding, the relevant Facility Beneficiaries receive a net sum equal to the sum which they would have received had no deduction or withholding been made.
|
17.4
|
Evidence of deductions
|
If at any time the Borrower is required by law to make any deduction or withholding from any payment to be made by it under a
Facility Document, the Borrower will pay the amount required to be deducted or withheld to the relevant authority within the time allowed under the applicable law and will, no later than thirty (30) days after making that payment, deliver to
the Facility Agent an original receipt issued by the relevant authority, or other evidence reasonably acceptable to the Facility Agent, evidencing the payment to that authority of all amounts required to be deducted or withheld.
If the Borrower pays any additional amount under clause 17.3 and a Facility Beneficiary subsequently receives a refund or
allowance from any tax authority which that Facility Beneficiary identifies as being referable to that increased amount so paid by the Borrower, that Facility Beneficiary shall, as soon as reasonably practicable, pay to the Borrower an amount equal
to the amount of the refund or allowance received, if and to the extent that it may do so without prejudicing its right to retain that refund or allowance and without putting itself in any worse financial position than that in which it would have
been had the relevant deduction or withholding not been required to have been made. Nothing in this clause 17.5 shall be interpreted as imposing any obligation on any Facility Beneficiary to apply for any refund or allowance nor as restricting in
any way the manner in which any Facility Beneficiary organises its tax affairs, nor as imposing on any Facility Beneficiary any obligation to disclose to the Borrower any information regarding its tax affairs or tax computations.
|
17.6
|
Adjustment of due dates
|
If any payment or transfer of funds to be made under a Facility Document, other than a payment of interest on the Loan, shall
be due on a day which is not a Banking Day, that payment shall be made on the next succeeding Banking Day (unless the next succeeding Banking Day falls in the next calendar month in which event the payment shall be made on the next preceding Banking
Day). Any such variation of time shall be taken into account in computing any interest in respect of that payment.
The Facility Agent shall (without further input required from the Borrower) open and maintain on its books a control account in
the name of the Borrower showing the advance of the Loan and the computation and payment of interest and all other sums due under this Agreement. The Borrower’s obligations to repay the Loan and to pay interest and all other sums due under this
Agreement shall be evidenced by the entries from time to time made in the control account opened and maintained under this clause 17.7 by the Facility Agent and those entries will, in the absence of manifest error, be conclusive and binding.
47
Each Hedging Provider agrees with and covenants to each of the other Facility Beneficiaries that until the end of the Facility
Security Period and without prejudice to any rights which that Hedging Provider may otherwise have against the Borrower (including, for the avoidance of doubt, any right to terminate transactions under its Hedging Agreement or close-out its Hedging
Agreement pursuant to a permitted termination event set out therein but subject to any other agreements or covenants of the Hedging Providers set out in any other provision of this Agreement):
|
17.8.1
|
it will not, without the prior written consent of the Facility Agent:
|
|
|
(a)
|
at any time when an Event of Default has occurred and is continuing unremedied and unwaived, accept or demand from the Borrower the payment or
repayment in whole or in part of any Indebtedness whatsoever now or hereafter due to it from the Borrower;
|
|
|
(b)
|
at any time when an Event of Default has occurred and is continuing unremedied and unwaived, otherwise accept, have the benefit of, or share in any
payment from, or composition with, the Borrower (other than pursuant to any contractual set-off and/or netting provisions contained in the Hedging Agreement to which it is a party and without prejudice to its rights as a Facility Beneficiary in
respect of the Facility Secured Property);
|
|
|
(c)
|
exercise any other right of whatsoever nature or claim or exercise any right of set-off or counterclaim which it may have against the Borrower
(other than pursuant to any contractual set-off and/or netting provisions contained in the Hedging Agreement to which it is a party and without prejudice to its rights as a Facility Beneficiary in respect of the Facility Secured Property);
|
|
|
(d)
|
accept or demand any Collateral Instrument from the Borrower in respect of any right referred to in paragraphs (a), (b) and
(c) above or dispose of any such right (but without prejudice to its rights as a Facility Beneficiary in respect of the Facility Secured Property);
|
|
|
(e)
|
take any step to enforce any right against the Borrower (by proceedings or otherwise) (but without prejudice to its rights as a Facility
Beneficiary in respect of the Facility Secured Property);
|
|
|
(f)
|
initiate or take any action which would result in any Insolvency Event in relation to the Borrower; or
|
|
|
(g)
|
claim or prove in any Insolvency Event in relation to the Borrower;
|
|
17.8.2
|
it will, if so directed by the Facility Agent, prove in any Insolvency Event in relation to the Borrower for the whole or any part of any claim
which it may have against the Borrower and on terms that the benefit of such proof and of all moneys received by it in respect thereof shall be held on trust for the Facility Beneficiaries and shall be applied in accordance with clause 10.3.
|
|
17.9.1
|
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.
|
|
17.9.2
|
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, the Facility Agent and the other Facility Beneficiaries.
|
|
17.10.1
|
Notwithstanding any other provision of this Agreement, if a FATCA Deduction is or will be required to be made by any party under clause 17.9 in
respect of a payment to any Facility Lender which is a FATCA FFI (a
FATCA Non-Exempt Lender
), the FATCA Non-Exempt Lender may either:
|
|
|
(a)
|
transfer its entire interest in the Loan to a U.S. branch or affiliate; or
|
48
|
|
(b)
|
(subject to (i) the prior written consent of the Borrower in the case of a transferee which is not already a Facility Lender, such consent not
to be unreasonably withheld or delayed and (ii) the prior written consent of Atradius if the Facility Lender is an Atradius Facility Lender) nominate one or more transferee lenders who upon becoming a Facility Lender would be a FATCA Exempt
Party, by notice in writing to the Facility Agent and the Borrower specifying the terms of the proposed transfer, and cause such transferee lender(s) to purchase all of the FATCA Non-Exempt Lender’s interest in the Loan.
|
|
17.11
|
FATCA Deduction by a Facility Beneficiary
|
Notwithstanding any other provision of this Agreement, a Facility Beneficiary shall indemnify the Facility Agent, within three
(3) Banking Days of demand, against any cost, loss or liability incurred by the Facility Agent with respect to any Tax imposed by reason of FATCA attributable to such Facility Beneficiary in relation to the Facility Documents.
|
18.1
|
Communications in writing
|
Any communication to be made under or in connection with this Agreement shall be made in writing and, unless otherwise stated,
may be made by fax or letter or (subject to clause 18.6) electronic mail.
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each
Party for any communication or document to be made or delivered under or in connection with this Agreement are:
|
18.2.1
|
in the case of the Borrower, c/o Teekay Shipping (Canada) Ltd, Suite 2000, Bentall 5, 550 Burrard Street, Vancouver, B.C., Canada V6C 2K2 (fax no:
+1 604 681 3011) marked for the attention of Renee Eng, Treasury Manager;
|
|
18.2.2
|
in the case of each Facility Lender, those appearing opposite its name in Schedule 1, Part 1;
|
|
18.2.3
|
in the case of the Facility Agent and the Facility Security Trustee, ABN AMRO Capital USA LLC, 100 Park Ave 17 Fl, New York, NY 10017, USA (tel no:
+1 917 284 6915/6975/6962 and fax no. +1 917 284 6697) marked for the attention of Agency Syndicated Loans, email address AABUS_NY_AGENCY@ABNAMRO.COM;
|
|
18.2.4
|
in the case of the ECA Agent, at any time prior to 1 September 2015, ABN AMRO Bank N.V., Global Export Finance, Gustav Mahlerlaan 10, 1082 PP
Amsterdam, The Netherlands PAC HQ0070 (tel no: +31 20 383 3757/+31 62 309 3356), marked for the attention of Carmen Jessurun and, at any time on or after 1 September 2015, ABN AMRO Bank N.V., Risk & Portfolio Management, Gustav
Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands (tel no: +31 20 6286 375/+31 6 5125 8009) and marked for the attention of Peter M. Dietze, email address peter.dietze@nl.abnamro.com
|
or any substitute address, fax number, department or officer as any party may notify to the Facility Agent (and in the case of
an Atradius Facility Lender, the ECA Agent (or the Facility Agent or the ECA Agent may notify to the other parties, if a change is made by the Facility Agent, or the ECA Agent)) by not less than three (3) Banking Days’ notice.
Any communication or document made or delivered by one Party to another under or in connection this Agreement will only be
effective:
|
18.3.1
|
if by way of fax, when received in legible form; or
|
49
|
18.3.2
|
if by way of letter, when it has been left at the relevant address or five (5) days after being deposited in the post postage prepaid in an
envelope addressed to it at that address; or
|
|
18.3.3
|
if by way of electronic mail, in accordance with clause 18.6;
|
and, if a particular department or officer is specified as part of its address details provided under clause 18.2, if addressed
to that department or officer.
Any communication or document to be made or delivered to the Facility Agent or the ECA
Agent will be effective only when actually received by the Facility Agent or the ECA Agent.
All notices from or to the
Borrower shall be sent through the Facility Agent.
The Facility Agent shall promptly forward a copy of any document which
is delivered to it for another party and where such document is addressed to the Atradius Facility Lenders, the Facility Agent shall forward it to the ECA Agent as well.
|
18.4
|
Notification of address and fax number
|
Promptly upon receipt of notification of an address, fax number or change of address, pursuant to clause 18.2 or changing its
own address or fax number, the Facility Agent shall notify the other parties to this Agreement.
Any notice given under or in connection with this Agreement must be in English. All other documents provided under or in
connection with this Agreement must be:
|
18.5.2
|
if not in English, and if so required by the Facility 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.
|
|
18.6
|
Electronic communication
|
|
|
(a)
|
Any communication to be made in connection with this Agreement may be made by electronic mail or other electronic means, if the Borrower and the
relevant Facility Beneficiary and/or Atradius:
|
|
|
(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 Borrower and the relevant Facility Beneficiary will be effective only when actually received in
readable form and acknowledged by the recipient (it being understood that any system generated responses do not constitute an acknowledgement) and in the case of any electronic communication made by the Borrower to a Facility Beneficiary only if it
is addressed in such a manner as the Facility Beneficiary shall specify for this purpose.
|
50
For the purpose of the Facility Documents, an electronic communication will be
treated as being in writing. Each party may rely without further inquiry on the senders’ due authorisation in connection with any e-mail messages it receives on behalf of the other Party. Each party shall also, subject to the terms and
conditions of this Agreement (including but not limited to the requirements to communicate via the Facility Agent, the ECA Agent and/or the Facility Security Trustee), be authorised to communicate by e-mail with any third parties who may be involved
in this transaction or affected by the Facility Documents.
If, at any time, any provision of a Facility Document 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, on the part of any Facility Beneficiary, any right or remedy under a
Facility Document 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.
No variation or amendment of a Facility Document shall be valid unless in writing and signed on behalf of all the Facility
Beneficiaries and the relevant Security Party.
If any provision of a Facility Document shall be invalid or unenforceable in whole or in part by reason of any present or
future law or any decision of any court, or if the documents at any time held by or on behalf of the Facility Beneficiaries or any of them are considered by the Facility Lenders for any reason insufficient to carry out the terms of this Agreement,
then from time to time the Borrower will promptly, on demand by the Facility Agent, execute or procure the execution of such further documents as in the opinion of the Facility Lenders are necessary to provide adequate security for the repayment of
the Facility Secured Obligations.
|
21.3
|
Rescission of payments etc.
|
Any discharge, release or reassignment by a Facility Beneficiary of any of the security constituted by, or any of the
obligations of a Security Party contained in, a Facility Document shall be (and be deemed always to have been) void if any act (including, without limitation, any payment) as a result of which such discharge, release or reassignment was given or
made is subsequently wholly or partially rescinded or avoided by operation of any law.
Any certificate or statement signed by an authorised signatory of the Facility Agent purporting to show the amount of the
Facility Secured Obligations (or any part of the Facility Secured Obligations) or any other amount referred to in any Facility Document shall, save for manifest error or on any question of law, be conclusive evidence as against the Borrower of that
amount.
This Agreement may be executed in any number of counterparts each of which shall be original but which shall together
constitute the same instrument.
51
|
21.6
|
Contracts (Rights of Third Parties) Act 1999
|
|
|
(a)
|
Unless expressly provided to the contrary in this agreement and subject to the following sentence, 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. Atradius and each Indemnified Party shall have the right to enforce and enjoy the benefit of any term of this Agreement which is
expressed to be for its benefit or expressly purports to confer a benefit on it. Notwithstanding any term of this Agreement, the consent of a person who is not a Party (unless otherwise expressly provided by this Agreement in respect of Atradius and
without prejudice to the provisions of the Atradius Insurance Policy) is not at any time required to rescind or amend this Agreement.
|
|
|
(b)
|
Each party agrees that Atradius shall not have any obligations or liabilities under this Agreement unless and until it becomes a Facility Lender in
accordance with the terms of this Agreement, and this Agreement may not be amended to limit, modify or eliminate any rights of Atradius without its prior written consent.
|
|
21.7
|
Disclosure of Information
|
The Borrower authorises each Facility Lender to disclose any information and/or document(s) concerning its relationship with
such Facility Lender or otherwise delivered pursuant to this Agreement (i) as may be compelled by judicial or legal process or to authorities in any other countries where such Facility Lender or any Affiliate is represented and/or where any
Facility Lender or any Affiliate may be requested information by 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 internal policy,
(ii) to parties to whom that Facility Lender charges, assigns or otherwise creates security (or may do so) pursuant to clause 14, (iii) to any Affiliate of that Facility Lender including, without limitation, for the purposes of making it
possible to consolidate the member of a Group’s total commitments and offer the member of the Group any other products offered by that Facility Lender or any Affiliate, subject always to the duties of confidentiality on the Facility Lenders,
(iv) in the case of the Atradius Facility Lenders, to Atradius and the Borrower consents to Atradius publishing key information concerning the Atradius Insurance Policy, (v) to any rating agency (including its professional advisers),
(vi) to any monoline insurers, verification agents and their professional advisers, (vii) to any person which invests in or otherwise finances or may potentially invest in or otherwise finance directly or indirectly in any transaction
relating to this Loan, (viii) to the professional advisers of any Facility Lender or its Affiliates, (ix) to any related fund of a Facility Lender and (x) to any person that provides administration or settlement or numbering services
in respect of the Facility Documents.
Each Facility Beneficiary that is subject to the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the
Act
) hereby notifies the Borrower and the other Security Parties that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies the Borrower and the other Security Parties,
which information includes the name and address of the Borrower and the other Security Parties and other information that will allow such Facility Beneficiary, as applicable, to identify the Borrower and the other Security Parties in accordance with
the Act.
This Agreement and any non-contractual obligations arising from or in connection with it shall in all respects be governed by
and interpreted in accordance with English law.
For the exclusive benefit of the Facility Beneficiaries, the parties to this Agreement irrevocably agree that the courts of
England are to have jurisdiction to settle any dispute;
52
|
|
(a)
|
which may arise out of or in connection with this Agreement; or
|
|
|
(b)
|
relating to any non-contractual obligations arising from or in connection with this Agreement,
|
and that any proceedings may be brought in those courts.
|
22.3
|
Alternative jurisdictions
|
Nothing contained in this clause 22 shall limit the right of the Facility Beneficiaries to commence any proceedings against the
Borrower in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Borrower in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or
not.
|
22.4
|
Waiver of objections
|
The Borrower irrevocably waives any objection which it may now or in the future have to the laying of the venue of any
proceedings in any court referred to in this clause 22, and any claim that those proceedings have been brought in an inconvenient or inappropriate forum, and irrevocably agrees that a judgment in any proceedings commenced in any such court shall be
conclusive and binding on it and may be enforced in the courts of any other jurisdiction.
Without prejudice to any other mode of service allowed under any relevant law, the Borrower:
|
22.5.1
|
irrevocably appoints Teekay Shipping (UK) Limited of 2
nd
Floor, 86 Jermyn Street, London SW1Y
6JD England, United Kingdom as its agent for service of process in relation to any proceedings before the English courts in connection with this Agreement; and
|
|
22.5.2
|
agrees that failure by a process agent to notify the Borrower of the process will not invalidate the proceedings concerned.
|
53
Schedule 1
Part 1: The Facility Lenders and the Commitments
COMMERCIAL FACILITY LENDERS
|
|
|
|
|
|
|
The Commercial Facility Lenders
|
|
The Commercial
Facility Commitments
($)
|
|
The Proportionate
Share
(%)
|
|
ABN AMRO Capital USA LLC
For business/credit matters and legal/
documentation:
100 Park Avenue
New York, New
York 10017
Tel: 917-284-6956, 917-284-6947
Fax: +1 917 284 6697
Email:
passchier.veefkind@abnamro.com,
francis.birkeland@abnamro.com
Attention: Passchier Veefkind (Director),
Francis Birkeland (Head of
Shipping &
Offshore North America)
|
|
30,666,666.67
|
|
17.04
|
|
For loans/letters of credit:
Tel: 917-284- 6915
Fax:
917-284-6697
Email: tradefinance@abnamro.com
Copy to: Lilia.Engelsbel-
Sporysheva@abnamro.com
Attention: Lilia Engelsbel-Sporysheva
(Director Trade Finance Operations)
|
|
|
|
|
|
For Debtdomain:
Tel: 917-284-6962/6915
Fax:
917-284-6683
Email:
aabus_ny_agency@abnamro.com
Attention: Lilia Engelsbel-Sporysheva,
Wudasse Zaudou
|
|
|
|
|
|
Santander Bank, N.A.
45 East 53
rd
Street
New York NY 10022
USA
|
|
30,666,666.67
|
|
17.04
|
|
For documentation:
GTB Middle Office
Attention:
Pasquale Bellini/Sen Louie
Tel: 212 350 3624
Fax: 212 350 3691
Email:
gtmo@santander.us
|
|
|
|
|
|
For business/credit matters:
Attention: Beatriz de la Mata/Angela
Rabanal
Tel: 212 297 2942 /617 217 0179
Fax: 212 350 3691
Email:
bdelamata@santander.us,
arabanal@santander.us
|
|
|
|
|
54
|
|
|
|
|
|
|
Nordea Bank Finland Plc, New York
Branch
437 Madison Avenue
Floor 21
New York, NY 10022
USA
For credit/documentation:
Attention: Henning Christiansen
Tel: +1 212 318 9632
Email:
henning.christiansen@nordea.com
For
operations:
Attention: Jackie Ng
Tel: +1 212 318 9578
Fax: +1 212
750 9188
Email: Jackie.ng@nordea.com
|
|
30,666,666.67
|
|
17.04
|
ATRADIUS FACILITY LENDERS
|
|
|
|
|
|
|
The Atradius Facility Lenders
|
|
The Atradius Facility
Commitments
($)
|
|
The Proportionate
Share
(%)
|
|
ABN AMRO Capital USA LLC
For business/credit matters and legal/documentation:
100 Park Avenue
New York, New
York 10017
Tel: 917-284-6956, 917-284-6947
Fax: +1 917 284 6697
Email:
passchier.veefkind@abnamro.com,
francis.birkeland@abnamro.com
Attention: Passchier Veefkind (Director), Francis
Birkeland (Head of
Shipping & Offshore North
America)
For
loans/letters of credit:
Tel: 917-284-6915
Fax: 917-284-6697
Email:
tradefinance@abnamro.com
Copy to: Lilia.Engelsbel-Sporysheva@abnamro.com
Attention: Lilia Engelsbel-Sporysheva (Director Trade
Finance Operations)
For Debtdomain:
Tel: 917-284-6962/6915
Fax:
917-284-6683
Email:
aabus_ny_agency@abnamro.com
Attention: Lilia Engelsbel-Sporysheva, Wudasse Zaudou
|
|
29,333,333.33
|
|
16.29
|
55
|
|
|
|
|
|
|
|
|
Santander Bank, N.A.
45 East 53
rd
Street
New York NY 10022
USA
For documentation:
GTB Middle Office
Attention: Pasquale Bellini/Sen Louie
Tel: 212 350 3624
Fax: 212 350 3691
Email: gtmo@santander.us
For business/credit matters:
Attention: Beatriz de la Mata/Angela Rabanal
Tel: 212 297 2942 /617 217 0179
Fax: 212 350 3691
Email:
bdelamata@santander.us
,
arabanal@santander.us
|
|
29,333,333.33
|
|
|
16.29
|
|
|
|
|
|
|
Nordea Bank Finland Plc, New York Branch
437 Madison Avenue
Floor 21
New York, NY 10022
USA
For credit/documentation:
Attention: Henning Christiansen
Tel: +1 212 318 9632
Email: henning.christiansen@nordea.com
For operations:
Attention: Jackie Ng
Tel: +1 212 318 9578
Fax: +1 212 750 9188
Email: Jackie.ng@nordea.com
|
|
29,333,333.33
|
|
|
16.29
|
|
56
Part 2: The MLAs
|
|
|
|
|
The MLAS
|
|
|
|
|
|
|
ABN AMRO Capital USA LLC
|
|
|
|
100 Park Avenue
|
|
|
|
New York, New York 10017
|
|
|
|
Tel: 917-284-6956
|
|
|
|
Fax: +1 917 284 6697
|
|
|
|
Email: passchier.veefkind@abnamro.com
|
|
|
|
Attention: Passchier Veefkind
|
|
|
|
|
|
|
Banco Santander S.A.
|
|
|
|
Ciudad Financiera. Avda. Cantabria s/n,
|
|
|
|
Boadilla del Monte, 28660 Madrid,
|
|
|
|
Spain
|
|
|
|
Tel: +34 91 289 5687/+34 91 289 1370
|
|
|
|
Fax: +34 91 257 1682
|
|
|
|
Email: Fverdugm@gruposantander.com/joldiaz@gruposantander.com
|
|
Attention: Francisco Verdugo/Jose Luis Diaz Cassou
|
|
|
|
|
|
|
Nordea Bank Finland Plc, New York Branch
|
|
|
|
437 Madison Avenue
|
|
|
|
Floor 21
|
|
|
|
New York, NY 10022
|
|
|
|
USA
|
|
|
|
|
|
|
For credit/documentation:
|
|
|
|
Attention: Henning Christiansen
|
|
|
|
Tel: +1 212 318 9632
|
|
|
|
Email: henning.christiansen@nordea.com
|
|
|
|
|
|
|
For operations:
|
|
|
|
Attention: Jackie Ng
|
|
|
|
Tel: +1 212 318 9578
|
|
|
|
Fax: +1 212 750 9188
|
|
|
|
Email: Jackie.ng@nordea.com
|
|
|
57
Schedule 2
Part 1: conditions precedent to first Advance
|
|
(a)
|
Constitutional Documents:
Copies of the constitutional documents of each Security Party (excluding the Operator) together with such other
evidence as the Facility Agent may reasonably require that each such Security Party is duly formed or incorporated in its country of formation or incorporation and remains in existence with power to enter into, and perform its obligations under, the
Transaction Documents to which it is or is to become a party.
|
|
|
(b)
|
Certificates of good standing:
A certificate of good standing in respect of each Security Party (excluding the Operator) (if such a
certificate can be obtained).
|
|
|
(c)
|
Board resolutions:
A copy of a resolution of the board of directors of each Security Party (excluding the Operator) (or its sole member or
general partner):
|
|
|
(i)
|
approving the terms of, and the transactions contemplated by, the Transaction Documents to which it is a party and ratifying or resolving that it
execute those Transaction Documents; and
|
|
|
(ii)
|
if required authorising a specified person or persons to execute those Transaction Documents (and all documents and notices to be signed and/or
despatched under those documents) on its behalf.
|
|
|
(d)
|
Officer’s certificates:
A certificate of a duly authorised officer or representative of each Security Party (excluding the Operator)
certifying that:
|
|
|
(i)
|
each copy document (excluding the certificates of good standing referred to at paragraph 1(b) of this Part 1 of Schedule 2) relating to it
specified in this Part 1 of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement; and
|
|
|
(ii)
|
setting out the names of the directors and officers of that Security Party (or its sole member or general partner) and (other than in respect of
TOO) the proportion of shares or membership interests held by each shareholder or member.
|
|
|
(e)
|
Powers of attorney:
The notarially attested and legalised (where necessary for registration purposes) power of attorney of each Security
Party (excluding the Operator) under which any documents are to be executed or transactions undertaken by that Security Party.
|
|
2
|
Security and related documents
|
|
|
(a)
|
Project Documents:
A photocopy, certified as true, accurate, complete and in full force and effect by a duly authorised representative of
the Borrower, of the Project Documents, together with all addenda, amendments or supplements.
|
|
|
(b)
|
Facility Documents:
An original of this Agreement, the Financial Guarantee and each Fee Letter, in each case duly executed by each party
thereto together with all other documents required by any of them, including, without limitation, all notices of assignment and/or charge, filing, registration and evidence that those notices will be duly acknowledged by the recipients, in each case
duly executed by each party thereto for the purpose of the effectiveness of the aforementioned Facility Documents.
|
58
|
|
(c)
|
Pre Delivery Date Facility Security Documents:
An original of the Mortgage, the Quiet Enjoyment Undertaking, the Deed of Covenants, the
Account Charge, the Bareboat Charterer Account Charge, the Pre-Delivery Assignment, the Master Agreement Charge, the Borrower Share Pledge and the Bareboat Charterer Share Pledge, in each case duly executed by each party thereto together with all
other documents required by any of them, including, without limitation, all notices of assignment and/or charge, filing, registration and evidence that those notices will be duly acknowledged by the recipients, in each case duly executed by each
party thereto for the purpose of the effectiveness of the aforementioned Facility Security Documents.
|
|
|
(d)
|
Evidence of Borrower’s title:
Evidence satisfactory to the Facility Agent that the certificate of ownership and encumbrance (or
equivalent) issued by the Registrar of Ships (or equivalent official) of the Vessel’s Flag State confirming that (a) the Vessel is permanently registered under that flag in the ownership of the Borrower, (b) the Mortgage has been
registered with first priority against the Vessel and (c) there are no further or other Security Interests registered against the Vessel will, in each case, be available on the Drawdown Date for the first Advance.
|
Evidence acceptable to the Facility Agent that notices of assignment (as required) have been served by the Borrower (and
consent and/or acknowledgement relating thereto where relevant) in respect of the Pre-Delivery Assignment.
Legal opinions of the legal advisers to the Facility Agent in each relevant jurisdiction, substantially in the form provided to
the Facility Agent or confirmation satisfactory to the Facility Agent that such an opinion will be given, namely:
|
|
(a)
|
an opinion on matters of English law from Norton Rose Fulbright LLP;
|
|
|
(b)
|
an opinion on matters of Marshall Island and New York law from Norton Rose Fulbright US LLP;
|
|
|
(c)
|
an opinion on matters of Norwegian law from Advokatfirmaet BA-HR DA;
|
|
|
(d)
|
an opinion on matters of Dutch law from Norton Rose Fulbright LLP, Amsterdam;
|
|
|
(e)
|
an opinion on matters of law relating to the Flag State.
|
|
5
|
Other documents and evidence
|
|
|
(a)
|
Process agent:
Evidence that any process agent referred to in clause 22.5.1 and any process agent appointed under the Financial Guarantee,
the Deed of Covenants, the Account Charge, the Bareboat Charterer Account Charge, the Pre-Delivery Assignment, the Master Agreement Charge, the Borrower Share Pledge and the Bareboat Charterer Share Pledge, has accepted its appointment.
|
|
|
(b)
|
Other authorisations:
A copy of any other consent, licence, approval, authorisation or other document, opinion or assurance which the
Facility Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any of the Transaction Documents or for the validity and
enforceability of any of the Transaction Documents.
|
|
|
(c)
|
Fees:
Evidence that the fees, costs and expenses then due from the Borrower under clause 8 and clause 9 have been paid or will be paid on
the date upon which they fall due.
|
|
|
(d)
|
“Know your customer” documents:
Such documentation and other evidence as is reasonably requested by the Facility Agent in order
for the Facility Lenders to comply with all necessary “know your customer” or similar identification procedures in relation to the transactions contemplated in the Facility Documents.
|
59
|
6
|
Certificate of ownership
|
|
|
(a)
|
A certificate from Teekay that it owns a minimum of fifty one per cent (51%) of the voting rights in the General Partner, which is the general
partner in TOO.
|
|
|
(b)
|
Evidence satisfactory to the Facility Agent of the direct or indirect ownership (i) by the Sponsor of the shares in the Shareholders, and
(ii) by the Shareholders of the membership interests or shares in the Borrower and the Bareboat Charterer.
|
|
7
|
Atradius Insurance Policy
|
|
|
(a)
|
The Atradius Insurance Policy has been issued and is in full force and effect.
|
|
|
(b)
|
A legal opinion from the legal advisers to the Facility Agent in The Netherlands on matters of Dutch law, which shall include confirmation that the
terms of the Facility Documents comply with the requirements of Atradius Insurance Policy, that the Atradius Insurance Policy has been duly issued for the benefit of the Atradius Facility Lenders by Atradius and that it is in full force and effect.
|
The Earnings Account shall have been opened with the Account Bank.
|
9
|
Bareboat Charterer Earnings Account and Bareboat Charterer NOK Account
|
The Bareboat Charterer Earnings Account and the Bareboat Charterer NOK Account shall have been opened with the Account Bank.
|
10
|
Insurance Proceeds under the Refurbishment Contract
|
|
|
(a)
|
Loss Payable Clause:
Evidence satisfactory to the Facility Agent that the Loss Payable Clause has been or will be endorsed on the
Borrower’s insurance policy.
|
|
|
(b)
|
Evidence of insurance:
Evidence that the Vessel is insured in the manner required by the Facility Security Documents and that letters of
undertaking will be issued in the manner required by the Facility Security Documents, together with the written approval of the Insurances by an insurance adviser appointed by the Facility Agent.
|
|
|
(a)
|
In the case of the first Atradius Facility Advance:
|
|
|
(i)
|
Fifteen per cent. (15%) of the Contract Price (assuming a Contract Price of EUR89,934,827) has been paid to, and received by, the Builder in
accordance with the Refurbishment Contract, and evidence of the Rate of Exchange in respect of such payment(s) and invoices together with confirmation from the bank evidencing payment to the Builder or other evidence of payment satisfactory to the
ECA Agent have been provided to the Facility Agent which, for the avoidance of doubt, shall not be reimbursed by an Atradius Facility Advance; and
|
|
|
(ii)
|
The amount of the first Atradius Facility Advance is not more than the lesser of:
|
|
|
(A)
|
(I) one hundred per cent. (100%) of the Atradius Premium, plus (II) the Aggregate Dollar Equivalent Amount of the Contract Price paid as at
the date of the Drawdown Notice, as evidenced by invoices, together with confirmation from the bank evidencing payment to the Builder or other evidence of payment satisfactory to the ECA Agent and evidence of the Rate of Exchange for such payment(s)
minus fifteen per cent (15%) of the Contract Price (assuming a Contract Price of EUR89,934,827); but in any event the aggregate amount of all Atradius Facility Advances should not exceed eighty five per cent (85%) of the Contract Price, as
may be adjusted from time to time; and
|
60
|
|
(B)
|
eighty per cent. (80%) of the Eligible Delivered Costs paid and/or invoiced as at the date of the Drawdown Notice, as evidenced by invoices or
internal reports, as the case may be.
|
|
|
(b)
|
In the case of the first Commercial Facility Advance, the amount of that Commercial Facility Advance is not more than the lesser of:
|
|
|
(i)
|
the amount of the Refurbishment Costs paid and/or invoiced as at the date of the Drawdown Notice, as evidenced by invoices or internal reports, as
the case may be; and
|
|
|
(ii)
|
eighty per cent. (80%) of the Eligible Delivered Costs paid and/or invoiced as at the date of the Drawdown Notice, as evidenced by invoices or
internal reports, as the case may be.
|
61
Part 2: Conditions precedent to Advances other than Final Advances or the
Delivery Commercial Facility Advance
If requested by the Facility Agent, confirmation from such of the counsel to the Facility Beneficiaries referred to in Part 1
of this Schedule 2 as may be nominated by the Facility Agent in that request that the terms and provisions of the legal opinions provided by them pursuant to Part 1 of this Schedule 2 need not be altered or modified in any way.
|
2
|
Other documents and evidence
|
|
|
(a)
|
Fees:
Evidence that the fees, costs and expenses then due from the Borrower under clause 8 and clause 9 have been paid or will be paid on
the date upon which they fall due.
|
|
|
(b)
|
Authorisations:
A copy of any other consent, licence, approval, authorisation or other document, opinion or assurance which the Facility
Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any of the Transaction Documents or for the validity and enforceability
of any of the Transaction Documents.
|
|
|
(a)
|
In the case of the first Atradius Facility Advance, in accordance with the requirements of Schedule 2, Part 1, paragraph 11(a).
|
|
|
(b)
|
In the case of an Atradius Facility Advance other than the first Atradius Facility Advance, the amount of that Atradius Facility Advance is not
more than the lesser of:
|
|
|
(i)
|
the Aggregate Dollar Equivalent Amount of the Contract Price paid as at the date of the Drawdown Notice, as evidenced by invoices, together with
confirmation from the bank evidencing payment to the Builder or other evidence of payment satisfactory to the ECA Agent and evidence of the Rate of Exchange for such payment(s), minus (I) the Aggregate Dollar Equivalent Amount of the Contract
Price paid as at the date of the previous Drawdown Notice relating to an Advance and the subject of a previous Advance which has been made and (II) minus fifteen per cent (15%) of the Contract Price (assuming a Contract Price of EUR89,934,827),
but in any event the aggregate amount of all Atradius Facility Advances should not exceed eighty five per cent (85%) of the Contract Price, as may be adjusted from time to time; and
|
|
|
(ii)
|
eighty per cent. (80%) of the Eligible Delivered Costs paid and/or invoiced as at the date of the Drawdown Notice, as evidenced by invoices or
internal reports, as the case may be; and/or
|
|
|
(c)
|
In the case of the first Commercial Facility Advance, in accordance with the requirements of Schedule 2, Part 1, paragraph 11(b).
|
|
|
(d)
|
In the case of a Commercial Facility Advance other than the first Commercial Facility Advance, the amount of that Commercial Facility Advance is
not more than the lesser of:
|
|
|
(i)
|
the sum of (I) the Refurbishment Costs paid and/or invoiced as at the date of the Drawdown Notice, as evidenced by invoices or internal
reports, as the case may be, minus (II) the Refurbishment Costs paid and/or invoiced as at the date of the previous Drawdown Notice relating to a Commercial Facility Advance, as evidenced by invoices or internal reports, as the case may be and the
subject of a previous Commercial Facility Advance which has been made; and
|
|
|
(ii)
|
eighty per cent. (80%) of the Eligible Delivered Costs paid and/or invoiced as at the date of the Drawdown Notice, as evidenced by invoices or
internal reports, as the case may be.
|
62
Part 3: Conditions precedent to Completion Time
|
1
|
Security and related documents
|
|
|
(a)
|
Certificate of no Security Interests:
A certificate from the Borrower that upon Delivery the Vessel is free of Security Interests other than
Permitted Security Interests.
|
|
|
(b)
|
Evidence of insurance:
Evidence that the Vessel is insured in the manner required by the Facility Security Documents and that letters of
undertaking will be issued in the manner required by the Facility Security Documents, together with the written approval of the Insurances by an insurance adviser appointed by the Facility Agent.
|
|
|
(c)
|
Delivery Date Facility Security Documents:
An original of each of the Facility Security Documents, including but not limited to:
|
|
|
(ii)
|
the Bareboat Charterer Assignment;
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|
|
(iii)
|
the Notices of Assignment;
|
|
|
(iv)
|
the Security Powers of Attorney;
|
|
|
(v)
|
the Operator Undertaking (if the Operator is not a member of the TOO Group); and
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|
|
(vi)
|
each other document which the Borrower and the Facility Security Trustee agree shall be a Facility Security Document for the purposes of the
Facility Documents,
|
together with all other documents required by any of them, including, without
limitation, all notices of assignment and/or charge, filing, registration and evidence that those notices will be duly acknowledged by the recipients (including, for the avoidance of doubt, the Quiet Enjoyment Undertaking), in each case duly
executed by each party thereto for the purpose of the effectiveness of the Facility Security Documents.
|
|
(d)
|
Evidence of Mortgage:
Evidence satisfactory to the Facility Agent that (a) the Vessel is permanently registered in the Flag State in
the ownership of the Borrower, (b) the Mortgage is registered and has first priority against the Vessel, and (c) there are no further or other Security Interests registered against the Vessel.
|
|
|
(e)
|
Operator:
Evidence satisfactory to the Facility Agent that the Operator Novation Agreement has been executed and the Operator Novation Date
has occurred.
|
Legal opinions of the legal advisers to the Facility Agent in each relevant jurisdiction, substantially in the form provided to
the Facility Agent or confirmation satisfactory to the Facility Agent that such an opinion will be given, namely:
|
|
(a)
|
an opinion on matters of English law from Norton Rose Fulbright LLP;
|
|
|
(b)
|
an opinion on matters of Marshall Island law from Norton Rose Fulbright USA LLC;
|
|
|
(c)
|
an opinion on matters of Norwegian law from Advokatfirmaet BA-HR DA; and
|
|
|
(d)
|
an opinion on matters of Brazilian law from Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados.
|
63
|
3
|
Other documents and evidence
|
|
|
(a)
|
Process agent:
Evidence that any process agent referred to in clause 22.5.1 and any process agent appointed under any other Facility
Document has accepted its appointment.
|
|
|
(b)
|
Other authorisations:
A copy of any other consent, licence, approval, authorisation or other document, opinion or assurance which the
Facility Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any of the Transaction Documents or for the validity and
enforceability of any of the Transaction Documents.
|
|
|
(c)
|
Fees:
Evidence that the fees, costs and expenses then due from the Borrower under clause 8 and clause 9 have been paid or will be paid on
the date upon which they fall due.
|
|
|
(d)
|
Confirmation of class:
Certificate of Confirmation of Class confirming that the Vessel is classed with the highest class applicable to
Vessel of her type with a Classification Society.
|
|
|
(e)
|
Corporate authorities:
The conditions precedent set out in Part 1 of Schedule 2, paragraph 1 in respect of the Operator only and, to
the extent that the conditions precedent set out in Part 1 of Schedule 2, paragraph 1 in respect of the other Security Parties do not relate to, or are not valid for, all Facility Documents, those conditions precedent as may be necessary for
those Facility Documents.
|
|
|
(a)
|
Evidence acceptable to the Facility Agent that a notice of assignment has been served on the Charterer by the Bareboat Charterer in respect of the
Bareboat Charterer Assignment.
|
|
|
(a)
|
A copy, certified as a true copy by a duly authorised officer of the Borrower of the agreed drafts of the protocol of delivery and acceptance under
the Refurbishment Contract, with executed copies to be provided as soon as practicable after Delivery.
|
|
|
(b)
|
A certificate from a duly authorised officer of the Borrower confirming that the Project Documents are complete and in full force and effect as at
a date no earlier than the date of the Completion Time.
|
The Earnings Account remains opened and is being maintained with the Account Bank.
|
7
|
Bareboat Charterer Earnings Account and the Bareboat Charterer NOK Account
|
The Bareboat Charterer Earnings Account and the Bareboat Charterer NOK Account remain opened and are being maintained with the
Account Bank.
A technical report prepared by TOO (in form and substance satisfactory to all the Lenders) relating to the technical status of
the Vessel and its ability to meet the criteria set out in the Charter.
No Event of Default has occurred and is continuing.
64
Evidence in the form of a certificate attaching supporting evidence satisfactory to the Facility Agent that the estimated DSCR
is not less than 1.35:1 for each Relevant Period during the period from the Delivery Date to the fourth anniversary of the Delivery Date, and that in the Relevant Period during the period from the fourth anniversary of the Delivery Date to the fifth
anniversary of the Delivery Date, the estimated DSCR is not less than 1.2:1.
The Delivery Date has occurred or will, upon the Completion Time, occur.
A Valuation evidencing the value of the Vessel as at the Delivery Date.
|
13
|
Atradius Insurance Policy
|
The ECA Agent (acting on the instructions of the Atradius Facility Lenders) is satisfied that it has not received notice that
the Atradius Insurance Policy is withdrawn.
65
Part 4: Conditions Precedent to Delivery Commercial Facility Advance
If requested by the Facility Agent, confirmation from such of the counsel to the Facility Beneficiaries referred to in Part 1
and/or Part 3 of this Schedule 2 as may be nominated by the Facility Agent in that request that the terms and provisions of the legal opinions provided by them pursuant to Part 1 and/or Part 3 of this Schedule 2 need not be altered or
modified in any way.
|
2
|
Other documents and evidence
|
|
|
(a)
|
Authorisations:
A copy of any other consent, licence, approval, authorisation or other document, opinion or assurance which the Facility
Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any of the Transaction Documents or for the validity and enforceability
of any of the Transaction Documents.
|
|
|
(b)
|
Fees:
Evidence that the fees, costs and expenses then due from the Borrower under clause 8 and clause 9 have been paid or will be paid on
the date upon which they fall due.
|
|
|
(c)
|
Valuation:
The Valuation has been provided pursuant to Part 3 of this Schedule 2.
|
|
|
(d)
|
Equity:
Evidence in form and substance satisfactory to the Facility Agent that the amount of the Delivery Commercial Facility Advance (when
aggregated with each of the other Advances and the Estimated Final Atradius Facility Advance) is sufficient to (together with equity or Indebtedness which is fully and effectively subordinated to the Facility Secured Obligations) pay all Eligible
Delivered Costs.
|
|
|
(e)
|
Budget:
A copy of the Budget updated as at the Drawdown Date of the Delivery Commercial Facility Advance (to be provided to the Facility
Lenders as soon as practicable after receipt by the Facility Agent).
|
|
|
(f)
|
Charter:
Evidence satisfactory to the Facility Agent that the Charter Date of Acceptance will occur no later than 7 October 2016 and
that all Project Documents remain in full force and effect.
|
|
3
|
Delivery Commercial Facility Advance
|
|
|
(a)
|
Amount of the Delivery Commercial Facility Advance:
The amount of the Delivery Commercial Facility Advance, when aggregated with all other
Advances (including the Estimated Final Atradius Facility Advance) made pursuant to this Agreement, is not more than the lesser of:
|
|
|
(i)
|
eighty per cent. (80%) of the value of the Vessel specified in the Valuation; and
|
|
|
(ii)
|
one hundred and eighty million Dollars ($180,000,000).
|
66
Part 5: Conditions precedent to final Advances
If requested by the Facility Agent, confirmation from such of the counsel to the Facility Beneficiaries referred to in Part 1
and/or Part 3 of this Schedule 2 as may be nominated by the Facility Agent in that request that the terms and provisions of the legal opinions provided by them pursuant to Part 1 and/or Part 3 of this Schedule 2 need not be altered or
modified in any way.
|
2
|
Other documents and evidence
|
|
|
(a)
|
Fees:
Evidence that the fees, costs and expenses then due from the Borrower under clause 8 and clause 9 have been paid or will be paid on
the date upon which they fall due.
|
|
|
(b)
|
Authorisations:
A copy of any other consent, licence, approval, authorisation or other document, opinion or assurance which the Facility
Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any of the Transaction Documents or for the validity and enforceability
of any of the Transaction Documents.
|
|
|
(a)
|
Amount of the final Atradius Facility Advance:
The amount of the final Atradius Facility Advance is the lesser of:
|
|
|
(i)
|
eighty five per cent. (85%) of the sum of (I) the Aggregate Dollar Equivalent Amount of the Contract Price paid as at the date of the
Drawdown Notice, as evidenced by invoices, together with confirmation from the bank evidencing payment to the Builder or other evidence of payment satisfactory to the ECA Agent and evidence of the Rate of Exchange for such payment(s), minus (II) the
Aggregate Dollar Equivalent Amount of the Contract Price paid as at the date of the previous Drawdown Notice relating to an Atradius Facility Advance and the subject of a previous Advance which has been made;
|
|
|
(ii)
|
when aggregated with all other Advances (including the final Commercial Facility Advance referred to in this Part 5) made pursuant to this
Agreement, one hundred and eighty million Dollars ($180,000,000); and
|
|
|
(iii)
|
when aggregated with all other Advances (including the final Commercial Facility Advance referred to in this Part 5) made pursuant to this
Agreement, eighty per cent. (80%) of the value of the Vessel specified in the Valuation.
|
|
|
(b)
|
Amount of a final Commercial Facility Advance:
A Commercial Facility Advance is permitted for the amount by which the final Atradius
Facility Advance is less than the Estimated Final Atradius Facility Advance.
|
67
Part 6: Conditions subsequent
Within five (5) Banking Days after the first Advance, letters of undertaking in respect of the Insurances as required by
the Facility Documents together with copies of the relevant policies or cover notes or entry certificates duly endorsed with the interest of the Facility Beneficiaries.
|
2
|
Acknowledgements of notices
|
As soon as practicable after the execution of each Facility Document but no later than ten (10) days after the execution
of each Facility Document, acknowledgements of all notices of assignment and/or charge given pursuant to that Facility Document, with the exception of the acknowledgement to the Notice of Assignment to the Charterer and the Notice of Assignment to
the Charterer Guarantors which must be received no later than the date falling three (3) Months after the Delivery Date.
Such of the legal opinions specified in this Schedule 2 as have not already been provided to the Facility Agent.
Within seven (7) days of the Delivery Date, the ISS Certificate, where applicable, in relation to the Vessel, a valid and
current DOC issued pursuant to the ISM Code, a valid and current SMC issued in respect of the Vessel pursuant to the ISM Code and any other certificates issued under any applicable code required to be observed by the Vessel or in relation to its
operation under Applicable Law.
|
5
|
Brazilian Certification and Registration Requirements
|
By the date falling three (3) Months after the Delivery Date, evidence satisfactory to the Facility Agent that the
Brazilian Certification and Registration Requirements related to this Agreement, the Mortgage, the Deed of Covenants, the Bareboat Charter Assignment, the Assignment, the Security Powers of Attorney, the Notice of Assignment to the Charterer, the
Operator Undertaking (if any) and the Quiet Enjoyment Undertaking have been performed.
68
Schedule 3
Form of Drawdown Notice
To:
[
l
]
[
l
]
Attention: [
l
]
Fax No: [
l
]
Email: [
l
]
|
|
|
|
|
From: PETROJARL I L.L.C.
|
|
[Date]
|
Dear Sirs,
Drawdown Notice
We refer
to the Loan Agreement dated [
l
] 2015 made between, amongst others, ourselves and yourselves (the
Agreement
).
Words and phrases defined in the Agreement have the same meaning when used in this Drawdown Notice.
Pursuant to clause 4.1 of the Agreement, we irrevocably request that you make the [first/final] [Atradius Facility/Commercial Facility]
Advance in the sum of [●] to us on [●], which is a Banking Day, by paying the amount of the [first/final] [Atradius Facility/Commercial Facility] Advance to the Earnings Account.
We warrant that the representations and warranties contained in clause 11 (except for clauses 11.2, 11.6 and 11.18) of the Agreement are true
and correct at the date of this Drawdown Notice and will be true and correct on [
l
], that no Default or event or circumstance
specified in clause 6.4 or 6.8 of the Agreement has occurred and is continuing, and that no Default will result from the advance of the sum requested in this Drawdown Notice.
Yours faithfully
..................
For and on
behalf of
PETROJARL I L.L.C.
69
Schedule 4
Form of Transfer Certificate
To:
[
l
]
[
l
]
Attention: [
l
]
Fax No: [
l
]
Email: [
l
]
TRANSFER
CERTIFICATE
This transfer certificate relates to a secured loan facility agreement (as from time to time amended, varied,
supplemented or novated the
Loan Agreement
) dated [
l
] 2015, on the terms and subject to the conditions of which a
secured term loan facility was made available to Petrojarl I L.L.C., by a syndicate of banks on whose behalf you act as facility agent and facility security trustee.
|
1
|
Terms defined in the Loan Agreement shall, unless otherwise expressly indicated, have the same meaning when used in this certificate. The terms
Transferor
and
Transferee
are defined in the schedule to this certificate.
|
|
|
(a)
|
confirms that the details in the Schedule under the heading
Transferor’s Commitment
accurately summarise its Commitment; and
|
|
|
(b)
|
requests the Transferee to accept by way of novation the transfer to the Transferee of the amount of the Transferor’s Commitment specified in
the Schedule by counter-signing and delivering this certificate to the Facility Agent at its address for communications specified in the Loan Agreement.
|
|
3
|
[The Transferee agrees to be bound by each of the provisions of the Loan Agreement as if it had been an original party to the Loan Agreement as a
Hedging Provider, and it is hereby agreed and acknowledged that the Transferee is also a Hedging Provider for all purposes of the Loan Agreement and the other Facility Documents in place of the Transferor or [●]. The notice details of
[●] as Hedging Provider for the purposes of the Loan Agreement are set out in the Schedule.]
|
|
4
|
The Transferee requests the Facility Agent to accept this certificate as being delivered to the Facility Agent pursuant to and for the purposes of
clause 14.5 of the Loan Agreement so as to take effect in accordance with the terms of that clause on the Transfer Date specified in the Schedule.
|
|
5
|
The Facility Agent confirms its acceptance of this certificate for the purposes of clause 14.4 of the Loan Agreement.
|
|
6
|
The Transferee confirms that:
|
|
|
(a)
|
it has received a copy of the Loan Agreement together with all other information which it has required in connection with this transaction;
|
|
|
(b)
|
it has not relied and will not in the future rely on the Transferor or any other party to the Loan Agreement to check or enquire on its behalf into
the legality, validity, effectiveness, adequacy, accuracy or completeness of any such information; and
|
|
|
(c)
|
it has not relied and will not in the future rely on the Transferor or any other party to the Loan Agreement to keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or nature of any Security Party.
|
70
|
7
|
Execution of this certificate by the Transferee constitutes its representation and warranty to the Transferor and to all other parties to the Loan
Agreement that it has the power to become a party to the Loan Agreement as a Facility Lender on the terms of the Loan Agreement and has taken all steps to authorise execution and delivery of this certificate.
|
|
8
|
The Transferee undertakes with the Transferor and each of the other parties to the Loan Agreement that it will perform in accordance with their
terms all those obligations which by the terms of the Loan Agreement will be assumed by it after delivery of this certificate to the Facility Agent and the satisfaction of any conditions subject to which this certificate is expressed to take effect.
|
|
9
|
The Transferor makes no representation or warranty and assumes no responsibility with respect to the legality, validity, effectiveness, adequacy or
enforceability of any Facility Document or any document relating to any Facility Document, and assumes no responsibility for the financial condition of any Facility Beneficiary or for the performance and observance by any Security Party of any of
its obligations under any Facility Document or any document relating to any Facility Document and any conditions and warranties implied by law are expressly excluded.
|
|
10
|
The Transferee acknowledges that nothing in this certificate or in the Loan Agreement shall oblige the Transferor to:
|
|
|
(a)
|
accept a re-transfer from the Transferee of the whole or any part of the rights, benefits and/or obligations transferred pursuant to this
certificate; or
|
|
|
(b)
|
support any losses directly or indirectly sustained or incurred by the Transferee for any reason including, without limitation, the non-performance
by any party to any Facility Document of any obligations under any Facility Document.
|
|
11
|
The address and fax number of the Transferee for the purposes of clause 18 of the Loan Agreement are set out in the Schedule.
|
|
12
|
This certificate may be executed in any number of counterparts each of which shall be original but which shall together constitute the same
instrument.
|
|
13
|
This certificate and all non-contractual obligations in connection with it shall be governed by and interpreted in accordance with English law.
|
THE SCHEDULE
Transferor:
Transferee:
Transfer Date
Transferor’s Commitment:
Amount transferred:
Transferee’s address and fax number for the purposes of clause 18 of the Loan Agreement:
|
|
|
|
|
[
name of Transferor]
|
|
[name of Transferee
]
|
|
|
|
|
By:
|
|
By:
|
|
|
|
|
Date:
|
|
Date:
|
[
l
] as Facility Agent and on behalf of each of the Facility Beneficiaries and the Borrower
By:
Date:
71
Schedule 5
Definitions
Accession
Deed
means an accession deed substantially in the terms of Schedule 7.
Account Bank
means Nordea Bank Finland Plc, New
York Branch.
Account Charge
means the account charge relating to the Earnings Account executed or, as the context may require, to
be executed by the Borrower in favour of the Facility Security Trustee and the deposit account control agreement between the Borrower, the Account Bank and the Facility Security Trustee, in the Agreed Form.
Accounting Reference Date
means 31 December.
Advance
means the amount advanced or to be advanced by the Facility Lenders to the Borrower under clause 4 of this Agreement.
Affiliate
means, in relation to any entity, a Subsidiary of that entity, a Holding Company of that entity or any other Subsidiary of
that Holding Company.
Aggregate Dollar Equivalent Amount
means, at that date, the aggregate of the Dollar Equivalent Amounts in
relation to payments of the Contract Price which have been made.
Agreed Form
in relation to any document, means that document in
form, substance and terms approved in writing by the Facility Agent (acting on the instructions of all of the Facility Lenders) and a Security Party or otherwise in accordance with any such other approval procedure detailed in any relevant provision
of this Agreement and any other Facility Document.
Applicable Law
means, in relation to any jurisdiction or the European Union,
any law, regulation, treaty, directive, decision, rule, regulatory requirement, judgment, order, ordinance request, guideline or direction or any other act of any Government Entity of such jurisdiction or of any EU Institution whether or not having
the force of law and with which any relevant person is required to comply.
Application Date
means (a) the date which is the
earlier of (i) twelve (12) Months after the Delivery Date, and (ii) six (6) Months after the Charter Date of Acceptance, (b) each date falling six (6) Months subsequently to the previous Application Date within the
Facility Security Period and (c) the Final Maturity Date.
Approved Brokers
means H Clarkson & Co. Ltd, Simpson
Spence & Young Shipbrokers Ltd, Fearnley AS, R.S. Platou AS and Kennedy Marr or such other firm or firms of reputable and independent insurance brokers as may from time to time be approved in writing by the Facility Agent (acting on the
instructions of the Majority Facility Lenders, acting reasonably).
Assignment
means the first priority security assignment
executed or to be executed by the Borrower in favour of the Facility Security Trustee, in the Agreed Form.
Atradius
means Atradius
Dutch State Business N.V., the export credit agency of The Netherlands.
Atradius Facility
means the term loan facility made
available by the Atradius Facility Lenders under this Agreement as described in clause 2.
Atradius Facility Advance
means an
advance of the Atradius Facility Commitments in accordance with clause 4.
Atradius Facility Commitment
means:
|
|
(a)
|
in relation to an Atradius Facility Lender at the date of this Agreement, the amount set opposite its name under the heading “Atradius
Facility Commitment” in Schedule 1, Part 1 and the amount of any other Atradius Facility Commitment transferred to it under this Agreement; and
|
72
|
|
(b)
|
in relation to any other Atradius Facility Lender, the amount of any Atradius Facility Commitment transferred to it under this Agreement,
|
to the extent not cancelled, reduced or transferred by it under this Agreement.
Atradius Facility Contribution
means, in relation to an Atradius Facility Lender, the part of the Atradius Loan which is owing to that
Atradius Facility Lender.
Atradius Facility Lenders
means:
|
|
(a)
|
the Atradius Facility Lenders set out in Schedule 1, Part 1 of this Agreement; and
|
|
|
(b)
|
any bank, financial institution or other regulated investment company which has become a party as an Atradius facility lender in accordance with
clause 14,
|
which in each case has not ceased to be a party in accordance with the terms of this Agreement.
Atradius Final Payment
means the amount of the Atradius Loan outstanding and owing to the Atradius Facility Lenders as at the Final
Maturity Date.
Atradius Insurance Policy
means the buyer credit insurance policy issued by Atradius covering ninety five per cent
(95%) of the political and commercial risk in respect of payment of the principal and interest under the aggregate of the Atradius Facility Advances, in the Agreed Form.
Atradius Loan
means a loan made or to be made under the Atradius Facility or the principal amount outstanding for the time being of
that loan.
Atradius Premium
means the amount of premium payable or, as the context may require, paid to Atradius as set out in the
Atradius Insurance Policy in accordance with clause 9.4.
Atradius Proportionate Share
means, at any time prior to an Advance being
made, the proportion which an Atradius Facility Lender’s Atradius Facility Commitment then bears to the aggregate Atradius Facility Commitments of all Atradius Facility Lenders and at any time after an Atradius Facility Advance has been made,
the proportion which an Atradius Facility Lender’s Contribution then bears to the Atradius Loan.
Authorisation
means an
authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
Availability Period
means
the period commencing at the date of this Agreement and ending on the earlier of (i) 30 June 2016, and (ii) the date falling three (3) Months after the Delivery Date, or such later date as may be approved by all the Facility
Lenders and Atradius.
Banking Day
means a day (other than Saturday or Sunday) on which banks are open for normal banking business
in London, Amsterdam, Oslo and New York.
Bareboat Charter
means the bareboat charter agreement dated 15 December 2014,
between the Bareboat Charterer and the Borrower in relation to the Vessel.
Bareboat Charter Proceeds
means all hires, freights,
pool income and other sums payable to or for the account of the Bareboat Charterer in respect of the Vessel including (without limitation) the account of all remuneration for salvage and towage services, demurrage and detention moneys, contributions
in general average, compensation in respect of a requisition for hire and damages and other payments (whether awarded by any court or arbitral tribunal or by agreement or otherwise) for breach, termination or variation of any contract for the
operation, employment or use of the Vessel.
73
Bareboat Charterer
means Petrojarl I Production AS, a company incorporated in Norway with
registered company number 997 788 885 and its registered office at Beddingen, 16, 7014 Trondheim, Norway.
Bareboat Charterer Account
Charge
means the account charge relating to the Bareboat Charterer Earnings Account and the Bareboat Charterer NOK Account executed or, as the context may require, to be executed by the Bareboat Charterer in favour of the Facility Security
Trustee and the deposit account control agreement between the Bareboat Charterer, the Account Bank and the Facility Security Trustee, in the Agreed Form.
Bareboat Charterer Assignment
means the deed of assignment executed or, as the context may require, to be executed by the Bareboat
Charterer in favour of the Facility Security Trustee, in the Agreed Form.
Bareboat Charterer Earnings Account
means the account
number 4056963001 held by the Bareboat Charterer with the Account Bank in New York and includes any redesignation and sub-accounts thereof.
Bareboat Charterer NOK Account
means the account number 4056963101 held by the Bareboat Charterer with the Account Bank in New York and
including any redesignation and sub-accounts thereof.
Bareboat Charterer Share Pledge
means the first priority pledge agreement in
respect of the whole of the shares in the Bareboat Charterer executed or to be executed by the Shareholder in favour of the Facility Security Trustee, in the Agreed Form.
Bareboat Charterer Shareholder
means Teekay Offshore European Holdings Cooperatief U.A.
Basel III
means, together:
|
|
(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”.
|
Bond Guarantor
means Nationale Borg-Maatschappij N.V.
Bookrunner
means ABN AMRO Capital USA LLC.
Borrowed Money
means Indebtedness (without double counting) in respect of (i) money borrowed or raised and debit balances at
banks, (ii) any bond, note, loan stock, debenture or similar debt instrument, (iii) acceptance or documentary credit facilities, (iv) receivables sold or discounted (otherwise than on a non-recourse basis), (v) deferred payments
for assets or services acquired having the commercial effect of a borrowing or raising of money (but not ordinary trade credit), (vi) finance leases and hire purchase contracts which, in accordance with Accounting Principles, are at the
relevant time treated as a finance or capital lease (but only to the extent of such treatment), (vii) the marked to market value of Derivatives Contracts, (viii) any other transaction (including without limitation forward sale or purchase
agreements) having the commercial effect of a borrowing or raising of money or of any of (ii) to (vii) above and (ix) guarantees in respect of Indebtedness of any other person falling within any of (i) to (viii) above.
74
Borrower
means Petrojarl I L.L.C., a limited liability company formed according to the
laws of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Islands, Majuro, The Marshall Islands MH-96960.
Borrower Share Pledge
means the first priority pledge agreement in respect of the whole of the membership interests in the Borrower
executed or to be executed by the Shareholder in favour of the Facility Security Trustee, in the Agreed Form.
Borrower
Shareholder
means Teekay Offshore Holdings L.L.C.
Brazilian Certification and Registration Requirements
means, in relation to a Facility
Document:
|
|
(a)
|
if any person executed that Facility Document in Brazil, certification (
reconhecimento de firma
) of that person’s signature;
|
|
|
(b)
|
if any person executed that Facility Document outside Brazil, certification by a notary of that person’s signature and (if the person executed
that Facility Document outside Brazil, Argentina, France, Spain, Italy, Paraguay and Uruguay) legalisation of the signature and seal of that notary in the relevant Brazilian Consulate; and
|
|
|
(c)
|
a certified translation of that Facility Document into Portuguese.
|
Break Costs
means the amount (if any) by which:
|
|
(a)
|
the interest (excluding the Margin) which a Facility Lender should have received for the period from the date of receipt of all or any part of its
participation in an Advance or the Loan or an Unpaid Sum to the last day of the current Interest Period in respect of that Advance or the Loan or that Unpaid Sum, had that Advance or the Loan or that Unpaid Sum been paid on the last day of that
Interest Period,
|
exceeds:
|
|
(b)
|
the amount which that Facility Lender would be able to obtain by placing an amount equal to the principal amount equal to its participation in that
Advance or the Loan or that Unpaid Sum received by it on deposit with a leading bank in the London Interbank Market for a period starting on the Banking Day following receipt or recovery and ending on the last day of the current Interest Period.
|
Budget
means a budget of the projected costs of the refurbishment of the Vessel, which, as at the date of this
Agreement, is set out in Schedule 6.
Builder
means Damen Shiprepair Rotterdam B.V., a company incorporated in The
Netherlands whose registered office is at Admiraal de Ruyterstraat 24, 3115 HB Schiedam, The Netherlands.
Cash Flow
means,
in respect of any Relevant Period:
|
|
(a)
|
the aggregate of (i) the Bareboat Charter Proceeds scheduled to be receivable under the Charter (assuming where relevant that the term of the
Charter has been extended in accordance with the terms of the Charter) during that Relevant Period and (ii) the Operating Revenue scheduled to be receivable under the Operations Agreement (assuming where relevant that the term of Operations
Agreement has been extended in accordance with the terms of the Operations Agreement) during the Relevant Period;
minus
|
|
|
(b)
|
the operating costs payable in respect of the Vessel for operations pursuant to the Charter and Operations Agreement during that Relevant Period.
|
Casualty Amount
means ten million Dollars ($10,000,000) or the equivalent in any other currency.
75
Change in Law
means the occurrence, after the date of this Agreement, of any of the
following:
|
|
(a)
|
the adoption or taking effect of any law, rule, regulation or treaty;
|
|
|
(b)
|
any change in law, rule, regulation or treaty or in the administration, interpretation implementation or application thereof by any Government
Entity; or
|
|
|
(c)
|
the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Government Entity,
|
provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer
Protection Act of the United States of America, passed in 2010 and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for
International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III or any law or regulation that implements or
applies Basel III (including without limitation CRD IV), shall in each case be deemed to be a “Change in Law” regardless of the date enacted, adopted or issued.
Charter
means the bareboat charter agreement dated 15 December 2014 between the Bareboat Charterer and the Charterer pursuant to
which (inter alia) the Bareboat Charterer agreed to charter the Vessel and the Charterer agreed to take the Vessel on charter, as amended from time to time by a Permitted Amendment.
Charter Date of Acceptance
means the date of Acceptance of the FPSO as defined in the Charter.
Charter Period
has the meaning given to it in the Charter.
Charter Rate
means the full amount of that part of the daily rate payable under the Charter in Dollars.
Charterer
means Atlanta Field B.V., a company incorporated under the laws of The Netherlands with its head office at Hoofdweg 52 A,
3067GH Rotterdam, the Netherlands.
Charterer Guarantors
means as at the date of the Charter:
|
|
(a)
|
QGEP Participações S.A.;
|
|
|
(b)
|
Barra Energia do Brasil Petróleo e Gás Ltda.;
|
|
|
(c)
|
OGX Netherlands B.V.; and
|
|
|
(d)
|
OGX Petróleo e Gás S.A. – in judicial recuperation.
|
Charterer Guarantees
means:
|
|
(a)
|
the deed of company guarantee dated 15 December 2014 between QGEP Participações S.A., the Bareboat Charterer, OGX Netherlands
B.V., OGX Petróleo e Gás S.A. – in judicial recuperation and acknowledged by the Charterer;
|
|
|
(b)
|
the deed of company guarantee dated 15 December 2014 between Barra Energia do Brasil Petróleo e Gás Ltda., the Bareboat
Charterer, OGX Netherlands B.V., OGX Petróleo e Gás S.A. – in judicial recuperation and acknowledged by the Charterer; and
|
|
|
(c)
|
the deed of company guarantee dated 15 December 2014 between the Bareboat Charterer, OGX Netherlands B.V., OGX Petróleo e Gás
S.A. – in judicial recuperation, with OGX Netherlands Holding B.V. as a consenting party and acknowledged by the Charterer.
|
76
Classification
means the class notation “1A1 ICE-C Ship-shaped Oil Production Storage
Unit HELDK Crane E0 F-AC PROD(N) POSMOOR-ATA BIS INERT” with the Classification Society and such other additional class notations (e.g. relating to self-propelled or operating environment or fatigue analysis) in relation to the Vessel as the
Facility Security Trustee shall, at the request of the Borrower, have agreed in writing which shall be treated as the Classification of the Vessel, for the purposes of this Agreement and the other Facility Documents.
Classification Society
means any of DNV GL, Lloyds Register American Bureau of Shipping (ABS) or Bureau Veritas or such other
classification society acceptable to the Majority Facility Lenders.
Collateral
means any and all assets over or in respect of
which any Security Interest is created or expressed to be created by any Security Party in favour of the Facility Beneficiaries or any of them pursuant to or in accordance with any of the Facility Security Documents.
Collateral Instruments
means notes, bills of exchange, certificates of deposit and other negotiable and non-negotiable instruments,
guarantees, indemnities and other assurances against financial loss and any other documents or instruments which contain or evidence an obligation (with or without security) to pay, discharge or be responsible directly or indirectly for any
indebtedness or liabilities of any person and includes any documents or instruments creating or evidencing an Security Interest.
Commercial Facility
means the term loan facility made available by the Commercial Facility Lenders under this Agreement as described in
clause 2 of this Agreement.
Commercial Facility Advance
means an advance of the Commercial Facility Commitments in accordance with
clause 4 of this Agreement.
Commercial Facility
Commitment means:
|
|
(a)
|
in relation to a Commercial Facility Lender at the date of this Agreement, the amount set opposite its name under the heading “Commercial
Facility Commitment” in Schedule 1, Part 1 and the amount of any other Commercial Facility Commitment transferred to it under this Agreement; and
|
|
|
(b)
|
in relation to any other Commercial Facility Lender, the amount of any Commercial Facility Commitment transferred to it under this Agreement,
|
to the extent not cancelled, reduced or transferred by it under this Agreement.
Commercial Facility Lenders
means:
|
|
(a)
|
the Commercial Facility Lenders set out in Schedule 1, Part 1 of this Agreement; and
|
|
|
(b)
|
any bank, financial institution or other regulated investment company which has become a party as a Commercial facility lender in accordance with
clause 14,
|
which in each case has not ceased to be a party in accordance with the terms of this Agreement.
Commercial Final Payment
means the amount of the Commercial Loan outstanding and owing to the Commercial Facility Lenders as of the
Final Maturity Date.
Commercial Loan
means a loan made or to be made under the Commercial Facility or the principal amount
outstanding for the time being of that loan.
Commercial Proportionate Share
means, at any time prior to an Advance being
made, the proportion which a Commercial Facility Lender’s Commercial Facility Commitment then bears to the aggregate Commercial Facility Commitments of all Commercial Facility Lenders and at any time after a Commercial Facility Advance has been
made, the proportion which a Commercial Facility Lender’s Contribution then bears to the Commercial Loan.
Commitment
means,
in relation to a Facility Lender, its Atradius Facility Commitment and/or Commercial Facility Commitment.
77
Commitment Fee
means the commitment commission payable by the Borrower pursuant to clause 9.1 of this
Agreement.
Completion Time
has the meaning given to that expression in clause 3.3.
Compulsory Acquisition
means requisition for use or title or other compulsory acquisition, nationalisation, requisition, appropriation,
expropriation, deprivation, forfeiture or confiscation for any reason of the Vessel by any Government Entity or other competent authority, whether de jure or de facto, but shall exclude requisition for hire not involving requisition for title.
Contingency Amount
means the contingency amount specified in the Budget being not more than twenty three million Dollars ($23,000,000).
Contract Price
means an amount equal to EUR89,934,827, payable to the Builder by the Borrower under and pursuant to the
Refurbishment Contract as may be adjusted in accordance with the terms of the Refurbishment Contract.
Contribution
means, in relation to a
Facility Lender, the part of the Loan which is owing to that Facility Lender.
CRD IV
means:
|
|
(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
|
|
|
(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, to the extent that Regulation (EU) No 575/2013 and Directive 2013/36/EU implement Basel III.
|
Currency of Account
means, in relation to any payment to be made to a Facility Beneficiary under a Facility
Document, the currency in which that payment is required to be made by the terms of that Facility Document.
Debt Service Amount
means, in respect of a Relevant Period, all amounts of interest and principal scheduled to be or become payable during that Relevant Period pursuant to clauses 5 and 7 with interest calculated on (i) the estimated weighted average cost of
interest on the Facility by reference to the applicable Margin of each Facility; and (ii) the LIBOR swap rate for the weighted average life of the Facility as determined on the Delivery Date (the
Interest Cost
).
Deed of Covenants
means the first priority deed of covenant collateral to the Mortgage executed or, as the context may require, to be
executed by the Borrower in favour of the Facility Security Trustee, in the Agreed Form.
Default
means any Event of Default
or any event or circumstance specified in clause 13.1 of this Agreement which would, with the giving of a notice and/or the expiry of the relevant period and/or the fulfilment of any other condition, become an Event of Default.
Defaulting Facility Lender
means any Facility Lender which has failed to make its participation in an Advance available (or has
notified the Facility Agent or the Borrower (which has notified the Facility Agent) that it will not make its participation in an Advance available) by the Drawdown Date of that Advance in accordance with clause 4 unless:
|
|
(i)
|
its failure to pay is caused by:
|
|
|
(A)
|
administrative or technical error; or
|
|
|
(B)
|
a Disruption Event; and
|
78
payment is made within ten Banking Days of its due date; or
|
|
(ii)
|
the Facility Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
Default Rate
means the interest rate specified in clause 7.7 of this Agreement.
Delivery Date
means the date upon which the Vessel is delivered to, and accepted by, the Borrower under the Refurbishment Contract.
Delivery Commercial Facility Advance
means the first Commercial Facility Advance to be made on, or after, the Delivery Date.
Derivatives Contract
means a contract, agreement or transaction which is:
|
|
(a)
|
a rate swap, basis swap, commodity swap, forward rate transaction, commodity option, equity (or equity or other index) swap or option, bond option,
interest rate option, foreign exchange transaction, cap, collar or floor, currency swap, currency option or any other similar transaction; and/or
|
|
|
(b)
|
any combination of such transactions,
|
in each case, whether on-exchange or otherwise.
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 Facility (or otherwise in order for the transactions contemplated by the Facility Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties;
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 Facility Documents; or
|
|
|
(ii)
|
from communicating with other Parties in accordance with the terms of the Facility Documents,
|
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
Distribution
means, in relation to a person, any payment by or distribution of assets by that person, whether in cash, property,
securities or otherwise.
DOC
means, in relation to the ISM Company, a valid Document of Compliance issued for the ISM Company by
the Administration under paragraph 13.2 of the ISM Code.
Dollars
and
$
mean the lawful currency of the United States of
America and in respect of all payments to be made under this Agreement and the other Transaction Documents in Dollars mean funds which are for same day settlement in the New York Clearing House Interbank Payments System (or such other US dollar
funds as may at the relevant time be customary for the settlement of international banking transactions denominated in US dollars).
Dollar Equivalent Amount
means, in relation to the payment of any part of the Contract Price paid in euros, that amount in euros
converted into Dollars at the Rate of Exchange on the date upon which that amount was paid to the Builder.
79
Drawdown Date
means, in relation to an Advance, the date, being a Banking Day within the
Availability Period relating to an Advance, on which that Advance is, or is to be, drawn down or made pursuant to clause 4 of this Agreement.
Drawdown Notice
means a notice in the form or substantially in the form of Schedule 3 to this Agreement.
DSCR
means, in relation to any Relevant Period, the ratio of (i) Cash Flow for such Relevant Period to (ii) the Debt Service
Amount for such Relevant Period.
Earnings
means the Revenue and the Bareboat Charter Proceeds.
Earnings Account
means account number 4057043001 held by the Borrower with the Account Bank in New York and includes any redesignation
and sub-accounts thereof.
ECA Agent
means ABN AMRO Bank N.V. or such other person as may be appointed agent for the Atradius
Facility Lenders pursuant to clause 15.21 of this Agreement.
Eligible Delivered Costs
means the costs, expressed in Dollars,
incurred by the Borrower for the refurbishment of the Vessel, being the costs identified in the Budget which will include (but not be limited to), for the avoidance of doubt, the amounts due under the Refurbishment Contract, the other relevant
contracts, the Atradius Premium, interest costs under the Facility, the transportation costs, the value of the Vessel prior to upgrade and project management costs.
Environmental Affiliate
means an agent or employee of the Borrower or the Bareboat Charterer or the Operator or a person in a
contractual relationship with the Borrower or the Bareboat Charterer or the Operator (other than the Charterer) in respect of the Vessel (including without limitation, the operation of or the carriage of cargo of the Vessel).
Environmental Approvals
means any present or future permit, licence, approval, ruling, variance, exemption or other authorisation
required under applicable Environmental Laws.
Environmental Claim
means any and all enforcement, clean-up, removal,
administrative, governmental, regulatory or judicial actions, orders demands or investigations instituted or completed pursuant to any Environmental Laws or Environmental Approvals together with any claims made by any third person relating to
damage, contribution, loss or injury resulting from any Environmental Incident.
Environmental Incident
means:
|
|
(a)
|
any release of Environmentally Sensitive Material from the Vessel; or
|
|
|
(b)
|
any incident in which Environmentally Sensitive Material is released from a vessel other than the Vessel which involves a collision between the
Vessel and such other vessel or some other incident of navigation or operation, in either case, in connection with which the Vessel is actually or potentially liable to be arrested, attached, detained or injuncted and/or where any guarantor, any
manager (or any sub-manager) of the Vessel or any of its officers, employees, or other persons retained or instructed by it (or such sub-manager) are at fault or are 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 Vessel and in connection with which the Vessel
is actually or potentially liable to be arrested and/or where any guarantor, any manager (or any sub-manager) of the Vessel or any of its officers, employees or other persons retained or instructed by it (or such sub-manager) are at fault or
allegedly at fault or otherwise liable to any legal or administrative action.
|
80
Environmental Law
includes all present and future laws, regulations, treaties and
contentions of any applicable jurisdiction which:
|
|
(a)
|
have as a purpose or effect the protection of, and/or prevention of, harm or damage to, the Environment;
|
|
|
(b)
|
relate to the carriage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material;
|
|
|
(c)
|
provide remedies or compensation for harm or damage to the environment; or
|
|
|
(d)
|
relate to Environmentally Sensitive Material or health, social or safety matters.
|
Environmentally Sensitive Material
means (i) oil and oil products and (ii) any other waste, pollutant, contaminant or other
substance (including any liquid, solid, gas, ion, living organism or noise) that may be harmful to human health or other life or the environment or a nuisance to any person or that may make the enjoyment, ownership or other territorial control of
any affected land, property or waters more costly for such person to a material degree.
Equator Principles
means the set of
environmental guidelines developed by commercial banks and the International Finance Corporation for the purpose of assessing and managing environmental and social issues related to private sector project financings, as adopted on 4 June 2003
and revised in June 2006 and as revised from time to time.
Estimated Final Atradius Facility Advance
means one hundred and twenty
per cent. (120%) of the estimated amount of the final Atradius Facility Advance to be calculated in accordance with the terms of this Agreement.
EUR
and
euro
denote the single currency of the Participating Member States.
Event of Default
means any of the events or circumstances described in clause 13.1 of this Agreement.
Expenses
means:
|
|
(a)
|
all Losses suffered, incurred or paid by any Facility Beneficiary, Atradius or any Insolvency Official in connection with the exercise of the
rights, remedies and powers granted by, referred to in, or otherwise contemplated by the Facility Documents; and
|
|
|
(b)
|
interest on those Losses at the Default Rate, from the date of demand by the relevant Facility Beneficiary, Atradius or Insolvency Official to the
date of payment (after as well as before judgment).
|
Facility
means each of the Atradius Facility and the
Commercial
Facility
, and Facilities means all of them.
Facility Agent
means ABN AMRO Capital USA LLC acting through its
office at 100 Park Avenue, 17
th
Floor, New York, NY 10017, USA or such other person as may be appointed agent for the Facility Lenders pursuant to clause 15.21 of this Agreement.
Facility Beneficiaries
means together the Facility Agent, the Facility Security Trustee, the ECA Agent, the Mandated Lead Arrangers,
the Bookrunner, the Facility Lenders and the Hedging Providers (each a
Facility Beneficiary
).
Facility Documents
means:
|
(c)
|
the Facility Security Documents;
|
81
|
(d)
|
the Hedging Agreements; and
|
|
(e)
|
each other document which the Borrower and the Facility Agent agree shall be a Facility Document for the purposes of the Facility Documents,
|
(each a
Facility Document
).
Facility Lenders
means together the Atradius Facility Lenders and the Commercial Facility Lenders (each a
Facility Lender
).
Facility Limit
means one hundred and eighty million Dollars ($180,000,000).
Facility Secured Obligations
means all monies, obligations and liabilities, present or future, actual or contingent, from time to time
owing or payable, undertaken, incurred or assumed by the Borrower or any other Security Party to the Facility Beneficiaries (or any of them) under or pursuant to this Agreement and the other Facility Documents and includes (without limitation) the
Hedging Secured Obligations.
