AMENDED AND RESTATED
REIMBURSEMENT AGREEMENT
USD 28,000,000 Standby Letter of Credit
This Amended and Restated Reimbursement Agreement (this "Agreement")
between ▇▇▇▇▇ Offshore Inc., a Louisiana corporation (the "Borrowers"), and Den
norske Bank ASA (the "Bank") dated as of August 27, 2003 amends and restates
that certain reimbursement agreement (the "Original Reimbursement Agreement")
dated January 6, 2003 between the Borrower and the Bank.
WHEREAS, the Bank by order of the Borrower issued an irrevocable letter of
credit dated January 10, 2003 (the "Original Letter of Credit") on the terms and
conditions of the Original Reimbursement Agreement for the benefit of Algonquin
Gas Transmission Company (the "Beneficiary") in the form set out in Exhibit A
hereto;
WHEREAS, the Original Letter of Credit is scheduled to expire at the Bank's
New York office's close of business on September 15, 2003;
WHEREAS, the Borrower has requested and the Bank has agreed, subject to the
terms and conditions herein contained, to amend the Original Letter of Credit
to, inter alia extend the availability period of the Letter of Credit and to
change the Expiration Date to September 15, 2004; and
WHEREAS, in consideration of the Bank extending the availability period of
the Letter of Credit, the Owners and the Parent have agreed to execute the
Security Documents (as such terms are hereinafter defined) in favor of the Bank,
and the parties have agreed to amend certain provisions of the Original
Reimbursement Agreement.
NOW THEREFORE, the parties hereto agree as follows:
WITNESSETH THAT:
1. The following terms and provisions shall apply to this Agreement; the
meaning of any term in this or any other Section of this Agreement expressed in
the singular shall apply, mutatis mutandis, to the same term expressed in the
plural and vice versa:
Assignments: the Earnings Assignments and the Insurances Assignments,
or any thereof, as the context requires.
Assignment Notices: a notice by each Owner with respect to the
Earnings Assignment executed by it, substantially in the form set out in
Schedule 1 to Exhibit F and a notice by each Owner with respect to the
Insurances Assignment executed by it, substantially in the form set out in
Schedule 3 to Exhibit G.
Banking Day(s): day(s) on which banks are open for the transaction of
business in London, England, Oslo, Norway and New York, New York.
Beneficiary: Algonquin Gas Transmission Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Borrower: ▇▇▇▇▇ Offshore Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Credit Facility: $26,000,000 Letter of Credit to the Beneficiary.
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27, 2003
Earnings Assignment(s): assignments in respect of the earnings of each
Vessel from any and all sources to be executed by each Owner in favor of
the Bank pursuant to Section 7(c)(iv) hereof, substantially in the form set
out in Exhibit F hereto.
Environmental Approval: shall have the meaning ascribed thereto in
Section 6.1.
Environmental Claim(s): shall have the meaning ascribed thereto in
Section 6.1.
Environmental Law: shall have the meaning ascribed thereto in Section
6.1.
Expiration Date: September 15, 2004.
Fair Market Value: in respect of any Vessel, means the average of two
charter-free appraisals of such Vessel from independent ship brokers
selected by the Parent and approved by the Bank, no such appraisal to be
dated more than thirty (30) days prior to the date on which such appraisal
is required pursuant to this Agreement unless the Bank consents in writing
(on each occasion) to the use of an older appraisal.
Guarantors: the Owners and the Parent.
Issuance Date: any date falling not later than September 15, 2004 upon
which the Borrower has requested that the Letter of Credit be issued.
Insurances Assignment(s): assignments in respect of the insurances on
each Vessel to be executed by each Owner in favor of the Bank pursuant to
Section 7(c)(iii) hereof, substantially in the form set out in Exhibit G
hereto.
Letter of Credit: shall have the meaning asccribed thereto in Section
2.
LIBOR: means the rate (rounded upward to the nearest 1/16th of one
percent) for deposits of Dollars for a period of thirty (30) days at or
about 11:00 a.m. (London time) on the Banking Day of any drawing under the
Letter of Credit and the first day of each thirty (30) day period
thereafter as displayed on Telerate page 3750 (British Bankers' Association
Interest Settlement Rates) (or such other page as may replace such page
3750 on such system or on any other system of the information vendor for
the time being designated by the British Bankers' Association to calculate
the BBA Interest Settlement Rate (as defined in the British Bankers'
Association's Recommended Terms and Conditions ("BBAIRS" terms) dated
August 1985)), provided that if on such date no such rate is so displayed
for a period of thirty (30) days LIBOR for such period shall be the
arithmetic mean (rounded upward to four decimal places) of the rates
respectively quoted by the Bank as the offered rate for deposits of Dollars
in an amount approximately equal to the amount in relation to which LIBOR
is to be determined for a period equivalent to the relevant interest period
to prime banks in the London Interbank Market at or about 11:00 a.m.
