Exhibit 10.37


 


 


Private &
Confidential


 


 


Supplemental Agreement


 


 


 


 


 


 


Dated 13th June 2007


 


SUPPLEMENTAL AGREEMENT


 


relating to inter alia a loan of up to €
13,300,000

to


 


 


OCEAN DYNAMIC CORP.


 


-and-


 


SEA GLOBAL S.A.


 


as joint and several Borrowers


 


 


provided by


 


 


HSH NORDBANK AG


 


-and-


 


AEGEAN BALTIC BANK S.A.

as Banks


 


 


 


-and-

HSH NORDBANK AG

as L/C Bank


 


 


 


-and-

AEGEAN BALTIC BANK S.A.

as Arranger, Agent and Security Trustee


 


 


 


V&P

Law Firm


 

















 


THIS
SUPPLEMENTAL AGREEMENT is dated 13th June 2007 and made


BY AND
AMONG:


(1)                                  OCEAN
DYNAMIC CORP. a corporation organised and existing under the laws
of the Republic of the Marshall Islands, having its registered office at Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the
Marshall Islands (the “Borrower A”);


(2)                                  SEA
GLOBAL S.A., a corporation organised and existing under the
laws of the Republic of the Marshall Islands, having its registered office at
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the
Marshall Islands (the “Borrower B” and
together with the Borrower A the “Borrowers”);


(3)                                  AEGEAN
BALTIC BANK S.A., a company incorporated under the laws of Greece
having its registered office at 28 Diligianni Street, 145 62 Kifissia, Greece
in its capacity as arranger (the “Arranger”);


(4)                                  AEGEAN
BALTIC BANK S.A., a company incorporated under the laws of Greece
having its registered office at 28 Diligianni Street, 145 62 Kifissia, Greece
In its capacity as agent for the Banks and the L/C Bank (the “Agent”);


(5)                                  AEGEAN
BALTIC BANK S.A., a company incorporated under the laws of Greece
having its registered office at 28 Diligianni Street, 145 62 Kifissia, Greece
in its capacity as security agent and trustee for and on behalf of the Agent,
the Banks and the L/C Bank (the “Security Trustee”);


(6)                                  THE
BANKS AND FINANCIAL INSTITUTIONS whose names and addresses
are set out in schedule I as lenders (the “Banks”);


(7)                                  HSH
NORDBANK AG, a company organised and existing under the laws of
the Republic of Germany, having its registered office at
Gerhart-Hauptmann-Platz 50, 20095 Hamburg, Germany, in its capacity as letters
of credit Issuing bank (the “L/C Bank” and
together with the Agent, the Arranger, the Security Trustee and the Banks
hereinafter called the “Creditor Parties”);


(8)                                  AEGEAN
BUNKERING SERVICES INC., a corporation incorporated under the laws
of the Republic of the Marshall Islands having its registered office at Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
MH96960 in its capacity as manager and corporate guarantor (the “Manager”);


(9)                                  AEGEAN
MARINE PETROLEUM S.A., a corporation incorporated under the laws
of the Republic of Liberia having its registered office at 80 Broad Street,
Monrovia, Republic of Liberia in its capacity as corporate guarantor (the “AEGEAN PETROLEUM” and together with the Manager the “Existing Corporate Guarantors”);


(10)                            MR DIMITRIOS
MELISANIDIS of 4, Hydras and Simla Street, Aixoni, Glyfada,
Attiki (the “Personal Guarantor”);


(11)                            AEGEAN MARINE PETROLEUM NETWORK INC., a corporation incorporated
under the laws of the Republic of the Marshall Islands having its registered
office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro,
Marshall Islands MH96960 (the “AEGEAN PETROLEUM NETWORK”);
and


(12)                            AEGEAN
SHIPHOLDINGS INC., a corporation incorporated under the laws of the
Republic of the Marshall Islands having its registered office at Trust Company
Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the “AEGEAN SHIPHOLDINGS” and, together with the AEGEAN PETROLEUM
NETWORK, the “New Corporate Guarantors”).


 

















 


WHEREAS:


(A)                              this agreement
is supplemental to a financial agreement dated 26 October 2005 (the “Principal Agreement”) made by and among (1) the Borrowers,
(2) the Arranger, (3) the Agent, (4) the Security Trustee (5) the Banks and (6)
the L/C Bank, relating to a loan facility of up to Thirteen million three
hundred thousand Euro (€13,300,000) made or (as the context may require) to be
made available by the Banks to the Borrowers, jointly and severally, of which
the principal amount outstanding at the date hereof is Ten million Two hundred
fifty two thousand and five hundred Euros (€10,252,500), to be used for the
purposes of, inter alia, financing and/or, as the case may be, refinancing part
of the construction and acquisition cost of the Vessels;


(B)                                by a letter of
credit facility agreement dated 26th October 2005 (hereinafter as
the same may from time to time be amended, supplemented or varied called the “L/C Facility Agreement”) made by and among the L/C Bank as
letters of credit issuing bank and the Borrowers as joint and several obligors,
the L/C Bank has made available to the Borrowers a letter of credit facility in
an aggregate amount not exceeding Twelve million Three hundred Three thousand
Euros (€12,303,000) for the purpose of issuance of up to two (2) stand by
letters of credit, under the terms and conditions therein stated;


(C)                                this agreement
sets out the terms and conditions upon which the Creditor Parties shall, at the
request of the Borrowers, provide their consent to:


(i)                                     the release of
the Personal Guarantee;


(ii)                                  the release of
the Borrowers’ obligations to pay moneys to the credit of the Retention Account
pursuant to clause 21 of the Principal Agreement;


(iii)                               the execution
of corporate guarantees by the New Corporate Guarantors in favour of the
Security Trustee, each as security for the obligations of the Borrowers under
the Financial Agreement and the L/C Facility Agreement; and


(iv)                              certain other
amendments to the Principal Agreement.


NOW IT
IS HEREBY AGREED as follows:


1                                         Definitions


1.1                               Defined expressions


Words
and expressions defined in the Principal Agreement shall, unless the context
otherwise requires or unless otherwise defined herein, have the same meanings
when used in this Agreement.


1.2                               Definitions


In
this Agreement, unless the context otherwise requires:


“AEGEAN PETROLEUM NETWORK Guarantee” means the guarantee and
indemnity executed or (as the context may require) to be executed by the AEGEAN
PETROLEUM NETWORK in favour of the Security Trustee in the form set out in
schedule 4;


“AEGEAN SHIPHOLDINGS Guarantee” means the guarantee and
indemnity executed or (as the context may require) to be executed by AEGEAN
SHIPHOLDINGS in favour of the Security Trustee in the form set out in schedule
5;


“Effective Date” means the date, being no later than 15th
June 2007, on which the Agent notifies the Borrowers in writing that the Agent
has received the documents and evidence specified in clause 5 and schedule 2 in
a form and substance satisfactory to it;


 

















 


“Existing Corporate Guarantees” means the guarantees and
indemnities, both dated 29th November 2005 executed by each Existing
Corporate Guarantor in favour of the Security Trustee in respect of the
obligations of the Borrowers under the Principal Agreement and the L/C Facility
Agreement;


“Financial Agreement” means the Principal Agreement as
amended and restated by this Agreement;


“New Corporate Guarantees” means, together, the AEGEAN
PETROLEUM NETWORK Guarantee and the AEGEAN SHIPHOLDINGS Guarantee and “New Corporate Guarantee” means either of them;


“Personal Guarantee” means the guarantee dated 29th
November 2005 executed by the Personal Guarantor in favour of the Agent, the
Security Trustee, the Banks and the L/C Bank in respect of the obligations of
the Borrowers under the Principal Agreement and the L/C Facility Agreement;


“Relevant Documents” means this Agreement and the New
Corporate Guarantees; and


“Relevant Parties” means, together, the Borrowers, the Existing
Corporate Guarantors, the Personal Guarantor, the Manager and the New Corporate
Guarantors or, where the context so requires or permits, means any or all of
them.


1.3                               Principal Agreement


References
in the Principal Agreement to “this Agreement”
shall, with effect from the Effective Date and unless the context otherwise
requires, be references to the Principal Agreement as amended and restated by
this Agreement and words such as “herein”, “hereof”, “hereunder”, “hereafter”, “hereby” and “hereto”, where they appear in the Principal Agreement, shall
be construed accordingly.


1.4                               Headings


Clause
headings and the table of contents are inserted for convenience of reference
only and shall be ignored in the interpretation of this Agreement.


1.5                               Construction of certain terms


Clause
1.4 of the Principal Agreement shall apply to this Agreement (mutatis mutandis) as if setout herein and
as if references therein to “this Agreement” were references to this Agreement.


2                                         Consent
of the Creditor Parties


2.1                               Consent


The
Creditor Parties, relying upon the representations and warranties on the part
of the Borrowers contained in clause 4, agree with the Borrowers that subject
to the terms and conditions of this Agreement and in particular, but without
prejudice to the generality of the foregoing, fulfilment on or before 15th
June 2007 of the conditions contained in clause 5 and schedule 2, the Creditor
Parties agree to the amendments of the Principal Agreement on the terms set out
in clause 3.


2.2                               Release of Personal Guarantee


The
Creditor Parties hereby agree that, subject to the terms and conditions of this
Agreement and in particular, but without prejudice to the generality of the
foregoing, satisfaction of the conditions contained in clause 5 and schedule 2,
they release the Personal Guarantor from its obligations under the Personal
Guarantee.