Facility Secured Obligations Discharge Date
means the last day of the Facility Security Period.
Facility Secured Property
means (i) the security, powers, rights, titles, benefits and interests (both present and future, actual
or contingent) constituted by and conferred upon the Facility Beneficiaries or any of them under or pursuant to the Facility Security Documents and any notices or acknowledgements or undertakings given in respect of or in connection with any of the
Facility Security Documents (including, without limitation, the benefit of all covenants, undertakings, representations, warranties and obligations given, made or undertaken to any Facility Beneficiary in the Facility Security Documents and any
notices or acknowledgements or undertakings given in respect of or in connection with any of the Facility Security Documents), (ii) all moneys and other assets paid or transferred to or vested in any Facility Beneficiary or any agent of any
Facility Beneficiary or any Insolvency Official or received or recovered by any Facility Beneficiary or any agent of any Facility Beneficiary or any Insolvency Official pursuant to, or in connection with, any of the Facility Security Documents and
any notices or acknowledgements or undertakings given in respect of or in connection with any of the Facility Security Documents, whether from any Security Party, any Project Counterparty or any other person, and (iii) all moneys, investments,
and other assets at any time representing or deriving from any of the foregoing, including all interest, income and other sums at any time received or receivable by any Facility Beneficiary or any agent of any Facility Beneficiary or any Insolvency
Official in respect of the same (or any part thereof).
Facility Security Documents
means together:
|
(b)
|
the Borrower Share Pledge;
|
|
(e)
|
the Deed of Covenants;
|
|
(f)
|
the Master Agreement Charge;
|
|
(g)
|
the Bareboat Charterer Assignment;
|
|
(h)
|
the Notices of Assignment;
|
|
(i)
|
the Quiet Enjoyment Undertaking;
|
|
(j)
|
the Pre-Delivery Assignment;
|
82
|
(k)
|
the Bareboat Charterer Account Charge;
|
|
(l)
|
the Bareboat Charterer Share Pledge;
|
|
(m)
|
the Security Powers of Attorney;
|
|
(n)
|
the Operator Undertaking (if relevant);
|
|
(o)
|
the Financial Guarantee; and
|
|
(p)
|
each other document which the Borrower and the Facility Security Trustee agree shall be a Facility Security Document for the purposes of the
Facility Documents,
|
(each a
Facility Security Document
).
Facility Security Period
means the period commencing on the date of this Agreement and terminating on the date on which all of the
Facility Secured Obligations have been paid, repaid, satisfied, performed and discharged irrevocably and unconditionally in full.
Facility Security Rights
means any rights to enforce the Security Interest constituted by any Facility Document.
Facility Security Trustee
means ABN AMRO Capital USA LLC acting through its office at 100 Park Avenue, 17
th
Floor, New York, NY 10017 USA in its capacity as security trustee on behalf of the Facility Beneficiaries for the purposes of the Facility Documents or such other person as may be appointed facility
security trustee pursuant to clause 15.21 of this Agreement.
FATCA
means:
|
|
(a)
|
sections 1471 to 1474 of the US Internal Revenue Code of 1986 (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 2017; 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 2017,
|
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 Facility Document required by FATCA.
83
FATCA Exempt Party
means a Party that is entitled to receive payments free from any FATCA
Deduction.
FATCA FFI
means a foreign financial institution as defined in section 1471(d)(4) of the Code which, if any Facility
Beneficiary is not a FATCA Exempt Party, could be required to make a FATCA Deduction.
Fee Letters
means any letters entered into
by reference to this Agreement in relation to any fees and
Fee Letter
means any one of them.
Final Disposition
means the
completion of the sale of the Vessel (or any part thereof) against payment in cash, whether through an agent on its behalf or otherwise, or of all the Borrower’s rights, title and interest in and to the Vessel (or the relevant part), on terms
that such right, title and interest will only pass to the purchaser on payment in full of that cash.
Final Disposition Proceeds
means the aggregate amount of:
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|
(a)
|
all cash consideration received upon, or as a result of, the Final Disposition of the Vessel; and
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|
|
(b)
|
any non-refundable deposit paid by a person acquiring or proposing to acquire the Vessel under a contract or offer to purchase, or otherwise
acquire the Vessel which has been withdrawn, terminated or cancelled or has lapsed.
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Final Maturity Date
means
the date falling on the fifth (5
th
) anniversary of the earlier of (i) the Charter Date of Acceptance, and (ii) the date falling six (6) Months after the Delivery Date.
Financial Guarantee
means the guarantee entered into or to be entered into by the Sponsor in favour of the Facility Security Trustee
referring to the Facility Secured Obligations, in the Agreed Form.
Fixed Rate
means, in relation to a Hedging Agreement, the fixed
rate of interest by reference to which periodic payments and receipts to be made or received under that Hedging Agreement are calculated.
Flag State
means the Bahamas or any other state or country in which the Vessel, with the prior written consent of the Facility Security
Trustee (acting after consultation with, and on the instructions of, the Facility Lenders and Atradius (but provided that Marshall Islands, Norwegian International Ship Register, Liberia, Panama, Isle of Man, Cayman Islands, Bermuda and Singapore
are pre-approved)), is from time to time registered in accordance with the provisions of this Agreement, the Assignment and the other Transaction Documents.
GAAP
means generally accepted accounting principles in the United States of America.
General Partner
means Teekay Offshore GP L.L.C., a limited liability company formed and existing according to the law of the Marshall
Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands MH-96960.
Government Entity
means and includes (whether having a distinct legal personality or not) (i) any national or local government
authority, (ii) any board, commission, department, division, organ, instrumentality, court or agency of any entity referred to in paragraph (i), however constituted, and (iii) any international association, organisation or institution of
which any entity mentioned in paragraph (i) or (ii) above is a member or to whose jurisdiction any such entity is subject or in whose activities any such entity is a participant.
Group
means the TOO Group.
Hedge Coordinator
means ABN AMRO Bank N.V.
84
Hedging Agreements
means (i) the confirmation or confirmations (if any) for the
purposes of managing the interest rate risk under the Facility (including, but not limited to, swaptions, options and interest caps), and/or (ii) the International Swaps and Derivatives Association Master Agreement (the
Master Agreement
)
entered into or, as the context may require, to be entered into, in each case, between the Hedging Providers (or any of them) as interest hedging provider or, as the case may be, swap provider and the Borrower as counterparty and includes any
schedule to that Master Agreement and any confirmation issued under that Master Agreement, and includes any replacement or amendment thereof approved by the Facility Lenders in accordance with clause 12.1.28 of this Agreement.
Hedging Providers
means:
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|
(a)
|
each Facility Lender and/or an Affiliate of a Facility Lender that becomes a party to this Agreement in its capacity as a Hedging Provider by way
of Transfer Certificate or Accession Deed; and which in each case
|
|
|
(b)
|
is party to a Hedging Agreement,
|
(each a
Hedging Provider
).
Hedging Secured Obligations
means all monies, obligations and liabilities, present or future, actual or contingent, from time to time
owing or payable, undertaken, incurred or assumed by the Borrower or any other Security Party to any Hedging Provider under or pursuant to the Hedging Agreements and the other Facility Documents (for the avoidance of doubt, without prejudice to and
after giving effect to any contractual set off and/or netting provisions contained in that Hedging Agreement and including, without limitation, any Swap Payments and/or termination sums).
Holding Company
means, in relation to an entity, any other entity in respect of which the first is a Subsidiary.
Indebtedness
means any obligation for the payment or repayment of money, whether as principal or as surety and whether present or
future, actual or contingent.
Indemnified Parties
shall have the meaning given to that term in clause 8.10 of this Agreement
(each an
Indemnified Party
).
Insolvency Event
means, in relation to any person, the occurrence of any of the following
events:
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|
(a)
|
Insolvency: that person is unable to pay its debts as they fall due or admits its inability to pay its debts as they mature or suspends or
threatens to suspend making payment of all or a substantial part of its Indebtedness or makes a general assignment or assignation for the benefit of creditors or is subject to or applies for winding-up or liquidation proceedings or is successfully
put into forced or voluntary liquidation (except for the purposes of a voluntary reorganisation not involving the insolvency of that person and previously agreed in writing by the Facility Agent acting in accordance with the instructions of the
Majority Facility Lenders);
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|
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(b)
|
Winding up: any order is made, petition is presented, resolution is passed or other act or action is taken for the winding-up, liquidation,
administration or other formal insolvency of that person under any Applicable Law, whether now or hereafter in effect (save where the petition presented is frivolous or vexatious and is dismissed within a period of thirty (30) days);
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|
|
(c)
|
Appointment of receivers and managers: any administrative or other receiver is appointed of that person or any substantial part of its assets or
any other steps (except for any frivolous or vexatious step or steps which are dismissed within a period of thirty (30) days) are taken to enforce any Security Interest over all or any material part of the assets of that person;
|
|
|
(d)
|
Seizure: all or a substantial part of the assets of that person are seized, nationalised, expropriated or compulsorily acquired by or under the
authority of any Government Entity;
|
85
|
|
(e)
|
Analogous proceedings: there occurs, in relation to that person in any jurisdiction, any event which corresponds with, or has an effect equivalent
or similar to, any of the events mentioned in the foregoing paragraphs.
|
Insolvency Official
in respect of any
person, means any liquidator, receiver, administrator and/or manager or administrative receiver, judicial manager, trustee or similar officer appointed in respect of that person, whether appointed by a creditor, pursuant to any statute, by a court
or other tribunal or otherwise, for the purpose of recovering, realising, distributing or disposing of any of the assets or undertaking of that person.
Insurance Proceeds
means the proceeds of any Insurances other than Total Loss Proceeds and Liability Insurance Proceeds.
Insurances
means all policies and contracts of insurance which expression includes all entries of the Vessel in a protection and
indemnity or war risks association which are from time to time taken out or entered into in respect of or in connection with the Vessel or her increased value and all benefits under such contracts and policies including all claims of any nature and
returns of a premium.
Interest Cost
has the meaning given to it in the definition of “Debt Service Amount”.
Interest Payment Date
means the last day of an Interest Period.
Interest Period
in relation to any Advance or the Loan, means each period for the calculation of interest in respect of that Advance or
the Loan ascertained in accordance with clause 7 of this Agreement.
Interpolated Screen Rate
means, in relation to LIBOR for
a particular period, 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; and
|
|
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period,
|
each as of 11:00a.m. London time two (2) Banking Days before the first day of the relevant Interest Period for the
offering of the deposits in Dollars in an amount comparable to the Loan (or any other relevant part of the Loan) and, if that rate is less than zero, it shall be deemed to be zero.
ISM Code
means the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention constituted
pursuant to Resolution A.741(18) of the International Maritime Organisation and incorporated into the Safety of Life at Sea Convention, and includes any amendment of the foregoing and any regulation issued pursuant to the foregoing.
ISPS Code
means the International Ship and Port Facility Security Code of the International Maritime Organisation and includes any
amendments or extensions thereto and any regulation issued pursuant thereto.
ISS
means, if and whenever the same is required by
Applicable Law and/or pursuant to or for the purposes of the Insurances, the International Ship Security Certificate for the Vessel issued in accordance with the ISPS Code.
Liability Insurance Proceeds
means:
|
|
(a)
|
the proceeds of the Insurances received in respect of protection and indemnity risks or collision liability;
|
86
|
|
(b)
|
any amounts paid by the Charterer to the Bareboat Charterer and/or QGEP to the Operator or any other person under or pursuant to the Charter and/or
the Operating Agreement as an indemnity for third party operational or liability claims of any nature; and
|
|
|
(c)
|
any amounts paid by the Operator to the Bareboat Charterer or any other person under or pursuant to the Operations Agreement as an indemnity for
third party operational or liability claims of any nature.
|
LIBOR
means, in relation to a particular period:
|
|
(a)
|
the applicable Screen Rate; or
|
|
|
(b)
|
if no Screen Rate is available for any Interest Period, the Interpolated Screen Rate; or
|
|
|
(c)
|
if no Screen Rate is available for any Interest Period and it is not possible to calculate an Interpolated Screen Rate for that Interest Period,
the Reference Bank Rate,
|
at, in the case of paragraphs (a) and (c) above, 11.00 a.m. London time two
(2) Banking Days before the first day of the relevant Interest Period for the offering of deposits in Dollars in an amount comparable to the Loan (or any other relevant part of the Loan) and for a period comparable to the relevant Interest
Period provided always that if that rate is less than zero, LIBOR shall be deemed to be zero.
Loan
means the Atradius Loan and the
Commercial Loan and
Loans
means all of them.
Losses
means all losses, liabilities, costs, charges, expenses, damages and
outgoings of whatsoever nature (including without limitation, Taxes (but excluding taxes levied on the overall income or profits of any Facility Beneficiary in the jurisdiction in which its principal or Facility Office under the Facility Documents
is located), stamp duties and other duties or charges, registration fees, repair costs, insurance premiums, fees of insurance advisers reasonably incurred, fees of technical consultants, printing costs, out-of-pocket expenses and fees and
disbursements of legal counsel reasonably incurred, together with any value added or similar tax payable in respect thereof) but excluding, for the avoidance of doubt, any loss of profits.
Loss Payable Clause
means the provisions regulating the manner of payment of sums receivable under the Insurances which are to be
incorporated in the relevant insurance documents, such Loss Payable Clause to be in the form set out in Appendix C to the Pre-Delivery Assignment, Appendix C to the Assignment or in such other form as may from time to time be reasonably
required by the Facility Security Trustee acting on the instructions of the Majority Facility Lenders.
Majority Atradius Facility
Lenders
means, together, at any relevant time, (i) the Atradius Facility Lenders the aggregate of whose Atradius Facility Contributions equal or exceed sixty-six and two-thirds per cent. (66.66%) of the Atradius Loan at that time, or
(ii) if no Atradius Facility Advance has been made, the Atradius Facility Lenders the aggregate of whose Atradius Facility Commitments at that time equal or exceed sixty-six and two-thirds per cent. (66.66%) of the Total Atradius Facility
Commitments at that time or, if all of the Atradius Facility Commitments have been reduced to zero at or prior to that time, the Atradius Facility Lenders the aggregate of whose Atradius Facility Contributions immediately prior to that reduction
equalled or exceeded sixty-six and two-thirds per cent. (66.66%) of the Atradius Loan at that time.
Majority Commercial Facility
Lenders
means, together, at any relevant time, (i) the Commercial Facility Lenders the aggregate of whose Commercial Facility Contributions equal or exceed sixty-six and two-thirds per cent. (66.66%) of the Commercial Loan at that
time, or (ii) if no Commercial Facility Advance has been made, the Commercial Facility Lenders the aggregate of whose Commercial Facility Commitments at that time equal or exceed sixty-six and two-thirds per cent. (66.66%) of the Total
Commercial Facility Commitments at that time or, if all of the Commercial Facility Commitments have been reduced to zero at or prior to that time, the Commercial Facility Lenders the aggregate of whose Commercial Facility Contributions immediately
prior to that reduction equalled or exceeded sixty-six and two-thirds per cent. (66.66%) of the Commercial Loan at that time.
87
Majority Facility Lenders
means, together, at any relevant time, (i) at any time
prior to the end of the Availability Period, the Majority Atradius Facility Lenders and the Majority Commercial Facility Lenders, or (ii) at any time on or after the end of the Availability Period, the Facility Lenders the aggregate of whose
Contributions equal or exceed sixty-six and two-thirds per cent. (66.66%) of the Loan at that time, or, if all of the Commitments have been reduced to zero at or prior to that time, the Facility Lenders the aggregate of whose Contributions
immediately prior to that reduction equalled or exceeded sixty-six and two-thirds per cent. (66.66%) of the Loan at that time.
Mandated Lead Arrangers
means the banks listed in Schedule 1, Part 2 of this Agreement.
Margin
means:
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|
(a)
|
in relation to the Atradius Facility, zero point nine per cent (0.90%) per annum; and
|
|
|
(b)
|
in relation to the Commercial Facility, two point five per cent (2.50 %) per annum.
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Master Agreement Charge
means the first priority charge in respect of the Hedging Agreements executed or, as the context may require,
to be executed, by the Borrower in favour of the Facility Security Trustee, in the Agreed Form.
Material Adverse Effect
means a
material adverse change in, or a material adverse effect on:
|
|
(a)
|
the financial conditions, assets, prospects or business of any Security Party or on the consolidated financial condition, assets, prospects or
business of the Group;
|
|
|
(b)
|
the ability of any Security Party to perform and comply with its obligations under the Facility Document or Project Document or to avoid any Event
of Default;
|
|
|
(c)
|
the validity, legality or enforceability of any Facility Document or Project Document; or
|
|
|
(d)
|
the validity, legality or enforceability of any security expressed to be created pursuant to any Facility Document or Project Document or the
priority and ranking of any such security,
|
provided that, in determining whether any of the foregoing circumstances
shall constitute such a material adverse change or material adverse effect for the purposes of this definition, the Facility Beneficiaries shall consider such circumstance in the context of (x) the Group taken as a whole and (y) the
ability of the Security Parties to perform each of their obligations under the Facility Documents and Project Documents.
Month
means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that (i) if there is no numerically corresponding day in the calendar month in which that period is to
end, that period shall end on the last Banking Day in that calendar month and (ii) if the numerically corresponding day is not a Banking Day, that period shall end on the next Banking Day in that calendar month in which that period is to end if
there is one, or if there is not, on the immediately preceding Banking Day, and
Months
and
monthly
shall be construed accordingly.
Mortgage
means the first priority mortgage over the Vessel executed or to be executed by the Borrower in favour of the Facility
Security Trustee and registered or to be registered against the Vessel in accordance with all Applicable Laws in the Flag State, in the Agreed Form.
Necessary Authorisations
means all Authorisations of any person including any government or other regulatory authority required by
Applicable Law to enable it to:
|
|
(a)
|
lawfully enter into and perform its obligations under the Facility Documents to which it is party;
|
88
|
|
(b)
|
ensure the legality, validity, enforceability or admissibility in evidence in England, the governing law of such document and, if different, its
jurisdiction of incorporation, of such Facility Documents to which it is party; and
|
|
|
(c)
|
carry on its business from time to time.
|
Notices of Assignment
means each notice and (where applicable) corresponding acknowledgment of assignment in the form set out in the
relevant Appendix (Notices of Assignment) to the Pre-Delivery Assignment, the relevant Appendix (Notices of Assignment) to the Assignment, each other notice and (where applicable) corresponding acknowledgment of assignment issued pursuant to the
Assignment and/or the Bareboat Charterer Assignment and/or the Master Agreement Charge and each notice of assignment and (where applicable) corresponding acknowledgement of assignment issued pursuant to each other Facility Security Document.
Notified Lender
has the meaning given to it in clause 7.8.2(b) of this Agreement.
Operating Revenue
means all moneys payable as O&M Rates (as defined in the Operations Agreement) by QGEP to the Operator under and
pursuant to the Operations Agreement.
Operations Agreement
means the operations agreement dated 15 December 2014 between QGEP
and the Operator in relation to the Vessel, in the Agreed Form and at any time on or after the Operator Novation Date, including the Operator Novation Agreement.
Operator
means at any time prior to the Operator Novation Date, Teekay Petrojarl Produção Petrolífera de Brasil
Ltda., a company incorporated under the laws of Brazil with its registered office at Estrada São José e Imboassica, s/n, Suite 201, Edifício G-01, OSEP Brasil, Imboassica, Macaé, State of Rio de Janeiro, Brazil, enrolled
with Taxpayer Registry under No. 08.258.193/0001-97 and, at any time on or after the Operator Novation Date, Teekay Petrojarl I Serviços de Petróleo Ltda., a company incorporated under the laws of Brazil with its registered office
at Estrada São José e Imboassica, s/n, suite 201, edifício G-1, OSEP Brasil, Imboassica, Macae, Rio de Janeiro, CEP 27.925-540, Brazil.
Operator Novation Agreement
means the agreement pursuant to which all the rights and obligations of Teekay Produção
Petrolífera de Brasil Ltda. under the Operations Agreement are transferred to Teekay Petrojarl I Serviços de Petróleo Ltda., as agreed by QGEP.
Operator Novation Date
means the date upon which the Operator Novation Agreement becomes effective.
Operator Undertaking
means the subordination undertaking of the Operator in the form attached to the Deed of Covenants.
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.
Party
means a party to this Agreement.
Performance Bond
means the performance bond No. 9862 AK 25 dated 19 January 2015 issued by the Bond Guarantor in favour of
the Borrower, as amended by a Permitted Amendment.
Permitted Amendment
means any amendment permitted pursuant to the terms of the
Facility Documents.
Permitted Liens
means:
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|
(a)
|
any repairer’s or outfitter’s possessory lien for a sum in aggregate at any time not (except with the prior written consent of the
Facility Agent) exceeding ten million Dollars ($10,000,000);
|
89
|
|
(b)
|
any lien on the Vessel for master’s, officer’s or crew’s wages arising in accordance with usual maritime practice which are not
overdue; and
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|
|
(c)
|
any lien for salvage,
|
(each a
Permitted Lien
).
Permitted Security Interest
means:
|
|
(a)
|
any Security Interest created by the Facility Security Documents and any set-off rights granted under the Hedging Agreements;
|
|
|
(b)
|
any lien arising in the ordinary course of business or operation of the Vessel by statute or by operation of law in respect of obligations which
are not more than thirty (30) days overdue or which are being contested in good faith by appropriate proceedings (and for the payment of which adequate reserves have been provided) so long as any such proceedings or the continued existence of
such lien do not in the opinion of the Facility Agent involve any likelihood of the sale, forfeiture or loss of, or of any interest in, the Vessel or any Total Loss Proceeds;
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|
|
(c)
|
any Security Interest arising out of any claims, judgments, or awards against a Security Party which are being contested in good faith by that
Security Party or which are the subject of a pending appeal (and for the payment of which adequate reserves have been provided) so long as any such claims, judgments or awards or the continued existence of such Security Interest do not in the
reasonable opinion of the Facility Agent involve any likelihood of the sale, forfeiture or loss of, or of any interest in, the Vessel or any Total Loss Proceeds; and
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Pre-Delivery Assignment
means the first priority assignment and charge executed or to be executed by the Borrower in favour of the
Facility Security Trustee, in the Agreed Form.
Project Counterparties
means together:
|
|
(d)
|
the Charterer Guarantors; and
|
|
|
(e)
|
each other person who may from time to time replace any of the parties referred to above as party to any of the Project Documents,
|
(each a
Project Counterparty
).
Project Documents
means:
|
|
(a)
|
the Operations Agreement;
|
|
|
(b)
|
the Refurbishment Contract;
|
|
|
(c)
|
the Performance Bond;
|
|
|
(d)
|
the Refurbishment Guarantee;
|
90
|
|
(f)
|
the Bareboat Charter;
|
|
|
(g)
|
the Charterer Guarantees; and
|
|
|
(h)
|
any change orders or other deed, document, agreement or instrument amending, varying, supplementing, ratifying, confirming, extending or renewing
any of the foregoing documents or any of the terms and conditions thereof or consenting to the amendment or variation of the terms and conditions thereof,
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(each a
Project Document
).
Proportionate Share
means, at any time prior to an Advance being made, the proportion which a Facility Lender’s Commitment then
bears to the aggregate Commitments of all the Facility Lenders being on the date of this Agreement the percentage indicated against the name of that Facility Lender in Schedule 1 of this Agreement, and at any time after an Advance has been
made, the proportion which a Facility Lender’s Contribution then bears to the Loan.
Quarter Date
means (i) the date
falling three (3) Months subsequently to the Drawdown Date for the first Advance, (ii) each date falling three (3) Months subsequently to the previous Quarter Date, and (iii) each Application Date will also be a Quarter Date.
Quiet Enjoyment Undertaking
means the agreement executed or, as the context may require, to be executed by the Facility Security
Trustee in favour of, and acknowledged by, the Charterer and QGEP in relation to the Vessel, in the form attached to the Charter.
QGEP
means Queiroz Galvão Exploração e Produção S.A., of Av. Almirante Barroso, 52 -11º andar,
CEP: 20031-918, Rio de Janeiro, Brazil.
Rate of Exchange
means, in relation to a date, the last price of exchange for the purchase
of Euros with Dollars on that date published on the Bloomberg FX historical price table screen.
Rebalancing
means a rebalancing
pursuant to clause 3.12 of this Agreement.
Rebalancing Notice
means the written notice from the Borrower to the Facility Agent
specifying the calculation of the amounts (together with supporting invoices) of the Aggregate Dollar Equivalent Amount of the Contract Price, requesting a rebalancing pursuant to clause 3.12, and specifying the date upon which it should occur.
Receiver
means and includes any receiver and/or manager of the Facility Secured Property or any part thereof appointed under or
pursuant to any Facility Document (and whether acting as agent for any Facility Beneficiary or otherwise).
Reference Banks
means
in relation to LIBOR, any three (3) banks or financial institutions acceptable to the Facility Agent and the Borrower.
Reference
Bank Rate
means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks as the rate at which the relevant Reference Bank could borrow funds in the London
interbank market, in the relevant currency and 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.
Refurbishment Contract
means the contract entered into between the Builder and the Borrower in relation to the refurbishment of the
Vessel as further amended from time to time by a Permitted Amendment.
Refurbishment Costs
means (a) the Eligible Delivered
Costs but excluding (b) eighty five per cent. (85%) of the Contract Price and the Atradius Premium.
91
Refurbishment Guarantee
means the parent company guarantee dated 6 January 2015
executed by the Refurbishment Guarantor in favour of the Borrower, in the Agreed Form.
Refurbishment Guarantor
means B.V. Holding
Maatschappij Damen.
Related Company
in relation to any person means (i) any Subsidiary for the time being of such person,
(ii) any company or other entity of which such person is for the time being a Subsidiary, and (iii) any Subsidiary for the time being of any such person referred to in (ii) above.
Relevant Period
means (i) the period commencing on the earlier of (a) six Months after the Delivery Date and (b) the
Charter Date of Acceptance and ending on the first anniversary thereof, and (ii) each subsequent period commencing on the last day of the previous Relevant Period and ending on the first anniversary thereafter and (iii) the last Relevant
Period shall end on the fifth anniversary of the earlier of (a) six Months after the Delivery Date and (b) the Charter Date of Acceptance.
Repayment Amount
means, in relation to any Application Date, the repayment amounts set out in the Schedule of Repayment Amounts (or, if
none exists, in clause 5.1) in relation to that Application Date.
Requisition Compensation
means all sums of money or other
compensation from time to time payable during the Facility Security Period by reason of the Compulsory Acquisition of the Vessel.
Restricted Person
means a person that is:
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(a)
|
listed on, or directly, or so far as the Borrower is aware (but without responsibility to make specific inquiries) indirectly, owned or controlled
by a person listed on any Sanctions List;
|
|
(b)
|
located in, incorporated under the laws of, or directly, or so far as the Borrower is aware (but without responsibility to make specific inquiries)
indirectly, owned or controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide Sanctions); or
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|
(c)
|
otherwise a target of Sanctions.
|
Restricted Proceeds
means any Insurance Proceeds if the full amount of the same exceeds the Casualty Amount.
Revenue
means all moneys whatsoever from time to time due or payable to the Borrower arising out of the use or operation of the Vessel
including (but without limiting the generality of the foregoing) all Charter Rate, freight, hire and passage moneys, moneys arising under any charter contract, bareboat charter or other agreement between it and any operator, income, income arising
under pooling arrangements, compensation payable to the Borrower in the event of requisition of the Vessel for hire, remuneration for salvage and towage services, demurrage and detention moneys, and damages for breach of any such charterparty or
other contract for the employment of the Vessel.
Sanctions
means any economic or trade sanctions laws, regulations, embargoes or
restrictive measures administered, enacted or enforced by:
|
(a)
|
the United States government;
|
|
(d)
|
the Netherlands or Finland;
|
|
(e)
|
any country to which any Security Party is bound; or
|
|
(f)
|
the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control
of the US Department of Treasury (
OFAC
), the United States Department of State, and Her Majesty’s Treasury (
HMT
) (together
Sanctions Authorities
).
|
92
Sanctions List
means the “Specially Designated Nationals and Blocked Persons”
list issued by OFAC, the “Consolidated List of Financial Sanctions Targets and Investment Ban List” issued by HMT, or any similar list issued or maintained or made public by any of the Sanctions Authorities.
Schedule of Repayment Amounts
means at any time the latest Schedule of Repayment Amounts prepared pursuant to and in accordance with
clause 5 of this Agreement.
Screen Rate
means in relation to LIBOR, the ICE Benchmark Administration Limited Interest Settlement
Rate for the relevant currency and period displayed on the appropriate page of the Reuters page LIBOR 01 (or such other page or pages or service which replace(s) such page or service for the purposes of displaying offered rates of leading banks) for
deposits in Dollars.
Secured Property
means (i) the security, powers, rights, titles, benefits and interests (both present
and future, actual or contingent) constituted by and conferred upon the Facility Beneficiaries or any of them under or pursuant to the Facility Documents and any notices or acknowledgements or undertakings given in respect of or in connection with
any of the Facility Documents (including, without limitation, the benefit of all covenants, undertakings, representations, warranties and obligations given, made or undertaken to any Facility Beneficiary in the Facility Documents and any notices or
acknowledgements or undertakings given in respect of or in connection with any of the Facility Documents), (ii) all moneys and other assets paid or transferred to or vested in any Facility Beneficiary or any agent of any Facility Beneficiary or
any Insolvency Official or received or recovered by any Facility Beneficiary or any agent of any Facility Beneficiary or any Insolvency Official pursuant to, or in connection with, any of the Facility Documents and any notices or acknowledgements or
undertakings given in respect of or in connection with any of the Facility Documents, whether from any Security Party, any Project Counterparty or any other person, and (iii) all moneys, investments, and other assets at any time representing or
deriving from any of the foregoing, including all interest, income and other sums at any time received or receivable by any Facility Beneficiary or any agent of any Facility Beneficiary or any Insolvency Official in respect of the same (or any part
thereof).
Security
means any Security Interest created or purported to be created by any of the Facility Security Documents.
Security Interest
means any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment by way of security,
trust arrangement for the purpose of providing security or other security interest of any kind securing any obligation of any person or any other arrangement having the effect of conferring rights of retention or set-off (but excluding any right of
set-off arising in favour of a banker prior to such right becoming exercisable) or other disposal rights over an asset (including without limitation title transfer and/or retention arrangements having a similar effect) and includes any agreement to
create any of the foregoing but does not include liens arising in the ordinary course of trading by operation of law and not by way of contract.
Security Parties
means the Borrower, the Bareboat Charterer, the Operator, the Sponsor, the Shareholders and any other party which the
Borrower and the Facility Security Trustee agree (after the date of this Agreement) shall be a Security Party (each a
Security Party
).
Security Powers of Attorney
means:
|
(a)
|
in respect of the Borrower, the power of attorney coupled with security and issued or to be issued by the Borrower in favour of the Facility
Security Trustee, in the Agreed Form;
|
|
(b)
|
in respect of the Bareboat Charterer, the power of attorney coupled with security and issued or to be issued by the Bareboat Charterer in favour of
the Facility Security Trustee, in the Agreed Form; and
|
|
(c)
|
in respect of the Operator, the power of attorney coupled with security and issued or to be issued by the Operator in favour of the Facility
Security Trustee, in the Agreed Form,
|
93
and
Security Powers of Attorney
means all of them.
Shareholder
means, the case of the Borrower, the Borrower Shareholder and, in the case of the Bareboat Charterer, the Bareboat
Charterer Shareholder, and
Shareholders
means both of them.
SMC
means a valid safety management certificate issued for the
Vessel by or on behalf of the Administration under paragraph 13.7 of the ISM Code.
Sponsor
means TOO.
Subsidiary
means any company or entity directly or indirectly controlled by another person, for which purpose
control
means
either ownership of more than fifty per cent. (50%) of the voting share capital (or equivalent right of ownership) of such company or entity or power to direct its policies and management whether by contract or otherwise.
Swap Payment
means, in relation to a Hedging Agreement and an Interest Payment Date, the amount (if any) payable by the Borrower under
and pursuant to that Hedging Agreement on that Interest Payment Date in respect of the difference between interest calculated at the Fixed Rate applicable under that Hedging Agreement and interest calculated at the floating rate then applicable
under that Hedging Agreement in respect of the Interest Period ending on that Interest Payment Date (after giving effect to any contractual set-off and/or netting provisions contained in that Hedging Agreement), but shall exclude, for the avoidance
of doubt, any amount payable by the Borrower under that Hedging Agreement as a result or consequence of any termination of, or default under, that Hedging Agreement.
Taxes
includes all present and future taxes, levies, imposts, duties, fees or charges of a similar nature together with interest
thereon and penalties in respect thereof, and
Tax
and
Taxation
shall be construed accordingly.
Teekay
means Teekay
Corporation, a corporation domesticated according to the law of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands MH-96960.
TOO
means Teekay Offshore Partners L.P., a master limited partnership formed and existing according to the law of the Marshall Islands
whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands, MH-96960.
TOO
Group
means TOO and each of its Subsidiaries.
Total Atradius Facility Commitments
means the aggregate Atradius Facility
Commitments, being eighty eight million Dollars ($88,000,000) as at the date of this Agreement, and as adjusted pursuant to clause 3.12.
Total Commercial Facility Commitments
means the aggregate of the Commercial Facility Commitments, being ninety two million Dollars
($92,000,000) as at the date of this Agreement, and as adjusted pursuant to clause 3.12.
Total Commitments
means the Total
Atradius Facility Commitments and the Total Commercial Facility Commitments.
Total Loss
means:
|
|
(a)
|
the actual, constructive, arranged, agreed or compromised total loss of the Vessel; or
|
|
|
(b)
|
the requisition for title or compulsory acquisition, nationalisation or expropriation of the Vessel by or on behalf of any government or other
authority (other than by way of requisition for hire);
|
|
|
(c)
|
the capture, seizure, arrest, detention, hijacking, theft or confiscation of the Vessel unless the Vessel is released and returned to the
possession of the Borrower or the Bareboat Charterer within ninety (90) days after the capture, seizure, arrest, detention or confiscation in question.
|
94
Total Loss Proceeds
means any proceeds of the Insurances arising in respect of a Total
Loss and any Requisition Compensation received in respect of a Compulsory Acquisition.
Transaction Documents
means the Facility
Documents and the Project Documents (each a
Transaction Document
).
Transfer Certificate
means a certificate substantially
in the terms of Schedule 4 to this Agreement.
Transfer Date
means, in relation to any Transfer Certificate, the date of the making
of the transfer specified in the schedule to such Transfer Certificate.
Unpaid Sum
means any sum due and payable but unpaid by a
Security Party under the Facility Documents.
Unrestricted Proceeds
means all Insurance Proceeds other than Restricted Proceeds.
US Tax Obligor
means:
|
|
(a)
|
the Borrower if it is resident for tax purposes in the United States of America; or
|
|
|
(b)
|
a Security Party some or all of whose payments under the Facility Documents are from sources within the United States for US federal income tax
purposes.
|
Valuation
means one written valuation of the Vessel expressed in Dollars prepared by one of the
Approved Brokers (or such other firm of reputable independent shipbrokers as may be acceptable to the Majority Facility Lenders (acting reasonably)). Such valuation shall be prepared at the Borrower’s expense without a physical inspection, on
the basis of a sale for prompt delivery for cash at arm’s length between a willing buyer and a willing seller without the benefit of any charterparty or other engagement.
Vessel
means the floating production, storage and offloading system known as “Petrojarl I” as more particularly described in
the Charter and any and all appliances, spare parts, accessories, fittings, instruments, machinery, components, equipment and other facilities or materials allocated to, appropriated for, installed in, attached to or otherwise relating thereto.
95
Schedule 6
Budget
|
|
|
|
|
|
|
Damen Yard Cost
|
|
|
|
|
|
(1.10 FX)
|
|
|
98,928,310
|
|
|
FMV Petrojarl I
|
|
|
57,000,000
|
|
|
PMT / PFO
|
|
|
17,100,000
|
|
|
Procurement / Equipment
|
|
|
21,200,000
|
|
|
Transportation
|
|
|
2,500,000
|
|
|
Financing (Including ECA Premium)
|
|
|
7,785,192
|
|
|
Contingency
|
|
|
23,000,000
|
|
|
Success Fee to Teekay Corporation
|
|
|
2,100,000
|
|
|
|
|
|
|
|
|
|
|
|
229,613,502
|
|
|
|
|
|
|
|
96
Schedule 7
Form of Accession Deed
To:
[ ] as Facility Agent for and on behalf of the Facility Beneficiaries
From: [New Hedging Provider]
Dated:
Dear Sirs
ACCESSION DEED
|
1
|
We refer to the secured loan facility agreement (as from time to time amended, varied, supplemented or novated the
Loan Agreement
) dated
[●] 2015. This deed (the
Accession Deed
) shall take effect as an Accession Deed for the purposes of the Loan Agreement. Terms defined in the Loan Agreement have the same meaning in this Accession Deed unless given a different meaning in
this Accession Deed.
|
|
2
|
[New Hedging Provider] agrees to become a Hedging Provider and to be bound by the terms of the Loan Agreement and the other Facility Documents as a
Hedging Provider.
|
|
3
|
New Hedging Provider agrees to provide a copy of the Hedging Agreement to which it is a party to the Facility Agent.
|
|
4
|
[New Hedging Provider] administrative details for the purposes of the Loan Agreement are as follows:
|
Address:
Fax No.:
Attention:
IT IS AGREED
as follows:
|
|
(a)
|
The [New Hedging Provider] and each of the Facility Beneficiaries agree that the Facility Security Trustee shall hold:
|
|
|
(i)
|
any Security in respect of Facility Secured Obligations created or expressed to be created pursuant to the Facility Documents; and
|
|
|
(ii)
|
all proceeds of that Security,
|
on trust for the Facility Beneficiaries (including the [New Hedging Provider]) on the terms and conditions contained in the
Agreement.
|
|
(b)
|
The [New Hedging Provider] appoints the Facility Agent as its agent and the Facility Security Trustee as its trustee on the terms of, and in
accordance with, clause 15 of the Loan Agreement.
|
|
5
|
[New Hedging Provider] acknowledges that pursuant to the Master Agreement Charge, it has received notice that the Borrower has assigned and charged
its rights, title and interest in and to the Hedging Agreements in favour of the Facility Security Trustee acting on behalf of the Facility Beneficiaries and agrees to comply with the instructions contained in the notice attached to the Master
Agreement Charge.
|
97
|
6
|
This Accession Deed is a Facility Document.
|
|
7
|
This Accession Deed and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in
accordance with, English law.
|
THIS ACCESSION DEED
has been signed on behalf of the Facility Agent and executed
as a deed by [
New Hedging Provider
] and is delivered on the date stated above.
New Hedging Provider
|
|
|
|
|
|
|
[
EXECUTED
as a
DEED
|
|
)
|
|
|
|
|
|
|
|
By: [New Hedging Provider]
|
|
)
|
|
|
|
|
|
|
|
Witnessed by:
|
|
|
|
|
|
|
|
|
|
Facility Agent
|
|
|
|
|
|
|
|
|
|
[
EXECUTED
as a
DEED
|
|
)
|
|
|
|
|
|
|
|
By: [Facility Agent]
|
|
)
|
|
|
|
|
|
|
|
Witnessed by:
|
|
|
|
|
98
IN WITNESS
of which the parties to this Agreement have executed this Agreement the day and
year first before written.
|
|
|
|
|
|
|
|
|
Borrower
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED by
|
|
)
|
|
|
|
Patrick Smith
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Attorny-in-fact
|
|
of
PETROJARL I L.L.C.
|
|
)
|
|
|
|
|
|
|
|
|
|
Commercial Facility Lenders
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Attorny-in-fact
|
|
of
ABN AMRO CAPITAL USA LLC
|
|
)
|
|
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
Daniel O’Connor
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Managing Director
|
|
of
SANTANDER BANK, N.A.
|
|
)
|
|
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Attorny-in-fact
|
|
of
NORDEA BANK FINLAND PLC,
|
|
)
|
|
|
|
|
NEW YORK BRANCH
|
|
)
|
|
|
|
|
|
|
|
|
|
|
Atradius Facility Lenders
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Attorny-in-fact
|
|
of
ABN AMRO CAPITAL USA LLC
|
|
)
|
|
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
Daniel O’Connor
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Managing Director
|
|
of
SANTANDER BANK, N.A.
|
|
)
|
|
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Attorny-in-fact
|
|
of
NORDEA BANK FINLAND PLC,
|
|
)
|
|
|
|
|
NEW YORK BRANCH
|
|
)
|
|
|
|
|
|
|
|
|
|
|
Facility Agent
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Attorny-in-fact
|
|
of
ABN AMRO CAPITAL USA LLC
|
|
)
|
|
|
|
99
|
|
|
|
|
|
|
|
|
Facility Security Trustee
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Attorney-in-fact
|
|
of
ABN AMRO CAPITAL USA LLC
|
|
)
|
|
|
|
|
|
|
|
|
|
ECA Agent
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Attorney-in-fact
|
|
of
ABN AMRO BANK N.V.
|
|
)
|
|
|
|
|
|
|
|
|
|
Mandated Lead Arrangers
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Attorney-in-fact
|
|
of
ABN AMRO CAPITAL USA LLC
|
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by
duly authorised for and on behalf
|
|
)
)
|
|
|
|
of
BANCO SANTANDER S.A.
|
|
)
|
|
Jose Luis Diaz Cassou
|
|
Francisco Verdugo Muñoz
Vice President
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
|
|
|
of
NORDEA BANK FINLAND PLC,
|
|
)
|
|
|
Attorney-in-fact
|
|
NEW YORK BRANCH
|
|
)
|
|
|
|
|
|
|
|
|
|
Bookrunner
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNED
by
|
|
)
|
|
|
|
|
|
duly authorised for and on behalf
|
|
)
|
|
|
Attorney-in-fact
|
|
of
ABN AMRO CAPITAL USA LLC
|
|
)
|
|
|
|
100
Exhibit 2.4
EXECUTION VERSION
TAKING THIS
DOCUMENT OR ANY CERTIFIED COPY HEREOF OR ANY OTHER SIGNED DOCUMENT CONTAINING A WRITTEN CONFIRMATION OF OR REFERENCE TO THE TRANSACTIONS CONTEMPLATED HEREIN INTO AUSTRIA, OR SENDING ANY EMAIL COMMUNICATION CARRYING AN ELECTRONIC SIGNATURE TO WHICH A
PDF-SCAN
OF THIS DOCUMENT IS ATTACHED OR WHICH OTHERWISE REFERS TO THE TRANSACTIONS HEREIN TO OR FROM AUSTRIA MAY TRIGGER THE IMPOSITION OF AUSTRIAN STAMP DUTY.
ACCORDINGLY, KEEP THIS DOCUMENT AS WELL AS ALL CERTIFIED COPIES HEREOF AND ANY OTHER SIGNED DOCUMENT CONTAINING A REFERENCE TO THE
TRANSACTIONS CONTEMPLATED HEREIN OUTSIDE OF AUSTRIA AND AVOID SENDING ANY EMAIL COMMUNICATION CARRYING AN ELECTRONIC SIGNATURE TO WHICH A
PDF-SCAN
OF THIS DOCUMENT IS ATTACHED OR WHICH OTHERWISE REFERS TO THE
TRANSACTIONS HEREIN TO OR FROM AUSTRIA.
Dated July 31, 2015
Credit Agreement
between
OOGTK Libra GmbH & Co KG
as Borrower
Various Financial
Institutions
as Lenders
HSBC Bank USA, National Association
as Facility Agent
HSBC Bank
USA, National Association
as Collateral Agent
Table of Contents
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
Section 1. Definitions and Rules of Interpretation
|
|
|
1
|
|
|
1.1
|
|
Defined Terms
|
|
|
1
|
|
|
1.2
|
|
Rules of Interpretation
|
|
|
1
|
|
|
1.3
|
|
Accounting Principles
|
|
|
1
|
|
|
1.4
|
|
Currency
|
|
|
1
|
|
|
|
|
|
Section 2. Commitments and Loans
|
|
|
2
|
|
|
2.1
|
|
The Loans
|
|
|
2
|
|
|
2.2
|
|
Notice of Borrowing
|
|
|
2
|
|
|
2.3
|
|
Pro Rata Borrowings; Availability; Advance Working Capital Disbursement; Final Disbursement Amount
|
|
|
2
|
|
|
2.4
|
|
Minimum Amount and Maximum Number of Borrowings, Etc.
|
|
|
3
|
|
|
2.5
|
|
Disbursement of Funds
|
|
|
4
|
|
|
2.6
|
|
Interest
|
|
|
5
|
|
|
2.7
|
|
Net Payments
|
|
|
5
|
|
|
2.8
|
|
Illegality
|
|
|
8
|
|
|
2.9
|
|
Increased Costs and Reduction of Return
|
|
|
8
|
|
|
2.10
|
|
Funding Losses
|
|
|
10
|
|
|
2.11
|
|
Inability to Determine Rates; Market Disruption
|
|
|
10
|
|
|
2.12
|
|
Survival
|
|
|
12
|
|
|
2.13
|
|
Replacement of Lenders; Prepayment
|
|
|
12
|
|
|
2.14
|
|
Defaulting Lenders
|
|
|
12
|
|
|
|
|
|
Section 3. Conditions Precedent
|
|
|
13
|
|
|
3.1
|
|
Conditions to First Disbursement
|
|
|
13
|
|
|
3.2
|
|
Conditions to All Loans
|
|
|
18
|
|
|
3.3
|
|
Project Completion Date
|
|
|
21
|
|
|
|
|
|
Section 4. Representations, Warranties and Agreements
|
|
|
23
|
|
|
4.1
|
|
Organization; Ownership
|
|
|
23
|
|
|
4.2
|
|
Authority and Consents
|
|
|
24
|
|
|
4.3
|
|
Capitalization; Indebtedness; Investments
|
|
|
24
|
|
|
4.4
|
|
Financial Condition
|
|
|
25
|
|
|
4.5
|
|
Litigation; Labor Disputes
|
|
|
25
|
|
|
4.6
|
|
Governmental Approvals
|
|
|
25
|
|
|
4.7
|
|
Use of Proceeds
|
|
|
26
|
|
|
4.8
|
|
Taxes
|
|
|
26
|
|
|
4.9
|
|
Title; Security Documents
|
|
|
26
|
|
|
4.10
|
|
Environmental and Social Matters
|
|
|
27
|
|
|
4.11
|
|
Subsidiaries
|
|
|
27
|
|
|
4.12
|
|
Intellectual Property
|
|
|
27
|
|
|
4.13
|
|
Project Documents
|
|
|
27
|
|
|
4.14
|
|
No Default
|
|
|
28
|
|
|
4.15
|
|
Compliance with Laws
|
|
|
28
|
|
|
4.16
|
|
Disclosure
|
|
|
28
|
|
|
4.17
|
|
Immunity
|
|
|
29
|
|
|
4.18
|
|
Transactions with Affiliates
|
|
|
29
|
|
|
4.19
|
|
Commercial Operation Date; Change Orders
|
|
|
29
|
|
|
4.20
|
|
Single-Purpose
Entity; Centre of Main Interests
|
|
|
29
|
|
(i)
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
4.21
|
|
Availability and Transfer of Foreign Currency
|
|
30
|
|
4.22
|
|
Ranking
|
|
30
|
|
4.23
|
|
Restricted Parties; Sanctions;
Anti-Money
Laundering; Anti-Corruption
|
|
30
|
|
|
|
|
Section 5. Covenants
|
|
30
|
|
5.1
|
|
Financial Statements and Other Information
|
|
30
|
|
5.2
|
|
Other Notices
|
|
32
|
|
5.3
|
|
Maintenance of Existence; Conduct of Business; Centre of Main Interest
|
|
34
|
|
5.4
|
|
Compliance with Laws
|
|
34
|
|
5.5
|
|
Payment of Taxes, Etc.
|
|
34
|
|
5.6
|
|
Accounting and Financial Management
|
|
35
|
|
5.7
|
|
Inspection
|
|
35
|
|
5.8
|
|
Governmental Approvals
|
|
36
|
|
5.9
|
|
Insurance
|
|
37
|
|
5.10
|
|
Events of Loss
|
|
40
|
|
5.11
|
|
Application of Loss Proceeds
|
|
40
|
|
5.12
|
|
Limitation on Liens
|
|
42
|
|
5.13
|
|
Indebtedness
|
|
42
|
|
5.14
|
|
Leases
|
|
43
|
|
5.15
|
|
Investments; Subsidiaries
|
|
43
|
|
5.16
|
|
Distributions
|
|
43
|
|
5.17
|
|
Required Hedging Agreements
|
|
44
|
|
5.18
|
|
Financial Covenant; Maintenance of Reserves
|
|
45
|
|
5.19
|
|
Transactions with Affiliates
|
|
45
|
|
5.20
|
|
Construction Milestones; Capex Budget
|
|
45
|
|
5.21
|
|
Project Construction; Maintenance
|
|
46
|
|
5.22
|
|
Performance of Project Documents
|
|
47
|
|
5.23
|
|
Operating Plan
|
|
47
|
|
5.24
|
|
Merger; Sales and Purchases of Assets
|
|
47
|
|
5.25
|
|
Amendment of Transaction Documents; Additional Project Documents; Change Orders; Project Party Replacement, Etc.
|
|
48
|
|
5.26
|
|
Environmental and Social Compliance
|
|
49
|
|
5.27
|
|
Completion; Acceptance Tests; Project Completion Date
|
|
49
|
|
5.28
|
|
Certain Agreements
|
|
49
|
|
5.29
|
|
Security Documents
|
|
49
|
|
5.30
|
|
Prepayment of Indebtedness; Reduction of Commitments
|
|
51
|
|
5.31
|
|
Transfers of Equity Interests
|
|
51
|
|
5.32
|
|
Change in Name
|
|
52
|
|
5.33
|
|
Ranking
|
|
52
|
|
5.34
|
|
Payments to the EPC Contractor
|
|
52
|
|
5.35
|
|
“Know Your Customer” Checks
|
|
52
|
|
5.36
|
|
Registration; Classification
|
|
53
|
|
5.37
|
|
Title
|
|
53
|
|
5.38
|
|
Arrest Prevention; Release
|
|
53
|
|
5.39
|
|
Bridge Loan Repayment
|
|
53
|
|
5.40
|
|
Sanctions
|
|
53
|
|
5.41
|
|
Advisory Board
|
|
54
|
(ii)
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
Section 6. Payment Provisions; Fees
|
|
54
|
|
6.1
|
|
Repayment of Principal
|
|
54
|
|
6.2
|
|
Voluntary Prepayments
|
|
54
|
|
6.3
|
|
Mandatory Prepayments
|
|
55
|
|
6.4
|
|
Maturity Date
|
|
56
|
|
6.5
|
|
Method and Place of Payment
|
|
56
|
|
6.6
|
|
Computations
|
|
57
|
|
6.7
|
|
Fees
|
|
57
|
|
6.8
|
|
Application of Payments; Sharing
|
|
57
|
|
6.9
|
|
Calculations and Certificates
|
|
58
|
|
|
|
|
Section 7. Events of Default and Remedies
|
|
58
|
|
7.1
|
|
Events of Default
|
|
58
|
|
7.2
|
|
Acceleration
|
|
62
|
|
7.3
|
|
Other Remedies
|
|
62
|
|
|
|
|
Section 8. The Facility Agent
|
|
62
|
|
8.1
|
|
Appointment and Authorization
|
|
62
|
|
8.2
|
|
Delegation of Duties
|
|
63
|
|
8.3
|
|
Liability of the Facility Agent
|
|
63
|
|
8.4
|
|
Reliance by the Facility Agent
|
|
64
|
|
8.5
|
|
Notice of Default
|
|
64
|
|
8.6
|
|
Credit Decision
|
|
64
|
|
8.7
|
|
Indemnification of the Facility Agent
|
|
65
|
|
8.8
|
|
Facility Agent in its Individual Capacity
|
|
65
|
|
8.9
|
|
Successor Agents
|
|
66
|
|
8.10
|
|
Registry
|
|
66
|
|
8.11
|
|
Force Majeure
|
|
66
|
|
8.12
|
|
Deductions from Amounts Payable by the Facility Agent
|
|
66
|
|
|
|
|
Section 9. Miscellaneous
|
|
67
|
|
9.1
|
|
Costs and Expenses
|
|
67
|
|
9.2
|
|
Indemnity
|
|
67
|
|
9.3
|
|
Notices; Disclosure
|
|
69
|
|
9.4
|
|
Benefit of Agreement
|
|
70
|
|
9.5
|
|
No Waiver; Remedies Cumulative
|
|
70
|
|
9.6
|
|
No Third Party Beneficiaries
|
|
70
|
|
9.7
|
|
Reinstatement
|
|
70
|
|
9.8
|
|
No Immunity
|
|
70
|
|
9.9
|
|
Judgment Currency
|
|
71
|
|
9.10
|
|
Hedge Guarantors
|
|
71
|
|
9.11
|
|
Counterparts; Providing Copies to Austrian Authorities and Courts
|
|
71
|
|
9.12
|
|
Amendment or Waiver; Voting
|
|
72
|
|
9.13
|
|
Assignments, Participations, Etc.
|
|
73
|
|
9.14
|
|
Survival
|
|
75
|
|
9.15
|
|
Parallel Debt
|
|
75
|
|
9.16
|
|
Right of
Set-Off
|
|
76
|
|
9.17
|
|
Severability
|
|
77
|
|
9.18
|
|
Domicile of Loans
|
|
77
|
|
9.19
|
|
Governing Law; Submission to Jurisdiction
|
|
77
|
|
9.20
|
|
Complete Agreement
|
|
77
|
|
9.21
|
|
Patriot Act
|
|
78
|
|
9.22
|
|
English Language
|
|
78
|
|
9.23
|
|
Place of Performance
|
|
78
|
|
9.24
|
|
Acknowledgment of Appointment of Collateral Agent and Accounts Banks
|
|
78
|
(iii)
|
|
|
|
|
|
|
|
|
|
|
APPENDICES
:
|
|
|
|
|
|
|
|
|
|
Appendix A
|
|
—
|
|
Defined Terms and Rules of Interpretation
|
|
Appendix B
|
|
—
|
|
Repayment Schedule
|
|
Appendix C
|
|
—
|
|
Insurance Provisions
|
|
|
|
|
|
SCHEDULES
:
|
|
|
|
|
|
Schedule 4.2
|
|
—
|
|
Financing-Related
Filings, Etc.
|
|
Schedule 4.3
|
|
—
|
|
Capitalization
|
|
Schedule 4.6
|
|
—
|
|
Necessary Governmental Approvals
|
|
Schedule 5.20
|
|
—
|
|
Construction Milestones
|
|
|
|
|
|
EXHIBITS
:
|
|
|
|
|
|
Exhibit A
|
|
—
|
|
Form of Notice of Borrowing
|
|
Exhibit B
|
|
—
|
|
Form of Technical Advisor’s Certificate
|
|
Exhibit C-1
|
|
—
|
|
Form of Borrower Completion Certificate
|
|
Exhibit C-2
|
|
—
|
|
Form of Technical Advisor Completion Certificate
|
|
Exhibit D-1
|
|
—
|
|
Form of Construction Management Agreement
|
|
Exhibit D-2
|
|
—
|
|
Form of Asset Maintenance Agreement
|
|
Exhibit D-3
|
|
—
|
|
Form of Specialized Oil Industry Services Agreement
|
|
Exhibit D-4
|
|
—
|
|
Form of Secondment Agreement
|
|
Exhibit E
|
|
—
|
|
Form of Transfer Certificate
|
|
Exhibit F
|
|
—
|
|
[Reserved]
|
|
Exhibit G
|
|
—
|
|
Form of Operating Plan
|
|
|
|
|
|
ANNEXES
:
|
|
|
|
|
|
Annex I
|
|
—
|
|
Commitments
|
|
Annex II
|
|
—
|
|
Applicable Lending Offices
|
|
Annex III
|
|
—
|
|
Notice Addresses
|
(iv)
CREDIT AGREEMENT (this “
Agreement
”), dated as of July 31,
2015, among (a) OOGTK LIBRA GMBH & CO KG, a limited partnership (
Kommanditgesellschaft
) organized and existing under the laws of Austria, registered with the Austrian companies register (
Firmenbuch
) under the registration
number FN 423769 s (the “
Borrower
”), (b) the financial institutions from time to time party hereto as Lenders, (c) HSBC BANK USA, NATIONAL ASSOCIATION, as Facility Agent, and (d) HSBC BANK USA, NATIONAL
ASSOCIATION, as Collateral Agent.
W
I
T
N
E
S
S
E
T
H
:
WHEREAS the Borrower has been organized to arrange the engineering, procurement, conversion, construction, completion and
ownership of an external turret, extended well test floating production, storage and offloading unit (the “
FPSO
”), all as more fully described in the Project Documents, to be chartered to Petrobras, in its capacity as the leader and
operator of the Consortium, under the Charter Agreement;
WHEREAS the Borrower is a party to the Construction Contracts
relating to the construction of the FPSO;
WHEREAS in order to enable the Borrower to pay certain Project Costs, the
Borrower has requested the Lenders to provide the credit facilities described herein; and
WHEREAS the Lenders are willing
to provide the credit facilities described herein upon the terms and conditions herein set forth.
NOW, THEREFORE, in
consideration of the premises and mutual agreements hereinafter contained, the parties hereto agree as follows:
Section 1. Definitions and Rules of Interpretation
1.1 Defined Terms
. Except as otherwise expressly provided herein, capitalized terms used in this Agreement (including
in the recitals above) and its Appendices, Schedules and Exhibits shall have the respective meanings assigned to such terms in
Appendix A
hereto.
1.2 Rules of Interpretation
. Except as otherwise expressly provided herein, the rules of interpretation set forth in
Appendix A
hereto shall apply to this Agreement.
1.3 Accounting Principles
. Except as otherwise
provided in this Agreement, all computations and determinations as to financial matters, and all financial statements to be delivered by the Borrower under this Agreement shall be made or prepared in accordance with the Accounting Principles
(including principles of consolidation where appropriate) applied on a consistent basis (except to the extent approved or required by the independent public accountants certifying such statements and disclosed therein).
1.4 Currency
. To the extent that the determination of compliance with any provision hereof or any other Financing
Document (other than the Required Hedging Agreements) requires the conversion of one currency into another, then such conversion shall be made:
(a) in the case of Dollars and Reais, based upon the Dollar Equivalent of the amount of Reais, or the Reais
Equivalent of the amount of Dollars, as the case may be; or
(b) in the case of any other currency, based on the spot rate at
which such currency is offered for sale to the Facility Agent at approximately 10:00 a.m. (New York City time) on the date of determination thereof (and if for any reason such spot rate cannot be so determined, the Facility Agent shall
determine a rate of exchange on such basis as the Facility Agent (acting reasonably) deems fair and equitable in consultation with the Borrower), as determined on the date of each respective incurrence, creation, sale, transfer, disposition,
expenditure or other similar event, as the case may be, pursuant to the applicable provision.
Section 2.
Commitments and Loans
2.1 The Loans
. (a) Subject to and upon the terms and conditions set forth herein,
each Lender severally agrees to make, from time to time during the Availability Period, loans (each a “
Loan
” and, collectively, the “
Loans
”) to the Borrower, which Loans shall (i) be made and maintained in
Dollars, (ii) not exceed for any Lender, in aggregate principal amount, that amount which equals the Commitment of such Lender and (iii) mature on the Maturity Date.
(b) The Loans are available only on the terms and conditions specified hereunder, and once repaid, in whole or in part, at
maturity or by prepayment, may not be reborrowed in whole or in part.
(c) The Borrower agrees that the Loans will be
applied only to (i) repay the Indebtedness under the Bridge Loan Agreement and (ii) finance (x) Eligible IDC and fees accruing on the Loans during the Availability Period specified herein, and (y) other Project Costs.
(d) The parties hereto agree that (i) the obligations of each of the Financing Parties hereunder are several and not
joint and no Financing Party shall be responsible for the failure of any other Financing Party to satisfy its obligations hereunder or under any other Transaction Document and (ii) the rights and interests of each of the Financing Parties
hereunder are several and the amounts due to each constitute a separate and independent debt.
2.2 Notice of
Borrowing
. Whenever the Borrower desires to make a Borrowing pursuant to
Section 2.1
, it shall give the Facility Agent at its Notice Office at least (a) three (3) Business Days’ prior written notice of the proposed
date of the Borrowing in respect of the first Disbursement and (b) four (4) Business Days’ prior written notice of the proposed date of the Borrowing in respect of each subsequent Disbursement;
provided
, that any such notice
shall be deemed to have been given on a certain day only if given before 1:00 p.m. (New York City time). If such notice is given to the Facility Agent after 1:00 p.m. (New York City time) on a particular Business Day, such notice shall be deemed to
have been given on the next Business Day. Each such notice (a “
Notice of Borrowing
”) shall be irrevocable and shall be given by the Borrower substantially in the form of
Exhibit A
hereto, appropriately completed to
specify (i) the aggregate principal amount of the Loans to be made pursuant to such Borrowing and (ii) the date of such Borrowing (which shall be a Business Day during the Availability Period). Following the receipt of a Notice of
Borrowing, the Facility Agent shall promptly give each Lender notice of the proposed Borrowing, of such Lender’s proportionate share thereof and of the other matters required by the immediately preceding sentence to be specified in the Notice
of Borrowing.
2.3 Pro Rata Borrowings; Availability; Advance Working Capital Disbursement; Final Disbursement
Amount
. (a) Each Borrowing of Loans shall occur during the Availability Period and be incurred ratably among the Lenders based upon the amount of their respective Unutilized Commitments. It is agreed that, subject to the satisfaction of
applicable conditions precedent, each Lender shall be obligated to make the Loans provided to be made by it hereunder regardless of the failure of any other Lender to make a Loan hereunder.
(b) Any portion of the Commitment of any Lender not utilized during the Availability Period shall be cancelled and the Total
Commitment shall be reduced accordingly.
2
(c) The Borrower may include, in the Notice of Borrowing for the Shipyard
Delivery Date Loans and/or in any subsequent Notice of Borrowing, a request for a Disbursement (an “
Advance Working Capital Disbursement
”) for an amount to be applied, together with Equity Contributions in an amount of not less than
the amount required to satisfy the requirements of Section 3.2(e), to pay Operation and Maintenance Expenses as set forth in the Capex Budget under the “Working Capital” item incurred during and in connection with the start up and
operation of the Facilities (“
Advance Working Capital Expenses
”). Advance Working Capital Disbursements shall not exceed in aggregate, together with Equity Contributions in an amount as required to satisfy the requirements of
Section 3.2(e), seven million, two hundred thousand Dollars ($7,200,000) (the “
Advance Working Capital Amount
”). Each Advance Working Capital Disbursement shall be applied to Advance Working Capital Expenses which, as of the
date of such Notice of Borrowing, are (x) due and payable, or (y) have been or will be incurred and will become due and payable within sixty (60) days after the Commercial Operation Date. In the event that the Advance Working Capital
Amount has not been fully utilized for Advance Working Capital Expenses following the expiry of the date falling sixty (60) days after the Commercial Operation Date, any remaining amounts may be utilized for other Project Costs before the
earlier of (i) the date falling six (6) months after the Commercial Operation Date and (ii) the Project Completion Date,
provided
that if any amounts remain unutilized after such date, such amounts shall be applied by the
Borrower to prepay the Loans in accordance with
Sections 6.3(f)
and
6.3(g)
on the next Interest Payment Date.
(d) With respect to the final Disbursement of the Loans, the Borrower may include in the relevant Notice of Borrowing a
request for a Borrowing for an amount to be applied, together with Equity Contributions in an amount of not less than the amount required to satisfy the requirements of
Section 3.2(e)
, to pay, in the following order of priorities:
(i)
first
, Project Costs (other than those referred to in clause (ii) below) which as of the date of such Notice of Borrowing are (x) due and payable, (y) have been incurred and will become due and payable within one
hundred and twenty (120) days after the end of the Availability Period (including Accrued Construction Period Interest), or (z) have not yet been incurred but are estimated by the Borrower, in good faith, as necessary to complete any
remaining Punch List items, the amount of which cannot be ascertained as of the date of such Notice of Borrowing but which is payable within one hundred and twenty (120) days after the end of the Availability Period;
provided
that such
estimate shall be confirmed by the Technical Advisor (in addition to its certificate required under
Section 3.2(a)(ii)
); and (ii)
second
, to the extent any Commitments remain unutilized after amounts are drawn for payments
under clause (i) above, the Petrobras Net Delay LD Amounts, estimated by the Borrower in good faith and in accordance with the terms of the Charter Agreement, Services Agreement and EPC Contract, and without regard to any claims or potential
claims by the Borrower or the Operator for excused delays due to force majeure or other circumstances or events, any possible claims for
set-off,
or any other reductions but taking into account any legally
binding agreement reached with Petrobras in connection with the Petrobras Delay LD Amounts.
(e) In the event that any
Disbursement amounts under clause (i) of
Section 2.3(d)2.3(c)
have not been utilized for Project Costs as contemplated in such clause before the earlier of (i) the date falling six (6) months after the Commercial Operation
Date and (ii) the Project Completion Date, such unutilized amount shall be applied by the Borrower to prepay the Loans in accordance with
Sections 6.3(f)
and
6.3(g)
on the next Interest Payment Date.
(f) In the event that any Disbursement amounts under clause (ii) of
Section 2.3(d)
remain unutilized
following the settlement in full of the Petrobras Net Delay LD Amounts, such unutilized amount shall be applied by the Borrower to prepay the Loans in accordance with
Sections 6.3(f)
and
Section 6.3(g)
on the next Interest
Payment Date.
2.4 Minimum Amount and Maximum Number of Borrowings, Etc
. (a) The aggregate principal amount of
each Borrowing (i) shall not be less $1,000,000 (excluding any Borrowing for the payment of Eligible IDC) and (ii) shall not exceed the aggregate amount of the Unutilized Commitments for all Lenders;
provided
that following the
issuance of any Notice of Borrowing, no further Borrowing may be requested until the Disbursement of the previously requested Borrowing is made.
3
(b) The Borrower may not make more than two (2) Borrowings per calendar
month during the Availability Period, without taking into account for purposes of such limitation any Borrowing made in accordance with
Section 2.5(c)
.
2.5 Disbursement of Funds
. (a) Subject to the terms and conditions hereof, no later than 11:00 a.m. (New York
City time) on the relevant Disbursement Date, each Lender will make available, through such Lender’s Applicable Lending Office, its
pro rata
portion of the aggregate amount of the Loans requested to be made on such date, in Dollars and
in immediately available funds at the Payment Office of the Facility Agent. The Facility Agent will deposit the aggregate of the amounts so made available by the Lenders into the Offshore Construction Account.
(b) Unless the Facility Agent shall have been notified by any Lender prior to the relevant Disbursement Date that such Lender
does not intend to make available to the Facility Agent such Lender’s portion of the Borrowing on such date, the Facility Agent may assume that such Lender has made such amount available to the Facility Agent on such date, and the Facility
Agent may (but shall have no obligation to), in reliance upon such assumption, make available to the Borrower a corresponding amount;
provided
that the Facility Agent shall notify the Borrower and the Lenders promptly following the Facility
Agent’s becoming aware that any Lender does not intend to make or has not made available to the Facility Agent such Lender’s portion of the Borrowing on such date. If, having made such corresponding amount available to the Borrower, such
corresponding amount is not in fact made available to the Facility Agent by such Lender, the Facility Agent shall be entitled to recover such corresponding amount from such Lender on demand. If such Lender does not pay such corresponding amount
forthwith upon the Facility Agent’s demand therefor, the Facility Agent shall promptly notify the Borrower, and the Borrower shall promptly repay such corresponding amount received by it to the Facility Agent. The Facility Agent shall also be
entitled to recover on demand from such Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Facility Agent to the Borrower until
the date such corresponding amount is recovered by the Facility Agent, at a rate
per annum
equal to (i) if such amount is recovered from such Lender, the cost to the Facility Agent of acquiring overnight federal funds at the then
applicable rate, and (ii) if such amount is recovered from the Borrower, the then applicable rate of interest in respect of the Loans as provided herein, it being understood that the then applicable rate of interest shall exclude any default
interest that may otherwise be due and payable. Nothing in this
Section 2.5
shall be deemed to relieve any Lender from its obligation to make a Loan hereunder or to prejudice any rights which the Borrower may have against any Lender as a
result of any failure by such Lender to make Loans hereunder.
(c) In the event that on or before 11:00 a.m. (New
York City time) on the third (3
rd
) Business Day prior to any Interest Payment Date the Borrower has not submitted a Notice of Borrowing for Loans to be made for the payment of Eligible IDC
due on such Interest Payment Date pursuant to
Section 2.6
, the Borrower hereby irrevocably and unconditionally requests, authorizes and directs each Lender to make a Loan to the Borrower in the amount of its
pro rata
portion of
such Eligible IDC without the need for any further authority or direction from the Borrower. The Lenders will not be required to pay any such Loans to the Borrower, but shall apply the proceeds thereof in payment of the Eligible IDC due on the
relevant Interest Payment Date, and each Lender will be deemed to have advanced its
pro rata
portion of such Loans to the Borrower and the Borrower will be deemed to have paid, to the extent of such Loans made, the Eligible IDC due on the
relevant Interest Payment Date;
provided
that no such Loans shall be deemed to have been made by such Lender (i) after the end of the Availability Period or (ii) to the extent that after giving effect to such Loans, the aggregate
principal amount of all Loans disbursed by such Lender hereunder would exceed such Lender’s Commitment.
4
2.6 Interest
. (a) The Borrower agrees to pay interest in respect of
the outstanding principal amount of each Loan from the date of Borrowing thereof until the maturity of such Loan (whether by acceleration or otherwise) at a rate
per annum
which shall, during each Interest Period applicable thereto, be equal
to the sum of (i) the Eurodollar Rate determined in accordance with
Section 2.6(d)
for such Interest Period, (ii) any Market Disruption Margin (if applicable), and (iii) the Applicable Margin.
(b) Overdue principal and, to the extent permitted by Law, overdue interest in respect of each Loan and any other overdue
amount payable by the Borrower hereunder or under any other Financing Document (other than the Required Hedging Agreements) shall bear interest at a rate (the “
Default Rate
”) which is equal to the sum of (i) the Eurodollar Rate
in effect from time to time under this Agreement with respect to such Loans, (ii) any Market Disruption Margin (if applicable), (iii) the Applicable Margin and (iv) two percent (2%)
per annum
, with such interest to be
payable on demand from the Facility Agent, acting on the instructions of any Lender, such Default Rate to apply from the due date of such overdue principal, interest or other amount.
(c) Accrued (and theretofore unpaid) interest on each Loan shall be payable (i) on each Interest Payment Date and
(ii) on any repayment or prepayment (on the amount repaid or prepaid), at maturity (whether by acceleration or otherwise) and, after such maturity, on demand. Notwithstanding the foregoing, interest payable in accordance with
Section 2.6(b)
shall be payable as provided therein.
(d) On each Interest Determination Date, the Facility
Agent shall determine the Eurodollar Rate for the applicable Interest Period to be applicable to the Loans or to any portion thereof and shall promptly notify the Borrower and the Lenders thereof. Each such determination shall, absent manifest
error, be final and conclusive and binding on all parties hereto.
2.7 Net Payments
. (a) All payments made by
the Borrower hereunder or under any other Financing Document will be made without
set-off
(except as provided in
Section 9.16(b)
), counterclaim or other defense. All such payments will be made free
and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein (“
Taxes
”) with respect to such payments;
provided
that if the applicable Withholding Agent shall be required by applicable Law to deduct or withhold any Taxes from such payments, then
(i) unless such Tax (A) is imposed on the overall net income, profit or gain of a Lender, (B) is attributable to a FATCA Deduction, (C) is described in
Section 9.13(a)(D)
or (D) would not have been imposed had
the Lender complied with its obligations under
Section 2.7(e)
below (such Taxes specified in clauses (A) to (D) above, “
Excluded Taxes
”), the sum payable by the Borrower shall be increased as necessary so that
after making all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this
Section 2.7
), the Lender receives an amount equal to the sum it would have received had no such
deductions or withholdings been made, (ii) the applicable Withholding Agent shall make such deductions or withholdings and (iii) the applicable Withholding Agent shall pay the full amount deducted or withheld to the relevant Governmental
Authority in accordance with applicable Law. The Borrower will furnish to the Facility Agent within
forty-five
(45) days after the date of the payment of any Taxes due pursuant to applicable Law and paid
by the Borrower certified copies of tax receipts evidencing such payment by the Borrower (or such other evidence of payment as is reasonably acceptable to the Lenders). The Borrower agrees to indemnify and hold harmless each Lender, and reimburse
such Lender upon its written request, for the amount of any Indemnified Taxes so levied or imposed and paid by such Lender.
5
(b) If the Borrower pays any additional amount under this
Section 2.7
to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund of its Tax liabilities in respect of an Indemnified Tax or any credit in respect thereof (a “
Tax
Refund
”), such Lender shall promptly notify the Borrower in writing of such Tax Refund and shall promptly pay to the Borrower an amount that the Lender shall, in its sole discretion, determine is equal to the net benefit, after tax, which
was obtained by the Lender as a consequence of such Tax Refund;
provided
,
however
, that (i) any Taxes that are imposed on a Lender as a result of a disallowance or reduction of any Tax Refund with respect to which such Lender has
made a payment to the Borrower pursuant to this
Section 2.7(b)
as determined by such Lender in its sole discretion, shall be treated as an Indemnified Tax payable to such Lender pursuant to this
Section 2.7
; (ii) nothing
in this
Section 2.7
shall require the Lender to disclose any confidential information to the Borrower (including its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this
Section 2.7
at
any time when a Default or Event of Default exists.
(c) A Lender shall, at the request of the Borrower, take all
reasonable steps to mitigate any circumstances which arise and which result in or would result in the Lender’s being
grossed-up
or indemnified under this
Section 2.7
. A Lender need not take
any such steps if such Lender determines, in its sole discretion, exercised in good faith, that to do so may be materially prejudicial to the Lender (it being understood that it is not prejudicial to the Lender to bear costs that the Borrower is
willing to reimburse).
(d) (i) Each party hereto agrees to provide to the Facility Agent, within ten (10) Business
Days of a request, and consents to the collection and processing by the Facility Agent of, any authorizations, waivers, forms, documentation and other information readily available to it, relating to its status or to the status of payments under
this Agreement under FATCA (the “
FATCA Information
”), to the extent necessary for the Facility Agent to comply with FATCA. Each party hereto further consents to the disclosure, transfer and reporting of such FATCA Information to any
relevant government or taxing authority or any Affiliate of the Facility Agent, including transfers to jurisdictions which do not have strict data protection or similar laws, to the extent that the Facility Agent reasonably determines that such
disclosure, transfer or reporting is necessary or warranted to facilitate compliance with FATCA.
(ii) Each party hereto
hereby covenants that following the receipt of a request from the Facility Agent, it shall confirm to the Facility Agent whether or not it is a FATCA Exempt Party. If a party hereto confirms to the Facility Agent 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, it shall notify the Facility Agent reasonably promptly. Notwithstanding any other provision of this Agreement, each party hereto 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 hereto 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.
(iii) Each party hereto 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), and in any case at least three (3) Business Days prior to making a FATCA Deduction, notify the person to whom it is making the payment and, on or
prior to the day on which it notifies that person, shall also notify the Borrower, the Facility Agent and the other Financing Parties.
(e) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any
Financing Document shall notify the Facility Agent in writing thereof and deliver to the Borrower or the Facility Agent at the time or times reasonably requested by the Borrower or the Facility Agent, such properly completed and executed
documentation reasonably requested by the Borrower or the Facility Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the
Facility Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Facility Agent as will enable the Borrower or the Facility Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
6
(f) All amounts set out or expressed in a Financing Document to be payable by the
Borrower to the Lender which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to
clause (ii), if VAT is or becomes chargeable on any supply made by the Lender to the Borrower under a Financing Document and such Lender is required to account to the relevant tax authority for the VAT, the Borrower shall pay to the Lender (in
addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and the Lender shall promptly provide an appropriate VAT invoice to such party). If VAT is or becomes chargeable on any
supply made by any Financing Party (the “
Supplier
”) to any other Financing Party (the “
Recipient
”) under a Financing Document, and any Financing Party other than the Recipient (the “
Relevant Party
”)
is required by the terms of any Financing 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, and the Recipient
must (where this clause (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. Where a Financing Document requires any party to
reimburse or indemnify the Lender for any cost or expense, that party shall reimburse or indemnify (as the case may be) the Lender for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that
the Lender reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority. Any reference in this clause to any party hereto shall, at any time when such party is treated as a member of a group
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) or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a
Lender shall be construed as a reference to that Lender or the relevant group or unity (or fiscal unity) of which that Lender is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity
(or fiscal unity) at the relevant time (as the case may be).
(g) In addition, the Borrower agrees to pay any and all
present or future stamp, court or documentary taxes and fees and any other excise, property, intangible or mortgage recording taxes, imposed by any Governmental Authority, which arise from the execution, delivery, filing, recording, performance,
enforcement or registration of, or otherwise with respect to, any Financing Document and agrees to hold the Secured Parties harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omitting to pay
such taxes and fees (excluding, in each case, any such tax imposed as a result of a Lender’s grant of a participation, transfer or assignment to or designation of a new Applicable Lending Office or other office for receiving payments under any
Financing Document except for any such taxes resulting from assignment or participation that is requested by the Borrower).
7
2.8 Illegality
. (a) If the effect of any applicable Law, rule or
regulation or in the interpretation or administration thereof or compliance with any request or directive of any Governmental Authority is to make it unlawful or impossible in any applicable jurisdiction for any Lender or its Applicable Lending
Office to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain a Loan, then, on notice thereof by the Lender to the Borrower (with a copy to the Facility Agent), any obligation of that Lender to perform such
obligation or make such Loan shall be suspended until, subject to
Section 2.8(d)
, the Lender notifies the Facility Agent and the Borrower that the circumstances giving rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain a Loan, upon the Lender notifying the Borrower of such illegality,
and subject to
Section 2.13
, the Commitments of such Lender shall be immediately cancelled, and the Borrower shall, at the request of such Lender, repay in full the Loan of such Lender then outstanding, together with interest accrued
thereon and amounts required under
Section 6.3(g)
, either on the last day of the Interest Period in respect of such Loan, if the Lender may lawfully continue to maintain such Loan to such day, or immediately, if the Lender may not
lawfully continue to maintain such Loan.