(London time) on such Banking Day;
Material Adverse Effect: shall mean a material adverse effect on (i)
the ability of any of the Owners or the Parent to perform any of its
material obligations hereunder or under the Security Documents, or (ii) the
business, property, assets, liabilities, operations or condition (financial
or otherwise) thereof.
Materials of Environmental Concern: shall have the meaning ascribed
thereto in Section 6.1.
2
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27, 2003
Mortgages: the First Preferred Liberian mortgages to be executed by
each of ▇▇▇▇▇ Protector B.V., ▇▇▇▇▇ Avance B.V., ▇▇▇▇▇ Eagle B.V. and ▇▇▇▇▇
Condor B.V. over their respective Vessel pursuant to Section 7(c)(ii)
hereof, substantially in the form set out in Exhibit D hereto and the First
Priority Account Current Cayman Islands mortgage and Deed of Covenants
collateral thereto to be executed by ▇▇▇▇▇ Egret B.V. over the ▇▇▇▇▇ EGRET
pursuant to Section 7(c)(ii) hereof, substantially in the form set out in
Exhibit F hereto.
Owners: ▇▇▇▇▇ Protector B.V., ▇▇▇▇▇ Avance B.V., ▇▇▇▇▇ Eagle B.V.,
▇▇▇▇▇ Condor B.V., ▇▇▇▇▇ Egret B.V. each a Dutch private company with
limited liability and each indirectly 100% owned by the Parent.
Owners Guaranty: the guaranty agreement to be executed by the Owners
in favor of the Bank pursuant to Section 7(c)(i) hereof, substantially in
the form set out in Exhibit C hereto.
Parent: ▇▇▇▇▇-▇▇▇▇▇▇▇ S.A., indirect 100% shareholder of each of the
Owners.
Parent Guaranty: the amended and restated guaranty agreement to be
executed by the Parent in favor of the Bank pursuant to Section 7(c)(vi)
hereof, substantially in the form set out in Exhibit H hereto, to amend and
restate the guaranty agreement dated January 6, 2003 executed by the Parent
in favor of the Bank.
Security Documents: the Mortgages, the Assignments, the Owners
Guaranty, the Parent Guaranty and any other documents that may be executed
as security for the Borrower's obligations hereunder.
Vessels: the ▇▇▇▇▇ PROTECTOR (Official Number 7348), the ▇▇▇▇▇ AVANCE
(Official Number 6047), the ▇▇▇▇▇ TAURUS (Official Number 8461), the
▇▇▇▇▇ GUARDIAN (Official Number 7432), and the ▇▇▇▇▇ EGRET (Official
Number 733851) and each separately, a "Vessel".
2. The Bank (the "Issuer") shall issue an amendment to the Original Letter
of Credit in the form attached hereto as Exhibit B (the Original Letter of
Credit, as so amended, the "Letter of Credit) effective as of the Issuance Date
and expiring on the Expiration Date.
3. The Borrower agrees to pay to the Bank a fee with respect to each Letter
of Credit, computed (i) between the Effective Date and the Issuance Date at a
rate of 1.25% per annum on the amount available under such Letter of Credit and
(ii) commencing on the Issuance Date at a rate of 1.50% per annum on the
amount available under such Letter of Credit, payable quarterly in arrears, the
first such payment to be made on March 31, 2003 with subsequent payments to be
made on the expiration of the relevant period thereafter. In addition, the
Borrower shall pay an issuance fee equal to 0.25% if the amount available under
such Letter of Credit. Fees charged on a per annum basis shall be computed on
the number of days actually elapsed on the basis of a 360-day year.
In addition to the aforementioned fee, the Borrower agrees to pay to the
Bank (x) the Bank's standard charges and expenses, as in effect from time to
time, in connection with the issuing, advising, confirming, transmitting,
maintaining, administering, amending, processing, collecting, advising or
paying, or taking any related action with respect to, any Letter of Credit and
(y) any and all costs or charges of any other person relating to the advising,
confirming, negotiating, paying, collection or similar act with respect to any
Letter of Credit.
3
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27, 2003
4. Without limiting the other provisions of this Agreement all charges,
costs, expenses and liabilities incurred by the Bank to any issuer other than
the Bank (whether as a result of the Bank applying for any Letter of Credit or
entering into any Letter of Credit Document (as hereinafter defined) or
otherwise) shall be for the account of the Borrower. The Borrower acknowledges,
confirms and agrees that the Bank has and shall have a security interest in all
Collateral (as defined in any Letter of Credit Document) and in any property of
the Borrower and the Guarantors with respect to which the Issuer has or acquires
a security interest and such security interest in favor of the Bank shall secure
all obligations arising hereunder.
5. Any amount drawn under any Letter of Credit (whether issued by the Bank
or any other Issuer) shall constitute a loan by the Bank to the Borrower made on
the date of any such drawing. The Borrower shall repay each such loan in full on
September 15, 2004, and bear interest at a rate per annum equal to LIBOR plus
four percent (4.0%). Interest shall be computed on the number of days actually
elapsed on the basis of a 360-day year.