 

















 


3                                         Amendments
to Principal Agreement


3.1                               Amendments to Principal Agreement


The
Principal Agreement shall, with effect on and from the Effective Date, be (and
it is hereby) amended in accordance with the form of the amended and restated
Financial Agreement set out in schedule 3 and (as so amended) will continue to
be binding upon the Creditor Parties and the Borrowers upon such terms as so
amended and restated.


3.2                               Continued force and effect


Save
as amended and restated by this Agreement, the provisions of the Principal
Agreement shall continue in full force and effect and the Principal Agreement
and this Agreement shall be read and construed as one instrument.


4                                         Representations
and warranties


4.1                               Primary representations and warranties


Each
of the Relevant Parties represents and warrants to the Creditor Parties that:


4.1.1                                                Existing
representations and warranties


the
representations and warranties set out in clause 14 of the Principal Agreement
and clause 3 of each Existing Corporate Guarantee were true and correct on the
date of the Principal Agreement and each Existing Corporate Guarantee,
respectively, and are true and correct, including to the extent that they may
have been or shall be amended by this Agreement, as if made at the date of this
Agreement with reference to the facts and circumstances existing at such date;


4.1.2                                                Corporate
power


each
of the Relevant Parties has power to execute, deliver and perform its
obligations under the Relevant Documents to which it is or is to be a party;
all necessary corporate, shareholder and other action has been taken by each of
the Relevant Parties to authorise the execution, delivery and performance of
the Relevant Documents to which it is or is to be a party;


4.1.3                                                Binding
obligations


the
Relevant Documents to which it is or is to be a party constitute valid and
legally binding obligations of each of the Relevant Parties enforceable in
accordance with their terms;


4.1.4                                                No
conflict with other obligations


the
execution, delivery and performance of the Relevant Documents to which it is or
is to be a party by each of the Relevant Parties will not (i) contravene any
existing law, statute, rule or regulation or any judgment, decree or permit to
which any of the Relevant Parties is subject, (ii) conflict with, or result in
any breach of any of the terms of, or constitute a default under, any agreement
or other instrument to which any of the Relevant Parties is a party or is
subject or by which it or any of its property is bound, (iii) contravene or
conflict with any provision of the constitutional documents of any of the
Relevant Parties or (iv) result in the creation or imposition of or oblige any
of the Relevant Parties to create any Encumbrance (other than a Permitted
Encumbrance) on any of the undertaking, assets, rights or revenues of any of
the Relevant Parties;


4.1.5                                                No
filings required


 

















 


it
is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of any of the Relevant Documents that they or any
other instrument be notarised, filed, recorded, registered or enrolled in any
court, public office or elsewhere in any Relevant Jurisdiction or that any
stamp, registration or similar tax or charge be paid in any Relevant
Jurisdiction on or in relation to the Relevant Documents and each of the
Relevant Documents is in proper form for its enforcement in the courts of each
Relevant Jurisdiction;


4.1.6                                                Choice
of law


the
choice of English law to govern the Relevant Documents and the submissions by
the Relevant Parties to the non-exclusive jurisdiction of the English courts
are valid and binding; and


4.1.7                                                Consents
obtained


every
consent, authorisation, licence or approval of, or registration or declaration
to, governmental or public bodies or authorities or courts required by any of
the Relevant Parties in connection with the execution, delivery, validity,
enforceability or admissibility in evidence of the Relevant Documents to which
it Is or will become a party or the performance by any of the Relevant Parties
of their respective obligations under such documents has been obtained or made
and is in full force and effect and there has been no default in the observance
of any conditions or restrictions (if any) imposed in, or in connection with,
any of the same.


4.2                               Repetition of representations and warranties


Each
of the representations and warranties contained in clause 4.1 of this
Agreement, clause 14 of the form of the amended and restated Financial
Agreement set out in schedule 3, clause 3 of each Existing Corporate Guarantee
and clause 3 of each of the New Corporate Guarantees shall be deemed to be
repeated by the relevant Relevant Parties on the Effective Date as if made with
reference to the facts and circumstances existing on such day.


5                                         Conditions


5.1                               Documents and evidence


The
consents and agreements of the Creditor Parties referred to in clause 2 shall
be subject to the receipt by the Agent or as duly authorised representative on
or before the Effective Date of the documents and evidence specified in
schedule 2 in form and substance satisfactory to the Agent.


5.2                               General conditions precedent


The
consents and agreements of the Creditor Parties referred to in clause 2 shall
be further subject to:


5.2.1                                                the
representations and warranties in clause 4 being true and correct on the
Effective Date as if each was made with respect to the facts and circumstances
existing at such time; and


5.2.2                                                no
Default having occurred and continuing at the time of the Effective Date.


5.3                               Waiver of conditions precedent


The
conditions specified in this clause 5 are inserted solely for the benefit of
the Creditor Parties and may be waived by the Agent (acting on the instructions
of the Majority Banks) in whole or in part with or without conditions.


 

















 


6                                         Relevant
Parties’ confirmation


Each
of the Relevant Parties hereby confirms its consent to the amendments to the
Principal Agreement as set out in clause 3 and to the release of the Personal
Guarantee and agrees that:


6.1                               each
of the Finance Documents to which it is a party, and its obligations
thereunder, shall remain and continue in full force and effect notwithstanding
the amendments to the Principal Agreement and the other Finance Documents
contained in this Agreement and the release of the Personal Guarantee; and


6.2                               with
effect from the Effective Date references to (i) “the Agreement” or “the
Financial Agreement” in any of the other Finance Documents to which it is a
party shall henceforth be references to the Principal Agreement as amended by this
Agreement and as from time to time hereafter amended and shall also be deemed
to Include this Agreement and the obligations of the Borrowers hereunder and
(ii) references in any of the Finance Documents to any other Finance Document
to which it is a party shall henceforth be reference to that Finance Document
as amended by this Agreement and as from time to time hereafter amended.


7                                         Expenses


7.1                               Expenses


The
Borrowers agree to pay to the Agent on a full indemnity basis on demand all
expenses (including legal and out-of-pocket expenses) incurred by the Creditor
Parties or any of them:


7.1.1                                                in
connection with the negotiation, preparation, execution and, where relevant,
registration of this Agreement, the other Relevant Documents or any of them and
any discharge or release documents required to be executed by the Creditor
Parties or any of them pursuant to clause 2.2 and of any amendment or extension
of or the granting of any waiver or consent under this Agreement, the other
Relevant Documents or any of them or any such discharge or release documents;
and


7.1.2                                                in
contemplation of, or otherwise in connection with, the enforcement of, or
preservation of any rights under this Agreement or the other Relevant Documents
or otherwise in respect of the monies owing and obligations incurred under this
Agreement and the other Relevant Documents,


together
with interest at the rate referred to in clause 123 of the Principal Agreement
from the date on which such expenses were incurred to the date of payment (as
well after as before judgment).


7.2                               Value Added Tax


All
fees and expenses payable pursuant to this clause 7 shall be paid together with
value added tax or any similar tax (if any) property chargeable thereon.


7.3                               Stamp and other duties


The
Borrowers agree to pay to the Agent on demand all stamp, documentary,
registration or other like duties or taxes (including any duties or taxes
payable by the Creditor Parties or any of them) imposed on or in connection
with this Agreement or the other Relevant Documents or any of them and shall
indemnify the Creditor Parties or any of them against any liability arising by
reason of any delay or omission by the Borrowers to pay such duties or taxes.


8                                         Miscellaneous
and notices


8.1                               Notices


 

















 


The
provisions of clause 34 of the Financial Agreement shall extend and apply to
the giving or making of notices or demands hereunder as if the same were
expressly stated herein.


8.2                               Counterparts


This
Agreement may be executed in any number of counterparts and by the different
parties on separate counterparts, each of which when so executed and delivered
shall be an original but all counterparts shall together constitute one and the
same instrument.


8.3                               Borrowers’ obligations


Notwithstanding
anything to the contrary contained in this Agreement, the agreements,
obligations and liabilities of the Borrowers herein contained are joint and
several and shall be construed accordingly. Each of the Borrowers agrees and
consents to be bound by this Agreement notwithstanding that the other Borrower
which was intended to sign or be bound may not do so or be effectually bound
and notwithstanding that this Agreement may be invalid or unenforceable against
the other Borrower whether or not the deficiency is known to the Creditor
Parties or any of them. The Creditor Parties shall be at liberty to release any
of the Borrowers from this Agreement and to compound with or otherwise vary the
liability or to grant time and indulgence to make other arrangements with any
of the Borrowers without prejudicing or affecting the rights and remedies of
the Creditor Parties or any of them against the other Borrower.


9                                         Applicable
law


9.1                               Law


This
Agreement is governed by, and shall be construed in accordance with, English
law.


9.2                               Submission to jurisdiction


Each
Relevant Party agrees, for the benefit of the Creditor Parties, that any legal
action or proceedings arising out of or in connection with this Agreement
against such Relevant Party or any of its assets may be brought in the English
courts. Each Relevant Party irrevocably and unconditionally submits to the
jurisdiction of such courts and irrevocably designates, appoints and empowers
Riches Consulting at present of Oki Jarretts Farmhouse, Brantridge Lane,
Balcombe, West Sussex RH17 6JR, England to receive for it and on its behalf,
service of process issued out of the English courts in any such legal action or
proceedings. The submission to such jurisdiction shall not (and shall not be
construed so as to) limit the right of the Creditor Parties or any of them to
take proceedings against the Relevant Parties or any of them in the courts of
any other competent jurisdiction nor shall the taking of proceedings in any one
or more jurisdictions preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not. The parties further agree that only
the Courts of England and not those of any other State shall have jurisdiction
to determine any claim which the Relevant Parties or any of them may have
against the Creditor Parties or any of them arising out of or in connection
with this Agreement.