(c) The Borrower agrees to take all reasonable steps to obtain, as quickly as
possible after receipt of such Lender’s request for prepayment pursuant to
Section 2.8(b)
, any Governmental Approvals then required in connection with such prepayment.
(d) Before giving notice to the Borrower and the Facility Agent under
Section 2.8(a)
, the affected Lender shall
designate a different Applicable Lending Office with respect to its Loans if such designation will avoid the need for giving such notice or making such demand and will not, in the reasonable judgment of such Lender, be illegal or otherwise subject
such Lender to any economic, legal or regulatory disadvantage.
2.9 Increased Costs and Reduction of Return
.
(a) If, after the Effective Date:
(i) there occurs the introduction of or any change since the date
of this Agreement in (or in the interpretation, administration or application of) any applicable Law or governmental rule, regulation, order, guideline or request (whether or not having the force of law); and/or
(ii) compliance by any Lender with any Law or regulation and including the introduction of any new Law or
governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) of any monetary, fiscal or other authority shall impose, modify or deem applicable any reserve, special deposit, compulsory loan,
assessment or insurance fee or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or subject such Lender to any taxes or change the basis of taxation of payments to the Lender or any amount
payable under the Financing Documents (such as, for example, but not limited to (A) a change in the basis of taxation of payments to a Lender of the principal of or interest on the Loans or any other amounts payable hereunder (except for
(x) changes in the rate of Tax on, or determined by reference to, the net income or net profits of such Lender imposed by the jurisdiction in which its principal office or Applicable Lending Office is located, (y) changes attributable to
any FATCA Deduction) or (z) any Increased Cost compensated for by
Section 2.7
(or which would have been compensated for by
Section 2.7
but was not so compensated solely because such Increased Cost constituted an Excluded
Tax) or (B) a change in official reserve requirements but, in all events, excluding reserves to the extent included in the computation of the Eurodollar Rate), or impose on any Lender or the London interbank market any other condition, cost or
expense (other than taxes) affecting this Agreement or Loans made by such Lender;
8
and as a result of any of the foregoing any Lender shall incur any additional or increased costs,
reductions in the rate of return from a Loan or on a Lender’s (or its Affiliate’s) overall capital or reductions in any amounts due and payable under any Financing Document (any of the foregoing, “
Increased Costs
”), then,
in any such event, the Borrower shall pay to such Lender, within thirty (30) days of written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such
Lender in its sole discretion shall determine), as shall be required to compensate such Lender for such Increased Costs.
A written notice
as to the Increased Costs owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender through the Facility Agent shall, absent manifest error, be final and conclusive and binding
on all parties hereto. For the avoidance of doubt, (x) the
Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, directives or any other Laws thereunder or issued
in connection therewith and (y) all requests, rules, guidelines, directives or any other Laws promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the
United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case constitute a change in applicable Law under
Section 2.9(a)(i)
above, regardless of the date enacted, adopted or issued.
(b) If, after the Effective Date, (w) the introduction of any Capital Adequacy Regulation, (x) any change in any
Capital Adequacy Regulation, (y) any change in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or administration thereof, or
(z) compliance by any Lender (or its Applicable Lending Office) or any corporation controlling such Lender (a “
Controlling Corporation
”) with any Capital Adequacy Regulation:
(i) affects or would affect the amount of capital required or expected to be maintained by such Lender or its
Controlling Corporation; and
(ii) does or would have the effect of reducing the rate of return on such
Lender’s or on such Controlling Corporation’s capital as a consequence of the Financing Documents or the Loans thereunder, to a level below that which such Lender or such Controlling Corporation could have achieved but for such
introduction, change or compliance (taking into consideration such Lender’s and such Controlling Corporation’s policies with respect to capital adequacy),
then from time to time, upon written demand of such Lender to the Borrower through the Facility Agent, the Borrower shall pay to such Lender,
within thirty (30) days of such written demand, additional amounts specified by such Lender as sufficient to compensate such Lender for such reduction. A Lender’s reasonable good faith determination of compensation owing under this
Section 2.9(b)
shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(c)
Before giving notice to the Facility Agent under
Sections 2.9(a)
and
(b)
, the affected Lender shall designate a different Applicable Lending Office with respect to its Loans if such designation will avoid the need for giving such
notice or making such demand and will not, in the judgment of such Lender, be illegal or otherwise subject such Lender to any economic, legal or regulatory disadvantage.
9
(d) The Borrower shall not be obliged to pay any additional amount pursuant to
this
Section 2.9
to the extent that the Increased Cost to which such additional amount relates is (i) compensated for under another provision of this Agreement or would have been but for an exception to that provision or
(ii) attributable to the relevant Financing Party or any of its Affiliates failing to comply with any law or regulation.
2.10 Funding Losses
. The Borrower shall reimburse each Lender and hold each Lender harmless from all losses and
expenses documented in the manner provided in the last sentence of this
Section 2.10
(excluding any loss of anticipated profits but including any such losses or expenses arising from liquidation or reemployment of funds obtained by such
Lender to fund the relevant Loan or from fees payable to terminate the deposits from which such funds were obtained) which the Lender actually sustains or incurs as a consequence of:
(a) the failure of the Borrower to make on a timely basis any scheduled payment of principal of any Loan;
(b) the failure of the Borrower to borrow a Loan after the Borrower has given a Notice of Borrowing;
(c) the failure of the Borrower to make any prepayment in accordance with any notice delivered under
Section 6.2
; or
(d) the prepayment or repayment (including pursuant to
Section 6.1
,
6.2
or
6.3
) or other payment (including after acceleration thereof) of a Loan on a day that is not an Interest Payment Date.
Each Lender shall, at any time that it makes a claim under this
Section 2.10
, provide a written notice to the Borrower as to the
amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, which notice shall, absent manifest error, be final and conclusive and binding on all parties hereto.
2.11 Inability to Determine Rates; Market Disruption
. (a) If, on any Interest Determination Date, in the
circumstances described in the second sentence of the definition of “Eurodollar Rate”, none or only one of the Reference Banks supplies a rate to the Facility Agent to determine the Eurodollar Rate or the Facility Agent otherwise
determines that for any reason adequate and reasonable means do not exist for determining the Eurodollar Rate for the relevant Interest Period, the Facility Agent will promptly so notify the Borrower and each Lender. Upon the receipt of such notice,
if the Borrower so requires, the Facility Agent and the Borrower shall enter into negotiations (for a period of not more than thirty (30) days) with a view to agreeing a substitute basis for determining the rate of interest applicable to such
Loans. Any alternative basis agreed pursuant to foregoing sentence shall, with the prior consent of all Lenders and the Borrower, be binding on all parties hereto. If no such alternative basis is so agreed or if the Borrower does not require such
negotiations, the rate of interest on each Loan shall, until the Facility Agent revokes its notice in writing, be the percentage rate
per annum
which is equal to the sum of (i) the rate notified to the Facility Agent by each Lender with
respect to the relevant Loan as soon as practicable and in any event before interest is due to be paid in respect of the relevant Interest Period, to be that which expresses as a percentage rate
per annum
the cost to such Lender of funding
its participation in such Loan from whatever source it may reasonably select and (ii) the Applicable Margin.
10
(b) If the Facility Agent receives, by close of business on the fifth (5
th
) Business Day prior to the commencement of any Interest Period, certificates (which the Facility Agent shall keep confidential and shall not disclose to any third party) from authorized
officers of Lenders comprising the Majority Lenders certifying that (x) the Eurodollar Rate for such Interest Period will not be adequate to cover the cost (derived from funding sources reasonably selected by such Lenders) to such Lenders of
making or maintaining their Loans for such Interest Period and (y) such Lenders vote in favor of having a Market Disruption Margin apply (a “
Market Disruption Margin Event
”), then:
(i) the Facility Agent shall promptly notify the Borrower and each Lender that a Market Disruption Margin Event
has occurred; and
(ii) upon the receipt of such notice, the Borrower and the Lenders shall enter into good
faith negotiations (for a period of not more than five (5) Business Days from the date of such receipt) with a view to agreeing a substitute basis for determining the rate of interest applicable to the Loans.
Any alternative basis agreed pursuant to the foregoing sentence shall be binding on all parties hereto in respect of the relevant Interest
Period. If no such alternative basis is so agreed, the rate of interest on each Loan for the relevant Interest Period shall be as determined pursuant to
Section 2.11(c)
below.
(c) The Facility Agent shall thereafter promptly (i) notify the Borrower and the Lenders that a Market Disruption Margin
Event has occurred and that no such agreement was reached pursuant to
Section 2.11(b)
; (ii) request that each Lender provide to the Facility Agent (which information the Facility Agent shall keep confidential and shall not disclose
to any third party) the cost to such Lender of funding, from whatever source it may reasonably select, an amount substantially equal to such Lender’s Loan proposed to be outstanding during such Interest Period; (iii) determine the Market
Disruption Margin for each Lender pursuant to
Section 2.11(d)
below; (iv) notify the Borrower and each Lender of the result of the determination with respect to the Market Disruption Margin of such Lender; and (v) certify to
the Borrower that it determined the Market Disruption Margin for each Lender correctly in accordance with
Section 2.11(d)
below.
(d) The Facility Agent shall, for purposes of
Section 2.11(c)
above, determine the Market Disruption Margin for
each Lender for any applicable Interest Period as follows:
(i) if such Lender fails to provide its cost of
funding in response to the request made in accordance with clause (ii) of
Section 2.11(c)
within three (3) Business Days of receipt of such request, the Facility Agent shall deem such Lender’s Market Disruption Margin to
be zero, and
(ii) if such Lender provides notice to the Facility Agent of its cost of funding within such
three (3) Business Day period, the Facility Agent shall calculate the margin (if positive) between (x) such cost of funding as so notified to the Facility Agent and (y) the Eurodollar Rate (the “
Market Disruption
Margin
”);
provided
that (x) if as the result of such calculation the Market Disruption Margin exceeds 50 basis points (0.50%), the Market Disruption Margin shall be deemed to be 50 basis points (0.50%) and (y) in no event
shall the interest applicable to the Loans be less than the rate
per annum
equal to the sum of (1) the Eurodollar Rate determined in accordance with
Section 2.6(d)
and (2) the Applicable Margin.
(e) In the event that a Reference Bank shall for whatever reason cease to be a Reference Bank or a Reference Bank assigns its
Loans in accordance with
Section 9.13
to one or more banks, the Borrower and the Facility Agent shall consult and use reasonable efforts to agree (with the consent of the Majority Lenders, acting reasonably) on a replacement Reference
Bank;
provided
that, in the event that no such agreement is reached within thirty (30) days, the Facility Agent may designate a Lender as such replacement Reference Bank.
11
(f) For the avoidance of doubt, without limiting the obligation of the Facility
Agent to, upon the written request of the Borrower, disclose to the Borrower the identity of any Lender that has delivered a certificate pursuant to
Section 2.11(b)
, nothing in this
Section 2.11
will require any Lender or
Reference Bank to provide information disclosing its cost of funds to any other Lender, Agent or the Borrower.
2.12
Survival
. The agreements and obligations of the Borrower in
Sections 2.7
through
2.11
shall survive any termination of any Transaction Document and the payment of the Loans and all other Obligations.
2.13 Replacement of Lenders; Prepayment
. If any Lender is a Defaulting Lender or is owed Increased Costs or other
amounts under
Section 2.7
or
Section 2.9
and compensation with respect to such event is not otherwise requested by the Majority Lenders, or provides a notice of illegality pursuant to
Section 2.8
, the Borrower
shall have the right, if no Default or Event of Default then exists and such Lender has not changed its Applicable Lending Office with the effect of eliminating such Increased Costs or other amounts or illegality, to (a) prepay the Loans made
by such Lender in accordance with
Section 6.2(c)
or (b) replace such Lender (the “
Replaced Lender
”) completely or, in the case of a Defaulting Lender, either completely or with respect only to any outstanding
portion of the undisbursed and uncancelled Commitment of such Defaulting Lender, with another commercial bank or banks or other financial institutions (collectively, the “
Replacement Lender
”) reasonably acceptable to the Facility
Agent;
provided
that (i) at the time of any replacement pursuant to this
Section 2.13
, the Replacement Lender shall enter into one or more assignment agreements pursuant to
Section 9.13
hereof pursuant to which
the Replacement Lender shall acquire all of the Commitment and outstanding Loans of the Replaced Lender and, in connection therewith, shall pay to the Replaced Lender in respect thereof an amount equal to the sum of (A) an amount equal to the
principal of, and all accrued interest on, all outstanding Loans of the Replaced Lender, and (B) an amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender, (ii) all Obligations of the Borrower owing to the
Replaced Lender (other than those specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being, paid) shall be paid in full to such Replaced Lender concurrently with such
replacement and (iii) any Required Hedging Agreement to which such Replaced Lender (or any Affiliate of such Replaced Lender) is a party shall be replaced by a Required Hedging Agreement to which another Lender (or its Affiliate) shall be a
party (or by an adjustment to an existing Required Hedging Agreement to which another Lender (or its Affiliate) is party) and the Borrower shall pay any amounts, costs and expenses owing under such replaced Required Hedging Agreement or otherwise as
a result of such replacement. Upon the execution of the respective assignment documentation pursuant to clause (i) of the
proviso
above and the payment of the amounts referred to in clauses (i) and (ii) of the
proviso
above, the Replacement Lender shall become a Lender hereunder, and the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement, which shall survive as to such Replaced
Lender.
2.14 Defaulting Lenders
. Notwithstanding any provision of this Agreement to the contrary, if any Lender
becomes a Defaulting Lender, then for so long as such Lender is a Defaulting Lender fees shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to
Section 6.7
.
12
Section 3. Conditions Precedent
3.1 Conditions to First Disbursement
. The obligation of any Lender to make its first Disbursement shall be subject to
receipt by the Facility Agent of each of the agreements and other documents, and the satisfaction of the conditions precedent, set forth below, each of which shall be in form and substance satisfactory to the Facility Agent (acting on the
instructions of all of the Lenders) and in full force and effect (unless, in each case, waived by the Facility Agent (acting on the instructions of all of the Lenders)):
(a)
Transaction Documents
. (i) Each of the Transaction Documents (other than (A) the Required
Hedging Agreements and (B) the EPC Warranty Guarantee, the Specialized Oil Industry Services Agreement, the Asset Maintenance Agreement and any Consent Agreement to be executed in connection therewith), and the Intercreditor Agreement, each in
form and substance satisfactory to each Lender, shall have been duly authorized, executed and delivered by each party thereto and shall be in full force and effect, and all conditions for effectiveness in each such Transaction Document required to
be satisfied prior to the Closing Date have been duly satisfied. The Facility Agent shall have received originals (or PDF copies with originals to follow thereafter) of each Financing Document executed by all parties thereto and a copy of each other
such Transaction Document.
(ii) The Facility Agent shall have received a certificate of an Authorized
Officer of each of the Borrower and the Operator, dated the Closing Date, certifying that (A) such Person is not in default in the performance, observance or fulfillment of any of its material obligations, covenants or conditions contained in
any of the Project Documents to which it is a party and, to the best of such Person’s knowledge, no Project Participant is in default in the performance, observance or fulfillment of any of its material obligations, covenants or conditions
contained therein, (B) each Project Document delivered pursuant to
Section 3.1(a)(i)
is in full force and effect, (C) the copy of each such Project Document is true, correct and complete, and (D) except as delivered to the
Facility Agent pursuant to
Section 3.1(a)(i)
, there are no agreements, side letters or other documents to which such Person is a party which have the effect of modifying or supplementing in any respect any of the respective rights or
obligations of such Person or any other Project Participant under any of the Project Documents to which such Person is a party.
(b)
Equity Contributions.
The Facility Agent shall have received evidence that (i) the Borrower
shall have received Equity Contributions in an amount of not less than the amount required to satisfy the requirements of
Section 3.2(e)
, which shall have been applied to Project Costs or on deposit in the Offshore Construction Account
and (ii) the OOG Offshore Equity Support Reserve Account has been fully funded in accordance with Section 3.01(a)(ii) of the Equity Support Deed.
(c)
Organizational Documents
. The Facility Agent shall have received the following documents each
certified as indicated below:
(i) a copy of the Organizational Documents of each of the Borrower, the
General Partner and the Shareholders as in effect on the Closing Date, with a copy of an excerpt from the Austrian register of companies (
Firmenbuch
) in relation to each of the Borrower, the General Partner and the OOG Shareholder, dated no
more than fifteen (15) days prior to the Closing Date;
13
(ii) a certificate of an Authorized Officer of each of the
Borrower, the Sponsors, the Shareholders, the General Partner and the Operator, dated on or about (but in no event later than) the Closing Date, certifying (A) that attached thereto is a true and complete copy of the Organizational Documents of
such Person, as in effect at all times from the date on which the resolutions referred to in clause (B) below were adopted to and including the date of such certificate, (B) that attached thereto is a true and complete copy of resolutions
duly adopted by the board of directors (or other equivalent body) and, in the case of the Borrower, the General Partner and the Operator, by their respective shareholders, or evidence of any necessary corporate, partnership or limited liability
company action, as the case may be, of such Person, authorizing the execution, delivery and performance of the Transaction Documents to which such Person is or is intended to be a party, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that attached thereto is a true and complete copy of the excerpt from the Austrian register of companies (
Firmenbuch
) in relation to each of the Borrower, the General Partner and the OOG
Shareholder, dated no more than fifteen (15) days prior to the Closing Date, and (D) as to the name, incumbency and specimen signature of each officer or
attorney-in-fact,
as the case may be, of such Person executing the Financing Documents to which such Person is or is intended to be a party and each other document to be
delivered by such Person from time to time in connection therewith (and each Secured Party may conclusively rely on such certificate until it receives a replacement certificate in the form described in this clause (D) from such Person); and
(iii) written evidence of (A) the articles of the General Partner having been amended to provide that
(1) the Sponsors shall nominate and the shareholders of the General Partner shall appoint a second director, (2) the managing directors of the General Partner shall have joint power to represent the General Partner (and consequently the
Borrower), (3) the rules of procedure for the General Partner’s management board shall be adopted and shall implement a strict requirement for participation by both such directors in decision-making, (4) the initiation of insolvency
proceeding of any kind with respect to the General Partner or the Borrower shall require the unanimous vote of both directors; (B) the appointment of such second director and the filing for registration of such director with the Austrian
companies register, and (C) the adoption of the rules of procedure of the General Partner’s management board referred to in clause (A)(3) above by shareholder resolution of the General Partner’s shareholders.
(d)
Fees and Expenses
. The Borrower shall have paid or arranged for the payment when due (including, to
the extent permitted, arrangement for payment out of Disbursements) of all fees, expenses, premiums and other charges payable by it on or prior to the first Disbursement Date (or equivalent concept, howsoever described) under this Agreement or under
any other Transaction Document.
(e)
Governmental Approvals
. The Facility Agent shall have received
a certificate from an Authorized Officer of the Borrower certifying that attached thereto are true, correct and complete copies of all Necessary Governmental Approvals listed in Part A of
Schedule 4.6
and, if requested by the Facility
Agent, of all applications made for any Necessary Governmental Approvals and all material correspondence received or sent in respect of such applications.
(f)
Filings, Registrations and Recordings
. (i) The Facility Agent shall have received evidence
(A) that the Vessel has been registered in the name of the Borrower through the port of registry under the laws and flag of the Commonwealth of the Bahamas and (B) that no Liens are registered against the Vessel on such register. Any other
action required under applicable Law to perfect the first priority Liens intended to be created by the Mortgage shall have been effected, and the Collateral Agent shall have received acknowledgment copies or other evidence satisfactory to it that
all necessary filing, notarization, recording and other fees and all taxes and expenses related to such registration have been paid in full.
14
(ii) Any other document required to be filed, registered,
notarized or recorded in order to create and perfect the Security Interests as first priority Liens (subject to Permitted Liens) shall have been properly filed, registered, notarized or recorded in each office in each jurisdiction in which such
filings, registrations, notarizations and recordations are required, and any other action required in the reasonable judgment of the Collateral Agent to perfect such Security Interests as such first priority Liens (subject to Permitted Liens) shall
have been effected, and the Collateral Agent shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and all taxes and expenses related to such filings,
notarizations, registrations and recordings have been paid in full, except for (x) the notarization and consularization of any of the Security Documents governed by Brazilian law by any signatories executing such Security Documents outside of
Brazil, (y) the translation of any of such Brazilian law-governed Security Documents into Portuguese by a certified public translator and (z) the filing of such translated and, where applicable, notarized and consularized Brazilian
law-governed Security Documents with the relevant Registry of Titles and Documents in Brazil which shall be completed prior to the first Disbursement Date, and in any event within twenty (20) days after the date on which the Borrower has
received the original signature pages from each of the counterparties to such Brazilian law-governed Security Documents.
(g)
Pledge Agreements
. The Collateral Agent shall have received a duly signed original of each Pledge
Agreement together with, except in the case of the Brazilian Share Pledge Agreement, a third party notification in form and substance as set out in the respective Schedule (
Form of Third Party Notification
) of each such Pledge Agreement duly
acknowledged by (i) an Authorized Officer of the Borrower with regard to the Austrian Partnership Interest Pledge Agreement and (ii) an Authorized Officer of the General Partner with regard to the Austrian Share Pledge Agreement, and all
proxies, powers of attorney and any other documents required under the Pledge Agreements to be delivered prior to first Disbursement in form and substance as set out in the respective Schedules to each such Pledge Agreement or such other form as may
be satisfactory to each Lender and duly signed by an Authorized Officer of the Shareholders and in addition, in relation to the Austrian Partnership Interest Pledge Agreement only, by an Authorized Officer of the General Partner.
(h)
Officer’s Certificates
. The Facility Agent shall have received an executed Officer’s
Certificate from each of the Borrower, the Shareholders, the General Partner, the Sponsors and the Operator, each dated the Closing Date, and each certifying that (i) the representations and warranties of such Person set forth in each of the
Financing Documents to which such Person is a party are true and correct in all material respects on and as of such date as if made on and as of such date (or, if stated to have been made solely as of an earlier date, were true and correct in all
material respects as of such earlier date), and (ii) such Person is in compliance in all material respects with all of its agreements contained in any Transaction Document to which it is a party.
(i)
Financial Information, No Petrobras Payment Default, etc
.
(i) The Facility Agent shall have received (x) copies of the most recent annual and
semi-annual
financial statements (to the extent available) from each of the Sponsors together with a certificate from an Authorized Officer of each Sponsor dated the Closing Date, to the effect that, to the
best of such Authorized Officer’s knowledge, (i) such financial statements are true, complete and correct in all material respects and (ii) there has been no material adverse change in the financial condition, operations, Properties,
or business of such Person since the date of such financial statements, (y) copies of certain financial information of the Borrower, the General Partner and the Operator as at April 30, 2015, including the balance sheets and statements of
changes in equity, and (z) copies of the 2014 annual audited financial statements of Petrobras.
15
(ii) No Petrobras Payment Default Event shall have occurred and be continuing.
(j)
Base Case Projections; Capex Budget; Project Schedule; Drawdown Schedule
. The Facility Agent
shall have received (i) the Base Case Projections, incorporating appropriate operating assumptions agreed by the Technical Advisor and proving resistance to reasonable sensitivities and downside scenarios, which shall project an average of the
Debt Service Coverage Ratios for each of the Quarters occurring until the date that is the tenth (10
th
) anniversary of the Commercial Operation Date of not less than 1.25x; (ii) the
Capex Budget; (iii) the Project Schedule; and (iv) the Drawdown Schedule.
(k)
Process
Agent
. The Facility Agent shall have received a copy of a letter from NCR National Corporate Research (UK) Limited, with a registered office at 7 Welbeck Street, London W1G 9YE, United Kingdom, accepting its appointment as process agent in
England for the Borrower, the Sponsors, the Shareholders, the General Partner, the Management Services Providers and the Operator.
(l)
Legal Opinions
. The Facility Agent shall have received the following legal opinions, each of which
legal opinions shall be dated on or about (but in no event later than) the Closing Date and shall be addressed and in form, scope and substance satisfactory to each Secured Party:
(i) A legal opinion of White & Case LLP, special English counsel to the Lenders.
(ii) A legal opinion of Davis Polk & Wardwell (London) LLP, special English counsel to the Borrower.
(iii) A legal opinion of Wolf Theiss Rechtsanwälte GmbH & Co KG, special Austrian counsel to
the Lenders, with respect to the Financing Documents governed by Austrian law.
(iv) A legal opinion of
Dorda Brugger Jordis Rechtsanwälte GmbH, special Austrian counsel to the Borrower, the OOG Shareholder and the General Partner.
(v) A legal opinion of Watson, Farley & Williams, LLP, special Marshall Islands counsel to the Teekay
Sponsor.
(vi) A legal opinion of Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados, special
Brazilian counsel to the Lenders.
(vii) A legal opinion of Houthoff Buruma, special Dutch counsel to the
Lenders and the Teekay Shareholder.
(viii) A legal opinion of Walkers, special Cayman Islands counsel to
the Sponsors.
16
(ix) A legal opinion of Brazilian
in-house
counsel to the OOG Sponsor and the Operator.
(x) A legal
opinion of Lennox Paton, Bahamas counsel to the Lenders.
(xi) A legal opinion of Watson Farley &
Williams, special Singapore counsel to Teekay Shipping (Singapore) Pte. Ltd.
(m)
Material Adverse
Effect; Litigation
.
(i) There shall not have occurred or exist any fact or circumstance that has had
or would be reasonably likely to have a material adverse effect on (i) the business, condition (financial or otherwise), operations, performance or properties of the Borrower, the Operator, or either Sponsor, (ii) the ability or
prospective ability of the Borrower, the Operator or either Sponsor, to perform its payment obligations under any of the Financing Documents to which it is a party, (iii) the legality, validity or enforceability of any material provision of any
Transaction Document or (iv) the legality, validity or enforceability of the Security Interests provided under the Security Documents
(ii) There shall be no action, suit, other legal proceeding, arbitral proceeding, inquiry or investigation
(including any Environmental and Social Claims) pending or, to the best of the Borrower’s knowledge, threatened by or before any Governmental Authority or in any arbitral or other forum, nor any order, decree or judgment in effect, pending, or,
to the best of the Borrower’s knowledge, threatened against or affecting the Borrower, the Sponsors, the EPC Contractor or the Operator or any of their respective Properties or rights, that has or would be reasonably likely to have a material
adverse effect on (x) the business, condition (financial or otherwise), operations, performance, properties or prospects of the Borrower, the Sponsors, and/or the Operator, or (y) the ability of the EPC Contractor to perform any of its
material obligations under the Transaction Documents to which it is a party.
(n)
Corrupt Practices
.
The Facility Agent shall have received an Officer’s Certificate of each of the Borrower, the General Partner and the Sponsors, dated the Closing Date, stating that neither such Person nor any of its officers, directors, employees or agents or
Affiliates, acting on behalf of the Borrower, the General Partner or the Sponsors has (i) paid, offered or promised to pay, or authorised the payment, directly or indirectly, of any commission, bribe,
pay-off
or kickback or similar payment related to the Project or any of the Loans that violates any applicable law; or (ii) entered into any agreement or arrangement under which any such payment will at
any time be made.
(o)
Environmental and Social Action Plan
. The Facility Agent shall have received
a copy of the Environmental and Social Action Plan updated as of the date of the request for Disbursement.
(
p
) Consultant Reports
.
(i)
Technical Advisor Report
. The Facility Agent shall have received an updated comprehensive report of
the Technical Advisor.
(ii)
Insurance Advisor Report
. The Facility Agent shall have received a
report of the Insurance Advisor.
(iii)
Market Consultant Report
. The Facility Agent shall have
received a report of the Market Consultant.
17
(q)
Know Your Customer Documentation
. Each Lender shall
have received documentation in reasonably satisfactory form, scope and substance requested by such Lender in order to enable such Lender to carry out all necessary checks, in relation to each of the Borrower, the Sponsors and those Subsidiaries of
the Sponsors that have a direct or indirect ownership interest in the Borrower, including the General Partner, and their respective signatories and directors, under “know your customer” or similar requirements and other information
required by bank regulatory authorities, including those reasonably required to ensure compliance with applicable
anti-money
laundering rules and regulations in such Lender’s jurisdiction.
(r)
Share Capital of the General Partner
. Each Lender shall have received evidence reasonably
satisfactory to it that the share capital (
Stammkapital
) of the General Partner has been paid in full and there is no obligation for any Shareholder to make additional contributions (
Nachschusspflicht
).
(s)
Additional Matters
. All corporate proceedings of the Borrower, the Operator, the Shareholders, the
General Partner and the Sponsors and other legal matters in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Facility Agent (acting on the
instructions of all of the Lenders) and the Facility Agent shall have received such other documents, certificates, and instruments, relating to such legal proceedings and corporate matters as the Facility Agent shall have reasonably requested
(acting on the instructions of any of the Lenders), in each case in form and substance satisfactory to each Lender.
3.2
Conditions to All Loans
. The obligation of each Lender to make its initial Disbursement and any subsequent Disbursement on any relevant Disbursement Date shall be subject to the conditions precedent that, both immediately prior to the making of
such Loan and also after giving effect thereto, unless (x) in the case of the initial Loans such condition is waived by each Lender, and (y) in the case of any subsequent Loan (other than any Shipyard Delivery Date Loan), such condition is
waived by the Required Lenders, and (z) in the case of any condition set forth in
Section 3.2(g)
, such condition is waived by each Lender:
(a)
Notices of Borrowing
. The Facility Agent shall have received not less than (x) three
(3) Business Days prior to such Disbursement Date in respect of the first Disbursement and (y) four (4) Business Days in respect of each subsequent Disbursement, (i) a Notice of Borrowing pursuant to and in compliance with
Section 2.2
in respect of the Disbursement of Loans executed and delivered by an Authorized Officer of the Borrower, (ii) a certificate of the Technical Advisor in respect of such proposed Disbursement (except in respect of an
Advance Working Capital Disbursement), in the form attached hereto as
Exhibit B
, accompanied by the relevant Technical Advisor Report, in each case containing (x) no exceptions or qualifications which are unsatisfactory to the
Facility Agent in consultation with the Technical Advisor and (y) with respect to the Technical Advisor’s certificate, a statement that the Commercial Operation Date is not expected to be any later than the Date Certain, (iii) the
most recent construction progress report provided by the EPC Contractor under the EPC Contract, (iv) in respect of any Disbursement relating to any construction milestone payment under the EPC Contract, the relevant invoices from the EPC
Contractor and/or its subcontractors, and (v) in respect of any Disbursement relating to any milestone or instalment payment under any other Construction Contract, the relevant invoices from the relevant Construction Contractor and/or its
subcontractors;
provided
,
however
, that no Notice of Borrowing shall be required to be delivered in connection with a Borrowing in respect of Eligible IDC.
18
(b)
Representations and Warranties
. The following
representations and warranties shall be true and correct on and as of the respective Disbursement Date as if made on and as of such date (or, if stated to have been made solely as of an earlier date, were true and correct as of such date):
(i) in relation to the initial Disbursement on the Closing Date, (x) all the representations and
warranties of the Borrower contained in
Section 4
hereof and (y) all the representations and warranties of each of the Borrower, the Operator, the Sponsors, the General Partner and the Shareholders contained in any other Financing
Document to which such Person is a party; or
(ii) in relation to any other Disbursement, (x) the
Repeating Representations and (y) the representations and warranties of each of the Borrower, the Operator, the Sponsors, the General Partner and the Shareholders contained in any other Financing Document to which such Person is a party which
are or are deemed repeated on each Disbursement Date under the terms of such other Financing Documents.
(c)
No Default; No Material Adverse Change
.
(i) No Default or Event of Default shall have occurred and be continuing or would result from the making of
such Loan and no default by the Borrower or, to the best knowledge of the Borrower, any other Person (which default by such other Person could reasonably be expected to have a Material Adverse Effect) under any of the Transaction Documents shall
have occurred and be continuing.
(ii) There shall not have occurred or exist any fact or circumstance that
has had or would be reasonably likely to have a material adverse effect on (i) the ability or prospective ability of the Borrower, the Operator or either Sponsor to perform its payment obligations under any of the Financing Documents to which
it is a party, (ii) the legality, validity or enforceability of any material provision of any Transaction Document or (iii) the legality, validity or enforceability of the Security Interests provided under the Security Documents.
(d)
Governmental Approvals, etc
. (i) All Necessary Governmental Approvals which were not obtainable
or required to be obtained by the Borrower or any Project Participant prior to the Closing Date but which under applicable Law were obtainable or required to be obtained prior to such Disbursement Date shall have been duly obtained and shall be in
full force and effect and (ii) there shall have been no change in any applicable Law, and no issuance of any order, writ, injunction or decree of any Governmental Authority or arbitral tribunal, which, in either such case, could reasonably be
expected to have a Material Adverse Effect.
(e)
Equity Contributions
. After giving effect to such
Loan on such Disbursement Date, the ratio of (x) the aggregate amount of Equity Contributions theretofore made or to be made on or prior to such Disbursement Date for application to Project Costs to (y) the aggregate amount of the Loans
theretofore made or to be made on or prior to such Disbursement Date shall not be less than 20:80. For the avoidance of doubt, in no event shall the Borrower be permitted to have any Disbursement amounts received on such Disbursement Date released
to the Offshore Construction Account or otherwise utilized until the Facility Agent has received evidence that such Equity Contributions have been received.
(f)
Loans
. The Unutilized Commitments following the making of such Loan, together with the undisbursed
equity commitment (including Subordinated Loans and, for the avoidance of doubt, any undisbursed contingent equity commitment) under the Equity Support Deed, will be no less than the amount necessary to pay Project Costs remaining to be paid
following the application to Project Costs of the amount of such Loan.
19
(g)
Shipyard Delivery Date Loans
. In the event such Loan
is to be a Shipyard Delivery Date Loan, the Facility Agent shall have received each of the following documents, and the satisfaction of the conditions precedent set forth below, each of which shall be in form and substance satisfactory to the all
Lenders and in full force and effect (unless, in each case, waived by the Facility Agent (acting on the instructions of all Lenders):
(i)
Registration
. The Facility Agent shall have received evidence confirming that (A) the FPSO has
been registered in the name of the Borrower through the port of registry under the laws and flag of the Commonwealth of the Bahamas and (B) no Liens are registered against the FPSO on such register. Any other action required under applicable
Law to perfect the first priority Liens intended to be created by the Mortgage shall have been effected, and the Collateral Agent shall have received (x) acknowledgment copies or other evidence satisfactory to it that all necessary filing,
notarization, recording and other fees and all taxes and expenses related to such registration have been paid in full and (y) an opinion of Bahamas counsel to the Borrower with respect to such registration and the legality, validity and
enforceability of such Mortgage.
(ii)
Classification
. The Facility Agent shall have received
evidence that the FPSO is classified by the American Bureau of Shipping (“
ABS
”) to comply with and be certified in accordance with Articles 8.8 and 9.1(a) of the EPC Contract, together with a copy of the inspection report or
certificate issued by ABS.
(iii)
Insurance
. The Facility Agent shall have received a certified copy
of the insurance policies required by
Section 5.9
hereof to be delivered prior to the Shipyard Delivery Date or certificates of insurance with respect thereto together with a report from the Insurance Advisor regarding such policies and
compliance with such
Section 5.9
.
(iv)
Payment of Contract Price
. The Facility Agent
shall have received evidence that, upon payment of the proceeds of such Shipyard Delivery Date Loans taken together with any Equity Contributions in connection therewith, the Borrower shall have paid in full (A) the Contract Price, other than
the five percent (5%) amount to be paid upon the submission of
as-built
documents, and (B) all amounts payable under all OFE Supply Contracts to the OFE Suppliers.
(v)
Shipyard Delivery Documents
. The Facility Agent shall have received copies, certified by an
Authorized Officer of the Borrower to be true and complete copies, of the forms of all documents to be delivered by the EPC Contractor under Article 9.5 of the EPC Contract, in each case in form and substance satisfactory to the Technical Advisor,
and the Borrower shall have confirmed that arrangements have been made so that following payment of the final Construction Milestone payment under the EPC Contract (x) such documents will be promptly delivered to the Borrower executed by the
EPC Contractor and (y) copies of such documents, certified by an Authorized Officer of the Borrower to be true and complete copies, will be delivered to the Facility Agent promptly, and in no event later than thirty (30) days following
such payment.
(vi)
Technical Advisor Report
. The Facility Agent shall have received a Technical
Advisor Report relating to the Delivery (as defined in the EPC Contract) of the FPSO which shall be based on an inspection of the FPSO immediately prior to such Delivery.
20
(vii)
ISM Code
. The Facility Agent shall have received
evidence that the FPSO has been certified to be in compliance with the International Safety Management (ISM) Code.
(h)
Other Documents
. The Facility Agent shall have received such other statements, certificates,
documents, approvals and legal opinions as the Facility Agent may reasonably request.
The acceptance of the proceeds of
each Loan shall constitute a certification by the Borrower to the relevant Lenders confirming the satisfaction of the applicable conditions set forth in clauses (a) through (h) of this
Section 3.2
upon the making of such Loan
(other than as to whether the Facility Agent or any Lender is in fact satisfied with respect to (i) any document delivered or (ii) any other matter required under this
Section 3
).
If, in respect of any Notice of Borrowing, the Technical Advisor is not able to opine that the Commercial Operation Date shall
occur on or before the Date Certain, as required by
Section 3.2(a)
, then the Borrower and the Facility Agent shall upon written request of the Borrower promptly meet to discuss the reasons in consultation with the Technical Advisor with
a view to determining whether it is reasonable to propose to the Lenders, within a period of not more than ten (10) days from the start of such discussions, that such proposed Disbursement should occur, notwithstanding the Technical
Advisor’s inability to opine that the Commercial Operation Date shall occur on or before the Date Certain.
3.3
Project Completion Date
. The occurrence of the Project Completion Date shall be subject to the receipt by the Facility Agent of each of the agreements and other documents, and the satisfaction of the conditions precedent, set forth below, each
of which shall be in form and substance satisfactory to the Facility Agent (acting on the instructions of all of the Lenders) and in full force and effect (unless, in each case, waived by the Facility Agent (acting on the instructions of all of the
Lenders)):
(a)
Governmental Approvals
. All Necessary Governmental Approvals, which under applicable
Law were required to be obtained prior to the Project Completion Date, shall have been duly obtained and shall be in full force and effect and free from conditions or requirements the compliance with which could reasonably be expected to have a
Material Adverse Effect or which the Borrower does not reasonably expect to be able to satisfy, and the Facility Agent shall have received a copy of each such Necessary Governmental Approval not previously delivered to the Facility Agent on or prior
to the Project Completion Date.
(b)
Work Completion
. (i) The Work (except for Punch List
items) shall have been completed in accordance with the Construction Contracts in all material respects and in compliance in all material respects with all applicable Laws and Necessary Governmental Approvals, and all ancillary construction,
upgrades and improvements necessary for the operation of the Project as contemplated by the Transaction Documents shall have been completed, and the Shipyard Delivery Date shall have occurred;
(ii) all Project Costs (including any cost overruns in respect of Project Costs) have been paid other than in
respect of (x) any remaining Punch List items, (y) Advance Working Capital Expenses for which amounts are available under the undrawn Commitments and under the Equity Support Deed, and (z) Petrobras Delay LD Amounts covered by amounts
available to pay such amounts in the Delay LD Reserve
Sub-account
or by amounts available under the Equity Support Deed;
21
(iii) each remaining Petrobras Punch List item has been assessed
by Petrobras, all remaining Punch List items in the aggregate cannot reasonably be expected to have a material adverse effect on the operations of the FPSO, and the total cost to the Borrower to complete such Punch List items does not exceed
$3,500,000; and
(iv) an amount no less than such total cost amount set forth in item (iii) above is
on deposit in the Offshore Construction Account or in the Offshore Distribution Holding Account (or is otherwise available to the Borrower in the reasonable opinion of the Facility Agent acting upon the instructions of the Required Lenders) and is
available to pay such costs, as confirmed by the Facility Agent.
(c)
Completion Certificates
. The
Facility Agent shall have received (i) an executed counterpart of the Borrower Completion Certificate (the statements contained in which shall be true and correct in all material respects), and (ii) an executed counterpart of the Technical
Advisor Completion Certificate confirming,
inter alia
, each of the items in
Section 3.3(b)
above.
(d)
Commercial Operation Date; Petrobras Acceptance
. The Commercial Operation Date shall have occurred,
and Petrobras shall have formally accepted the FPSO.
(e)
Opinions
. The Facility Agent shall have
received executed counterparts of such supplemental opinions of counsel to Borrower and Project Participants as the Facility Agent may reasonably request with respect to the matters described in clauses (a), (i) and (j) of this
Section 3.3
.
(f)
Operating Plans
. The Operator shall have adopted an Operating Plan for
the period from the Commercial Operation Date through the end of the first Operating Year of the FPSO in accordance with
Section 5.23(a)
.
(g)
Base Case Projections
. The Facility Agent shall have received Base Case Projections updated as of
the Project Completion Date for the FPSO and otherwise meeting the requirements of
Section 3.1(j)
.
(h)
Payments due under the Construction Management Agreement
. All amounts due and payable under the
Construction Management Agreement shall have been paid.
(i)
Central Bank Registration
. The Facility
Agent shall have received evidence of registration of the Charter Agreement with the Central Bank of Brazil in order to allow for payments by Petrobras thereunder to be made to the Borrower and the enrolment of the Borrower with the Brazilian
Federal Taxpayers’ Registry.
(j)
Updated Mortgage
. The Facility Agent shall have received
evidence confirming that the Mortgage has been updated to reflect the conversion of the Vessel into the FPSO and that any other action required under applicable Law to perfect the first priority Liens intended to be created by the Mortgage (as so
updated) have been effected, and the Collateral Agent shall have received (x) acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and all taxes and expenses related to
such registration have been paid in full and (y) an opinion of Bahamas counsel to the Borrower with respect to such registration and the legality, validity and enforceability of such Mortgage.
(k)
Management Services Agreements
. Each of the Specialized Oil Industry Services Agreement, the Asset
Maintenance Agreement, and the Consent Agreements to be executed in connection therewith shall have been duly authorized, executed and delivered by each party thereto and shall be in full force and effect.
22
(l)
Class Certificate
. The Facility Agent shall have
received a copy of the full term class certificate for the FPSO issued by ABS and containing no recommendations, qualifications or conditions, and such full term class certificate shall replace any interim or temporary certificate for the FPSO (but
may be subject to renewal from time to time after its issuance).
(m)
EPC Warranty Guarantee
. Each
of the EPC Warranty Guarantee and the Consent Agreement to be executed in connection therewith shall have been duly authorized, executed and delivered by each party thereto and shall be in full force and effect.
(n)
EPC Contract
. The Facility Agent shall have received executed copies of the documents required to be
delivered by the EPC Contractor to the Borrower under Article 9.5 of the EPC Contract following payment of the final Construction Milestone payment under the EPC Contract, certified by an Authorized Officer of the Borrower to be true and complete
copies.
Section 4. Representations, Warranties and Agreements
In order to induce each of the Lenders to enter into this Agreement and to make the Loans, the Borrower makes the following
representations, warranties and agreements as of the date hereof, all of which shall survive the execution and delivery of this Agreement and the making and continuance of the Loans (the Repeating Representations shall be deemed to be made by the
Borrower on the Effective Date, on the date of each Disbursement and on the first day of each Interest Period in each case by reference to the facts and circumstances then existing on such dates):
4.1 Organization; Ownership
. (a) The Borrower is a limited partnership (
Kommanditgesellschaft
) duly
organized, validly existing and in good standing under the laws of the Republic of Austria. The Borrower is duly authorized and qualified to do business and is in good standing in each jurisdiction in which it owns or leases Property or in which the
conduct of its business requires it to so qualify, except where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect. The Borrower has the requisite limited partnership power and authority to own or lease and
operate its Properties, to carry on its business (including with respect to the Project), to borrow money, to create the Security Interests as contemplated by the Security Documents to which it is or will be a party and to execute, deliver and
perform each Transaction Document to which it is or will be a party.
(b) As of the Effective Date:
(i) each of the Sponsors owns indirectly fifty percent (50% of each class of the Equity Interests of the
Borrower, and the Borrower owns directly
ninety-nine
point
ninety-nine
percent (99.99%) of each class of the Equity Interests of the Operator;
(ii) each of the Shareholders owns directly fifty percent (50%) of each class of Equity Interests of the
General Partner;
(iii) each of the Shareholders owns directly fifty percent (50%) of the limited
liability partnership interest (
Kommanditanteil
) of the Borrower;
(iv) the General Partner owns
directly one hundred percent (100%) of the general partnership interests (
Komplementäranteil
) of the Borrower;
(v) the Shareholders and the General Partner together own directly one hundred percent (100%) of each
class of Equity Interests of the Borrower;
(vi)
OOG-TKP
Operator
Holdings Limited owns directly zero point zero one percent (0.01%) of each class of Equity Interests of the Operator; and
(vii) OOG-TKP FPSO & Co KG owns one hundred percent (100%) of each class of Equity Interests of
OOG-TKP
Operator Holdings Limited.
23
4.2 Authority and Consents.
(a) The execution, delivery and
performance by the Borrower of each Financing Document to which it is or will be a party, and the transactions contemplated by the Financing Documents: (i) are within its organizational powers and have been duly authorized by all necessary
partnership action; (ii) will not breach, contravene, violate, conflict with or constitute a default under (A) any of its Organizational Documents, (B) any applicable Law or (C) any contract, loan, agreement, indenture, mortgage,
lease or other instrument to which it is a party or by which it or any of its Properties may be bound or affected, including all applicable Governmental Approvals and the Transaction Documents; and (iii) except for the Security Interests, will
not result in or require the creation or imposition of any Lien upon or with respect to any of the Properties of the Borrower.
(b) Each Financing Document to which the Borrower is a party (i) has been duly executed and delivered by the Borrower and
(ii) when executed and delivered by each of the other parties thereto, will be the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to, with respect to the Borrower, the
Legal Qualifications.
(c) No authorization, consent or approval of, or notice to or filing with, any Governmental
Authority or any other Person has been, is or will be required to be obtained or made (i) for the due execution, delivery, recordation, filing or performance by the Borrower of any of the Transaction Documents to which it is a party or any
transaction contemplated by the Transaction Documents, (ii) for the grant by the Borrower, or the validity, enforceability, perfection and maintenance, of the Security Interests (including the first priority nature thereof) or (iii) for
the exercise by the Collateral Agent or any other Secured Party of any of its rights under any Transaction Document or any remedies in respect of the Collateral pursuant to the Security Documents or the admissibility in evidence of any Transaction
Documents, except for the authorizations, consents, approvals, notices and filings listed on
Schedule 4.2
, all of which have been duly obtained, taken, given or made and are in full force and effect.
4.3
Capitalization; Indebtedness; Investments
.
(a)
Schedule 4.3
contains, as of
the Effective Date, a true and complete list of all of the authorized and outstanding Equity Interests of the Borrower by class, all commitments to make capital contributions to the Borrower and all capital contributions previously received by the
Borrower. All of the Equity Interests of the Borrower have been duly authorized and validly issued and are fully paid and nonassessable. None of such Equity Interests have been issued in violation of any applicable Law or the Organizational
Documents of the Borrower. Except as set forth in the Financing Documents, the Borrower is not a party or subject to, does not have outstanding and is not bound by, any subscriptions, options, warrants, calls, agreements, preemptive rights,
acquisition rights, redemption rights or any other rights or claims of any character that restrict the transfer of, require the issuance of, or otherwise relate to any shares of its Equity Interests. The Equity Interests of the Borrower are owned
beneficially and of record by the Persons set forth in
Schedule 4.3
. Except for the Liens created by relevant Pledge Agreement, there is no Lien on any of the Equity Interests of the Borrower, and the Borrower has not been notified of
the assignment of all or any part of the Shareholders’ or the General Partner’s Investments in the Borrower other than the assignment in favor of the Collateral Agent pursuant to the Pledge Agreements.
(b) As of the Effective Date, (i) other than the Indebtedness under the Transaction Documents and (prior to the first
Disbursement Date) the Bridge Loan Agreement, the Borrower has no Indebtedness of any nature, whether due or to become due, absolute, contingent or otherwise, and (ii) the Borrower holds no Investments other than Investments permitted by
Section 5.15
.
24
4.4 Financial Condition
.
(a) The Borrower has delivered to the
Facility Agent the financial information of the Borrower, the General Partner and the Operator as at and for the fiscal period ended on April 30, 2015, prepared in accordance with the Accounting Principles and certified by a chief or senior
financial officer of the Borrower. Such financial information fairly presents the financial condition of the Borrower as at such date and the results of its operations for the period ended on such date. Such financial information has been prepared
in accordance with the Accounting Principles consistently applied and the related reconciliations thereof have been prepared in accordance with the Accounting Principles consistently applied.
(b) As of the Effective Date, the Borrower has no outstanding obligations or liabilities, fixed or contingent, except for the
obligations and liabilities under the Bridge Loan Agreement or as disclosed in the financial statements described in (a) above or incurred pursuant to the Transaction Documents since the date of such financial statements. As of the Effective
Date, since the date of the financial statements described in (a) above, no event, condition or circumstance exists or has occurred which has resulted in or could reasonably be expected to result in a material adverse change in the financial
condition, operations, business or a material portion of the Property of the Borrower from that set forth in such financial statements.
4.5
Litigation; Labor Disputes
.
Other than any such actions which have only been threatened and have not
and could not reasonably be expected to have a Material Adverse Effect, there is no action, suit, other legal proceeding, arbitral proceeding, inquiry or investigation (including any Environmental and Social Claims) pending or, to the best of the
Borrower’s knowledge, threatened by or before any Governmental Authority or in any arbitral or other forum, nor any order, decree or judgment in effect, pending, or, to the best of the Borrower’s knowledge, threatened (a) against or
affecting the Borrower or any material part of its Properties or rights, or (b) to the best of the Borrower’s knowledge, against or affecting any Project Participant or any of its Properties or rights, that, in the case of this
clause (b), (i) relates to the Project, any of the Transaction Documents or any of the transactions contemplated thereby, and (ii) has, or could reasonably be expected to have, a Material Adverse Effect. There are no ongoing strikes,
slowdowns or work stoppages by the employees of the Borrower or the Operator, nor, to the best of its knowledge, are any such employee actions currently threatened. There are no ongoing strikes, slowdowns or work stoppages by the employees of any
Construction Contractor or Petrobras, nor, to the best of the Borrower’s knowledge, are any such employee actions threatened, which have, or could reasonably be expected to have, a Material Adverse Effect.
4.6
Governmental Approvals
.
(a) As of the Effective Date, all Necessary Governmental Approvals,
except for those set forth in
Schedule 4.6
, have been duly obtained or made, were validly issued, are in full force and effect, are held in the name of the Borrower (or, as applicable, the relevant Project Participant) and are free from
conditions or requirements the compliance with which could reasonably be expected to have a Material Adverse Effect or which the Borrower or, to the Borrower’s knowledge, the relevant Project Participant does not reasonably expect to be able to
satisfy. No event has occurred that could reasonably be expected to (i) result in the revocation, termination or adverse modification of any such Necessary Governmental Approval, (ii) materially and adversely affect any rights of the
Borrower under any such Necessary Governmental Approval or (iii) to the Borrower’s knowledge, affect any rights of any Project Participant under any such Necessary Governmental Approval, which, in the case of clause (iii), could
reasonably be expected to have a Material Adverse Effect.
(b) As of the Effective Date, the Governmental Approvals set
forth in
Schedule 4.6
are not required for the current stage of the Project and are not customarily obtained until a later stage of the Project has commenced. As of the Effective Date, the Borrower has no reason to believe that any
Necessary Governmental Approvals which are not required to have been obtained by the Borrower as of the Effective Date, but which will be required in the future (including those set forth in
Schedule 4.6
), will not be granted in due
course prior to the time when needed free from conditions or requirements which the Borrower or, to the Borrower’s knowledge, the relevant Project Participant does not reasonably expect to be able to satisfy or compliance with which could
reasonably be expected to have a Material Adverse Effect.
25
(c) The FPSO, if imported, constructed, owned and operated in accordance with the
Plans and Specifications and the Project Documents, will conform to and comply, in each case, in all material respects with all covenants, conditions, restrictions and requirements in all Necessary Governmental Approvals, in the Transaction
Documents applicable thereto and under all other Laws applicable thereto.
4.7
Use of Proceeds
.
The
proceeds of the loans made under the Bridge Loan Agreement have been used solely to finance Project Costs, and the proceeds of each Loan made or to be made hereunder will be used solely in accordance with, and solely for the purposes contemplated
by,
Section 2.1(c)
.
4.8
Taxes
.
(a) The Borrower has timely filed with the appropriate
taxing authority all tax and informational returns which are required to be filed by or with respect to the income, Properties or operations of the Borrower. The Borrower, or (if due to the Borrower’s tax transparency under Austrian tax laws,
such taxes are payable by the Shareholders) the Shareholders, has or have paid all taxes due pursuant to such returns or otherwise payable by the Borrower, or (if due to the Borrower’s tax transparency under Austrian tax laws, such taxes are
payable by the Shareholders) the Shareholders, except such taxes, if any, as are being contested in good faith and by proper proceedings and for which enforcement of the contested item has been effectively stayed and as to which adequate reserves
have been provided in accordance with the Accounting Principles. There is no action, suit, proceeding, investigation, audit, or claim now pending or, to the best knowledge of the Borrower, threatened by any authority regarding any taxes relating to
the Borrower. The Base Case Projections reflect the Borrower’s analysis of applicable tax Laws, undertaken in good faith, and its reasonable good faith estimates of all material taxes that, under present Law, will be due and payable by the
Borrower and the Operator assuming that the Borrower has the income and expenses reflected in the Base Case Projections.
(b) Except as contemplated in the Base Case Projections, no material liability for any tax (including, without limitation,
stamp duty under the Austrian Stamp Duty Act (
Gebührengesetz
)) will be incurred by the Borrower as a result of the execution, delivery or performance of this Agreement or any other Transaction Document or the consummation of the
transactions contemplated hereby or thereby.
(c) As of the Effective Date, no withholding or other tax is required under
Austrian law to be paid in respect of, or deducted from, any payment required to be made by the Borrower under this Agreement or any other Transaction Document to which it is a party.
4.9
Title; Security Documents
.
(a) The Borrower will, upon payment of all amounts payable by it
under the EPC Contract and delivery and acceptance of the FPSO pursuant to Article 9 of the EPC Contract, own and have good, valid and marketable title to the FPSO, free and clear of all Liens other than Permitted Liens.
(b) The Borrower has good, valid and marketable title to the Vessel and all other Property (including all FPSO Property)
purported to be owned by it, free and clear of all Liens, other than Permitted Liens, and holds such title and all of such Property in its own name and not in the name of any nominee or other Person. The Borrower is lawfully possessed of a valid and
subsisting leasehold estate in and to all Property which it purports to lease, free and clear of all Liens, other than Permitted Liens, and holds such leaseholds in its own name and not in the name of any nominee or other Person. The Borrower has
not created and is not contractually bound to create any Lien on or with respect to any of its assets, Properties, rights or revenues, except for Permitted Liens, and, except under the Transaction Documents, the Borrower is not restricted by
contract, law or otherwise from creating Liens on any of its Properties.
26
(c) The provisions of the Security Documents to which the Borrower or the
Operator is a party delivered or to be delivered prior to the Closing Date are, and each other Security Document to which the Borrower or the Operator is a party when delivered will be, effective to create, in favor of the Collateral Agent for the
benefit of the Secured Parties, legal, valid and enforceable Liens on or in all of the Collateral intended to be covered thereby, each such Lien secures all of the Obligations, and all necessary recordings and filings have been (or, in the case of
such other Security Documents, will be) made in all necessary public offices and all other necessary and appropriate action has been (or, in the case of such other Security Documents, will be) taken so that the Liens created by each such Security
Document constitute perfected Liens on or in the Collateral intended to be covered thereby, prior and superior to all other Liens (other than Permitted Liens), and all necessary consents to the creation, effectiveness, priority and perfection of
each such Lien have been (or, in the case of such other Security Documents, will be) obtained. No mortgage or financing statement or other instrument or recordation covering all or any part of the Collateral is on file in any recording office,
except such as may have been filed in favor of the Secured Parties or in respect of Permitted Liens.
4.10
Environmental and Social Matters
.
(a) Each of the Borrower and the Operator has at all times complied and is complying with the Environmental and Social Action Plan and the Environmental and Social Requirements with respect to the
Facilities in all material respects.
(b) There is no Environmental and Social Claim outstanding or pending in respect of
or in connection with the Facilities, which Environmental and Social Claim has or is reasonably likely to have a material adverse effect on the implementation or operation of the Project in accordance with the Environmental and Social Requirements.
4.11
Subsidiaries
.
As of the Effective Date, the Borrower has no Subsidiaries other than the
Operator and does not beneficially own any Equity Interests or other ownership interest of any other Person.
4.12
Intellectual Property
.
Except where failure to do so could not reasonably be expected to have a Material Adverse Effect, the Borrower owns or has the right to use all patents, trademarks, permits, service marks, trade names,
copyrights, franchises, formulas, licenses and other rights with respect thereto, and has obtained an assignment of all licenses and other rights of whatsoever nature currently necessary for the Project and the operation of its business as currently
contemplated without any conflict with the rights of others. Except where the same could not reasonably be expected to have a Material Adverse Effect, no product, process, method, substance, part or other material sold or employed or presently
contemplated to be sold by or employed by the Borrower in connection with its business infringes or will infringe any patent, trademark, permit, service mark, trade name, copyright, franchise, formula, license or other intellectual property right.
4.13
Project Documents
.
(a) Except for contracts, agreements, side letters, leases, powers of
attorney or other instruments or documents relating to services, materials or rights that can reasonably be expected to be available on commercially reasonable terms at the time required, the Project Documents and such other Additional Project
Documents as may be entered into in accordance with this Agreement constitute all contracts, agreements, side letters, leases, powers of attorney or other instruments or documents (other than, for the avoidance of doubt, documents related to
Governmental Approvals) that are necessary for (i) the Project and (ii) the conduct of the business of the Borrower as contemplated by the Transaction Documents. As of the Effective Date each Project Document delivered or to be delivered
pursuant to
Section 3.1(a)(i)
to which the Borrower is a party has been duly authorized, executed and delivered by the Borrower, is in full force and effect and is binding upon and enforceable against the Borrower in accordance with its
terms, subject to the Legal Qualifications. The Borrower, and to the best of its knowledge, each Project Participant, is in compliance in all material respects with the terms and conditions of the Project Documents and any Additional Project
Documents to which it is a party, and to the best knowledge of the Borrower, no event has occurred that could reasonably be expected to (A) result in an event of default under, or a material breach of, any Project Document or Additional Project
Document, (B) result in the revocation, termination or adverse modification of any Project Document or Additional Project Document or (C) adversely affect any material right of the Borrower under any Project Document or Additional Project
Document, other than in each case as has been previously notified in writing by the Borrower to the Facility Agent.
27
(b) All representations and warranties of the Borrower and, to the
Borrower’s knowledge, the other parties thereto, contained in the Project Documents are true and correct in all material respects (without giving effect to any “material,” “materially,” “materiality,”
“material adverse effect” or similar qualifiers contained in any of such representations and warranties) (except to the extent that any such representation or warranty is expressed to be made only as of an earlier date, in which case such
representation or warranty was true and correct in all material respects (without giving effect to any “material,” “materially,” “materiality,” “material adverse effect” or similar qualifiers contained in any
of such representations and warranties) on and as of such earlier date).
(c) All conditions precedent to the obligations
of the respective parties under the Project Documents have been satisfied or waived in writing (with a copy of such waiver provided to the Facility Agent), except for such conditions precedent which by their terms will not be (and are not required
to be) met until a later stage in the construction or operation of the FPSO, and the Borrower has no reason to believe that any such conditions precedent cannot be satisfied or waived prior to the time when such conditions are required to be met
pursuant to the applicable Project Documents.
(d) As of the Closing Date, the Borrower is not a party to any agreement or
contract other than (x) the Transaction Documents and (y) as an intervening party, the Joint Venture Agreement. As of the Closing Date, each of the Project Documents delivered or to be delivered pursuant to
Section 3.1(a)(i)
consists only of the original document (including exhibits and schedules) and the amendments thereto expressly described in the relevant definitions appearing in
Appendix A
hereto, and there are no other amendments or waivers or
supplements, written or oral, with respect thereto. The Facility Agent has received a true and complete copy of each such Project Document, including all exhibits, schedules and disclosure letters referred to therein or delivered pursuant thereto,
if any. None of such Project Documents has been amended or modified except as permitted under this Agreement.
4.14
No Default
.
No Default or Event of Default has occurred and is continuing.
4.15
Compliance with Laws
.
As of the Effective Date, the Borrower is not in violation of any Law (including any Environmental and Labour Law), Governmental Approval, order, writ, injunction or decree or its Organizational Documents in any
material respect. The Borrower and each of its Affiliates acting on its behalf is in compliance with all Sanctions Laws.
4.16
Disclosure
.
(a) All documents, reports or other written information (including any information
or reports relating to environmental or social matters), pertaining to the Borrower or the Project that have been furnished to any Agent or any Lender by or on behalf of the Borrower prior to the date of this Agreement (including (i) any
application to any Lender for the extensions of credit provided in the Financing Documents, (ii) the Financing Documents, including the exhibits and schedules attached thereto, (iii) all other written information relating to the Borrower
or the Project provided by the Borrower to any Agent or any Lender and (iv) any such documents, reports or other written information provided by the Sponsor, the Operator or any Affiliate thereof, but excluding the Base Case Projections, the
Capex Budget and other forecasts and projections), taken as a whole, are, as of the date of this Agreement, true and correct in all material respects and do not contain any material misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained herein or therein not materially misleading as of the date of this Agreement. As of the date of this Agreement, there is no fact, event or circumstance known to the Borrower that has not been disclosed to
the Facility Agent in writing, the existence of which could reasonably be expected to have a Material Adverse Effect.
28
(b) As of the Closing Date, the Capex Budget accurately specifies in all material
respects all costs and expenses incurred and the Borrower’s reasonable good faith estimates of all costs and expenses anticipated by the Borrower to be incurred to achieve the Commercial Operation Date on or prior to the Date Certain in the
manner contemplated by the Transaction Documents. The Capex Budget and the Base Case Projections, as of the Closing Date, (i) are based on reasonable assumptions as to all legal and factual matters material to the estimates set forth therein,
(ii) are not inconsistent with the provisions of the Transaction Documents in any material respect, (iii) have been prepared in good faith and with due care and (iv) fairly represent the Borrower’s reasonable expectations as to
the matters covered thereby as of their date. All projections and budgets furnished or to be furnished to the Lenders by or on behalf of the Borrower after the Closing Date (A) are and will be based on reasonable assumptions as to all legal and
factual matters material to the estimates set forth therein, (B) are and will be consistent with the provisions of the Transaction Documents in all material respects, (C) are and will be prepared in good faith and with due care and
(D) are and will fairly represent the Borrower’s reasonable expectations as to the matters covered thereby as of their respective dates.
4.17
Immunity
.
The Borrower is subject to civil and commercial law with respect to its Obligations under
the Financing Documents, and the execution, delivery and performance of the Financing Documents by the Borrower constitute private and commercial acts rather than public or governmental acts. Neither the Borrower nor any of its Properties has any
immunity from suit, court jurisdiction, attachment prior to judgment, attachment in aid of execution of a judgment,
set-off,
execution of a judgment or from any other legal process with respect to the
Obligations of the Borrower under the Financing Documents.
4.18
Transactions with Affiliates
.
As of
the Closing Date (other than as expressly contemplated in the Transaction Documents), the Borrower is not engaged in or subject to any agreement to engage in any transactions (including any transactions relating to the buying or selling of any
Properties or any products of the Project or involving the receipt of money as payment for goods or services) with any Affiliate of the Borrower other than transactions entered into on an
arms-length
basis
relating to the Project.
4.19
Commercial Operation Date; Change Orders
.
(a) As of the Closing
Date, the Borrower estimates, in good faith, that the Commercial Operation Date will occur no later than the Date Certain and that the aggregate proceeds of the Loans, together with the aggregate Equity Contributions to be made by the Sponsors for
application to Project Costs, will be sufficient to achieve the Commercial Operation Date by such date.
(b) As of the
Closing Date, no Change Order has been proposed except for the Disclosed Change Orders.
4.20
Single-Purpose
Entity; Centre of Main Interests
.
(a) As of the Effective Date the Borrower has not engaged in any business other than the development of the Project and activities ancillary thereto
and activities expressly contemplated in the Transaction Documents.
(b) For the purposes of The Council of the European
Union Regulation No. 1346/2000 on Insolvency Proceedings (the “
Regulation
”), its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in Austria and it has no “establishment”
(as that term is used in Article 2(h) of the Regulation) in any other jurisdiction.
29
(c) The Borrower substantially carries on its business and has its operation in
Austria.
4.21
Availability and Transfer of Foreign Currency
.
Other than the registration of the
Charter Agreement with the Central Bank of Brazil in order to allow for payments by Petrobras thereunder to be made to the Borrower and the enrollment of the Borrower with the Brazilian Federal Taxpayers’ Registry, (a) no foreign exchange
control approvals or other authorizations by the government of Brazil or any Governmental Authority therein or thereof are required to assure the availability of Dollars to enable the Borrower to perform its obligations under the Transaction
Documents in accordance with their terms, (b) there are no legal restrictions or requirements which limit the availability or transfer of foreign exchange for the purpose of the performance by the Borrower and each Agent of their respective
obligations under this Agreement and the other Financing Documents and (c) there are no legal restrictions or requirements which limit the availability or transfer of foreign exchange for the purpose of remitting the proceeds of enforcement of
the Obligations or the Collateral to any Secured Party.
4.22
Ranking
. The payment obligations of the
Borrower in respect of the Loans rank at least
pari passu
with the claims of all of its other unsecured creditors, except for obligations mandatorily preferred by law applying to companies generally.
4.23
Restricted Parties; Sanctions;
Anti-Money
Laundering;
Anti-Corruption
.
(a) The Borrower and its Subsidiaries and each of their respective joint ventures and each of their respective directors, officers, employees, agents or representatives acting as such and, to the Borrower’s
knowledge, any other person or persons acting on behalf of any of the foregoing have been and are in compliance with Sanctions Laws,
Anti-Money
Laundering Laws and
Anti-Corruption
Laws, and the Borrower has instituted and maintains and will continue to maintain policies and procedures designed to promote and achieve compliance with the laws referred to in this
Section 4.23(a)
.
(b) Neither the Borrower nor any of its Subsidiaries or any of their respective joint
ventures nor any of their respective directors, officers, employees, agents or representatives acting as such nor, to the Borrower’s knowledge, any other person acting on behalf of any of the foregoing: (i) is a Restricted Party, or is
involved in any transaction through which it is likely to become a Restricted Party; or (ii) is subject to or involved in any inquiry, claim, action, suit, proceeding or investigation against it with respect to Sanctions Laws by any Sanctions
Authority, with respect to
Anti-Money
Laundering Laws or with respect to Anti-Corruption Laws.
(c) No part of the proceeds of any Loan will be used, directly or indirectly, by the Borrower for any payments that could
constitute a violation of any Anti-Corruption Law.
Section 5.
Covenants
The Borrower covenants and agrees with each of the Lenders that, so long as any Commitment or any Loan or any other Obligation
is outstanding and until payment in full of all amounts payable by the Borrower to the Secured Parties under the Financing Documents:
5.1
Financial Statements and Other Information
.
The Borrower shall deliver or cause to be delivered to the
Facility Agent:
(a)
Semi-annual
Financial Statements
.
As soon as available and in any event within ninety (90) days after the end of the first fiscal
half-year
of the Borrower in each fiscal year, a copy of the complete unaudited, consolidated statements
of income, retained earnings and cash flow of the Borrower and the related unaudited, consolidated balance sheet of the Borrower as at the end of such period, setting forth in each case in comparative form the corresponding figures for the
corresponding period in the preceding fiscal year, if any, accompanied by an Officer’s Certificate which shall state that said financial statements fairly present the financial condition and results of operations of the Borrower in accordance
with the Accounting Principles, consistently applied, as at the end of, and for, such periods (subject to normal
year-end
audit adjustments);
30
(b)
Annual Financial Statements
.
As soon as
available and in any event within one hundred fifty (150) days after the end of each fiscal year of the Borrower, a copy of the complete audited, consolidated statements of income, retained earnings and cash flow of the Borrower and the related
audited, consolidated balance sheet of the Borrower as at the end of such year and any related audit letter, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, and accompanied by an unqualified
opinion thereon of PWC PricewaterhouseCoopers Wirtschaftsprüfung und Steuerberatung GmbH, or another firm of independent certified public accountants of recognized international standing, which opinion shall state that said financial statements
fairly present the financial condition and results of operations of the Borrower as at the end of, and for, such fiscal year in accordance with the Accounting Principles, that the related reconciliations thereof have been prepared in accordance with
the Accounting Principles;
(c)
Officer’s Certificate
.
At the time it
furnishes each set of financial statements pursuant to
Section 5.1(a)
or
Section 5.1(b)
, an Officer’s Certificate, certifying that, to the best of such person’s knowledge, no Default or Event of Default has occurred
and is continuing (or, if any Default or Event of Default has occurred and is continuing, describing the same in reasonable detail and describing what action the Borrower has taken and proposes to take with respect thereto);
(d)
Debt Service Coverage Ratio
.
On or prior to each Calculation Date, a calculation
(together with supporting data in reasonable detail) of the Debt Service Coverage Ratio for the
twelve-month
period ending on the Quarter Date immediately preceding such Calculation Date (or such shorter
period as has occurred since the Commercial Operation Date), certified by an Authorized Officer of the Borrower, together with supporting data in reasonable detail;
(e)
Defaults
.
Promptly after any officer or director of the Borrower knows or has a
reasonable basis to believe that any Default or Event of Default or any material default by any Project Participant under any Project Document has occurred, a written notice of such event describing the same in detail satisfactory to the Facility
Agent and, together with such notice, a description of any action the Borrower or, if known by the Borrower, such Project Participant has taken and/or proposes to take with respect thereto;
(f)
Progress Reports
.
Promptly upon receipt thereof, a copy of each progress report
received by the Borrower from the EPC Contractor, including a copy of each report required under Article 4 of the EPC Contract, a copy of each such report to be delivered by the Borrower to the Technical Advisor at the same time delivered to the
Facility Agent;
(g)
Measurement Reports
.
Promptly upon receipt thereof, copies
of any measurement reports prepared by Petrobras under the Charter Agreement or the Services Agreement and, promptly after delivery thereof, copies of any invoices issued to Petrobras;
(h)
Notices
.
Promptly after delivery or receipt thereof, a copy of each material notice,
demand or other communication given or received by the Borrower (i) pursuant to or relating to any of the Transaction Documents (including all requests for amendments or waivers, all notices relating to any proposed changes in withholding tax
treatment applicable to payments under the Charter Agreement or the Services Agreement, and any notice by Petrobras relating to termination of the Charter Agreement or the Services Agreement) or pursuant to or relating to any Necessary Governmental
Approval, or (ii) to or from any Governmental Authority relating in any way to the Project;
31
(i)
Amendments to Project Documents
.
Without
prejudice to the limitations in
Section 5.25
, promptly after the execution of any amendment, modification, supplement or waiver of any Project Document, an executed copy thereof together with a brief description of the nature of such
document.
(j)
Environmental Reports
.
Simultaneously with the delivery thereof
to Petrobras (and without duplication of any such reports required to be delivered to the Facility Agent under the Environmental and Social Action Plan), copies of the ABS certificate and any annual environmental reports if required to be delivered
to Petrobras under the Charter Agreement and Services Agreement, with an English translation thereof to be provided as soon as available, but in any event no later than three (3) months, thereafter.
(k)
Technical Advisor Report
.
A Technical Advisor Report to be issued (i) on a
semi-annual
basis during the period commencing on the Closing Date and ending on the date which is twelve (12) months prior to the Shipyard Delivery Date and (ii) thereafter, until the Commercial Operation
Date, on a quarterly basis.
(l)
Environmental and Social Action Plan Reports
.
Any report as and when required under the Environmental and Social Action Plan including, where any requirement of such Environmental and Social Action Plan has not been satisfied, details of any actions taken or to be taken in order to satisfy such
requirement.
(m)
Appraisal
.
No later than thirty (30) days after the end of each
calendar year, an Appraisal (produced and issued at the Borrower’s sole cost and expense) in respect of such preceding calendar year from an Independent Appraiser in scope and form satisfactory to the Facility Agent, acting reasonably, it being
understood that the first such Appraisal under this
Section 5.1(m)
shall be delivered no later than thirty (30) days after the end of the calendar year during which the Commercial Operation Date occurs.
(n)
Other Information
.
From time to time such other information regarding the condition,
operations, business or Properties of the Borrower or, to the extent obtainable by the Borrower upon the exercise of its reasonable efforts, the Project or any Project Participant, including without limitation (but without duplication to information
required to be provided in connection with any other provision of this Agreement), copies of any relevant compliance documents provided under the Services Agreements, the Operator’s “Document of Compliance”, the FPSO’s
“Safety Management Certificate”, and the “International Ship Security Certificate” issued under the International Ship and Port Facility Security (ISPS) Code and documents evidencing compliance with the International Safety
Management (ISM) Code, as may reasonably be requested by the Facility Agent (acting at the reasonable request of any Lender).
5.2
Other Notices
.
The Borrower shall promptly, and in any event within five (5) Business Days,
after any officer or director obtains knowledge thereof, give to the Facility Agent notice of:
(a) any
pending or threatened (in writing) application or proceeding by or before any Governmental Authority for the purpose of revoking, terminating, withdrawing, suspending, modifying or withholding any Necessary Governmental Approval, other than, in the
case of any such threatened application or proceeding, where such revocation, termination, withdrawal, suspension, modification or withholding could not reasonably be expected to have a Material Adverse Effect;
32
(b) any litigation or proceeding affecting the (i) Borrower,
the General Partner or the Project in which the amount involved is $1,000,000 or more or in which injunctive, declaratory or similar relief is requested) or (ii) any Shareholder in which the amount involved is $5,000,000 or more or in which
injunctive, declaratory or similar relief is requested;
(c) any litigation, investigation or proceeding
affecting the Borrower, the General Partner or any other Project Participant which if adversely determined against such Person could reasonably be expected to result in a Material Adverse Effect;
(d) the discovery of (i) any material Environmental and Social Claim by any Governmental Authority or any
other Person or (ii) if it could reasonably be expected to result in a Material Adverse Effect, any violation of or liability under any Environmental and Labour Law, in each case against or affecting the Borrower, Petrobras or any Consortium
Member (in each case relating to the Project), the Sponsors (relating to the Project), the Shareholders, the General Partner or the Project;
provided
that, in the case of any such discovery, the Borrower shall or shall cause the Operator, as
appropriate, to thereafter provide to the Facility Agent information on the measures taken in order to correct or avoid such claim, violation or liability and, if further action or remedy is necessary, submit a proposal of amendment to the
Environmental and Social Action Plan to the Facility Agent (which shall provide a copy of such notice and any such amendment proposal to the Lenders promptly following receipt thereof);
(e) any request by any Person party to a Project Document for an arbitration proceeding or the invocation of
any other dispute resolution process under such Project Document;
(f) any (i) Taking or Vessel Loss
Event or (ii) other Event of Loss, whether or not insured, in excess of $2,500,000 for any one casualty or loss or $5,000,000 in the aggregate in any calendar year;
(g) any material delay for any reason in the construction of the FPSO and any unscheduled shutdown or material
reduction in operation of the FPSO, in each case for a period in excess of 72 continuous hours, or any substantial labor dispute which could lead to such a shutdown or material reduction;
(h) any actual, proposed or threatened cessation or suspension of the Work for any reason by the EPC Contractor
for a period in excess of 72 continuous hours;
(i) any relocation of the FPSO (including its new location
and the date of the move);
(j) any event constituting
force majeure
under any of the Project
Documents or any claim by any Project Participant alleging that a
force majeure
event thereunder has occurred;
(k) any
non-payment
or delay in payment by Petrobras for a period of
thirty (30) days or more from the date such payment is due under the Charter Agreement or the Services Agreement, as the case may be;
(l) the acceptance of the FPSO by Petrobras in accordance with the terms of the Services Agreement and the
Charter Agreement, together with a copy of all documents delivered in connection therewith to be provided to the Technical Advisor;
(m) (x) the details of any inquiry, claim, action, suit, proceeding or investigation pursuant to Sanctions Laws
by any Sanctions Authority or pursuant to
Anti-Money
Laundering Laws or Anti-Corruption Laws against the Borrower, any Sponsor or any subsidiary of a Sponsor that has a direct or indirect ownership interest in
the Borrower, including the General Partner, or any of their respective directors, officers, employees, agents or representatives acting as such, as well as information on what steps are being taken to answer or oppose the same and (y) the
details of any notice, inquiry or correspondence sent or received relating to any of the Compliance Letters;
33
(n) any notice of the Borrower, any Sponsor or any Subsidiary of
a Sponsor that has a direct or indirect ownership interest in the Borrower, including the General Partner, or any of their respective directors, officers, employees, agents or representatives acting as such becoming or likely becoming a Restricted
Party;
(o) notice of any material change in Borrower’s accounting or financial reporting standards or
practices other than in accordance with IFRS; and
(p) any other event, condition or circumstance directly
related to the Project, the Operator, either Shareholder, either Sponsor and/or the Borrower which could reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this
Section 5.2
shall, if requested by the Facility Agent (acting at the request of any
Lender), be supplemented promptly by a statement signed by an Authorized Officer of the Borrower setting forth a description in reasonable detail (to the extent that the Borrower has such information) of the occurrence referred to therein and
stating what action (if any is then planned) the Borrower proposes to take with respect thereto.