6. All payments provided for hereunder shall be effectively made to the
Bank, in lawful money of the United States of America (in immediately available
funds), prior to 12:00 Noon on the date when due at the office of the Bank
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, without setoff or counterclaim.
Each such payment shall be made in freely transferable and immediately available
funds for the account of such office of the Bank as the Bank may designate and
shall (x) be exempt from, and without reduction by reason of, any Foreign Tax or
(y) to the extent that any such payment shall be subject to any Foreign Tax, be
accompanied by an additional payment by the Borrower of such amount as may be
necessary so that the net amount realized by the Bank (after taking into account
all applicable Foreign Taxes) is the same as the Bank would have realized had
such payment not been subject to such Foreign Tax. "Foreign Tax" shall mean and
include any present or future tax, levy, cost or charge of any nature imposed by
any government or any authority or political subdivision thereof, excluding
taxes on or measured by the net income of the Bank imposed by any jurisdiction
in which the principal or relevant lending office of the Bank is located. A
certificate of the Bank as to additional amounts due under this Section 6 shall
be prima facie evidence thereof. Upon any payment of Foreign Tax, the Borrower
shall promptly (and in any event within 30 days) furnish to the Bank such tax
receipts, certificates and other evidence of such payment as the Borrower may
have or the Bank may request.
6.1 (a) Except as heretofore disclosed in writing to the Bank (i) the
Borrower and each of its subsidiaries and affiliates will, when required to
operate their business as then being conducted, be in material compliance with
all applicable United States federal and state, local, foreign and international
laws, regulations, conventions and agreements relating to pollution prevention
or protection of human health or the environment (including, without limitation,
ambient air, surface water, ground water, navigable waters, waters of the
contiguous zone, ocean waters and international waters), including, without
limitation, laws, regulations, conventions and agreements relating to (1)
emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous materials, oil, hazardous
substances, petroleum and petroleum products and by-products (Materials of
Environmental Concern"), or (2) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Materials of
Environmental Concern ("Environmental Laws"): (ii) the Borrower and each of its
affiliates will, when required, have all material permits, licenses, approvals,
rulings, variances, exemptions, clearances, consents or other authorizations
required under applicable Environmental Laws ("Environmental Approvals") and
will, when required, be in compiance with all Environmental Approvals required
to operate their business as then being conducted; (iii) neither the Borrower
nor any affiliate thereof has received any notice of any material claim, action,
cause of action, investigation or demand by any person, entity, enterprise or
government, or any political subdivision, intergovernmental body or agency,
department or instrumentality thereof, alleging potential liability for, or a
requirement to incur, material investigator costs, cleanup costs, response
and/or remedial costs (whether incurred by a governmental entity or otherwise),
natural resources damages, property damages, personal injuries, attorneys' fees
and expenses, or fines or penalties, in each case arising out of, based on or
resulting from (1) the presence, or release or threat of release into the
environment, of
4
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27, 2003
any Materials of Environmental Concern at any location, whether or not owned by
such person, or (2) circumstances forming the basis of any violation, or alleged
violation, of any Environmental Law or Environmental Approval ("nvironmental
Claim") (other than Environmental Claims that have been fully and finally
adjudicated or otherwise determined and all fines, penalties and other costs, if
any, payable by the Borrower or any of the Guarantors in respect thereof have
been paid in full or which are fully covered by insurance (including permitted
deductibles)); and (iv) there are no circumstances that may prevent or interfere
with such material compliance in the future; and (b) except as heretofore
disclosed in writing to the Bank there is no Environmental Claim pending or
threatened against the Borrower, any Subsidiary or any affiliate thereof and
there are no past or present actions, activities, circumstances, conditions,
events or incidents, including, without limitation, the release, emission,
discharge or disposal of any Materials of Environmental Concern, that could form
the basis of any Environmental Claim against such persons the adverse
disposition of which may result in a Material Adverse Effect;
7. The Letter at Credit shall be in form and substance satisfactory to the
Bank (including, without limitation, the amount, beneficiary, expiry date and
drawing conditions therefor). The Bank shall not be required to issue (or
request any Issuer to issue) the amendment to the Original Letter of Credit
unless, (i) within a reasonable time before such issuance, the Bank shall have
received from the Borrower a written request therefor setting forth all the
particulars thereof and, if the Bank so requests, a copy of the Bank's standard
form of application and agreement for letters of credit duly executed and
delivered by the Borrower, together with such documents and other papers as may
be required by the Bank; the documents executed and delivered in connection with
the issuance of performance of the Letter of Credit are herein sometimes
referred to as the "Letter of Credit Documents" and (ii) the following
conditions precedent have been met:
(a) Corporate Authority. The Bank shall have received the following
documents in form and substance satisfactory to the Bank:
(i) copies, certified as true and complete by an officer of the
Borrower, of the resolutions of the ▇▇▇▇▇ of directors and
shareholder of the Borrower evidencing approval of this Agreement
and authorizing an appropriate officer or officers or
attorney-in-fact or attorneys-in-fact to execute the same on its
behalf, or other evidence of such approvals and authorizations;
(ii) copies, certified as true and complete by an officer of each
Owner, of the resolutions of the board of directors and
shareholder thereof evidencing approval of the Owners Guaranty
and those Security Documents to which it is to be a party and
authorizing the appropriate officer or officers or
attorney-in-fact or attorneys-in-fact to execute the same on its
behalf, or other evidence of such approvals and authorizations;
(iii) copies, certified as true and complete by an officer of the
Parent, of the resolutions of the board of directors of the
Parent evidencing approval of the Parent Guaranty and authorizing
an appropriate officer or officers or attorney-in-fact or
attorneys-in-fact to execute the same on its behalf, or other
evidence of such approvals and authorizations;
(iv) copies, certified as true and complete by an officer of the
Borrower, the Parent or the respective Owner of the articles of
incorporation and by-laws, or equivalent instruments thereof;
(v) certificate of the Secretary of the Parent certifying that it is
the indirect 100% shareholder of each of the Owners;
(vi) certificate of the Secretary of each Owner certifying as to the
record ownership of all of its issued and outstanding capital
stock; and
5
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27, 2003
(vii) certificate of the jurisdiction of incorporation of the Borrower
as to the good standing thereof.