9.3                               Contracts (Rights of Third Parties) Act 1999


No
term of this Agreement is enforceable under the Contracts (Rights of Third
Parties) Act 1999 by a person who is not a party to this Agreement.


IN
WITNESS whereof the parties to this Agreement have caused this Agreement to be
duly executed on the date first above written.

















 


	
  EXECUTED as a DEED

  	
   

  	
   

  
	
  by YPAPANTI KOUMBIADOU

  	
   

  	
   

  
	
  for and on behalf of

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  OCEAN DYNAMIC CORP.

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ YPAPANTI KOUMBIADOU

  
	
  in the presence of:

  	
   

  	
  Attorney-in-fact

  
	
  /s/ AIKATERNINI KOKKINIDOU

  	
   

  	
   

  
	
  AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  Attorney-at-law

  V&P Law Firm

  15,Filikis Eterias Square

  106 73, Athens - Greece

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a DEED

  	
   

  	
   

  
	
  by YPAPANTI KOUMBIADOU

  	
   

  	
   

  
	
  for and on behalf of

  	
   

  	
   

  
	
  SEA GLOBAL S.A.

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ YPAPANTI KOUMBIADOU

  
	
  in the presence of:

  	
   

  	
  Attorney-in-fact

  
	
   

  	
   

  	
   

  
	
  /s/ AIKATERNINI KOKKINIDOU

  	
   

  	
   

  
	
  AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  Attorney-at-law

  V&P Law Firm

  15,Filikis Eterias Square

  106 73, Athens - Greece

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Philippos E. TSAMANIS

  
	
  by

  	
   

  	
  Authorised Signatory

  
	
  and by

  	
   

  	
   

  
	
  for and on behalf of

  	
   

  	
   

  
	
  AEGEAN BALTIC BANK S.A.

  	
   

  	
  /s/ PANAGIOTIS P.
  NIKITARAKOS

  
	
   

  	
   

  	
  Authorised Signatory

  
	
  as Arranger, Agent,
  Security

  	
   

  	
   

  
	
  Trustee and Bank

  	
   

  	
   

  
	
  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ AIKATERNINI KOKKINIDOU

  	
   

  	
   

  
	
  AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  Attorney-at-law

  V&P Law Firm

  15,Filikis Eterias Square

  106 73, Athens - Greece

  	
   

  	
   

  



 


 

















 


	
  EXECUTED as a DEED

  	
   

  	
   

  
	
  by AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  for and on behalf of

  	
   

  	
   

  
	
  HSH NORDBANK AG

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ AIKATERINI KOKKINIDOU

  
	
  As L/C Bank and Bank

  	
   

  	
  Attorney-in-fact

  
	
  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ ANNA SACHLI

  	
   

  	
   

  
	
  ANNA SACHLI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a DEED

  	
   

  	
   

  
	
  by YPAPANTI KOUMBIADOU

  	
   

  	
   

  
	
  for and on behalf of

  	
   

  	
   

  
	
  AEGEAN BUNKERING SERVICES INC.

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ YPAPANTI KOUMBIADOU

  
	
  as Existing Corporate
  Guarantor and Manager

  	
   

  	
  Attorney-in-fact

  
	
  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  Attorney-at-law

  V&P Law Firm

  15,Filikis Eterias Square

  106 73, Athens - Greece

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a DEED

  	
   

  	
   

  
	
  by YPAPANTI KOUMBIADOU

  	
   

  	
   

  
	
  for and on behalf of

  	
   

  	
   

  
	
  AEGEAN MARINE PETROLEUM S.A.

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ YPAPANTI KOUMBIADOU

  
	
  as Existing Corporate
  Guarantor

  	
   

  	
  Attorney-in-fact

  
	
  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  Attorney-at-law

  V&P Law Firm

  15,Filikis Eterias Square

  106 73, Athens - Greece

  	
   

  	
   

  



 

















 


	
  EXECUTED as a DEED

  	
   

  	
   

  
	
  by MR
  DIMITRIOS MELISANDIS

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ MR DIMITRIOS
  MELISANIDIS

  
	
  in the presence of :

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  Attorney-at-law

  V&P Law Firm

  15,Filikis Eterias Square

  106 73, Athens - Greece

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a DEED

  	
   

  	
   

  
	
  by YPAPANTI KOUMBIADOU

  	
   

  	
   

  
	
  for and on behalf of

  	
   

  	
   

  
	
  AEGEAN MARINE PETROLEUM NETWORK
  INC.

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ YPAPANTI KOUMBIADOU

  
	
  in the presence of:

  	
   

  	
  Attorney-in-fact

  
	
   

  	
   

  	
   

  
	
  /s/ AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  Attorney-at-law

  V&P Law Firm

  15,Filikis Eterias Square

  106 73, Athens - Greece

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a DEED

  	
   

  	
   

  
	
  by YPAPANTI KOUMBIADOU

  	
   

  	
   

  
	
  for and on behalf of

  	
   

  	
   

  
	
  AEGEAN SHIPHOLDINGS INC.

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ YPAPANTI KOUMBIADOU

  
	
  in the presence of:

  	
   

  	
  Attorney-in-fact

  
	
   

  	
   

  	
   

  
	
  /s/ AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  AIKATERINI KOKKINIDOU

  	
   

  	
   

  
	
  Attorney-at-law

  V&P Law Firm

  15,Filikis Eterias Square

  106 73, Athens - Greece

  	
   

  	
   

  



 


Date 26 October 2005


 


 


 


OCEAN DYNAMIC CORP.


 

















 


-and-

SEA GLOBAL S.A.

as joint and several Borrowers


 


 


 


THE BANKS AND FINANCIAL INSTITUTIONS

listed in Schedule 1

as Banks

-and-


 


 


 


HSH NORDBANK AG

as L/C Bank


 


 


 


-and-


 


 


 


AEGEAN BALTIC BANK S.A.

as Arranger, Agent and Security Trustee


 


 






 


FINANCIAL AGREEMENT






 


relating to a certain long-term loan facility

of up to €13,300,000 to finance the acquisition

of two newbuilding double hull product

tanker vessels with roro facility


 


 


 


 


 


 


V&P

LAW FIRM


 














THIS AGREEMENT is made on the 26th
day of October 2005 as amended and restated by a Supplemental Agreement dated
13th June 2007:


BETWEEN


1.                                     (a)           OCEAN DYNAMIC CORP.
a corporation organised and existing under the laws of the Republic of the
Marshall Islands, having its registered office at Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro MH96960, Republic of the Marshall
Islands (the “Borrower A”); and


(b)                                  SEA GLOBAL S.A., a corporation organised and existing under
the laws of the Republic of the Marshall Islands, having its registered office
at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960,
Republic of the Marshall Islands (the “Borrower B” and
together with the Borrower A the “Borrowers”) as
joint and several borrowers.


2.                                      THE
BANKS listed in Schedule 1 as Banks; and


3.                                      HSH
NORDBANK AG, acting through its office at Gerhart-Hauptmann-Platz 50,
20095, Hamburg, the Federal Republic of Germany as L/C Bank;
and


4.                                      AEGEAN
BALTIC BANK SA, acting through its office at 28 Diligianni Street, 145 62
Kifissia, Greece as Arranger, Agent
and Security Trustee.


WHEREAS


A.                                    The
Borrowers have requested the Banks to make available to the Borrowers a certain
term loan facility not exceeding in aggregate Thirteen million Three hundred
thousand Euros (€13,300,000) for the purposes set forth in Clause 2.2.


B.                                    The
Borrowers and the L/C Bank have agreed to enter into a letter of credit
facility agreement pursuant to which the L/C Bank shall agree to Issue certain
letters of credit at the request of each Borrower.


C.                                    The
Banks and the L/C Bank have agreed to share in the manner herein provided in
the security to be granted to the Security Trustee, the other Creditor Parties
or any of them pursuant to this Agreement.


Now it is hereby agreed as follows:


1                                         PURPOSE AND
DEFINITIONS


1.1                               In this Agreement the following
terms shall have the following meanings unless the context otherwise requires:


“Accounts” means collectively the
Earnings Accounts and the Cash Collateral Account and, in the singular, means
any of them;


“Additional Construction Cost” means in
respect of each Vessel, an amount of up to One million Five hundred thousand
Euros (€1,500,000) as provided in each relevant Additional Works Contract;


“Additional Works’ Advance A” means an
amount of up to One million One hundred Eighty-Two thousand Euros (€1,182,000)
to be drawn down pursuant to the terms and conditions of


 


 


1

















 


this Agreement for the purpose referred to in sub-Clause 2.2 (c) or (as
the context may require) the amount thereof from time to time outstanding
hereunder;


“Additional Works’ Advance B” means an
amount of up to One million One hundred Eighty-Two thousand Euros (€1,182,000)
to be drawn down pursuant to the terms and conditions of this Agreement for the
purpose referred to in sub-Clause 2.2 (c) or (as the context may require) the
amount thereof from time to time outstanding hereunder;


“Additional Works’ Advances” means
collectively the Additional Works’ Advance A and the Additional Works’ Advance
B and, in the singular, means either of them;


“Additional Works’ Contract” means in
respect of each Vessel the “Design Building Supervision Representation
Procurement of Machinery and Supplies and Turn-Key Delivery” contract dated 30th
August 2005 and made between a Borrower and IOTA, as the same may from time to
time be amended, varied or supplemented with the Security Trustee’s prior
written consent, and in the plural, means both of them;


“Advances” means together the Vessel A
Advances and the Vessel B Advances and, in the singular, means any of them;


“AEGEAN PETROLEUM” means AEGEAN MARINE
PETROLEUM S.A. of 80, Broad Street, Monrovia, Liberia;


