DATED 30 September 2004
NORSK TEEKAY HOLDINGS LTD
(as borrower)
— and —
DNB NOR BANK ASA
(as arranger)
— and —
THE SEVERAL BANKS
(as banks)
— and —
DNB NOR BANK ASA
(as facility agent and security trustee)
SECOND SUPPLEMENTAL AGREEMENT TO
A SECURED REDUCING REVOLVING LOAN
FACILITY AGREEMENT DATED 26 JUNE 2003
AS AMENDED BY A FIRST SUPPLEMENTAL AGREEMENT
DATED 17 NOVEMBER 2003
One, St Paul's Churchyard
London EC4M 8SH
Telephone +44 (0)20 7329 4422
Fax +44 (0)20 7606 0822
DX No. 64 Chancery Lane
www.shlegal.com
STEPHENSON HARWOOD
CONTENTS
Page
1
Interpretation.......................................................................................2
2
Conditions...........................................................................................3
3
Representations and
Warranties.......................................................................6
4
Amendments to Loan
Agreement.........................................................................6
5
Confirmation and
Undertaking........................................................................10
6
Communications, Law and
Jurisdiction................................................................10
7
Miscellaneous.......................................................................................10
Schedule
1...................................................................................................11
The
Banks........................................................................................11
Schedule
2...................................................................................................14
The
Vessels......................................................................................14
SUPPLEMENTAL
AGREEMENT
Dated: 30
September 2004
BETWEEN:-
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(1)
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NORSK TEEKAY
HOLDINGS LTD which is a
company incorporated according to the law of the Marshall Islands
with its registered office at c/o Trust Company Complex, Ajeltake
Road, Ajeltake Island, Majuro, Marshall Islands MH-96960 and its
principal place of business at TK House, Bayside Executive Park,
West Bay Street & Blake Road, Nassau, The Bahamas (the "
Borrower "); and
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(2)
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the banks and
financial institutions listed in Schedule 1, each acting through
its office at the address indicated against its name in Schedule 1
(together " the Banks " and each a " Bank ");
and
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(3)
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DNB NOR BANK
ASA , acting as facility
agent and security trustee through its office at Stranden 21, P.O.
Box 1171 Sentrum, N-0107 Oslo, Norway (in that capacity " the
Agent "); and
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(4)
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DNB NOR BANK
ASA , acting as arranger
and underwriter through its office at Stranden 21, P.O. Box 1171
Sentrum, N-0107 Oslo, Norway (in that capacity " the
Arranger ")
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SUPPLEMENTAL TO
a Secured Reducing Revolving Loan
Facility Agreement dated 26 June 2003 (the " Original
Agreement") as amended by a first supplemental agreement dated 17
November 2003 (the " First Supplement " and together with
the Original Agreement the " Loan Agreement ") each made
between the Borrower, the Banks and others (the " Original
Banks "), the Arrangers (as defined therein) and the Agent (in
its former name of Den norske Bank ASA), on the terms and subject
to the conditions of which each of the Original Banks made
available to the Borrower its respective Commitment of an aggregate
principal amount not exceeding five hundred and fifty million
Dollars ($550,000,000) (the " Facility ").
WHEREAS:-
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(A)
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The Borrower
wishes to restructure the Facility to enhance the financial
flexibility of the Guarantor and the Borrower and has requested the
consent of the Banks to such restructuring.
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(B)
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The Banks, the
Arranger and the Agent have agreed to consent to such restructuring
and have agreed to amend the Loan Agreement accordingly on the
terms and subject to the conditions contained in this Supplemental
Agreement.
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IT IS AGREED THAT:-
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1.1
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In this
Supplemental Agreement:-
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"
Confirmation Deed " means a deed of amendment and
confirmation to be signed by the Guarantor in respect of the
Guarantee in form and substance satisfactory to the
Agent.
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" Effective
Date " means the date on which the Agent confirms to the
Borrower that all of the conditions referred to in Clause 2.1 have
been satisfied, which confirmation the Agent shall be under no
obligation to give if an Event of Default or Potential Event of
Default shall have occurred.
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"
Intercompany Agent " means DnB NOR Bank ASA in its capacity
as agent under the Intercompany Loan Amendment and Restatement and
the Intercompany Loan Agreement (as redefined in clause 4.1.5
hereof).