5.3
Maintenance of Existence; Conduct of Business; Centre of Main Interest
.
The Borrower shall, and shall cause the Operator, to (a) preserve and maintain its legal existence as a limited partnership under the laws of
Austria (or, in the case of the Operator, as a limited liability company (
sociedade limitada
) under the laws of Brazil) and all of its material licenses, rights, privileges and franchises necessary or desirable in the normal course of its
business, (b) comply, in all material respects, with its Organizational Documents, (c) engage solely in the business of constructing and owning (and in the case of the Operator, operating and maintaining) the FPSO and activities ancillary
thereto and any other activity expressly contemplated by the Transaction Documents, (d) not cancel, terminate, permit the cancellation or termination of, amend, modify or change any material terms or conditions of, or grant any material
consent, waiver or approval under, or take or fail to take any other action that would materially impair the value of its interest or impair its rights under, any of its Organizational Documents, (e) not take any action or fail to take any
action that would cause the Borrower or the Operator to be subject to (i) any material taxes other than as contemplated in the Base Case Projections or (ii) any material obligations under any agreements or arrangements with respect to any
taxes, and (f) not take any action or fail to take any action that would cause (x) the Borrower’s centre of main interest (as that term is used in Article 3(1) of the Regulation) to be situated in a jurisdiction other than Austria or
(y) the Borrower to have an “establishment” (as that term is used in Article 2(h) of the Regulations) in any other jurisdiction.
5.4
Compliance with Laws
. The Borrower shall conduct its business and cause the FPSO to be duly constructed,
completed and operated in compliance with (a) all Sanctions Laws and all Anti-Money Laundering Laws and (b) in all material respects, all other applicable requirements of Law, including all relevant Governmental Approvals and Environmental
and Social Requirements, the International Safety Management (ISM) Code and the International Ship and Port Facility Security (ISPS) Code and the laws of the Commonwealth of Bahamas.
5.5
Payment of Taxes, Etc.
The Borrower shall duly pay and discharge before they become overdue (a) all
taxes, assessments and other governmental charges or levies (x) which are required to be paid in connection with the execution, delivery, performance, validity, enforceability or admissibility in evidence of any Transaction Document or the
consummation of any of the transactions contemplated thereunder and/or (y) imposed upon it or its Property, income or profits, (b) all utility and other governmental charges incurred in the ownership, maintenance, use, occupancy and upkeep
of its business and (c) all lawful claims and obligations that, if unpaid, might result in the imposition of a Lien upon its Property;
provided
,
however
, that the Borrower may contest in good faith any such tax, assessment,
charge, levy, claim or obligation and, in such event, may permit the tax, assessment, charge, levy, claim or obligation to remain unpaid during any period, including appeals, when the Borrower is in good faith contesting the same by proper
proceedings, so long as (i) adequate reserves shall have been established with respect to any such tax, assessment, charge, levy, claim or obligation, accrued interest thereon and potential penalties or other costs relating thereto in
accordance with IFRS, or other adequate provision for payment thereof shall have been made and (ii) such contest could not reasonably be expected to have a Material Adverse Effect.
34
5.6
Accounting and Financial Management
.
The Borrower shall
(a) maintain adequate management information and cost control systems, (b) maintain a system of accounting in which full, true and correct entries shall be made of all financial transactions and the assets and business of the Borrower in
accordance with applicable Laws and the Accounting Principles and (c) promptly deliver to the Facility Agent a copy of any “management letter” or other similar communication received by the Borrower from the Borrower’s
accountants relating to the Borrower’s financial, accounting and other systems, management or accounts. In the event that the Borrower replaces its existing auditors for any reason, the Borrower shall appoint and maintain as auditors another
firm of independent public accountants, which firm shall be internationally recognized.
5.7
Inspection
.
(a) The Borrower shall permit, and cause the Operator to permit, representatives of the Facility Agent, the Insurance Advisor and, prior to the Commercial Operation Date and as provided in
Section 5.7(e)(i)
, the Technical Advisor, with reasonable advance notice, during normal business hours and at such intervals as such Person shall reasonably desire, subject in each case to the availability of transport by Petrobras to
the FPSO, to visit and inspect the FPSO and to witness and verify the Acceptance Tests, to examine, copy and make extracts from the Borrower’s and the Operator’s books and records, to inspect the Borrower’s and the Operator’s
Properties, and to discuss the Borrower’s and the Operator’s operation with their respective officers and engineers, and all to the extent reasonably requested by the Facility Agent, the Insurance Advisor or the Technical Advisor (as the
case may be). The Borrower will authorize its auditors (whose fees and expenses shall be for the account of the Borrower) to communicate directly with the officers and designated representatives of the Facility Agent, the Insurance Advisor and the
Technical Advisor, as the case may be, as such Persons may reasonably request and upon prior reasonable written notice from such Person to the Borrower, regarding its accounts and operations.
(b) The Borrower shall permit the Facility Agent, the Technical Advisor and the Insurance Advisor to review (i) all Plans
and Specifications, (ii) any quality control data and performance test data, and (iii) any other data relating to the Project or to the progress of construction as may be reasonably requested by the Facility Agent, the Technical Advisor or
the Insurance Advisor. Further, the Borrower shall permit the Facility Agent, the Technical Advisor and the Insurance Advisor reasonable access to monitor, witness and review the Work and reasonable access to books and records.
(c) The Facility Agent and the Technical Advisor shall have the right to make requests, from time to time prior to the
Commercial Operation Date, for meetings to review construction progress (including any meetings scheduled to discuss any delays in excess of two months in the construction or delivery of the FPSO or in achieving the Commercial Operation Date) and
the Borrower shall, upon reasonable notice, hold such meetings with the Technical Advisor and the Facility Agent. The Borrower shall give reasonable notice to the Facility Agent, the Technical Advisor and the Insurance Advisor of (i) any
construction meetings at which Petrobras is scheduled to attend and shall promptly thereafter make available to the Facility Agent copies of any presentations made by the Borrower to Petrobras at any such meeting together with a summary of any
material issues raised by Petrobras during such meeting and the outcome (if any) of any discussions with Petrobras during such meeting and (ii) any and all Acceptance Tests or other material performance tests of the FPSO or any component
thereof (whether any such test is to be conducted on or off the FPSO) and shall permit, upon reasonable notice, the Facility Agent, the Technical Advisor and the Insurance Advisor to attend such tests.
35
(d) Notwithstanding anything to the contrary herein or in any other Transaction
Document, unless otherwise expressly agreed in writing, no act or omission of the Facility Agent, any Lender or the Technical Advisor or any other consultant engaged by any Lender shall (i) in any way affect the obligations of the Borrower, the
Construction Contractors or any other Person under any Transaction Document or any other contract relating to the EPC Contract, (ii) be deemed to be the acceptance of any defective work performed by any Construction Contractor or any other
Person under any Construction Contract, or (iii) be deemed to be a waiver of any rights against any of the Construction Contractors or any other Person under any Construction Contract or otherwise.
(e) For the avoidance of doubt, no inspection or visit requested under this
Section 5.7
shall be considered
“reasonable” if it interferes with the Borrower’s or the EPC Contractor’s ability to perform the day to day running of the Project. All inspections and visits contemplated by this
Section 5.7
shall be at the expense
of the Borrower and consistent with any restrictions in the EPC Contract;
provided
,
however
, that, when no Default or Event of Default relating to operation of the FPSO has occurred and is continuing:
(i) inspections and visits at the expense of the Borrower shall be limited to (A) two (2) inspection
site visits prior to the Commercial Operation Date by the Technical Advisor as part of progress verification toward completion of construction of the FPSO, (B) inspection visits by the Technical Advisor to investigate and discuss any delays in
excess of two months in the construction or delivery of the FPSO or in achieving the Commercial Operation Date, (C) an inspection or visit by the Insurance Advisor, in connection with the Shipyard Delivery Date of the FPSO, in the period
leading up to the Shipyard Delivery Date, (D) after the Shipyard Delivery Date, one inspection or visit per year by the Insurance Advisor and (E) inspection visits by the Technical Advisor to investigate and discuss any event or
circumstance materially and adversely affecting the operation of the FPSO; and
(ii) the Borrower shall not
be responsible for the cost of travel accommodations or other travel costs other than travel to the nearest port city and to the FPSO and reasonable accommodations on the FPSO and in such port city.
5.8
Governmental Approvals
.
The Borrower shall, and shall cause the Operator to, (a) from time to
time obtain and maintain all Necessary Governmental Approvals as shall now or hereafter be required under applicable Laws except where (i) the inability to obtain or the rescission, termination, modification or suspension of such Necessary
Governmental Approval is being contested by appropriate proceedings, (ii) none of the Secured Parties would be subject to any criminal liability as a result of such inability to obtain, rescission, termination, modification or suspension, and
(iii) the result of such proceedings could not reasonably be expected to have a Material Adverse Effect and (b) intervene in and contest any proceeding which seeks or may reasonably be expected to rescind, terminate, modify or suspend any
Necessary Governmental Approval and, if reasonably requested by the Facility Agent (acting on the instructions of the Required Lenders), appeal any such rescission, termination, modification or suspension in the manner and to the full extent
permitted by applicable Law. The obligations of the Borrower under this
Section 5.8
shall not in any way limit or impair the rights or remedies of the Secured Parties under any Financing Document directly or indirectly arising as a
result of any such inability to obtain, rescission, termination, modification or suspension.
36
5.9
Insurance
.
(a)
Insurance Requirements
. The Borrower shall maintain or cause to be maintained in full force and
effect at all times (unless otherwise specified in
Appendix C)
insurance coverages for the Project meeting the requirements set forth in
Appendix C
(with the exception of those insurances (MII/MAPI) specified in Part B
thereof, which subject to
Section 5.9(j)
shall be obtained by or on behalf of the Lenders), with reputable insurance companies with a Standard & Poor’s or A.M. Best’s financial strength rating of
“A-”
or higher, or other companies or Lloyd’s syndicates and a Protection & Indemnity Club that is an IGA member, all to be acceptable to the Facility Agent (acting on the instruction of the
Required Lenders), with limits, coverage, endorsements and other provisions sufficient to satisfy the requirements set forth in
Appendix C
and naming (i) the Borrower and its officers and employees as named insureds,
(ii) whenever the Collateral Agent requires, the Collateral Agent or the Facility Agent as additional named assured for its rights and interests, with no operational interest in the FPSO required, and without the Collateral Agent or any other
Secured Party thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance and (iii) the Collateral Agent as assignee and loss payee (other than its liability insurance coverage)
with such directions for payment as the Collateral Agent may specify acting in accordance with the Accounts Agreement.
(b)
Waiver of Subrogation
. Without prejudice to the Borrower’s rights under the Accounts
Agreement and the other Financing Documents, the Borrower hereby waives any and every claim for recovery from the Secured Parties for any loss or damage covered by any of the insurance policies to be maintained under this Agreement to the extent
that such loss or damage is recovered under any such policy. Inasmuch as the foregoing waiver will preclude the assignment to, or the exercise of rights of subrogation by, an insurance company (or other Person) in respect of any such claim to the
extent of such recovery, the Borrower shall give written notice of the terms of such waiver to each insurance company which has issued, or which may issue in the future, any such policy of insurance (if such notice is required by the insurance
policy) and shall cause such insurance policy to be properly endorsed by the issuer thereof to, or to otherwise contain one or more provisions that, prevent the invalidation of the insurance coverage provided thereby by reason of such waiver.
(c)
Amendment of Requirements
. The Facility Agent (acting on the instruction of the
Required Lenders) may at any time amend the requirements (including, without limitation, the amount and scope of insurance coverage) and approved insurance companies described in this
Section 5.9
due to (i) new information not known
on the Closing Date or (ii) changed circumstances after the Closing Date which in the reasonable judgment of the Facility Agent (acting on the instruction of the Required Lenders), either render such coverage materially inadequate or materially
reduce the financial ability of the approved insurance companies to pay claims. The Borrower shall not make, or agree to, any alteration to the terms of any insurance, nor waive any right relating to any insurance effected by it, as required by this
Section 5.9
without (x) prior written notice to the Facility Agent and (y) with respect to any such alteration or waiver which is material, the prior written consent of the Facility Agent (acting on the instruction of the
Majority Lenders).
(d)
Additional Provisions
.
(i)
Loss Notification
.
The Borrower shall promptly notify the Facility Agent and the Collateral Agent of
any Event of Loss likely to give rise to a claim in excess of $25,000,000 for any one claim or $50,000,000 in the aggregate, in either case, in any calendar year in respect of any of the policies required by this
Section 5.9
.
37
(ii)
Loss Adjustment and Settlement
.
Except in relation to
MII and MAPI, losses in respect of any of the policies required by this
Section 5.9
shall be adjusted with the insurance companies and/or the applicable insurance loss adjuster, including the filing in a timely manner of appropriate
proceedings, by the Borrower, subject to the approval of the Facility Agent (acting on the instructions of the Required Lenders) if such loss is in excess of $25,000,000 for any one claim or $50,000,000 in the aggregate. In addition the Borrower may
in its reasonable judgment consent to the settlement of any loss,
provided
that in the event that the amount of the loss exceeds $25,000,000 for any one claim or $50,000,000 in the aggregate or there has occurred a Default or Event of Default
which is continuing, the terms of such settlement are approved by the Facility Agent (acting on the instructions of the Required Lenders).
(iii)
Miscellaneous Policy Provisions
. The marine cargo and property damage (including machinery) insurance
policies effected pursuant to this
Section 5.9
shall not include any annual or term aggregate limits of liability or clause requiring the payment of an additional premium to reinstate the limits after loss except as regards the insurance
applicable to the perils of flood, earth movement, sabotage and terrorism.
(iv)
Policy
Language
.
All policies of insurance required to be maintained pursuant to this
Section 5.9
shall be issued in English, with a clause in such policies stating that the English language version will prevail over any other
version should any dispute arise regarding policy language.
(v)
No
Set-Off
. The Borrower shall procure that the insurance policies effected by it shall provide that all payments by or on behalf of the insurers under the insurances to the Collateral Agent shall be made
without
set-off
howsoever described.
(vi)
Independent
Valuation
.
If at any time a valuation is requested by the relevant insurers, the Borrower shall provide to the Facility Agent an Appraisal (at the Borrower’s cost) from an Independent Appraiser in scope and form satisfactory to the
Facility Agent, acting reasonably.
(vii)
Prevention of Arrest
.
The Borrower shall promptly arrange
for the execution of any guarantee or indemnity as may be required to (i) prevent the FPSO from being arrested or otherwise detained or (ii) obtain the release of the FPSO from any such arrest or detention due to claims made by any third
parties or otherwise.
(e)
Evidence of Insurance
.
On or prior to the first Disbursement Date and
promptly after each policy anniversary date, the Borrower shall furnish the Facility Agent and the Collateral Agent with (i) certification of all required insurance or other evidence reasonably satisfactory to the Facility Agent (in
consultation with the Insurance Advisor) and (ii) a schedule of the insurance policies held by or for the benefit of the Borrower and required to be in force by the provisions of this
Section 5.9
. Such certification shall be
executed by each insurer or by an authorized representative of each insurer where it is not practical for such insurer to execute the certificate itself. Such certification shall identify underwriters, the type of insurance, the insurance limits and
the policy term and, unless the Insurance Advisor has certified as to the compliance with the special provisions enumerated for such insurance required by this
Section 5.9
in its report provided in accordance with
Section 5.9(f)
or otherwise, shall specifically list such special provisions. The schedule of insurance shall include the name of the insurance company, policy number, type of insurance, major limits of liability and expiration date of
the insurance policies. Upon request, the Borrower will promptly furnish the Facility Agent and the Collateral Agent with copies of all insurance policies, binders, cover notes and certificates of entry (in the case of protection and indemnity
insurance and/or war risks insurance) or other evidence of such insurance relating to the insurance required to be maintained hereunder.
(f)
Reports
. Concurrently with the furnishing of the certification referred to in
Section 5.9(e)
, the
Borrower shall furnish the Facility Agent and the Collateral Agent with a report signed by the Insurance Advisor, stating that in its opinion, the insurance then carried out or to be renewed is in accordance with the terms of this
Section 5.9
.
38
(g)
Broker’s Letter of Undertaking
. On or prior to the
Shipyard Delivery Date and promptly (but in any event not later than thirty (30) days) after the issuance, modification or renewal of any insurance policies required to be effected by the Borrower under this
Section 5.9
, the
Borrower shall furnish the Facility Agent and the Collateral Agent with letters of undertaking, complete with a fleet lien waiver clause if applicable, substantially in the form of Parts D or E, as applicable, of
Appendix C
or otherwise
in form and substance satisfactory to the Facility Agent (acting on the instructions of the Required Lenders), from the relevant insurance broker with regard to such insurance policies and, in respect of the protection and indemnity entry, a letter
of undertaking in a standard format issued by protection and indemnity clubs that are members of the International Group of P&I Clubs.
(h)
Failure to Maintain Insurance
. In the event the Borrower fails to take out or maintain the full insurance
coverage required to be effected by the Borrower under this
Section 5.9
, the Facility Agent (acting on the instructions of the Required Lenders), upon thirty (30) days’ prior notice (unless the aforementioned insurance would
lapse within such period, in which event notice should be given as soon as reasonably possible) to the Borrower of any such failure, may (but shall not be obligated to) take out the required policies of insurance and pay the premiums on the same.
All amounts so advanced therefor by the Facility Agent (including any broking fees) shall become an additional Obligation of the Borrower, and the Borrower shall forthwith pay such amounts to the Facility Agent, together with interest thereon at the
Default Rate from the date so advanced until fully paid.
(i)
Secured Parties not Responsible for
Representations by Borrower
. No Secured Party shall be responsible for any representations or warranties made by or on behalf of the Borrower to any insurance company or underwriter. Any failure on the part of any Secured Party to pursue or
obtain the evidence of insurance required by this Agreement and/or failure of any Secured Party to point out any
non-compliance
of such evidence of insurance shall not constitute a waiver of any of the
insurance requirements in this Agreement.
(j)
Mortgagees’ Interest Insurance and Mortgagees’
Additional Perils Insurance
. The MII and MAPI applicable to the FPSO shall be effected by the Facility Agent or the Collateral Agent (each acting on the instructions of the Required Lenders) at the cost of the Borrower which cost the Borrower
shall reimburse to the Facility Agent and the Collateral Agent promptly upon request. The Facility Agent shall use its reasonable efforts to obtain from insurance companies with a Standard & Poor’s or A.M. Best’s financial
strength rating of A- or higher and acceptable to the Required Lenders and the Borrower the best terms and conditions of cover reasonably obtainable on the insurance market for ships of similar type and age as the FPSO. The Lenders hereby
acknowledge that, to the extent permitted by applicable Law, the MII and MAPI underwriters shall, upon payment of a claim under an MII or MAPI, be subrogated to all the rights and remedies of the Secured Parties (as set out in Part B of
Appendix C
) up to the amount of such payment, but only to the extent of the rights and remedies that such Secured Parties may have in respect of such claim under the Borrower’s insurance policies and the International Group of
P&I Clubs entries related to the FPSO. For the avoidance of doubt, in respect of any loss for which a claim is made under an MII or MAPI, the Lenders hereby expressly waive any rights they may otherwise have to recover all or part of such loss
or of costs incurred in respect of such claim from the Borrower or any Affiliate of the Borrower, in each case to the extent of amounts finally and indefeasibly received by the Lenders under such MII or MAPI.
39
5.10
Events of Loss
.
(a) If an Event of Loss shall
occur with respect to any of its Property, the Borrower shall (i) diligently pursue all its rights to compensation against any Person with respect to such Event of Loss, and (ii) cause all Loss Proceeds to be deposited in the Offshore Loss
Proceeds and Prepayment Account pursuant to, and subject to any exceptions allowed by, the Accounts Agreement except in cases of loss or damage to third parties where the indemnification shall be paid directly to the party that suffered such loss or
damage. To the extent that any Loss Proceeds are paid to the Borrower or the Operator, the Borrower shall cause such Loss Proceeds to be held in trust for the Collateral Agent for the benefit of the Secured Parties segregated from other funds of the
Borrower and the Operator.
(b) Without prejudice to
Section 5.9(d)(ii)
, the Collateral Agent and the Facility
Agent shall be entitled to participate in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or in respect of any proceeding with respect to any Taking, in each case involving in
excess of $25,000,000 for any one claim or $50,000,000 in the aggregate.
5.11
Application of Loss
Proceeds
.
(a) If an Event of Loss (other than a FPSO Loss Event) shall occur with respect to the FPSO or the Facilities relating to it, the Borrower shall cause the Net Available Amount of any Loss Proceeds arising from such Event of
Loss to be applied to the prepayment of the Loans promptly, but in any case within thirty (30) days, after the receipt of such proceeds by causing that such Net Available Amount be delivered to the Facility Agent, for delivery promptly
thereafter to the Lenders for application by the Lenders to the prepayment of their respective Loans as of the Interest Payment Date next occurring following such delivery to the Lenders;
provided
that, with the consent of the Required
Lenders (such consent not to be unreasonably withheld or delayed and subject to compliance with the requirements of the next sentence), the Borrower shall be permitted to apply such proceeds to the payment of the costs of Restoring the Affected
Property that was the subject of such Event of Loss; and
provided further
that, so long as no Default or Event of Default shall then have occurred and be continuing, if such proceeds are $50,000,000 or less, the Borrower shall be permitted
(without the consent of the Lenders) to apply such proceeds to the payment of the costs of Restoring the Affected Property that was the subject of such Event of Loss (and such proceeds shall be delivered to the Borrower in accordance with the
Accounts Agreement). If any Loss Proceeds are to be applied to the payment of Restoration costs pursuant to the first (but not the second)
proviso
of the preceding sentence, the Net Available Amount of such Loss Proceeds shall be remitted to
the Borrower from time to time in order to enable the Borrower to pay the costs of the Restoration Work, such remittance to be made pursuant to the terms of the Accounts Agreement and subject to the following conditions:
(i) the Net Available Amount of the Loss Proceeds (together with all other funds reasonably expected to be
available to the Borrower pursuant to the Transaction Documents or otherwise) shall be sufficient to Restore the Affected Property and to pay such Operation and Maintenance Expenses and Debt Service during the period of time required to Restore the
Affected Property (such period for which adequate funds are available to pay all Operation and Maintenance Expenses and Debt Service and to Restore the Affected Property, the “
Restoration Period
”) and the Borrower shall have
consulted with the Technical Advisor regarding the sufficiency of such amounts for such uses during the Restoration Period;
(ii) the Restoration Work shall be supervised by an architect or engineer (who may be an employee of the
Borrower or the Operator or an Affiliate of the Borrower or the Operator) and, before any Restoration Work is commenced, other than temporary Restoration Work to protect property, the Facility Agent, in consultation with the Technical Advisor and
acting reasonably, shall have approved the plans and specifications for the Restoration Work and shall be satisfied, acting reasonably, that after giving effect to the completion of such proposed Restoration Work, the FPSO shall be at least equal in
value and, in all material respects, in utility as it was prior to the damage or destruction;
40
(iii) no Project Document or Necessary Governmental Approval in
effect immediately prior to the Event of Loss giving rise to such Loss Proceeds shall have been canceled unless replaced in a manner satisfactory to the Facility Agent (acting on the instructions of the Required Lenders), or contain any still
exercisable right to cancel, due to such Event of Loss;
(iv) no Event of Default (other than an Event of
Default arising directly from the event as to which such Loss Proceeds have been paid) shall have occurred and be continuing;
(v) all steps necessary or advisable in the reasonable opinion of the Facility Agent (acting on the
instructions of the Required Lenders) are taken as and when appropriate to ensure that the Property of the Borrower which will result from the Restoration Work shall be subject to the Liens in favor of the Collateral Agent for the benefit of the
Secured Parties (whether by amendment of the Security Documents or by entering into new security documents or otherwise);
(vi) the Borrower shall have delivered to the Collateral Agent and the Facility Agent
cash-flow
projections satisfactory to the Facility Agent (acting on the instructions of the Required Lenders) demonstrating the Borrower’s ability to meet its Obligations during the period from such Event of
Loss until and following completion of such Restoration Work; and
(vii) the Borrower shall cause the
Restoration Work to commence promptly after the Required Lenders shall have consented to the disbursement of Loss Proceeds to pay the costs of such Restoration Work and shall use all reasonable efforts to cause such Restoration Work to be completed
promptly. If such Restoration Work shall not have commenced within thirty (30) days after the Required Lenders shall have consented to the disbursement of Loss Proceeds to pay the costs of such Restoration Work in accordance with this
Section 5.11
or if at any time after such thirty
(30)-day
period, one or more of the foregoing conditions shall not be satisfied, then, to the extent that such Loss Proceeds shall not otherwise
have been disbursed as aforesaid to the Borrower, the remaining amount of such Loss Proceeds shall be applied, on behalf of the Borrower, to the prepayment of the Loans on the next succeeding Principal Payment Date.
(b) Notwithstanding anything to the contrary in this
Section 5.11
, (i) if an Event of Default shall have
occurred and be continuing (other than as a direct result of the Event of Loss which gave rise to such Loss Proceeds), unless the Required Lenders may direct otherwise, the Collateral Agent shall forthwith direct the Offshore Accounts Bank to pay
the remaining amount of such Loss Proceeds to the Facility Agent for application in prepayment of the Loans and (ii) in the event of a FPSO Loss Event, all Loss Proceeds shall be applied to the prepayment of the Loans in accordance with
Section 6.3(e)
.
(c) Notwithstanding anything to the contrary which may be contained in the foregoing
provisions of this
Section 5.11
, if an Expropriation Event shall occur with respect to any of its Property, the Borrower shall (i) promptly upon discovery or receipt of notice of any occurrence thereof provide written notice to the
Facility Agent, (ii) not, without the written consent of the Required Lenders, compromise or settle any claim with respect to such Expropriation Event and (iii) cause the Net Available Amount of any Loss Proceeds received in respect of
such Expropriation Event to be applied to the prepayment of the Loans promptly, but in any case within thirty (30) days, following receipt of such proceeds by causing that such Net Available Amount be delivered to the Facility Agent, for
delivery promptly thereafter to the Lenders for application by the Lenders to the prepayment of their respective Loans as of the Interest Payment Date next occurring following such delivery to the Lenders. The Borrower consents to the participation
to the extent permitted by Law of the Collateral Agent and the Facility Agent in any proceedings regarding an Expropriation Event, and the Borrower shall from time to time deliver to the Collateral Agent and the Facility Agent all documents and
instruments requested by the Collateral Agent or the Facility Agent to permit such participation. Nothing in this
Section 5.11
shall be deemed to impair any rights any Lender may have with respect to any such Expropriation Event.
41
(d) Any net loss proceeds received by or on behalf of the Lenders pursuant to the
MII or MAPI shall be applied in the same manner and subject to the same terms as are applicable under this
Section 5.11
to the use of Loss Proceeds.
5.12
Limitation on Liens
. The Borrower shall not create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, except:
(a) the Security Interests;
(b) Liens imposed by any Governmental Authority for taxes to the extent not required to be paid under
Section 5.5
;
(c) carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s or other like Liens arising in the ordinary course of business, or in connection with the construction and/or operation of the FPSO (and including maritime Liens), either (i) for amounts not yet due or (ii) for amounts
being contested in good faith and by appropriate proceedings, so long as (x) such contest does not involve any material risk of the sale, forfeiture or loss of any material part of the Collateral, (y) enforcement of the contested item
shall be effectively stayed, and (z) a bond or other security instrument has been posted or other adequate provision for payment thereof has been provided in such manner and amount as to reasonably assure that any amounts determined to be due
will be promptly paid in full when such contest is resolved;
(d) pledges or deposits under worker’s
compensation, unemployment insurance and other social security legislation; or
(e) Liens, the priority of
which are preferred by mandatory applicable Law, to the extent any such Lien (i) has been outstanding for not more than sixty (60) days and does not materially detract from the value of the Collateral or the rights of the Secured Parties
therein or (ii) is being contested in good faith and by appropriate proceedings so long as (x) such contest does not involve any material risk of the sale, forfeiture or loss of any material part of the Collateral, (y) enforcement of
the contested item shall be effectively stayed and (z) a bond or other security instrument has been posted or other adequate provision for payment thereof has been provided in such manner and amount as to reasonably assure that any amounts
determined to be due will be promptly paid in full when such contest is resolved.
5.13
Indebtedness
.
The Borrower shall not create, incur, suffer to exist or otherwise become liable for any Indebtedness except:
(a) Indebtedness arising under the Transaction Documents;
(b) subject to
Section 5.39
, Indebtedness owed under the Bridge Loan Agreement;
(c) any Subordinated Loans; and
(d) Indebtedness (other than Indebtedness for borrowed money) secured by a Permitted Lien.
42
5.14
Leases
.
The Borrower shall not enter into any
agreement, or be or become liable as lessee under any agreement, for the lease, hire or use of any real or personal Property, except for operating leases of personal Property (which do not constitute Capital Lease Obligations) contemplated by the
Capex Budget or the
then-prevailing
Operating Plan;
provided
that the Borrower’s aggregate payment obligations under all such leases shall not exceed $1,000,000 in any year.
5.15
Investments; Subsidiaries
.
(a) The Borrower shall not make or permit to remain outstanding any
Investments except (i) Permitted Investments and (ii) equity contributions or Subordinated Loans to the Operator to pay Operation and Maintenance Expenses;
provided
that (x) any such equity contribution or Subordinated Loan
shall be evidenced by, (x) in the case of a Subordinated Loan, a Subordinated Loan Agreement substantially in the form of
Exhibit I
to the Equity Support Deed or any other documentation satisfactory in form and substance to the
Facility Agent and (y) for equity contributions an instrument or any other documentation satisfactory in form and substance to the Facility Agent, and in the case of each such equity contribution or Subordinated Loan, pledged to the Collateral
Agent, pursuant to and in accordance with an agreement in form and substance satisfactory to the Facility Agent, as collateral security for the Obligations, and (y) such equity contribution or the incurrence of such Subordinated Loan shall not
cause any adverse tax consequences, including stamp taxes, to the Borrower.
(b) The Borrower shall not establish, create
or acquire any Subsidiary other than the Operator.
5.16
Distributions
.
The Borrower shall not make
any distributions to the Shareholders, the General Partner or to any other Person in respect of its Equity Interests or any other direct or indirect ownership interest in the Borrower, whether in cash or other Property, or redeem, purchase or
otherwise acquire any interest of the Shareholders, the General Partner or any other Person holding Equity Interests of the Borrower, or permit the Shareholders, the General Partner or any other Person holding Equity Interests of the Borrower to
withdraw any capital from the Borrower (all of the foregoing being referred to as “
Distributions
”) or make any payment of any management or other fees to any Affiliate of the Borrower;
provided
that (i) payments
constituting General Partner Payments may be made in accordance with the Accounts Agreement and (ii) payments of management or other fees to any Affiliate of the Borrower or the Operator may be made at any time (x) to the extent
constituting Management Services Payments or (y) from amounts on deposit in the Offshore Distribution Account. The Borrower agrees that it shall not be entitled to the remittance of funds to the Offshore Distribution Account for purposes of a
Distribution or otherwise, and shall not request any such remittance unless such remittance is to be made on a Distribution Date and the following conditions are satisfied:
(a) the first Scheduled Principal Payment of the Loans shall have occurred;
(b) the proposed date for such remittance is not during the six months following the Commercial Operation Date;
(c) no Default or Event of Default shall have occurred and be continuing or would result from the making
of such Distribution;
(d) the Borrower shall have included in the Distribution Confirmation delivered in
connection with such proposed remittance a calculation (together with supporting data in reasonable detail) of the Debt Service Coverage Ratio confirming that the Debt Service Coverage Ratio for the twelve-month period ending on the Quarter Date
immediately preceding such Distribution Date (or such shorter period as has occurred since the Commercial Operation Date) was at least 1.20:1;
43
(e) each of the Offshore Debt Service Reserve Account and the
Offshore O&M Service Reserve Account, as the case may be, is fully funded pursuant to the requirements of the Accounts Agreement (including, for the avoidance of doubt, any adjustments to the amounts to be on deposit in such Project Accounts as
required under such agreement), and the Offshore Cash Retention Account is funded in the amount then required, if any, pursuant to the requirements of the Accounts Agreement; and
(f) no Deferral Amount Cash Sweep Period or Early Termination Cash Sweep Period has commenced and is
continuing,
provided
that if a Sponsor Cross-Default Event shall have occurred and be continuing with respect to a
Sponsor (i) no remittance of funds shall be made to the Offshore Distribution Account for purposes of a Distribution or otherwise unless (x) a Sponsor Cross-Default Event shall not have occurred and be continuing with respect to the other
Sponsor and (y) the Offshore Sponsor Net Balloon Security Account is funded in an amount no less than $40,185,589.35 and (ii) the Borrower may, in accordance with the Accounts Agreement, cause any Distributable Amounts available from time
to time in the Offshore Distribution Holding Account to be transferred on Distribution Dates to the Offshore Sponsor Net Balloon Security Account until such time as such Offshore Sponsor Net Balloon Security Account is fully funded.
5.17
Required Hedging Agreements
.
(a) The Borrower shall enter into one or more Hedging Agreements
with the Required Hedge Providers and such other Lenders having, at the time such bank or other financial institution enters into such Hedging Agreement, capital, surplus and undivided profits of at least $500,000,000 and which enters into and
delivers a Secured Party Accession Agreement, which effectively enable the Borrower to protect itself against the risk of interest rate fluctuations as to an aggregate notional amount no less than the Required Hedge Percentage (subject to
Section 5.17(b)
) of the outstanding principal amount from time to time of the Loans, which Hedging Agreements shall be executed (i) with respect to the percentage amount required to be hedged pursuant to clause (i) of the
definition of Required Hedge Percentage, on or prior to the date that is one hundred and twenty (120) days after the Closing Date and (ii) with respect to the incremental percentage amount required to be hedged pursuant to
paragraph (ii) of the definition of Required Hedge Percentage, no later than thirty (30) days after the Commercial Operation Date and maintained in full force and effect until the Loan Termination Date. Such Hedging Agreements shall have a
forward start from the first Principal Payment Date until the Maturity Date. For the avoidance of doubt, such Hedging Agreements may be in the form of traditional swaps or other structured derivatives with the same interest rate hedging effect. The
Borrower shall not enter into any Hedging Agreements other than (x) the Hedging Agreements entered into pursuant to the preceding sentences of this
Section 5.17(a)
, (y) transfers and novations thereof and (z) amendments or
modifications thereto, each in form and substance satisfactory to the Facility Agent, entered into to (A) increase the notional amount thereof so as to permit the Borrower to comply with its obligations to have entered into Hedging Agreements
as to a notional amount equal to the Required Hedge Percentage and/or (B) following the Commercial Operation Date, to align the notional repayment dates thereunder with the Principal Payment Dates (collectively, the “
Required Hedging
Agreements
”).
(b) If on any date from and after the date on which the Required Hedging Agreements are executed
until the Loan Termination Date the aggregate notional amount covered by the Required Hedging Agreements exceeds one hundred percent (100%) of the then outstanding principal amount of the Loans, the Borrower shall, within ten (10) Business
Days of becoming aware of such excess, if such excess is continuing after that period, adjust such notional amount in order for such percentage not to exceed one hundred percent (100%) of the then outstanding principal amount of the Loans;
provided
,
however
, that such adjustment shall be made on a
pro rata
basis across all Required Hedging Agreements. If, as a result of a failure by a Lender to fulfill an obligation hereunder to make a disbursement, the
outstanding principal amount of the Loans immediately after that Disbursement Date is an amount that is lower than is contemplated by the relevant Notice of Borrowing, such ten (10) Business Days period shall be extended by an additional ten
(10) Business Days to permit the Borrower to cure
non-compliance
with this
Section 5.17(b)
, or such longer period as may be granted by the Lenders in their sole discretion upon the
Borrower’s request.
44
5.18
Financial Covenant; Maintenance of Reserves
.
(a) The Borrower shall ensure that on each Quarter Date the Debt Service Coverage Ratio for the
twelve-month
period ending on such Quarter Date (or such shorter period as has occurred since the Commercial
Operation Date) shall be not less than 1.10:1.00, it being understood that the first Quarter Date on which the Borrower shall be required to calculate the Debt Service Coverage Ratio shall be the Quarter Date immediately succeeding the date falling
six (6) months after the Commercial Operation Date;
provided
,
however
, that the Borrower may cure any noncompliance with such ratio requirement by causing to be made Permitted Capital Contributions within thirty (30) days of
such Quarter Date in an amount necessary such that upon recalculation of the Debt Service Coverage Ratio, giving effect to a
pro forma
increase to Cash Flow in an amount equal to such Permitted Capital Contributions, any such noncompliance is
cured;
provided further
, that (i) the Borrower may not use such cure right for more than (x) three (3) Quarter Dates (whether or not consecutive) during the period from the first Quarter Date until the date that is the twenty
four (24) month anniversary thereof (the “
Initial 24-month Period
”); or (y) two (2) Quarter Dates per twelve (12) month period during any period after the Initial 24-month Period;
provided that
, in respect
of this clause (y) in no event may such cure right be used more than a total of four (4) times following the Initial 24-month Period; and (ii) in no event shall the Borrower be permitted to use such cure right for either of the first
two (2) Quarter Dates immediately following the end of the Initial 24-month Period if such cure right has been used by the Borrower for the two (2) or three (3) consecutive Quarter Dates occurring immediately prior to such Quarter
Date.
(b) No later than the Commercial Operation Date, the Borrower shall (i) maintain on deposit in the Offshore
Debt Service Reserve Account the Offshore Debt Service Reserve Account Required Balance and shall maintain the Offshore Debt Service Reserve Account Required Balance at all times thereafter and (ii) maintain on deposit in the Offshore O&M
Service Reserve Account the Offshore O&M Service Reserve Account Required Balance and shall maintain the Offshore O&M Service Reserve Account Required Balance at all times thereafter, in each case in accordance with and to the extent
required by the Accounts Agreement. On or prior to the Commercial Operation Date, the Facility Agent shall be provided with evidence (in the form of a written statement from the Offshore Accounts Bank or such other evidence reasonably satisfactory
to the Facility Agent) that the Offshore Debt Service Reserve Account and the Offshore O&M Service Reserve Account have been fully funded pursuant to the requirements of the Accounts Agreement and the Equity Support Deed. Notwithstanding the
foregoing, the Borrower shall not be in breach of this Section 5.18(b) if it provides or causes to be provided the funds and evidence referred to above on or before the date falling two (2) Business Days after the Commercial Operation
Date.
5.19
Transactions with Affiliates
.
Except as provided in the Transaction Documents, the
Borrower shall not directly or indirectly (a) make any Investment in or payment to an Affiliate of the Borrower (other than to the Operator to pay for Operation and Maintenance Expenses in accordance with
Section 5.15(a)
above and
the Accounts Agreement); (b) transfer, sell, lease, assign or otherwise dispose of any Property to an Affiliate of the Borrower; (c) purchase or acquire Property from an Affiliate of the Borrower or (d) enter into any other
transaction or arrangement directly or indirectly with or for the benefit of an Affiliate of the Borrower, unless such transaction is upon fair and reasonable terms no less favorable to the Borrower than it would obtain in a comparable arm’s
length transaction with a Person which is not an Affiliate.
5.20
Construction Milestones; Capex
Budget
.
(a) The Borrower shall not (i) pay any Construction Manager Costs except in accordance with the Construction Management Agreement or (ii) make any payment in respect of any Construction Milestone under any
Construction Contract (in whole or in part) unless such Construction Milestone has been achieved in accordance with such Construction Contract.
45
(b) The Borrower shall not, without the prior written consent of the Facility
Agent (acting on the instructions of the Lenders and after obtaining an opinion of the Technical Advisor), amend, revise or modify the Capex Budget if such amendment, revision or modification results in an increase of the Capex Budget, or request
any Loans in respect of any such increase thereto;
provided
, that an “increase” referred to in this clause (b) shall mean an increase in the Capex Budget by reference to the total amount thereof of nine hundred forty-two
million six hundred and two thousand and two hundred and seventy-nine Dollars and fifty-six cents ($942,602,279.56) and not to any particular line item.
5.21
Project Construction; Maintenance
.
(a) The Borrower shall cause the FPSO to be duly constructed
and completed in all material respects in accordance with the Capex Budget, the Construction Contracts, the Project Schedule and Prudent Industry Practices, and shall cause the Commercial Operation Date to occur by the Date Certain.
(b) The Borrower shall not enter into any Change Order except as may be permitted by
Section 5.25
.
(c) The Borrower shall maintain and preserve the FPSO and all of its other Properties necessary or useful in the proper
conduct of its business in good working order and in such condition that the FPSO will have the capacity and functional ability to perform, on a continuing basis (ordinary wear and tear excepted), in normal commercial operation, the functions for
which it was specifically designed in accordance with the EPC Contract at substantially the levels contemplated thereby. The Borrower shall cause the FPSO to be operated, serviced, maintained and repaired so that the condition and operating
efficiency thereof will be maintained and preserved in all material respects in accordance and compliance with (i) Prudent Industry Practices, (ii) such operating standards as shall be required to enforce any material warranty claims
against dealers, manufacturers, vendors, contractors, and
sub-contractors
and (iii) the terms and conditions of all insurance policies maintained with respect to the FPSO at any time.
(d) The Borrower shall not, in any material respect, alter, remodel, add to, reconstruct, improve or demolish any part of the
FPSO or any other Collateral, except as contemplated by or in accordance with the Plans and Specifications and except as would not breach any of the Project Documents, violate Prudent Industry Practices or have an adverse effect on the value of the
FPSO.
(e) The Borrower shall not replace or allow the replacement of the Operator without the (i) prior written
approval of the Required Lenders, in each such case such approval not to be unreasonably delayed or withheld and (ii) amendments being made to the Financing Documents to incorporate such modifications that are reasonably necessary and mutually
agreeable for a replacement of the Operator.
(f) The Borrower shall not, directly or indirectly, make or commit to make
any expenditure in respect of the purchase or other acquisition of fixed or capital assets, other than (i) expenditures contemplated by the Capex Budget or the prevailing Operating Plan, as appropriate or as reasonably required (and in
accordance with Prudent Industry Practices) to address any emergency that poses a substantial threat to safety of human life or a material portion of the Borrower’s Property, (ii) Loss Proceeds permitted to be applied to the payment of
Restoration costs pursuant to
Section 5.11
, and (iii) Permitted Purchases.
(g) The Borrower shall not
remove any material part of the FPSO or item of equipment installed on the FPSO, unless the part or item so removed is replaced as soon as reasonably practicable by a suitable part or item which is in the same condition as or better condition than
the part or item being replaced, is free from any Lien other than Permitted Liens and becomes, upon installation on the FPSO, (i) the property of the Borrower and (ii) subject to a Security Interest in favor of the Collateral Agent, but
only in each case to the extent and on the same terms as the part or item being replaced.
46
5.22
Performance of Project Documents
.
(a) The Borrower
shall perform and observe, in all material respects, all of its covenants and agreements contained in any of the Project Documents to which it is or becomes a party, shall take all necessary action to prevent the termination of any such Project
Documents in accordance with the terms thereof or otherwise (other than by virtue of the scheduled expiration in the ordinary course of such Project Document in accordance with its terms).
(b) The Borrower shall instruct each other party to a Project Document to make all payments payable to the Borrower to the
Offshore Accounts Bank for deposit in the appropriate Project Account in accordance with the Accounts Agreement.
5.23
Operating Plan
.
(a) No later than sixty (60) days prior to the Commercial Operation Date,
the Borrower shall cause the Operator to adopt an operating plan for the FPSO for the period from such date to the end of the current calendar year substantially in the form of
Exhibit G
hereto;
provided
that, if such period is
less than six (6) full calendar months, such plan shall be for such period and for the first Operating Year, and, no less than sixty (60) days in advance of the beginning of each Operating Year thereafter, it shall cause the Operator to
similarly adopt an operating plan for such Operating Year;
provided
that any such operating plan may be modified to ensure it shall remain consistent and compliant with instructions received from Petrobras under the Charter Agreement and the
Services Agreement. Such operating plan and budget for an Operating Year is herein called an “
Operating Plan
”. Copies of the Operating Plan for each period and any modifications made thereto in accordance with this
Section 5.23(a)
shall be furnished to the Facility Agent promptly upon the adoption or any modification thereof.
(b) Each Operating Plan shall describe in reasonable detail, (i) the maintenance and overhaul schedule (including any
major maintenance or overhauls which are projected for the next succeeding Operating Year), (ii) staffing plans and administrative activities, (iii) anticipated, to the best knowledge of the Borrower at the time of preparation of such
plan, mobilization schedules, equipment acquisitions and material spare parts and consumable inventories management, and (iv) any other material plans and protocols in connection with the operation and maintenance of the FPSO.
5.24
Merger; Sales and Purchases of Assets
.
The Borrower shall not merge into or consolidate with any
other Person, or liquidate or dissolve itself (or suffer any liquidation or dissolution), or sell, lease,
sub-let
(or, with respect to the FPSO, permit Petrobras to
sub-let),
transfer, part with possession or operational control or otherwise dispose of any assets or Property other than (a) with respect to the FPSO, as contemplated by the Charter Agreement and/or the
Services Agreement; (b) subject to the requirements of
Section 6.3(d)
, sales, transfers and other dispositions of assets of the Borrower, having a value of less than $1,000,000 per asset or $2,000,000 in the aggregate in any
calendar year, or otherwise determined by the Borrower (in its reasonable opinion) to be obsolete or no longer used by or useful to the Borrower for the operation or maintenance of the Facilities,
provided
, that notice of any proposed sale,
transfer or disposition having a value of more than $1,000,000 per asset or $2,000,000 in the aggregate in any calendar year pursuant to this clause (b) shall be given to the Facility Agent at least ten (10) days prior to the consummation
thereof; (c) sales of Permitted Investments prior to the maturity thereof; (d) Distributions or other payments in accordance with
Section 5.16
and (e) cash payments permitted under or contemplated by the Financing
Documents. The Borrower shall not purchase or acquire any assets other than the purchase of (i) assets reasonably required for the completion of the Project in accordance with the Capex Budget, (ii) subject to
Section 5.23
,
assets in the ordinary course of business reasonably required in connection with the operation of the Facilities, (iii) Permitted Investments and (iv) assets acquired as a result of Permitted Purchases.
47
5.25 Amendment of Transaction Documents; Additional Project Documents; Change
Orders; Project Party Replacement, Etc.
(a) The Borrower shall not, without the consent of, in the case of clause (i), clause (ii) and clause (v) below, the Lenders, and otherwise the Majority Lenders, (i) agree to or
permit the cancellation, suspension or termination of any Transaction Document (other than by virtue of the scheduled expiration in the ordinary course of such Transaction Document in accordance with its terms); (ii) sell, assign (other than
pursuant to the Security Documents) or otherwise dispose of (by operation of law or otherwise) any part of its interest in any Transaction Document; (iii) except where the same would not materially reduce the amount of any payment due to the
Borrower and could not otherwise reasonably be expected to have a Material Adverse Effect, waive any default under or breach of any Project Document or waive, forgive or release any right, interest or entitlement, howsoever arising, under or in
respect of any Project Document; (iv) petition, request or take any other legal or administrative action that seeks, or may be expected, to rescind, terminate or suspend any Project Document or, except where the same would not materially reduce
the amount of any payment due or to become due to the Borrower and could not otherwise reasonably be expected to have a Material Adverse Effect, amend or modify all or any part thereof; (v) agree to or permit the transfer or delegation of any
payment obligations of any Project Participant under any Project Document or, except where the same could not otherwise reasonably be expected to have a Material Adverse Effect and except as described in clause (c) below, agree to or permit the
assignment of any rights or the transfer or delegation of any other obligations of any Project Participant under any Project Document except as permitted without the consent of the Borrower or the Operator by the terms of such Project Document;
(vi) except for Permitted Change Orders as provided in clause (b) below, amend, supplement, modify or give any consent under any Construction Contract or exercise any material option thereunder; (vii) except where the same would not
materially reduce the amount of any payment due or to become due to the Borrower and could not otherwise reasonably be expected to have a Material Adverse Effect, amend, supplement, modify or give any consent under any Project Document (other than
the Construction Contracts) or exercise any material option thereunder; (viii) except as may be permitted by
Section 9.12
, amend, supplement, modify or give any consent under any Financing Document or exercise any material option
thereunder; (ix) except as required by the Financing Documents, enter into any Additional Project Document other than a Permitted Purchase Agreement, a copy of which has been provided to the Facility Agent and the Technical Advisor;
provided
that, for the avoidance of doubt, the Borrower’s refraining from taking enforcement action, where it is reasonable and prudent in the circumstances to so refrain, shall not be deemed a waiver, amendment or supplement for
purposes of this
Section 5.25(a)
.
(b) The Borrower may enter into any Change Order (a “
Permitted
Change Order
”) under any Construction Contract if (i) such Change Order is reasonable and necessary in the reasonable opinion of the Borrower, (ii) such Change Order does not materially change the Plans and Specifications and does
not require consent from Petrobras under the Charter Agreement or the Services Agreement (other than consent that has already been obtained), (iii) the cost of such Change Order does not exceed an aggregate amount equal to the sum of
(x) $10,000,000 and (y) an amount equal to two percent (2%) of the Contract Price as of the Effective Date, (iv) such Change Order does not result in any extension of the Shipyard Delivery Date that could reasonably be expected
to have a material adverse effect on the ability of the Borrower to achieve the Commercial Operation Date prior to the Date Certain, (v) such Change Order does not result in any change to, or amendment of, the relevant Acceptance Tests, Delay
Liquidated Damages, performance guarantees or any conditions pursuant to which payment of any such damages is required to be made, either directly or indirectly, (vi) the cost of such Change Order does not exceed the then unutilized portion of
the contingency amount of $74,005,163.90 in the Capex Budget, and (vi) the Technical Advisor is notified of such Change Order within ten (10) Business Days of its execution;
provided
that if such Change Order is described in a
report delivered to the Technical Advisor pursuant to
Section 5.1(f)
within such ten (10) Business Days, no separate notice to the Technical Advisor of such Change Order shall be required under this
Section 5.25(b)
.
48
5.26 Environmental and Social Compliance.
The Borrower shall
(a) undertake a full environmental and social assessment process in order to adhere in all respects to the requirements of the Equator Principles with respect to the FPSO to the extent applicable; (b) deliver to the Facility Agent an
updated copy of the Environmental and Social Action Plan no later than 210 days after the Commercial Operation Date; (c) comply in all material respects, and use its reasonable efforts to cause all other Persons constructing, occupying or
conducting operations with respect to the FPSO to comply in all material respects, with the Environmental and Social Requirements and (iv) obtain, comply with and do all that is necessary to maintain in full force and effect any applicable
Environmental and Social Governmental Approvals with respect to the FPSO.
5.27 Completion; Acceptance Tests; Project
Completion Date.
(a) The Borrower shall not, without the prior written consent of the Majority Lenders (after consultation with the Technical Advisor), deliver a mechanical completion confirmation, a Protocol of Delivery or otherwise accept
(including by refraining from issuing a notice of rejection) the FPSO under Article 9 of the EPC Contract.
(b) The
Borrower shall not, without the prior approval of the Majority Lenders (after consultation with the Technical Advisor), (i) take any action or fail to take any action which could permit an extension of any guaranteed completion or acceptance
date under any Construction Contract, (ii) notify the Construction Contractors under any Construction Contract that it accepts the punch list with respect to such Construction Contract unless such items together with all other punch list items
under the Construction Contracts in the aggregate cannot reasonably be expected to have a material adverse effect and the total cost to complete all such items (in the event of a failure by the relevant Construction Contractors to do so) in the
aggregate would not exceed $3,500,000, (iii) waive, defer or reduce any of the requirements of any of the Acceptance Tests, (iv) accept or confirm that the FPSO has satisfied any of the Acceptance Tests or (v) fail to advise a
Construction Contractor under its Construction Contract of any material defects, deficiencies or discrepancies of which the Borrower has knowledge.
(c) The Borrower shall (i) provide to the Facility Agent, if the Project Completion Date has not occurred within one
hundred and twenty (120) days of the Commercial Operation Date, a written explanation in reasonable detail of the reasons for such delay; (ii) no less frequently than once every thirty (30) days thereafter until the Project Completion
Date has occurred, provide a written update of such explanation; and (iii) upon the request of the Facility Agent, from time to time, pay the reasonable and duly documented costs of the preparation and delivery by the Technical Advisor of a
letter commenting on any such written explanation of the Borrower.
5.28 Certain Agreements.
The Borrower shall not
enter into any agreement or undertaking other than the Transaction Documents restricting, or purporting to restrict, the ability of the Borrower to comply with the terms of this Agreement or to (a) amend this Agreement or any other Financing
Document, (b) sell any of its assets, (c) create Liens, (d) create or incur Indebtedness or (e) make any Distribution.
5.29 Security Documents.
(a) The Borrower shall (i) execute and deliver such documents and take all such
other actions necessary to ensure that the Vessel and subsequently the FPSO remains subject to the perfected first priority Liens intended to be created by the Mortgage and (ii) maintain the Mortgage in an amount no less than the amount
outstanding from time to time of the Obligations.
49
(b) The Borrower shall take all actions necessary or requested by the Facility
Agent to maintain each Security Document in full force and effect and enforceable in accordance with its terms and to maintain and preserve the Liens created by such Security Documents and the first ranking priority thereof, including
(i) making filings and recordations, (ii) making payments of fees and other charges, (iii) issuing and, if necessary, filing or recording supplemental documentation, including continuation statements, (iv) discharging all claims
or other Liens on the Collateral other than Permitted Liens, (v) publishing or otherwise delivering notice to third parties, (vi) depositing title documents and (vii) taking all other actions either necessary or otherwise requested by
the Facility Agent or the Collateral Agent to ensure that all Collateral (including any
after-acquired
Property of the Borrower intended to be covered by any Security Document) is subject to a valid and
enforceable
first-priority
(subject only to Permitted Liens) Lien in favor of the Collateral Agent for the benefit of the Secured Parties. In furtherance of the foregoing, (A) the Borrower shall ensure
that all
after-acquired
Property of the Borrower other than such Property not intended to be covered by such Security Documents shall become subject to the first priority (except subject only to Permitted
Liens) Lien of the Security Documents promptly upon the acquisition thereof and (B) the Borrower shall not open or maintain any bank account (other than the Offshore Distribution Account, the Borrower Euro Account, and the Borrower Dollar
Account) without first taking all such actions as may be necessary or otherwise requested by the Facility Agent to ensure that such bank account is subject to a valid and enforceable first priority (subject only to Permitted Liens) Lien in favor of
the Collateral Agent for the benefit of the Secured Parties.
(c) The Borrower shall take all actions necessary to cause
each Additional Project Document to which it is a party and that is intended to be covered by a Security Document to be or become subject to the Liens of the Security Documents (whether by amendment to any Security Document, execution of a new
Security Document or otherwise) in favor of the Collateral Agent for the benefit of the Secured Parties, and shall deliver or cause to be delivered to the Facility Agent such certificates or other documents with respect to each Additional Project
Document as the Facility Agent may reasonably request. The Borrower shall (i) in the case of any Additional Project Document involving an amount of $5,000,000, but no more than $10,000,000, use its reasonable best efforts to cause each party to
such Additional Project Document to execute and deliver a Consent Agreement with respect to such Additional Project Document and such legal opinions relating to such Additional Project Document as the Facility Agent may reasonably request and
(ii) the Borrower shall in the case of an Additional Project Document involving an amount of more than $10,000,000 cause each party to such Additional Project Document to execute and deliver a Consent Agreement with respect to such Additional
Project Document and such legal opinions relating to such Additional Project Document as the Facility Agent may reasonably request. The Borrower shall in the case of any Additional Project Document involving an amount of less than $5,000,000 deliver
to the Facility Agent such confirmation that such Additional Project Document is subject to the Security Documents as the Facility Agent may reasonably request, but shall not be required to deliver any such Consent Agreement or legal opinion in
respect of such Additional Project Document.
(d) At such time as the Facility Agent may reasonably request in writing,
the Borrower shall furnish, or cause to be furnished, to the Facility Agent and the Collateral Agent, an opinion or opinions of legal counsel either stating that, in the opinion of such counsel, such action has been taken with respect to
(i) amending or supplementing the Security Documents (or providing additional Security Documents, notifications or acknowledgments) as is necessary under applicable Law to subject all the Collateral (including any
after-acquired
Property intended to be covered by a Security Document) to the Lien of the Security Documents and (ii) (x) the recordation of the Security Documents (including, without limitation, any
amendment or supplement thereto) and any other requisite documents and (y) the execution and filing of any financing statements and continuation statements as are necessary to maintain the Liens purported to be created by the Security Documents
and reciting the details of such action or stating that, in the opinion of such counsel, no such action is necessary to maintain such Liens. Such opinion or opinions of counsel shall also describe the recordation of the Security Documents and any
other requisite documents and the execution and filing of any financing statements and continuation statements, or the taking of any other action that will, in the opinion of such counsel, be required to maintain the Liens purported to be created by
the Security Documents after the date of such opinion.
50
(e) Without limitation to the other provisions of this
Section 5.29
,
the Borrower shall procure that the Operator complies with all terms and obligations under the Security Documents to which it is a party and shall take, and shall cause the Operator to take, all actions necessary for (i) the notarization and
consularization of any of the Security Documents governed by Brazilian law, this Agreement, the Equity Support Deed and the Accounts Agreement by any signatories executing such documents outside of Brazil, (ii) the translation of any of the
documents referenced in sub-clause (i) above into Portuguese by a certified public translator and (iii) the filing of such translated and, where applicable, notarized and consularized documents mentioned in sub-clause (i) above with
the relevant Registry of Titles and Documents in Brazil as soon as practically possible (other than in the case of documents referred to in
Section 3.1(f)(ii)
, which shall be completed within the time frame set forth therein).
5.30 Prepayment of Indebtedness; Reduction of Commitments.
(a) Except for prepayments required or permitted to be
made pursuant to this Agreement the Borrower shall not make, or permit to be made on its behalf, any prepayment of any of the Loans.
(b) The Borrower shall not reduce all or any portion of the Commitment of any Lender prior to the end of the Availability
Period, unless (i) the Borrower shall have offered to each of the other Lenders to make, and with the consent of such other Lender shall contemporaneously make, a proportionate reduction in the Commitment of each such other Lender,
(ii) construction of the FPSO shall be proceeding substantially in accordance with the Project Schedule, (iii) no event shall have occurred or could reasonably be expected to occur to cause the Shipyard Delivery Date to be delayed beyond
the Expected Shipyard Delivery Date, (iv) the proposed reduction in Commitments requested by the Borrower could not be reasonably expected to result in a deficiency of funds necessary to achieve the Commercial Operation Date by the Date Certain
and (v) each Lender shall have received a certificate from the Borrower, confirmed by the Technical Advisor, with respect to the matters set forth in clauses (ii), (iii) and (iv) above.
5.31 Transfers of Equity Interests.
(a) The Borrower shall not (x) permit or consent to the transfer (by
assignment, sale or otherwise) of any Equity Interests of the Borrower or the General Partner or (y) issue any new Equity Interests therein other than in connection with any Equity Contributions under the Equity Support Deed (including any
drawing on a Reserve Account Letter of Credit that is treated as an Equity Contribution);
provided
, that the Borrower may permit or consent to the assignment, sale or transfer of Equity Interests of the Borrower or the General Partner or to
the issuance of new Equity Interests of the Borrower or the General Partner (each a “
Transfer
”) if such Transfer is consummated in compliance with
Section 5.35
and each of the following conditions (any Transfer not
complying with each of the following conditions being null and void
ab initio
):
(i) after giving effect to any
such Transfer, no Change of Control shall have occurred;
(ii) such Transfer shall be made expressly subject to the
granting of a Lien in favor of the Collateral Agent on the Equity Interests so being transferred, and any Person that becomes a member of the Borrower or the General Partner as a result of such Transfer shall, simultaneously with such Transfer, sign
a pledge agreement substantially identical to the applicable Pledge Agreement and otherwise in form, scope and substance satisfactory to the Facility Agent and the Collateral Agent; and
(iii) such Person referred to in paragraph (ii) above shall, simultaneously with such Transfer, execute and deliver to
the Collateral Agent such financing statements and other documents and instruments as the Collateral Agent may reasonably request in order to evidence, secure, and perfect the Collateral Agent’s security interest in and Lien on such Equity
Interests.
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(b) The Borrower shall not (x) transfer (by assignment, sale or otherwise)
any Equity Interests of the Operator other than in connection with a Permitted Operator Transfer or (y) permit the Operator to issue any new Equity Interests other than in connection with any Equity Contributions under the Equity Support Deed;
provided
that, in each case:
(i) any Equity Interests so being transferred or issued, as the case may be, shall
be made expressly subject to the granting of a Lien in favor of the Collateral Agent, and any Person that becomes a member of the Operator as a result of such transfer or issuance shall, simultaneously with such transfer or issuance, sign a pledge
agreement substantially identical to the Brazilian Share Pledge Agreement and otherwise in form, scope and substance satisfactory to the Facility Agent and the Collateral Agent; and
(ii) such Person referred to in paragraph (i) above shall, simultaneously with such transfer or issuance, execute and
deliver to the Collateral Agent such financing statements and other documents and instruments as the Collateral Agent may reasonably request in order to evidence, secure, and perfect the Collateral Agent’s security interest in and Lien on such
Equity Interests.
(c) For the avoidance of doubt, nothing in this
Section 5.31
shall restrict the ability of
the Borrower or the General Partner to enter into the Pledge Agreements or any other pledge agreement with respect to any Equity Interests of the Borrower, the Operator or the General Partner with the Collateral Agent.
5.32 Change in Name.
The Borrower shall not change its name or do business under any other name than “OOGTK LIBRA
GMBH & CO KG”, unless, in any such case, the Borrower shall have given the Collateral Agent at least
forty-five
(45) days’ prior written notice, and all action requested by the
Collateral Agent necessary or advisable in the Collateral Agent’s opinion to preserve and perfect the Security Interests with respect to the Collateral shall have been taken.
5.33 Ranking.
The Borrower shall take such action as may be necessary to ensure that, at all times, the payment
obligations of the Borrower in respect of the Loans rank at least
pari passu
with the claims of all of its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
5.34 Payments to the EPC Contractor.
The Borrower shall not request any release of funds to the EPC Contractor from the
Offshore Construction Account in accordance with the Accounts Agreement with respect to the Delivery (as defined in the EPC Contract) of the FPSO until the Technical Advisor has provided its certification in this respect.
5.35 “Know Your Customer” Checks.
If:
(a) the introduction of or any change in (or in the interpretation, administration or application of) any
applicable Law made after the date of this Agreement;
(b) any change in the status of the Borrower after
the date of this Agreement or any change in the composition of its shareholding; or
(c) a proposed
assignment or transfer by any Lender of any of its rights and/or obligations pursuant to
Section 9.13
to a party that is not a Lender prior to such assignment or transfer,
obliges any Lender (or, in the case of paragraph (c) above, 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 as soon as practicable upon the request of such Lender supply, or procure the supply of, such documentation and
other evidence as is requested by such Lender (for itself or on behalf of the other Lenders or, in the case of the event described in paragraph (c) above, on behalf of any prospective new Lender) in order for such Lender or such prospective new
Lender, as the case may be, to carry out and be satisfied with the results of all necessary “know your customer” or other checks in relation to any relevant person pursuant to the transactions contemplated by the Financing Documents.
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5.36 Registration; Classification.
(a) With respect to the FPSO, no
later than the Shipyard Delivery Date and at all times thereafter, the Borrower shall (i) register, and maintain such registration of the FPSO under the laws and flag of the Commonwealth of the Bahamas, (ii) obtain and maintain the
classification set forth in the Specifications, and (iii) deliver to the Facility Agent on the Shipyard Delivery Date copies, certified by an Authorized Officer of the Borrower to be true and complete copies, of the executed versions of all
documents, referred to in
Section 3.2(g)
to the extent not previously delivered in executed form.
(b) The
Borrower shall request ABS: (i) to send to the Facility Agent, following receipt of a reasonable written request from the Facility Agent, certified true copies of all original class records held by such classification society in relation to the
FPSO; (ii) to allow the Facility Agent (or its agents), at any time and from time to time upon reasonable request, to inspect the FPSO’s original class and related records at the offices of such classification society and to make copies of
them; and (iii) to notify the Facility Agent immediately in writing if such classification society: (x) receives notification from the Borrower or any other Person that the FPSO’s classification society is to be changed; or
(y) becomes aware of any facts or matters which may result in, or have resulted in, a change, suspension, discontinuance, withdrawal or expiry of the FPSO’s class under the rules or terms and conditions of the Borrower’s or the
FPSO’s membership in such classification society.
5.37 Title.
The Borrower shall not do or permit to be done
any act or thing which might reasonably be expected to jeopardize the title, rights and interest of the Borrower or any rights or interest of the Secured Parties in the FPSO and/or knowingly omit or permit to be omitted to be done any act which
might reasonably be expected to prevent that title and such rights and interest from being jeopardized.
5.38 Arrest
Prevention; Release.
The Borrower shall promptly discharge all liabilities which give or may give rise to maritime or possessory Liens on or claims enforceable against the FPSO, its earnings or its insurances. The Borrower shall, forthwith upon
receiving notice of the arrest or detention in exercise or purported exercise of any Lien or claim of the FPSO, procure its release.
5.39 Bridge Loan Repayment.
On or before the first Disbursement Date, the Borrower shall repay in full its Indebtedness
under the Bridge Loan Agreement and promptly thereafter (a) cause the release of any Liens securing such Indebtedness and (b) provide evidence of such repayments and such release to the Facility Agent.
5.40 Sanctions.
(a) The Borrower shall not, and shall not permit or authorize any other Person to, directly or
indirectly, use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of any Loan or other transaction(s) contemplated by this Agreement to fund any trade, business or other activities: (i) involving
or for the direct or indirect benefit of any Restricted Party, or (ii) in any other manner that would reasonably be expected to result in the Borrower or any Lender being in breach of any Sanctions (if and to the extent applicable to either of
them) or becoming a Restricted Party.
(b) The Borrower shall not employ the FPSO nor allow its employment, operation or
management (i) by or for the benefit of any Restricted Party; and/or (ii) in any trade which could expose the FPSO, the Lenders or crew to enforcement proceedings or any other consequences whatsoever arising under Sanctions Laws,
(iii) in connection with or for the purpose of trading to Iranian and/or Syrian ports or carrying crude oil, petroleum products, petrochemical products or natural gas if they originate in Iran, or are being exported from Iran to any other
country, or carrying crude oil, petroleum products or petrochemical products if they originate in Syria or are being exported from Syria.
53
(c) The Borrower shall ensure that neither it nor any of its directors, officers,
employees, agents or representatives or any other Persons acting on any of their behalf, is or will become a Restricted Party.
(d) The Borrower shall, to the extent within its control, procure that no proceeds from any activity or dealing with a
Restricted Party are credited to any bank account held with any Lender in its name or in the name of any of its Affiliates.
5.41 Advisory Board.
Without limitation to any other rights or remedies available to the Financing Parties in respect
of any breach of Section 5.18(a) or the occurrence of any Sponsor Cross-Default Event, the Borrower agrees that it shall, following any breach by the Borrower of Section 5.18(a) or the occurrence of any Sponsor Cross-Default Event, upon
the written request of the Facility Agent (acting on the instructions of the Majority Lenders) (i) ensure that all steps necessary or advisable in the reasonable opinion of the Facility Agent (acting on the instructions of the Majority Lenders)
are taken as and when appropriate to ensure that the Advisory Board is promptly established, in accordance with Section 6.10 of the Equity Support Deed, and includes the member thereof nominated by the Facility Agent, and (ii) the rights
of the Advisory Board contemplated by Schedule 2 to the Equity Support Deed are respected in accordance with the terms thereof.
Section 6. Payment Provisions; Fees
6.1 Repayment of Principal.
(a) The Borrower shall repay the aggregate principal amount of the Loans outstanding on
each Principal Payment Date, commencing on the First Repayment Date and in the applicable amounts set forth in Part 1 of
Appendix B
, subject to the provisions of Part 2 of
Appendix B
.
(b) Upon each Disbursement, the amount disbursed shall be allocated for repayment to each of the respective installments shown
in
Appendix B
in amounts which are
pro rata
to the amounts of such installments.
6.2 Voluntary
Prepayments.
(a) Prepayments under this
Section 6.2
shall be subject to the following terms and conditions:
(i) the Borrower shall give the Facility Agent at the Notice Office at least ten (10) Business Days’
prior written irrevocable notice of its intent to prepay the Loans and the aggregate principal amount of the prepayment (which notice the Facility Agent shall promptly transmit to each of the Lenders);
(ii) prepayment of the Loans may only be made pursuant to this
Section 6.2
on the last day of an
Interest Period applicable thereto, unless the Borrower pays all amounts owing under
Section 2.10
as a result of prepaying the Loans on a day other than the last day of the Interest Period applicable thereto;
(iii) the aggregate notional amount under the Required Hedging Agreements shall be adjusted in connection with
any such prepayment so that it does not exceed one hundred percent (100%) of the principal amount of Loans after giving effect to such prepayment, and any such adjustment shall be applied ratably to the notional amounts of the Required Hedging
Agreements ; and
54
(iv) such prepayment and all other amounts required to be paid
under this
Section 6.2
or otherwise in connection with such prepayment shall be made solely from amounts in the Offshore Distribution Account or from the proceeds of Permitted Capital Contributions or from other sources of funds the
advancing of which to the Borrower does not contravene the provisions of this Agreement.
(b) The Borrower shall have the
right to prepay the Loans, without premium or penalty, in whole or in part at any time and from time to time after the Closing Date at its discretion, subject to the conditions in
Section 6.2(a)
and to the following additional
conditions:
(i) such prepayment shall be in an aggregate principal amount of at least $10,000,000 (or an
integral multiple of $10,000,000 in excess thereof);
(ii) such prepayment shall be applied to reduce the
Scheduled Principal Payments on a
pro rata
basis; and
(iii) the Borrower shall pay any termination
or partial termination amounts due under any Required Hedging Agreements resulting from any adjustment of the aggregate notional amount under the Required Hedging Agreements in respect of such prepayment and any other amounts owing under any
Required Hedging Agreements as a result of prepayment.
(c) In the circumstances described in
Section 2.13
,
the Borrower shall have the right to prepay in whole the Loans held by the Replaced Lender, without premium or penalty, subject to the conditions in
Section 6.2(a)
.
(d) In the event any of the circumstances described in
Section 7.1(m)
occur and some but not all of the Lenders
consent to waiving the Event of Default thereunder, the Borrower shall have the right to prepay in whole all (and not less than all) of the Loans of Lenders that do not consent to such waiver, without premium or penalty, subject to the conditions in
Section 6.2(a)
.
(e) In the event the Borrower is unable to (i) refinance the Loans in part or
(ii) obtain consent of the Lenders required by
Section 5.3
to redomicile to another jurisdiction or transfer its rights and obligations, because some but not all of the Lenders consent to such action, the Borrower shall have the
right to prepay in whole all (and not less than all) of the Loans of Lenders that do not consent to such action, without premium or penalty, subject to the conditions in
Section 6.2(a)
.
(f) In the event that a Market Disruption Margin is payable in respect of three (3) consecutive Interest Periods, the
Borrower shall have the right to prepay in whole all (and not less than all) of the Loans, without premium or penalty, subject to the conditions in
Section 6.2(a)
.
(g) Any amounts prepaid under this
Section 6.2
may not be
re-borrowed.
6.3 Mandatory Prepayments.
The Borrower shall make mandatory prepayments of the Loans as follows:
(a)
Illegality.
The Borrower shall prepay the outstanding Loans to the extent required pursuant to
Section 2.8
.
(b)
Loss Proceeds; MII Proceeds.
The Borrower shall prepay the outstanding
Loans to the extent required pursuant to
Section 5.11
.
(c)
Early Termination Cash
Sweep.
During any Early Termination Cash Sweep Period, the Borrower shall apply all amounts from time to time on deposit in the Offshore Distribution Holding Account to prepay the outstanding Loans.
55
(d)
Dispositions.
In the event of any Disposition in the
amount of $3,000,000 or more, the Borrower shall apply an amount equal to all of the Net Disposition Proceeds which are not applied towards replacement of the relevant Property sold, transferred or disposed to prepay the outstanding Loans, such
prepayment to be made no later than the next Interest Payment Date.
(e)
FPSO Loss Event.
In the
event of a FPSO Loss Event, the Borrower shall prepay the Loans in full and discharge the other Obligations on or before the earlier of (x) the Business Day following the day of receipt of Insurance Proceeds in respect of such FPSO Loss Event
and (y) the date occurring one hundred twenty (120) days after such FPSO Loss Event.
(f)
Unutilized Project Cost Amounts
. The Borrower shall prepay the outstanding Loans to the extent required pursuant to
Section 2.3(e)
or
Section 2.3(e)2.3(f)
or
Section 2.3(f)
, as applicable, on the next
occurring Interest Payment Date.
(g)
Application.
(i) Except as otherwise provided in this
Section 6.3
, a prepayment of the Loans made pursuant to this
Section 6.3
shall be made on the last day of an Interest Period, and if not made on such date the Borrower shall apply amounts to be used for such prepayment to pay
amounts owing under
Section 2.10
as a result of prepaying the Loans on a day other than the last day of an Interest Period.
(ii) The aggregate notional amount under all of the
then-existing
Required Hedging Agreements shall be adjusted in connection with any such prepayment so that it does not exceed one hundred percent (100%) of the principal amount of Loans after giving effect to such prepayment, and any such adjustment shall be
applied ratably to the notional amounts of the Required Hedging Agreements.
(iii) Amounts to be applied to
a prepayment of the Loans (other than in respect of
Section 2.10
) pursuant to this
Section 6.3
shall be applied to reduce the Scheduled Principal Payments on a
pro rata
basis.
(iv) The Borrower shall pay any termination or partial termination amounts due under any Required Hedging
Agreements resulting from any adjustment of the aggregate notional amount under the Required Hedging Agreements in respect of such prepayment and any other amounts owing under any Required Hedging Agreements as a result of prepayment. Any amount due
in respect of the Required Hedging Agreements terminated in accordance with the immediately preceding sentence shall be paid by the Borrower from amounts available with which to make such prepayment.
(h) Any amounts prepaid under this
Section 6.3
may not be
re-borrowed.
6.4 Maturity Date.
Notwithstanding anything to the contrary
which may be contained in this Agreement, the outstanding principal amount of the Loans shall be repaid in full on the Maturity Date.
6.5 Method and Place of Payment.
Except as set forth in the following sentence or as otherwise specifically provided
herein, all payments under the Financing Documents shall be made to the Facility Agent for the account of the Financing Parties entitled thereto not later than 11:00 a.m. (New York City time) on the date when due and shall be made in Dollars in
immediately available funds at the Payment Office as follows: Standard Settlement Instructions are available at the following URL:
www.hsbcnet.com/gbm/products-services/trading-sales/standard-settlement-instructions-document.html
, agree to
the “SSI’s Terms of Use,” and from the next page, select: USA: Loan Agency SSI, password is loanagency1, Ref. Libra FPSO, Attention: Loan Administration, or to such other bank account as the Facility Agent shall designate to the
parties hereto in writing. Whenever any payment to be made hereunder or under any other Financing Document shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest shall be payable at the applicable rate during such extension;
provided
that in the event that the day on which any such payment is due is not a Business Day but is a day of the month after
which no further Business Day occurs in such month, then the due date thereof shall be the immediately preceding Business Day.
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6.6 Computations.
All computations of interest and Fees hereunder shall be
made on the basis of a
360-day
year and the actual number of days elapsed.
6.7
Fees.
(a)
Commitment Fees.
Subject to
Section 2.14
, the Borrower agrees to pay to the Facility
Agent, for the account of each Lender, a commitment commission (the “
Commitment Fee
”) computed on the Unutilized Commitment of such Lender, from time to time, at a rate
per annum
equal to forty percent (40%) of the
Applicable Margin then in effect. The Commitment Fee shall begin to accrue on the Effective Date and shall cease to accrue on the last day of the Availability Period and shall be due and payable in arrears on (i) each Interest Payment Date and
(ii) the last day of the Availability Period. For the avoidance of doubt, to the extent the Borrower has already paid the commitment fee described in the “Commitment Fee” section of the Bridge Loan Agreement for the period between the
Effective Date and the first Disbursement Date, no Commitment Fee shall be due hereunder in respect of that period.
(b)
Additional Fees.
The Borrower agrees to pay all fees under the Fee Letters in accordance with the terms therein.
6.8 Application of Payments; Sharing
. (a) Subject to the provisions of this
Section 6.8
, the Facility
Agent agrees that promptly after its receipt of each payment from or on behalf of the Borrower in respect of any Obligations of the Borrower hereunder, it shall promptly distribute such payment to the Lenders
pro rata
based upon their
respective shares, if any, of the Obligations of the Borrower hereunder with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization
upon security, by the exercise of the right of
set-off
or banker’s lien, by counterclaim or cross action, by the enforcement of any right under the Transaction Documents, or otherwise), which, in any such
case, is in excess of its ratable share of payments on account of the Obligations obtained by all Lenders, then such Lender receiving such excess payment shall purchase for cash without recourse or warranty from the other Lenders an interest in the
Obligations of the Borrower to such Lenders in such amount as shall result in a proportional participation by all the Lenders in such amount;
provided
,
however
, that if all or any portion of such excess amount is thereafter recovered
from such Lender, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.
(c) Where a sum is to be paid by the Facility Agent under the Financing Documents for another party, the Facility Agent is not
obliged to pay that sum to such other party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received such sum.