“AEGEAN PETROLEUM Guarantee” means the
guarantee and indemnity in respect of the Borrowers’ obligations under this
Agreement and the L/C Facility Agreement to be executed by AEGEAN PETROLEUM in
favour of the Security Trustee, as the same may from time to time be amended,
varied or supplemented;


“AEGEAN PETROLEUM NETWORK” means AEGEAN
MARINE PETROLEUM NETWORK INC. of Trust Company Complex, Ajeltake Road, Ajeltake
Island, Majuro MH96960, Marshall Islands;


“AEGEAN PETROLEUM NETWORK Guarantee”
means the guarantee and indemnity in respect of the Borrowers’ obligations
under this Agreement and the L/C Facility Agreement to be executed by AEGEAN
PETROLEUM NETWORK in favour of the Security Trustee, as the same may from time
to time be amended, varied or supplemented;


“AEGEAN SHIPHOLDINGS” means AEGEAN
SHIPHOLDINGS INC. of Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro MH96960, Marshall Islands;


“AEGEAN SHIPHOLDINGS Guarantee” means
the guarantee and indemnity in respect of the Borrowers’ obligations under this
Agreement and the L/C Facility Agreement to be executed by AEGEAN SHIPHOLDINGS
in favour of the Security Trustee, as the same may from time to time be
amended, varied or supplemented;


“Agent” means AEGEAN BALTIC BANK S.A.,
in its capacity as agent for the Banks and the L/C Bank under the Finance
Documents, or any successor of it In such capacity appointed under this
Agreement;


“Accounts’ Charge Agreements” means
collectively the Cash Collateral Account Charge Agreement and the Earnings
Accounts’ Charge Agreements and in the singular any of them;


“Applicable Accounting Principles” means
those accounting principles, standards and practices on which preparation of
the Financial Statements are based, which are International Accounting
Standards and principles and practices or such other generally accepted
international accounting principles, standards and practices adopted by the
Borrowers and/or the Corporate Guarantors and/or the other members of the Group
after the date hereof and notified to the Agent and accepted by the Agent;


“Applicable Availability Date” means:


(a)                                  In respect of each Pre-Delivery
Advance: 301h October 2005;


(b)                                  in respect of each Delivery
Advance: the earlier of (i) the Delivery Date of the relevant Vessel and (ii)
the Final Availability Date; and


 


 


2

















 


(c)                                  in respect of each Additional
Works’ Advance: the earlier of (i) the Delivery Date of the relevant Vessel and
(H) the Final Availability Date;


“Applicable Margin” means:


(d)                                  in respect of each Vessel A
Advance: (i) during the Pre-Delivery Period in respect of Vessel A: 1.40% per
annum and (h) during the Post-Delivery Period in respect of Vessel A: 1.30% per
annum; and


(e)                                  in respect of each Vessel B
Advance: (I) during the Pre-Delivery Period in respect of Vessel B: 1.40% per
annum and (ii) during the Post-Delivery Period in respect of Vessel B: 1.30%
per annum;


“Approved Insurance Brokers” means the
insurance brokers appointed by the Borrowers with the Security Trustee’s prior
approval;


“Approved S&P Brokers” means each
of:


•                                            H
Clarkson & Company Ltd. of London, England;


•                                            Fearnleys
A/S of Oslo, Norway;


•                                            Maersk
Broker K/S of Copenhagen, Denmark;


•                                            Simpson
Spence & Young of London, England;


•                                            R.S.
Platou AS of Oslo, Norway;


•                                            Arrow
Research Ltd. of London, England;


and any other shipbrokers nominated by the Agent from time to time and
includes their successors in title and, in the plural, means all of them;


“Approved Management Agreement” means
the management agreement in respect of each Vessel made or to be made between
the Manager as manager and the relevant Owner thereof as owner on terms
acceptable to the Security Trustee and the Instructing Group and, in the
plural, means both of them;


“Arranger” means AEGEAN BALTIC BANK S.A.
in its capacity as arranger for the Banks and the L/C Bank under the Finance
Documents or any successor of It in such capacity appointed under this
Agreement;


“Assignment Agreement” means in relation
to each Vessel the first priority assignment agreement relative to the
Earnings, the Insurances and the Requisition Compensation made between the
Owner thereof and the Security Trustee to secure the due payment of the
Indebtedness in form and substance satisfactory to the Creditor Parties in
their sole discretion as the same may from time to time be amended, varied or
supplemented and, in the plural, means both of them;


“Assignment of Refund Guarantees” means
in relation to each Vessel the first priority assignment agreement relative to
the Refund Guarantees of that Vessel to be made between the Owner thereof and
the Security Trustee to secure the due payment of the Indebtedness, in form and
substance satisfactory to the Creditor Parties in their sole discretion as the
same may from time to time be amended varied or supplemented and, in the
plural, means both of them;


“Assignment of Shipbuilding Contract”
means in relation to each Vessel the first priority assignment agreement
relative to the Shipbuilding Contract of that Vessel to be made between the
Owner thereof and the Security Trustee to secure the due payment of the
Indebtedness, in form and substance satisfactory to the Creditor Parties in
their sole discretion as the same may from time to time be amended varied or
supplemented and, in the plural, means both of them;


“Availability Period” means the period
commencing from the date of this Agreement and ending on the Final Availability
Date;


 


 


3

















 


“Balloon Payment” means in respect of
each Tranche each of the final payments referred to in sub-Clause 10.1 (b) and,
in the plural, means both of them;


“Bank” means:


(a)                                  a bank listed in Schedule 1 and
acting through its branch indicated in Schedule 1 (or through another branch
notified to the Agent in accordance with Clause 31); or


(b)                                     a direct or indirect assignee or
transferee of such bank or of a successor of it or


(c)                                  a direct or indirect successor
of an assignee or transferee such as is mentioned in (b) unless any of the
foregoing has assigned all of its rights and novated all its obligations and
liabilities under the Finance Documents;


“Borrower A Earnings Account” means the
interest-bearing deposit account number 100286-52017 with account name ‘OCEAN
DYNAMIC CORP — Earnings Account’ to be maintained throughout the Security
Period with the Agent in Athens, the Republic of Greece, such account to
include any substitute account or revised account or revised designation or
number whatsoever;


“Borrower B Earnings Account” means the
interest bearing deposit account number 100287-52022 with account name “SEA
GLOBAL S.A. — Earnings Account”, to be maintained throughout the Security Period
with the Agent in Athens, the Republic of Greece; such account to include any
substitute account or revised account or revised designation or number
whatsoever;


“Borrower A Earnings Account Charge Agreement”
means the first priority assignment pledge and charge agreement to be made
between the Borrower A and the Creditor Parties, assigning, pledging and
charging the Borrower A Earnings Account and the monies from time to time
credited therein to secure the due payment of the Indebtedness in form and substance
satisfactory to the Banks and the L/C Bank in their sole discretion as same may
from time to time be amended, varied or supplemented;


“Borrower B Earnings Account Charge Agreement”
means the first priority assignment pledge and charge agreement to be made
between the Borrower B and the Creditor Parties, assigning, pledging and
charging the Borrower B Earnings Account and the monies from time to time
credited therein to secure the due payment of the Indebtedness in form and
substance satisfactory to the Banks and the L/C Bank in their sole discretion
as same may from time to time be amended, varied or supplemented;


“Broken Funding Costs” means any amount
that the Agent may certify as necessary to compensate the Banks for any loss
incurred or to be incurred by them as a consequence of repayment in respect of
funds borrowed (or committed to be borrowed) or deposits taken (or committed to
be taken) from third parties in connection with the commitment of the Banks in
the Facility, or in liquidating or re-employing such funds or deposits for the
remaining part of the then current Interest Period;


“Builder” means SEVERNAV S.A. of 204,
Timisoara Street, 220242 Drobeta Turnn, Severin, Republic of Romania;


“Business Day” means a day on which
banks and financial markets are open for business in all of London, Athens and
Hamburg;


“Cash Collateral Amount” means an amount
equal to the aggregate of the L/C Facility to be credited to the Cash
Collateral Account in accordance with the terms of this Agreement, or as the context
may require, any balance thereof from time to time standing to the credit of
the Cash Collateral Account;


“Cash Collateral Account” means the
interest bearing deposit account nr 0100285-52028 with account name OCEAN
DYNAMIC CORP. et al — Cash Collateral Account’ to be


 


 


4

















 


maintained with the Agent in Athens, the Republic of Greece where
monies shall be deposited in accordance with Clauses 2.3 and 16.1 and the
relevant provisions of the L/C Facility Agreement, such account to include any
substitute account or revised account or revised designation or number
whatsoever;


“Cash Collateral Account Charge Agreement”
means the first priority assignment pledge and charge agreement to be made
between the Borrowers and the Creditor Parties, assigning, pledging and
charging, Inter alia, the Cash
Collateral Account and the monies from time to time credited therein to secure
the due payment of the Indebtedness in form and substance satisfactory to the
Banks and the L/C Bank in their sole discretion as same may from time to time
be amended, varied or supplemented;


“Classification Society” means any
classification society being a member of IACS as the Agent may approve in
writing;


“Commitment” means in relation to a Bank
the amount set out opposite its name in Schedule 1 as reduced or cancelled by
any relevant term of this Agreement


“Commitment Letter” means the letter
dated 16th September 2005 issued by the Agent and addressed to, inter alia, the Borrowers and two of the
Corporate Guarantors duly accepted by them on 28th September 2005;


“Compulsory Acquisition” means
requisition for title or other compulsory acquisition, requisition,
appropriation, expropriation, deprivation, forfeiture or confiscation for any
reason of a Vessel by any Government Entity or other competent authority,
whether de jure or de facto, but shall exclude requisition for use or hire not
involving requisition of title;