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"
Intercompany Loan Amendment and Restatement " means the
amendment and restatement of the Intercompany Loan Agreement made
or to be made between the Borrower, the Purchaser and the
Intercompany Agent on terms acceptable to the Majority
Banks.
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" Navion
Clipper Mortgage Transfer " means the transfer of the Bahamas
ship mortgage over m.v. "NAVION CLIPPER" in favour of the
Intercompany Agent and the Borrower executed or to be executed in
favour of the Agent.
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" Navion
Saga Mortgage Transfer " means the transfer of the Bahamas ship
mortgage over m.v. "NAVION SAGA" in favour of the Intercompany
Agent and the Borrower executed or to be executed in favour of the
Agent.
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" New
Guarantees " means the guarantees to be granted by the Vessel
Owners in favour of the Intercompany Agent.
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" New
Security Documents " means together this Supplemental
Agreement, the New Guarantees, the Confirmation Deed and the
Qualifying Security Assignment.
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" the
Qualifying Mortgages " means the first priority statutory ship
mortgages over the Vessels together with deeds of covenants
collateral thereto to be granted by the Vessel Owners in favour of
the Intercompany Agent (or, in the case of the mortgages and deeds
of covenant for "NAVION CLIPPER" and "NAVION SAGA" only, in favour
of the Intercompany Agent and the Borrower) (each a " Qualifying
Mortgage ").
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" Qualifying
Security Assignment " means the deed of assignment of the
Qualifying Security Documents to be executed by the Borrower, the
Vessel Owners and the Intercompany Agent in favour of the
Agent.
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" Qualifying
Security Documents " means together the New Guarantees and the
Qualifying Mortgages.
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" Trust
Deed " means the deed made or to be made between the Borrower
and the Intercompany Agent setting out the terms and conditions
upon which the Intercompany Agent will hold the Qualifying
Security;
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" Vessel
Owners " means Navion Offshore Loading AS of Norway and Navion
Shipping Ltd.
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"
Vessels " means those vessels listed in Schedule 2, each of
which is owned by a Vessel Owner.
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1.2
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All words and
expressions defined in the Loan Agreement shall have the same
meaning when used in this Supplemental Agreement unless the context
otherwise requires, and clause 1.2 of the Original Agreement shall
apply to the interpretation of this Supplemental Agreement as if it
were set out in full.
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2.1
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Before Clause 4
of this Supplemental Agreement shall take effect, the Borrower
shall deliver or cause to be delivered to or to the order of the
Agent the following documents and evidence:-
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2.1.1
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A certificate
from a duly authorised officer of each of the Borrower and the
Guarantor confirming that none of the documents delivered to the
Agent pursuant to Clauses 3.1.1 and 3.1.3 of the Original Agreement
have been amended or modified in any way since the date of their
delivery to the Agent, or copies, certified by a duly authorised
officer of the Borrower or the Guarantor as the case may be as
true, complete, accurate and neither amended nor revoked, of any
which have been amended or modified.
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2.1.2
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Such evidence
as the Agent may reasonably require that each Vessel Owner was duly
incorporated in its country of incorporation and remains in
existence and, where appropriate, in good standing, with the power
to enter into, and perform its obligations under the Qualifying
Security Documents including (without limitation) a copy, certified
by a director, officer or the secretary of the Vessel Owner in
question as true, complete, accurate and unamended, of all
documents establishing or limiting the constitution of such Vessel
Owner.
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2.1.3
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A copy,
certified by a director, officer or the secretary of each of the
Borrower, the Guarantor and the Vessel Owners as true, complete,
accurate and neither amended nor revoked, of a resolution of its
directors and, where required, a resolution of the shareholders
(together, where appropriate, with signed waivers of notice of any
directors’ or shareholders’ meetings) approving, and
authorising or ratifying the execution of, those of the New
Security Documents and the Qualifying Security Documents to which
the Borrower, the Guarantor or the relevant Vessel Owner (as the
case may be) is or is intended to be a party and all matters
incidental thereto.
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2.1.4
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A certificate
signed by a duly authorised officer of each of the Borrower, the
Guarantor and each Vessel Owner setting out the names of its
directors, officers and shareholders together (where appropriate)
with an official certificate of good standing or equivalent
certificate in respect of each issued by its company
registry.
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2.1.5
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The power of
attorney, notarially attested and legalised where required,
o
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