(b) The Vessels. The Bank shall have received evidence satisfactory to it
that:
(i) each of the Vessels is in the sole and absolute ownership of the
respective Owner as set forth in Schedule 1 and duly registered
in such Owner's name under Liberian or Cayman Islands flag,
unencumbered, save and except for the Mortgage recorded against
it and as otherwise permitted thereby;
(ii) each Vessel is classed in the highest classification and rating
for vessels of the same age and type without any material
outstanding recommendations;
(iii) each of the Vessels is operationally seaworthy and in every way
fit for its intended service; and
(iv) each of the Vessels is insured in accordance with the provisions
of the Mortgage recorded against it and the requirements thereof
in respect of such insurances have been complied with.
(c) Owner Documents. Each Owner shall have duly executed and delivered to
the Bank:
(i) the Owners Guaranty;
(ii) the Mortgage over its Vessel;
(iii) an Earnings Assignment with respect to its Vessel;
(iv) an Insurances Assignment with respect to its Vessel:
(v) its Assignment Notices; and
(vi) Uniform Commercial Code Financing Statements for filing with the
Recorder of Deeds in the District of Columbia and in such other
jurisdictions as the Bank may reasonably require.
(d) Parent Guaranty. The Parent shall have duly executed and delivered the
Parent Guaranty to the Bank.
(e) Vessel Appraisal. The Bank shall have received appraisals, in form and
substance satisfactory to the Bank, of the Fair Market Value of each
Vessel showing the aggregate Far Market Value of the Vessels to be not
less than 125% of the amount available under the Letter of Credit.
(f) Environmental Claims. The Bank shall be satisfied that neither the
Borrower nor any of the Owners is subject to any Environmental Claim
which could reasonably be expected to have a Material Adverse Effect.
(g) Fees. The Bank shall have received payment in full of all fees due to
the Bank under Section 3.
(h) Vessel Liens. The Bank shall have received evidence satisfactory to it
and to its legal advisor that, save for the liens created by the
Mortgage and the Assignments, there are no liens, charges
6
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27, 2003
or encumbrances of any kind whatsoever on the Vessel or on its
earnings except as permitted hereby or by any of the Mortgage or the
Assignments.
(i) Charters: Pooling Agreements. The Owners shall have delivered to the
Bank true and complete copies of (i) all charters having a term longer
than twelve (12) months from the date of execution and (ii) all vessel
pooling agreements, in each case to which any Owner is a party.
(j) Legal Opinions. The Bank shall received legal opinions addressed to
the Bank from (i) ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the Borrower,
the Parent and the Owners, (ii) Van Doorne, Dutch counsel for the
Bank, (iii) Walkers, Cayman Islands counsel to the Bank, (iv) ▇▇▇▇▇
▇▇▇▇▇▇, Louisiana counsel to the Bank, (v) Elvinger, Hoss & Prussen,
Luxembourg counsel to the Bank, and (vi) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special
counsel to the Bank.