“Contract Price” means in respect of
each Vessel, an amount of Six million Eight hundred Thirty-Five thousand Euros
(€6,835,000) as the same may be adjusted in accordance with the terms of the
Shipbuilding Contract relating to such Vessel;


“Corporate Guarantees” means together
the Manager’s Guarantee and AEGEAN PETROLEUM Guarantee and AEGEAN PETROLEUM
NETWORK Guarantee and AEGEAN SHIPHOLDINGS Guarantee and, in the singular, means
any of them;


“Corporate Guarantors” means together
the Manager and AEGEAN PETROLEUM and AEGEAN PETROLEUM NETWORK and AEGEAN
SHIPHOLDINGS and in the singular, means any of them;


“Corporate Security Parties” means those
of the Security Parties, which are companies or corporations but not natural
persons and in the singular means any of them;


“Creditor Party” means each Servicing
Bank, each Bank and the L/C Bank whether at the date of this Agreement or at
any time thereafter;


“Default Rate” means the aggregate of
(i) EURIBOR, (ii the Applicable Margin and (iii) Two per cent (2%) per annum;


“Delivery Advances” means collectively
the Delivery Advance A and the Delivery Advance B and, in the singular, means
either of them;


“Delivery Advance A” means an amount of
up to Three hundred Forty-One thousand Seven hundred Fifty Euros (€341,750) to
be drawn down pursuant to the terms and conditions of this Agreement for the
purpose referred to in sub-Clause 2.2 (b) or (as the context may require) the amount
thereof from time to time outstanding hereunder;


“Delivery Advance B” means an amount of
up to Three hundred Forty-One thousand Seven hundred Fifty Euros (€341,750) to
be drawn down pursuant to the terms and conditions of this Agreement for the
purpose referred to in sub-Clause 2.2 (b) or (as the context may require) the
amount thereof from time to time outstanding hereunder;


 


 


5

















 


“Delivery Date” means in relation to
each Vessel the date on which such Vessel is delivered by the Builder to the Owner thereof and,
in the plural, means both of them;


“Delivery Instalment” means the
instalment of the Contract Price of a Vessel payable by the Owner thereof to
the Builder on the Delivery Date of that Vessel in accordance with the
Shipbuilding Contract related to such Vessel and, in the plural, means both of
them;


“Delivery Instalment Payment Date” means
in respect of each Vessel the date provided in Article Ill Clause 4(e) of the
relevant Shipbuilding Contract and, in the plural, means both of them;


“Distribution Monies” means:


(a)                                  any monies received by the
Creditor Parties or any of them (or by any receiver or similar person appointed
by any of them) from an Enforcement Action, or from the proceeds or dissolution
or liquidation of any Security Party or distribution of its/his assets among
its creditors (however such liquidation or distribution may occur);


(b)                                  any monies received by the
Creditor Parties (or any of them) as named insured, loss payee, beneficiary or
assignee of any insurance policies of any Security Party in consequence of or
after any Enforcement Action;


“Drawdown Date” means the Business Day
on which the Borrowers have requested an Advance to be made in accordance with
Clause 2.1 or (as the context requires) the date on which such Advance is
actually made;


“Earnings” means all freights, charter
hires and any other amounts whatsoever which may at any time be earned by, or
become payable to or for the account of each Borrower or its agents arising out
of or as a result of the ownership, management and/or operation of a Vessel by
her Owner or its agents, or under or in relation to any charterparty, contract
of carriage or other contract (Including a salvage or towage contract) for the
use, operation or management of a Vessel, together with all payments for the
variation of any such contract, all damages for any breach of any such
contract, all general average and salvage remuneration and all compensation
receivable in respect of any requisition for hire;


“Earnings Accounts” means together the
Borrower A Earnings Account and the Borrower B Earnings Account and In the
singular either of Them;


“Earnings Accounts’ Charge Agreements”
means collectively the Borrower A Earnings Account’s Charge Agreement and the Borrower
B Earnings Account’s Charge Agreement and h the singular means either of them;


“EMU Legislation” means legislative
measures of the Council of the European Union for the introduction of,
changeover to, or operation of, a single or unified European currency being
part of the implementation of the Third Stage;


“Encumbrance” means any mortgage, charge
(whether fixed or floating), pledge, lien, hypothecation, assignment, trust
agreement or security interest or other encumbrance of any kind securing any obligation
of any person or having the effect of conferring security or any type of
preferential agreement (including without limitation, title transfer and/or
retention arrangements having a similar effect);


“Enforcement Action” shall mean any of
the following actions taken by any of the Creditor Parties by means of an
instruction to the Security Trustee, by an Instructing Group or otherwise:


(a)                                  accelerating the due date of any
liability of the Borrowers or either of them;


(b)                                  commencing to enforce or enforcing
any Finance Documents;


 


 


6

















 


(c)                                  commencing or instructing the
Security Trustee to commence to enforce or to enforce the Finance Documents or
any of them or exercising any power under any Finance Document;


(d)                                  (d) taking any other action
against any of the Security Parties or their assets or threatening any other
action against any of the Security Parties or their assets the taking of which
could materially affect the common interests of the Creditor Parties;


“Environmental Approvals” means any
permit, licence, approval, ruling, certification, variation, exemption or other
authorisation relating to a Borrower and/or a Borrower’s business and/or the
Manager and /or the Managers business and/or any other member of the Group
and/or a Vessel and/or any other Relevant Ship required under applicable
Environmental Laws;


“Environmental Claim” means:


(a)                                  any claim by, or directive from,
any applicable governmental, judicial or other regulatory authority alleging
breath of, or non-compliance with, any Environmental Laws or Environmental
Approvals or otherwise howsoever relating to or arising out of an Environmental
Incident; or


(b)                                  any claim by any other person
howsoever relating to or arising out of an Environmental Incident


and, in each such case, “claim” shall mean a claim for damages,
clean-up costs, compliance, remedial action or otherwise;


“Environmental Incident” means:


(a)                                  any release, discharge, disposal
or emission of Material of Environmental Concern by or from a Relevant Ship;


(b)                                  any incident in which Material
of Environmental Concern is released, discharged, disposed of, or emitted by or
from a ship other than a Relevant Ship and which involves collision between a
Relevant Ship and such other ship or some other incident of navigation or
operation, in either case, where a Relevant Ship or the owner or other manager
of a Relevant Ship Is or are actually or allegedly at fault or otherwise liable
(in whole or in part); or


(c)                                  any incident in which Material
of Environmental Concern is released, discharged, disposed of, or emitted by or
from a ship other than a Relevant Ship and where a Relevant Ship is actually or
potentially liable to be arrested or attached as a result and/or where any
owner and/or any operator or a manager of a Relevant Ship is actually or
allegedly at fault or otherwise liable (in whole or in part);


“Environmental Laws” means all national
and international laws, ordinances, rules, regulations, rules of common law,
conventions and agreements whatsoever pertaining to pollution or protection of
human health or the environment (including, without limitation, the United
States Oil Pollution Act of 1990 and any comparable laws of the individual
States of the United States of America);


“EURIBOR” means, for an Interest Period:


(a)                                  the rate per annum equal to the
offered quotation for deposits in Euros for a period equal to, or as near as
possible equal to, the relevant Interest Period which appears on the
appropriate page of the Reuters Monitor Money Rates Service at or about 11.00
a.m. (Brussels time) on the Quotation Date for that Interest Period; or


(b)                                  if no rate is quoted on the
appropriate page of the Reuters Monitor Money Rates Service, the rate per annum
determined by the Agent to be the arithmetic mean


 


 


7

















 


(rounded upwards, if necessary,
to the nearest one-sixteenth of one per cent.) of the rates per annum notified
to the Agent by each Bank as the rate at which deposits in Euros are offered to
that Bank by leading banks in the European Interbank Market at that Banks’
request at or about 11.00 a.m. (Brussels time) on the Quotation Date for that
Interest Period for a period equal to that Interest Period and for delivery on
the first Business Day of it;


“Euro” and “Euros”
means, for the time being, the single currency of Participating Member States
as provided in the EMU Legislation;


“European Interbank Marker” means the
interbank market for Euros operating in Participating Member States;


“Event of Default” means any of the
events listed in Clause 22.1;


“Facility” means the amount of up to
Thirteen million Three hundred thousand Euros (€13,300,000) to be made
available in up to two (2) Tranches to the Borrowers by the Banks pursuant to
the terms of Clauses 2 and 3 or if the context may so require so much thereof
as shall for the time being be outstanding to the Banks hereunder;


“Final Availability Date” means 30th October 2007 (or such later date
as the Agent may agree with the authorisation of the Banks);


“Final Maturity Date” means the earlier
of (i) the date falling ten (10) years from the Delivery Date last to occur and
(ii) 3e October 2017;


“Finance Documents” means:


(a)                                  this Agreement;


(b)                                  the Security Documents;


(c)                                  the L/C Facility Agreement; and


(d)                                  any other document (whether
creating an Encumbrance or not) which is executed at any time by the Borrowers
or any other Security Party or any Creditor Party or any other person as
security for, or to establish any form of subordination or priorities’ arrangement
in relation to any amount payable to the Creditor Parties or any of them under
this Agreement, the L/C Facility Agreement or any of the documents referred to
in this definition;


“Financial Statements” means the audited
annual financial statements of the Borrowers, the Corporate Guarantors and of
all other members of the Group referred to in Clause 18.1.1, comprising of a
statement of income, balance sheet, cash flow statement and relative notes;