(d) If the Facility Agent pays an amount to another party and it is later discovered that the Facility Agent had not actually
received that amount, then the party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall, on demand, refund the same to the Facility Agent together with interest on that amount from the date of
payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
57
6.9 Calculations and Certificates.
(a) In any litigation or
arbitration proceedings arising out of or in connection with a Financing Document, the entries made on the books or in the accounts maintained by a Financing Party are
prima facie
evidence of the matters to which they relate.
(b) Any certification or determination by a Financing Party of a rate or amount under any Financing Document is, in the
absence of manifest error, conclusive evidence of the matters to which it relates.
Section 7. Events of Default and Remedies
7.1 Events of Default
. The occurrence of any of the following events or circumstances shall constitute an
“
Event of Default
” hereunder:
(a) The Borrower shall fail to pay when due any principal
or interest or other amount payable pursuant to this Agreement or any other Financing Document (other than the Required Hedging Agreements), in each case when the same becomes due and payable (whether prior to its stated maturity or otherwise)
unless (i) payment is made within two (2) Business Days of its due date or (ii) if its failure is caused by administrative or technical error or a Disruption Event, payment is made within five (5) Business Days of its due date;
or
(b) (i) the Borrower shall default in the payment when due of any principal of or interest on any of
its other Indebtedness (other than any Subordinated Loans) in the amount of at least $1,000,000 beyond any grace period specified therein, or in the payment when due of any amount under any Required Hedging Agreement beyond any grace period
specified therein; or (ii) any event specified in any note, agreement, indenture or other document evidencing or relating to any such other Indebtedness of the Borrower (other than any Subordinated Loans) in the amount of at least $1,000,000 or
any event specified in any Required Hedging Agreement shall occur and continue if the effect of the occurrence and continuance of such event is to cause or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause such Indebtedness to become due, or to be prepaid in full (whether by redemption, purchase, offer to purchase or otherwise), prior to its stated maturity or, in the case of a Required Hedging Agreement, to permit the
payments owing under such Required Hedging Agreement to be liquidated as the result of the early termination thereof; (iii) at any time prior to the Project Completion Date, the OOG Sponsor shall default in the payment when due of any principal
of or interest on any of its other Indebtedness in the amount of at least $50,000,000 beyond any grace period specified therein; (iv) at any time prior to the Project Completion Date, any event specified in any note, agreement, indenture or
other document evidencing or relating to any such other Indebtedness of the OOG Sponsor in the amount of at least $50,000,000 shall occur and continue if the effect of the occurrence and continuance of such event is to cause or to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause such Indebtedness to become due, or to be prepaid in full (whether by redemption, purchase, offer to purchase or otherwise), prior to its stated
maturity; (v) at any time prior to the Project Completion Date, the Teekay Sponsor shall default in the payment when due of any principal of or interest on any of its other Indebtedness in the amount of at least $100,000,000 beyond any grace
period specified therein or (vi) at any time prior to the Project Completion Date, any event specified in any note, agreement, indenture or other document evidencing or relating to any such other Indebtedness of the Teekay Sponsor in the amount
of at least $100,000,000 shall occur and continue if the effect of the occurrence and continuance of such event is to cause or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause
such Indebtedness to become due, or to be prepaid in full (whether by redemption, purchase, offer to purchase or otherwise), prior to its stated maturity; or
58
(c) Any representation, warranty or certification made (or deemed
made) by or on behalf of the Borrower, the Shareholders, the General Partner, the Sponsors or the Operator in this Agreement, any other Financing Document, or in any notice or other certificate, agreement, document, financial statement or other
statement delivered pursuant hereto or thereto, shall prove to have been false or misleading in any material respect (without giving effect, for purposes of this paragraph (c), to any “material,” “materially,”
“materiality,” or similar qualifiers contained in any of such representations, warranties or certifications) when made or deemed made and shall continue to be so, unless the circumstances giving rise to such misrepresentation are capable
of remedy and are remedied within
twenty-one
(21) days of the earlier of the Facility Agent giving the Borrower notice of such misrepresentation and the Borrower becoming aware of such misrepresentation;
or
(d) The Borrower shall fail to comply with any term, covenant or provision set forth in
(i)
Sections 5.3(a)
,
5.12
,
5.13
,
5.15
,
5.16
,
5.18(a)
,
5.20(a)
,
5.24
,
5.25
,
5.27(a)
,
5.27(b)(i)
(unless such failure to comply relates to a failure to take any
action) through
(iv)
,
5.29(a)
,
5.31
or
5.40
; or (ii)
Sections 5.9(a)
,
5.14
,
5.17
, or
5.20(b)
and such failure shall continue unremedied for fifteen (15) days after the earlier of the
Facility Agent giving the Borrower notice of such failure and the Borrower becoming aware of such failure.
(e) The Borrower, any Shareholder, the General Partner, the Operator or any Sponsor shall fail to comply with
or perform any other agreement or covenant contained in this Agreement or in any other Financing Document (other than those referred to in paragraphs (a) through (d) of this
Section 7.1
) and such failure shall continue
unremedied for thirty (30) days after the Borrower, such Shareholder, the General Partner, the Operator or such Sponsor as the case may be, becomes aware of such failure;
provided
that, if (i) such failure cannot be cured within
such thirty
(30)-day
period, (ii) such failure is capable of being cured, (iii) the Borrower, such Shareholder, the General Partner, the Operator or such Sponsor, as the case may be, is proceeding
with diligence and in good faith to cure such failure, (iv) the existence of such failure does not impair the Security Interests in any material respect, (v) the existence of such failure has not had and cannot, after considering the
nature of the proposed cure, be reasonably expected to have a Material Adverse Effect, and (vi) the Facility Agent shall have received an Officer’s Certificate from the Borrower, such Shareholder, the General Partner, the Operator or such
Sponsor, as the case may be, to the effect of clauses (i), (ii), (iii), (iv) and (v) above and stating what actions the Borrower, such Shareholder, the General Partner, the Operator or such Sponsor, as the case may be, is taking to
cure such failure, then the time within which such failure may be cured shall be extended to such date, not to exceed a total of sixty (60) additional days after the end of such thirty
(30)-day
period, as
shall be necessary for the Borrower, such Shareholder, the General Partner, the Operator or such Sponsor, as the case may be, diligently to cure such failure; or
(f) The Borrower, any Shareholder, the General Partner, the Operator or any Sponsor shall admit in writing its
inability to, or be generally unable to, pay its debts as such debts become due; or
(g) The Borrower, any
Shareholder, the General Partner, the Operator or, any Sponsor shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, administrator, trustee or liquidator of itself or of all or a
substantial part of its Property, (ii) make a general assignment for the benefit of its creditors, (iii) commence a voluntary case under or file a petition to take advantage of any Bankruptcy Law (as now or hereafter in effect) including,
without limitation, the bankruptcy (
falência
), judicial restructuring (
recuperação judicial
) or
non-judicial
restructuring (
recuperação extrajudicial
)
proceedings under Brazilian Law No. 11,101/05, as amended, (iv) fail to controvert in an appropriate manner within sixty (60) days of the filing of, or acquiesce in writing to or file an answer admitting the material allegations of
any petition filed against it in an involuntary case under any Bankruptcy Law, (v) take any corporate action for the purpose of effecting any of the foregoing or (vi) take any action under any other applicable Laws which would result in a
similar or equivalent outcome as set forth in subclauses (i) through (v) hereof; or
59
(h) A proceeding or case shall be commenced, without the
application or consent of the Borrower, any Shareholder , the General Partner, the Operator or any Sponsor in any court of competent jurisdiction, seeking (i) its liquidation, reorganization, dissolution, administration or
winding-up,
or the composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, administrator, liquidator or the like of such Person or of all or any substantial part of its
Property or (iii) similar relief in respect of the Borrower, such Shareholder, the General Partner, the Operator or such Sponsor under any Bankruptcy Law, and such proceeding or case shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and continue unstayed and in effect, for a period of sixty (60) or more days; or an order for relief against the Borrower, such Shareholder, the General Partner, the Operator or such
Sponsor shall be entered and continue unstayed and in effect, for a period of sixty (60) or more days in an involuntary case under any Bankruptcy Law; or any proceeding or action shall be commenced under any other applicable Laws which would
result in a similar or equivalent outcome as set forth in subclauses (i) through (iii) hereof; or
(i) A final judgment or judgments for the payment of money (x) against the Borrower or the Operator in
excess of $1,000,000 for any one judgment or $2,000,000 in the aggregate, (y) against any Shareholder or the General Partner that has had or could reasonably be expected to have a Material Adverse Effect or (z) at any time prior to the
Project Completion Date, against the Teekay Sponsor in excess of $100,000,000 for any one judgment or against the OOG Sponsor in excess of $50,000,000 for any one judgment, shall be rendered by one or more courts, administrative tribunals or other
bodies having jurisdiction, and the same shall not be discharged (or provision satisfactory to the Majority Lenders shall not be made for such discharge), or a stay of execution thereof shall not be procured, within sixty (60) days from the
date of entry thereof and the Borrower, such Shareholder, the General Partner, such Sponsor or the Operator, as the case may be, shall not, within said period of sixty (60) days, or such longer period during which execution of the same shall
have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal; or
(j)
Any
non-monetary
judgment or order shall be rendered against the Borrower, any Shareholder, the General Partner, the Operator, or, at any time prior to Project Completion Date, against any Sponsor, that has
had or could reasonably be expected to have a Material Adverse Effect, and a stay of execution thereof shall not have been obtained within sixty (60) days from the date of entry thereof (or, in the case of any such judgment or order rendered by
one or more courts, administrative tribunals or other bodies of Brazil, ninety (90) or more days); or
(k) Any of the Secured Parties shall cease to have a first priority, perfected Lien on any material Collateral,
subject only to Permitted Liens; or
(l) Any Project Participant shall fail to obtain, renew, maintain or
comply with any Necessary Governmental Approval or any Necessary Governmental Approval shall be revoked, terminated, withdrawn, suspended, modified or withheld or shall cease to be in full force and effect or any proceeding is commenced to revoke,
terminate, withdraw, suspend, modify or withhold any Necessary Governmental Approval and such proceeding is not terminated within thirty (30) days; unless, in any such case, such failure, revocation, termination, withdrawal, suspension,
modification, withholding or failure to be in full force and effect, or such proceeding, as the case may be, could not reasonably be expected to have a Material Adverse Effect; or
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(m) (i) Any Project Document shall be terminated (other than by
virtue of the scheduled expiration in the ordinary course of such Project Document in accordance with its terms), or the Borrower or the Operator shall take any action to terminate any Project Document to which it is a party, or (ii) any
Transaction Document, or any material provision of any Transaction Document, shall at any time for any reason cease to be valid and binding or in full force and effect or any party thereto (other than a Secured Party) shall so assert in writing and
such assertion is not withdrawn in writing within thirty (30) days of the date on which the Borrower shall become aware of such assertion; or (iii) any Transaction Document, or any material provision of any Transaction Document shall be
declared to be null and void by any Governmental Authority, or the validity or enforceability thereof shall be contested by the Borrower or the Operator or any Governmental Authority; (iv) the Borrower or the Operator shall deny that it has any
further liability or obligation under any Transaction Document; (v) any party to any Project Document assigns or transfers all or any part of its rights and obligations in, to or under such Project Document other than to a transferee which has
been approved by the Required Lenders; (vi) any Consortium Member assigns or transfers all or any part of its rights and obligations in, to or under the Consortium Agreement to a transferee which is not a Permitted Transferee and such action
has not been remedied to the satisfaction of the Required Lenders within sixty (60) days, provided that this clause (vi) shall not apply in the event that any Consortium Member assigns or transfers all or any part of its rights and
obligations in, to or under the Consortium Agreement to a transferee which is not a Permitted Transferee if such assignment or transfer (a “
Pre-Approved Transfer
”) would not result in the Original Consortium Members ceasing to
collectively hold directly legal and beneficial ownership of at least seventy percent (70%) of the membership interests in the Consortium, it being understood that any transferee pursuant to a Pre-Approved Transfer shall be (x) a reputable
international oil company or a Subsidiary of a reputable international oil company and (y) required to comply with all Sanctions Laws and all Anti-Money Laundering Laws; (vii) Petrobras (or any other Consortium Member that replaces
Petrobras as the leader and operator of the Consortium in accordance with the terms hereof) is replaced, other than by a replacement which has been approved by the Required Lenders, as the leader and operator of the Consortium; or
(viii) Petrobras ceases to (x) hold directly legal and beneficial ownership of at least thirty percent (30%) of the membership interests in the Consortium and/or (y) direct or cause the direction of the management of the
Consortium, except in the event that Petrobras is replaced as the leader and operator of the Consortium with the approval of the Required Lenders in accordance with clause (vii) above; or
(n) the Commercial Operation Date shall not have occurred by the Date Certain; or
(o) the Borrower, the EPC Contractor or Petrobras shall have actually abandoned the Project and (in the case of
the EPC Contractor or Petrobras) such abandonment shall continue for a period of ten (10) Business Days after the Borrower shall have or should have had knowledge thereof; or
(p) a Change of Control shall have occurred; or
(q) an Expropriation Event shall have occurred,
provided
that, with respect to an Expropriation Event
related to the Facilities, it shall only be an Event of Default under this
Section 7.1(q)
if the Borrower shall fail to procure the release of the Facilities within a period of sixty (60) days after such Expropriation Event (or
lesser period if the Borrower shall not at all times during such period of sixty (60) days be acting diligently to contest, discharge, settle or secure the same); or
61
(r) Petrobras shall reject the FPSO pursuant to the terms of the
Services Agreement or the Charter Agreement; or
(s) a Petrobras Insolvency Event shall have occurred.
7.2 Acceleration
. (a) If an Event of Default specified in paragraph (g) or (h) of
Section 7.1
shall occur with respect to the Borrower, automatically all Commitments shall immediately terminate and all Loans (with accrued interest thereon) and all other amounts owing to the Lenders under the Financing Documents shall
immediately become due and payable without further notice or demand.
(b) If any Event of Default shall occur and be
continuing, then the Facility Agent (acting at the instructions of the Majority Lenders or, following any default in payment of the final Scheduled Principal Payment (as the same may be extended with the consent of the Lenders) of the Loans, any
Lender) may by notice to the Borrower (i) declare the Commitments to be terminated, whereupon all Commitments shall immediately terminate and/or (ii) declare the Loans, all accrued and unpaid interest thereon and all other amounts owing to
the Lenders under the Financing Documents to be due and payable, whereupon the same shall become immediately due and payable.
(c) Except as expressly provided above in this
Section 7.2
, presentment, demand, protest and all other notices and
other formalities of any kind are hereby expressly waived by the Borrower.
7.3 Other Remedies
. Upon the occurrence
and during the continuation of an Event of Default:
(a) The Collateral Agent may exercise any or all
rights and remedies at law or in equity (in any combination or order that the Collateral Agent may elect), including without limitation or prejudice to the Collateral Agent’s other rights and remedies, any and all rights and remedies available
under any of the Financing Documents.
(b) With the prior written consent of the Majority Lenders, which
consent may be given or withheld in the Majority Lenders’ sole discretion, either the EPC Contractor or any subcontractor may submit an invoice on behalf of the Borrower, and the Lenders may, in their sole discretion, make payments directly to
the EPC Contractor, any other Construction Contractor, any subcontractor, or any other Person. The Facility Agent shall give the Borrower prior written notice of payments to be made by the Lenders pursuant to this paragraph. All sums advanced and
disbursed pursuant to this paragraph shall be deemed to be Loans disbursed pursuant to the Financing Documents.
(c) Any funds of any Lender or the Collateral Agent (including the proceeds of any Loans) used for any purpose
referred to in this
Section 7.3
, whether or not in excess (without obligating any Lender to fund any Loans in excess of its Commitment) of the relevant Commitments shall (i) be governed hereby, (ii) constitute a part of the
Obligations secured by the Security Documents, (iii) bear interest at the Default Rate and (iv) be payable upon demand by such Lender or the Collateral Agent, as applicable.
Section 8. The Facility Agent
8.1 Appointment and Authorization
. (a) Each other Financing Party hereby (i) irrevocably (subject to
Section 8.9
) appoints, designates and authorizes the Facility Agent as its agent to take such action on its behalf under the provisions of this Agreement and each other Financing Document to which it is a party and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any such other Financing Document, together with such powers as are reasonably incidental thereto and (ii) authorizes the Facility Agent to
execute, deliver and perform each of the Financing Documents to which it is or is intended to be a party and each Financing Party agrees to be bound by all of the agreements of the Facility Agent contained in the Financing Documents.
62
(b) Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Financing Document, the Facility Agent shall not have any duties or responsibilities except those expressly set forth herein and in the other Financing Documents, nor shall the Facility Agent have or be deemed to have any
fiduciary relationship with any Lender and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Financing Document or otherwise exist against the Facility Agent and the
Facility Agent shall not be bound to account to any other Financing Party for any sum or profit element of any sum received for its own account. Without limiting the generality of the foregoing sentence, the use of the term “Facility
Agent” in this Agreement with reference to the Facility Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only a relationship between independent contracting parties.
8.2 Delegation of Duties
. The Facility Agent may execute any of its duties under this Agreement or any other Financing
Document by or through agents, employees or
attorneys-in-fact
and shall be entitled to advice of counsel or other experts concerning all matters pertaining to such
duties. The Facility Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact
that it selects with care expected of a prudent
person.
8.3 Liability of the Facility Agent
. The Facility Agent and any other
Agent-Related
Persons shall not (a) be liable (including for negligence or any other category of liability whatsoever) for any action taken or omitted to be taken or for any loss or injury resulting from
their actions or their performance or lack of performance of their duties under or in connection with this Agreement or any other Transaction Document or the transactions contemplated hereby (except for its own gross negligence or willful
misconduct) or (b) be responsible in any manner to any of the other Secured Parties or any other Person for any recital, statement, representation or warranty made by the Borrower or any Affiliate of the Borrower, or any officer thereof,
contained in this Agreement or in any other Transaction Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Facility Agent under or in connection with, this Agreement or any other
Transaction Document, or for the value of or title to any Collateral, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document, or for any failure of the Borrower or any other
party to any Transaction Document to perform its obligations hereunder or thereunder (except for its own gross negligence or willful misconduct). The Facility Agent and any other
Agent-Related
Person shall not
be under any obligation to any Secured Party to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Transaction Document, or to inspect the Properties,
books or records of the Borrower, any Sponsor, any other holder of equity interests in the Borrower or any Affiliate of such Person. In no event shall the Facility Agent be liable for special, indirect, punitive or consequential loss or damage of
any kind whatsoever (including but not limited to loss of profit, goodwill, reputation, business opportunity or anticipated saving), even if the Facility Agent has been advised as to the likelihood of such loss or damage and regardless of the form
of action.
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8.4 Reliance by the Facility Agent.
The Facility Agent shall be entitled
to conclusively rely, and shall not be liable for any act (or omission) in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, written statement or other document
or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other
experts selected by the Facility Agent. The Facility Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Transaction Document (a) if such action would, in the opinion of the Facility Agent
(upon consultation with counsel) be contrary to applicable Law or regulation or breach of a fiduciary duty or duty of confidentiality or the terms of any Financing Document, (b) if such action is not specifically provided for in the Financing
Documents to which the Facility Agent is a party, and it shall not have received such advice or concurrence of the Majority Lenders as it deems appropriate, (c) if in connection with the taking of any such action that would constitute the
making of a payment due under any Project Document pursuant to the terms of any Consent Agreement, it shall not first have received from any or all of the other relevant Secured Parties funds equal to the amount of such payment, or (d) unless,
if it so requests, the Facility Agent shall first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Facility Agent in all cases
shall not be liable for any act (or omission) in acting, or in refraining from acting, under this Agreement or any other Transaction Document in accordance with a request or consent of the Majority Lenders and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the relevant Secured Parties. Notwithstanding the foregoing and unless a contrary indication appears in the Financing Documents, the Facility Agent shall act in accordance with the
instructions of the Majority Lenders, shall have the right at any time to seek instructions from the Majority Lenders, and shall not be liable for any act (or omission) if the Facility Agent acts (or refrains from taking any action) in accordance
with an instruction of the Majority Lenders. The obligations of the Agents under this Agreement are several and not joint.
8.5 Notice of Default.
The Facility Agent shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default, except with respect to defaults in the payment of principal, interest and fees of which it is aware and which are required to be paid to the Facility Agent for the account of the Lenders, unless the Facility Agent shall
have received written notice from any of the Financing Parties or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “Notice of Default.” If the Facility Agent receives
any such notice of the occurrence of a Default or an Event of Default, it shall give notice thereof to the other Financing Parties. The Facility Agent shall take such action with respect to such Default or Event of Default as may be requested by the
Majority Lenders in accordance with this
Section 8
;
provided
,
however
, that unless and until the Facility Agent has received any such request, the Facility Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable or in the best interest of the Lenders.
8.6 Credit Decision.
Each Lender acknowledges that the Facility Agent and the other
Agent-Related
Persons have not made any representation or warranty to it, and that no act by the Facility Agent hereafter taken, including any review of the Project or of the affairs of the Borrower or the
Sponsors, shall be deemed to constitute any representation or warranty by the Facility Agent or the other
Agent-Related
Persons to any such Lender. Each Lender represents to the Facility Agent that it has,
independently and without reliance upon the Facility Agent or the other
Agent-Related
Persons and based on such documents and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, Property, financial and other condition and creditworthiness of the Borrower, the Sponsors, their Affiliates, the Project, the value of and title to any Collateral, and all applicable bank
regulatory Laws relating to the transactions contemplated hereby, and the legality, validity, effectiveness, adequacy or enforceability of any Financing Document and made its own decision to enter into this Agreement and to extend credit to the
Borrower hereunder. Each Lender also represents that it will, independently and without reliance upon the Facility Agent or the other
Agent-Related
Person and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Transaction Documents, and to make such investigations as it deems necessary to
inform itself as to the business, prospects, operations, Property, financial and other condition and creditworthiness of the Borrower or any of the Sponsors and the Project. Except for notices, reports and other documents expressly required pursuant
to any Financing Document to be furnished to the Lenders by the Facility Agent, the Facility Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations,
Property, financial and other condition or creditworthiness of the Project or of the Borrower or the Sponsors which may come into the possession of the Facility Agent or any of the other
Agent-Related
Persons.
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8.7 Indemnification of the Facility Agent
. (a) Whether or not the
transactions contemplated hereby are consummated, each of the Lenders shall indemnify upon demand the Facility Agent and the other
Agent-Related
Persons (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so),
pro rata
in accordance with the Combined Exposure held by such Lender, from and against any and all claims, expenses, obligations, duly documented costs, losses or
liabilities, losses, damages, injuries (to person, property or natural resources), penalties, stamp or other similar taxes, actions, suits, judgments, reasonable costs and expenses (including reasonable attorney’s fees and expenses) of whatever
kind or nature regardless of their merit, demanded, asserted, or claimed against the Facility Agent directly or indirectly related to its role as Facility Agent, including without limitation all reasonable costs associated with claims for damages to
Persons or property, and reasonable attorneys’ and consultants’ fees and expenses and court costs;
provided
,
however
, that no Lender shall be liable for the payment to the Facility Agent or the other
Agent-Related
Persons of any portion of such costs, losses or liabilities resulting solely from such Person’s gross negligence or willful misconduct.
(b) Without limitation of the foregoing, each Lender shall reimburse the Facility Agent upon demand for its ratable share as
provided above of any expenses reimbursable to the Facility Agent by the Borrower under
Section 9.1
, to the extent that the Facility Agent is not reimbursed for such expenses by or on behalf of the Borrower. No provision of this
Agreement, nor any document related hereto, shall require the Facility Agent to take any action that it reasonably believes to be contrary to applicable law or to expend or risk their own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(c) The undertakings of the Lenders in this
Section 8.7
shall survive the payment
of all Obligations hereunder, the termination of this Agreement and the resignation or replacement of the Facility Agent.
8.8 Facility Agent in its Individual Capacity
. The Facility Agent and its Affiliates may become a Lender, or acquire
any interest in, any Commitment with the same rights that it or they would have if the Facility Agent were not appointed hereunder, and may engage or be interested in any financial or other transaction with the Borrower and may act on, or as
depositary, trustee or agent for, the Lenders or in connection with any other obligations of the Borrower as freely as if the Facility Agent were not appointed hereunder.
65
8.9 Successor Agents.
(a) Subject to the appointment and acceptance
of a successor as provided below, (i) the Facility Agent may resign at any time by giving thirty (30) days’ notice thereof to the other Financing Parties and the Borrower, and (ii) the Facility Agent may be removed at any time
with or without cause by the Majority Lenders following notice thereof to the other Financing Parties and, unless a Default or an Event of Default has occurred and is continuing, consultation with the Borrower. Upon any such resignation or removal,
the Majority Lenders shall, following consultation with the Borrower, unless a Default or an Event of Default has occurred and is continuing in which case no such consultation shall be required, have the right to appoint a successor to the Facility
Agent and shall use all reasonable efforts to appoint a Lender as such successor. If no successor Facility Agent shall have been appointed by such Lenders and shall have accepted such appointment within thirty (30) days after the resigning
Facility Agent’s giving of notice of resignation or the giving of any notice of removal of the Facility Agent, then such resigning or removed Facility Agent may, following consultation with the Borrower unless a Default or an Event of Default
has occurred and is continuing in which case no such consultation shall be required, appoint its successor. The resignation or removal of the Facility Agent and the appointment of any successor thereto shall become effective only when the successor
(x) notifies all other parties hereto that it accepts its appointment and (y) delivers a Secured Party Accession Agreement under which it agrees,
inter alia
, to be bound by the terms of this Agreement and the Intercreditor
Agreement. Upon satisfaction of the conditions set out in the preceding sentence, such successor Facility Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of such resigning or removed Facility
Agent and such resigning or removed Facility Agent shall be discharged from its duties and obligations hereunder and under the other Financing Documents. Upon the appointment of the successor Facility Agent, such successor shall promptly notify the
Lenders as to the fees that such successor Facility Agent will charge for its services as such.
(b) After the Facility
Agent’s resignation or removal, the provisions hereto of this
Section 8
and of
Sections 9.1
and
9.2
shall inure to its benefit as to any actions taken or omitted to be taken by it while it was a Facility Agent.
The parties hereto hereby agree that transfer of any rights of the Facility Agent hereunder does not imply novation of any Loan. Any Person: (i) into which the Facility Agent is a party may be merged or consolidated or (ii) that may result
from any merger, conversion or consolidation to which the Facility Agent shall (if the Facility Agent is not the surviving entity) be the successor of the Facility Agent without the execution or filing of any instrument or any further act on the
part of any of the parties hereto.
8.10 Registry.
The Borrower hereby designates the Facility Agent, and the
Facility Agent agrees, to serve as the Borrower’s agent, solely for purposes of this
Section 8.10
, to maintain a register at one of its offices in New York (the “
Register
”) on which it will record the Commitments
from time to time of each of the Lenders, the Loans made by each of the Lenders and each repayment in respect of the principal amount of the Loans of each Lender. Failure to make any such recordation, or any error in such recordation shall not
affect the Borrower’s obligations in respect of such Loans. With respect to any Lender, the transfer of the Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be
effective until such transfer is recorded on the Register maintained by the Facility Agent with respect to ownership of such Commitment and Loans, and prior to such recordation all amounts owing to the transferor with respect to such Commitment and
Loans shall remain owing to the transferor. The registration of an assignment or transfer of all or part of any Commitment and Loans shall be recorded by the Facility Agent on the Register only upon the acceptance by the Facility Agent of a properly
executed and delivered Transfer Certificate pursuant to
Section 9.13
. The Facility Agent may treat the Lender in whose name a Commitment is registered as the Lender of such Commitment for all purposes whether amounts with respect to such
Commitment be owing or in default and the Facility Agent shall not be affected by notice to the contrary except as required by applicable Law.
8.11 Force Majeure
. The Facility Agent shall not incur any liability for not performing any act or fulfilling any duty,
obligation or responsibility hereunder by reason of any occurrence beyond the control of the Facility Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or
war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the United States Federal Reserve Bank, the European Central Bank or any other federal reserve or central bank wire or facsimile or other
wire or communication facility).
8.12 Deductions from Amounts Payable by the Facility Agent
. If any party hereto
owes an amount to a Facility Agent under the Financing Documents, the Facility Agent may, after giving notice to such party, deduct an amount not exceeding the amount so owed from any payment to that party which the Facility Agent would otherwise be
obliged to make under the Financing Documents and apply the amount deducted in or towards satisfaction of the amount owed to the Facility Agent. For the purpose of the Financing Documents, such party shall be regarded as having received any amount
so deducted.
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Section 9. Miscellaneous
9.1 Costs and Expenses.
The Borrower shall, whether or not the transactions contemplated hereby are consummated and
whether or not any of the following are incurred before or after the Closing Date, pay, within ten (10) Business Days after demand and receipt of documentation in respect thereof (to the extent applicable), (a) all reasonable and
documented costs and expenses of the Agents in connection with the preparation, execution, filing, recording and administration of this Agreement, the other Transaction Documents, and any other documents which may be delivered in connection herewith
or therewith, including, without limitation, all reasonable engineers’, insurance and other consultants’ fees (including any such fees incurred in connection with the preparation of any report referred to herein and any inspections
pursuant hereto) and all Attorney Costs (subject to the applicable terms of any written agreements between the Borrower and any such Person relating to such costs and expenses and to any specific limitation in this Agreement)
provided
that
the incurring of any
out-of-pocket
expenses in an aggregate amount in excess of $10,000 (or the equivalent thereof in any other currency) shall be subject to the prior
written consent of the Borrower (not to be unreasonably withheld or delayed) and (b) all costs and expenses incurred by any Secured Party (including Attorney Costs) in connection with (i) any and all amounts which any Secured Party has
paid relative to curing any Default or Event of Default resulting from the acts or omissions of the Borrower under this Agreement or any other Transaction Document, (ii) the exercise, enforcement or attempted enforcement of, or the
investigation or preservation of any rights or remedies under, this Agreement or any other Transaction Document, including without limitation any retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the
Collateral or preserving the Collateral and the Security Interests or (iii) any amendment, waiver or consent requested by the Borrower with respect to any provision contained in this Agreement or any other Transaction Document. The parties
acknowledge and agree that the caption with respect to Austrian stamp duty on the first page of this Agreement is for information purposes only and does not limit any rights or remedies of the Secured Parties under the Financing Documents, including
but not limited to this
Section 9.1
,
Section 2.7(g)
or applicable Law.
9.2 Indemnity
.
Whether or not the transactions contemplated hereby are consummated:
(a) The Borrower shall pay,
indemnify, and hold each Secured Party and each of its respective officers, directors, employees, counsel, agents, advisers and
attorneys-in-fact
and Affiliates and the
respective successors and assigns of Secured Parties and their Affiliates (each, an “
Indemnified Person
”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, charges, expenses or disbursements (including Attorney Costs) which may at any time (including at any time following repayment of the Loans or the termination, resignation or replacement of any Secured Party) be incurred by them in any way
relating to or arising out of this Agreement or any other Transaction Document or the Loans, or the use of the proceeds thereof, including any investigation, litigation or proceeding (including any bankruptcy, insolvency, reorganization or other
similar proceeding or appellate proceeding) related thereto, whether or not any Indemnified Person is a party thereto (all the foregoing, collectively, the “
Indemnified Liabilities
”);
provided
, that the Borrower shall have no
obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of such Indemnified Person
provided
further
that, without limitation to the obligations of
the Borrower under this
Section 9.2
, each Secured Party shall provide written notice to the Borrower promptly upon the incurrence of any Indemnified Liabilities. For the avoidance of doubt, the indemnity above shall cover any cost, loss
or liability incurred by each Indemnified Person relating to the Transaction Documents or the transactions contemplated thereby in any jurisdiction arising or asserted under or in connection with any Law relating to safety at sea, the International
Safety Management (ISM) Code, any Environmental Law, any Sanctions Laws or any
Anti-Money
Laundering Laws. The Borrower shall also, within three (3) Business Days of demand, indemnify each Indemnified
Person against any cost, loss or liability incurred by it as a result of any claim, action, civil penalty or fine against, any settlement, and any other kind of loss or liability, and all reasonable costs and expenses (including Attorney Costs)
incurred by such Indemnified Person as a result of conduct of the Borrower or any of its partners, directors, officers, employees, agents or advisors, that violates any Sanctions Laws or any
Anti-Money
Laundering Laws.
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(b)
Environmental Indemnity
. (i) Without in any way
limiting the generality of the other provisions contained in this
Section 9.2
, the Borrower agrees to defend, protect, indemnify, save and hold harmless each Indemnified Person, whether as beneficiary of any of the Security Documents, as
a mortgagee in possession, or as
successor-in-interest
to the Borrower by foreclosure deed or deed
in lieu
of foreclosure, or otherwise, from and against any and
all liabilities, obligations, losses, damages, penalties, fees, claims, actions, judgments, suits, costs, disbursements (including, without limitation, Attorney Costs and reasonable and duly documented consultants’ fees and disbursements) and
expenses of any kind or nature whatsoever that may at any time be incurred by, imposed on, asserted or awarded against any such Indemnified Person directly or indirectly based on, or arising out of or resulting from, (A) the actual or alleged
presence of Hazardous Materials on, in, under or affecting all or any portion of the Facilities whether or not the same originates or emanates from the Facilities or from properties at which any Hazardous Materials generated, stored or handled by
the Borrower were Released or disposed of, or (B) any Environmental and Social Claim relating to the Project (the “
Indemnified Matters
”), whether any of the Indemnified Matters arise before or after foreclosure of any of the
Security Interests or other taking of title to all or any portion of the Collateral by any Secured Party, including, without limitation, (x) the costs of removal of any and all Hazardous Materials from all or any portion of the Facilities,
(y) additional costs required to take reasonable precautions to protect against the Release of Hazardous Materials on, in, under or affecting the Facilities into the air, any body of water, any other public domain or any surrounding areas, and
(z) costs incurred to comply, in connection with all or any portion of the Facilities, with all applicable Environmental and Labour Laws with respect to Hazardous Materials,
provided
that the Borrower shall have no obligation hereunder
to any Indemnified Person with respect to Indemnified Matters arising from the gross negligence or willful misconduct of such Indemnified Person and
provided
further
that, without limitation to the obligations of the Borrower under
this
Section 9.2
, each Secured Party shall provide written notice to the Borrower promptly after the occurrence of any Indemnified Matters.
(ii) In no event shall any site visit, observation, or testing by any Indemnified Person (or any representative
of any such Person) be deemed to be a representation or warranty that Hazardous Materials are or are not present with respect to the Facilities or that there has been or shall be compliance with any Environmental and Labour Law. Neither the Borrower
nor any other Person is entitled to rely on any site visit, observation, or testing by any Indemnified Person. No Indemnified Person owes any duty of care to protect the Borrower or any other Person against, or to inform the Borrower or any other
Person of, any Hazardous Materials or any other adverse condition affecting the Project. No Indemnified Person shall be obligated to disclose to the Borrower or any other Person any report or findings made as a result of, or in connection with, any
site visit, observation, or testing by any Indemnified Person.
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(c)
Survival; Defense.
The obligations in this
Section 9.2
shall survive any termination of any Transaction Document and the payment of the Loans and all other Obligations and the resignation and removal of the Facility Agent. At the election of any Indemnified Person, the
Borrower’s indemnification obligations under this
Section 9.2
shall include the obligation to defend such Indemnified Person using legal counsel satisfactory to such Indemnified Person (acting reasonably), at the sole cost and
expense of the Borrower
provided
that such costs have been reasonably incurred and duly documented. All amounts owing under this
Section 9.2
shall be paid within thirty (30) days after demand and receipt of documentation in
respect thereof.
(d)
Contribution.
To the extent that any undertaking in the preceding paragraphs
of this
Section 9.2
may be unenforceable because it violates any Law or public policy, the Borrower will contribute the maximum portion that it is permitted to pay and satisfy under applicable Law to the payment and satisfaction of such
undertaking.
(e)
Settlement.
So long as the Borrower is in compliance with its obligations under
this
Section 9.2
, the Borrower shall not be liable to any Indemnified Person under this
Section 9.2
for any settlement made by such Indemnified Person without the Borrower’s consent.
9.3 Notices; Disclosure
. (a) All notices, requests and demands to or upon the parties hereto to be effective shall
be in writing (including electronic mail (unless a party notifies the other parties hereto that it will not accept electronic mail as notice hereunder)) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made
(i) in the case of delivery by hand or express courier, upon delivery to or refusal to accept delivery by the addressee, (ii) in the case of delivery by mail, three (3) Business Days after being deposited in the mails, postage
prepaid, or (iii) in the case of electronic mail, when actually received and in readable form with receipt electronically confirmed, addressed to the relevant party at its address specified for notices on
Annex III
or to such other
address as shall be designated by such party in a written notice to the other parties hereto;
provided
that any notice, request or demand to or upon any Financing Party for a Loan or any payment or prepayment thereof shall not be effective
until received by such Financing Party.
(b) All notices, requests and other communications hereunder and under the other
Financing Documents shall be in the English language.
(c) The Borrower hereby consents to each Lender, its officers and
agents disclosing information relating to the Borrower in connection with the Project, including but not limited to details of this Agreement and the Collateral, (i) to any Lender Member (as defined below) and its representatives in any
jurisdiction (together with the Lender, the “
Permitted Parties
”) provided that each Lender requires each other Permitted Party to be bound by a duty of confidentiality equivalent to the duty of confidentiality owed by each Lender to
the Borrower and the Sponsors; (ii) to professional advisers, insurers or insurance brokers and service providers of the Permitted Parties who are under a duty of confidentiality to the Permitted Parties; (iii) to any actual or potential
assignee, novatee, transferee, participant or sub-participant in relation to any of the Lender’s rights and/or obligations under this Agreement (or any agent or adviser of any of the foregoing) for the purposes of evaluating a potential
assignment or participation under this Agreement, provided that each Lender requires such potential assignee, novatee, transferee, participant or sub-participant (or any agent or adviser of any of the foregoing) to be bound by a duty of
confidentiality equivalent to the duty of confidentiality owed by each Lender to the Borrower and the Sponsors; (iv) to any rating agency to enable it to carry out its normal rating activities in relation to the Sponsors or any Affiliate
thereof, provided that such rating agency is bound by a duty of confidentiality; (v) to any direct or indirect provider of credit protection to any Permitted Party for the purposes of obtaining or maintaining any such credit protection,
provided that such provider is bound by a duty of confidentiality; (vi) as required by any law or as required or requested by any Governmental Authority with jurisdiction over any of the Permitted Parties; and (vii) to the extent that such
information becomes publicly available other than by reason of disclosure by such Lender in violation of this
Section 9.3(c)
). Each Lender shall notify the Borrower of any disclosure made under this
Section 9.3(c)
(other than
to a Permitted Party) as soon as reasonably possible thereafter together with reasonable details of the reason for such disclosure, to the extent not prohibited by applicable law. For purposes of this
Section 9.3(c)
:
(A) “
Affiliate
” means, in relation to a company, (x) its Subsidiary, (y) its Holding Company; or (z) any other Subsidiary of that Holding Company (including head offices and branches of any Person referred to in
(x), (y) or (z)); (B) “
Lender Member
” means each Lender and its Affiliates (including branches); and (C) “
Holding Company
” means, in relation to a company, a company in respect of which the first
named company is a Subsidiary.
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9.4 Benefit of Agreement
. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto. The Borrower may not assign or otherwise transfer any of its rights under this Agreement or any of the other Financing Documents without
the prior written consent of each Lender.
9.5 No Waiver; Remedies Cumulative.
No failure or delay on the part of
any of the Secured Parties in exercising any right, power or privilege hereunder or under any other Financing Document and no course of dealing between the Borrower and any Secured Party shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other Financing Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. No notice to or demand
on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Secured Party to take any other or further action in any circumstances
without notice or demand. All remedies, either under this Agreement or any other Financing Document or pursuant to any applicable Law or otherwise afforded to any Secured Party shall be cumulative and not alternative and not exclusive of any rights
or remedies provided by Law.
9.6 No Third Party Beneficiaries
. The agreement of each Lender to make extensions of
credit to the Borrower on the terms and conditions set forth in this Agreement and the other Financing Documents is solely for the benefit of the Borrower, and no other Person (including any other Project Participant, or any contractor,
sub-contractor,
supplier, worker, carrier, warehouseman, materialman or vendor furnishing supplies, goods or services to or for the benefit of the Borrower or the Project or receiving services from the Project)
shall have any rights hereunder against any Secured Party with respect to the Loans, the proceeds thereof or otherwise. Unless expressly provided to the contrary in a Financing Document 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 enjoy the benefit of any terms of this Agreement. Notwithstanding any term of any Financing Document to the contrary, the consent of any person who is not a party to this Agreement
is not required to rescind or vary this Agreement at any time.
9.7 Reinstatement
. To the extent that any Secured
Party receives any payment by or on behalf of the Borrower, which payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to the Borrower or to its estate, trustee,
receiver, custodian or any other party under any Bankruptcy Law or otherwise, then to the extent that any Secured Party is required to repay any such amount received, the obligation to which such payment initially related shall be reinstated by the
amount so repaid and shall be included within the Obligations as of the date such initial payment occurred.
9.8 No
Immunity.
To the extent that the Borrower may be entitled, in any jurisdiction in which judicial proceedings may at any time be commenced with respect to this Agreement or any other Financing Document, to claim for itself or its revenues, assets
or Properties any immunity from suit, the jurisdiction of any court, attachment prior to judgment, attachment in aid of execution of judgment,
set-off,
execution of a judgment or any other legal process, and
to the extent that in any such jurisdiction there may be attributed to the Borrower such an immunity (whether or not claimed), the Borrower hereby irrevocably agrees not to claim and hereby irrevocably waives such immunity to the fullest extent
permitted by the Law of the applicable jurisdiction.
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9.9 Judgment Currency
. This is an international transaction in which the
specification of Dollars and payment in New York City is of the essence, and the obligations of the Borrower under this Agreement and under the other Financing Documents to make payment to (or for the account of) each Secured Party in Dollars shall
not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any other currency or in another place except to the extent that such tender or recovery results in the effective receipt by such
Secured Party in New York City of the full amount of Dollars payable to such Secured Party under the Financing Documents to which such Secured Party is a party. If for the purpose of obtaining or enforcing judgment in any court it is necessary to
convert a sum due hereunder in Dollars into another currency (for the purposes of this
Section 9.9
, hereinafter the “
judgment currency
”), the rate of exchange which shall be applied shall be that at which in accordance
with normal banking procedures such Secured Party could purchase such Dollars at the exchange rate published at its principal office at 10:00 a.m. on that day in New York with the judgment currency on the Business Day next preceding the day on
which such judgment is rendered. The obligation of the Borrower in respect of any such sum due from it to such Secured Party hereunder (in this
Section 9.9
called an “
Entitled Person
”) shall, notwithstanding the rate of
exchange actually applied in rendering such judgment, be discharged only to the extent that on the Business Day following the receipt by such Entitled Person of any sum adjudged to be due hereunder in the judgment currency such Entitled Person may
in accordance with normal banking procedures purchase and transfer Dollars to New York City with the amount of the judgment currency so adjudged to be due; and the Borrower hereby, as a separate obligation and notwithstanding any such judgment,
agrees to indemnify such Entitled Person on demand, in Dollars, for the amount (if any) by which the sum originally due to such Entitled Person in Dollars hereunder exceeds the amount of the Dollars so purchased and transferred with the judgment
currency received.
9.10 Hedge Guarantors
. If a Person providing, or which is intended to provide, a guaranty of
the performance or obligations of the Borrower under any Required Hedging Agreement, including by providing collateral as security therefor (each such person, a “
Hedge Guarantor
”), is not an “eligible contract participant”
within the meaning of Section 1a(18) of the Commodity Exchange Act of the United States and the applicable rules issued by the Commodity Futures Trading Commission of the United States and/or the Securities and Exchange Commission of the United
States (collectively, and as now or hereafter in effect, the “
ECP Rules
”), at the time such guaranty was entered into, or intended to be entered into, and at such other times as are relevant for the ECP Rules, and to the extent that
the providing of such guaranty by such Hedge Guarantor would violate the ECP Rules, the parties agree that, notwithstanding anything else in this Agreement or any other Financing Document to the contrary, (a) any such guaranty shall not be
effective as to the obligations of the Borrower under any Required Hedging Agreement and such Person shall not be, or be deemed to be, a guarantor of the Borrower’s performance or obligations under such Required Hedging Agreement or in
connection with any transaction thereunder, and (b) no Default or Event of Default shall occur because of any such failure to make such guaranty or provide any security as a result of the foregoing.
9.11 Counterparts; Providing Copies to Austrian Authorities and Courts
. (a) This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.
(b) In the event that a party hereto is requested to provide any Austrian government authority or the courts of Austria with
an uncertified copy of a Financing Document, upon request by such party the Facility Agent shall provide such uncertified copy and the other parties hereto shall not contest the conformity of such document with the original version.
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9.12 Amendment or Waiver; Voting
. (a) No provision of this Agreement
or any other Financing Document may be amended, supplemented, modified or waived, except by a written instrument signed by the Majority Lenders (or the Facility Agent on behalf of the Majority Lenders with such Majority Lenders’ written
consent) and the Borrower (but only if the Borrower is a party thereto), and, to the extent that its rights or obligations may be affected thereby, the Agent or Agents party thereto. Notwithstanding the foregoing provisions, no such waiver and no
such amendment, supplement or modification shall (i) increase the Commitment of any Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the
Total Commitment shall not constitute an increase of the Commitment of any Lender), without the prior written consent of such Lender, (ii) postpone or delay the Maturity Date, without the prior written consent of each Lender, or postpone or
delay any date fixed by this Agreement or any other Financing Document for any payment of principal, interest or Fees due to any Financing Party hereunder or under any other Financing Document, without the prior written consent of such Financing
Party, (iii) reduce any fee or premium payable to any Financing Party under any Financing Document or reduce the principal of, or the rate of interest specified in any Financing Document on any Loan of any Lender, without the prior written
consent of such Financing Party or Lender, as the case may be, (iv) release, amend or modify all or substantially all of the Collateral except as shall be otherwise provided in any Security Document or other Financing Document or consent to the
assignment or transfer by the Borrower or any Sponsor of any of their respective obligations under this Agreement or any other Financing Document, without the prior written consent of each Lender, (v) amend, modify or waive any provision
requiring
pro rata
payments to each Lender without the prior written consent of each Lender, (vi) amend, modify or waive any provision of this
Section 9.12
or
Sections 2.1(d)
,
5.40
,
6.8
,
9.1
or
9.2
, without the prior written consent of each Lender, (vii) reduce the percentage specified in or otherwise amend the definition of Required Lenders or Majority Lenders, without the prior written consent of each Lender or otherwise
reduce the number of Lenders required to approve any amendment, supplement, modification, consent or instruction, without the prior written consent of each Lender, (viii) change the currency in which any amount is payable without prior written
consent of each Lender or (ix) extend the Availability Period without the prior written consent of each Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that
(x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms
affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
(b) Any waiver and any amendment, supplement or modification made or entered into in accordance with
Section 9.12(a)
shall be binding upon the Borrower and the Secured Parties.
(c) For so long as a Defaulting
Lender has any Unutilized Commitments, in ascertaining the Majority Lenders or the Required Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Combined Exposure has been obtained to approve any request
for a consent, waiver, amendment or other vote under the Financing Documents, the Combined Exposure of that Defaulting Lender will be reduced by the amount of its Unutilized Commitments. For the purposes of this paragraph (c), the Facility
Agent may assume that the following Lenders are Defaulting Lenders (unless in it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Facility Agent) or the Facility Agent
is otherwise aware that the Lender has ceased to be a Defaulting Lender): (i) any Lender which has notified the Facility Agent that it has become a Defaulting Lender and (ii) any Lender in relation to which the Facility Agent is aware that
any of the events or circumstances referred to in paragraph (a), (b) or (c) of the definition of “Defaulting Lender” has occurred.
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(d) For so long as a Sponsor Affiliate (A) beneficially holds any Combined
Exposure or (B) has entered into a participation agreement relating to any Combined Exposure or other agreement or arrangement having a substantially similar economic effect and such agreement or arrangement has not been terminated: (i) in
ascertaining the Majority Lenders, Required Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Combined Exposure has been obtained to approve any request for a consent, waiver, amendment or other vote
under the Financing Documents such Combined Exposure shall be deemed to be zero; and (ii) for the purposes of any consent, waiver, amendment or other vote requiring all Lenders’ consent, such Sponsor Affiliate or the person with whom it
has entered into such participation, other agreement or arrangement shall be deemed not to be a Lender (unless in the case of a person not being a Sponsor Affiliate it is a Lender by virtue otherwise than by beneficially holding the relevant
Combined Exposure).
9.13 Assignments, Participations, Etc.
(a) Each Lender (an “
Existing
Lender
”) may, at any time, (i) without the consent of, or notice to, the Borrower, assign any of its rights or transfer by novation any of its rights and obligations to all or any part of any Loan and the other rights and obligations
of such Lender hereunder and under the other Financing Documents to an Affiliate of the Existing Lender or to another Lender (other than to a Defaulting Lender) and (ii) subject to the prior written consent of the Borrower (except when a
Default or Event of Default is continuing), such consent not to be unreasonably withheld or delayed and which shall be deemed given five (5) Business Days following written request for such consent from the Existing Lender or the New Lender,
assign any of its rights or transfer any of its rights and obligations under this Agreement and the other Financing Documents to another bank or financial institution which is an Eligible Lender (each, a “
New Lender
”);
provided
that (A) each such assignment or transfer by a Lender of its Loans or its Commitment shall be made in such a manner so that the same portion of such Lender’s (and of such Lender’s Affiliate’s) Loans, Commitment
and any rights and obligations it may have under any Required Hedging Agreement to which such Lender (or any Affiliate of such Lender) is a party, is assigned or transferred to the New Lender (or, in the case of such Required Hedging Agreement, the
New Lender or an Affiliate of such New Lender); (B) in the case of an assignment or transfer of any part of a Loan to any New Lender, such assignment or transfer shall not be for an amount less than $10,000,000; (C) the Borrower and the
Agents may continue to deal solely and directly with the Existing Lender in connection with the interest so assigned or transferred until (1) written notice of such assignment or transfer, together with payment instructions, addresses and
related information with respect to the New Lender, shall have been given to the Borrower and the Facility Agent by such Existing Lender and the New Lender, (2) the Existing Lender or the New Lender has paid to the Facility Agent a processing
fee in the amount of $3,500, and (3) the Existing Lender shall have delivered to the Borrower and the Facility Agent a Transfer Certificate substantially in the form of
Exhibit E
hereto (a “
Transfer Certificate
”)
with respect to such assignment or transfer; and (D) if as a result of circumstances existing at the date of such assignment or transfer, the Borrower would be required to make a payment to a New Lender in accordance with
Section 2.9
or would be required to gross up any payments to a New Lender for or on account of any deduction or withholding for any taxes in accordance with
Section 2.7
, then such New Lender would only be entitled to receive
payment under those Sections to the same extent as the Existing Lender would have been if the assignment or transfer had not occurred;
provided
that this clause (D) shall not apply if the assignment to the New Lender is (1) made
while a Default or Event of Default is continuing or (2) required by the Borrower pursuant to
Section 2.13
.
(b) An assignment or transfer will only be effective on: (i) receipt by the Facility Agent of written confirmation from
the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the Borrower, the other Financing Parties and the other Secured Parties as it would have been under if it was an
original Lender and (ii) the performance by the Facility Agent of all necessary “know your customer” or other similar checks under all applicable Laws and regulations in relation to such assignment to a New Lender, the completion of
which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.
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(c) On the Transfer Date (as defined in the Transfer Certificate): (i) to
the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Financing Documents each of the Borrower and the Existing Lender shall be released from further obligations towards
one another under the Financing Documents and their respective rights against one another under the Financing Documents shall be cancelled (being the “
Discharged Rights and Obligations
”);
provided
that any Lender that assigns
or transfers all of its Commitment and Loans hereunder in accordance with
Section 9.13(a)
shall continue to have the benefit of indemnification provisions under this Agreement (including
Sections 2.7
,
2.9
,
2.10
,
9.1
and
9.2
), which shall survive as to such transferring Lender; (ii) each of the Borrower, the Sponsors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from
the Discharged Rights and Obligations only insofar as the Borrower, the Sponsors and the New Lender have assumed and/or acquired the same in place of the Borrower, the Sponsors and the Existing Lender; (iii) the Agents, the New Lender and other
Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an original Lender with the rights and/or obligations acquired or assumed by it as a result of
the transfer
provided
, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s
having been a Defaulting Lender.
(d) (i) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender for: (A) the legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents or any other documents; (B) the financial condition of the
Borrower, the Shareholders, the General Partner, the Operator or the Sponsors; (C) the performance and observance by the Borrower, the Shareholders, the General Partner, the Operator, the Sponsors or any other party to any of the Transaction
Documents of their obligations under the Transaction Documents or any other documents or (D) the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document, and any
representations or warranties implied by law are excluded.
(ii) Each New Lender confirms to the Existing Lender, the
other Financing Parties and the Secured Parties that it: (A) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each of the Borrower, the Shareholders, the General
Partner, the Operator or the Sponsors and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Financing Party in connection
with any Transaction Document and (B) will continue to make its own independent appraisal of the creditworthiness of each of the Borrower, the Shareholders, the General Partner, the Operator or the Sponsors and its related entities whilst any
amount is or may be outstanding under the Financing Documents or any Commitment is in force.
(iii) Nothing in any
Financing Document obliges an Existing Lender to (A) accept a
re-transfer
or
re-assignment
from a New Lender of any of the rights and obligations assigned or
transferred under this
Section 9.13
or (B) support any losses directly or indirectly incurred by the New Lender by reason of the
non-performance
by the Borrower, the Shareholders, the General
Partner, the Operator or the Sponsors of its obligations under the Transaction Documents or otherwise.
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(e) Any Existing Lender may at any time sell to one or more commercial banks or
other Persons not Affiliates of the Borrower (a “
Participant
”) participating interests in any Loans;
provided
,
however
, that (i) the Existing Lender’s obligations under this Agreement shall remain unchanged,
(ii) the Existing Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrower and the Agents shall continue to deal solely and directly with the Existing Lender in connection with the Existing
Lender’s rights and obligations under this Agreement and the other Financing Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant shall have rights to approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other Transaction Document. In the case of any such participation, the Participant shall not have any rights under this Agreement or any of the other Financing Documents (the
Participant’s rights against the Existing Lender in respect of such participation to be those set forth in the agreement executed by the Existing Lender in favor of the Participant relating thereto) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such participation.
(f) Notwithstanding any other provision
contained in this Agreement or any other Transaction Document to the contrary, any Lender may assign or pledge all or any portion of the Loans held by it as collateral security to any person, including, without limitation, any United States Federal
Reserve Bank, the European Central Bank (if such Lender is incorporated in the jurisdiction which is a member of the European Union) or any other federal reserve or central bank in the jurisdiction of such Lender,
provided
that any payment in
respect of such assigned or pledged Loans made by the Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such
assigned or pledged Loans to the extent of such payment. No such assignment or pledge shall release the assigning or pledging Lender from its obligations hereunder or substitute any such assignee or pledgee for such Lender as a party hereto.
9.14 Survival
. All indemnities set forth herein, including, without limitation,
Section 9.2
, shall survive
the execution and delivery of this Agreement, any termination of any Transaction Document and the making and repayment of the Loans. In addition, each representation and warranty made or deemed to be made pursuant hereto shall survive the making of
such representation and warranty, and no Lender shall be deemed to have waived, by reason of making any extension of credit, any Default or Event of Default which may arise by reason of such representation or warranty proving to have been false or
misleading, notwithstanding that such Lender may have had notice or knowledge or reason to believe that such representation or warranty was false or misleading at the time such extension of credit was made.
9.15 Parallel Debt
. (a) The Borrower hereby irrevocably and unconditionally undertakes to pay to the Collateral
Agent amounts equal to any amounts owing by the Borrower to any of the Secured Parties under any Financing Document as and when, and in the currency in which, those amounts are due (the “
Parallel Debt
”);
provided
that, for
the avoidance of doubt, notwithstanding any other provision hereof, the aggregate amount owed by the Borrower under or in connection with this Agreement or any other Financing Document (including in connection with the Parallel Debt or otherwise)
shall not exceed the aggregate amount of the Obligations. Following this, notwithstanding anything to the contrary in any of the Financing Documents, each party agrees that the Collateral Agent shall be the joint and several creditor
(
Gesamtgläubiger
) (together with each Secured Party (other than the Collateral Agent)) of each and every obligation of the Borrower towards each of the Secured Parties (other than the Collateral Agent) under any of the Financing
Documents, and that accordingly the Collateral Agent will have its own independent right to demand performance by the Borrower of those obligations.
75
(b) The Borrower and the Collateral Agent acknowledge that the obligations of the
Borrower under paragraph (a) above are several and are separate and independent from the Obligations, and that the Collateral shall also serve, and shall at all times be deemed to be granted according to the Security Documents, as collateral
security for the Parallel Debt;
provided
that:
(i) Parallel Debt shall be decreased to the extent
that its Obligations have been irrevocably paid or (in the case of any guaranties hereunder) discharged; and
(ii) the Obligations of the Borrower shall be decreased to the extent that its Parallel Debt has been
irrevocably paid or discharged; and
(iii) the Parallel Debt of the Borrower shall not exceed its
Obligations.
(c) The Collateral Agent shall hold the claims against the Borrower under the Parallel Debt structure under
this
Section 9.15
as trustee for the Secured Parties in accordance with the provisions of this Agreement. The Collateral Agent shall distribute any amounts received under the Parallel Debt claims among the Secured Parties in accordance
with the provisions of this Agreement.
(d) All monies received by the Collateral Agent pursuant to this
Section 9.15
and all amounts received by the Collateral Agent from or by the enforcement of any Collateral granted to secure the Parallel Debt, shall be applied in accordance with the Accounts Agreement.
9.16 Right of
Set-Off
. (a) In addition to any rights and remedies of the
Financing Parties provided by Law, each Financing Party shall have the right, without prior notice to the Borrower or any of the other Financing Parties (any such notice being expressly waived by the Borrower and the other Financing Parties), during
the existence of an Event of Default or upon any amount becoming due and payable by the Borrower hereunder (whether at stated maturity, by acceleration or otherwise) to set off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Financing Party or any branch, agency or subsidiary thereof to or for the credit or the account of the Borrower. Each of the Financing Parties agrees promptly to notify the Borrower and the other Financing Parties after any such
set-off
and application made by such Financing Party;
provided
that the failure to give such notice shall not affect the validity of such
set-off
and application;
provided
further
, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Facility Agent for further application
first
, to the
payment of any amounts owing by such Defaulting Lender to the Facility Agent hereunder;
second
, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting
Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Facility Agent, and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit
of the Facility Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Facility Agent and the Borrower a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it
exercised such right of setoff.
(b) Upon the occurrence of any payment default by a Required Hedge Provider under any
Required Hedging Agreement, the Borrower is hereby authorized, without presentment, demand, protest or other notice of any kind to any Person, any such notice being hereby expressly waived, to set off and to appropriate and apply amounts due and
payable by the Borrower under this Agreement to such Required Hedge Provider in its capacity as Lender (or to a Lender which is an Affiliate, the Nominated Affiliate or an Affiliate of the Nominated Affiliate (as such term is defined in the ISDA
Master Agreement and Schedule to the relevant Required Hedging Agreement) of such Required Hedge Provider) to such defaulted payment amount.
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9.17
Severability
.
Any provision hereof which is or becomes
illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity, prohibition or unenforceability without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of any provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 9.18
, if and to the extent that the enforceability of any provisions in this Agreement
relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Facility Agent, then such provisions shall be deemed to be in effect only to the extent not so limited.
9.18
Domicile of Loans
.
Each Lender may transfer and carry its Loans at, to or for the account of any
office of such Lender;
provided
, that the Borrower shall not be responsible for costs arising under
Sections 2.7
,
2.9
or
2.10
resulting from any such transfer to the extent such costs would not otherwise be
applicable to such Lender in the absence of such transfer.
9.19
Governing Law; Submission to
Jurisdiction
.
(a) This Agreement and any
non-contractual
obligations arising out of or in connection with it are governed by English law.
(b) The courts of England have exclusive jurisdiction to settle 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 ) (a
“
Dispute
”).
(c) The parties hereto agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no party hereto will argue to the contrary.
(d) This
Section 9.19
is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured
Parties may take concurrent proceedings in any number of jurisdictions.
(e) Without prejudice to any other mode of
service allowed under any relevant law, the Borrower: (i) irrevocably appoints NCR National Corporate Research (UK) Limited with offices currently located at 7 Welbeck Street, London W1G 9YE, England as its agent for service of process in
relation to any proceedings before the English courts in connection with any Financing Document and (ii) agrees that failure by an agent for service of process to notify the Borrower of the process will not invalidate the proceedings concerned.
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 must immediately (and in any event within five (5) Business Days of such event taking place) appoint
another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose. Nothing contained in this Agreement shall affect the right to serve process in any other manner permitted by Law.
(f) To the extent that a Secured Party elects to commence proceedings against the Borrower in the courts of Brazil in
connection with this Agreement, for the purposes of Section 585, §2nd of the Brazilian Code of Civil Procedure, the Borrower recognizes that this Agreement was legally and validly executed and delivered pursuant to its governing law and
that certain obligations set forth herein are to be performed in or from Brazil.
9.20 Complete Agreement
.
This Agreement and the other Financing Documents represent the final and complete agreement of the parties hereto, and all prior negotiations, representations, understandings, writings and statements of any nature are hereby superseded in their
entirety by the terms of this Agreement and the other Financing Documents.
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9.21
Patriot Act
.
Each of the Financing Parties subject to
the requirements of the USA Patriot Act (Title III of Pub. L.
107-56
(signed into law October 26, 2001) as the same may be amended from time to time) (the “
Act
”), hereby notifies the
Borrower that pursuant to the Act it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow the Financing Parties to
identify the Borrower in accordance with the Act. The Borrower shall, and shall cause each of its Affiliates to, provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by any Financing
Party to maintain compliance with the Act.
9.22 English Language.
This Agreement and all other Financing Documents
shall be in the English language, except as required by Brazilian law (in which event certified English translations thereof shall be provided by the Borrower to the Facility Agent). All documents, certificates, reports or notices to be delivered or
communications to be given or made by any party hereto pursuant to the terms of this Agreement or any other Financing Document shall be in the English language or, if originally written in another language, shall be accompanied by an accurate
English translation upon which the parties hereto shall have the right to rely for all purposes of this Agreement and the other Financing Documents.
9.23 Place of Performance.
The parties agree that the exclusive place of performance (
Erfüllungsort
) for
all rights and obligations under this Agreement as well as under any Financing Document shall be at the registered office of the Facility Agent in New York or any other place reasonably designated by the Facility Agent but in any case a place
outside the Republic of Austria, which in particular, but without limitation, means that the payment of all amounts, if any, under this Agreement as well as under any Financing Document must be made from and to, respectively, a bank account outside
the Republic of Austria. It is expressly agreed between the parties hereto that any such performance within the Republic of Austria will not establish Austria as the place of performance and shall be deemed not effective with respect to any party
hereto. Further, the parties hereto agree that the fulfillment of any contractual obligation under this Agreement as well as under any Financing Document within the Republic of Austria does not result in a discharge of debt.
9.24 Acknowledgment of Appointment of Collateral Agent and Accounts Banks.
Each of the Lenders expressly acknowledges
the appointment of the Collateral Agent and the Accounts Banks as its agents on the terms set out in the Accounts Agreement.
[
Signature Pages Follow
]
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers
to execute and deliver this Agreement as of the date first above written.
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OOGTK LIBRA GMBH & CO KG
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By:
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Name: JORGE LUIZ UCHOA MITIDIERI
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Title: ATTORNEY IN FACT
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[
Signature Page to Libra FPSO Credit Agreement
]
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers
to execute and deliver this Agreement as of the date first above written.
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OOGTK LIBRA GMBH & CO KG
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By:
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Name: Edith Robinson
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Title: Attorney-in-fact
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[
Signature Page to Libra FPSO Credit Agreement
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ABN AMRO BANK N.V.
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By:
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Name: Hendricus Petrus Maria Torken
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Title: ATTORNEY-IN-FACT
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By:
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Name: Nicolau Nardi
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Title: ATTORNEY-IN-FACT
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RG: 24.175.264-4 (SSP-SP)
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CPF: 132.346.288-07
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[
Signature Page to Libra FPSO Credit Agreement
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CITIBANK, N.A.
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By:
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Name: NASSER A MALIK
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Title: VICE PRESIDENT
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[
Signature Page to Libra FPSO Credit Agreement
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DNB CAPITAL LLC
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By:
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Name: Giovani Loss
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Title: ATTORNEY IN FACT
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[
Signature Page to Libra FPSO Credit Agreement
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HSBC BANK USA, NATIONAL ASSOCIATION,
as Lender
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By:
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Name: Giovani Loss
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Title: ATTORNEY IN FACT
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[
Signature Page to Libra FPSO Credit Agreement
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ING CAPITAL LLC
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By:
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Name: Giovani Loss
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Title: ATTORNEY IN FACT
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[
Signature Page to Libra FPSO Credit Agreement
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NATIXIS, NEW YORK BRANCH
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By:
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Name: Pablo Sorj
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Title: ATTORNEY IN FACT
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[
Signature Page to Libra FPSO Credit Agreement
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SUMITOMO MITSUI BANKING CORPORATION
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By:
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Name: Giovani Loss
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Title: ATTORNEY IN FACT
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[
Signature Page to Libra FPSO Credit Agreement
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HSBC BANK USA, NATIONAL ASSOCIATION,
as Facility Agent
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By:
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Name: Giovani Loss
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Title: ATTORNEY IN FACT
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[
Signature Page to Libra FPSO Credit Agreement
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HSBC BANK USA, NATIONAL ASSOCIATION,
as Collateral Agent
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By:
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Name: Giovani Loss
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Title: ATTORNEY IN FACT
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[
Signature Page to Libra FPSO Credit Agreement
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APPENDIX A
to
Credit Agreement
DEFINED TERMS AND RULES OF INTERPRETATION
1.
Defined Terms
.
“
ABS
” shall have the meaning set forth in
Section 3.2(g)(ii)
.
“
Acceptable Letter of Credit
” shall have the meaning provided in the Accounts Agreement.
“
Acceptance Tests
” shall mean the tests under the EPC Contract, including the test provided under Article 8
of the EPC Contract and under the Specifications.
“
Accounting Principles
” shall mean IFRS,
provided
that the Borrower shall be permitted to make a
one-time
change from IFRS to U.S. GAAP, so long as, upon such
one-time
change, the Borrower restates
all financial statements, for the fiscal period which concluded prior to the date of such change, in the new Accounting Principles method selected.
“
Accounts Agreement
” shall mean the Collateral and Accounts Agreement entered into or to be entered into
among the Borrower, the Operator, the Management Services Providers, the Facility Agent, the Offshore Accounts Bank, the Onshore Accounts Bank and the Collateral Agent.
“
Accounts Banks
” shall mean the Offshore Accounts Bank and the Onshore Accounts Bank.
“
Accrued Construction Period Interest
” shall mean the amount of Interest Expenses payable on an Interest
Payment Date occurring within one hundred and twenty days after the end of the Availability Period.
“
Act
” shall have the meaning provided in
Section 9.21
.
“
Additional Project Document
” shall mean any contract or agreement relating to the development, engineering,
procurement, conversion, construction, testing, ownership, operation, maintenance, repair, financing or use of the Facilities entered into by the Borrower with any other Person subsequent to the date hereof (including any contract(s) or agreement(s)
entered into in substitution for any Project Document that has been terminated in accordance with its terms or otherwise), other than any Permitted Purchase Agreement not exceeding five million Dollars ($5,000,000).
“
Advance Working Capital Amount
” shall have the meaning provided in
Section 2.3(c)
.
“
Advance Working Capital Disbursement
” shall have the meaning provided in
Section 2.3(c).
“
Advance Working Capital Expenses
” shall have the meaning provided in
Section 2.3(c)
.
“
Advisory Board
” shall have the meaning provided in the Equity Support Deed.
“
Affected Property
” shall mean, with respect to any Event of Loss (other than a FPSO Loss Event), the
Property of the Borrower lost, destroyed, damaged, condemned (including, without limitation, through a Taking) or otherwise taken as a result of such Event of Loss.
A-1
“
Affiliate
” shall mean, with respect to any Person, any other
Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person or any Person who is a limited or general partner of such Person. For purposes of this definition, “control” of a Person
(including, with its correlative meanings, “controlled by” and “under common control with”) means the power, directly or indirectly, either to (a) vote 50% or more of the securities of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by contract or otherwise.
“
Agent-Related
Persons
” shall mean the Facility Agent and any successor Facility Agent appointed pursuant to
Section 8.9
, together with their respective officers, directors, employees,
representatives, attorneys, agents and Affiliates.
“
Agents
” shall mean, collectively, the Facility
Agent, the Collateral Agent, the Offshore Accounts Bank and the Onshore Accounts Bank.
“
Agreement
” shall
have the meaning provided in the preamble.
“
Anti-Corruption Laws
” means the U.S. Foreign Corrupt
Practices Act of 1977 (Pub. L. No. 95-213, §§101-104), as amended from time to time; the United Kingdom Bribery Act 2010, as amended from time to time; the Brazilian
Anti-Corruption
Act
12,846/2013, as amended from time to time; and any other applicable Law relating to bribery, kick-backs, or similar business practices, including without limitation the following laws of Brazil, as amended from time to time: Law No. 8,666/1993,
Decree-law No. 2,848/1940), Law No. 9,613/1998, Law No. 8,137/1990 and Law No. 12,850/2013.
“
Anti-Money
Laundering Laws
” means the Act; the US Money Laundering Control Act of 1986 and the regulations and rules promulgated thereunder, as amended from time to time; the US Bank Secrecy Act and the
regulations and rules promulgated thereunder, as amended from time to time; the Brazilian Federal Law No. 12,846, as of August 1
st
, 2013, as amended from time to time; Brazilian Federal
Law No. 9,613, as of March 3, 1998, as amended from time to time and corresponding laws of (a) the European Union designed to combat money laundering and terrorist financing and (b) jurisdictions in which the Borrower operates or
in which the proceeds of the Facility will be used or from which repayments of the Obligations will be derived.
“
Applicable Lending Office
” shall mean, for each Lender, the “Lending Office” of such Lender (or of
an Affiliate thereof) designated in
Annex II
or such other office of such Lender (or of an Affiliate thereof) as such Lender may from time to time specify to the Facility Agent and the Borrower by written notice in accordance with the terms
hereof as the office by which its Loans are to be made and maintained.
“
Applicable Margin
” shall mean:
means (a) 2.65%
per annum
from (and including) the Effective Date until (but excluding) the Commercial Operation Date; (b) 2.50%
per annum
from (and including) the Commercial Operation Date.
“
Appraisal
” shall mean a written appraisal by an Independent Appraiser of the fair market value of the FPSO
on a charter free basis.
“
Asset Maintenance Agreement
” shall mean the Asset Maintenance Agreement
between the Borrower and the Operator for the management of the operational phase of the FPSO, substantially in the form of
Exhibit D-2
.
“
Attorney Costs
” shall mean all fees and disbursements of any law firm or other external counsel, which shall
be reasonable and duly evidenced except in connection with the exercise, enforcement or attempted enforcement of, or the investigation or preservation of any rights or remedies under, this Agreement or any other Transaction Document including
without limitation any retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral or preserving the Collateral and the Security Interests.
A-2
“
Austrian Partnership Interest Pledge Agreement
” shall mean the
pledge agreement, governed by the laws of Austria, entered into or to be entered into among the Shareholders, the General Partner and the Collateral Agent in respect of the Equity Interests in the Borrower.
“
Austrian Share Pledge Agreement
” shall mean the pledge agreement, governed by the laws of Austria, entered
into or to be entered into among the Shareholders and the Collateral Agent in respect of the Equity Interests in the General Partner.
“
Authorized Officer
” shall mean (i) with respect to any Person that is a corporation or a limited
liability company, the Chairman, President, Manager, Managing Member, any Vice President, any Executive Officer or Secretary of such Person and any other Person that is duly appointed to act on behalf of such Person as an attorney-in-fact and
(ii) with respect to any Person that is a partnership, the President, any Vice President or Secretary (or Assistant Secretary) of a general partner or managing partner of such Person, in each case whose name appears on a certificate of
incumbency of such Person delivered in accordance with the terms hereof, as such certificate may be amended from time to time.
“
Availability Period
” shall mean the period commencing on the Closing Date and ending on the earliest to
occur of (i) the full utilization or termination of the Commitments, (ii) the date falling two (2) months after the Commercial Operation Date, (iii) the Project Completion Date, and (iv) the date falling 30 days prior to the
First Repayment Date.
“
Balloon Amount
” shall mean the “Balloon amount” set forth in Part 1 of
Appendix B
.
“
Bankruptcy Law
” shall mean any Law of any jurisdiction relating to bankruptcy,
insolvency, liquidation, reorganization, moratorium,
winding-up
or composition or readjustment of debts or any similar Law.
“
Base Case Projections
” shall mean a projection of operating results for the Project over a period ending no
sooner than the tenth (10
th
) anniversary of the Commercial Operation Date, (i) showing the Borrower’s reasonable good faith estimates, as of each relevant date, of revenue,
operating expenses, the Debt Service Coverage Ratio required under
Section 3.1(j)
, and sources and uses of revenues over the forecast period and (ii) incorporating appropriate operating assumptions, which projections shall have been
initially agreed by the Borrower and the Lenders prior to the Effective Date and shall be updated from time to time in accordance with this Agreement.
“
Base Equity Contributions
” shall have the meaning provided in the Equity Support Deed.
“
Basel III
” shall mean (a) the agreements on capital requirements, a leverage ratio and liquidity
standards contained in “Basel III: International framework for liquidity risk measurement, standards and monitoring,” published by the Basel Committee in December 2010 and “Basel III: A global regulatory framework for more
resilient banks and banking systems,” published by the Basel Committee in December 2010 and revised in June 2011, each as amended; and (b) any further guidance or standards published by the Basel Committee relating to “Basel
III”.
“
Basel Committee
” shall mean the Basel Committee on Banking Supervision.
“
Borrower
” shall have the meaning provided in the preamble.
“
Borrower Completion Certificate
” shall mean a certificate, substantially in the form of
Exhibit C-1
, dated the Project Completion Date, duly completed and signed by an Authorized Officer of the Borrower.
“
Borrower Dollar Account
” shall have the meaning provided in the Accounts Agreement.
A-3
“
Borrower Euro Account
” shall have the meaning provided in the
Accounts Agreement.
“
Borrowing
” shall mean the borrowing of Loans from the Lenders on a given date.
“
Brazil
” shall mean the Federative Republic of Brazil.
“
Brazilian Share Pledge Agreement
” shall mean the Quota Pledge Agreement, entered into or to be entered into
between the Borrower,
OOG-TKP
Operator Holdings Limited, the Collateral Agent and, as intervening party, the Operator, with respect to the Equity Interests in the Operator.
“
Bridge Loan Agreement
” shall mean the Facility Letter dated October 24, 2014 between the Borrower, the
Lenders, the Facility Agent and the Collateral Agent.
“
Business Day
” shall mean:
(i) for the purposes of determining the Eurodollar Rate, a day on which dealings in Dollar deposits are
carried on in the London interbank market and on which banks are generally open for domestic and foreign exchange business in London (unless market practice differs in the London interbank market, in which case the quotation day for purposes of
determining the Eurodollar Rate will be determined by the Facility Agent (on the instructions of the Required Lenders) in accordance with market practice in the London interbank market (and if quotations would normally be given by leading banks in
the London interbank market on more than one day, the quotation day will be the last of those days); and
(ii) for all other purposes, a day (other than a Saturday or Sunday) on which commercial banks are open and
not authorized to be closed for domestic and international business (including dealings in Dollar deposits) in New York, Rio de Janeiro and São Paulo.
“
Calculation Date
” shall mean any date occurring during the period commencing on a Quarter Date and ending on
the date falling five (5) Business Days following such Quarter Date, the first Calculation Date occurring no less than six (6) months after the Commercial Operation Date.
“
Capex Budget
” shall mean the budget dated the Closing Date, prepared and certified as such by an Authorized
Officer of the Borrower, of all Capex Costs theretofore incurred and thereafter expected to be incurred by the Borrower on or prior to the Project Completion Date, as the same may be amended from time to time in accordance with
Section 5.20(b)
.
“
Capex Costs
” shall mean Project Costs, other than financing costs
including Eligible IDC and fees, payable from the Closing Date until the Commercial Operation Date.
“
Capital
Adequacy Regulation
” shall mean any guideline, request, policy or directive of any central bank or comparable entity or any other Governmental Authority, or any other Law, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
“
Capital Lease Obligations
” shall
mean, for any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real or personal Property which obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under the Accounting Principles and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with the Accounting Principles.
A-4
“
Cash Flow
” shall mean, for any period, the excess (if any) of
(i) Project Revenues of the type described in the definition of “Project Revenues” that are deposited into the
Offshore Proceeds Account
provided
that
, for the first two months following the Commercial Operation Date only, “Project Revenues” shall include the amount of any Advance Working Capital Disbursements and the related Equity
Contributions required to satisfy the requirements of Section 3.2(e) (not to exceed the Advance Working Capital Amount) during such period,
minus
(ii) the sum of (x) the aggregate amount transferred to the Onshore O&M Service Account and to the Borrower Dollar
Account pursuant to the Accounts Agreement during such period and (y) taxes paid by the Borrower based on Project Revenues during such period.