8. The Borrower assumes all risks of the acts, omissions or misuse of the
Letter of Credit by the beneficiary or any other user thereof and those of any
bank engaged to issue, advise, pay, negotiate, confirm or otherwise deal with
any Letter of Credit. The Bank shall not be responsible: (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for, issuance of, or
payment under, the Letters of Credit, even if any thereof should be in tact
proved to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged, (ii) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher, (iii) for any loss or delay in the
transmission or otherwise of any document or draft required in order to make a
drawing under any Letter of Credit or of the proceeds thereof or (iv) for any
consequences arising from causes beyond the control of the Bank. None of the
above shall affect, impair, or prevent the vesting of any of the Bank's rights
or powers hereunder or under any of the other documents or instruments executed
in connection herewith. The Borrower shall protect the Bank in paying any draft
presented on or before the expiration of any time limit expressed in the Letter
of Credit regardless of when drawn and when or whether negotiated. In
furtherance and extension and not in limitation of the specific provisions
herein before set forth, the Borrower agrees that any action taken by the Bank
under or in connection with the Letter of Credit or the relevant drafts, if
taken in good faith and with the exercise of reasonable care, shall be binding
on the Borrower and shall not put the Bank under any resulting liability to the
Borrower, and the Borrower makes like agreement as to any inaction or omission,
unless in breach of good faith or in the absence of reasonable care. The term
"draft" as used in this Agreement shall mean and include any draft or drawing
certificate or statement and any and all documents and instruments required to
be presented for payment under the Latter of Credit.
8.1 If requested by the Bank, the Borrower shall on an annual basis provide
the Bank with valuations of the Vessels, charter-free, in Dollars. Each such
annual valuation in any year is to be at the Borrower's cost, and following and
during the continuance of any Event of Default, any such valuations required or
requested under this Agreement is to be at the Borrower's cost. In the event the
Borrower fails or refuses to obtain the valuations requested pursuant to this
Section 8.1 within ten (10) days of the Bank's request therefor, the Bank will
be authorized to obtain such valuation, at the Borrower's cost, from two
independent shipbrokers selected by the Bank, which valuations shall be deemed
the equivalent of valuations duly obtained by the Borrower pursuant to this
Section 8.1, but any Bank's actions in doing so shall not excuse any default of
the Borrower under this Section 8.1.
8.2 If at any time prior to the Expiration Date the Credit Facility is
reduced, one or more Mortgages may be released as long as the Fair Market Value
of all of the Vessels subject to Mortgage after such release as determined in
accordance with the latest appraisals delivered pursuant to Section 8.1 is equal
to at least 125% of the reduced Credit Facility.
9. The Borrower hereby agrees at all times to protect, indemnify and save
harmless the Bank from and against any and all claims, actions, suits and other
legal proceedings, and from and against any and all loss, claims, demands,
liabilities, damages, costs, charges, counsel fees and other
7
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27, 2003
expenses which the Bank may, at any time, sustain or incur by reason of or in
consequence of or arising out of the issuance or performance of the Letter of
Credit (including, without limitation, any action to restrain or enjoin any
payment thereunder), except such as may arise from the gross negligence or
wilfull misconduct of the Bank, it being the intention of the parties that,
except for matters arising out of the gross negligence or wilfull misconduct of
the Bank, this Agreement shall be construed and applied to protect and indemnify
the Bank against any and all risks involved in the issuance or performance of
the Letter of Credit, all of which risks are hereby assumed by the Borrower,
including, without limitation, any and all risks of the act or omissions,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts and omissions, "Government
Acts"). Without in any way limiting the foregoing, the Borrower hereby further
agrees (i) at all times to protect, indemnify and save harmless the Bank from
and against any and all claims, actions, suits and other legal proceedings, and
from and against any and all losses, claims, demands, liabilities, damages,
costs, charges, counsel fees and other expenses which the Bank may at any time,
sustain or incur by reason of or in consequence of or arising out of the Letter
of Credit being issued by an Issuer other than the Bank or as a result of the
Bank executing any application (including any joint application) or other Letter
of Credit Document for the issuance of, or in connection with, such Letter of
Credit (including, without limitation, all claims, demands, liabilities,
damages, costs, charges, counsel fees and other expenses incurred by the Bank to
such Issuer, or payments made by the Bank to such Issuer, in connection with any
such Letter of Credit or any Letter of Credit Document) and (ii) that the Bank
shall have no liability to the Borrower, as an applicant or a joint applicant
for any such Letter of Credit, and the Borrower shall have no right against the
Bank (by way of indemnification, contribution or otherwise) in connection
therewith. The Bank shall not, in any way, be liable for any failure by the Bank
or anyone else to pay any draft under the Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the Bank. The
provisions of this Section 9 shall survive the termination of this Agreement.
10. If any Event of Default (as hereinafter defined or as defined in any
Letter of Credit Document or any other document entered into with respect to the
Credit Facility) other than any drawdown under the Letter of Credit which shall
constitute a loan as contemplated by Section 5 hereof shall occur (collectively
an "L/C Default'), the Bank's obligation to make the Credit Facility available
shall cease, and the Bank may, by notice to the Borrower, declare the entire
unpaid balance of the then outstanding Credit Facility and any other sums
payable by the Borrower hereunder due and payable, whereupon the same shall
forthwith be due and payable without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived and also:
(i) by written notice to the Borrower, require the Borrower to place and
maintain, or cause to be placed and maintained, on deposit with the Bank an
amount equal to the sum of (1) the unpaid balance of the then outstanding
Credit Facility and other sums payable by the Borrower hereunder and (2)
all remaining amounts still available to the Beneficiary under all Letters
of Credit then outstanding, such sum to be placed in a segregated cash
collateral account (the "Cash Collateral Account") over which the Borrower
shall have no control, and
(ii) without notice to the Borrower, transfer to the Cash Collateral
Account all balances or credits then or thereafter held by the Bank to or
for the credit of the Borrower.