“First Repayment Date” means in relation
to each Tranche the date falling three (3) months after the earlier of (i) the
Drawdown Date of the Delivery Advance of such Tranche and (ii) the Final
Availability Date;


“Government Entity” means and includes
(whether having a distinct legal personality or not) any national or local
government authority, board, commission, department, division, organ,
instrumentality, court or agency or tribunal and any association, organisation
or institution of which any of the foregoing is a member or to whose
jurisdiction any of the foregoing is subject or in whose activities any of the
foregoing is a participant;


“Group” means, together, AEGEAN
PETROLEUM NETWORK and its Subsidiaries from time to time (including, for the
avoidance of doubt, the Borrowers) and “member of the Group” shall be construed
accordingly;


 


 


8

















 


“Indebtedness” means any and all moneys,
liabilities and obligations (whether actual or contingent, whether existing or
hereafter arising, whether or not for the payment of money, and including,
without limitation, Broken Funding Costs (if any), and any obligation or
liability to pay damages) which are now or which may at any time and from time
to time hereafter be due, owing, payable or incurred or expressed to be due, owing,
payable or incurred from the Borrowers (whether as principal, surety or
otherwise) to the Creditor Parties or any of them under this Agreement, the L/C
Facility Agreement and the other Finance Documents;


“Instalments” means in respect of each
Vessel collectively the Pre-Delivery Instalments and the Delivery Instalment in
respect thereof and, in the singular, means any of them;


“Instalment Payment Date” means in
respect of each Vessel collectively the Steel Cutting Instalment Date, the Keel
Laying instalment Payment Date, the Launching Instalment Payment Date and the
Delivery Instalment Payment Date and, in the singular, means any of them;


“Instructing Group” means:


(a)                                  subject to (b) below, all the
Banks the aggregate of whose Commitments (as reduced pursuant to the relevant
provisions of this Agreement) equals or exceeds seventy per cent (70%) of the
Total Commitments; and


(b)                                  if any Bank transfers its
Commitment (in part or in whole) pursuant to Clause 31 (Assignments) its
reduced Commitment shall be used in the calculation in (a) above;


“Insurance Documents” means all slips,
contracts, policies, certificates of entry or other insurance documents
evidencing or constituting the Insurances;


“Insurances” means all policies and
contracts of insurance (including all entries of a Vessel in a protection and
indemnity and war risks association) or such other arrangements by way of
insurance which are from time to time taken out or entered into In respect of
or in connection with a Vessel and the Earnings pursuant to Clause 20 of this
Agreement and all benefits of such insurances, including all claims of
whatsoever nature and return of premiums;


“Insurers” means the underwriters,
insurance companies and mutual insurance associations with or by which the
Insurances are effected;


“Interest Determination Date” means the
date of determination of an Interest Rate by the Agent for the relevant
Interest Period in accordance with Clause 5.3;


“Interest Payment Date” means the last
day of each Interest Period save that in the case of any Interest Period of
more than three (3) months duration, the Interest Payment Dates shall be each
of the dates falling at consecutive three (3) monthly intervals after the
commencement thereof and the last day thereof provided that if any such date is
not a Business Day the relevant Interest Payment Date shall be the next
succeeding day which is a Business Day unless such next succeeding Business Day
falls in another calendar month in which event the relevant Interest Payment
Date shall be the immediately preceding Business Day;


“Interest Period” means each of the
successive periods determined in accordance with Clause 6 of this Agreement;


“Interest Rate” means the aggregate of
(a) the Applicable Margin and (b) EURIBOR;


“IOTA” means IOTA CORPORATION of 80,
Broad Street, Monrovia, Liberia;


“ISM Code” means, in relation to its
application to the Borrowers, the Manager, the Vessels and their operation -


 


 


9

















 


(a)                                  The International Management
Code for the Safe Operation of Ships and for Pollution Prevention’, currently
known or referred to as the ‘ISM Code’, adopted by the Assembly of the
International Maritime Organisation by Resolution A.741(18) on 4 November 1993
and Incorporated on 19 May 1994 into chapter IX of the International Convention
for the Safety of Life at Sea 1974 (SOLAS 1974); and


(b)                                  all further resolutions,
circulars, codes, guidelines, regulations and recommendations which are now or
in the future issued by or on behalf of the International Maritime Organisation
or any other entity with responsibility for implementing the ISM Code,
including without limitation, the ‘Guidelines on implementation or
administering of the International Safety Management (ISM) Code by
Administrations’ produced by the International Maritime Organisation pursuant
to Resolution A.788(19) adopted on 25 November 1995,


as the same may be amended, supplemented or replaced from time to time;


“ISM Code Documentation” includes:


(a)                                  the document of compliance and
safety management certificate issued pursuant to the ISM Code in relation to a
Vessel within the periods specified by the ISM Code; and


(b)                                  all other documents and data
which are relevant to the ISM, SMS and its implementation and verification
which the Security Trustee may require; and


(c)                                  any other documents which are
prepared or which are otherwise relevant to establish and maintain a Vessel’s
and/or the Owner’s thereof compliance with the ISM Code which the Security
Trustee may require;


“ISM Responsible Person” means:


(a)                                  each and every person who has
assumed responsibility for the operation of a Vessel and has agreed to take
over or is required to assume responsibility for the performance or observance
of the duties and responsibilities imposed by the ISM Code; and


(b)                                  each and every person ashore who
is a ‘designated person’ for the purposes of the ISM Code with direct access to
the highest level of management of the Owner’s or any other operator of a
Vessel and who, in that capacity, has under the ISM Code responsibility and
authority which includes -


(c)                                  monitoring the safety and
pollution prevention aspects of the operation of a Vessel; and


(d)                                  ensuring that adequate resources
and shore-based support are supplied,


as required under the ISM Code;


“ISM SMS” means, in relation to a
Vessel, the safety management system for such Vessel which is required to be
developed, Implemented and maintained by the Owner thereof under the ISM Code;


“ISPS Code” means the International Ship
and Port Facility Security Code adopted by the International Maritime
Organization Assembly as the same may have been or may be amended or
supplemented from time to time;


“ISPS Code Documentation” includes:


 


 


10

















 


(a)                                  the International Ship Security
Certificate issued pursuant to the ISPS Code in relation to a Vessel within the
periods specified by the ISPS Code; and


(b)                                  all other documents and data
which are relevant to the ISPS Code and its implementation and verification
which the Banks may require;


“Keel Laying Instalment” means the
instalment of the Contract Price of a Vessel payable by the Owner thereof to
the Builder on the date of the laying of the keel of that Vessel in accordance
with the Shipbuilding Contract related to such Vessel and, in the plural, means
both of them;


“Keel Laying Instalment Payment Date”
means in respect of each Vessel the date provided in Article ill Clause 4
paragraph (c) of the relevant Shipbuilding Contract;


“Launching Instalment” means the
instalment of the Contract Price of a Vessel payable by the Owner thereof to
the Builder on the date of the launching of such Vessel in accordance with the
Shipbuilding Contract related to such Vessel and, in the plural, means both of
them;


“Launching instalment Payment Date” means
in respect of each Vessel the date provided in Article III Clause 4 paragraph
(d) of the relevant Shipbuilding Contract;


“LIC Bank” means HSH NORDBANK AG, in its
capacity as issuing bank under the L/C Facility Agreement, or any successor of
it in such capacity;


“L/C Facility” means the facility for an
aggregate amount of up to Twelve million Three hundred Three thousand Euros
(€12,303,000) to be made available to the Borrowers by the L/C Bank for the
purpose of issuance of Letters of Credit pursuant to the terms of the L/C
Facility Agreement;


“L/C Facility Agreement” means the
agreement made or to be made by and among the LIC Bank and the Borrowers
pursuant to which the L/C Bank shall make available to the Borrowers the L/C
Facility, as the same may from time to time be amended varied or supplemented;


“Letters of Credit” or “L/Cs” means collectively the two letters of credit to be
issued by the L/C Bank in favour of the Builder in connection with each
Shipbuilding Contract in accordance with the terms of the L/C Facility
Agreement together with any amendments thereto or supplements thereof and, in
the singular, means either of them;


“Manager” means AEGEAN BUNKERING
SERVICES INC., a corporation duly formed and validly existing under the laws of
the Republic of Marshall Islands, having its registered office at Trust Company
Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Republic of the
Marshall Islands or any other company approved by the Security Trustee as
manager of the Vessels;


“Manager’s Guarantee” means the
guarantee and indemnity in respect of the Borrowers’ obligations under this
Agreement and the other Finance Documents to be executed by the Manager in
favour of the Security Trustee in form and substance satisfactory to the Banks
in its sole discretion as the same may from time to time be amended, varied or
supplemented;


“Market Value” means the market value of
a Mortgaged Vessel determined in accordance with Clause 17.1;


“Material of Environmental Concern”
means oil, oil products and any other substance including any chemical, gas or
other hazardous or noxious substance) which is (or is capable or being or
becoming) polluting toxic or hazardous;


“Mortgage” means in relation to each
Vessel the first preferred or priority mortgage over each Vessel to be executed
and delivered by the Owner thereof in favour of the Security Trustee or the
Creditor Parties as appropriate to secure the due payment of the Indebtedness,
in form


 


 


11

















 


and substance satisfactory to the Banks in their sole discretion as the
same may from time to time be amended, varied or supplemented and, in the
plural, means both of them;


“Mortgaged Vessel” means at any relevant
time a Vessel which is, at such time, subject to a Mortgage and/or the
Earnings, Insurances and Requisition Compensation of which are subject to an
Encumbrance and, in the plural, means both of them;


“Notice of Drawdown” means the written
notice in the form set out in Schedule 2 (or in any other form which the Agent may
request);