“
Change of Control
” shall mean, at any time, (a) the Sponsors ceasing to jointly own, directly or
indirectly, 50.1% or more of the Equity Interests in the Borrower; (b) Odebrecht S.A. ceasing to (i) have the right to elect a majority of the board of directors of the OOG Sponsor, whether through the ownership of voting rights, by
contract or otherwise, (ii) own, directly or indirectly, 30% or more of the Equity Interests in the OOG Sponsor or (iii) direct or cause the direction of the management and policies of the OOG Sponsor, whether through the ownership of
voting rights, by contract or otherwise; (c) any person or group other than Odebrecht S.A. shall have acquired beneficial ownership or control of voting and/or economic interests in the Equity Interests of the OOG Sponsor in excess of those
interests owned and controlled by Odebrecht S.A. at such time; (d) (i) where all management powers over the business and affairs of the Teekay Sponsor are vested exclusively in its general partner, (x) Teekay Corporation ceasing to
own, directly or indirectly, a minimum of 50% of the voting rights in Teekay Offshore GP LLC or (y) Teekay Offshore GP LLC ceasing to be the general partner of the Teekay Sponsor or (ii) where all management powers over the business and
affairs of the Teekay Sponsor are vested exclusively in a Board of Directors of the Teekay Sponsor, Teekay Corporation ceasing to be the holder, directly or indirectly, of a minimum of 50% of the voting rights to elect the members of that Board of
Directors. For the avoidance of doubt, in the event all management powers over the business and affairs of the Teekay Sponsor are vested exclusively in a governing body or entity other than its general partner or its Board of Directors, then Teekay
Corporation ceasing to be the holder, directly or indirectly, of more than 50% of the voting rights to elect the members of such governing body or entity shall constitute a Change of Control.
“
Change Order
” shall mean any adjustment or modification to the terms of the EPC Contract requested pursuant
to Article 13 of the EPC Contract or any similar provision of any other Construction Contract.
“
Charter
Agreement
” shall mean that certain Charter Agreement (
Contrato de Afretamento
) No. 0870.0092728.14.2, dated as of January 29, 2015, by and among the Borrower, Petrobras acting as the leader and operator of the Consortium,
and the OOG Sponsor and Teekay Offshore Holdings LLC, as intervening parties, as supplemented by that certain letter dated as of January 30, 2015 executed by an Authorized Officer of Petrobras and addressed to the Borrower, and acknowledged and
agreed to by the OOG Sponsor and Teekay Offshore Holdings LLC, with respect to certain clarifications under the Charter Agreement.
“
Closing Date
” shall mean the date upon which the conditions precedent set forth in
Sections 3.1
and
3.2
(in so far as such conditions precedent are applicable to the initial Loans) have been satisfied (or waived or deferred by the appropriate Lenders in accordance with this Agreement) and the first Disbursement of the Loans is made.
“
Code
” shall mean the Internal Revenue Code of 1986, as amended from time to time. Section references to
the Code are to the Code as in effect at the date hereof and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
A-5
“
Collateral
” shall mean all Property that, in accordance with
the terms of the Security Documents, is intended to be subject to any Security Interest.
“
Collateral
Agent
” shall mean HSBC Bank USA, National Association, acting in its capacity as Collateral Agent for the Secured Parties pursuant to the Accounts Agreement, and shall include any successor Collateral Agent appointed pursuant to the
Accounts Agreement.
“
Combined Exposure
” shall mean, as of any date of calculation, the sum (calculated
without duplication) of the following, to the extent the same is held by any Lender: (i) the aggregate outstanding principal amount of the Loans,
plus
(ii) the aggregate amount of Unutilized Commitments, subject to the provisions of
Section 9.12(c)
and
Section 9.12(d)
.
“
Commercial Operation Date
” shall mean the
date on which the term of each of the Charter Agreement and the Services Agreement starts (
Início do Contrato
), in accordance with Clause 2.2 of each of the Charter Agreement and the Services Agreement.
“
Commitment Fee
” shall have the meaning provided in
Section 6.7(a)
.
“
Commitments
” shall mean, as to any Lender, the amount set forth opposite such Lender’s name in the
column entitled “Commitment” in
Annex I
hereto.
“
Compliance Letters
” means the
Jurong Compliance Letter, the OOG Compliance Letter and the Teekay Compliance Letter.
“
Conditional Assignment of
Contract
” shall mean the Agreement for Conditional Assignment of Contracts (
Acordo para Cessão Condicional de Contratos
) entered into or to be entered into among the Borrower, the Operator, the Collateral Agent.
“
Consent Agreement
” shall mean (i) with respect to Petrobras as the leader and operator of the
Consortium, collectively, (x) the
Termo de Ciência
issued or to be issued by the Borrower, the Operator and the Collateral Agent and acknowledged and agreed by Petrobras, and (y) the Authorizations for Assignment of the Credit
Rights entered into or to be entered into among the Borrower, the Operator, the Collateral Agent and Petrobras (it being understood that such documents shall be entered into by Petrobras for and on behalf of the Consortium) and (ii) with
respect to the EPC Contractor, the EPC Parent Company Guarantor, the Management Services Providers, and each other Project Participant, the Notice of Assignment and Acknowledgement of Assignment in the applicable form attached to the Debenture,
provided
that with respect to any such other Project Participant, the execution of such Acknowledgement of Assignment shall only be required to the extent provided in the Debenture.
“
Consortium
” shall mean the Brazilian law consortium named “Consórcio Libra_P1” formed by
the Original Consortium Members pursuant to the terms and conditions of the Contrato de Consórcio Libra_P1 dated November 18, 2013 by and among such parties.
“
Consortium Agreement
” shall mean that certain consortium agreement Libra_P1, related to the production
sharing agreement
No. 48610.011150/2013-10,
executed on November 18, 2013 by and between the Original Consortium Members.
“
Consortium Member
” means each member from time to time party to the Consortium Agreement.
“
Construction Contracts
” shall mean the EPC Contract and the OFE Supply Contracts.
A-6
“
Construction Management Agreement
” shall mean the Construction
Management Agreement to be entered into prior to the Closing Date between the Borrower and the Construction Manager relating to the Project, substantially in the form of
Exhibit D-1
.
“
Construction Manager
” shall mean
OOG-TKP
Oil Services Ltd..
“
Construction Manager Costs
” shall mean amounts payable to the Construction Manager under the Construction
Management Agreement.
“
Construction Milestones
” shall mean each of the milestones required to be
achieved under the OFE Supply Contracts as a condition to payment to an OFE Supplier and the EPC Contract as set forth in
Schedule 5.20
hereto.
“
Contingent Obligation
” shall mean, as to any Person, any obligation of such Person guaranteeing or intending
to guarantee any Indebtedness (not including item (vii) of the definition of Indebtedness) (the “
primary obligation
”) of any other Person (the “
primary obligor
”) in any manner, whether directly or indirectly.
The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“
Contract Price
” shall have the meaning provided in the EPC Contract.
“
Controlling Corporation
” shall have the meaning provided in
Section 2.9(b)
.
“
Date Certain
” shall mean October 29, 2017.
“
Debenture
” shall mean the Debenture entered into or to be entered into between the Borrower and the
Collateral Agent.
“
Debt Service
” shall mean, for any period, the sum of (i) all amounts of
principal scheduled (
i.e.
, without having regard to any increase due to any amount of principal being paid or being required to be paid prior to its original scheduled due date (whether as a result of any prepayment (voluntary or
otherwise) or any Event of Default) to be payable by the Borrower pursuant to the terms and conditions of the Financing Documents in respect of the Loans during such period,
provided
that, for purposes of calculation such amounts for the
relevant period, (x) the Balloon Amount and the Deferral Amount shall be excluded and (y) the amount of principal scheduled to be payable on the first Principal Payment Date shall not exceed 1.82% of the total outstanding principal amount
of the Loans,
plus
(ii) all amounts payable in respect of Interest Expense for such period.
“
Debt
Service Coverage Ratio
” shall mean, for the relevant period, the ratio of (i) Cash Flow for such period to (ii) Debt Service for such period;
provided
that, for purposes of determining Cash Flow for such calculation, any
payment made by Petrobras under the Charter Agreement or the Services Agreement received in the month prior to the due date for such payment shall be deemed paid in the month when due.
“
Debt Service Priority
” shall have the meaning provided in Part 2 of
Appendix B
.
“
Debtor Relief Laws
” shall mean the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in
effect.
A-7
“
Default
” shall mean any event or circumstance which with notice
or lapse of time or both would become an Event of Default.
“
Default Rate
” shall have the meaning
provided in
Section 2.6(b)
.
“
Defaulting Lender
” means any Lender: (a) which has failed
to make its portion of a Loan available or has notified the Facility Agent that it will not make its portion of a Loan available by the Disbursement Date of that Loan in accordance with
Section 2.5
; (b) which has otherwise rescinded
or repudiated a Financing Document; or (c) with respect to which an Insolvency Event has occurred and is continuing, unless, in the case of clause (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 five (5) Business Days of its due date; or (ii) the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
“
Deferral Amount
” shall have the meaning provided in Part 2 of
Appendix B
.
“
Deferral Amount Cash Sweep Period
” shall have the meaning provided Part 2 of
Appendix B
.
“
Deferral Payment Amounts
” shall have the meaning provided Part 2 of
Appendix B
.
“
Delay Liquidated Damages
” shall mean all delay liquidated damages payable under the EPC Contract.
“
Disbursement
” shall mean any disbursement of a Loan pursuant to this Agreement.
“
Disbursement Date
” shall mean the date specified in a Notice of Borrowing as the date on which a
Disbursement of Loans is requested by the Borrower.
“
Discharged Rights and Obligations
” shall have the
meaning provided in
Section 9.13(c)
.
“
Disclosed Change Orders
” means the Change Orders to be
entered into pursuant to Article 13 of the EPC Contract in respect of certain refurbishment and conversion works, equipment and materials in connection thereto for the Vessel that have been determined will be required for the FPSO following the
validation and verification of the Pre-Feed Engineering and the Company Rely-Upon Information.
“
Disposition
” shall mean any sale, transfer or other disposition by the Borrower to any Person of any
Property other than cash or Permitted Investments.
“
Dispute
” shall have the meaning provided in
Section 9.19(b)
.
“
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 a Loan (or otherwise in order for the transactions contemplated by the
Financing Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the parties hereto; 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 hereto preventing that, or any other party hereto (i) from performing its payment obligations under the Financing Documents; or (ii) from communicating with other parties in accordance with
the terms of the Financing Documents, and which (in either such case) is not caused by, and is beyond the control of, the party whose operations are disrupted.
A-8
“
Distributable Amount
” shall mean amounts deposited in the
Offshore Distribution Holding Account from time to time that would be permitted, but for a Sponsor Cross-Default Event, to be transferred to the Offshore Distribution Account.
“
Distribution Date
” shall have the meaning provided in the Accounts Agreement.
“
Distribution Confirmation
” shall have the meaning provided in the Accounts Agreement.
“
Distributions
” shall have the meaning provided in
Section 5.16
.
“
Dollar Equivalent
” shall mean, with respect to any monetary amount in Reais, at any time for the
determination thereof, the amount of Dollars obtained by converting the amount of Reais involved in such computation into Dollars at the spot rate at which Reais are offered for sale to the Offshore Accounts Bank against delivery of Dollars by the
Offshore Accounts Bank at approximately 7:00 p.m. (São Paulo, Brazil time) on the date of determination thereof. If for any reason the Dollar Equivalent cannot be calculated as provided in the immediately preceding sentence, the Offshore
Accounts Bank shall calculate the Dollar Equivalent on such basis as the Offshore Accounts Bank (acting reasonably) deems fair and equitable.
“
Dollars
” and the sign “
$
” shall each mean the freely transferable, lawful currency of the
United States.
“
Drawdown Schedule
” shall mean the expected schedule of Disbursements of the Loans to be
made during the Availability Period, prepared by the Borrower and delivered on the Closing Date to the Facility Agent pursuant to
Section 3.1(j)
.
“
Early Termination Cash Sweep Period
” shall mean the period commencing on the date falling
twenty-four
(24) months prior to any Early Termination Date and ending on the Loan Termination Date.
“
Early Termination Date
” shall mean any early termination date notified to the Borrower or the Operator by
Petrobras under Clause 2.7 of the Charter Agreement or Clause 2.7 of the Services Agreement.
“
ECP Rules
”
shall have the meaning provided in
Section 9.10
.
“
Effective Date
” shall mean the date of
this Agreement.
“
Eligible IDC
” shall mean interest accruing on the Loans during the Availability Period.
“
Eligible Lenders
” shall mean a commercial bank or other financial institution (other than a Hedge Fund)
with a credit rating in respect of its international
long-term
debt equal to at least BBB by Standard & Poor’s or Baa2 by Moody’s and, in addition, Itaú, Banco do Brasil, Banco
Nacional de Desenvolvimento Econômico e Social (BNDES), Fundo da Marinha Mercante (FMM), Caixa Econômica Federal and Santander (Brasil).
“
Enforcement Action
” shall mean any action or proceeding against the Borrower, the Facilities or all or any
part of the Collateral taken for the purpose of (i) enforcing the rights of any Secured Party under or in respect of the Collateral or the Security Documents, including, without limitation, the initiation of action in any court or before any
administrative agency or governmental tribunal to enforce such rights, and any action to exercise any rights provided in
Section 7.3
and (ii) adjudicating or seeking a judgment on a claim.
“
Entitled Person
” shall have the meaning provided in
Section 9.9
.
A-9
“
Environmental and Labour Laws
” shall mean any and all
Environmental Laws and any and all Labour Laws.
“
Environmental and Social Action Plan
” shall mean the
plan developed by the Borrower setting out specific environmental and social measures to be undertaken in connection with the Project, in form and substance satisfactory to the Lenders, as such plan (i) may be updated from time to time to
reflect actions taken, (ii) modified from time to time with the prior written consent of the Facility Agent (acting on the instructions of the Lenders), and (iii) modified from time to time to conform to changes in applicable Laws or
imposed by the classification society.
“
Environmental and Social Claims
” shall mean, with respect to any
Person, as the case may be, (i) any notice, claim, administrative, regulatory or judicial or equitable action, suit, Lien, judgment or demand by any other Person or (ii) any other written communication by any Governmental Authority, in
either case alleging or asserting such Person’s liability for investigatory costs,
clean-up
costs, consultants’ fees, governmental response costs, damages to natural resources (including, without
limitation, wetlands, wildlife, aquatic and terrestrial species and vegetation) or other Property, property damages, personal injuries, fines or penalties arising out of, based on or resulting from (x) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by such Person or (y) circumstances forming the basis of any violation, or alleged violation, of any Environmental and Labour Law, the Equator Principles or any
Governmental Approval issued under any Environmental and Labour Law.
“
Environmental and Social Governmental
Approvals
” shall mean any Governmental Approval relating to environmental or social matters.
“
Environmental and Social Requirements
” means, collectively, Environmental and Labour Law, the applicable
Equator Principles and the IFC Standards.
“
Environmental Laws
” shall mean any and all Laws, now or
hereafter in effect, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to the environment, human health or safety, or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or toxic or hazardous substances or wastes into the environment including, without limitation, ambient air, surface water, groundwater, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, chemicals, or toxic or hazardous substances or wastes.
“
EPC Contract
” shall mean that certain Contract for Vessel Refurbishment, Conversion, Topsides Fabrication,
Integration and Completion of FPSO, dated as of October 4, 2014, by and between the EPC Contractor and the Borrower.
“
EPC Contractor
” shall mean Jurong Shipyard PTE Ltd, a corporation organized and existing under the laws of
Singapore.
“
EPC Parent Company Guarantor
” shall mean Sembcorp Marine Ltd, a corporation organized and
existing under the laws of Singapore.
“
EPC Performance Security Documents
” shall mean (i) that
certain performance guarantee dated October 7, 2014 from the EPC Parent Company Guarantor in favor of the Borrower, (ii) that certain performance bond dated October 21, 2014 from DBS Bank Ltd in favor of the Borrower in an amount no
less than ten percent (10%) of the Contract Price, and (iii) the EPC Warranty Guarantee.
“
EPC Punch
List
” shall mean reasonable and typical minor punch list items that are pending completion in accordance with the EPC Contract.
A-10
“
EPC Warranty Guarantee
” shall mean that certain warranty
guarantee to be delivered, under Article 3.5.4 of the EPC Contract, in favor of the Borrower in an amount no less than five percent (5%) of the Contract Price.
“
Equator Principles
” shall mean set of environmental guidelines developed by commercial banks and the
International Finance Corporation for the purpose of assessing and managing environmental and social issues related to
private-sector
project financings, as adopted on June 4, 2013.
“
Equity Contributions
” shall have the meaning provided in the Equity Support Deed.
“
Equity Interests
” of any Person shall mean any and all interests, rights to purchase, warrants, options,
participation or other equivalents of or interest in (however designated) equity of such Person, including any shares, quotas, common stock, preferred stock, any limited or general partnership interest and any limited liability company membership
interest.
“
Equity Support Deed
” shall mean the Equity Support Deed, dated as of the date hereof, by and
among the Borrower, the Operator, the Sponsors, the Shareholders, the General Partner, the Facility Agent, the Offshore Accounts Bank and the Collateral Agent.
“
Eurodollar Rate
” shall mean, with respect to each Interest Period in respect of a Loan, the rate
per
annum
equal to the rate determined by the Facility Agent (acting on the instructions of the Required Lenders) to be the London interbank offered rate administered by the ICE Benchmark Administration (or any other Person which takes over the
administration of that rate) for deposits in Dollars at approximately 11:00 a.m. (London time) on the Interest Determination Date for such Interest Period, and, in the event such applicable rate is less than zero (0), the Eurodollar Rate shall be
deemed to be zero (0). If for any reason no such rate is available, the term “
Eurodollar Rate
” shall mean, for any Loan for any Interest Period therefor, the rate
per annum
determined by calculating the arithmetic mean of the
offered rates, advised to the Facility Agent by the Reference Banks at approximately 11:00 a.m. (London time) on the Interest Determination Date for such Interest Period for a term comparable to such Interest Period, for deposits in Dollars;
provided
that, if any Reference Bank is unable to or does not supply its offered rate to the Facility Agent, such Reference Bank shall be disregarded for purposes of such calculation;
provided further
that if under such circumstances,
the Eurodollar Rate so calculated is less than zero (0), the Eurodollar Rate shall be deemed to be zero (0).
“
Event of Default
” shall have the meaning provided in
Section 7.1
.
“
Event of Loss
” shall mean, with respect to any Property of the Borrower, any loss of, destruction of or
damage to, or any condemnation (including, without limitation, a Taking) or other taking of, such Property.
“
Excluded Taxes
” shall have the meaning provided in
Section 2.7(a).
“
Existing Lender
” shall have the meaning provided in
Section 9.13(a)
.
“
Expected Shipyard Delivery Date
” shall mean October 23, 2016.
“
Expropriation Event
” shall mean (a) any condemnation, nationalization, seizure or expropriation by a
Governmental Authority of all or a substantial portion of the Facilities or the Property or the assets of the Borrower or of its share capital, (b) any assumption by a Governmental Authority of control of all or a substantial portion of the
Facilities or the Property, assets or business operations of the Borrower or of its share capital, (c) any taking of any action by a Governmental Authority of competent jurisdiction for the dissolution or disestablishment of the Borrower or
(d) any taking of any action by a Governmental Authority of competent jurisdiction that would prevent the Borrower from carrying on its business or operations or a substantial part thereof.
A-11
“
Facilities
” shall mean the FPSO, all equipment relevant to the
operation of the FPSO and other assets attached to the FPSO.
“
Facility Agent
” shall mean HSBC Bank USA,
National Association, acting in its capacity as agent for the Lenders pursuant to this Agreement, and shall include any successor Facility Agent appointed pursuant to
Section 8.9
.
“
FATCA
” means Sections 1471 through 1474 of the Code (as in effect on the date hereof), any current or
future regulations or official interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the Code and any intergovernmental agreements (and related legislation or official administrative guidance)
implementing the foregoing.
“
FATCA Deduction
” shall mean a deduction or withholding from a payment under
a Financing Document required by FATCA.
“
FATCA Exempt Party
” shall mean a party that is entitled to
receive payments free from any FATCA Deduction.
“
FATCA Information
” shall have the meaning provided in
Section 2.7(d)(i)
.
“
Fee Letters
” shall mean, collectively, (i) that certain Fee Letter
dated July 28, 2014, as amended on October 24, 2014, among the Sponsors, ABN AMRO Bank N.V., DNB Capital LLC, HSBC Bank USA, National Association, ING Capital LLC and Sumitomo Mitsui Banking Corporation, (ii) that certain Fee Letter
dated as of October 24, 2014, as amended on or about the Effective Date, among the Sponsors and Citigroup Global Markets Inc, (iii) that certain Fee Letter dated on or about the Effective Date, among the Sponsors, the Borrower and Natixis,
New York Branch, and (iv) that certain Agency Fee Letter dated the Effective Date among the Facility Agent, the Collateral Agent and the Borrower.
“
Fees
” shall mean all amounts payable pursuant to or referred to in
Section 6.7
.
“
Financing Documents
” shall mean, collectively, the following documents:
(i) this Agreement;
(ii) the Security Documents;
(iii) the Equity Support Deed;
(iv) the Payment Undertaking;
(v) the Required Hedging Agreements;
(vi) the Subordination Agreements;
(vii) the Fee Letters; and
(viii) each other deed, document, agreement or instrument which the Borrower and the Facility Agent agree to
designate as a “
Financing Document
”.
“
Financing Parties
” shall mean the Lenders and the
Agents.
“
First Repayment Date
” shall mean the date which is the earlier of (i) the third Business
Day of the fourth month following the Commercial Operation Date and (ii) January 29, 2018,
provided
that if such day is not a Business Day, the First Repayment Date shall be extended to the next succeeding Business Day.
A-12
“
FPSO
” shall have the meaning set forth in the first recital to
this Agreement.
“
FPSO Loss Event
” shall mean all or substantially all of the FPSO shall be destroyed or
suffer an actual or constructive loss.
“
FPSO Property
” shall mean, as of any date, the Vessel and any
Property title which has transferred to the Borrower under Article 7 of the EPC Contract.
“
General
Partner
” shall mean OOGTK Libra GmbH, a limited liability company (
Gesellschaft mit beschränkter Haftung
) under Austrian law, registered with the Austrian companies register (
Firmenbuch
) under the registration number FN
421169 t, in its capacity as the sole general partner of the Borrower.
“
General Partner Payments
” shall
mean payments made to the General Partner for administrative services, such payments (i) not to exceed seventy thousand Euro (€70,000) in any
twelve-month
period and (ii) following the
Commercial Operation Date, to be made as part of (and subject to the caps applicable to) the Offshore O&M Dollar Transfer Amount (as defined in the Accounts Agreement).
“
Governmental Approval
” shall mean any authorization, consent, approval, license, ruling, permit, tariff,
rate, certification, exemption, filing, variance, claim, order, judgment, decree, publication, notice to, declaration of or with, or registration by or with, any Governmental Authority.
“
Governmental Authority
” shall mean any government, governmental department, commission, board, bureau,
agency, regulatory authority, instrumentality, judicial or administrative body, domestic or foreign, federal, state or local, having jurisdiction over the matter or matters in question, including, without limitation, those in Brazil and the United
States. For the avoidance of doubt, Petrobras shall not be considered as a Governmental Authority.
“
Hazardous
Material
” shall mean any substance that is regulated or could lead to liability under any Environmental Law, including, but not limited to, any petroleum or petroleum product, asbestos in any form that is or could become friable,
transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls (PCB’s), hazardous waste, hazardous material, hazardous substance, toxic substance, contaminant or pollutant, as defined or regulated
as such under any applicable Environmental Law.
“
Hedge Fund
” shall mean any hedge fund or similar
investment fund.
“
Hedge Guarantor
” shall have the meaning provided in
Section 9.10
.
“
Hedging Agreement
” shall mean any agreement (including the related ISDA Master Agreement and Schedule
thereto and trade confirmation in connection therewith) in respect of any interest rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency
rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of the foregoing transactions) or any combination of the foregoing transactions.
“
IFC Standards
” means, collectively, the International Finance Corporation’s (IFC) Performance Standards
on Social and Environmental Sustainability, dated January 1, 2012, and the relevant IFC Environmental Health and Safety (EHS) Guidelines in force on the date of this Agreement.
A-13
“
IFRS
” shall mean international accounting standards within the
meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements as in use in the European Union.
“
Increased Costs
” shall have the meaning provided in
Section 2.9(a)
.
“
Indebtedness
” of any Person shall mean (i) all indebtedness of such Person for borrowed money,
(ii) the deferred purchase price of assets or services which in accordance with the Accounting Principles would be shown on the liability side of the balance sheet of such Person, (iii) the face amount of all letters of credit issued for
the account of such Person and, without duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any Property owned by such first Person, whether or not such Indebtedness has been assumed,
(v) all Capital Lease Obligations of such Person, (vi) all obligations of such Person to pay a specified purchase price for goods or services whether or not delivered or accepted,
i.e.
, take-or-pay
and similar obligations and (vii) all Contingent Obligations of such Person;
provided
that Indebtedness shall not include trade payables arising in the ordinary course of
business so long as such trade payables are payable within sixty (60) days of the date the respective goods are delivered or the respective services are rendered and are not overdue.
“
Indemnified Liabilities
” shall have the meaning provided in
Section 9.2(a)
.
“
Indemnified Matters
” shall have the meaning provided in
Section 9.2(b)
.
“
Indemnified Person
” shall have the meaning provided in
Section 9.2(a)
.
“
Indemnified Taxes
” shall mean all Taxes other than Excluded Taxes.
“
Independent Appraiser
” shall mean IHS (Global) Inc., Pareto Shipbrokers A/S, RS Platou ASA, Fearnley
Offshore AS, Clarkson PLC, Noble Denton or any other Person from time to time appointed by the Facility Agent to act as an Independent Appraiser for the purposes of this Agreement.
“
Initial 24-month Period
” shall have the meaning provided in
Section 5.18(a)
.
“
Insolvency Event
” in relation to an entity means that the entity:
|
|
(a)
|
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
|
|
(b)
|
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:
|
A-14
|
|
(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.
|
“
Insurance Advisor
” shall mean Marsh Ltd. or any other Person from time to time
appointed by the Facility Agent to act as Insurance Advisor for the purposes of this Agreement
“
Insurance
Proceeds
” shall mean all amounts payable to the Borrower, the Operator, the Offshore Accounts Bank, the Onshore Accounts Bank, or the Collateral Agent in respect of any insurance required to be maintained (or caused to be maintained)
pursuant to
Section 5.9
.
“
Intercreditor Agreement
” shall mean the Intercreditor Agreement
entered into or to be entered into among the Lenders, the Required Hedge Providers, the Agents, the Accounts Banks and the Collateral Agent, and to which any Required Hedge Providers (as defined in the Accounts Agreement) shall accede.
“
Interest Determination Date
” shall mean, with respect to any Loan, the second (2nd) Business Day prior
to the commencement of any Interest Period relating to such Loan.
“
Interest Expense
” shall mean, for any
period, the sum of the following: (i) all interest on the Loans accrued or capitalized during such period (whether or not actually paid during such period) pursuant to the Financing Documents
plus
(ii) the net amounts payable by the
Borrower (or
minus
the net amounts receivable by the Borrower) under the Required Hedging Agreements accrued during such period (whether or not actually paid or received during such period).
A-15
“
Interest Payment Date
” shall mean (i) each of the third
Business Day of each of March, June, September and December following the Closing Date; (ii) the First Repayment Date, and (iii) the Maturity Date.
“
Interest Period
” shall mean with respect to any Loan, (i) initially, the period beginning on and
including the date of Borrowing of such Loan and ending on but excluding the next following Interest Payment Date and (ii) thereafter, the period beginning on and including the relevant Interest Payment Date and ending on but excluding the next
following Interest Payment Date (or such other period as the Borrower and the Facility Agent (at the instruction of the Required Lenders) may agree from time to time);
provided
that (i) any Interest Period that would otherwise extend
beyond the First Repayment Date shall end on the First Repayment Date and (ii) any Interest Period that would otherwise extend beyond the Maturity Date shall end on the Maturity Date.
“
Investment
” in any Person shall mean, without duplication: (a) the acquisition (whether for cash,
securities, other Property, services or otherwise) or holding of Equity Interests, bonds, notes, debentures, partnership or other ownership interests or other securities of such Person, or any agreement to make any such acquisition or to make any
capital contribution to such Person; or (b) the making of any deposit with, or advance, loan or other extension of credit to, such Person.
“
ISDA Master Agreement and Schedule
” shall mean the 2002 standard master agreement and schedule as published
by the International Swaps and Derivatives Association, Inc. to document derivatives transaction. For purposes herein and for the avoidance of doubt, “ISDA Master Agreement and Schedule” shall not include any related
“Transaction” as defined therein.
“
Joint Venture Agreement
” shall mean that certain Joint
Venture and Shareholders Agreement, dated as of October 3, 2014, by and among the OOG Sponsor, the OOG Shareholder, Teekay Offshore Holdings LLC, the Teekay Shareholder, the Borrower, the General Partner, and the other parties thereto from time
to time.
“
Jurong Compliance Letter
” means the letter dated March 5, 2015 from Jurong Shipyard Pte
LTD Act relating to compliance with,
inter alia
, the Brazilian
Anti-Corruption
Act 12,846, and to certain other matters specified therein.
“
Labour Laws
” shall mean any and all binding Laws in the applicable jurisdictions, now or hereafter in
effect, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to occupational health and safety and including those which relate to preventing and combating
harmful and exploitative forms of forced or compulsory labour and child labour (each as defined under applicable Law).
“
Law
” shall mean, with respect to any Person (i) any statute, law, regulation, ordinance, rule,
judgment, order, decree, permit, concession, grant, franchise, license, agreement, treaty or other governmental restriction or any interpretation or administration of any of the foregoing by any Governmental Authority (including, without limitation,
Governmental Approvals) and (ii) any directive, guideline, policy, requirement or any similar form of decision of or determination by any Governmental Authority which is binding on such Person, in each case, whether now or hereafter in effect
(including, without limitation, in each case, any Environmental and Labour Law).
“
Legal Qualifications
”
shall mean (A) the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganization and other laws generally affecting the rights of
creditors; (B) the time barring of claims under the Limitation Acts; (C) the possibility that an undertaking to assume liability for or indemnify a person against
non-payment
of United Kingdom stamp
duty may be void and defenses of
set-off
or counterclaim; and (D) similar principles, rights and defenses under the laws of any relevant jurisdiction,
A-16
“
Lender
” shall mean each Lender named on
Annex I
and
any New Lender pursuant to
Section 9.13
.
“
Lien
” shall mean, with respect to any Property of
any Person, any mortgage, lien, deed of trust, hypothecation, fiduciary transfer of title, assignment by way of security, pledge, charge, lease, sale and
lease-back
arrangement, easement, servitude, trust
arrangement, or security interest or encumbrance of any kind in respect of such Property, or any preferential arrangement having the practical effect of constituting a security interest with respect to the payment of any obligation with, or from the
proceeds of, such Property (and a Person shall be deemed to own subject to a Lien any Property that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention
agreement relating to such Property).
“
Limitation Acts
” shall mean the Limitation Act 1980 and the
Foreign Limitation Periods Act 1984.
“
Loans
” shall have the meaning set forth in
Section 2.1(a)
.
“
Loan Termination Date
” shall mean the date on which all Obligations, other
than contingent liabilities and obligations which are unasserted at such date, have been paid and satisfied in full and all Commitments have been terminated.
“
Loss Proceeds
” shall mean, with respect to any Event of Loss, any Insurance Proceeds, condemnation awards or
other compensation, awards, damages and other payments or relief (including any compensation payable in connection with a Taking) with respect to such Event of Loss (excluding, in each case, the proceeds of protection and indemnity and other general
liability insurance, delay in
start-up
insurance and business interruption insurance).
“
Majority Lenders
” shall mean Lenders voting more than 50% of the Combined Exposure with respect to the
Loans.
“
Management Services Agreements
” shall mean the Construction Management Agreement, the Asset
Maintenance Agreement, the Specialized Oil Industry Services Agreement and the Secondment Agreements.
“
Management
Services Payments
” shall mean (i) payments required to be made under the Construction Management Agreement, the Asset Maintenance Agreement and the Specialized Oil Industry Services Agreement (in each case in amounts no greater than
the applicable payment caps specified therein, without regard to any amendment to such payment caps made without the consent of the Majority Lenders), (ii) payments on or prior to the Project Completion Date under the Teekay Singapore
Secondment Agreement not to exceed $48,100,000 in the aggregate and (iii) payments after the Commercial Operation Date under any other Secondment Agreement made on an
arms-length
basis from the Offshore
Proceeds Account as part of (and subject to the caps applicable to) the Offshore O&M Dollar Transfer Amount (as defined in the Accounts Agreement).
“
Management Services Providers
” shall mean each of the parties other than the Borrower to the Management
Services Agreements.
“
MAPI
” shall mean the “Mortgagees’ Additional Perils Insurance” set
forth in Part B of
Appendix C
.
A-17
“
Market Consultant
” shall mean IHS (Global) Inc. or any other
Person from time to time appointed by the Facility Agent to act as Market Consultant for the purposes of this Agreement.
“
Market Disruption Margin
” shall mean the margin calculated and applied in accordance with
Section 2.11(d)(ii)
.
“
Market Disruption Margin Event
” shall have the meaning provided in
Section 2.11(b)
.
“
Material Adverse Effect
” shall mean a material adverse effect on
(i) the ability or prospective ability of the Borrower to perform its payment obligations under any of the Financing Documents to which it is a party, (ii) the legality, validity or enforceability of any material provision of any
Transaction Document or (iii) the legality, validity or enforceability of the Security Interests provided under the Security Documents.
“
Maturity Date
” shall mean the date which is the earlier of (a) the tenth (10
th
) anniversary of the Commercial Operation Date, (b) the Early Termination Date, if any, and (c) October 29, 2027,
provided
that if such date is not a Business Day, then the
Maturity Date shall be the next preceding Business Day.
“
MII
” shall mean the “Mortgagees’
Interest Insurance” set forth in Part B of
Appendix C
.
“
Mobilization and Mooring Payment
”
shall mean the payment in an aggregate amount of $120,000,000 payable to the Borrower under the Charter Agreement on or about the Commercial Operation Date.
“
Moody’s
” shall mean Moody’s Investor Services, Inc.
“
Mortgage
” shall mean the Bahamian law mortgage and the Deed of Covenants supplemental thereto entered into
between the Borrower and the Collateral Agent with respect to the Facilities.
“
Necessary Governmental
Approval
” shall mean (i) any Governmental Approval listed in
Schedule 4.6
, (ii) any other Governmental Approval necessary under applicable Law in connection with (a) the due execution and delivery of, and
performance by each of the Borrower and the Operator of its obligations and the exercise of its rights under, the Transaction Documents to which it is a party, (b) the legality, validity and binding effect, enforceability or admissibility in
evidence thereof, and (c) the acquisition, importation, ownership, construction, installation, operation and maintenance of the FPSO as contemplated by the Transaction Documents which are required to be obtained by the Borrower, the Operator,
the Sponsors or the Shareholders, and (in the case of (a), (b) and (c)), the failure of which to obtain and maintain could reasonably be expected to have a Material Adverse Effect, and (iii) any Environmental and Social Governmental
Approval.
“
Net Available Amount
” shall mean, with respect to any Event of Loss (other than a FPSO Loss
Event), the aggregate amount of Loss Proceeds received by the Borrower or the Collateral Agent in respect of such Event of Loss, net of reasonable expenses incurred in connection with the collection thereof.
“
Net Disposition Proceeds
” shall mean, with respect to any Disposition, the gross cash proceeds received from
such Disposition (including any cash received by way of deferred payment pursuant to a promissory note, receivable or otherwise, but only as and when received), net of the reasonable
out-of-pocket
costs of such Disposition, including fees, expenses and commissions with respect to legal, accounting, financial advisory, brokerage and other professional
services provided in connection with such Disposition.
A-18
“
New Lender
” shall have the meaning provided in
Section 9.13(a)
.
“
Notice of Borrowing
” shall have the meaning provided in
Section 2.2
.
“
Notice Office
” shall mean the office of the Facility Agent specified in
Annex III
, or such other office, telephone or facsimile number and email address as the Facility Agent may hereafter designate in writing as such to each of the other parties to this Agreement.
“
Obligations
” shall mean, collectively, (i) all loans, advances, debts, liabilities and obligations,
howsoever arising, owed by the Borrower under a Financing Document or otherwise to any Secured Party of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising, including all interest, fees, charges, expenses, attorneys’ fees and consultants’ fees chargeable to the Borrower; (ii) any and all sums advanced by any
Secured Party in order to preserve the Collateral or to preserve the Security Interests; and (iii) in the event of any Enforcement Action, the reasonable expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing
of or realizing on the Collateral, or of any exercise by any Secured Party of its rights under the Security Documents, together with reasonable attorneys’ fees and court costs.
“
OFE Suppliers
” shall mean each counterparty to an OFE Supply Contract.
“
OFE Supply Contracts
” shall mean, collectively, (i) the Vessel Purchase Agreement and (ii) the
purchase order
OOGTK02-01-PA-001
dated December 12, 2014, between the Borrower and Cia. Brasileira de Amarras –
Brasilmarras for the supply of mooring lines.
“
Officer’s Certificate
” shall mean an officer’s
certificate signed by an Authorized Officer.
“
Offshore Accounts Bank
” shall mean HSBC Bank USA, National
Association, acting in its capacity as Offshore Accounts Bank pursuant to the Accounts Agreement, and shall include any successor Offshore Accounts Bank appointed pursuant to the Accounts Agreement.
“
Offshore Cash Retention Account
” shall have the meaning provided in the Accounts Agreement.
“
Offshore Construction Account
” shall have the meaning provided in the Accounts Agreement.
“
Offshore Debt Service Reserve Account
” shall have the meaning provided in the Accounts Agreement.
“
Offshore Debt Service Reserve Account Required Balance
” shall have the meaning provided in the Accounts
Agreement.
“
Offshore Distribution Account
” shall have the meaning provided in the Accounts Agreement.
“
Offshore Distribution Holding Account
” shall have the meaning provided in the Accounts Agreement.
“
Offshore Loss Proceeds and Prepayment Account
” shall have the meaning provided in the Accounts Agreement.
“
Offshore O&M Service Reserve Account
” shall have the meaning provided in the Accounts Agreement.
A-19
“
Offshore O&M Service Reserve Account Required Balances
”
shall have the meaning provided in the Accounts Agreement.
“
Offshore Proceeds Account
” shall have the
meaning provided in the Accounts Agreement.
“
Offshore Sponsor Net Balloon Security Account
” shall have
the meaning provided in the Accounts Agreement.
“
Onshore Accounts Bank
” shall mean HSBC Bank Brasil S.A.
- Banco Múltiplo, a Brazilian financial institution, acting in its capacity as Onshore Accounts Bank pursuant to the Accounts Agreement, and shall include any successor Onshore Accounts Bank appointed pursuant to the Accounts Agreement.
“
Onshore O&M Service Account
” shall have the meaning provided in the Accounts Agreement.
“
Onshore Security Agreement
” shall mean the Fiduciary Assignment of the Onshore Account’s Credit Rights
Agreement entered into or to be entered into among the Operator, the Collateral Agent, the Onshore Accounts Bank and the Borrower as an intervening party.
“
OOG Compliance Letter
” means the letter dated January 13, 2015 from the OOG Sponsor to Petrobras
relating to compliance with,
inter alia
, the Brazilian
Anti-Corruption
Act 12,846, and to certain other matters specified therein.
“
OOG Shareholder
” shall mean OOG Tiro & Sidon GmbH, a limited liability company organized under the
laws of Austria, registered with the Austrian companies register (
Firmenbuch
) under the registration number FN 342217k.
“
OOG Sponsor
” shall mean Odebrecht Óleo e Gás S.A., a
sociedade anônima
organized
and existing under the laws of Brazil.
“
Operating Plan
” shall have the meaning provided in
Section 5.23(a)
.
“
Operating Year
” shall mean each calendar year (or portion thereof) after
the Commercial Operation Date.
“
Operation and Maintenance Expenses
” shall mean, collectively, without
duplication, all reasonable (i) expenses of administering and operating the Project and of maintaining it in accordance with Prudent Industry Practices incurred by the Borrower and the Operator, (ii) transportation costs payable by the
Borrower and the Operator, in connection with the Project, (iii) direct operating and maintenance costs of the FPSO payable by the Borrower and the Operator (including amounts payable pursuant to the Services Agreement and the Asset Maintenance
Agreement), (iv) insurance premiums payable by the Borrower and the Operator, in connection with the Project, (v) property, sales,
value-added
and excise taxes payable by the Borrower and the
Operator in connection with the Project (other than taxes imposed on or measured by income or receipts), (vi) costs and fees incurred by the Borrower and the Operator in connection with obtaining and maintaining in effect the Governmental
Approvals required in connection with the Project, and (vii) legal, accounting and other professional fees incurred in the ordinary course of business in connection with the Project payable by the Borrower and the Operator;
provided
,
that “Operation and Maintenance Expenses” shall not include payments into the Offshore Debt Service Reserve Account, depreciation, or any items properly chargeable by the Accounting Principles to fixed capital accounts.
A-20
“
Operator
” shall mean OOGTK Libra Produção de
Petróleo Ltda., a limited liability company (
sociedade limitada
) organized and existing under the laws of Brazil.
“
Organizational Documents
” shall mean, with respect to any Person, (i) the articles of incorporation,
articles of association, limited liability company agreement, certificate of partnership registration, partnership agreement, or other similar organizational document of such Person, (ii) the
by-laws
or
other similar document of such Person, (iii) any certificate of designation or instrument relating to the rights of preferred shareholders or other holders of Equity Interests of such Person, and (iv) any quotaholders agreement or
shareholder rights agreement or other similar agreement.
“
Original Consortium Members
” means each of
Empresa Brasileira de Administração de Petróleo e Gás Natural S.A. –
Pré-Sal
Petróleo S.A. – PPSA, Petrobras, Shell Brasil Petróleo Ltda., Total
E&P do Brasil Ltda., CNODC Brasil Petróleo e Gás Ltda. and CNOOC Petroleum Brasil Ltda., with an equity stake of 0%, 40%, 20%, 20%, 10% and 10%, respectively, in the Consortium as of the date hereof.
“
Parallel Debt
” shall have the meaning provided in
Section 9.15
.
“
Participant
” shall have the meaning provided in
Section 9.13(e)
.
“
Payment Office
” shall mean the office of the Facility Agent as provided in
Annex II
, or such other
office as the Facility Agent may hereafter designate in writing as such to each of the other parties hereto.
“
Payment Undertaking
” shall mean the Payment Undertaking entered into or to be entered into by and among the
Sponsors, the Facility Agent and the Collateral Agent.
“
Permitted Capital Contributions
” shall mean
(i) contributions to the equity of the Borrower without a corresponding issue of shares or contributions for newly issued shares in the Borrower in accordance with the requirements applicable to Base Equity Contributions under the Equity
Support Deed (
provided
,
however
, for the avoidance of doubt, in no event shall such Permitted Capital Contributions constitute Equity Contributions made in satisfaction of the obligations under the Equity Support Deed, other than those
made in accordance with the
proviso
in
Section 5.18(a)
) and (ii) Subordinated Loans.
“
Permitted Change Order
” shall have the meaning provided in
Section 5.25(b)
.
“
Permitted Investments
” shall have the meaning provided in the Accounts Agreement.
“
Permitted Lien
” shall mean any Lien permitted to be incurred by the Borrower pursuant to
Section 5.12
.
“
Permitted Operator Transfer
” shall mean any transfer by OOG-TKP Operator
Holdings Limited of its ownership of 0.01% of each class of Equity Interests of the Operator, provided that any transferee shall be (i) subject to all necessary “know your customer” or other similar checks under all applicable Laws
and regulations by the Facility Agent and (ii) required to comply with all Sanctions Laws and all Anti-Money Laundering Laws.
“
Permitted Purchase Agreement
” shall mean an agreement entered into by the Borrower for a Permitted Purchase.
A-21
“
Permitted Purchases
” shall mean expenditures for the purchase
of equipment and spare parts required for the operation of the FPSO to the extent that such purchases are required to be made directly by the Borrower in order to benefit from the “
Regime Aduaneiro Especial de exportação e
importação de bens destinados à exploração e à produção de petroléo e gás natural (REPETRO)
” funded from (i) the Offshore Proceeds Account as part of (and subject to
the caps applicable to) the Offshore O&M Dollar Transfer Amount (as defined in the Accounts Agreement), not to exceed in any
12-month
period an aggregate amount equal to twenty-seven and one half percent
(27.5%) of the O&M Daily Expense Amount multiplied by 360 or (ii) proceeds, if any, standing to the credit of the Offshore Distribution Account or equity contributions from the Sponsors.
“
Permitted Transferee
” shall mean any Person that assumes the obligations of a transferring Consortium Member
under the Consortium Agreement, provided that such Person is (i) any other Consortium Member, (ii) a reputable international oil company or a subsidiary of a reputable international oil company as approved by the Brazilian Ministry of
Mines and Energy in accordance with Section 10.1 of the Consortium Agreement (x) provided that such reputable international oil company or its subsidiary or its parent company, whichever entity is the most creditworthy, is at least as
creditworthy as the replaced Consortium Member, or, if more creditworthy, the parent company of such replaced Consortium Member and (y) is otherwise at least as capable of performing the obligation of the replaced Consortium Member as the
replaced Consortium Member, in each case, on the date that the Consortium Agreement was entered into, or (iii) a Person approved by the Required Lenders.
“
Person
” shall mean any individual, corporation, limited liability company, company, voluntary association,
partnership, joint venture, trust, or other enterprises or unincorporated organization or government (or any agency, instrumentality or political subdivision thereof).
“
Petrobras
” shall mean Petróleo Brasileiro S.A. – Petrobras, a
mixed-capital
company (
sociedade de economia mista
) controlled by the federal government of Brazil.
“
Petrobras Delay LD Amounts
” shall mean the penalty amounts (if any) payable in respect of delay in relation
to the FPSO to Petrobras in accordance with the Charter Agreement and the Services Agreement.
“
Petrobras
Insolvency Event
” shall mean Petrobras is declared insolvent in accordance with applicable laws and/or regulations, provided that such a declaration shall not constitute an event of default if the government of Brazil assumes the
obligations of Petrobras under the Project Documents.
“
Petrobras Net Delay LD Amounts
” shall mean the
Petrobras Delay LD Amounts minus the amount of delay liquidated damages received from the EPC Contractor.
“
Petrobras Payment Default Event
” shall mean the maturity of any indebtedness of Petrobras or of any of its
material subsidiaries in a total aggregate principal amount of U.S.$200,000,000 (or its equivalent in another currency) or more is accelerated in accordance with the terms of that indebtedness, it being understood that prepayment or redemption by
Petrobras or any such material subsidiary of any indebtedness is not acceleration for this purpose.
“
Petrobras
Punch List
” shall mean punch list items relating to the FPSO that are to be completed following Commercial Operation Date pursuant to the requirements of Petrobras.
“
Plans and Specifications
” shall mean the plans and specifications relating to the Project as set forth in or
contemplated by the EPC Contract.
“
Pledge Agreements
” shall mean the Brazilian Share Pledge Agreement,
the Austrian Partnership Interest Pledge Agreement and the Austrian Share Pledge Agreement.
“
Pre-Approved
Transfer
” shall have the meaning provided
Section 7.1(m)
.
“
Principal Amortizations
”
shall have the meaning provided in Part 2 of
Appendix B
.
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“
Principal Payment Dates
” shall mean the First Repayment Date,
each Interest Payment Date thereafter, and the Maturity Date.
“
Project
” shall mean the construction and
chartering of the FPSO and other Facilities.
“
Project Accounts
” shall have the meaning provided in the
Accounts Agreement.
“
Project Completion Date
” shall mean the date upon which the conditions set forth in
Section 3.3
have been satisfied (or waived by the Lenders).
“
Project Costs
” shall mean
(i) all costs and expenses reasonably and necessarily incurred or to be incurred by the Borrower or the Operator to finance and complete the Project (and complete all Punch List items in respect thereof) and achieve the Project Completion Date
in the manner contemplated by the Transaction Documents, including all reasonable and necessary costs and expenses incurred in connection with the negotiation and preparation of the Transaction Documents and the formation of the Borrower, all fees
and premiums payable in respect of the Loans, and all other reasonable and necessary expenses required for the financing, development, design, construction, equipment procurement, installation,
start-up
and
initial operation of the Project and (ii) all Operation and Maintenance Expenses as set forth in the Capex Budget under the “Working Capital” item incurred during and in connection with the
start-up
of the Facilities and all Eligible IDC. Project Costs shall include (1) payment of amounts payable under the Construction Management Agreement to the Construction Manager, (2) the
reimbursement of the Borrower, the Sponsors or the Operator for Project Costs and paid by any of such Persons prior to the first Disbursement (
provided
that the Technical Advisor and the Facility Agent shall have approved such Project Costs),
(3) payments by the Borrower required under the Construction Contracts, and (4) payment of Petrobras Net Delay LD Amounts to the extent permitted under
Section 2.3(d)(ii)
. Project Costs shall not include (a) payments of
principal of any Indebtedness or Interest Expense following the end of the Availability Period, (b) any payments of any kind to the Borrower or any Affiliate thereof, other than as expressly contemplated by the Transaction Documents or payments
in respect of the reimbursement of Project Costs expressly permitted above, (c) any principal, interest or other amounts in respect of Subordinated Loans or any other loans to the Borrower from any Sponsor or any Affiliate of any Sponsor, and
(d) the repayment of the Indebtedness under the Bridge Loan Agreement.
“
Project Documents
” shall
mean, collectively, the following documents:
|
|
(i)
|
the Construction Contracts;
|
|
|
(ii)
|
the EPC Performance Security Documents;
|
|
|
(iii)
|
the Charter Agreement;
|
|
|
(iv)
|
the Services Agreement; and
|
|
|
(v)
|
the Management Services Agreements.
|
“
Project Participants
” shall mean the EPC Contractor, the EPC Parent Company Guarantor, the OFE Suppliers,
the Operator, the Consortium Members, the Management Services Providers, each party (other than the Borrower) to an Additional Project Document with a value in excess of five million Dollars ($5,000,000), and each Replacement Project Participant.
A-23
“
Project Revenues
” shall mean, for any period, without
duplication, the aggregate of all revenues received by the Borrower and the Operator during such period from (i) payments made thereto under the Project Documents, (ii) interest accrued on, and other income derived from, the balance
outstanding during such period in the Project Accounts (including, without limitation, from Permitted Investments), (iii) the proceeds of any delay in
start-up
and business interruption insurance, and
(iv) the proceeds of any Delay Liquidated Damages;
provided
that Project Revenues shall exclude, to the extent otherwise included, (1) proceeds payable in respect of any insurance (other than delay in
start-up
and business interruption insurance), or (2) warranty or indemnity payments or damages, other than Delay Liquidated Damages, payable to the Borrower under any Project Document.
“
Project Schedule
” shall mean the schedule for achieving the Project Completion Date, in accordance with the
Base Case Projections and the EPC Contract.
“
Property
” shall mean any property of any kind
whatsoever, whether movable, immovable, real, personal or mixed and whether tangible or intangible, any right or interest therein or any receivables or credit rights (
direitos creditórios
).
“
Protocol of Delivery
” shall mean a protocol of delivery in the form of
Exhibit I
to the EPC
Contract acknowledging delivery of the FPSO by the EPC Contractor and acceptance thereof by the Borrower.
“
Prudent Industry Practices
” shall mean the professional practices, methods, equipment, specifications and
safety and output standards and industry codes mentioned in the EPC Contract, the Services Agreement and the Charter Agreement, with respect to the design, installation, operation, maintenance and use of equipment and similar or better machinery,
all of the above in compliance with applicable standards of safety, output, dependability, efficiency and economy, including recommended practice of a good, safe, prudent and
workman-like
character and in
compliance with all applicable Laws. Prudent Industry Practices are not intended to be limited to the optimum or minimum practice or method to the exclusion of all others, but rather to be a spectrum of reasonable and prudent practices and methods
as practiced in the industry.
“
Punch List
” shall mean, collectively, the EPC Punch List and the
Petrobras Punch List.
“
Quarter
” shall mean each period commencing on the day immediately following a
Quarter Date and ending on the next succeeding Quarter Date.
“
Quarter Date
” shall mean (i) the
third Business Day of each of March, June, September and December and (ii) if the First Repayment Date shall be a day other than the third Business Day of March, June, September or December, the First Repayment Date.
“
Reais
” and the sign “
R$
” shall each mean freely transferable, lawful currency of Brazil.
“
Reais Equivalent
” shall mean, with respect to any monetary amount in Dollars, at any time for the
determination thereof, the amount of Reais obtained by converting the amount of Dollars involved in such computation into Reais at the spot rate at which Dollars are offered for sale to the Offshore Accounts Bank against delivery of Reais by the
Offshore Accounts Bank at approximately 7:00 p.m. (São Paulo, Brazil time) on the date of determination thereof. If for any reason the Reais Equivalent cannot be calculated as provided in the immediately preceding sentence, the Offshore
Accounts Bank shall calculate the Reais Equivalent on such basis as the Offshore Accounts Bank (acting reasonably) deems fair and equitable.
“
Receivables Fiduciary Assignment Agreement
” shall mean the Receivables Fiduciary Assignment Agreement
related to the Charter Agreement and the Services Agreement entered into or to be entered into among the Borrower, the Operator, the Collateral Agent and the Onshore Accounts Bank.
“
Recipient
” shall have the meaning provided in
Section 2.7(f)
.
A-24
“
Reference Banks
” means, collectively, ABN AMRO Bank N.V., DNB
Bank ASA, New York Branch, Deutsche Bank, JPMorgan Chase & Co., Bank of Tokyo Mitsubishi UFJ, Ltd., ING Bank N.V., Natixis and Sumitomo Mitsui Banking Corporation;
provided
that, if any such Lender or ING Capital LLC assigns all of
its Loans and other rights and obligations under this Agreement and the other Financing Documents to any New Lender in accordance with
Section 9.13
, such New Lender shall replace such Lender or, in the case of an assignment by ING
Capital LLC, ING Bank N.V. as a “Reference Bank” for purposes of this Agreement so long as the Majority Lenders and the Borrower consent to such replacement;
provided further
, that if any such Lender assigns all of its Loans and
other rights and obligations under this Agreement and the other Financing Documents to more than one New Lender in accordance with
Section 9.13
, the Borrower and the Facility Agent shall consult and use reasonable efforts to agree (with
the consent of the Majority Lenders, acting reasonably) on a replacement Reference Bank and if no such agreement is reached within fifteen (15) days, the Borrower shall designate such replacement Reference Bank.
“
Register
” shall have the meaning provided in
Section 8.10
.
“
Regulation
” shall have the meaning provided in
Section 4.20(b)
.
“
Release
” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any Hazardous Material, but excluding emissions from the engine exhaust of any
vehicle).
“
Relevant Party
” shall have the meaning provided in
Section 2.7(f)
.
“
Repeating Representations
” shall mean each of the representations and warranties set forth in
Sections 4.1(a)
,
4.2
,
4.3(b)
,
4.5
,
4.6(c)
,
4.7
,
4.8
,
4.9
,
4.10
,
4.12
,
4.13(a)
,
4.13(b)
,
4.13(c)
,
4.14
,
4.16(a)
,
4.17
,
4.18
,
4.21
and
4.23
.
“
Replaced Lender
” and “
Replacement Lender
” shall have the
meanings provided in
Section 2.13
.
“
Replacement Project Participant
” shall mean, with
respect to any Project Participant (excluding any Consortium Member), any Person which (i) is satisfactory to the Required Lenders and having credit, or acceptable credit support, equal to or greater than that of the replaced Project
Participant on the date that the applicable Project Document was entered into, or otherwise satisfactory to the Required Lenders, who, pursuant to a definitive agreement reasonably satisfactory to the Required Lenders, assumes the obligations of the
replaced Project Participant on terms and conditions no less favorable to the Borrower than those applicable to the replaced Project Participant pursuant to the applicable Project Document or otherwise satisfactory to the Required Lenders and
(ii) has been subject to any checks necessary in relation to such Person by any Financing Party under “know your customer” or similar requirements and such Financing Party is satisfied with the results of such checks.
“
Required Hedge Percentage
” shall mean (i) prior to the Commercial Operation Date,
seventy-five
percent (75%) and (ii) on and after the Commercial Operation Date, ninety percent (90%).
“
Required Hedge Providers
” shall mean ING Bank NV (or Affiliate thereof), ING Capital Markets LLC (or
Affiliate thereof), DNB Bank ASA, New York Branch, ABN AMRO Bank NV, Citibank, N.A., London Branch, HSBC Bank USA, National Association, SMBC Nikko Capital Markets Limited, and Natixis, as well as any New Lender or Affiliate thereof pursuant to
Section 9.13
.
“
Required Hedging Agreements
” shall have the meaning provided in
Section 5.17(a)
.
A-25
“
Required Lenders
” shall mean Lenders voting at least
66-2/3%
of the Combined Exposure with respect to the Loans.
“
Reserve Account
Letter of Credit
” shall have the meaning provided in the Accounts Agreement.
“
Restoration
Period
” shall have the meaning provided in
Section 5.11(i)
.
“
Restoration Work
”
shall mean the design, engineering, procurement, construction and other work with respect to the Restoration of Affected Property.
“
Restore
” shall mean, with respect to any Affected Property, to rebuild, repair, restore or replace such
Affected Property. The terms “
Restoration
” and “
Restoring
” shall have a correlative meaning.
“
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 or territory which is subject to country-wide or
territory-wide Sanctions Laws, including, without limitation, the Islamic Republic of Iran and the Syrian Arab Republic; (c) that is directly or indirectly owned or controlled by a person referred to in (a) and/or (b) above;
(d) with which any Financing Party is prohibited from dealing or otherwise engaging in a transaction by any Sanctions Laws; or (e) that is acting on behalf of a person referred to in (a) and/or (b) above.
“
Sanctions Authority
” means (a) the Norwegian State, the United Nations, the European Union, the member
states of the European Union, the United States, Singapore, Hong Kong and any country whose laws are applicable to (i) the Borrower or any of its Subsidiaries or (ii) either Sponsor or any of its Subsidiaries that has a direct or indirect
ownership interest in the Borrower or the General Partner, and (b) any authority acting on behalf of any of them in connection with Sanctions Laws, including the U.S. Department of the Treasury’s Office of Foreign Assets Control, Her
Majesty’s Treasury, the Monetary Authority of Singapore and the Hong Kong Monetary Authority.
“
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, vessels or entities
published in connection with, and any country that is the subject of, Sanctions Laws.
“
Scheduled Principal
Payments
” shall mean the scheduled amounts payable in respect of the principal of the Loans pursuant to
Section 6.1(a)
.
“
Secondment Agreements
” means each of the Teekay Singapore Secondment Agreement and each other secondment
agreement entered into by the Borrower and an Affiliate of a Sponsor, substantially in the form of
Exhibit D-4
.
“
Secured Parties
” shall mean, collectively, the Financing Parties and each Required Hedge Provider that has
entered into and delivered a Secured Party Accession Agreement.
“
Secured Party Accession Agreement
”
shall have the meaning set forth in the Accounts Agreement.
“
Security Documents
” shall mean,
collectively, the following documents:
(i) the Debenture;
A-26
(ii) the Accounts Agreement;
(iii) the Onshore Security Agreement;
(iv) each Pledge Agreement;
(v) the Conditional Assignment of Contract;
(vi) the Receivables Fiduciary Assignment Agreement;
(vii) the Mortgage;
(viii) each Consent Agreement relating to each of the Project Documents;
(ix) all filings, recordings or registrations required by this Agreement to be filed or made in respect of any
such Security Document; and
(x) each other deed, document, agreement or instrument which the Borrower and
the Facility Agent agree to designate as a “Security Document”.
“
Security Interests
” shall
mean the Liens on the Collateral or any other collateral purported to be granted to the Collateral Agent for the benefit of one or more of the Secured Parties (or any trustee,
sub-agent
or other Person acting
for or on behalf thereof).
“
Services Agreement
” shall mean that certain Services Agreement (
Contrato
de Prestação de Serviços
) No. 0870.0092727.14.2, dated May 15, 2015 by and among the Operator, Petrobras acting as the leader and the operator of the Consortium, as parties, and the Borrower as intervening party,
as supplemented by that certain letter to be executed by an Authorized Officer of Petrobras and addressed to the Borrower and the Operator, and acknowledged and agreed to by the OOG Sponsor and Teekay Offshore Holdings LLC as intervening parties,
with respect to certain clarifications under the Services Agreement.
“
Shareholders
” shall mean the OOG
Shareholder and the Teekay Shareholder.
“
Shipyard Delivery Date
” shall mean the date of delivery of the
FPSO to the Borrower in Singapore pursuant to and in accordance with the EPC Contract.
“
Shipyard Delivery Date
Loans
” shall mean the Loans made, or to be made, to finance the installment of the Contract Price falling due on the Shipyard Delivery Date.
“
Specialized Oil Industry Services Agreement
” shall mean the Specialized Oil Industry Services Agreement to
be entered into between the Borrower and
OOG-TKP
Oil Services Ltd., substantially in the form of
Exhibit D-3
.
“
Specifications
” shall have the meaning set forth in the EPC Contract.
“
Sponsor Affiliate
” means each Sponsor, each of its Affiliates, any trust of which such Sponsor or any of its
Affiliates is a trustee, any partnership of which such Sponsor or any of its Affiliates is a partner and any trust, fund or other entity which is managed by, or is under the control of, such Sponsor or any of its Affiliates
provided
that any
such trust, fund or other entity which has been established for at least six (6) months solely for the purpose of making, purchasing or investing in loans or debt securities and which is managed or controlled independently from all other
trusts, funds or other entities managed or controlled by such Sponsor or any of its Affiliates which have been established for the primary or main purpose of investing in the share capital of companies shall not constitute a Sponsor Affiliate.
A-27
“
Sponsor Cross-Default Event
” shall mean (i) the OOG
Sponsor shall default in the payment when due of any principal of or interest on any of its other Indebtedness in the amount of at least $50,000,000 beyond any grace period specified therein; (ii) any event specified in any note, agreement,
indenture or other document evidencing or relating to any such other Indebtedness of the OOG Sponsor in the amount of at least $50,000,000 shall occur and continue if the effect of the occurrence and continuance of such event is to cause or to
permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause such Indebtedness to become due, or to be prepaid in full (whether by redemption, purchase, offer to purchase or otherwise), prior
to its stated maturity; (iii) the Teekay Sponsor shall default in the payment when due of any principal of or interest on any of its other Indebtedness in the amount of at least $100,000,000 beyond any grace period specified therein;
(iv) any event specified in any note, agreement, indenture or other document evidencing or relating to any such other Indebtedness of the Teekay Sponsor in the amount of at least $100,000,000 shall occur and continue if the effect of the
occurrence and continuance of such event is to cause or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause such Indebtedness to become due, or to be prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise), prior to its stated maturity; (v) a final judgment or judgments for the payment of money against the Teekay Sponsor in excess of $100,000,000 for any one judgment or against the OOG Sponsor
in excess of $50,000,000 for any one judgment, shall be rendered by one or more courts, administrative tribunals or other bodies having jurisdiction, and the same shall not be discharged (or provision satisfactory to the Majority Lenders shall not
be made for such discharge), or a stay of execution thereof shall not be procured, within sixty (60) days from the date of entry thereof and such Sponsor shall not, within said period of sixty (60) days, or such longer period during which
execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal; or (vi) any
non-monetary
judgment or order shall be rendered against any
Sponsor that has had or could reasonably be expected to have a Material Adverse Effect, and a stay of execution thereof shall not have been obtained within sixty (60) days from the date of entry thereof (or, in the case of any such judgment or
order rendered by one or more courts, administrative tribunals or other bodies of Brazil, ninety (90) or more days).
“
Sponsors
” shall mean, collectively, the OOG Sponsor and the Teekay Sponsor.
“
Standard & Poor’s
” shall mean Standard & Poor’s Ratings Services, a division of
The
McGraw-Hill
Companies, Inc.
“
Subordinated Loans
” shall have
the meaning provided in the Equity Support Deed.
“
Subordination Agreements
” shall mean any subordination
agreement entered into from time to time with any Person providing Subordinated Loans to the Borrower during the term of this Agreement on terms and conditions satisfactory to the Lenders.
“
Subsidiary
” shall mean, for any Person, any corporation, partnership or other entity of which at least a
majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership or other entity shall have or might have voting power by reason of the happening of any contingency)
is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.
“
Supplier
” shall have the meaning provided in
Section 2.7(f)
.
“
Taking
” shall mean any circumstance or event, or series of circumstances or events (including an
Expropriation Event), in consequence of which the FPSO or any material portion thereof shall be condemned, nationalized, seized, compulsorily acquired or otherwise expropriated by any Governmental Authority under power of eminent domain or
otherwise.
A-28
“
Tax Refund
” shall have the meaning provided in
Section 2.7(b))
.
“
Taxes
” shall have the meaning provided in
Section 2.7(a)
.
“
Technical Advisor
” shall mean Okeanos B.V. or any other Person from time to time appointed by the Facility
Agent to act as Technical Advisor for the purposes of this Agreement.
“
Technical Advisor Completion
Certificate
” shall mean a certificate, substantially in the form of
Exhibit C-2
, dated the Project Completion Date, duly completed and signed by an Authorized Officer of the Technical
Advisor.
“
Technical Advisor Report
” shall mean, in respect of any Disbursement relating to any
Construction Milestone payment under the EPC Contract, a construction progress and (if applicable) site visit report from the Technical Advisor.
“
Teekay Compliance Letter
” means the letter dated January 13, 2015 from Teekay Offshore Holdings LLC to
Petrobras relating to compliance with,
inter alia
, the Brazilian
Anti-Corruption
Act 12,846, and to certain other matters specified therein.
“
Teekay Shareholder
” shall mean Teekay Offshore European Holdings Coöperatief U.A., a cooperative
organized under the laws of The Netherlands.
“
Teekay Singapore Secondment Agreement
” shall mean the
Secondment Agreement between the Borrower and Teekay Shipping (Singapore) Pte. Ltd., substantially in the form attached as
Exhibit D-4
.
“
Teekay Sponsor
” shall mean Teekay Offshore Partners LP, a limited partnership incorporated and existing
under the laws of the Marshall Islands.
“
Total Commitment
” shall mean the aggregate amount of the
Commitments of all the Lenders.
“
Transaction Documents
” shall mean, collectively, the Project Documents
and the Financing Documents.
“
Transfer
” shall have the meaning provided in
Section 5.31
.
“
Transfer Certificate
” shall have the meaning provided in
Section 9.13(a)
.
“
United States
” and “
U.S.
” shall each mean the United States of America.
“
Unutilized Commitment
” shall mean, for each Lender, at any time, the Commitment of such Lender at such time
less the aggregate outstanding principal amount of all Loans made by such Lender.
“
U.S. GAAP
” shall
mean generally accepted accounting principles and practices as in effect from time to time in the United States.
“
VAT
” shall mean (a) any tax imposed by EC Directive 2006/112/EC or the common system of value added tax
and any national legislation implementing that Directive, together with legislation supplemental thereto; (b) any other tax of a similar fiscal nature, whether imposed in a member state of the European Union in substitution for or in addition
to such tax, or imposed elsewhere and (c) all penalties, costs and interests relating to any of them.
A-29
“
Vessel
” shall mean the vessel “Navion Norvegia” to be
converted into the FPSO pursuant to the EPC Contract.
“
Vessel Loss Event
” shall mean, in the reasonable
opinion of the Borrower, a material part of the Vessel shall be destroyed or suffer an actual or constructive total loss and, as a result thereof, the Vessel shall be unable to operate for a period in excess of the period during which all Operation
and Maintenance Expenses and Debt Service shall be fully covered by business interruption insurance (except for the period corresponding to the deductible thereunder), funds standing to the credit of the Offshore O&M Service Reserve Account, the
Offshore Debt Service Reserve Account, and the proceeds of Permitted Capital Contributions previously paid or committed (on terms satisfactory to the Facility Agent, acting reasonably) to be paid by the Sponsors.
“
Vessel Purchase Agreement
” means the Memorandum of Agreement dated October 10, 2014 between
Partrederiet Teekay Shipping Partners DA and the Borrower for the purchase of the Vessel.
“
Withholding
Agent
” means the Borrower and the Facility Agent.
“
Work
” shall mean the work to be performed by
the Construction Contractors under the Construction Contracts.
2.
Rules of Interpretation
. In each
Financing Document, unless otherwise indicated:
(a) each reference to, and the definition of, any document
(including any Financing Document) shall be deemed to refer to such document as it may be amended, supplemented, revised or modified from time to time in accordance with its terms and, to the extent applicable, the terms of the other Financing
Documents;
(b) each reference to a Law or Governmental Approval shall be deemed to refer to such Law or
Governmental Approval as the same may be amended, supplemented or otherwise modified from time to time;
(c) any reference to a Person in any capacity includes a reference to its permitted successors and assigns in
such capacity and, in the case of any Governmental Authority, any Person succeeding to any of its functions and capacities;
(d) references to days shall refer to calendar days unless Business Days are specified; references to weeks,
months or years shall be to calendar weeks, months or years, respectively;
(e) all references to a
“Section,” “Appendix,” “Annex,” “Schedule” or “Exhibit” are to a Section of such Financing Document or to an Appendix, Annex, Schedule or Exhibit attached thereto;
(f) the table of contents and Section headings and other captions therein are for the purpose of reference only
and do not affect the interpretation of such Financing Document;
(g) defined terms in the singular shall
include the plural and vice versa, and the masculine, feminine or neuter gender shall include all genders;
(h) the words “hereof”, “herein” and “hereunder”, and words of similar import,
when used in any Financing Document, shall refer to such Financing Document as a whole and not to any particular provision of such Financing Document;
(i) the words “include,” “includes” and “including” are deemed to be followed by
the phrase “without limitation”;
A-30
(j) where the terms of any Financing Document require that the
approval, opinion, consent or other input of any Secured Party be obtained, such requirement shall be deemed satisfied only where the requisite approval, opinion, consent or other input is given by or on behalf of such Secured Party in writing;
(k) where the terms of any Financing Document require or permit any action to be taken by any Secured Party,
such action shall be taken strictly in accordance with the applicable provisions of such Financing Document;
(l) the words “acting as such” when used in reference to a director, officer, employee, agent or
representative of a Person shall include actions for which such director, officer, employee, agent or representative purports to have authority from such Person, regardless of whether such Person has provided such authority; and
(m) any reference to a document shall be deemed to include all exhibits, annexes, appendices and schedules
thereto.
A-31
APPENDIX B
to
Credit Agreement
REPAYMENT SCHEDULE
Part 1.
Scheduled
Principal Payments
.
*
|
|
|
|
|
|
|
|
|
Scheduled Principal
Payment no.
|
|
|
|
Amortization (%)
|
|
|
1
|
|
|
|
|
11.32
|
%
|
|
2
|
|
|
|
|
1.82
|
%
|
|
3
|
|
|
|
|
1.82
|
%
|
|
4
|
|
|
|
|
1.82
|
%
|
|
5
|
|
|
|
|
1.82
|
%
|
|
6
|
|
|
|
|
1.82
|
%
|
|
7
|
|
|
|
|
1.82
|
%
|
|
8
|
|
|
|
|
1.82
|
%
|
|
9
|
|
|
|
|
1.82
|
%
|
|
10
|
|
|
|
|
1.82
|
%
|
|
11
|
|
|
|
|
1.82
|
%
|
|
12
|
|
|
|
|
1.82
|
%
|
|
13
|
|
|
|
|
1.82
|
%
|
|
14
|
|
|
|
|
1.82
|
%
|
|
15
|
|
|
|
|
1.82
|
%
|
|
16
|
|
|
|
|
1.82
|
%
|
|
17
|
|
|
|
|
1.82
|
%
|
|
18
|
|
|
|
|
1.82
|
%
|
|
19
|
|
|
|
|
1.82
|
%
|
|
20
|
|
|
|
|
1.82
|
%
|
|
21
|
|
|
|
|
1.82
|
%
|
|
22
|
|
|
|
|
1.82
|
%
|
|
23
|
|
|
|
|
1.82
|
%
|
|
24
|
|
|
|
|
1.82
|
%
|
|
25
|
|
|
|
|
1.82
|
%
|
|
26
|
|
|
|
|
1.82
|
%
|
|
27
|
|
|
|
|
1.82
|
%
|
B-1
|
|
|
|
|
|
|
|
|
Scheduled Principal
Payment no.
|
|
|
|
Amortization (%)
|
|
|
28
|
|
|
|
|
1.82
|
%
|
|
29
|
|
|
|
|
1.72
|
%
|
|
30
|
|
|
|
|
1.62
|
%
|
|
31
|
|
|
|
|
1.62
|
%
|
|
32
|
|
|
|
|
1.62
|
%
|
|
33
|
|
|
|
|
1.62
|
%
|
|
34
|
|
|
|
|
1.62
|
%
|
|
35
|
|
|
|
|
1.62
|
%
|
|
36
|
|
|
|
|
1.62
|
%
|
|
37
|
|
|
|
|
1.62
|
%
|
|
38
|
|
|
|
|
1.62
|
%
|
|
39
|
|
|
|
|
1.62
|
%
|
|
40
|
|
|
|
|
1.62
|
%
|
|
Balloon amount
|
|
|
|
|
20.00
|
%
|
|
*
|
For the avoidance of doubt, in the event that the Maturity Date is determined (pursuant to the definition of “Maturity Date” in Appendix
A) on the basis of an Early Termination Date, any Scheduled Principal Payments shown above that would otherwise be due after such Maturity Date, including the Balloon Amount, shall be due on such Maturity Date.
|
Part 2.
Deferral Amount Cash Sweep
The principal amortizations set forth in Part 1 of this
Appendix B
(the “
Principal Amortizations
”)
shall be subject to adjustment as provided in this Part 2. The amount of the first Principal Amortization shall be subject to reduction and deferral as follows: In the event that as of the third
(3
rd
) Business Day prior to the due date for such Principal Amortization, amounts available in the Offshore Proceeds Account (including without limitation any Mobilization and Mooring
Payment) and any other payments made under the Charter Agreement and/or the Services Agreement and the proceeds of any Contingent Equity Contributions (as defined in the Equity Support Deed) are insufficient to pay (in accordance with the Accounts
Agreement) such Principal Amortization in full (such deficiency, the “
Deferral Amount
”), then upon written notice by the Borrower to the Facility Agent delivered no later than such Business Day:
(i) The first Principal Amortization shall automatically and without any further action be reduced by the Deferral Amount. The
Deferral Amount shall be added to the second Principal Amortization, and as necessary to subsequent Principal Amortizations in accordance with paragraph (ii) below, until the Deferral Amount and any related breakage costs and termination costs
in connection with the deferral of the Deferral Amount and its payment and any corresponding adjustment in whole or in part of the Required Hedging Agreements (the Deferral Amount and such other amounts, “
Deferral Payment Amounts
”)
are paid in full;
B-2
(ii) Commencing on the date of the second Principal Amortization until the
payment in full of the Deferral Payment Amounts (the “
Deferral Amount Cash Sweep Period
”) all funds available at the priority set forth in Section 6.3(a)(ii) of the Accounts Agreement (the “
Debt Service
Priority
”) shall, following payment of all amounts due at such item other than the Deferral Payment Amounts, be applied to the payment of the Deferral Payment Amounts; and
(iii) To the extent that, on the Principal Payment Date for the second Principal Amortization, funds available at the Debt
Service Priority are insufficient to pay in full the Deferral Payment Amounts in accordance with paragraph (ii) above, any remaining unpaid Deferral Payment Amounts shall be deferred to the Principal Payment Date for the next scheduled
Principal Amortization and paid in accordance with paragraph (ii) above. On such date and on each subsequent Principal Payment Date, any Deferral Payment Amounts remaining unpaid as a result of insufficiencies at the Debt Service Priority shall
be further deferred to and paid on the next subsequent Principal Payment Date until the Deferral Payment Amounts are paid in full in accordance with paragraph (ii) above. For the avoidance of doubt, (x) any Deferral Payment Amounts
remaining unpaid as of the Maturity Date shall be due and payable on the Maturity Date and not subject to any further deferral and (y) any unpaid Deferral Payment Amounts shall be immediately due and payable in the event of any acceleration of
the Loans.