If the Borrower complies with its obligations under subclause (i) hereof, the
Bank shall release the Mortgages and the other Security Documents.
In the event the Borrower does not comply with is obligations under subclause
(i) hereof, the Bank may proceed to protect and enforce its rights by action at
law, suit in equity or in admiralty or other appropriate proceeding, whether for
specific performance of any covenant contained in this Agreement or in any
Security Document, or in aid of the exercise of any power granted herein or
therein, or the Bank may proceed to enforce any other legal or equitable right
of the Bank, or proceed to take any action authorized or permitted under the
terms of any Security Document or by applicable law for the collection of all
sums
8
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27,2003
due, or so declared due, under this Agreement said sums to be utilized as
contemplated by clauses (i) and (ii) above.
For purposes of this Section 10, each of the following events, acts and
conditions shall constitute an Event of Default:
(a) any payment of principal, interest or any other amount becoming
payable to the Bank is not paid when due; or the Borrower shall
default in the due and punctual performance of any of its other
obligations under this Agreement and the same shall continue
unremedied for a period of 10 days; or
(b) any representation, warranty or statement made by the Borrower herein
or in writing in connection herewith, or in any certificate or
financial or other statement furnished in connection herewith, shall
be breached or shall prove to be untrue in any material respect on the
date as of which made: or
(c) the Borrower shall default in the due payment of indebtedness (direct
or contingent) for borrowed money or evidenced by a bond, debenture,
note or other security or by an agreement of guarantee, in the
aggregate principal amount of $10,000,000 or more for all such
indebtedness, or any holder or holders of any such indebtedness of the
Borrower in excess of such aggregate amount (or a person acting on its
behalf) shall become entitled to cause any such indebtedness to
become, or any such indebtedness shall become, due prior to its stated
maturity; or
(d) the Borrower, the Parent or any of the Owners fail to comply with any
non-appealable court or order or fail to pay a final unappealable
judgment against it, in either case, in excess of $10,000,000 which
remains unsettled for fourteen (14) days; or
(e) the Borrower shall suspend or discontinue its business, or shall make
an assignment for the benefit of, or composition with, creditors, or
shall become insolvent or enable or generally fail to pay its debt
when due; or the Borrower shall become a part or subject to any
liquidation or dissolution action or proceeding with respect to the
Borrower or any bankruptcy, reorganization, insolvency or other
proceeding for the relief of financially distressed debtors with
respect to the Borrower, or a receiver, liquidator, custodian or
trustee shall be appointed for the Borrower or a substantial part of
its assets and, if any of the same shall occur involuntarily as to the
Borrower, it shall not be dismissed, stayed or discharged within 60
days; or if any order for relief shall be entered against the Borrower
under Title 11 of the United States Code entitled "Bankruptcy"; or the
Borrower shall take any action to effect, or which indicates its
acquiescence in any of the foregoing; or
(f) any of the Owners cease to retain ownership of a Vessel that is
subject to a Mortgage or, without the prior written consent of the
Bank, the registration or flag of any of the Vessels is changed; or
(g) there is an event of default under any of the Mortgages; or
(h) the Borrower fails to place and maintain, or cause to be placed and
maintained, the amounts required to be deposited into the Cash
Collateral Account as required by this Section 10.
The Bank shall have a lien on, and security interest in, all amounts (together
with all interest, if any, accrued thereon) in the Cash Collateral Account. All
amounts deposited in the Cash Collateral Account (but not interest accrued
thereon) shall bear interest for each day from the date of such deposit to (but
not including) the Charge Date (as hereinafter defined) at a rate per annum
equal to the lesser of
9
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27, 2003
(A) the effective federal funds rate for such day (or during the next
preceding Business Day) as established by the Federal Reserve Bank of
New York, or
(B) the highest rate permitted by law.
All such interest shall be credited to the Cash Collateral Account. As used
herein, the term "Charge Date" shall mean, with respect to any amount bearing
interest in the Cash Collateral Account, the earlier of
(I) the date on which a corresponding amount is paid by the Bank pursuant
to any Letter of Credit or charged by the Bank in respect of any of
the Borrower's obligations hereunder or
(II) the date on which a corresponding amount may not be drawn under any
Letter of Credit.