“Nomination Date” means the Business
Day, which is three (3) Business Days prior to the commencement of an Interest
Period;


“Owner” means:


(a)                                  in respect of the Vessel A: the
Borrower A; and


(b)                                  in respect of the Vessel B: the
Borrower B,


and in the plural means both of them;


“Participating Member State” means each
state so described in any EMU Legislation;


“Party” means in relation to any
document, a party to that document;


“Permitted Encumbrance” means:


(a)                                  any Encumbrance created by or
pursuant to the Finance Documents; and


(b)                                  any lien on a Vessel for crew’s
wages or salvage or otherwise arising in the normal course of trading and being
regularly settled, the total amount of such lien or liens not to be material in
the sole opinion of the Agent in relation to any security created in favour of
the Security Trustee or the Creditor Parties pursuant to the Finance Documents;


“Post-Delivery Period” means in respect
of each Vessel the period commencing on the Delivery Date on such Vessel and
ending on the date on which the Indebtedness shall have been repaid in full to
the Creditor Parties;


“Potential Event of Default” means any
event which may become with the giving of notice or passage of time or other
conditions or any combination of the foregoing, an Event of Default;


“Pre-Delivery Advance A” means an amount
of up to Five million One hundred Twenty-Six thousand Two hundred Fifty Euros (€5,126,250)
to be drawn down pursuant to the terms and conditions of this Agreement for the
purpose referred to in sub-Clause 2.2 (a) or (as the context may require) the
amount thereof from time to time outstanding hereunder;


“Pre-Delivery Advance B” means an amount
of up to Five million One hundred Twenty-Six thousand Two hundred Fifty Euros
(€5,126,250) to be drawdown pursuant to the terms and conditions of this
Agreement for the purpose referred to in sub-Clause 2.2 (a) or (as the context
may require) the amount thereof from time to time outstanding hereunder;


“Pre-Delivery Advances” means
collectively the Pre-Delivery Advance A and the Pre-Delivery Advance B and, in
the singular, means either of them;


“Pre-Delivery Instalments” means in
respect of each Vessel collectively the Steel Cutting Instalment, the Keel
Laying Instalment and the Launching Instalment in respect of such Vessel and,
in the singular, means any of them;


 


 


12

















 


“Pre-Delivery Period” means in respect
of each Vessel the period commencing on the Drawdown Date of the Pre-Delivery
Advance drawn down in respect of such Vessel and ending on the Delivery Date of
such Vessel;


“Proceeds” means the proceeds paid under
the terms of the Finance Documents (including but not limited to the proceeds
of a sale of a Vessel, the Earnings and the Insurances), the proceeds from the
enforcement of any of the Finance Documents, and following an Event of Default
any moneys to the credit of the Borrowers or either of them in the Accounts or
any of them;


“Proportionate Share” means, at any
time, the proportion which that Bank’s Commitment (which has been advanced)
then bears to the aggregate Commitments of all the Banks (which have been
advanced).


“Protection and Indemnity Risks” means
the usual risks covered by a protection and indemnity association that is a
member of the International Group of Protection and Indemnity Associations,
including the proportion not otherwise recoverable In case of collision under
the ordinary running-down clause;


“Purchase Documents” means in respect of
each Vessel all documents referred to in Article VIII, Clause 3 of the relevant
Shipbuilding Contract which shall be delivered to the relevant Owner by the
Builder including without limitation, the Builders certificate, the Builder’s
invoices, the bill of sale, the protocol of delivery and acceptance, the
commercial invoices and the class certificates;


“Quotation Date” means, in relation to
any Interest Period (or any other period for which an interest rate is to be
determined under any provision of a Finance Document), the Target Day on which
quotations would ordinarily be given by leading banks in the European Interbank
Market for deposits in Euros for delivery on the first day of that Interest
Period or other period;


“Refund Guarantee” means collectively
each refund guarantee to be issued by the Refund Guarantor pursuant to each
Shipbuilding Contract and, in the singular, means any of them;


“Refund Guarantor” means BANCA
COMMERCIALA ROMANA S.A. of the Republic of Romania and/or any other bank
acceptable to Creditor Parties, In their sole discretion, as issuing bank of
the Refund Guarantees and, in the plural, means all of them;


“Related Company” means:


(a)                                  of a person who is a Creditor
Party, means any Subsidiary of such person, any company or other entity of
which such person is a Subsidiary and any Subsidiary of any such company or
entity-, or


(b)                                  of a Security Party, means any
company or other entity which is active in the bunkering business or services
and which is:


(i)                                         a Subsidiary of the relevant
Security Party; or


(ii)                                      any company or other entity (“holding
company”) of which such Security Party is a Subsidiary; or


(iii)                                   any Subsidiary (other than such
Security Party) of any such holding company;


“Relevant Ship” means the Vessels and
any other ship from time to time owned, managed or crewed by, or demise or
bareboat chartered to a Borrower and/or any other member of the Group;


“Requisition Compensation” means all
compensation payable by reason of any Compulsory Acquisition of a Vessel;


 


 


13

















 


“Repayment Date” means in respect of
each Tranche, the First Repayment Date in respect of such Tranche and each of
the thirty nine (39) dates falling at three (3) monthly intervals after such
First Repayment Date up to and including the date falling one hundred and
seventeen days after such First Repayment Date, provided that if such day Is
not a Business Day, that Repayment Date shall be the next succeeding day which
is a Business Day unless such next succeeding Business Day falls in another
calendar month in which event that Repayment Date shall be the immediately
preceding Business Day;


“Repayment Instalment” means in respect
of each Tranche each of the instalments referred to in sub-Clause 10.1 (a) and,
in the plural, means all of them;


“Security Documents” means together the
Mortgages, the Assignment Agreements, the Accounts’ Charge Agreements, the
Assignments of the Shipbuilding Contracts, the Assignments of the Refund
Guarantees, the Corporate Guarantees and any other agreement or document that
may be executed at any time by the Borrowers, the other Security Parties or any
other person as security for all or any part of the Indebtedness and in the singular
means any of them;


“Security Parties” means each Party to
the Finance Documents (other than the Creditor Parties) and in the singular
means any one of them;


“Security Period” means the period
commencing with the execution of this Agreement and ending on the date on which
the Indebtedness is repaid in full to the Creditor Parties to the full
satisfaction of the Security Trustee;


“Security Requirement” means the amount
in Euros (as certified by the Agent whose certificate shall, in the absence of
manifest error, be conclusive and binding on the Borrowers and the Creditor
Parties) which is, at any relevant time:


(a)                                  during the period commencing on
the earlier of (9 the Drawdown Date of the last Delivery Advance to be drawn
down and (ii) the Final Availability Date and ending on the date falling sixty
(60) months thereafter (the “Security Requirement Adjustment Date”), One
hundred Twenty-Five per cent (125%) of the Facility;


(b)                                  during the period commencing on
the date falling immediately after the Security Requirement Adjustment Date and
ending on the date when all amounts owing under this Agreement and the other
Finance Documents have been paid in full, One hundred Thirty-Five per cent
(135%) of the Facility;


“Security Trustee” means AEGEAN BALTIC
BANK S.A., in its capacity as security trustee for the Banks and the L/C Bank
under the Finance Documents, or any successor of it in such capacity appointed
under this Agreement;


“Security Value” means the amount in
Euros (as certified by the Agent whose certificate shalt in the absence of
manifest error, be conclusive and binding on the Borrowers and the Creditor
Parties) which is, at any relevant time, the aggregate of the market values of
the Mortgaged Vessels as most recently determined in accordance with Clause 17.1;


“Servicing Bank” means each of the
Arranger, the Agent and the Security Trustee whether as at the date of this
Agreement or at any time thereafter,


“Shipbuilding Contract A” means the
shipbuilding contract dated 3rd June 2005 entered into between the
Builder as builder/seller and the Borrower A as buyer, for the construction and
completion of the Vessel A at the Contract Price, as the same may from time to
time be amended, varied or supplemented, with the Security Trustee’s prior
written consent;


“Shipbuilding Contract” means the
shipbuilding contract dated 3rd June 2005 entered into between the Builder as
builder/seller and the Borrower B as buyer, for the construction and completion
of the Vessel B at the Contract Price, as same may from time to time be
amended, varied or supplemented;


 


 


14

















 


“Shipbuilding Contracts” means together
the Shipbuilding Contract A and the Shipbuilding Contract B, and, in the
singular, means either of them;


“Steel Cutting Instalment” means the
instalment of the Contract Price of a Vessel payable by the Owner thereof to
the Builder on the date of the steel cutting of that Vessel in accordance with
the Shipbuilding Contract related to such Vessel and, in the plural, means both
of them;


“Steel Cutting Instalment Payment Date”
means in respect of each Vessel the date provided in Article Ill Clause 4
paragraph (b) of each relevant Shipbuilding Contract;


“Subsidiary” of a person means any
company or entity directly or indirectly controlled by such person, and for
this purpose “control” means either the
ownership of more than fifty per cent (50%) of the voting share capital (or
equivalent rights of ownership) of such company or entity or the power to
direct its policies and management, whether by contract or otherwise;


“Subject Document” means all of the
Finance Documents, the Shipbuilding Contracts, the Additional Works Contracts,
the Refund Guarantees, the Letters of Credit, the Purchase Documents and the
Approved Management Agreements (none to be amended, varied, supplemented or
modified without the consent of the Security Trustee) and together with any
other instruments, document or memorandum, scheduled to any of the documents
referred to above, and any notice, consent or acknowledgement referred to in or
required pursuant to any of the documents referred to above and any document,
instrument or memorandum which secures any of the obligations of the Borrowers
under any of the Finance Documents or under any other Subject Document;