B-3
Appendix C
to
Credit Agreement
INSURANCE PROVISIONS
A:
To be procured by the Borrower
|
|
|
|
|
Construction Phase
|
|
|
|
|
|
|
Principal Assured:
|
|
The Borrower and Owner
|
|
|
|
|
|
|
As required by contract
|
|
Others Assureds:
|
|
Each for their respective rights and interests.
|
|
|
|
|
Period of Insurance:
|
|
From the first Disbursement Date until first oil or acceptance by Owner and/or start of operational risks insurance.
|
|
|
|
|
Scope of Cover:
|
|
Construction All Risks policy covering “All risks” of physical loss or damage, including machinery damage, and war risks, from any cause not
otherwise excluded.
|
|
|
|
|
Insured Property:
|
|
The suexmax shuttle tanker to be converted/FPSO and including all materials, equipment, machinery etc to be fitted into, or form part of the FPSO once
completed.
|
|
|
|
|
Sum Insured:
|
|
Full replacement cost, amount not less than 120% of the Loans, subject always so that the Construction All Risk sums insured is greater than or equal to the
outstanding Loans.
|
|
|
|
|
Geographical Limits:
|
|
Worldwide, or as required to complete the EPC Contract.
|
|
|
|
|
Operational Phase
|
|
|
|
|
|
|
Principal Assured:
|
|
The Borrower and Owner
|
|
|
|
|
Other Assureds:
|
|
Petrobras
|
|
|
|
Each for their respective rights and interests
|
|
|
|
|
Period of Insurance:
|
|
From first oil and/or Commercial Operation Date until repayment in full of the Loans due under this Agreement.
|
|
|
|
|
Scope of Cover:
|
|
1) Hull & Machinery/Increased Value/War Risks policy(s) covering “All risks” of physical loss or damage, including machinery damage, and war
Protection and Indemnity, from any cause not otherwise excluded.
|
|
|
|
|
|
|
2) Loss of Hire/Business Interruption insurance to respond in the event of physical loss or physical damage to the FPSO covered under the Hull &
Machinery policy. Minimum indemnity period 180 days with maximum waiting period of 90 days.
|
|
|
|
|
|
|
|
|
Insured Property:
|
|
The FPSO
|
|
|
|
|
Sum Insured:
|
|
1) Market Value of the FPSO or 120% of the Loans, whichever is greater, subject always so that the Hull and Machinery sum insured is always greater than, or
equal to, the outstanding Loans in the aggregate.
|
|
|
|
|
|
|
2) Not less than the US Dollar amount per day in an amount sufficient to cover one Debt Service plus Operation and Maintenance Expenses for 180
days.
|
|
|
|
|
Geographical Limits:
|
|
Worldwide, subject to any mandatory limitations, or as may be further limited provided limits are sufficient to meet the needs of the operating contracts,
including any removal from site for maintenance/repairs.
|
|
|
|
Liability Insurance (for both Construction Phase and Operational Phase)
|
|
|
|
|
Principal Assured:
|
|
The Borrower and Owner
|
|
|
|
|
Period of Cover:
|
|
Concurrent with the Construction “All Risks” policy
|
|
|
|
|
Minimum Cover:
|
|
General Liability Insurance in an amount not less than USD 25,000,000, to respond in respect of sums which the Assured becomes legally or contractually
liable to pay in respect of liability to third parties arising out of Construction Phase activities anywhere in the world and professional costs and expenses incurred in dealing with any claim related to liabilities indemnified by the policy, it
being agreed that this policy may include provision for the protection and indemnity insurance to be primary to this coverage if and when applicable.
|
|
|
|
Protection and Indemnity
|
|
|
|
|
Insured Parties:
|
|
The Borrower and Owner
|
|
|
|
|
Period of insurance:
|
|
From the time the FPSO leaves the Shipyard until repayment in full of all moneys under this Agreement.
|
|
|
|
|
Scope of Cover:
|
|
Indemnity against the Insured Parties’ legal liability to third parties for death, bodily injury or damage to property arising out of the operation of
the FPSO including pollution risks. Comprehensive general liability insurance for mobile offshore units to be included.
|
|
|
|
|
Limit of Liability:
|
|
Not less than USD500,000,000 (subject always to any mandatory sub-limits imposed), with comprehensive general liability extension to a minimum limit of USD
25,000,000 (subject always to any mandatory sub-limits imposed).
|
B: To be procured by the Collateral Agent (on behalf of the Lenders)
|
|
|
|
|
|
|
Mortgagees’ Interest Insurance
|
|
|
|
|
Insured Parties:
|
|
The Collateral Agent as Mortgagee
|
|
|
|
|
Period of Insurance:
|
|
From the first Disbursement Date until repayment in full of all monies under this Agreement.
|
|
|
|
|
Scope of Cover:
|
|
Indemnity for loss resulting from loss or damage to or liability arising out of the operation of the FPSO in the event of avoidance of liability under the policies in respect of Hull and Machinery / Increased Value / War Risks
and/or Protection and Indemnity.
|
|
|
|
|
Limit of Liability:
|
|
120% of the aggregate amounts of any outstanding Loans as per the Agreement
|
|
|
|
Mortgagees’ Additional Perils Insurance
|
|
|
|
|
Insured Parties:
|
|
The Collateral Agent as Mortgagee
|
|
|
|
|
Period of Insurance:
|
|
From arrival at deployment location until repayment in full of all monies under this Agreement.
|
|
|
|
|
Scope of Cover:
|
|
Indemnity for loss resulting from seizure of the FPSO or the total loss proceeds under court order following an oil spill for which the FPSO is held responsible and for which the limit of liability provided by the protection and
indemnity is insufficient.
|
|
|
|
|
Limit of Liability:
|
|
120% of the aggregate amounts of any outstanding Loans as per the Agreement
|
C: Lenders Interest Endorsements
All policies of insurance required to be maintained by the Borrower pursuant to Section 5.9 of the Agreement shall contain the substance
of the following provisions:
The Insurers will acknowledge by endorsement of the executed Notice of Assignment, or such other manner acceptable to the
Facility Agent, that pursuant to (i) the Agreement and (ii) other documents executed in connection therewith, the Borrower assigned absolutely to the Collateral Agent, all its rights, title and interest in and to the insurance and all
benefits thereof including all claims of whatsoever nature thereunder.
|
|
(a)
|
In respect of the construction all risks or hull & machinery/increased value /war risks allied perils insurance, all claim payments shall
be payable to the Collateral Agent for deposit into the Offshore Loss Proceeds and Compensation Account.
|
|
|
(b)
|
In respect of protection and indemnity insurance or liability insurance, all claim payments shall be paid directly to the person to who has
incurred the liability to which such claim relates or to the Collateral Agent for deposit into the Offshore Proceeds Account to the extent of amounts expended by the Borrower to discharge such liability.
|
D. Insurance Broker’s Letter of Undertaking
[Date]
NAME AND ADDRESS OF BANK
DATE
VESSEL:
OWNERS:
We confirm that
|
(1)
|
we have placed Insurances as set out in Appendix “A” attached (“the Insurances”),
|
|
(2)
|
the Insurances include the Loss Payable Clause(s) set out in Appendix “B” attached, and
|
|
(3)
|
the Notice of Assignment in the form of Appendix “C” attached has been acknowledged by Underwriters in accordance with Market practice.
|
Pursuant to instructions received from or on behalf of the above Owners and in consideration of your approving us as
the appointed Brokers for the Insurances, we undertake:-
|
|
(a)
|
the Insurance Slips or Contracts, and
|
|
|
(b)
|
the Policies if and when issued, and
|
|
|
(c)
|
until the time of the issue of any new or replacement letter of undertaking, any renewals of such Contracts or Policies or any Contracts or
Policies substituted therefor with your consent as may be arranged through ourselves, and
|
|
|
(d)
|
the benefit of the Insurances thereunder to your order in accordance with the terms of the said Loss Payable Clause(s); and
|
|
2.
|
to arrange for the said Loss Payable Clause(s) to be included on the Contracts or Policies if and when issued; and
|
|
3.
|
to have endorsed on each and every Contract or Policy as and when the same is issued a copy of the said Notice of Assignment; and
|
|
4.
|
to advise you promptly if we cease to be the Broker for the Insurances or in the event of any material changes which we are aware have been made to
the Insurances; and
|
|
5.
|
following a written application received from you not later than one month before expiry of the Insurances to notify you within fourteen days of
the receipt of such application in the event of our not having received notice of renewal instructions from or on behalf of the Owners, and in the event of our receiving instructions to renew to advise you promptly of the details thereof; and
|
|
6.
|
to forward to you promptly any notices of cancellation that we receive from our Underwriters in accordance with the terms of the Insurances; and
|
|
7.
|
following a written application from you to advise you promptly of the premium payment situation where such premium is paid or payable through our
intermediary.
|
If and where we are responsible for the payment of premium to Underwriters, our above undertakings are
given subject to our lien on the Contracts or Policies for premiums and subject to our right of cancellation on default in payment of such premiums but we undertake not to exercise such rights of cancellation without giving you ten days’ notice
in writing either by letter or electronically transmitted message and a reasonable opportunity for you to pay any premiums outstanding.
Our undertakings are also given subject to our lien on the Contracts or Policies for any unpaid Broker remuneration.
It is understood and agreed that the operation of any Automatic Termination of Cover, Cancellation or Amendment Provisions contained in the
Contract or Policy conditions shall override any Undertakings given by us as Brokers.
Notwithstanding anything to the contrary contained
herein or in any prior letter of undertaking or in any Loss Payable Clause or in any Notice of Assignment,
|
(A)
|
the provisions of this letter of undertaking shall only apply to the Insurances and until the time of the issue of any new or replacement letter of
undertaking, to any renewals thereof placed by ourselves, and
|
|
(B)
|
the undertakings given above shall be the limit of our obligations to you.
|
We DO NOT accept any actual or constructive notice of any interest you may claim in any other Insurance effected on the Vessels referred to in
the said Appendix ‘A’ UNLESS AND UNTIL you give us specific notice of that interest in the particular Insurance and such notice is confirmed by the Owner.
Notwithstanding the terms of the said Loss Payable Clause(s) and the said Notice of Assignment, unless and until we receive written notice
from you to the contrary, we shall be empowered
|
(i)
|
to pay all returns of premium to the Assured on the Insurance(s) or its order;
|
|
(ii)
|
to arrange for a collision and/or salvage guarantee to be given in the event of bail being required in order to prevent the arrest of the vessel or
to secure the release of the vessel from arrest following a casualty. Where a guarantee has been given as aforesaid and the guarantor has paid any sum under the guarantee in respect of such claim, there shall be payable directly to the guarantor out
of the proceeds of the said Policies a sum equal to the sum so paid.
|
These undertakings shall terminate automatically if the addressee of this letter ceases to have
any interest in the Insurances.
These undertakings are subject to all claims and returns of premiums being collected through us as
Brokers and to our continued appointment as Broker for the Insurances.
This letter does not confer any benefits on any third parties. No
third party may enforce any term of this letter. The Contracts (Rights of Third Parties) Act 1999 is hereby expressly excluded.
This
letter shall be governed by and construed in accordance with English law and any disputes arising out of or in any way connected with this letter shall be submitted to the exclusive jurisdiction of the English courts.
In addition, should the Vessel be insured as part of a fleet of Vessels, we also undertake that our lien on the fleet policies for premiums
shall be confined to the outstanding premiums due on this Vessel only. We further undertake that we shall neither set off against any claims in respect of the Vessel any premiums due in respect of other vessels under the fleet cover or any premiums
due for other insurances, nor cancel the insurance for reason of non-payment of premiums for other vessels under the fleet cover or of premiums for such other insurance and will, if you so require, issue a separate policy in respect of the Vessel.
Yours faithfully
E. P&I Insurance Letter of Undertaking
[Date]
NAME AND ADDRESS OF BANK
DATE
Dear Sirs,
P&I INSURANCE – ………….– IMO
We are pleased to confirm that the above mentioned vessel is entered in
[ ]
(the “
Association
”) for Protection & Indemnity Risk Insurance.
The Association undertakes, pursuant to instructions received from the Owners, to hold any benefits accruing under the Policy to the order of
yourselves in accordance with the terms of the Loss Payable Clause set out below.
LOSS PAYABLE CLAUSE:
“It is noted that is interested as 1
st
and 2
nd
preferred mortgagee in the vessel and that by an assignment in writing all benefits under the Policy has been assigned to the Mortgagee. Claims payable hereunder shall be payable to the Owners or to
their order, until such time as notice in writing is received from the Mortgagee that the Owners are in default under the above mentioned Mortgage. All recoveries thereafter shall be payable to the Mortgagee, or to its order, provided always that
the insurer is free to make payments in discharge of any guarantees issued in favour of third parties and further to make payments directly to a third party in discharge of a claim against the Owner and/or the Association.
The Mortgagee’s rights against the insurer shall not exceed the rights of the Owner under their Policy of Insurance.”
The above undertakings are given subject to the Association’s lien for calls or premiums and subject to the Association’s right of
cancellation in default of payment of any calls or premiums. However, the Association undertakes not to exercise such rights without giving you fourteen (14) days’ notice in writing of its intention to do so. Furthermore, such rights will
not be exercised if, within such time, any balance of calls or premiums is paid to the Association.
…/2
The Association also undertakes to notify you promptly if the vessel ceases or will cease to be
entered in the Association or if instructions have not been received for the renewal of the entry thereof.
If you want a copy of the
Certificate of Entry, please contact the Member directly.
Yours faithfully,
[ ]
[P&I Club]
Underwriter
Schedule 4.2
to
Credit Agreement
FINANCING-RELATED FILINGS, ETC.
|
|
|
|
|
Type of Authorization, Consent Approval,
Notice or Filing
|
|
Governmental Authority or other Person
|
|
Registration of the Conditional Assignment of Contract
|
|
Registry of Titles and Deeds (
Cartório de Registro
de Títulos e Documentos
), City of Rio de Janeiro, State of Rio de Janeiro, Brazil
|
|
|
|
|
Registration of the Onshore Security Agreement
|
|
Registry of Titles and Deeds (
Cartório de Registro
de Títulos e Documentos
), City of Rio de Janeiro, State of Rio de Janeiro, Brazil
|
|
|
|
|
Registration of the Receivables Fiduciary Assignment Agreement
|
|
Registry of Titles and Deeds (
Cartório de Registro
de Títulos e Documentos
), City of Rio de Janeiro, State of Rio de Janeiro, Brazil
|
|
|
|
|
Registration of the Brazilian Share Pledge Agreement
|
|
Registry of Titles and Deeds (
Cartório de Registro
de Títulos e Documentos
), City of Rio de Janeiro, State of Rio de Janeiro, Brazil
|
|
|
|
|
Consent Agreement related to Petrobras (i.e., “
Termo de Autorização
” and Authorization for Assignment of the Credit Rights entered into or to be entered into among the Borrower, the Operator and
Petrobras)
|
|
Petrobras
|
|
|
|
|
Notification of pledge pursuant to the Austrian Share Pledge
|
|
General Partner
|
|
|
|
|
Notification of pledge pursuant to the Austrian Partnership Interest Pledge
|
|
Borrower
|
Schedule 4.3
to
Credit Agreement
CAPITALIZATION
|
|
|
|
|
|
|
|
|
|
|
Holder
|
|
Interest
|
|
|
Amount
|
|
|
OOG Tiro & Sidon GmbH
|
|
|
50
|
%
|
|
US$
|
100,463,973.37
|
|
|
Teekay Offshore European Holdings Coöperatief U.A.
|
|
|
50
|
%
|
|
US$
|
100,463,973.37
|
|
Schedule 4.6
to
Credit Agreement
NECESSARY GOVERNMENTAL APPROVALS
Part A – Necessary Governmental Approvals required to be delivered after the Effective Date and on or before the Closing Date
|
(i)
|
All approvals required in connection with compliance with the Equator Principles.
|
Part B – Necessary Governmental Approvals required after the Closing Date and on or before the Commercial Operation Date
|
(i)
|
Registration of the Borrower before the CADEMP (
Cadastro
de Empresas da Área do DECEC)
of the Brazilian Central Bank
(“
Central
Bank”);
|
|
(ii)
|
All approvals and registrations in connection with the REPETRO regime (
Regime Aduaneiro Especial de Exportação e
Importação de Bens Destinados às Atividades de Pesquisa e de Lavra das Jazidas de Petróleo e de Gás Natural
), including:
|
|
|
a.
|
Registration with the Federal Tax Authority (
habilitação pela Secretaria da Receita
Federal do Brasil (SRFB)
);
|
|
|
b.
|
Registration of the Import Declaration of the FPSO on the SISCOMEX (
Declaração
de
Importação formulada
no Sistema Integrado de Comércio Exterior (Siscomex)
);
|
|
|
c.
|
Concession of the temporary admission regime with respect to the FPSO (
Deferimento
do
Requerimento de Admissão
Temporária (RAT)
); and
|
|
|
d.
|
Temporary enrollment certificate issued by the Brazilian naval authority (
Atestado
de Inscrição Temporária (AIT)
emitido
pela Capitania dos Portos
);
|
|
(iii)
|
The registration of the FPSO with Brazilian naval and air authorities (
Diretoria
de
Portos e Costas, Diretoria de
Aeronáutica da Marinha, Agência Nacional de Aviação Civil—ANAC and Tribunal Marítimo
);
|
|
(iv)
|
Clearances relating to inspections by workers’ safety authorities;
|
|
(v)
|
The timely electronic registration of the financial terms and conditions of the Charter Agreement with the Central Bank’s electronic registry
of financial transactions (
Registro
de Operações Financeiras – ROF
)
(“
Central Bank Registration”)
and filing under the Central Bank Registration of a schedule of payments (
esquema
de
pagamentos)
due under the Charter Agreement, which shall be made before the registration of the Import Declaration of the FPSO on the Siscomex; and
|
|
(vi)
|
Any other governmental approval required under the Charter Agreement and the Services Agreement.
|
Schedule 5.20
to
Credit Agreement
CONSTRUCTION MILESTONES
A. Milestones under
the OFE Supply Contracts as a condition to payment to an OFE Supplier
|
–
|
Raw material purchase order
|
|
–
|
Classification Society release note or certificate covering 50% of the chains
|
|
–
|
Classification Society release note or certificate covering 50% of the chains (second)
|
B.
Milestones under the EPC Contract
|
|
|
|
|
MS No.
|
|
Description
|
|
|
|
|
1
|
|
–
Contract Award to Yard
–
Signature of EPC Contract and first issue of the Contract Master
–
Schedule (Level 1) and Contractors Level 3 Execution Plan in native format to
Company
|
|
|
|
|
2
|
|
GE Package:
–
(Gas Compression Package, Main Power generation Package as skid mounted sets,
enclosures and ancillaries automation equipment, E House)
LMCPackage:
–
Turret package (including swivel)
|
|
|
|
|
3
|
|
–
Issue PO for Dehydration Package, CO2 removal package,
Deck Cranes
–
Issue PO for First 50% of Steel Plate
–
Issue PO to Module Fabricator
–
Issue PO for First 50% of Piping Material
–
Issue Module Layouts
–
Issue MDR for Project
|
|
|
|
|
4
|
|
–
Issue Topside P&IDs
–
Issue Marine System P&IDs
–
Controls architecture block diagrams
–
Telecommunications block diagrams
–
Issue Detail Structural Drawings up to 5000 tons
–
Issue single line diagram issued Approved For Design (AFD) by Contractor and
approved by Certifying Authority as demonstrated by letter of acceptance from the Certifying Authority for each item noted within this Milestone.
|
|
|
|
|
|
|
|
|
5
|
|
– Completion of detailed Structural AFC Drawings
–
Commencement of all Module fabrication
–
Completion of 1st Dry Docking
–
Complete Structural Works for Accommodation Modification
–
Placement of orders for all tagged equipment. All Purchase Orders or
Contracts under this milestone shall be confirmed to Company, by forwarding of full copies, including all supporting information, of un-priced, signed and acknowledged (by the Supplier) purchase orders (POs) and or Contracts placed by Contractor
with each approved Supplier.
–
Supplier P&IDs, outline
dimension drawings and interface data received for all tagged equipment items. Instrument index covering all P&ID instrumentation, framing plans, piping G&As and electrical block diagrams issued Approved for Construction (AFC) by
Contractor.
|
|
|
|
|
6
|
|
–
First issue of Contractors Completion Management System
(CMS), in native format, to Company for Mechanical Completion System and pre commissioning Management.
–
Completion of Deck crane foundation and pedestal fabrication.
–
Complete all Modules blasting and painting.
–
Commencement of 2nd Dry Docking.
–
Complete all miscellaneous equipment installation.
|
|
|
|
|
7
|
|
–
Commence Lifting of all Modules
–
Commence Turret Lift
–
Second issue of Contractors Completion Management System (CMS), in native
format, to Company for Mechanical Completion System and pre commissioning Management.
|
|
|
|
|
8
|
|
–
Completion of Module Lifting
–
Accommodation ready for habitation
–
Turret Mechanical Completion achieved - Zero A Punch List Items
–
Hull Conversion Mechanical Completion achieved - Zero A Punch List Items
–
Fabrication and assembly of all PAU’s with equipment,
piping, cables, instruments, etc. completed with Inspection Release Note acceptable to company for all tagged equipment items, and all drawings on the Master Document List AFC
–
Fourth Issue of the updated Contract Master Schedule (Level 1 Plan) and Level
3 Execution Plans in native Format to Company.
–
All (exceptions as
required for load bank testing) electrical cables for the high voltage and medium voltage systems pulled, glanded, terminated and tested.
–
All primary structural connections between PAU’s and FPSO
complete.
|
|
|
|
|
|
|
|
|
9
|
|
– Mechanical Completion (Topside)
–
Mechanical completion of utility systems with no A Punch List items
(excluding Punch list “B” items) completed and mechanical system certificates, system by system, issued and accepted by Company.
–
Mechanical completion of Main Process Systems and any system not covered
under utility systems with no A Punch List items (excluding Punch list “B” items) completed and mechanical system certificates, system by system, issued and accepted by Company.
–
At-shore pre commissioning of all systems completed by Contractor and or
Contractors Suppliers or Sub Contractors and pre-commissioning certificates issued, system by system and accepted by Company.
|
|
|
|
|
10
|
|
–
Ready for Sailway
–
All work including sea trials, inclination testing, sea fastening completed,
and the FPSO ready for sail away with approval of Warranty Surveyor, and Certifying Authority Preliminary Inspection Release Note issued, and work accepted by Company.
|
|
|
|
|
11
|
|
–
As Built documents submission.
|
Exhibit A
to
Credit Agreement
FORM OF NOTICE OF BORROWING
TAKING THIS DOCUMENT OR ANY CERTIFIED COPY HEREOF OR ANY OTHER SIGNED DOCUMENT CONTAINING A WRITTEN CONFIRMATION OF OR REFERENCE TO THE
TRANSACTIONS CONTEMPLATED HEREIN INTO AUSTRIA, OR SENDING ANY EMAIL COMMUNICATION CARRYING AN ELECTRONIC SIGNATURE TO WHICH A PDF-SCAN OF THIS DOCUMENT IS ATTACHED OR WHICH OTHERWISE REFERS TO THE TRANSACTIONS HEREIN TO OR FROM AUSTRIA MAY TRIGGER
THE IMPOSITION OF AUSTRIAN STAMP DUTY.
ACCORDINGLY, KEEP THIS DOCUMENT AS WELL AS ALL CERTIFIED COPIES HEREOF AND ANY OTHER SIGNED
DOCUMENT CONTAINING A REFERENCE TO THE TRANSACTIONS CONTEMPLATED HEREIN OUTSIDE OF AUSTRIA AND AVOID SENDING ANY EMAIL COMMUNICATION CARRYING AN ELECTRONIC SIGNATURE TO WHICH A PDF-SCAN OF THIS DOCUMENT IS ATTACHED OR WHICH OTHERWISE REFERS TO THE
TRANSACTIONS HEREIN TO OR FROM AUSTRIA.
NOTICE OF BORROWING
[Date]
HSBC Bank USA, National
Association,
as Facility Agent for the Lenders
party to the Credit Agreement referred to below
452 Fifth Avenue – 8E6
New
York, New York 10018
Attention: Corporate Trust and Loan Agency
Phone: 212-525-7293
Facsimile:
917-229-6659
Email: ctlany.loanagency@us.hsbc.com
Ladies and Gentlemen:
1. The
undersigned, OOGTK Libra GmbH & Co KG, refers to the Credit Agreement dated as of [●] (as amended from time to time, the “
Credit Agreement
,” the terms defined therein being used herein as therein defined) among the
undersigned, certain lenders party thereto (the “
Lenders
”) and you as Facility Agent and Collateral Agent, and hereby gives you notice, irrevocably, pursuant to Section 3.2(a) of the Credit Agreement, that the undersigned
hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “
Proposed Borrowing
”) as required by Section 3.2(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is [●].
(ii) The aggregate principal amount of the Proposed Borrowing is
$[●].
[(iii) The portion of such Proposed Borrowing constituting an Advance Working Capital
Disbursement under Section 2.3(c) of the Credit Agreement is $[●].]
2. This Notice of Borrowing covers the
payment of [Project Costs which have been paid, or have been incurred and are due and payable]//[Advance Working Capital Expenses which (x) are due and payable or (y) have been or will be incurred and will become due and payable within
sixty (60) days after the Commercial Operation Date]//[(i) Project Costs which are (x) due and payable, (y) have been incurred and will become due and payable within one hundred and twenty (120) days after the end of the
Availability Period (including Accrued Construction Period Interest), or (z) have not yet been incurred but are estimated by the Borrower, in good faith, as necessary to complete any remaining Punch List items, the amount of which cannot be
ascertained as of the date hereof but which is payable within one hundred and twenty (120) days after the end of the Availability Period and (ii) the Petrobras Net Delay LD Amounts, estimated by the Borrower in good faith and in accordance
with the terms of the Charter Agreement, Services Agreement and EPC Contract, and without regard to any claims or potential claims by the Borrower or the Operator for excused delays due to force majeure or other circumstances or events, any possible
claims for set-off, or any other reductions but taking into account any legally binding agreement reached with Petrobras in connection with the Petrobras Delay LD Amounts]
1
.
3. The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of
the Proposed Borrowing both before and after giving effect to the application of the proceeds thereof:
(A)
each of the conditions precedent contained in [Section 3.1 and]
2
Section 3.2 of the Credit Agreement has been fully satisfied;
(B) [all the representations and warranties of the Borrower contained in Section 4 of the Credit Agreement
and all the representations and warranties of each of the Borrower, the Operator, the Sponsors, the General Partner and the Shareholders contained in any other Financing Document to which such Person is a party]
3
//[the Repeating Representations contained in the Credit Agreement and the representations and warranties of each of the Borrower, the Operator, the Sponsors, the General Partner and the Shareholders
contained in any other Financing Document to which such Person is a party which are or are deemed repeated on each Disbursement Date under the terms of such other Financing Documents,]
4
are true
and correct as though made on and as of the date of the Proposed Borrowing (or if expressly stated to have been made as of an earlier date, were true and correct as of such date); and
(C) no Default or Event of Default has occurred and is continuing, or would result from such Proposed Borrowing
or from the application of the proceeds thereof, and no default by the Borrower or, to the best knowledge of the Borrower, any other Person (which default by such other Person could reasonably be expected to have a Material Adverse Effect) under any
of the Transaction Documents has occurred and is continuing.
|
1
|
Select as appropriate in accordance with Section 2.3 of the Credit Agreement.
|
|
2
|
Include in the Notice of Borrowing for the first Disbursement only.
|
|
3
|
Include in the Notice of Borrowing for the first Disbursement only.
|
|
4
|
Include in the Notice of Borrowing for each subsequent Disbursement (other than the first Disbursement).
|
4. The undersigned hereby further certifies as follows:
(A) Set forth on Schedule 1 attached hereto is the following information: (a) the name of each Person to
whom any payment is to be made from the amounts described in paragraph 1 above, (b) an accurate description of the work performed [or to be performed], services rendered or to be rendered, materials, equipment or supplies delivered [or to be
delivered], the Construction Milestones completed [or to be completed]
5
or such other purpose for which each such payment was or is to be made, (c) the aggregate amount of each such payment,
and (d) the proposed date of each such payment.
(B) Attached hereto as Attachment I are copies of all
invoices and payment requests with respect to each item set forth on Schedule 1 and, in the case of any amount set forth on Schedule 1 payable to the EPC Contractor, a true and complete copy of the applicable progress report delivered in accordance
with Section 5.1(f) of the Credit Agreement and payment request submitted to the Borrower by the EPC Contractor (other than, in each case, any such invoices, payment requests and progress reports not yet received but reasonably expected to be
received by the Borrower prior to the Disbursement Date).
(C) The Project Costs for which payment is
requested under this Notice of Borrowing have not been the basis for any prior Notice of Borrowing by the Borrower. [No payment is requested under this Notice of Borrowing for a Construction Milestone not yet completed in accordance with the terms
of the EPC Contract.]
6
Furthermore, the proceeds of all Borrowings as of the date hereof have been applied to pay Project Costs listed on the applicable Notice of Borrowing with respect to which
such amounts were drawn.
|
|
|
|
|
Very truly yours,
|
|
|
|
OOGTK Libra GmbH & Co KG
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
Title:
|
|
5
|
Include in the Notice of Borrowing for the final Disbursement only.
|
|
6
|
May be omitted from the Notice of Borrowing for the final Disbursement only.
|
Schedule 1
to
Exhibit A
(Notice of Borrowing)
|
|
|
|
|
|
|
|
|
Name of Payee
|
|
Purpose
|
|
Amount
of Payment
|
|
Date of
Payment
|
Attachment I
to
Exhibit A
(Notice of Borrowing)
INVOICES
AND EPC CONTRACTOR’S PAYMENT APPLICATION
Exhibit B
to
Credit Agreement
FORM OF TECHNICAL ADVISOR’S CERTIFICATE
TECHNICAL ADVISOR’S CERTIFICATE
Date:
Re: Notice of Borrowing No.
|
To:
|
HSBC Bank USA, National Association,
|
as Facility Agent for the Lenders
party to the Credit Agreement referred to below
452 Fifth Avenue – 8E6
New York, New York 10018
Attention: Corporate Trust and Loan Agency
Phone: 212-525-7293
Facsimile: 917-229-6659 and 212-525-1300
Email: ctlany.loanagency@us.hsbc.com
|
Re:
|
OOGTK Libra GmbH & Co KG
|
[NAME OF TECHNICAL ADVISOR], acting as the “Technical Advisor” under the Credit Agreement defined below, hereby
submits this Certificate in connection with the proposed Disbursement of Loans pursuant to the Credit Agreement.
Except
as otherwise defined herein, capitalized terms used herein shall have the meanings assigned to such terms in the Credit Agreement, dated as of [●], among OOGTK Libra GmbH & Co KG (the “
Borrower
”), the Lenders from
time to time party thereto and HSBC Bank USA, National Association, as Facility Agent and as Collateral Agent (as in effect on the date hereof, the “
Credit Agreement
”).
The Technical Advisor has discussed all matters believed pertinent to this Certificate and the Technical Advisor Report
(enclosed hereto) with the Borrower, the EPC Contractor and/or any other third party as the Technical Advisor has deemed appropriate, and has made such inspections, site visits, reviews, examinations and investigations as the Technical Advisor
believed were reasonably necessary to establish the accuracy of this Certificate and the Technical Advisor Report. On the basis of the foregoing and on the understanding and belief that the Technical Advisor has been provided with true, correct and
complete information from such other parties as to the matters covered by this Certificate and the Technical Advisor Report, the Technical Advisor hereby certifies, in its professional opinion, as of the date hereof, that:
1. The individual executing this Certificate is a duly authorized representative
of the Technical Advisor, authorized to execute and deliver this Certificate on behalf of the Technical Advisor.
2. The
Technical Advisor has performed its review of the Notice of Borrowing referenced above (the “
Notice of Borrowing
”) in a professional manner using sound project management and supervisory principles and procedures and in accordance
with the standards of care practiced by leading consulting engineers in performing similar tasks on like projects. The Technical Advisor represents that it has the required skills and capacity to perform its services in the foregoing manner.
3. The Technical Advisor has received all information it has requested relating to the EPC Contract and any other Transaction
Document and has no reason to believe that any of the information is untrue, incorrect or incomplete.
4. With respect to
the Notice of Borrowing, the Technical Advisor has no reason to believe, except as may be noted below, that any statement made by the Borrower in the Notice of Borrowing is not true.
5. The FPSO is
being built in all material respects in accordance with the Plans and Specifications, the quality of the Work completed to date is in accordance with the EPC Contract, and the Technical Advisor has no reason to believe that the FPSO is being built
in violation in any material respect of any applicable laws, regulations, or Governmental Approvals in effect at the time of performance of the relevant Work, subject to the following:
6. With respect to
the amount requested in the Notice of Borrowing pertaining to any element of the Work performed and/or any Construction Milestone achieved under the EPC Contract, (a) the EPC Contractor has already been paid such amount, or is entitled to
receive such amount as of the date hereof, pursuant to the terms of the EPC Contract, (b) each such element has been completed and/or such Construction Milestone has been achieved and (c) except as noted below, all such Work and each such
Construction Milestone have been satisfactorily completed in all material respects.
|
|
|
|
|
|
|
Element Not Completed
|
|
|
|
Value
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7. The expenditures
contemplated by the Notice of Borrowing set forth below are [or, in the case of the Disbursements to be made on the first Disbursement Date, were] contemplated by the line item of the Capex Budget specified below opposite each such expenditure. Such
payments, when added to other such payments previously authorized, represent the percentage specified below of the aggregate amount of such payments provided for in the Capex Budget.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenditure
|
|
|
|
Line Item
|
|
|
|
Percentage
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
%
|
|
|
8. It is the professional opinion of the undersigned that the Shipyard Delivery Date will occur on or prior to
,
and that the Commercial Operation Date will occur on or prior to October 29, 2017.
9. The Technical Advisor has no reason to believe that the EPC Contractor has failed to perform on a timely basis any
material obligation under the EPC Contract as of the date hereof[, except as may be noted below]. The Technical Advisor has no reason to believe[, except as may be noted below,] that there has occurred an event or there exists a default on the part
of the Borrower or the EPC Contractor under the EPC Contract which would permit any party to terminate the EPC Contract or to suspend such party’s performance thereunder.
[10. The Technical
Advisor confirms that it has reviewed the Borrower’s estimate of the amount required to complete the Punch List items attached to the Notice of Borrowing and believes such estimate is
reasonable.]
1
IN WITNESS WHEREOF, the undersigned has executed this
Certificate on the date first above written.
|
|
|
|
|
[NAME OF TECHNICAL ADVISOR]
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
Title:
|
Enclosed: Technical Advisor Report
|
1
|
Include in the Technical Advisor’s Certificate for the final Disbursement only.
|
Exhibit C-1
to
Credit Agreement
FORM OF BORROWER COMPLETION CERTIFICATE
TAKING THIS DOCUMENT OR ANY CERTIFIED COPY HEREOF OR ANY OTHER SIGNED DOCUMENT CONTAINING A WRITTEN CONFIRMATION OF OR REFERENCE TO THE
TRANSACTIONS CONTEMPLATED HEREIN INTO AUSTRIA, OR SENDING ANY EMAIL COMMUNICATION CARRYING AN ELECTRONIC SIGNATURE TO WHICH A PDF-SCAN OF THIS DOCUMENT IS ATTACHED OR WHICH OTHERWISE REFERS TO THE TRANSACTIONS HEREIN TO OR FROM AUSTRIA MAY TRIGGER
THE IMPOSITION OF AUSTRIAN STAMP DUTY.
ACCORDINGLY, KEEP THIS DOCUMENT AS WELL AS ALL CERTIFIED COPIES HEREOF AND ANY OTHER SIGNED
DOCUMENT CONTAINING A REFERENCE TO THE TRANSACTIONS CONTEMPLATED HEREIN OUTSIDE OF AUSTRIA AND AVOID SENDING ANY EMAIL COMMUNICATION CARRYING AN ELECTRONIC SIGNATURE TO WHICH A PDF-SCAN OF THIS DOCUMENT IS ATTACHED OR WHICH OTHERWISE REFERS TO THE
TRANSACTIONS HEREIN TO OR FROM AUSTRIA.
OOGTK Libra GmbH & Co KG
[INSERT PROJECT COMPLETION DATE]
BORROWER COMPLETION CERTIFICATE
[Date]
2
HSBC Bank USA, National Association,
as Facility Agent for the Lenders
party to the Credit Agreement referred to below
452 Fifth Avenue – 8E6
New
York, New York 10018
Attention: Corporate Trust and Loan Agency
Phone: 212-525-7293
Facsimile:
917-229-6659 and 212-525-1300
Email: ctlany.loanagency@us.hsbc.com
This Certificate is being delivered by the undersigned, OOGTK Libra GmbH & Co KG, a limited partnership
(
Kommanditgesellschaft
) duly organized and existing under the laws of Austria with registration number FN 423769 s (the “
Borrower
”) in connection with the Credit Agreement dated as of [●] (as amended, supplemented or
modified and in effect from time to time, the “
Credit Agreement
”) among the Borrower, the Lenders from time to time party thereto and HSBC Bank USA, National Association, as Facility Agent and as Collateral Agent.
|
2
|
To be dated the Project Completion Date.
|
Each capitalized term used herein and not otherwise defined has the meaning
assigned thereto in the Credit Agreement.
After due inquiry and to induce the Secured Parties to rely hereon and to take
action in reliance hereon, I do hereby certify that I am an Authorized Officer of the Borrower, and in such capacity do hereby further certify that:
|
|
(a)
|
Attached hereto as Exhibit A are certified
3
copies of the insurance policies required by
Section 5.9 of the Credit Agreement, or certificates of insurance with respect thereto together with evidence of the payment of all premiums therefor [and a certificate of the Insurance Advisor certifying that insurance complying with
Section 5.9 of the Credit Agreement, covering the risks referred to therein, has been obtained and is in full force and effect]
4
.
|
|
|
(b)
|
All Necessary Governmental Approvals, which under applicable Law were required to be obtained prior to the Project Completion Date, have been duly
obtained and are in full force and effect and free from conditions or requirements the compliance with which could reasonably be expected to have a Material Adverse Effect or which the Borrower does not reasonably expect to be able to satisfy.
Attached hereto as Exhibit B are true and correct copies of such Necessary Governmental Approvals.
|
|
|
(c)
|
Attached hereto as Exhibit C are certified copies of all documents that were required to be delivered by the EPC Contractor under Article 17 of the
EPC Contract.
|
|
|
(d)
|
Each of the following has occurred:
|
|
|
(i)
|
the Work (except for Punch List items) has been completed in accordance with the Construction Contracts in all material aspects and in compliance
in all material respects with all applicable Laws and Necessary Governmental Approvals, and all ancillary construction, upgrades and improvements necessary for the operation of the Project as contemplated by the Transaction Documents have been
completed;
|
|
|
(ii)
|
the Shipyard Delivery Date has occurred;
|
|
|
(iii)
|
all Project Costs (including any cost overruns in respect of Project Costs) have been paid other than in respect of (x) any remaining Punch
List items, (y) Advance Working Capital Expenses for which amounts are available under the undrawn Commitments and under the Equity Support Deed, and (z) Petrobras Delay LD Amounts covered by amounts available to pay such amounts in the
Delay LD Reserve Sub account or by amounts available under the Equity Support Deed;
|
|
3
|
See Section 5.9(e) of the Credit Agreement for a full list of requirements for such certification.
|
|
4
|
To be included unless covered by the insurer’s certification.
|
|
|
(iv)
|
each remaining Petrobras Punch List item has been assessed by Petrobras, all remaining Punch List items in the aggregate cannot reasonably be
expected to have a material adverse effect on the operations of the FPSO, and the total cost to the Borrower to complete such Punch List items does not exceed $3,500,000; and (v) an amount no less than such total cost amount referred to in
sub-paragraph
|
|
|
(iv)
|
above is on deposit in the Offshore Construction Account or in the Offshore Distribution Holding Account (or is otherwise available to the Borrower
in the reasonable opinion of the Facility Agent acting upon the instructions of the Required Lenders) and is available to pay such costs.
|
|
|
(e)
|
The Commercial Operation Date has occurred, Petrobras has formally accepted the FPSO and, upon delivery of this Certificate to the Facility Agent,
all other conditions set forth in Section 3.3 of the Credit Agreement have been satisfied.
|
|
|
(f)
|
No Default or Event of Default has occurred and is continuing on the date hereof.
|
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the date first above written.
|
|
|
|
|
OOGTK Libra GmbH & Co KG
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
Title:
|
Exhibit C-2
to
Credit Agreement
FORM OF TECHNICAL ADVISOR COMPLETION CERTIFICATE
TECHNICAL ADVISOR COMPLETION CERTIFICATE
[INSERT PROJECT COMPLETION DATE]
|
To:
|
HSBC Bank USA, National Association,
|
as Facility Agent for the Lenders
party to the Credit Agreement referred to below
452 Fifth Avenue – 8E6
New York, New York 10018
Attention: Corporate Trust and Loan Agency
Phone: 212-525-7293
Facsimile: 917-229-6659 and 212-525-1300
Email: ctlany.loanagency@us.hsbc.com
|
Re:
|
OOGTK Libra GmbH & Co KG
|
[NAME OF TECHNICAL ADVISOR], acting as the “Technical Advisor” under the Credit Agreement defined below, hereby
submits this Certificate in connection with the Project Completion Date, as defined in the Credit Agreement.
Except as
otherwise defined herein, capitalized terms used herein shall have the meanings assigned to such terms in the Credit Agreement, dated as of [●], among OOGTK Libra GmbH & Co KG (the “
Borrower
”), the Lenders from time
to time party thereto, HSBC Bank USA, National Association, as Facility Agent and as Collateral Agent (as in effect on the date hereof, the “Credit
Agreement
”).
The Technical Advisor has discussed all matters believed pertinent to this Certificate with the Borrower, the EPC Contractor
and/or any other third party as the Technical Advisor has deemed appropriate, and has made such inspections, site visits, reviews, examinations and investigations as the Technical Advisor believed were reasonably necessary to establish the accuracy
of this Certificate. On the basis of the foregoing and on the understanding and belief that the Technical Advisor has been provided true, correct and complete information from such other parties as to the matters covered by this Certificate, the
Technical Advisor hereby certifies, in its professional opinion, as of the date hereof, that:
1. The individual executing
this Certificate is a duly authorized representative of the Technical Advisor, authorized to execute and deliver this Certificate on behalf of the Technical Advisor.
2. The Technical Advisor has performed its review of the Borrower Completion Certificate in a professional manner using sound
project management and supervisory principles and procedures and in accordance with the standards of care practiced by leading consulting engineers in performing similar tasks on like projects. The Technical Advisor represents that it has the
required skills and capacity to perform its services in the foregoing manner.
3. The Technical Advisor hereby confirms that the Shipyard Delivery Date for the
FPSO has occurred and that the Commercial Operation Date has occurred, and attached hereto is a copy, as provided to the Technical Advisor, of the evidence of acceptance by Petrobras of the FPSO.
4. The Technical Advisor hereby certifies in its reasonable professional opinion that:
|
|
(i)
|
the Work (except for the Punch List items) has been completed in accordance with the Construction Contracts in all material respects and in
compliance in all material respects with all applicable Laws and Necessary Governmental Approvals, and all ancillary construction, upgrades and improvements necessary for the operation of the Project as contemplated by the Transaction Documents have
been completed;
|
|
|
(ii)
|
all Project Costs (including any cost overruns in respect of Project Costs) have been paid other than in respect of (x) any remaining Punch
List items, (y) Advance Working Capital Expenses and (z) Petrobras Delay LD Amounts; and
|
|
|
(iii)
|
each remaining Petrobras Punch List item has been assessed by Petrobras, all remaining Punch List items in the aggregate cannot reasonably be
expected to have a material adverse effect on the operations of the FPSO, and the total cost to the Borrower to complete such Punch List items does not exceed $3,500,000.
|
5. With respect to the Borrower Completion Certificate, the Technical Advisor has no reason to believe that any statement made
by the Borrower is not true in any material respect.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
the date first above written.
|
|
|
|
|
[NAME OF TECHNICAL ADVISOR]
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
Exhibit D-1
to
Credit Agreement
CONSTRUCTION MANAGEMENT AGREEMENT
THIS AGREEMENT
is made effective as of the […] (the “Effective Date”)
BETWEEN:
|
(1)
|
OOGTK LIBRA GmbH & Co KG,
an Austrian partnership with an address at Lothringerstra
b
e
16/8, 1030 Vienna; Austria (“OOGTK”); and
|
|
(2)
|
OOG-TKP OIL SERVICES LTD.
, an exempted company incorporated under the laws of the Cayman Islands, whose registered office is at PO Box 309,
Ugland House, Grand Cayman, KY1-1104, Cayman Islands (“Service Provider”).
|
WHEREAS:
|
A.
|
Service Provider is owned by affiliates of the partners in OOGTK;
|
|
B.
|
OOGTK has entered into a Contract for Vessel Refurbishment, Conversion, Topsides Fabrication, Integration and Completion of FPSO (the
“Contract”) with Jurong Shipyard Pte. Ltd. in Singapore, (the “Jurong Shipyard”) and requires construction management and support services in connection with its supervision of such activities at the Jurong Shipyard;
|
|
C.
|
Service Provider has, under two separate agreements dated […], engaged the services of OOG Oil Services Ltd and Teekay Petrojarl Production AS
respectively to provide a variety of FPSO, shipping and associated services, including vessel engineering, project management, HR, IT, administrative and other ancillary services;
|
|
D.
|
Service Provider will also engage the services of certain third party consultants to provide engineering and other support services as required;
and
|
|
E.
|
OOGTK wishes to obtain the benefit of the Construction Managements Services (the “Services”) on the terms set out under this Agreement
and Service Provider is also willing to provide the Services on the same terms.
|
NOW THEREFORE
this Construction
Management Agreement (the “Agreement”) witnesses that in consideration of the mutual covenants and agreements herein contained the parties hereto agree as follows:
|
1.1
|
In this Agreement the following terms shall have the meanings set out below:
|
“Consequential Loss” means: (a) indirect or consequential loss or damages under applicable law; and/or
(b) loss of production, loss of product, loss of use, loss of business and business interruption and loss of revenue, profit or anticipated profit whether direct or indirect arising from or related to the performance of this Agreement and
whether or not such losses were foreseeable at the time of entering into this Agreement;
“Permitted Subcontractors” means Odebrecht Óleo e Gás
S.A., Odebrecht Oil Services Ltd., Teekay Petrojarl Production AS;
“Petrobras Charter” means the Charter
Agreement to be entered into between Petrobras – Petroleo Brasileiro S.A. and Owner with respect to the FPSO;
“Service Fee” means the fee determined in accordance with the provisions of Section 4 hereof.
“Services” means the matters and services described in Schedule A hereof.
|
1.2
|
Interpretation: In this Agreement:
|
|
|
1.2.1
|
References to persons include references to bodies corporate and unincorporate.
|
|
|
1.2.2
|
Unless the context requires otherwise, words in the singular number include the plural number and vice versa.
|
|
|
1.2.3
|
Words in one gender include all other genders.
|
|
|
1.2.4
|
Clause headings are inserted for convenience only and shall not affect the construction of this Agreement and, unless otherwise specified, all
references to clauses and schedules are to clauses of, and schedules to, this Agreement.
|
|
2.1
|
OOGTK hereby appoints Service Provider to provide, and Service Provider hereby agrees to provide for OOGTK, the Services subject to and upon the
terms and conditions set out in this Agreement.
|
|
3.1
|
Service Provider shall, except as otherwise instructed by OOGTK in writing, perform all or any of the Services for OOGTK as OOGTK may from time to
time reasonably request.
|
|
3.2
|
Service Provider shall retain or procure at all times qualified personnel so as to maintain a level of expertise sufficient to provide the Services
for OOGTK in accordance with this Agreement.
|
|
3.3
|
In exercise of its duties hereunder, Service Provider shall at all times perform the Services diligently and in a commercially reasonable manner
and be responsible to OOGTK for the due and proper performance of the same.
|
|
3.4
|
Service Provider shall keep full and proper books, records and accounts showing clearly all transactions relating to its provision of the Services
in accordance with established general commercial practices and in accordance with generally accepted accounting principles, and allow OOGTK and its representatives to audit and examine such books, records and accounts at any time during customary
business hours.
|
|
3.5
|
Service Provider shall keep all the documentation mentioned in clause 3.4 above in accordance with the statute of limitation for tax obligations
under both Norway and Austrian laws.
|
LIBRA CONSTRUCTION
MANAGEMENT AGREEMENT
2
|
4.1.
|
In consideration for the performance of the Services (including any Services which have been performed or procured prior to the date hereof), 4.2.
OOGTK shall pay to the Service Provider a total price for the Services provided during the term of the Agreement (the “
Service Fees
”) equal to US$ 59,036,478 , as adjusted in accordance with, and subject to the terms of, this Clause
4, payable in accordance with the Service Provider’ progress in performing the Services from time to time.
|
|
4.3.
|
The Service Provider shall have the right to issue invoices (each a “
Service Fee Invoice
”) to OOGTK from time to time, but not
later than six months after the Commercial Operation Date for the FPSO has occurred, with respect to the Service Fees for Services performed or procured in an amount not to exceed in aggregate the amount set forth in the clause above.
|
|
5.1
|
Except if sub-contracted or partially assigned to the Permitted Subcontractors, Service Provider shall not assign, sub-contract or sub-license any
of its obligations or rights hereunder to any third party without the prior written consent of OOGTK, which consent shall not be unreasonably withheld. For the avoidance of doubt, no assignment, subcontracting or sub-licensing under this Clause 5 or
otherwise shall relieve the Service Provider from its responsibility to OOGTK to providing the Services nor from any of its other obligations to OOGTK hereunder.
|
|
6.
|
Limitation of Liability
|
|
6.1
|
In no event shall OOGTK have any liability under or in connection with this Agreement in respect of all and any claims whatsoever and howsoever
arising and whether in contract, tort, negligence, breach of statutory duty or otherwise other than the liability for payment of the Service Fees in accordance with the terms of this Agreement.
|
|
6.2
|
The aggregate liability of the Service Provider, its officers, employees and agents, under or in connection with this Agreement, in respect of all
and any claims whatsoever and howsoever arising and whether in contract, tort, negligence, breach of statutory duty, or otherwise shall not exceed ten per cent (10%) of the amount of the total Services Fees invoiced by the Service Provider
under this Agreement.
|
|
6.4
|
Without limiting the generality of Clauses 6.1 and 6.2:
|
|
i.
|
no party (nor its officers, employees and agents) shall have any liability whatsoever to any other party for any Consequential Loss; and
|
|
ii.
|
the Service Provider shall not be liable for any action taken by it or failed to be taken by it in good faith under or in connection with this
Agreement unless directly caused by its negligence or misconduct.
|
|
7.
|
Termination and Variation
|
|
7.1
|
This Agreement shall become effective on the Effective Date and, unless sooner terminated pursuant to clause 7.2 hereof or upon the agreement of
the parties in writing, shall continue for as long as Services are required by OOGTK in respect of the Contract.
|
LIBRA CONSTRUCTION
MANAGEMENT AGREEMENT
3
|
7.2
|
This Agreement shall automatically terminate:
|
|
|
7.2.1
|
at the option of the party not in breach, if either party breaches a material obligation of this Agreement and fails to remedy the breach within
thirty (30) days after written notice thereof;
|
|
|
7.2.2
|
at the option of the other party, if a party makes a general assignment for the benefit of its creditors, files a petition in bankruptcy or for
liquidation, is adjudged insolvent or bankrupt, commences any proceedings for a reorganization or arrangement of debts, dissolution, or liquidation under any law or statute or any jurisdiction applicable thereto, or if any such proceedings shall be
commenced and not dismissed or otherwise disposed of within thirty (30) days; or
|
|
|
7.2.3
|
if a final judgment, order or decree which materially and adversely affects the ability of either party to perform its obligations under this
Agreement shall have been obtained or entered against the other party and such judgment, order or decree shall not have been vacated, discharged or stayed.
|
|
7.3
|
Upon termination of this Agreement the Service Fee payable to Service Provider shall be calculated and paid to the actual date of termination. Any
overpayment shall be refunded to OOGTK by Service Provider and any underpayment shall be paid to Service Provider by OOGTK.
|
|
7.4
|
In the event of termination as herein provided, OOGTK will be fully responsible and liable for any cost or expense incurred by Service Provider in
connection with the provision of the Services prior to such termination or as a consequence of a termination caused by OOGTK other than a termination under 7.2.1 as a result of a breach by the Service Provider of a material obligation and Service
Provider shall remain liable to OOGTK to account for monies received by Service Provider in connection with the provision of the Services prior to termination and not expended prior to or as a consequence of termination.
|
|
8.
|
Ratification and Indemnification
|
|
8.2
|
OOGTK ratifies and confirms and undertakes at all times to ratify and confirm whatever may be properly done or caused to be done by Service
Provider in the provision of the Services.
|
|
8.3
|
OOGTK undertakes to keep Service Provider and its employees, contractors, servants and agents indemnified and to hold them harmless against all
actions, proceedings, claims, demands, or liabilities whatsoever which may be brought against them due to this Agreement including, without limitation, all actions, proceedings, claims, demands or liabilities brought under the environmental laws of
any jurisdiction, and against and in respect of all costs and expenses (including legal costs and expenses on a full indemnity basis) they may suffer or incur due to defending or settling any or all of the same, provided however, that such indemnity
shall exclude any or all losses, actions, proceedings, claims, demands, costs, damages, expenses and liabilities whatsoever which may be caused by or due to the negligence or willful misconduct of Service Provider or its employees, contractors,
servants or agents.
|
|
9.1
|
Neither party shall be liable for any failure to perform its obligations under this Agreement due to any cause beyond its reasonable control.
|
LIBRA CONSTRUCTION
MANAGEMENT AGREEMENT
4
|
10.1
|
This Agreement forms the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all previous
agreements, written or oral, between the parties with respect to the subject matter hereof.
|
|
11.1.1
|
If any provision herein is held to be void or unenforceable, the validity and enforceability of the remaining provisions herein shall remain
unaffected and enforceable.
|
|
12.
|
Relationship between the Parties
|
|
12.1
|
The relationship between the parties is that of independent contractor. Nothing herein shall be interpreted so as to create a partnership, joint
venture, employee or agency relationship between Service Provider and OOGTK.
|
|
13.
|
Confidential Information
|
|
13.1
|
Each party (the “Receiving Party”) shall keep confidential, both during and after the currency of this Agreement, all information
relating in any way to the “Disclosing Party” that it has acquired or developed during the term of this Agreement. The foregoing shall not apply to such information which is generally known to the public other than by way of breach of this
Agreement by the Receiving Party and shall not apply to the extent that the Receiving Party is required by law to disclose any such information. The Receiving Party shall not make use of such information for any purpose other than in the course of
doing what is required of it under this Agreement. The Disclosing Party shall be entitled to any equitable remedy available at law or equity, including specific performance, against a breach by the Receiving Party of this obligation.
|
|
14.
|
Surrender of Books and Records
|
|
14.1
|
Upon termination of this Agreement Service Provider shall forthwith surrender to OOGTK any and all books, records documents and other property in
the possession or control of Service Provider relating to this Agreement and to the business, finance, technology, trademarks or affairs of OOGTK and, except as required by law, shall not retain any copies of the same.
|
|
15.1
|
This Agreement shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this
Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment hereof save to the extent necessary to give effect to the provisions of this Section 15.
|
|
15.2
|
The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the
arbitration proceedings are commenced.
|
|
15.3
|
The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such
appointment in writing to the other party requiring the other party to appoint its own arbitrator within 14 days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and
gives notice that it has done so within the 14 days specified. If the other party does not appoint its own arbitrator and gives notice that it has done so within the 14 days specified, the party referring a dispute to arbitration may, without the
requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both parties as if he had been appointed by
agreement.
|
LIBRA CONSTRUCTION
MANAGEMENT AGREEMENT
5
|
15.4
|
Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
|
|
15.5
|
In cases where neither the claim nor any counterclaim exceeds the sum of USD 50,000 (or such other sum as the parties may agree) the arbitration
shall be conducted in accordance with LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
|
|
16.
|
Modification and Inurement
|
|
16.1
|
This Agreement shall not be amended, altered or modified except by an instrument in writing executed by the parties hereto and shall be binding
upon and inure to their benefit and be binding upon and inure to the benefit of their respective successors and assigns.
|
|
17.1
|
All notices, requests, demands and other communications given or made in accordance with the provisions of this Agreement shall be in writing and
shall be given either by hand or by fax to the addresses below and shall be deemed to have been given when actually received:
|
|
|
|
|
|
If to OOGTK:
|
|
If to Service Provider:
|
|
|
|
|
OOGTK Libra GmbH & Co KG
|
|
OOG-TKP OIL SERVICES LTD.
|
|
Lothringerstra
b
e 16/8
|
|
PO Box 309, Ugland House
|
|
1030 Vienna
|
|
Grand Cayman, KY1-1104
|
|
|
|
Cayman Islands
|
|
Fax: (+43) 1 710 504519
|
|
|
|
|
|
|
Attention
: Managing Director
|
|
Attention: Michel Nielsen
|
|
|
|
(michel.nielsen@teekay.com)
|
|
|
|
|
|
|
Talitha Fernandez
|
|
|
|
(talithafernandez@odebrecht.com)
|
|
18.1
|
The failure of either party to enforce any term of this Agreement shall not act as a waiver. Any waiver must be specifically stated as such in
writing
|
|
19.1
|
The Parties shall commit no act that is an offence under the U.S. Foreign Corrupt Practices Act, under the O.E.C.D. Convention on Combating Bribery
of Foreign Public Officials in International Business Transactions, under the United Kingdom Bribery Act 2010 or under the Brazilian Anti-Corruption Law.
|
LIBRA CONSTRUCTION
MANAGEMENT AGREEMENT
6
|
20.1
|
This Agreement may be executed in one or more signed counterparts, facsimile or otherwise, which shall together form one instrument.
|
LIBRA CONSTRUCTION
MANAGEMENT AGREEMENT
7
IN WITNESS
whereof the parties hereto have caused this Agreement to be executed by their
duly authorized officers the day and year first above written.
|
|
|
|
|
|
|
|
|
|
|
OOGTK LIBRA GmbH & Co KG
By OOGTK Libra GmbH
its General Partner
|
|
|
|
OOG-TKP OIL SERVICES LTD.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
By:
|
|
|
|
|
|
Paul Doralt
|
|
|
|
|
|
Director
|
|
|
|
Managing Director
|
|
|
|
|
|
|
LIBRA CONSTRUCTION
MANAGEMENT AGREEMENT
8
SCHEDULE A
THE SERVICES
Service
Provider shall provide for OOGTK such Services as OOGTK shall from time to time request Service Provider to provide for it pursuant to Section 3 of this Agreement.
For greater certainty, in this Agreement ‘Services’ means all matters and activities which OOGTK requires from Service Provider
including but not limited to:
|
(a)
|
The Shipyard Supervision Services:
|
|
|
i.
|
technical supervision during the conversion phase, in particular to ensure the compliance of the FPSO with the specifications under the Petrobras
Charter, including in relation to engineering services, regulatory compliance, governmental approvals and others;
|
|
|
ii.
|
contractual administration;
|
|
|
iii.
|
management of contractors and subcontractors.
|
|
(b)
|
The Pre-Operational Services:
|
|
|
i.
|
early mobilization of the operational crew to the shipyard for assistance during the transportation of the FPSO to Brazilian waters;
|
|
|
ii.
|
providing assistance during the commissioning phase and all sea trial tests; and
|
|
|
iii.
|
assistance with purchase of spare parts and other consumables, catering services and others.
|
|
(c)
|
The Mobilization Services:
|
|
|
i.
|
clearance of the FPSO with Brazilian customs, Federal Police and Brazilian Navy and Coast Guard; and
|
|
|
ii.
|
assistance in relation to Petrobras acceptance tests in order to ensure a timely acceptance and smooth start-up under the Petrobras Charter; and.
|
|
|
iii.
|
assistance in relation to the navigation of the FPSO to Brazil, including support vessels, fuel, performance of “Warranty Surveyor” and
others.
|
|
(d)
|
Other Construction Support services
|
|
|
i.
|
such other services relating to the foregoing as OOGTK may from time to time request from Service Provider.
|
LIBRA CONSTRUCTION
MANAGEMENT AGREEMENT
9
|
(e)
|
HR Support and Recruitment Services:
|
|
|
i.
|
Assistance with the recruitment of personnel as required by the OOGTK
|
|
|
ii.
|
Assistance with ongoing HR support for personnel as required by the OOGTK; and
|
|
|
iii.
|
Assistance with obtaining the services of consultants as required during the period of the Agreement.
|
|
(f)
|
IT Set Up and Support Services:
|
|
|
i.
|
Assistance with establishing the IT infrastructure in accordance with Owner’s requirements, including, but not limited to: e-mail access,
mobile and land phone calls, fixed links, access to Oracle, VoIP calls, printing, leasing of equipment, access to SISENG, computer equipment and purchase of software; and
|
|
|
ii.
|
Assistance with providing ongoing IT support as required by Owner.
|
|
(g)
|
Shared Services Centre:
|
|
|
i.
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Services required to support the activities of the Owner and the activities referred to in this schedule, including: payroll processing services;
finance, tax, procurement and accounting services.
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i.
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Provision of office supplies;
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ii.
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Rental of offices and facilities; and
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LIBRA CONSTRUCTION
MANAGEMENT AGREEMENT
10
Exhibit D-2
to
Credit Agreement
ASSET MAINTENANCE AGREEMENT
OOGTK LIBRA GMBH & CO KG
AS CONTRACTING PARTY
AND
OOGTK LIBRA PRODUÇÃO DE PETRÓLEO LTDA.
AS CONTRACTOR
DATED
[…]
FPSO PIONEIRO DE LIBRA PROJECT
CONTENTS
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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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APPOINTMENT OF CONTRACTOR
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3
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3.
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TERM OF AGREEMENT
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3
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4.
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OBLIGATIONS OF THE CONTRACTOR
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3
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5.
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AMA FEES
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5
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6.
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PAYMENTS
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6
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7.
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LIMITATION OF LIABILITY
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6
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8.
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NOTICES
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7
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9.
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NO PARTNERSHIP
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7
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10.
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ENTIRE AGREEMENT
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8
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11.
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AMENDMENT AND RELATIONSHIP TO OTHER DOCUMENTS
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8
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12.
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COUNTERPARTS
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8
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13.
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SEVERABILITY
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8
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14.
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DISPUTE RESOLUTION AND GOVERNING LAW
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8
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THIS ASSET MAINTENANCE AGREEMENT
is made effective as of the […] (this
“
Agreement
”)
BETWEEN:
(1)
OOGTK LIBRA GmbH & Co KG,
an Austrian partnership with an address at Lothringerstraße 16/8, 1030 Vienna; Austria
(the “
Contracting
Party”);
(2)
OOGTK LIBRA PRODUÇÃO DE PETRÓLEO LTDA.,
a
limitada
organized and existing under the laws of Brazil, with offices at Avenida Pasteur 154, 9º andar, Botafogo, Rio de Janeiro CEP:22290-240 (the “
Contractor
”).
WHEREAS:
(A) The Contracting Party has
entered into the Charter Agreement with Petrobras (as defined below) in connection with the charter of one Floating, Production, Storage and Offloading unit named “
Pioneiro
de Libra”
(the “
FPSO
”);
(B) The Contractor has made available the organization, resources, knowledge and experience to advise and assist the Contracting Party in
relation to certain technical matters in connection with services to be provided in Brazil relating to the obligations of the Contracting Party under the Charter Agreement in connection with the ongoing upkeep and general maintenance of the FPSO.
The Contractor is also able to assist the Contracting Party to manage capital works relating to the upgrade or modification of the FPSO, as required from time to time ;
(C) The parties have agreed that the Contractor will provide to the Contracting Party the Services (as defined below), in respect of the
Project (as defined below) upon the terms and subject to the conditions set out in this Agreement; and
(D) This Agreement is entered into
between the Contracting Party and the Contractor relating to the Project.
NOW IT IS HEREBY AGREED
as follows:
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1.
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DEFINITIONS AND INTERPRETATION
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The following terms, when used herein shall have the following meanings:
“
Accounts Agreement
” means the Collateral and Accounts Agreement executed on [...].
“
AMA Fee Invoice
” has the meaning given to it in Clause 5.5;
“
AMA Fees
” has the meaning given to it in Clause 5.1;
“
Approval Notice
” has the meaning given to it in Clause 5.5;
“
Business Day
”
means a day (other than a Saturday or
Sunday) on which banks are open for domestic and foreign exchange business in Austria, London, New York, Paris, Rio de Janeiro and São Paulo;
“
Charter Agreement
” means, a Charter Agreement, dated January 30, 2015 (as amended from time to time),
entered into between Petrobras, as leader and operaror of the Libra_P1 Consortium, and the Contracting Party;
“
Consequential Loss
” means: (a) indirect or consequential loss or damages under applicable law; and/or
(b) loss of production, loss of product, loss of use, loss of business and business interruption and loss of revenue, profit or anticipated profit whether direct or indirect arising from or related to the performance of this Agreement and
whether or not such losses were foreseeable at the time of entering into this Agreement;
“
FPSO
” has the
meaning given to it in the recitals of this Agreement.
“
Equipment
” means all equipment, materials,
supplies, apparatus, machinery, parts, tools (including special tools), components, instruments, appliances, spare parts and appurtenances that are required for the maintenance, upkeep and preservation of the FPSO and in connection with upgrades or
modifications to the FPSO;
“
Notice of Invoice
” has the meaning given to it in Clause 5.3;
“
Petrobras
” means Petróleo Brasileiro S.A. - PETROBRAS;
“
Project
” means the construction and chartering operations of the FPSO and all other equipment relevant to the
operation of the FPSO, as well as other assets attached to the FPSO owned (or to be owned) by the Contracting Party;
“
Services
” means the services to be provided by the Contractor pursuant to Clause 4
(
Obligations of the Contractor
);
“
Special Customs Regime
” means any special customs regime in force in accordance with the laws of Brazil, such
as (i) REPETRO, currently regulated by Articles 458 to 462 of Decree 6,759 of February 02, 2009, and by Administrative Ordinance 844 dated as of May 09, 2008, as amended from time to time; (ii)
Admissão
Temporária,
currently regulated by Administrative Ordinance 1,361 dated as of May 21, 2013, , as amended from time to time, or any other special customs regime that may be created or that may replace the existing regimes; and
“
US$
” means the official currency for the time being of the United States of America.
(a) References to any document or other instruments include all amendments and replacements thereof and supplements thereto.
(b) References to “
Clauses
” are to clauses of this Agreement.
(c) Clause headings are inserted for convenience only and shall not affect the construction of this Agreement.
(d) All references to persons include their successors, and permitted transferees and assigns.
(e) Where the words “
include
” or “
including
” appear they are to be construed without limitation.
(f) Words importing the singular shall include the plural and vice versa.
(g) A “
person
” shall be construed as a reference to any person, firm, company, corporation, government, state or agency of a
state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing; and
(h)
“party” means a party to this Agreement.
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2
.
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APPOINTMENT OF CONTRACTOR
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2.1
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The Contracting Party hereby engages and appoints the Contractor in connection with the performance of the Services upon the terms and subject to
the conditions of this Agreement.
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2.2
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The Contractor accepts the engagement and appointment made by the Contracting Party in Clause 2.1 and agrees to perform the Services and to carry
out its other duties and obligations hereunder in accordance with the terms and conditions of this Agreement.
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3.
TERM OF
AGREEMENT
3.1 This Agreement shall take effect from [...] and shall continue in force until the later of the date on which:
(i) the Contracting Party has fully and finally paid all of its obligations hereunder to the Contractor, (ii) the date falling sixty (60) days from the date on which either party hereto notifies in writing the other party that it
wishes to terminate this Agreement (and either party may elect to deliver any such notice at any time in its sole discretion), and (iii) the Charter Agreement relating to the FPSO has been terminated, whereupon this Agreement shall terminate
(but for the avoidance of doubt such termination shall not affect the accrued rights and obligations of the parties under this Agreement at the date of termination).
4.
OBLIGATIONS OF THE CONTRACTOR
4.1 The Contractor shall, from time to time, until the date of termination of this Agreement pursuant to Clause 3 (
Term of Agreement
),
provide the following advisory services and assistance to the Contracting Party in relation to the FPSO (but only to the extent that the performance of such services are consistent with the obligations of the Contracting Party to Petrobras under the
Charter Agreement), as may be required, and following request, by the Contracting Party from time to time:
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(i)
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ensuring the maintenance of the FPSO in accordance with the requirements of the Charter Agreement and good oil and gas industry practices,
including procurement of equipment and spare parts as necessary from time to time for the proper upkeep and maintenance and operation of the FPSO, so that the hull, machinery and equipment of the FPSO is in a seaworthy condition and according to
international standards of equipment condition to operation;
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(ii)
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ensuring that the FPSO is suitably equipped for the tasks required of it in relation to the Project;
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(iii)
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assisting with the drydocking of the FPSO, as may be necessary;
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(iv)
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the provision of, replacement and/or substitution of Equipment, including, in each case, during drydocking;
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(v)
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assuming responsibility for the payment of import duties, tariffs and charges in connection with the importation of the Equipment under the Special
Customs Regime, including, but not limited to customs duties, fees, tariffs, stamp charges, port storage fees, freight, transportation, insurance, storage and agents’ fees relating thereto;
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(vi)
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assisting with the management of works relating to the upgrade or modification of the FPSO, including the procurement of related equipment and
materials, as required;
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(vii)
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advising and assisting the Contracting Party with respect to technical issues that may arise from time to time in relation to the FPSO;
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(viii)
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keeping the Contracting Party informed of Brazilian and international practice and any new developments that it becomes aware of in the field of
good drillship or other relevant vessel operation and maintenance and offshore drilling, production, offloading and storage activity generally;
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(ix)
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advising and assisting the Contracting Party relating to its obligations in connection with compliance with international and Brazilian safety and
environmental standards;
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(x)
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relating to the compliance by the Contracting Party of all pertinent Brazilian legislation having regard to its obligations under the Charter
Agreement;
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(xi)
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keep proper control and record of the inventory, and inform the Contracting Party of any Equipment that should be bought by the Contracting Party
so as to allow proper maintenance and preservation of the FPSO in accordance with the terms of the Charter Agreement; and
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(xii)
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following the termination of this Agreement, return to the Contracting Party all Equipment and materials specified on the then current inventory,
considering ordinary normal wear and tear, and provided that the Contractor is allowed to remove all of Contractor’s respective equipment and items.
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together, in each case, with certain ancillary and incidental services (including, without
limitation, with respect to the procurement of material or equipment) reasonably required by the Contracting Party and agreed in writing between the parties hereto.
4.2 The Contractor shall perform the Services, in accordance with this Agreement and any applicable law, regulation, rules and standards
(industry and governmental), using properly trained and skilled personnel that are adequately qualified to perform their respective tasks in accordance with good oil and gas industry practices, and such Services shall be performed using current or
other appropriate methods and techniques.
4.3 The Contractor may subcontract all or any part of the Services to any of its affiliates
provided that no such subcontracting shall relieve the Contractor from its obligations hereunder.
4.4 Notwithstanding the foregoing
provisions in this Clause 4, the Contracting Party shall have the right to supervise, from time to time, the performance of the Services by the Contractor and, in furtherance thereof, the Contractor shall be required to:
(i) furnish the Contracting Party, following the Contracting Party’s written request therefor, with reports on the status of any Services
being performed and any other such reasonably requested information relating to the performance of the Services; and
(ii) follow any
reasonable instructions given by the Contracting Party to it, from time to time, with respect to the performance of the Services.
5.1 In consideration for the performance of the Services set out in Clause 4 (
Obligations of the Contractor
), the Contracting Party
shall pay to the Contractor certain fees for the Services (the “
AMA
Fees
”
)
in accordance with this Clause 5 (
AMA Fees
).
5.2 The AMA Fees shall be calculated by the Contractor on a cost (plus) basis, based on: (i) the actual reasonable cost of the Contractor
of the Equipment procured in providing the relevant Services, plus a profit element of 2.5%; and (ii) the actual reasonable cost of the personnel involved in providing the relevant Services, plus a profit element of 8%, all such Fees to be
further agreed between the parties hereto before invoices are issued. With respect to the performance of any specific Services, the Contracting Party and the Contractor shall agree the scope of such Services, together with an estimate of the AMA
Fees in respect thereof. The Contractor agrees to update such estimate from time to time to the extent it believes that the accuracy of such estimate may be improved. The Contractor shall bear all fees, including bank fees, which are levied or may
be levied on the provision of the Services.
5.3 The Contractor shall have the right, from time to time, to notify the Contracting Party
that it wishes to issue an invoice with respect to Services performed and any such notice shall specify which Services are proposed to be invoiced and the amount of such proposed invoice, which amount shall be in Brazilian
reais
(each such
notice, a “
Notice of Invoice
”
)
.
5.4 The Contracting Party shall have a period of ten (10) Business Days following receipt of
any Notice of Invoice during which to assess, and notify the Contractor accordingly, whether such Services have been performed in accordance with the terms of this Agreement (any notice of a positive assessment, an “
Approval
Notice
”
)
.
5.5 The Contractor shall have the right to issue an invoice (each an “
AMA Fee Invoice
”) to the
Contracting Party, following receipt of any Approval Notice, with respect to the AMA Fees for the Services performed and to which such Approval Notice relates. Each AMA Fee Invoice shall specify which Services and the amount in Brazilian
reais
of the AMA Fees being invoiced (and such details shall correspond with the Notice of Invoice to which the relevant Approval Notice relates) and shall include the account details to which payment is to be made.
6.1 Following receipt of an AMA Fee Invoice, the Contracting Party shall pay the amount demanded under such invoice to the Contractor, no later
than 30 Business Days following receipt thereof (or such longer period as may be specified in such invoice).
6.2 All payments made
hereunder shall be made in full to the account specified by the Contractor free from any deduction, withholding, set-off or counterclaim.
6.3 Upon receipt by the Contractor of any amount demanded pursuant to an AMA Fee Invoice, the obligation of the Contracting Party to pay the
same shall be fully and finally discharged.
7.1
Contractor shall be responsible for the payment of all taxes, duties, levies, charges and contributions (and any interest or penalties thereon) including but not limited to income, profits, corporate income taxes and taxes on capital gains, turnover
and added value taxes for which Contractor is liable, whether arising in Brazil or elsewhere, now or hereafter imposed by any appropriate governmental authority whether of Brazil or elsewhere, arising from the performance of this Agreement.
7.2 Contracting Party shall save, indemnify, defend and hold harmless Contractor against all levies, charges, contributions and taxes of any
type referred to in this clause and any interest or penalties thereon which may be assessed by any appropriate governmental authority on the Contracting Party in connection with the performance of this Agreement.
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8.
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LIMITATION OF LIABILITY
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8.1 In no event shall the Contracting Party have any liability under or in connection with this Agreement in respect of all and any claims
whatsoever and howsoever arising and whether in contract, tort, negligence, breach of statutory duty or otherwise other than the liability for payment of the AMA Fee in accordance with the terms of this Agreement.
8.2 Subject to Section 8.3, the aggregate liability of the Contractor, its officers, employees and agents, under or in connection with
this Agreement, in respect of all and any claims whatsoever and howsoever arising and whether in contract, tort, negligence, breach of statutory duty, or otherwise shall not exceed an amount equal to ten per cent (10%) of the amount of the
total AMA Fees.
8.3 Without limiting the generality of Clauses 8.1 and 8.2:
8.3.1 no party (nor its officers, employees and agents) shall have any liability whatsoever to any other party for any Consequential Loss; and
8.3.2 the Contractor shall not be liable for any action taken by it or failed to be taken by it in good faith under or in connection with
this Agreement unless directly caused by its negligence or misconduct.
9.1
Any notice to be given under this Agreement shall be in writing and shall be duly given if signed by or on behalf of a duly authorised officer of the party giving the notice and left at or sent by first class airmail or by facsimile transmission
(with confirmation copy by first class airmail) to the following addresses (or to such other address as any party may substitute by notice in writing to the others):
Contracting Party:
Avenida Pasteur, 154, 12
th
floor
Rio de Janeiro
RJ, 22290-240
Brazil
Att: Rodrigo Lemos
Email Address:
rlemos@odebrecht.com
Contractor:
[...]
Attn.: [...]
Email Address: [...]
10.1 Nothing in this Agreement shall create a partnership, association or joint venture or (save as expressly provided herein) establish a
relationship of principal and agent or any other relationship of a similar nature between the parties.
11.1 This Agreement constitutes the entire agreement and understanding between the parties in relation to the provision of the Services and no
party has relied on any warranty or representation of the other except as expressly stated or referred to in this Agreement.
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12.
|
AMENDMENT AND RELATIONSHIP TO OTHER DOCUMENTS
|
12.1 This Agreement may not be altered, modified, revoked or cancelled in any way unless such alteration, modification, revocation, or
cancellation is in writing signed by or on behalf of the parties. This Agreement supersedes any and all other prior agreements between the parties, whether written or oral, with respect to the subject matter hereof.
13.1 This Agreement may be executed in any number of counterparts each of which when executed and delivered shall be an original, but all the
counterparts together shall constitute one and the same instrument.
14.1 Any provision hereof which is or becomes illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such illegality, invalidity, prohibition or unenforceability without invalidating the remaining provisions hereof and without affecting the validity or enforceability of any provision in any other jurisdiction.
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15.
|
RIGHTS OF THIRD PARTIES
|
15.1 A person who is not a party to this contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of
this Agreement.
16.1 Contractor shall commit no act that is an offence under the U.S. Foreign Corrupt Practices Act, under the O.E.C.D. Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions or under the United Kingdom Bribery Act 2010.
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17.
|
GOVERNING LAW AND SUBMISSION TO JURISDICTION
|
17.1 This Agreement and any non-contractual obligations arising out of or in connection with this Agreement from it shall be interpreted under
and governed by the laws of England.
17.2 The courts of England have exclusive jurisdiction to settle any dispute arising out of or in
connection with this Agreement (including any dispute regarding the existence, validity or termination of this Agreement).
IN WITNESS whereof this Agreement was executed by the duly authorised representatives of the
parties hereto on the date first above written.
SIGNATURES
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OOGTK LIBRA GMBH & CO KG
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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OOGTK LIBRA PRODUÇÃO DE PETRÓLEO LTDA.
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Exhibit D-3
to
Credit Agreement
SPECIALIZED OIL INDUSTRY SERVICES
AGREEMENT
OOGTK LIBRA GMBH & CO KG
as Employer
and
OOG-TKP OIL SERVICES LTD.,
as FPSO Advisor
Dated as of
2015
Pioneiro de
Libra FPSO Project
THIS SPECIALIZED OIL INDUSTRY SERVICES AGREEMENT (this “Agreement”)
is made the
day of
, 2015
BETWEEN:
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(1)
|
OOGTK LIBRA GmbH & Co KG,
an Austrian partnership with an address at Lothringerstraße 16/8, 1030 Vienna; Austria (the
“Employer”); and
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(2)
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OOG-TKP OIL SERVICES LTD
., an exempted company incorporated under the laws of the Cayman Islands, whose registered office is at PO Box 309,
Ugland House, Grand Cayman, KY1-1104, Cayman Islands (the “
FPSO Advisor
”).