Upon the giving of 3 Business Days prior written request to the Bank, the
Borrower shall be entitled to withdraw from the Cash Collateral Account all
amounts in excess of the sum of (w) all amounts due under this Agreement and the
other Loan Documents (whether of principal, interest or otherwise), (x) all
amounts which the Bank may be required to pay under all Letters of Credit then
outstanding, and (y) all unreimbursed amounts paid by the Bank under any Letter
of Credit and (z) all fees which may be payable to the Bank in respect of the
Letters of Credit (whether or not then due).
11. The Borrower represents and warrants that
(i) all acts, filings, conditions and things required to be done and
performed and to have happened (including, without limitation, the
obtaining of all necessary corporate or shareholder approvals and all
governmental approvals, including those of any monetary or exchange
control authority) precedent to the entering into of this Agreement to
constitute this Agreement the duly authorized, legal, valid and
binding obligation of the Borrower, enforceable in accordance with its
terms, have been done, performed and have happened in due and strict
compliance with all applicable laws,
(ii) the entering into and performance of this Agreement by the Borrower
will not violate any law, rule, regulation, order, decree, permit,
agreement or instrument to which the Borrower is a party or is
subject, or result in the imposition of any lien upon any of the
Borrower's assets (except as contemplated hereby),
(iii) the Agreement is in proper legal form under the laws of the
Borrower's jurisdiction of organization for enforcement thereof in the
courts of such jurisdiction,
12. If any Regulatory Change applicable to the Bank or any corporation
controlling the Bank, shall either (i) impose, modify or deem applicable any
reserve, capital, special deposit or similar requirement against commitments
made by the Bank or letters of credit issued by or for the account of the Bank,
or (ii) change the manner in which commitments made by the Bank or contingent
obligations under letters of credit must be treated for regulatory purposes
(including, without limitation, any requirement that such commitment or
liabilities must be reflected on the balance sheet of the Bank or any
requirement subjecting such commitment or liabilities to capital coverage
requirements), or (iii) impose on the Bank or any corporation controlling the
Bank any other condition relating, directly or indirectly, to this Agreement,
the Credit Facility, or any letter of credit, and the result of any event
referred to in the preceding clauses (i), (ii) or (iii) shall be to increase the
cost to, or reduce the profit of, the Bank in connection with this Agreement,
the Credit Facility, or the issuing or maintaining of any letter of credit,
then, upon presentation of the certificate described in the next following
sentence, the Borrower shall immediately pay to the Bank, from time to time as
specified by the Bank in such certificate, such additional amounts as shall be
sufficient to compensate the Bank for such increased cost or reduced profit. A
certificate in reasonable
10
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27, 2003
detail as to any increased cost or reduction, as the case may be, resulting from
any event mentioned in clauses (i), (ii) or (iii) above, submitted by the Bank
to the Borrower, shall be conclusive as to the amount thereof, and such
certificate shall state which of the events mentioned in clause (i), (ii) or
(iii) above relates to such cost or reduction and shall describe the method of
calculating and allocating such cost or reduction. The term "Regulatory Change"
shall mean the enactment or issuance of any new, or any change, implementation
or effectiveness of any existing law, rule, regulation or order or any change in
the governmental request, directive or guideline (whether or not having the
force of law).
13. In addition to any rights now or hereafter granted under applicable law
or otherwise and not by way of limitation of any such rights, upon the
occurrence of an L/C Default, the Bank is hereby authorized at any time or from
time to time, without presentment, demand, protest or other notice of any kind
to the Borrower or to any other Person, any such notice being hereby expressly
waived, to setoff and to appropriate and apply any and all deposits and credit
balances (general or special) and any other indebtedness at any time held or
owing by the Bank to or for the credit or the account of the Borrower against
and on account of the obligations and liabilities of the Borrower to the Bank
under this Agreement, the Credit Facility and the Letter of Credit Documents,
irrespective of whether or not the Bank shall have made any demand hereunder and
although said obligations, liabilities or claims, or any of them shall be
contingent or unmatured. The Borrower shall be liable for any deficiency
resulting from any such act or any other action by the Bank to realize upon any
security for the obligations of the Borrower hereunder.
14. The Borrower represents and agrees that
(i) legal proceedings against it with respect to this Agreement and the
transactions contemplated hereby may be brought in the courts of its
jurisdiction of organization or principal location or any jurisdiction
in which the Borrower has substantial assets or the courts of the
State of New York or of the United States of America for the Southern
District of New York, as the Bank may elect, and that the jurisdiction
of such courts is generally and unconditionally accepted,
(ii) service of process out of any such court may be made by mailing copies
thereof by registered or certified air mail, postage prepaid, to the
Borrower at its address for notices as specified herein and will
become effective 30 days after such mailing,
(iii) it is not entitled to, and to the extent it hereafter becomes so
entitled, hereby waives any immunity, sovereign or otherwise, with
respect to itself and its property from jurisdiction, service,
attachment (both before and after judgment) and execution in legal
proceedings wherever commenced to enforce or collect upon this
Agreement, and
(iv) the provisions of this Section 14 shall not limit the right of the
Bank to serve process in any other manner permitted by law or to
commence legal proceedings in any other court of competent
jurisdiction.