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WHEREAS:
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(A)
|
The Employer is the owner of a floating, production, storage and offloading unit to be known as Pioneiro de Libra FPSO (“FPSO”);
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(B)
|
the FPSO Advisor is experienced in offshore FPSO projects in the oil and gas industry;
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(C)
|
the FPSO Advisor has available the organisation, resources, knowledge and experience to advise and assist the Employer in relation to
administrative, managerial and technical matters related to, and the ongoing upkeep and general maintenance of, the FPSO; and
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(D)
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the FPSO Advisor has agreed to advise and assist the Employer with respect to administrative, managerial and technical matters related to, and the
ongoing upkeep and general maintenance of the FPSO, as required by the Employer to enable it to fulfil its obligations under the Petrobras Charter, upon the terms and subject to the conditions set out in this Agreement.
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NOW IT IS HEREBY AGREED
as follows:
|
1.
|
DEFINITIONS AND INTERPRETATIONS
|
The following
terms, when used herein shall have the following meanings:
“
Business
Day”
shall mean a day (other than a Saturday
or Sunday) on which banks are open for domestic and foreign exchange business in Austria, London, New York, Paris, Rio de Janeiro and Vancouver;
“
Commercial
Operation Date”
shall mean, with respect to the FPSO, the date on which the term of each of the Petrobras
Charter and the Services Agreement starts (
Início do Contrato
), in accordance with the terms thereof;
“
FPSO
Advisor Services”
means the services to be provided or procured by the FPSO Advisor pursuant to Clause 4 of this Agreement, as more particularly described therein;
“
Operator
” shall mean OOGTK Libra Produção de Petróleo
Ltda., a limited liability company organized and existing under the laws of Brazil;
“
Petrobras
” means Petróleo
Brasileiro S.A. - PETROBRAS;
“
Petrobras
Charter”
means the Charter Agreement dated January 30,
2015, entered into between Petrobras, as the leader and operator of Libra_P1 Consortium and the Employer with respect to FPSO;
“
Services
Agreement”
means the Service Contract dated as of May 15, 2015 between Petrobras and the Operator with
respect to FPSO; and
“
US$
” means the official currency for the time being of the United States of America.
(a) References to “
Clauses
” are to clauses of this Agreement.
(b) Clause headings are inserted for convenience only and shall not affect the construction of this Agreement.
(c) All references to persons include their successors, and permitted transferees and assigns.
(d) Where the words “
include
” or “
including
” appear they are to be construed without limitation.
(e) Words importing the singular shall include the plural and vice versa.
(f) A “
person
” shall be construed as a reference to any person, firm, company, corporation, government, state or agency of a
state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing.
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2.
|
APPOINTMENT OF THE FPSO ADVISOR
|
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2.1
|
The Employer hereby engages and appoints the FPSO Advisor to perform the FPSO Advisor Services upon the terms and subject to the conditions of this
Agreement.
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2.2
|
The FPSO Advisor accepts the engagement and appointment made by the Employer in Clause 2.1 and agrees to perform the FPSO Advisor Services and to
carry out its other duties and obligations hereunder in accordance with the terms and conditions of this Agreement.
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This Agreement shall take effect on the date hereof and shall continue in force until the later of: (i) the date on which the last payment
due under Clause 5 (
Invoices and Payments to the FPSO Advisor
) is fully and finally made, (ii) the date of termination of this Agreement at the discretion of the Employer, and (iii) the date of termination of the Petrobras Charter,
whereupon this Agreement shall terminate.
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4.
|
SERVICES PROVIDED AND OBLIGATIONS OF THE FPSO ADVISOR
|
The FPSO Advisor shall from time to time, and in respect of the FPSO, from the Commercial Operation Date until the date of termination of this
Agreement pursuant to Clause 3 (
Term of Agreement
), provide the following advisory services and assistance to the Employer upon request in relation to the FPSO, in accordance with any applicable laws, regulations, rules and standards and
using current or other appropriate methods and techniques (but only to the extent that the performance of such services would not conflict with the obligations of the Employer to Petrobras under the Petrobras Charter):
(a) advising and assisting the Employer with respect to the management and administration of the Petrobras Charter following acceptance of the
FPSO by Petrobras;
(b) advising and assisting the Employer with respect to the performance of its obligations under the Petrobras Charter
related to the ongoing upkeep and general maintenance of the FPSO;
(c) advising and assisting the Employer generally with respect to the
taking of such action as would be prudent by an owner of an offshore FPSO with respect to its general upkeep and maintenance, including taking all appropriate measures to keep the FPSO under its class and in conformity with local and international
regulations;
(d) keeping the FPSO properly maintained in accordance with good oil and gas industry practices, including supplying
equipment and spare parts as necessary from time to time for the proper maintenance and operation of the FPSO;
(e) procuring and
maintaining in effect hull & machinery & business interruption insurance coverage in accordance with the instructions from time to time of the Employer;
(f) advising and assisting the Employer with respect to technical issues that may arise in relation to the FPSO following acceptance of the
FPSO by Petrobras;
(g) keeping the Employer informed of international practice and any new developments that it becomes aware of in the
field of good FPSO operation and maintenance and offshore drilling activity generally all with a view to (i) the FPSO operating at all times possible and when required under the Petrobras Charter in compliance with applicable standards of
safety, output, dependability, efficiency and economy, including recommended practice of a good, safe, prudent and workman – like character and in compliance with all applicable laws (ii) the Employer’s desire for the FPSO to maintain
its value (fair wear and tear excepted) and enjoy a working life at least as long as generally expected from the design and construction of the FPSO and its specification and as generally occurs in similar operating conditions from time to time
where best industry practices are employed;
(h) assisting the Employer with any inspection of the FPSO (including in relation to the
supervision of works or operations) that may be required following acceptance of the FPSO by Petrobras;
(i) procuring such services, materials and equipment as may be reasonable requested by the
Employer;
(j) providing information to the Employer as may be reasonably requested relating to the performance of the FPSO Advisor
Services, allowing the Employer to supervise the performance of these services and following instructions given by the Employer, all as reasonably requested; and
(i) providing any other advisory services and assistance to the Employer in relation to the FPSO that the Employer may reasonably request,
together, in each case, with certain ancillary and incidental services required in connection therewith. The FPSO Advisor shall perform
the FPSO Advisor Services using properly trained and skilled personnel that are adequately qualified to perform their respective tasks in accordance with good oil and gas industry practices. The FPSO Advisor may subcontract all or any part of the
FPSO Advisor Services to any of its affiliates provided that no such subcontracting shall relieve the FPSO Advisor from its obligations hereunder.
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5.
|
INVOICES AND PAYMENTS TO THE FPSO ADVISOR
|
|
5.1
|
In consideration for the performance of the Services set out in Clause 4 (
Services Provided and Obligations of the FPSO Advisor
), the
Contracting Party shall pay to the Contractor certain fees for the Services (the “
FPSO
Advisor Fees”)
in accordance with this Clause 5 (
Invoices and Payments to the FPSO Advisor
).
|
|
5.2
|
The FPSO Advisor Fees shall be calculated by the FPSO Advisor at cost, based on the actual reasonable cost of the FPSO Advisor of providing the
relevant FPSO Advisor Services. With respect to the performance of any specific services, the Contracting Party and the Contractor shall agree the scope of such services, together with an estimate of the FPSO Advisor Fees in respect thereof. The
FPSO Advisor agrees to update such estimate from time to time to the extent it believes that the accuracy of such estimate may be improved. The FPSO Advisor shall bear all fees, including bank fees, which are levied or may be levied on the provision
of the Services.
|
|
5.3
|
The FPSO Advisor shall have the right, from time to time, to notify the Employer that it wishes to issue an invoice with respect to the FPSO
Advisor Services performed and any such notice shall specify which services are proposed to be invoiced and the amount of such proposed invoice, which amount shall be in US$ (each such notice, a “
Notice
of Invoice”)
.
|
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5.4
|
The Employer shall have a period of ten (10) Business Days following receipt of any Notice of Invoice during which to assess, and notify the
FPSO Advisor accordingly, whether such Services have been performed in accordance with the terms of this Agreement (any notice of a positive assessment, an “
Approval
Notice”)
.
|
|
5.5
|
The FPSO Advisor shall have the right to issue an invoice (each an “
Fee Invoice
”) to the Employer, following receipt of any
Approval Notice, with respect to the FPSO Advisor Fees for the FPSO Advisor Services performed and to which such Approval Notice relates. Each Fee Invoice shall specify which services and the amount in US$ of the FPSO Advisor Fees being invoiced
(and such details shall correspond with the Notice of Invoice to which the relevant Approval Notice relates) and shall include the account details to which payment is to be made.
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6.
|
LIMITATION OF LIABILITY
|
|
6.1
|
The aggregate liability of the FPSO Advisor, its officers, employees and agents under or in connection with this Agreement in respect of all and
any claims whatsoever and howsoever arising and whether in contract, tort, negligence, breach of statutory duty, or otherwise shall not exceed ten per cent (10%) of the amount of the total of FPSO Advisor Fees.
|
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6.2
|
The aggregate liability of the Employer under or in connection with this Agreement in respect of all and any claims whatsoever and howsoever
arising and whether in contract, tort, negligence, breach of statutory duty, or otherwise shall not at any time exceed an amount equal to the aggregate amount payable and unpaid to the FPSO Advisor at such time pursuant to Clause 5 (
Invoices and
Payments to the FPSO Advisor
).
|
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6.3
|
Without limiting the generality of Clauses 6.1 and 6.2:
|
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|
6.3.1
|
no party (nor its officers, employees and agents) shall have any liability whatsoever to any other party for any loss of profit, loss of revenue,
loss of use, loss of contract or loss of goodwill or any other indirect or consequential loss;
|
|
|
6.3.2
|
the FPSO Advisor shall not be liable for any action taken by it or failed to be taken by it in good faith under or in connection with this
Agreement unless directly caused by its negligence or misconduct.
|
Any
notice to be given under this Agreement shall be in writing and shall be duly given if signed by or on behalf of a duly authorised officer of the party giving the notice and left at or sent by first class airmail or by facsimile transmission (with
confirmation copy by first class airmail) to the following addresses (or to such other address as either party may by notice in writing to the other substitute):
|
|
|
|
|
If to Employer:
|
|
If to FPSO Advisor:
|
|
|
|
|
OOGTK Libra GmbH & Co KG
|
|
OOG-TKP Oil Services Ltd.
|
|
Lothringerstraße 16/8
|
|
[OOG’s address]
|
|
1030 Vienna
|
|
|
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|
|
|
Attention: Managing Director
|
|
Attention: FPSO Director
|
|
|
|
|
Fax: (+43) 1 710 504519
|
|
Fax: […]
|
Nothing in the agreement shall create a partnership, association or joint venture or (save as expressly provided herein) establish a
relationship of principal and agent or any other relationship of a similar nature between the parties.
This Agreement constitutes the entire agreement and understanding between the parties in relation to the provision of the FPSO Advisor Services
and no party has relied on any warranty or representation of the other except as expressly stated or referred to in this Agreement.
|
10.
|
AMENDMENT AND RELATIONSHIP TO OTHER DOCUMENTS
|
This Agreement may not be altered, modified, revoked or cancelled in any way unless such alteration, modification, revocation, or cancellation
is in writing signed by or on behalf of the parties. This Agreement supersedes any and all other prior agreements between the parties, whether written or oral, with respect to the subject matter hereof.
This Agreement may be executed in any number of counterparts each of which when executed and delivered shall be an original, but all the
counterparts together shall constitute one and the same instrument.
Contractor shall commit no act that is an offence under the U.S. Foreign Corrupt Practices Act, under the O.E.C.D. Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions or under the United Kingdom Bribery Act 2010.
|
13.
|
DISPUTE RESOLUTION AND GOVERNING LAW
|
|
13.1
|
This Agreement and all matters arising from it shall be interpreted under and governed by the laws of England.
|
|
13.2
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including any dispute
regarding the existence, validity or termination of this Agreement).
|
IN WITNESS whereof this Agreement was executed by
the duly authorised representatives of the parties hereto the date first above written.
SIGNATURES
|
|
|
|
|
|
|
|
|
OOGTK LIBRA GMBH & CO KG
|
|
|
|
|
|
|
|
By:
|
|
By:
|
|
|
|
Name:
|
|
Name:
|
|
|
|
Title:
|
|
Title:
|
|
|
|
|
|
|
OOG-TKP OIL SERVICES LTD.
|
|
|
|
|
|
|
|
By:
|
|
By:
|
|
|
|
Name:
|
|
Name:
|
|
|
|
Title:
|
|
Title:
|
Exhibit D-4
to
Credit Agreement
THIS AGREEMENT
is made effective as of the […] (the “Effective Date”).
BETWEEN:
|
(1)
|
OOGTK LIBRA GmbH & Co KG,
an Austrian partnership with an address at Lothringerstraße 16/8, 1030 Vienna; Austria
(“OOGTK”); and
|
|
(2)
|
TEEKAY SHIPPING (SINGAPORE) PTE. LTD,
a Singaporean company with an office at 8 Shenton Way, #41-01 AXA Tower, Singapore 068811
(“TSS”).
|
OOGTK and TSS hereinafter referred to “Party”, individually, or “Parties”,
jointly.
WHEREAS:
|
|
A.
|
OOGTK has entered into the Contract for Vessel Refurbishment, Conversion, Topsides Fabrication, Integration and Completion of FPSO (the
“Contract”) with Jurong Shipyard Pte. Ltd. in Singapore, (the “Jurong Shipyard”) and requires additional resources in connection with its supervision of such activities at the Jurong Shipyard;
|
|
|
B.
|
TSS is an affiliate of Teekay Offshore European Holdings Coop UA which is a 50% partner in OOGTK;
|
|
|
C.
|
TSS is in a position to second certain of its personnel (the “Secondees”) to OOGTK to engage in the Secondment Activities (as defined
herein); and
|
|
|
D.
|
OOGTK wishes to obtain the benefit of the secondment to it of the Secondees upon the terms set out under this Agreement and TSS is also willing to
second the Secondees to OOGTK on the same terms.
|
NOW THEREFORE
this Agreement witnesses that in consideration of
the mutual covenants and agreements herein contained the parties hereto agree as follows:
|
1.1
|
In this Agreement the following terms shall have the meanings set out below:
|
|
|
1.1.1
|
‘Consequential Loss’ means: (a) indirect or consequential loss or damages under applicable law; and/or (b) loss of production,
loss of product, loss of use, loss of business and business interruption and loss of revenue, profit or anticipated profit whether direct or indirect arising from or related to the performance of this Agreement and whether or not such losses were
foreseeable at the time of entering into this Agreement;
|
|
|
1.1.2
|
‘Secondment Activities’ means all the functions and activities more fully described in Section 3 hereof.
|
|
|
1.1.3
|
‘Reimbursement of Secondment Costs’ means the monthly payments which, calculated in accordance with the terms set out in Schedule
‘A’ hereof, OOGTK agrees to pay to TSS during the term of this Agreement.
|
1
|
1.2
|
Interpretation: In this Agreement:
|
|
|
1.2.1
|
References to persons include references to bodies corporate and unincorporate.
|
|
|
1.2.2
|
Unless the context requires otherwise, words in the singular number include the plural number and vice versa.
|
|
|
1.2.3
|
Words in one gender include all other genders.
|
|
|
1.2.4
|
Clause headings are inserted for convenience only and shall not effect the construction of this Agreement and, unless otherwise specified, all
references to clauses and schedules are to clauses of, and schedules to, this Agreement.
|
|
2.1
|
TSS hereby seconds the Secondees to OOGTK upon the terms and conditions set forth herein and OOGTK accepts such secondment on the said terms and
conditions. During the term of this Agreement, and unless otherwise agreed in writing between the parties, the Secondees shall be instructed to devote their work effort to OOGTK as may be necessary for the Secondees to engage in the Secondment
Activities.
|
|
2.2
|
The Secondees shall at no time be, nor be deemed to be, employees of OOGTK.
|
|
2.3
|
In consideration of TSS’s secondment of the Secondees, OOGTK agrees that it shall pay the Reimbursement of Secondment Costs (reference
Schedule ‘A’ hereof) to TSS.
|
|
3.1
|
The Parties agree that the Secondees shall be directed to assist with conversion and construction supervision activities in respect of the FPSO
unit as contemplated in the Contract. The activities include, without limiting the generality of the foregoing, observing, as to quality, quantity and storage condition at the Jurong Shipyard, all materials before installation on the FPSO unit,
observing the inspection of assembly work on the hull structure, hull outfitting and coating application in respect of the FPSO unit, as well as topside and machinery assembly and outfitting and electrical outfitting; attending and witnessing the
mooring trial and sea trial of the FPSO unit and any other related activities in accordance with the Contract as OOGTK may deem necessary. The Secondees shall act at all times in accordance with the best commercial and safety practices required in
the offshore oil industry and in accordance with the policies and standards communicated to the Secondees by OOGTK from time to time.
|
|
3.2
|
The Secondees shall also be required to perform any other activities in Singapore relating to the foregoing as OOGTK may reasonably direct.
|
|
4.1
|
In consideration for the provision of Secondees set out in Clauses 2 and 3 OOGTK shall pay to TSS certain fees, for the Secondees provided (the
“Secondee Fees”) in accordance with this Clause 4.
|
|
4.2
|
TSS shall have the right to issue invoices (a “Secondee Fee Invoice”) to OOGTK from time to time with respect to the Secondees Fees for
the Secondees provided.
|
2
|
4.3
|
The Secondee Fees shall be calculated as provided in Schedule A of this Agreement.
|
|
4.4
|
The Owner acknowledges that it has received from TSS an estimate of the aggregate Secondee Fees expected to be incurred in accordance with Schedule
A and TSS agrees to update such estimate to the extent TSS believes that the accuracy of such estimate may be improved.
|
|
4.5
|
In no event shall the total of all Secondee Fees be an amount greater than USD48,100,000.00 (forty eight million and one hundred thousand U.S.
Dollars).
|
|
5
|
Direction, Supervision and Indemnification
|
|
5.1
|
OOGTK acknowledges that this is not a contract for services, but rather a contract only for the secondment of the Secondees by TSS to OOGTK for
such period as the performance of Secondment Activities by the Secondees may be required by OOGTK. Accordingly, it is agreed that during the period of their respective secondments hereunder the Secondees shall report to and be directed or supervised
not by TSS but rather by OOGTK (or such person(s) as OOGTK might determine and appoint) which shall abide by the terms and conditions of the employment or other arrangements existing between TSS and each of the Secondees from time to time. OOGTK
shall also be responsible, at its own expense, for any ongoing training and development of the Secondees during the period of their respective secondments hereunder, in consultation with TSS as necessary.
|
|
5.2
|
OOGTK releases and shall indemnify and hold harmless TSS, its directors, officers, employees and agents from any and all claims, proceedings,
causes of action, suits, costs, expenses, demands and liabilities whatsoever which may be brought against them due to this Agreement including, without limitation, those claims, proceedings, causes of action, suits, costs, expenses, demands and
liabilities based upon or arising out of any act or omission of any of the Secondees which might arise in the course of the Secondees reporting to and being directed or supervised by OOGTK (or such person(s) as OOGTK might determine and appoint).
|
|
6
|
Term, Termination and Variation
|
|
6.1
|
This Agreement shall become effective on the Effective Date and, unless sooner terminated pursuant to sub-clause 5.2 hereof or the separate
agreement of the Parties in writing, shall continue for as long as the Secondment Activities in respect of the Contract are required by OOGTK.
|
|
6.2
|
This Agreement shall automatically terminate:
|
|
6.2.1
|
at the option of the Party not in breach, if the other Party breaches a material obligation of this Agreement and fails to remedy the breach within
thirty (30) days after written notice thereof;
|
|
6.2.2
|
at the option of the other Party, if a Party makes a general assignment for the benefit of its creditors, files a petition in bankruptcy or for
liquidation, is adjudged insolvent or bankrupt, commences any proceedings for a reorganization or arrangement of debts, dissolution, or liquidation under any law or statute or any jurisdiction applicable thereto, or if any such proceedings shall be
commenced and not dismissed or otherwise disposed of within thirty (30) days;
|
|
6.2.3
|
if a final judgment, order or decree which materially and adversely affects the ability of either Party to perform its obligations under this
Agreement shall have been obtained or entered against the other Party and such judgment, order or decree shall not have been vacated, discharged or stayed; or
|
3
|
6.2.4
|
at any time by either Party giving the other Party at least thirty (30) days written notice of termination.
|
|
6.3
|
Upon termination of this Agreement the Reimbursement of Secondment Costs (reference Schedule ‘A’ hereof) then payable by OOGTK to TSS
shall be calculated and paid to the actual date of termination. Any overpayment shall be refunded by TSS to OOGTK and any underpayment shall be paid by OOGTK to TSS.
|
|
6.4
|
In the event of termination as herein provided, OOGTK will be fully responsible and liable for any cost or expense incurred by TSS prior to such
termination or as a consequence of such termination and TSS shall remain liable to OOGTK to account for monies received by TSS prior to termination and not expended prior to or as a consequence of termination, other than a termination under 6.2.1 as
a result of a breach by TSS of a material obligation.
|
|
6.5
|
Upon the termination of this Agreement, TSS shall ensure that each Secondee shall immediately deliver to OOGTK all properties and assets belonging
to OOGTK which may be in their possession or under their control.
|
|
7.1
|
OOGTK ratifies and confirms and undertakes at all times to ratify and confirm whatever may be properly done or caused to be done by TSS in
providing the Secondees to OOGTK under the terms of this Agreement.
|
|
8.1
|
Neither Party shall be liable for any failure to perform its obligations under this Agreement due to any cause beyond its reasonable control.
|
|
9.1
|
This Agreement forms the entire agreement between the Parties with respect to the subject matter hereof and supersedes and replaces all previous
agreements, written or oral, between the parties with respect to the subject matter hereof.
|
|
10.1
|
If any provision herein is held to be void or unenforceable, the validity and enforceability of the remaining provisions herein shall remain
unaffected and enforceable.
|
|
11
|
Relationship between the Parties
|
|
11.1
|
Nothing herein contained shall be interpreted so as to create a partnership, joint venture, employee or agency relationship between OOGTK and TSS.
|
4
|
12
|
Confidential Information
|
12.1 Each Party (the “Receiving Party”) shall keep confidential, both during and after the currency
of this Agreement, all information relating in any way to the other Party (the “Disclosing Party”) that it has acquired or developed during the term of this Agreement, including the execution and existence of this Agreement. The foregoing
shall not apply to such information which is generally known to the public other than by way of breach of this Agreement by the Receiving Party and shall not apply to the extent that the Receiving Party is required by law to disclose any such
information. The Receiving Party shall not make use of such information for any purpose other than in the course of doing what is required of it under this Agreement. The Disclosing Party shall be entitled to any equitable remedy available at law or
equity, including specific performance, against a breach by the Receiving Party of this obligation.
|
13.1
|
This Agreement shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this
Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment hereof save to the extent necessary to give effect to the provisions of this Section 13.
|
|
13.2
|
The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the
arbitration proceedings are commenced.
|
|
13.3
|
The reference shall be to three arbitrators. A Party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such
appointment in writing to the other Party requiring the other Party to appoint its own arbitrator within 14 days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other Party appoints its own arbitrator and
gives notice that it has done so within the 14 days specified. If the other Party does not appoint its own arbitrator and gives notice that it has done so within the 14 days specified, the Party referring a dispute to arbitration may, without the
requirement of any further prior notice to the other Party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both Parties as if he had been appointed by
agreement.
|
|
13.4
|
Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
|
|
13.5
|
In cases where neither the claim nor any counterclaim exceeds the sum of USD 50,000 (or such other sum as the Parties may agree) the arbitration
shall be conducted in accordance with LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
|
|
14
|
Modification and Inurement
|
|
14.1
|
This Agreement shall not be amended, altered or modified except by an instrument in writing executed by the Parties hereto and shall be binding
upon and inure to the benefit of the Parties hereto and be binding upon and inure to the benefit of their respective successors and assigns.
|
|
15.1 (a)
|
The benefits and obligations of this Agreement may not be assigned by TSS without the express written consent of OOGTK, such consent not to be
unreasonably withheld.
|
|
|
(b)
|
The benefits and obligations of this Agreement may not be assigned by OOGTK without the express written consent of TSS, such consent not to be
unreasonably withheld. Notwithstanding the preceding sentence, OOGTK is hereby authorized to assign this Agreement as a security under financing agreements.
|
5
|
16.1
|
All notices, requests, demands and other communications given or made in accordance with the provisions of this Agreement shall be in writing and
shall be given either by hand or by fax to the addresses below and shall be deemed to have been given when actually received:
|
|
|
|
|
|
If to OOGTK:
|
|
If to TSS:
|
|
OOGTK Libra GmbH & Co KG
Lothringerstraße 16/8
1030 Vienna
|
|
Teekay Shipping (Singapore) Pte. Ltd.
8
Shenton Way
#41-01 AXA Tower
Singapore 068811
|
|
|
|
|
Fax: (+43) 1 710 504519
|
|
Fax: (+65) 6222 3338
|
|
|
|
|
Attention
: Managing Director
|
|
Attention
: Managing Director
|
|
17.1
|
The failure of either Party to enforce any term of this Agreement shall not act as a waiver. Any waiver must be specifically stated as such in
writing.
|
|
18.1
|
Contractor shall commit no act that is an offence under the U.S. Foreign Corrupt Practices Act, under the O.E.C.D. Convention on Combating Bribery
of Foreign Public Officials in International Business Transactions or under the United Kingdom Bribery Act 2010.
|
|
19.1
|
This Agreement may be executed in one or more signed counterparts, facsimile or otherwise, which shall together form one instrument.
|
|
20.1
|
No provision of this Agreement is enforceable by a person who is not a party to it.
|
|
21
|
Limitation of Liability
|
|
21.1
|
In no event shall OOGTK have any liability under or in connection with this Agreement in respect of all and any claims whatsoever and howsoever
arising and whether in contract, tort, negligence, breach of statutory duty or otherwise other than the liability for payment of the Secondee Fees in accordance with the terms of this Agreement.
|
|
21.2
|
The aggregate liability of TSS, its officers, employees and agents, under or in connection with this Agreement, in respect of all and any claims
whatsoever and howsoever arising and whether in contract, tort, negligence, breach of statutory duty, or otherwise shall not exceed ten per cent (10%) of the amount of the total Secondee Fees invoiced by TSS under this Agreement.
|
6
|
21.4
|
Without limiting the generality of Clauses 21.1 and 21.2:
|
|
|
i.
|
no party (nor its officers, employees and agents) shall have any liability whatsoever to any other party for any Consequential Loss; and
|
|
|
ii.
|
TSS shall not be liable for any action taken by it or failed to be taken by it in good faith under or in connection with this Agreement unless
directly caused by its negligence or misconduct.
|
IN WITNESS
whereof the Parties hereto have caused this
Agreement to be executed by their duly authorized officers the day and year first above written
|
|
|
|
|
|
|
|
|
|
|
OOGTK LIBRA GmbH & Co KG
By OOGTK Libra GmbH
its General Partner
|
|
|
|
TEEKAY SHIPPING (SINGAPORE) PTE.
LTD
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
By:
|
|
|
|
Paul Doralt
|
|
|
|
Name:
|
|
Managing Director
|
|
|
|
Title:
|
7
SCHEDULE ‘A’
SECONDMENT FEES
|
1.
|
In consideration of TSS seconding the Secondees to OOGTK, OOGTK shall make monthly payments to TSS, in arrears, during the term of this Agreement,
such payments being comprised of an amount equal to the aggregate of (i) all salary and employment related costs, and (ii) all costs reasonably incurred by TSS and previously approved by OOGTK relating to obtaining personnel under
secondment arrangements (collectively, the “Costs and Expenses”) as TSS may reasonably have incurred for the month in question to enable it to have the Secondees to second to OOGTK.
|
For the avoidance of doubt:
(i) costs which relate directly to the normal activities of TSS, including the costs of any TSS personnel who are not seconded
to OOGTK, are not to be deemed a component of Costs and Expenses and will not be reimbursed to TSS by OOGTK under the terms of this agreement;
(ii) the last invoice issued under this Agreement shall include any employment related benefits that have accrued during
the term of this Agreement (i.e. holidays, legal additional salaries – thirteenth month salary, etc.); and
(iii) the total monthly remuneration shall not include any employment related benefits that have accrued before the
commencement of this Agreement.
|
2.
|
At its option, TSS shall issue an invoice, or invoices, each month or each quarter to OOGTK in respect of the Reimbursement of Secondment Costs for
the month or, as the case may be, the months in the quarter preceding such invoice and OOGTK shall pay the full amount of each such invoice to TSS within thirty (30) days of the date of each such invoice.
|
Amounts which have been incurred by TSS in US Dollars, to obtain personnel under secondment arrangements, will also be invoiced
to OOGTK in US Dollars. TSS may at its option instruct OOGTK to pay such amounts directly to the company which has provided such personnel. Amounts which have been incurred by TSS in Singapore Dollars will be invoiced to OOGTK in US Dollars
equivalent of the amount of Singapore Dollars using an exchange rate which ensures that TSS dos not incur any foreign exchange gain or loss on settlement of the invoice.
8
Exhibit E
to
Credit Agreement
FORM OF TRANSFER CERTIFICATE
TAKING THIS DOCUMENT OR ANY CERTIFIED COPY HEREOF OR ANY OTHER SIGNED DOCUMENT CONTAINING A WRITTEN CONFIRMATION OF OR REFERENCE TO THE
TRANSACTIONS CONTEMPLATED HEREIN INTO AUSTRIA, OR SENDING ANY EMAIL COMMUNICATION CARRYING AN ELECTRONIC SIGNATURE TO WHICH A PDF-SCAN OF THIS DOCUMENT IS ATTACHED OR WHICH OTHERWISE REFERS TO THE TRANSACTIONS HEREIN TO OR FROM AUSTRIA MAY TRIGGER
THE IMPOSITION OF AUSTRIAN STAMP DUTY.
ACCORDINGLY, KEEP THIS DOCUMENT AS WELL AS ALL CERTIFIED COPIES HEREOF AND ANY OTHER SIGNED
DOCUMENT CONTAINING A REFERENCE TO THE TRANSACTIONS CONTEMPLATED HEREIN OUTSIDE OF AUSTRIA AND AVOID SENDING ANY EMAIL COMMUNICATION CARRYING AN ELECTRONIC SIGNATURE TO WHICH A PDF-SCAN OF THIS DOCUMENT IS ATTACHED OR WHICH OTHERWISE REFERS TO THE
TRANSACTIONS HEREIN TO OR FROM AUSTRIA.
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To:
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HSBC Bank USA, National Association as Facility Agent (the
“Facility Agent”)
and as
Collateral Agent (the
“Collateral
Agent”)
OOGTK Libra GmbH & Co KG (the
“Borrower”
)
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From:
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[The Existing Lender] (the
“Existing
Lender”)
and [The New Lender] (the “
New Lender
”)
|
[Date]
Dear Sirs,
Credit Agreement,
dated [
●
] (as such credit agreement may hereafter be amended, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), among the Borrower, certain lenders party thereto, the Facility Agent
and the Collateral Agent
|
1.
|
We refer to the Credit Agreement. This is a Transfer Certificate. Unless otherwise defined herein, terms defined in the Credit Agreement are used
herein as therein defined.
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2.
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We refer to Section 9.13(b) of the Credit Agreement, and in that regard:
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(a)
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender all or part of the Existing Lender’s
Commitment, rights and obligations referred to in Annex I hereto in accordance with Section 9.13(b).
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(b)
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The Facility Agent has notified the Existing Lender and the New Lender that the performance by the Facility Agent of all necessary “know your
customer” or other similar checks under all applicable Laws and regulations in relation to the assignment to the New Lender of all or part of the Existing Lender’s rights and obligations is complete.
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(c)
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The proposed Transfer Date is [•].
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(d)
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The Applicable Lending Office and address, fax number and attention details for notices of the New Lender for the purposes of Section 9.3 of
the Credit Agreement are set out in Annex I hereto.
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3.
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The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in Section 9.13(c) of the Credit
Agreement.
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4.
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The Existing Lender hereby transfers to the New Lender without recourse and without representation or warranty (other than as expressly provided
herein), and the New Lender hereby accepts from the Existing Lender, a portion of the New Lender’s rights and obligations under the Credit Agreement as of the Transfer Date (as hereinafter defined) specified in Item 6 of Annex I (the
“
Transferred Share
”) including, without limitation, all rights and obligations with respect to the Transferred Share of the outstanding Loans. After giving effect to such transfer, the amount of the outstanding Loans owing to the
New Lender will be as set forth in Item 6 of Annex I.
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5.
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The Existing Lender (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) has obtained the prior consent of the Borrower to the transfer contemplated herein to the extent such consent is required under Section 9.13 of the Credit Agreement;
(iii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the other Financing Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or the other Financing Documents or any other instrument or document furnished pursuant thereto; and (iv) makes no representation or warranty and
assumes no responsibility with respect to the financial condition or prospects of the Borrower or the performance or observance by the Borrower of any of its obligations under the Credit Agreement or the other Financing Documents or any other
instrument or document furnished pursuant thereto.
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6.
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The New Lender (i) confirms that it has received a copy of the Credit Agreement, the other Financing Documents and the Intercreditor
Agreement, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Transfer Certificate; (ii) agrees that it will, independently and without reliance upon the
Facility Agent, the Existing Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement;
(iii) appoints and authorizes the Agents to take such action each as an agent on its behalf and to exercise such powers under the Credit Agreement and the other Financing Documents as are delegated to the Agents by the terms thereof, together
with such powers as are reasonably incidental thereto and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement and the other Financing Documents are required to be
performed by it as a Lender.
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7.
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Following the execution of this Transfer Certificate by the Existing Lender and the New Lender, an executed original hereof will be delivered to
each of the Facility Agent and the Borrower. The effective date of this Transfer Certificate shall be [Date] (the “Transfer Date”).
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8.
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Upon the delivery of a fully executed original hereof to each of the Facility Agent and the Borrower, as of the Transfer Date, (i) the New
Lender shall be a party to the Credit Agreement and, to the extent provided in this Transfer Certificate, have the rights and obligations of a Lender thereunder and under the other Financing Documents and (ii) the Existing Lender shall, to the
extent provided in this Transfer Certificate, relinquish its rights and be released from its obligations under the Credit Agreement and the other Financing Documents.
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9.
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On the Transfer Date, [(a) the Existing Lender agrees to pay to the New Lender the fee specified in Item 3 of Annex I, and (b)] the New Lender
shall pay to the Existing Lender an amount specified by the Existing Lender in writing which represents the Transferred Share of the principal amount of the Loans made pursuant to the Credit Agreement which are outstanding on the Transfer Date, and
which are being transferred hereunder. The Existing Lender and the New Lender shall make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Transfer Date directly between themselves on the Transfer Date. It
is agreed that the New Lender shall be entitled to all interest on the Transferred Share of the outstanding Loans at the rates specified in the Credit Agreement which accrues from and after the Transfer Date, such interest to be paid by the Facility
Agent directly to the New Lender in accordance with the terms of the Credit Agreement. It is further agreed that all payments of principal made on the Transferred Share of the outstanding Loans which occur from and after the Transfer Date will be
paid directly by the Facility Agent to the New Lender.
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10.
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The New Lender and the Existing Lender each confirms that the Facility Agent has been paid a processing fee in the amount of $3,500 with respect to
the transfer contemplated herein.
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11.
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This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English Law.
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12.
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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.
|
ANNEX I
TO
THE TRANSFER CERTIFICATE
TAKING THIS DOCUMENT OR ANY CERTIFIED COPY HEREOF OR ANY OTHER SIGNED DOCUMENT CONTAINING A WRITTEN CONFIRMATION OF OR REFERENCE TO THE
TRANSACTIONS CONTEMPLATED HEREIN INTO AUSTRIA, OR SENDING ANY EMAIL COMMUNICATION CARRYING AN ELECTRONIC SIGNATURE TO WHICH A PDF-SCAN OF THIS DOCUMENT IS ATTACHED OR WHICH OTHERWISE REFERS TO THE TRANSACTIONS HEREIN TO OR FROM AUSTRIA MAY TRIGGER
THE IMPOSITION OF AUSTRIAN STAMP DUTY.
ACCORDINGLY, KEEP THIS DOCUMENT AS WELL AS ALL CERTIFIED COPIES HEREOF AND ANY OTHER SIGNED
DOCUMENT CONTAINING A REFERENCE TO THE TRANSACTIONS CONTEMPLATED HEREIN OUTSIDE OF AUSTRIA AND AVOID SENDING ANY EMAIL COMMUNICATION CARRYING AN ELECTRONIC SIGNATURE TO WHICH A PDF-SCAN OF THIS DOCUMENT IS ATTACHED OR WHICH OTHERWISE REFERS TO THE
TRANSACTIONS HEREIN TO OR FROM AUSTRIA.
Commitment/rights and obligations to be transferred
[insert relevant details]
[Applicable Lending Office address, fax number and attention details for notices and account details for payments,]
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1.
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Borrower: OOGTK Libra GmbH & Co KG
|
2. Name and date of Credit Agreement and other documents or agreements evidencing or securing
the Obligations: (1) the Credit Agreement, dated as of [•], among OOGTK Libra GmbH & Co KG, a limited partnership (
Kommanditgesellschaft
) organized and existing under the laws of Austria with registration number FN 423769
s, as the Borrower, the financial institutions from time to time party thereto as Lenders, and HSBC Bank USA, National Association, as Facility Agent and as Collateral Agent and (2) the Security Documents described in the Credit Agreement.
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[3.
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Fee payable by Existing Lender to New Lender: $[•]]
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4.
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Notice Address (for New Lender):
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5.
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New Lender’s Payment Instructions:
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6.
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Transferred Share (as of Transfer Date):
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(a)
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Aggregate principal amount of Loans: $[•] ([•]%)
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(b)
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Commitment: $[•] ([•]%)
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IN WITNESS WHEREOF, the parties hereto have caused this Transfer Certificate to
be executed by their duly authorized officers, as of the date first above written.
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[NAME OF EXISTING LENDER]
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By:
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Name:
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Title:
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[NAME OF NEW LENDER]
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By:
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Name:
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Title:
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This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [•].
HSBC Bank USA, National Association
By:
Exhibit F
to
Credit Agreement
[RESERVED]
Exhibit G
to
Credit Agreement
FORM OF OPERATING PLAN
[
attached
]
FPSO PIONEIRO DE LIBRA
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02
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12.05.2015
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Updates and alignment with latest inputs from the project
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Daniel
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N/A
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Daniel
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01
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18.02.2015
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Issue for Use
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Daniel
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Monique
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Daniel
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00
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21.01.2015
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Issue for Internal check
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Daniel
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TBA
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Daniel
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Rev.
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Date
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Reason for issue
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Prepared
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Checked
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Approved
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Document Status
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Owner Company Name / Logo
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0
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Draft
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1
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Issued for Internal Check /
Re-Issued
for Internal Check
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2
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Issued for Review / Re-Issued for Review
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3
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Comments from Review included
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4
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Issued for Construction / Re-Issued for Construction
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5
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As-Built
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6
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VOID
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+I
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Issued for Information / Re-Issued for Information
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Sub Supplier Company Name / Logo
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N/A
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Originator/Contractor/Supplier Company Name/ Logo
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Sub Supplier Document Number
N/A
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Originator/Contractor/Supplier Document Number
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N/A
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Project no
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Originator no.
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Contract/ PO No
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Document Title
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OOGTK02
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01
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N/A
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PFO Execution Plan
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Area
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Discipline
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System
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Doc.
type
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Client Document Number
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No of
Sheets
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SFI
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Document
Status
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Rev
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N/A
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Z
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00
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FD
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OOGTK02-01-O-00-KA-000001-001
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15
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-NA
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5
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00
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OOGTK
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FPSO PIONEIRO DE LIBRA
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PFO Execution Plan
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DOC.NO.
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:
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OOGTK02-01-O-00-KA-000001-001
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REV.
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:
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00
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DATE
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:
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17.02.2014
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PAGE
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:
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2 of 15
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PFO EXECUTION PLAN
TABLE OF CONTENTS:
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1
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INTRODUCTION
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3
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2
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LIST OF REFERENCES
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4
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2.1
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Definitions
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5
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2.2
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Abbreviations
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5
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3
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OBJECTIVES
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7
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3.1
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Scope of Work
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7
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4
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ASSIGNED PFO MANAGER AND AUTHORITY
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8
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5
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ASSIGNMENTS AND STRATEGIES
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9
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5.1
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Governing Documents
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9
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5.2
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A - Operations Support to Project
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9
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5.3
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B - Develop Operations Organization
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9
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5.4
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C - Operation Management Systems
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10
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5.5
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D - Operations Support Agreements
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11
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5.6
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E - Onshore Facilities
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11
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5.7
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F - Sailing, Installation and Start-up
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12
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5.8
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G - Spare Parts Consumables Tools and Movables
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12
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5.9
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H - PFO Related Approvals and Compliance
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12
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5.10
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I - OPEX Review and Forecast
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13
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5.11
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J - PFO Execution Controls of Schedule and Cost
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13
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5.11.1 Scope Planning
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13
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5.11.2 Scheduling
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13
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5.11.3 Cost
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14
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5.11.4 Human Resources Management
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14
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5.11.5 Reporting
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14
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6
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HANDOVER FROM PROJECTS TO OPERATIONS AND PFO CLOSE-OUT
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15
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6.1
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HANDOVER FROM PROJECTS TO OPERATION
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15
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6.2
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PFO CLOSE-OUT
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15
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OOGTK
|
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FPSO PIONEIRO DE LIBRA
|
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PFO Execution Plan
|
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DOC.NO.
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:
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OOGTK02-01-O-00-KA-000001-001
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REV.
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:
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00
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DATE
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:
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17.02.2014
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PAGE
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:
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3 of 15
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The purpose of this document is to establish the preparations for operation plan (PFO), objectives and requirements for the Petrobras FPSO
PIONEIRO DE LIBRA Field Development.
The FPSO PIONEIRO DE LIBRA Area development consists of a major oil discovery that has been made in
the Santos basin: LIBRA field. The field is located approximately 180 km off Rio de Janeiro’s coast in 2400 m water depth. Petrobras, PB operates the block with a 40% interest (Shell 20%, Total 20%, China National Petroleum Corporation (CNPC)
10% and China National Offshore Oil Corporation (CNOOC) 10%).
“Operations” covers the areas of oil and gas production,
maintenance, inspection, “brown fields” modifications, offloading, supply and logistics applicable to the field assets both above and below the water line, along with the associated onshore technical, financial and management coordination
of these functions in an integrated fashion.
Preparations for Operations “PFO” covers all disciplines necessary to safeguard a
robust takeover of the FPSO from Project ensuring that all infra-structure, personnel and other necessary resources are available to guarantee the safe and cost effective Sail away, Installation, start-up and future operations. PFO shall also ensure
other intangible deliverables items as: documents and information stored on servers, agreements with suppliers of goods and services, agreements with employees, completed training programs for employees, Take-Over Certificates etc.
The FPSO PIONEIRO DE LIBRA FPSO shall be moored offshore Brazil, at a location with water depth up to 2400 meters. Fatigue life and hull
substantial corrosion criteria used during the design shall comply with the Classification Society, CS requirements to allow continuous offshore operation during its operational lifetime with no dry-docking in a shipyard. In addition, the FPSO shall
be fitted with facilities that enable any maintenance required during the operational lifetime as well as the surveys required by the CS, Port Administration or Flag Statutory requirements without affecting the production/processing capacity of the
Unit.
The FPSO will receive the production from up to 2 subsea oil wells and and 1 gas injector and must have production plant facilities
to process fluids, stabilize them and separate produced water and natural gas.
Produced gas shall be compressed, dehydrated, and used as
a fuel gas and for lifting oil production. Surplus gas will be exported through a gas pipeline to Client’s gas pipeline system or reinjected into dedicated wells.
According to Client’s requirements, the gas on pipeline system could be reinjected to dedicated reservoir. Processed liquids will be
metered, stored in the vessel cargo storage tanks and offloaded to shuttle tankers.
This document will be updated given changes in
development, operations and company circumstances and administered by the OOGTK Operations Advisor.
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|
OOGTK
|
|
|
|
|
|
FPSO PIONEIRO DE LIBRA
|
|
PFO Execution Plan
|
|
DOC.NO.
|
|
:
|
|
OOGTK02-01-O-00-KA-000001-001
|
|
|
|
REV.
|
|
:
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|
00
|
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DATE
|
|
:
|
|
17.02.2014
|
|
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PAGE
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:
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4 of 15
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This document should be read in conjunction with the following referenced Operations Philosophies and Governing Documents:
|
|
-
|
OOGTK02-14-O-00-FD-000002-001-Maintenance Philosophy
|
|
|
-
|
OOGTK02-01-O-00-FD-000001-001-Spare Part Philosophy
|
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|
-
|
OOGTK02-14-O-00-FD-000001-001-Operations Recruitment & Manning Plan
|
All of the above in their latest issued revision.
Documents generated and under PFO’s responsability:
OOGTK02-01-O-00-LA-000002-001 - A1 – Critical Item/Risk Register List
OOGTK02-01-O-00-TB-000004-001 - B1 – Offshore Organization Chart
OOGTK02-01-O-00-TB-000005-001 - B2 – Onshore Organization Chart
OOGTK02-01-O-00-TB-000006-001 - B3 – PFO trainning Matrix
OOGTK02-01-O-00-TB-000007-001 - B4 – Operation phase Trainning Matrix
OOGTK02-01-O-00-LA-000001-001 - C1 – Management System Master Document List
OOGTK02-01-O-00-LA-000003-001 - D1 – PFO and Operation Agreements list
OOGTK02-01-O-00-LA-000004-001 - E1 – Onshore Facilities Requirements
OOGTK02-01-O-00-TB-000001-001 - F1 – POB Plan for Departure, Sail Away and Installation
OOGTK02-01-O-00-LA-000005-001 - F2 – Sail Away Preparations Check List
OOGTK02-01-O-00-TB-000002-001 - F3 – Voyage Plan (covering HSE requirements)
OOGTK02-01-O-00-TB-000003-001 - F4 – South Africa crew Change Plan
OOGTK02-01-O-00-KA-000002-001 - F5 – Hook up Procedure
OOGTK02-01-O-00-KA-000003-001 - F6 – Riser Pull-in Procedure
OOGTK02-01-O-00-KA-000004-001 - F7 – 1st oil start-up Procedure
OOGTK02-01-O-00-LA-000006-001 - G1 – Spare part list
OOGTK02-01-O-00-LA-000007-001 - G2 – Consumables list
OOGTK02-01-O-00-LA-000008-001 - G3 – Tools and movables list
OOGTK02-01-O-00-LA-000009-001 - H1 – Documents to be delivered to Petrobras
OOGTK02-01-O-00-TB-000008-001 - H2 – Compliance Matrix (handled by Project but continued by PFO)
OOGTK02-01-AA-00001 - I1 – First Year OPEX Forecast
OOGTK02-01-AA-00002 - I2 – Second Year OPEX Forecast
OOGTK02-01-TA-00001 - J1 – PFO Overall detailed Schedule
OOGTK02-01-KA-00001 - J2 – PFO Organization Chart
OOGTK02-01-TA-00002 - J3 – PFO Team Vacation Plan
OOGTK02-01-LA-00001 - J4 – PFO Document List
OOGTK02-01-KA-00002 - J5 – PFO Team Management Control
OOGTK02-01-KA-00003 - J6 – Take-Over Procedure
OOGTK02-01-AA-00003 - J7 – PFO Histogram & Cost
The majority of above documents are “live” documents that will be continously updated and used for the effective PFO management.
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OOGTK
|
|
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FPSO PIONEIRO DE LIBRA
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PFO Execution Plan
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DOC.NO.
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OOGTK02-01-O-00-KA-000001-001
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REV.
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Barrier
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Includes any technical, operational or organisational element in place that can prevent an incident from occurring, or that can prevent an incident from escalating into an accident.
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Client
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Oil field concession owner(Petrobras)
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Safety Critical Function / Element
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Those functions, systems and components that provide a safety benefit or could result in an increase in risk upon failure, as identified in the Written Scheme of Examination for the
EWT-LIBRA
operation.
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Strategy
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Document describing in broad, non-specific terms how project objectives will be realised within a particular area; the framework for lower level Plans.
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Procedure
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A series of steps taken to accomplish an end result.
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Process
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A network of linked activities that take an input and transform it to an output.
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Plan
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Document describing what has to be done to implement a Strategy successfully, including specific activities, timing and resources (i.e. who does what, when and where).
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Policy
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A formal statement of mandatory guiding principle designed to influence decisions or actions
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Guideline
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A recommended approach for conducting an activity or task, utilizing a product, etc.
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Goal
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High level statement that provides the overall context for what the strategy should accomplish
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System Ownership
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Concept of identifying the components and boundaries of a system and making key individuals and teams accountable for the delivery of performance from the system,
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AIKPI
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Asset Integrity Key Performance Indicators
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ALARP
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As Low As Reasonably Practicable
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AP
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Administrative Procedure
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ANP
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Petroleum National Oil Agency
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BoD
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Basis of Design
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CMMS
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Computer Maintenance Management System.
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COSHH
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Control of Substances Hazardous to Health (COSHH)
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DFO
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Documentation for Operations
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CCR
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Central Control Room
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COD
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Commencement of Operation Date
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FAT
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Factory Acceptance Test
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FDP
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Field Development Plan
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FPSO
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Floating Production, Storage and Offloading (FPSO) facility
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OOGTK
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FPSO PIONEIRO DE LIBRA
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PFO Execution Plan
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DOC.NO.
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OOGTK02-01-O-00-KA-000001-001
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REV.
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HSE
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Health and Safety Executive
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HS&E
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Health, Safety and Environmental
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EIA
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Environmental Impact Assessment
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EP
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Environment Plan
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IMO
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International Maritime Organisation
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ISGOTT
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International Safety Guide for Oil Tankers & Terminals (ISGOTT)
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ISM
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International Safety Management
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KPI
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Key Performance Indicators
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KSP
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Key Service Provider (Petrobras contracts)
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LCC
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Life Cycle Cost
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LOP
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Life of Field Plan
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LOLER
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The lifting operations and lifting equipment regulations
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MAH
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Major Accident Hazards
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MOC
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Management of Change
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MS
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Management System
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MSDS
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Material Safety Data Sheet
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NPV
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Net Present Value
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OCIMF
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Oil Companies International Marine Forum
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OIM
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Offshore Installation Manager
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OLGA
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Pipeline Flow assurance Simulation
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OMS
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Operations Management System
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OOG
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Odebrecht Oil & Gas
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OSCP
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Oil Spill Contingency Plan
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PAS
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Production Accounting System
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PIMS
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Production Information Management System
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PSS
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Pipeline flow modelling
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PTW
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Permit to work
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QRA
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Quantitative Risk Assessment
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RAM
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Reliability Availability Maintainability
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REPETRO
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Special Importation Regime for Oil Industry for tax reduction
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RON
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Reservoir Operations Notice
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ROV
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Remote Operated Vehicle
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SAFOP
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Safety critical operations (review)
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SGSO
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Operational Safety Management System
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SIMOPS
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Simultaneous Operations
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SWR
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Safe Work Review
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TA
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Technical Authority
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TR
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Temporary Refuge
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VOC
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Volatile organic compounds
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WMS
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Work Management System
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OOGTK
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FPSO PIONEIRO DE LIBRA
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PFO Execution Plan
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DOC.NO.
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OOGTK02-01-O-00-KA-000001-001
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REV.
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The PFO objectives cover a wide range of scopes among different disciplines and geographical locations. For better understanding the PFO is
segregated into 10 different main items. Nevertheless during all PFO scopes execution the utmost focus is to ensure Health, Safety and Environmental (HS&E) risks are kept to the lowest practicable level (ALARP) during project, installation,
start-up and initial operations phase.
A – Operations Support to Project
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•
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to give sufficient and timely operational input to the project team during engineering, construction, mechanical completion and commissioning
phases.
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B – Develop Operations Organization
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•
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to recruit, establish and develop the Operational Organization (Onshore and Offshore)
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•
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to implement a culture that values good HS&E performance and individuals who demonstrates a duty of care ensuring a strong ownership behaviour
from stakeholders
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•
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to ensure that all job specific training are completed before Take-Over (ensuring a competent organization)
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C – Operation Management System
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•
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to establish all necessary Operational Management Systems and Procedures including IT Support Systems (a complete governance system for Operation)
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•
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to ensure that Operation Management System are operational 60 days before 1
st
Oil (COD)
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•
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to ensure asset integrity through implementation of an effective and robust maintenance’s management system.
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•
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to establish as-built Documents For Operation (DFO)
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D – Operations Support Agreements
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•
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to establish all necessary contracts to support the installation and future operations with regards to catering, critical equipment maintenance,
spares/consumables supply and etc…
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E – Onshore Facilities
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•
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to establish an operation office and warehouse as per contract requirements location as well as all licenses and permits necessaries for such
facilities to be able to function accordingly and in due time needed throughout the project
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F – Sailing,
Installation and Start-up
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•
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To plan and execute the sailing and offshore installation in the most safe and effective way including the preparation of HSE plans for the phases
of sailing, offshore installation and Start-Up
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•
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to facilitate the Pre Start-Up Audit
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•
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to ensure a production start-up as per planned schedule, in compliance with regulation and in according to agreed contracts.
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•
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to optimize operation during the initial operational period
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OOGTK
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FPSO PIONEIRO DE LIBRA
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PFO Execution Plan
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DOC.NO.
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OOGTK02-01-O-00-KA-000001-001
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G – Spare Parts, Consumables, Tools and Movables
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•
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to evaluate the equipment installed and ensure the FPSO is supplied with a robust spare part plans as per RAM evaluation as well as experience
carried from other units in operation within Brazil.
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•
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To ensure spare parts for the first 2 years operation with regards to critical equipment
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To ensure consumables for the sailing, arrival in Brazil and 2 months operation
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H – PFO Related Approvals and Compliance
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to go “beyond compliance” with local regulations in HS&E to meet accepted best practice.
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•
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to settle all necessary approvals and certificates necessary for arrival, installation and start –up in Brazil ensuring that there will be no
hold points from any local authority impacting on start-up schedule
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I – OPEX Review and Forecast
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•
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to review and evaluate the OPEX premises from BID and prepare the first 2 years OPEX forecast for management review
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J – PFO Management and Cost
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to ensure that schedule and budget are not only accomplished but optimized when possible
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to agree and conduct the Take-Over process from Commissioning to Operations ensuring traceability of all activities carried prior to such milestone
ensuring a smooth start-up
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to develop a skilled and motivated PFO management team and facilitate their work across geographical and organizational borders
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•
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to maintain a professional and good relationship towards Client’s operational representative and staff.
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4
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ASSIGNED PFO MANAGER AND AUTHORITY
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The PFO will be managed by the Operations Advisor and is accountable for the PFO work within approved plan, budget and time schedule and shall
identify and manage potential corrective actions to obtain the overall objectives.
The Operations Advisor will have functional reporting
to the Project Director and act as the Operation Manager during the PFO work and he/she has the corresponding authority and responsibility until the final handover to operations occur to the permanent Operations Manager.
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OOGTK
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FPSO PIONEIRO DE LIBRA
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PFO Execution Plan
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DOC.NO.
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OOGTK02-01-O-00-KA-000001-001
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DATE
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5
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ASSIGNMENTS AND STRATEGIES
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The Operations Advisor will during his work adhere to following governing documents:
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The relevant parts of the Contract with the Client
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OOGTK’s Management System Manual (MSM)
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All related regulatory documentation
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5.2
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A—Operations Support to Project
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An effective and optimized team composed of operational personnel with broad and relevant experience from similar operations will be mobilized
to give input to the Project Team during the engineering and construction period. The details will be defined within the “Operations Recruitment & Manning Plan” document.
The above mentioned team will support the evaluation and review from critical documents such as P&IDs, Accommodation lay-out, General
Arrangements and etc.
It is also planned the participation of Operations Personnel within the HAZID and HAZOP since that it is critical
for the safe and smooth start-up of operations.
In a developed stage of the project there will be mobilization of operations personnel to
assist the Project during Mechanical Completion and Commissioning. This is critical not only to support the project but also to build up the familiarization, competence and skills needed during Sailing, Installation, Start-Up and Operation. This
will have to be done in the most cost effective way without jeopardizing the main focus to have a smooth start-up.
For this scope the
mobilized team is planned to stay continuously at Singapore Yard office.
Detailed scope for each position should be prepared containing
the scope, deliverables and deadlines expected.
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5.3
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B—Develop Operations Organization
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Offshore Organization:
During the project
phase a part of the offshore management team will be already mobilized to support the project with operational input. This team will be part of the permanent operational team. It is important to have part of the offshore management team composed of
existing operational teams from internal recruiting in order to maintain and spread the OOGTK’s way of work, philosophies and operational and QHSE culture.
The mobilization from the rest of the operations team will be detailed within the “Operations Recruitment & Manning Plan”
document that will follow the project schedule and milestones so that PFO provides the adequate team for the project needs within each phase.
The offshore organization chart estimated during the BID phase should be revisited for evaluation and updates, if any.
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OOGTK
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FPSO PIONEIRO DE LIBRA
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PFO Execution Plan
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DOC.NO.
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OOGTK02-01-O-00-KA-000001-001
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There should be a close cooperation with the units already operating in Brazil and the
project so that a training matrix is developed for both PFO and Operations phase.
Onshore Organization:
An onshore operations team should be developed / recruited. To maintain the knowledge and culture acquired from the units in operation is
highly recommended to have part of the team composed from existing operations teams within Brazil. This have to be planned in advance so replacements can be recruited and training and the units in operation are not jeopardized. Optimizations with
existing onshore structure should also be considered.
The onshore organization chart estimated during the BID phase should be revisited
for evaluation and updates, if any.
Some members from the Onshore Operations organization may be temporarily mobilized to Singapore in
case of need and for familiarization however the team will be located in Brazil.
The above described scopes should be carried in close
cooperation with HR Departments.
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5.4
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C—Operation Management Systems
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Management System:
A proper and robust
Management System needs to be defined and implemented before the vessel sail away as it have to be ready for any possible ANP SGSO to happen upon vessel arrival in Brazil.
Due to the complexity and “in house” knowledge required for the above mentioned scope it is recommended that an OIM undertake this
scope reporting to the Operations Advisor and engaging the required personnel with competence and skills to be responsible for each of the different documents and procedures to be covered that will involve also onshore team.
The above will also ensure that all required DFO is in place and implemented in due time needed prior to sail away.
It is also required that this scope is performed in close cooperation with the onshore QHSE Coordinator to ensure the necessary compliance
with local regulations.
The mobilization for the responsible to coordinate this scope should be evaluated in accordance with the project
schedule.
This position is planned to be permanently in Singapore coordinating with the different team members in other locations (mainly
the onshore team in Brazil) that will be contributing for the development of different documents.
Other Systems and IT infra-structure:
QHSE
—Synergi will be the software used with all necessary modules (HSE Incidents, Quality Incidents, Audits/Inspections, Ideas,
Behaviour Audits, Meetings, Non-Conformance, Emergency Preparedness, Positive events, Exposure values, Targets, Ideas/safecards)
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OOGTK
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FPSO PIONEIRO DE LIBRA
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PFO Execution Plan
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DOC.NO.
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OOGTK02-01-O-00-KA-000001-001
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Document Control
– A proper and robust Doc. Control Software should be defined
during PFO Execution and this may allow all documentation from PIMS to be automatically uploaded.
Maintenance System
– It is
required evaluation of MAXIMO system to be the one for Maintenance Management, Storage and Material Requisition controls as it is fully integrated with ORACLE. An evaluation will be performed to confirm, or not, this possibility. Otherwise it will
be based on STAR.
This scope will be led by the Chief Engineer mobilized at Singapore’s Yard office as it will be required close
cooperation with project team and access to all equipment vendors documentation and discussions.
Others such as Permit To Work Risk
Assessment (WISER), Process Monitoring (PI) and etc… will be based on existing ones used in other units operating.
To have the most
optimized and cost effective IT infra-structure the strategy will be to negotiate and implement and integrate the LIBRA IT infra-structure and support with the existing shared IT departments in OOG’s Rio office. This will be executed in early
stages of the project so that the shared team can give inputs and support already during project phase for the PFO scope.
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5.5
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D—Operations Support Agreements
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The strategy is, as far as practicable, to use vendors already contracted for existing unit for Service Agreements, but this also depends upon
the vendor’s chosen by the project.
The vendor list from the project will be review and be used as input for the “PFO and
Operation Agreements list” that will set not only the list but the priority and deadlines for each agreement to be closed.
This
scope will be dealt with directly by Operations Advisor supported by the supply chain coordinator to be recruited during PFO execution. Therefore it is not forecasted to demand any dedicated mobilization to Singapore.
Client’s expectations to localization of operations contract management will be clarified however Santos is already defined as the
location for personnel and material logistics
An “Onshore Facilities Requirements” document will describe all the necessary
minimum physical infra-structure required for both the office and warehouse. The first action for this scope will be to visit and get quotations from existing properties where it will be preferred the ones that contain the office and warehouse
within the same location evaluating also such location for daily commuting from the operations team.
Due to the licenses required for the
office and specially warehouse (e.g. REPETRO) the identification process should be started within minimum 1 year advance from the vessel arrival in order to guarantee that all are in place as well as possible refurbishment of the chosen property and
etc.
This scope will be handled by Operations Advisor with support from local team in Brazil and no mobilization is planned.
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OOGTK
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FPSO PIONEIRO DE LIBRA
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PFO Execution Plan
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DOC.NO.
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OOGTK02-01-O-00-KA-000001-001
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There may happen that part of the technical support team, contract management and other back
office departments will be based in OOGTK’s Rio office and this will have to be evaluated and verified during PFO execution.
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5.7
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F—Sailing, Installation and Start-up
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The PFO is responsible to plan and execute all the voyage plan to Brazil (including a possible stop in Cape Town) as well as prepare the
“Hook up Procedure”, “Pull-in Procedure” and “1st oil start-up Procedure”.
The resources to plan and
prepare such procedures will be part of the team already mobilized in Singapore as per “Operations Recruitment & Manning Plan” and will be from the offshore management team.
A Start-up Coordinator will be nominated to be dedicated solely on the execution of 1st oil start-up Procedure” and ensure that all
material and human resources needed for such plan are arranging and available in due time. Such Coordinator will be nominated during PFO execution and no specific Mobilization is planned, i.e. will be from the project or PFO team.
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5.8
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G—Spare Parts Consumables Tools and Movables
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The PFO will agree with project on how to support the necessary procurement for all spares, consumables, tools and movables needed. By the end
of the project this will be a highy load of work that could easely justify a dedicated procurement resource localy in Singapore (this support may be a local and does not necessarly means a mobilization).
All spares and consumables procurement will follow the premisses set forth in the document “Spare Part Philosophy” covering all
Critical Spares, Capital Spares, Insurance Spares, Commissioning +2 Year Spares, Consumable spares and Consumables. This will also be evaluated on a case to case basis by the PFO team before Purchase Orders are issued. The same strategy will be
implemented for tools listing and procurement where the inputs will come from existing units operating and experience from the offshore management team.
Within the “Spare Part List” it will be indicated and prioritized all Long Lead Items.
All movables (including containers, skips bottle racks and baskets to be used during operations) will be procured locally during project phase
due to the high cost of such items in Brazil comparing with Singapore. The quantities and types will take into account the experience from existing units operating in Brazil as well as the far distance in which this operation will take place that
can impose longer lead time for logistics from shore.
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5.9
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H—PFO Related Approvals and Compliance
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The project already has a dedicated resource for compliance covering the design and construction scopes and this will naturally pass on to PFO
as the sail away becomes closer. Nevertheless the PFO Team have a high focus on follow up and support the project compliance scope.
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OOGTK
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FPSO PIONEIRO DE LIBRA
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PFO Execution Plan
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DOC.NO.
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OOGTK02-01-O-00-KA-000001-001
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The nominated QHSE Coordinator for LIBRA will be responsible to maintain a Compliance Matrix
from PFO in addition to the one from project that will be focused specifically on the licenses for onshore facilities and arrival of the FPSO in Brazil. Therefore the QHSE Coordinator should be nominated in advance during the project phase to ensure
this scope is properly performed and a temporarily mobilization to Singapore will be required in a later stage of the project prior to sail away.
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5.10
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I—OPEX Review and Forecast
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The Operations Advisor, supported by the PFO Team, will review the estimated OPEX during the BID phase in order to review/fine tune the
forecast for the first and second year of operations based on the operations contracts being signed with actual figures, inputs from the actual costs for manpower, onshore infra-structures, spare parts, corporate support, insurances and others as
well as possible designe or strategy changes during project phase that could affect the OPEX.
This will have to be presented to the OOGTK
Management within 6 months prior to sail away in order to have enough time for possible optimizations and etc.
This scope will be executed by Operations
advisor supported by PFO Team and no specific mobilization is forecasted.
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5.11
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J—PFO Management and Cost
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It is a critical item to have the PFO proper planned in order to secure that all teams, infra-structure and systems are in place in due time
and cost effective way for the smooth transition from project into operations.
Numerous documents were prepared to enable the plan and
control all the PFO and these are listed on item 2 from this document.
The Scope of Work has been assessed and broken down into different
sub items from “A” to “J”.
5.11.2 Scheduling
Scheduling includes the processes required to accomplish timely completion of the PFO work.
Scheduling comprises: activity definition, activity sequencing, activity resource estimating, activity duration estimating, schedule
development and, schedule control.
Duration, taking into account constraints as e.g. availability of key personnel, will be estimated and
the time schedule will be developed and issued.
The overall structure of the time schedule is as follows:
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External Milestone at top
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•
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Summary schedule for each PFO scope item
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•
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Detailed schedule with logical relation for the activities within an item
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OOGTK
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FPSO PIONEIRO DE LIBRA
|
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PFO Execution Plan
|
|
DOC.NO.
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:
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OOGTK02-01-O-00-KA-000001-001
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REV.
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:
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00
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DATE
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:
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17.02.2014
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PAGE
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:
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14 of 15
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•
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Identification of possible Long Lead Items (mainly for Spare Parts)
|
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|
•
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Critical Path identification
|
The
purpose of cost management is planning, estimating, budgeting and controlling cost, so that the PFO work can be complete within the approved budget.
With
regards to procurement, in some specific situations safety and quality will prevail above cost.
|
5.11.4
|
Human Resources Management
|
The Human Resource Management below includes the process to organize and manage the PFO Team.
The PFO Team is the temporary organization mobilized to execute the PFO work, whereas the fully qualified and permanent Operational
Organization of the FPSO PIONEIRO DE LIBRA is a deliverable from PFO scope. Some key team members of the PFO Team will also be a part of the succeeding Operational Organization, this in order to be prepared for management positions during operation.
The resources mobilized during the project phase that will be part of the operations team in the future will follow the established
policy by PMT for all teams and no rotation or different agreements shall be made.
Human Resource Planning.
The PFO Organization Chart will be established as well as the mobilization schedule. All such related information should be included within the
“Operations Recruitment & Manning Plan”.
The needs from the project to the PFO team will change during the project
execution phase and the scope of some PFO team members will have to be updated. To have such flexibility each member from the PFO team will have its scope of work defined within the “PFO Team Management Control” document.
Mobilization
The main PFO team will be
mobilized as required by the main Project Plan (Histogram and Schedule). There may be necessity to mobilize temporary staff for some specific scopes. This should be managed as a “closed scope” so that the resource is de-mobilized as per
plan.
Additional staffing shall be agreed with Project Director and relevant stakeholders before implementation.
At a preliminary phase of the project a monthly report will be issued and later on will change into weekly or even daily report (sail away,
installation and start-up) as per necessity agreed between Operations Advisor and Project Director.
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OOGTK
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FPSO PIONEIRO DE LIBRA
|
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PFO Execution Plan
|
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DOC.NO.
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:
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OOGTK02-01-O-00-KA-000001-001
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REV.
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DATE
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17.02.2014
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PAGE
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15 of 15
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6
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HANDOVER FROM PROJECTS TO OPERATIONS AND PFO CLOSE-OUT
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6.1
|
HANDOVER FROM PROJECTS TO OPERATION
|
During the project phase a procedure for handover from projects to operation must be developed and agreed between the Project Director and
Operations Advisor with close cooperation with the Commissioning Manager.
In the above mentioned document it should be agreed not only
the process but also the milestones in which the handover will take place (e.g. at Sail Away from shipyard, arrival in Brazil, 1st Oil .)
Closing involves the activities to formally terminate all activities of the PFO and to hand-over the deliverables and results. All temporary
contracts, persons mobilized and a final close out report will be issued.
The PFO scope will be determined as finalized when the 1
st
Oil is achieved and therefore all cost related items should aim this as the final target for activity and cost purposes.
Annex I
to
Credit Agreement
COMMITMENTS
|
|
|
|
|
|
|
Lenders
|
|
Commitment
|
|
|
ABN AMRO Bank N.V.
|
|
$
|
114,815,969.56
|
|
|
Citibank, N.A.
|
|
$
|
114,815,969.56
|
|
|
DNB Capital LLC
|
|
$
|
114,815,969.56
|
|
|
HSBC Bank USA, National Association
|
|
$
|
114,815,969.56
|
|
|
ING Capital LLC
|
|
$
|
114,815,969.56
|
|
|
Natixis, New York Branch
|
|
$
|
114,815,969.56
|
|
|
Sumitomo Mitsui Banking Corporation
|
|
$
|
114,815,969.56
|
|
|
TOTAL
|
|
$
|
803,711,786.92
|
|
Annex II
to
Credit Agreement
APPLICABLE LENDING OFFICES
1.
ABN AMRO
BANK N.V.
Loan Lending Office
:
Gustav Mahlerlaan, 10
1082 PP
Amsterdam
The Netherlands
Attn: Remco Jongkind / Anna Ferreira
Telephone: +55 11 3073 7440 / 7433
Facsimile: +55 11 3073 7404
E-mail address:
remco.jongkind@br.abnamro.com
/
annaferreira@br.abnamro.com
Fed Wire Instructions
:
To: Bank of
America - New York - USA
Swift Code: BOFAUS3N
For: ABN AMRO Bank N.V. - Amsterdam - The Netherlands
Swift Code: ABNANL2A
ABA #:
026009593
Account Name: ABN AMRO Bank N.V. Amsterdam - The Netherlands
Account #: 6550368324
Reference:
OOGTK Libra GmbH & Co KG
Attn: Dien Quan / Leo Vrijland
2.
CITIBANK, N.A.
Loan Lending Office
:
Citi Center
Avenida
Paulista, n° 1111 – 10° andar
CEP – 01311-920 São Paulo, SP – Brazil
Attn: Saulo Ferraz / João Leal
Telephone: 55 11 4009 2537 / 5266
Facsimile: N/A
E-mail address:
saulo.ferraz@citi.com
/
joao.leal@citi.com
Fed Wire Instructions
:
To: CITIBANK, N.A.
ABA #:
021000089
Swift Code: CITIUS33
Account Name: CITIBANK, N.A. HOGL
Account #: 36050739
Reference:
OOGTK LOAN
Attn: Marcio Ercolano / Gustavo Lauro / Flavio Correa
3.
DNB CAPITAL LLC
Loan Lending Office
:
200
Park Avenue, 31st Floor
New York, New York 10166
United States of America
Attn:
Barbara Gronquist / Florianne Robin
Telephone: +1 212-681-3859 / +44 (0) 207 621 6024
Facsimile: +1 212-681-4123
E-mail address:
barbara.gronquist@dnb.no / florianne.robin@dnb.no
Fed Wire Instructions
:
To: BNY Mellon, New York
Swift
Code: IRVTUS3N
For: DNB Capital LLC
Swift Code: DNBAUS33LLC
ABA #:
021000018
Account #: 8901173231
Further credit to: OOGTK Libra GMBH
Account #: 10108599
Reference:
OOGTK
Attn: Teresa Rosu
4.
HSBC BANK
USA, NATIONAL ASSOCIATION
Loan Lending Office
:
452 Fifth Avenue
New York, New
York 10018
Attn: James Edmonds / Lillian Cortes
Telephone: +1-212-525-6433 / +1-212-525-7293
Facsimile: +1-212-525-6090
E-mail address:
james.edmonds@us.hsbc.com
/
ctlany.loanadmin@us.hsbc.com
Fed Wire Instructions
:
Standard
Settlement Instructions are available at the following URL:
www.hsbcnet.com/gbm/products-services/trading-sales/standard-settlement-instructions-document.html
Agree to the ‘SSI’s Terms of Use”
From the next page, select “USA: Loan Agency SSI”
Password is loanagency1
5.
ING CAPITAL LLC
Loan Lending Office
:
1325 Avenue of the
Americas
New York, New York 10019
Attn: Jens Van Yperzeele / Tanja van der Woude
Telephone: 646-424-6088 / 8173
Facsimile: 646-424-7484
E-mail
address:
jens.van.yperzeele@ing.com
/
tanja.van.der.woude@ing.com
Fed Wire Instructions:
To: JPMORGANCHASE, NEW YORK
ABA
#: 021-000-021
Account Name: ING CAPITAL LLC LOANS AGENCY NEW YORK
Account #: 066-297-311
Reference: OOGTK LIBRA
Attn:
LOAN SERVICES
6.
NATIXIS, NEW YORK BRANCH
Loan Lending Office:
1251 Avenue of the Americas
New York, New York 10020
Attn: Valerie du Mars
Telephone: +1-212-583-4917
Facsimile: N/A
E-mail address:
Valerie.dumars@us.natixis.com
/
ProjectFinance.Portfolio@us.natixis.com
Fed Wire Instructions:
JPMORGAN CHASE,
NY (CHASUS33)
ABA #: 021-000-021
FOR A/C OF NATIXIS, NY BRANCH (NATXUS3B)
Account #: 544-7-75330
Reference: Libra
Attn: LOAN
SERVICES
7.
SUMITOMO MITSUI BANKING CORPORATION
Loan Lending Office:
Latin America
Department
277 Park Avenue
New York, New York 10172
Attn:
Carla Funes / Hideki Chida
Telephone: 212-224-4354 / 5381
Facsimile: 212-224-5227 / 5222
E-mail address:
cfunes@smbclf.com
/
Hideki_Chida@smbcgroup.com
Fed Wire Instructions
:
To: Citibank, NA, NY
ABA #:
021-000-089
Swift Code: SMBCUS33
Account Name: SMBC NY Branch
Account #: 3602837
Reference:
OOGTK Libra GmbH & KG
Attn: Loan Services
Annex III
to
Credit Agreement
NOTICE ADDRESSES
The Borrower:
c/o Odebrecht Óleo e Gás S.A.
Avenida Pasteur, 154 – 11 andar
Rio de Janeiro, RJ – CEP: 22290-240
Attention: OOG Debt Compliance Team
Tel: +55 21 3850-6620
With a
copy to:
Teekay Offshore Partners L.P.
c/o Teekay Shipping (Canada) Ltd.
2000 Bentall 5, 550 Burrard Street
Vancouver BC, V6C 2K2, Canada
Attention to: Renee Eng, Treasury Manager
Tel: +1- 604-609-6418
E-mail:
_Treasuryloansvancouver@teekay.com
The Lenders:
ABN AMRO Bank N.V.
Rua Leopoldo Couto de Magalhães
Junior, 700 - 4th floor
CEP 04542-000 / São Paulo, SP / Brazil
Attention to: Remco Jongkind / Anna Carolina Ferreira
Tel: +55
(11) 3074-7423 or +55 (11) 3074-7433
E-mail:
remco.jongkind@br.abnamro.com
/
anna.ferreira@br.abnamro.com
Citibank, N.A.
Avenida Francisco Matarazzo
1500 – Torre Los Angeles – 8° andar
CEP –
05001 – 100 – São Paulo, SP – Brazil /
Avenida Paulista, n° 1111 – 12° andar
CEP – 01311-920 São Paulo, SP – Brazil
Attention to: Marcio Ercolano / João Leal
Tel: + 55 11
3232-7312 / +55 11 4009-5266
E-mail:
marcio.ercolano@citi.com
/
joao.leal@citi.com
DNB Capital LLC
200 Park Avenue, 31
st
Floor
New York, New York 10166
United States of America
Attention to: Barbara Gronquist /
Florianne Robin
Tel: +1-212-681-3859 / +44 (0) 207 621 6024
Facsimile: +1-212-681-4123
E-mail:
barbara.gronquist@dnb.no
/
florianne.robin@dnb.no
HSBC Bank USA, National Association
452 Fifth Avenue
New York, New York 10018
United States of America
Attention to: James Edmonds / Lillian
Cortes
Tel: +1-212-525-6433 / +1-212-525-7293
E-mail:
james.edmonds@us.hsbc.com
/
ctlany.loanadmin@us.hsbc.com
ING Capital LLC
1325 Avenue of the Americas
New York, New York 10019
United States of America
Attention to: Tanja van der Woude /
Jens Van Yperzeele
Tel: +1-646-424-8173 / +1-646-424-6088
E-mail:
Tanja.van.der.woude@ing.com
/
Jens.van.yperzeele@ing.com
Natixis, New York Branch
1251 Avenue of the Americas
New York, New York 10020
United States of America
Attention to: Valerie du Mars
Tel: +1-212-583-4917
Facsimile: N/A
E-mail:
Valerie.dumars@us.natixis.com
/
ProjectFinance.Portfolio@us.natixis.com
Sumitomo Mitsui Banking Corporation
277 Park Avenue
New York, New York 10172
United States of America
Attention to: Carla Funes / Hideki
Chida
Tel: +1-212-224-4354 / +1-212-224-5381
E-mail:
cfunes@smbc-lf.com
/
hchida@smbc-lf.com
The Facility Agent:
HSBC Bank USA, National Association
452 Fifth Avenue -
8E6
New York, New York 10018
United States of America
Attention to: Corporate Trust and Loan Agency
Tel:
+1-212-525-7293 / +1-212-525-1368
E-mail:
ctlany.loanagency@us.hsbc.com
/
ctlanydealmanagement@us.hsbc.com
The Collateral Agent:
HSBC Bank USA, National
Association
452 Fifth Avenue - 8E6
New York, New York
10018
United States of America
Attention to: Corporate
Trust and Loan Agency
Tel: +1-212-525-1368
E-mail:
ctlanydealmanagement@us.hsbc.com