15. If, for the purpose of obtaining a judgment for amounts due hereunder,
any obligation hereunder, must be converted from the currency (the "debt
currency") in which it is denominated under this Agreement into another currency
(the "judgment currency"), the Borrower agrees
(i) the such conversion shall be made on the basis of the prevailing
applicable buying spot rate of exchange on the date before, and in the
location at which, such judgment is to rendered, and
(ii) to pay to the Bank the difference, if any, between (x) the amount due
under the terms of this Agreement in the debt currency and (y) the
amount in the debt currency which
11
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27, 2003
the Bank is able to obtain with any payment by the Borrower in the
judgment currency on the date of such payment, or as soon thereafter
as is practicable.
The provisions of this Section 15 shall constitute a separate obligation of the
Borrower, independent from its other obligations hereunder, and shall not be
affected by or merged into any judgment obtained for other sums due hereunder,
all with the same effect as if such provisions were set forth in a separate
agreement. In further consideration for such obligation, the Bank agrees that,
notwithstanding any judgment for amounts due hereunder which is rendered in
other than the debt currency, the Borrower shall not be required to pay to the
Bank in the debt currency more than the amount due to the Bank in accordance
with the terms hereof.
16. The Bank and the Borrower agree that:
(i) communications may be given to the parties hereto at their respective
addresses set forth below, or at such other address as may be
specified in writing and shall be effective when received; the phrases
"written notice" and "in writing" when used herein shall mean notice
given in any form of writing however transmitted;
(ii) this Agreement may be modified only be an instrument in writing signed
by the party against whom enforcement of the modification is sought;
(iii) this Agreement shall be binding upon the Borrower, its successors and
assigns and shall inure to the benefit of and be enforceable by the
Bank and its successors and assigns;
(iv) the Bank's rights, powers, privileges and remedies under or in
connection with this Agreement are cumulative and not exclusive and
shall not be waived, precluded or limited by any failure or delay in
the exercise thereof or by the partial exercise thereof or by any
course of dealing between the Borrower and the Bank;
(v) the Borrower agrees to pay and hold the Bank harmless from and against
any and all costs and expenses (including legal tees and disbursements
and stamp and other taxes) incurred in connection with this Agreement
or any Letter of Credit, the enforcement hereof or thereof and any
action or proceeding relating to a court order, injunction or other
process restraining or seeking to restrain the Bank from paying any
amount under any Letter of Credit; and
(vi) this Agreement and the rights and obligations of the parties hereunder
shall be construed in accordance with and be governed by, the law of
the State of New York; and the Letter of Credit shall be governed by
the Uniform Customs and Practice for Documentary Credits, 1993
Revision, International Chamber of Commerce Publication 500 and to the
extent not covered thereby, by the law of the State of New York.
17. WAIVER OF JURY TRIAL. EXCEPT TO THE EXTENT PROHIBITED BY LAW WHICH
CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN CONNECTION
WITH ANY ACTION OR PROCEEDING OF ANY NATURE WHATSOEVER ARISING UNDER, OUR OF OR
IN CONNECTION WITH THIS AGREEMENT, ThE CREDIT FACILITY, ANY LETTER OF CREDIT OR
ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY AND
IN CONNECTION WITH ANY CLAIM, COUNTERCLAIM, OFFSET OR DEFENSE ARISiNG IN
CONNECTION WITH SUCH ACTION OR PROCEEDING, WHETHER ARISING (X) IN CONNECTION
WITH ANY ACTION INSTITUTED BY OR ON BEHALF OF THE BORROWER, THE BANK OR ANY
OThER PERSON OR (Y) UNDER STATUTE
12
▇▇▇▇▇ Offshore Inc.
Amended and Restated Reimbursement Agreement
August 27, 2003
(INCLUDING ANY FEDERAL OR STATE CONSTITUTION) OR UNDER THE LAW OF CONTRACT, TORT
OR OTHERWISE AND VALIDITY, BINDING EFFECT OR ENFORCEABILITY OF ThIS SECTION 17,
OR THIS AGREEMENT, THE CREDIT FACILITY, ANY ▇▇▇▇▇▇ OF CREDIT OR ANY OThER LOAN
DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the date first above written.
Addresses
---------
Borrower: ▇▇▇▇▇ Offshore Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Bank: Den norske Bank ASA
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇ ▇▇▇▇▇
Telex No: WU 426357
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
13
Schedule 1
Owner Vessel
----- ------
▇▇▇▇▇ Protector B.V. ▇▇▇▇▇ PROTECTOR
▇▇▇▇▇ Avance B.V. ▇▇▇▇▇ AVANCE
▇▇▇▇▇ Eagle B.V. ▇▇▇▇▇ TAURUS
▇▇▇▇▇ Condor B.V. ▇▇▇▇▇ GUARDIAN
▇▇▇▇▇ Egret B.V. ▇▇▇▇▇ EGRET