“Target Day” means a day on which the
Trans-European Automated Real time Gross settlement Express Transfer system is
open, which Is, at the date of this Agreement, any day (other than a Saturday
or Sunday) other than Christmas Day and New Years Day;


“Taxes” means any present or future tax,
levy, impost, duty, charge, fee, deduction or withholding of any nature and
whatever called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed (other than taxes on the overall net income of
the Banks) and ‘Tax” and “Taxation” shall be construed accordingly;


“Third Stage” means the third stage of
European economic and monetary union pursuant to the Treaty on European Union;


“Total Commitments” means in relation to
the Banks, the aggregate for the time being of their respective Commitments in
respect of the Facility;


“Total Construction Cost” means in
respect of each Vessel together the Additional Construction Cost and the
Contract Price;


“Total Loss” means in relation to a
Vessel:


(a)                                  the actual or constructive or
compromised or arranged or agreed total loss of a Vessel; or


(b)                                  the Compulsory Acquisition of a
Vessel,: or


(c)                                  the hijacking, theft,
condemnation, capture, seizure, arrest, detention or confiscation of a Vessel
(other than where the same amounts to the Compulsory Acquisition of a Vessel)
by any Government Entity or by persons acting or purporting to act on behalf of
any Government Entity unless a Vessel be released and restored to the Owner
thereof from such hijacking, theft, condemnation, capture, seizure, arrest,
detention or confiscation within thirty (30) days after the occurrence thereof;


“Tranches” means collectively the Vessel
A Tranche and the Vessel B Tranche and, in the singular, means either of them;


 


 


15

















 


“Transfer Certificate” means a
certificate substantially in the form set out in Schedule 3 signed by a Bank
and a Transferee whereby:


(i)                                    such Bank seeks to procure the transfer to
such Transferee of all or a part of the Bank’s rights and obligations
hereunder, subject to and upon the terms and conditions set out in Clause 31;
and


(ii)                                 such Transferee undertakes to perform the
obligations it will assume as a result of delivery of such certificate to the
Agent as contemplated in Clause 31.5;


“Transferee” means a bank to which a
Bank seeks to transfer all or part of its rights and obligations in accordance
with Clause 31;


“Treaty on European Union” means the
Treaty of Rome of 25 March 1957, as amended by the Single European Act 1986 and
the Maastricht Treaty of 7 February 1992;


“Trust Property” means collectively —


(i)                                   the security, powers, rights, titles,
benefits and interests (both present and future) constituted by and conferred
on the Security Trustee under or pursuant to the Finance Documents (including,
without limitation, the benefit of all covenants and undertakings given in the
Finance Documents);


(ii)                                all moneys, property and other assets paid or transferred to or vested
in the Security Trustee (or any agent of the Security Trustee) or received or
recovered by the Security Trustee and/or the Agent (or any agent of the
Security Trustee and/or the Agent) pursuant to, or in connection with, any of
the Finance Documents; and


(iii)                             all rights, benefits, interests, money, investments, property, 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 the Security Trustee (or the Agent or any other agent of the
Security Trustee and/or the Agent) in respect of the same (or any part
thereof);


“Vessel A” means the double-hull single
screw diesel engine driven carder of diesel oil gasoline and other clean and
dirty oil products with roro facility of approximately 2,400 dwt having hull
no. N2230007 to be constructed by the Builder pursuant to the Shipbuilding
Contract A, to be acquired by the Borrower A and to be registered on the
relevant Delivery Date in its ownership under a flag acceptable to the Creditor
Parties under a name approved by the relevant flag authorities;


“Vessel A Advances” means collectively
the Pre-Delivery Advance A, the Delivery Advance A and the Additional Works
Advance A and in the singular, means any of them;


“Vessel A Tranche” means that part of
the Facility consisting of the Vessel A Advances;


“Vessel B” means the double-hull single
screw diesel engine driven carrier of diesel oil gasoline and other clean and
dirty oil products of approximately 2,400 dwt having hull no. N2220000 being
constructed by the Builder pursuant to the Shipbuilding Contract B to be
acquired by the Borrower B and to be registered on the relevant Delivery Date
in its ownership under a flag acceptable to the Creditor Parties under a name
approved by the relevant flag authorities;


“Vessel B Advances” means collectively
the Pre-Delivery Advance B, the Delivery Advance B and the Additional Works
Advance B and in the singular, means any of them;


“Vessel B Tranche” means that part of
the Facility consisting of the Vessel B Advances;


 


 


16

















 


“Vessel’s Security Documents” means in
respect of each Vessel together the Mortgage and the Assignment Agreement in
respect of such Vessel and, in the singular, means any of them;


“War Risks” means the risk of any
hostile acts, mines or torpedoes and all risks excluded by F.C. & S Clauses
24 - 26 (inclusive) of the Institute Time Clauses (Hulls) (1.11.95) (or any
equivalent provision); and


1.2                               In this Agreement references to
the “Arranger”, the “Agent”,
the “Security Trustee”, the “L/C Bank” or any “Bank” shall be
construed so as to include its and any subsequent successors, assigns,
transferees and sub-participants In accordance with their respective interests.


1.3                               In this Agreement references to
periods of ‘months’ shall mean a period beginning in one calendar month and
ending in the next calendar month on the day numerically corresponding to the
day of the calendar month in which such period started and (a) if such
numerically corresponding day is not a Business Day, such period shall end on
the next following Business Day in the same calendar month, or if there is no
such Business Day, such period shall end on the preceding Business Day and (b)
if there Is no numerically corresponding day in the next calendar month then
such period shall end on the last Business Day in that calendar month (and ‘month’
and ‘monthly’ shall be construed accordingly).


1.4                               In this Agreement unless the
context otherwise requires -


1.4.1                                             clause headings and sub-headings
are inserted for convenience only and shall not affect the construction of the
Agreement and unless otherwise specified, all references to Clauses and
Schedules are to clauses of, and schedules to, this Agreement;


1.4.2                                             words importing the singular
shall include the plural and vice versa;


1.4.3                                             fees, costs and expenses shall
be exclusive of any value added tax or similar tax (if any) which shall
accordingly be payable in addition;


1.4.4                                             any reference to agreements,
documents or instruments includes a reference to that agreement, document or
instrument as amended, supplemented, substituted, novated, replaced or assigned
from time to time;


1.4.5                                             references to persons Include
any individual, partnership, firm, trust, body corporate, government,
governmental body, authority, agency, unincorporated body of persons or
association;


1.4.6                                             a reference to any enactment or
statutory provision include any enactment or statutory provision which amends,
extends, consolidates or replaces the same or which has been amended, extended,
consolidated or replaced by the same and shall include any orders, regulations,
codes of practice, instruments or other subordinated legislation made under the
relevant enactment or statutory provision;


1.4.7                                             the words ‘herein’, ‘hereto’ and
‘hereunder refer to this Agreement as a whole and not to the particular Clause
or Schedule in which the words may be used;


1.4.8                                             the liquidation, winding-up or
dissolution of a company or body corporate or the appointment of a receiver,
manager or administrator of or in relation to a company or body corporate or
any of Its assets shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which it is
Incorporated or any jurisdiction In which it carries on business or has assets
or liabilities; and


1.4.9                                             a reference to any “relevant
Advance” (including without limitation any Pre-Delivery Advance, and Delivery
Advance or any Additional Works’ Advance) when used in connection with a
particular Vessel shall be construed as reference to the Vessel


 


 


17

















 


being financed by such Advance
and references to the “relevant Broker” or “relevant Owner shall be construed
accordingly.


1.5                               This Agreement supersedes the
terms and conditions contained in any correspondence relating to the subject
matter of this Agreement exchanged between the Arranger, the Agent or the
Security Trustee or any of the Banks and the Borrowers or their representatives
prior to the date of this Agreement, including, without limitation, the
Commitment Letter.


2                                         THE FACILITY
— THE BORROWERS’ JOINT AND SEVERAL LIABILITY — THE CASH COLLATERAL ACCOUNT


2.1                               Subject to the terms and
conditions of this Agreement, each of the Banks hereby agree to make available
to the Borrowers upon the terms and subject to the conditions of this Agreement
its Commitment of an aggregate amount not exceeding at any relevant time
Thirteen million Three hundred thousand Euros (€13,300,000) to finance up to 80%
of the Total Construction Cost of the Vessels in two (2) equal Tranches, each
in the amount of up to Six million Six hundred and Fifty thousand Euros
(€6,650,000) each of which shall be provided in Three (3) Advances provided
however that:


(a)                                  a Pre-Delivery Advance in
respect of a Vessel shall be in an amount of up to 75% of the Contract Price of
that Vessel;


(b)                                  a Delivery Advance in respect of
a Vessel which when aggregated with the amount of the Pre-Delivery Advance in
respect of that Vessel shall not exceed 80% of the Contract Price of that
Vessel; and


(c)                                  an Additional Works’ Advance in
respect of a Vessel shall not exceed 80% of the Additional Construction Cost of
that Vessel.


2.2                               Each of the Borrowers hereby
undertakes to use the entire proceeds of each Advance as follows:


(a)                                  each Pre-Delivery Advance for
the purpose of assisting each Borrower in securing its obligations under the
L/C Facility Agreement, provided however that both Pre-Delivery Advances shall
be made available to the Borrowers on the same Drawdown Date;


(b)                                  each Delivery Advance for the
purpose of assisting each Borrower in refinancing shareholders loans incurred
in connection with the construction of the Vessel being purchased by it; and


(c)                                  each Additional Works’ Advance
for the purpose of assisting each Borrower in re­financing shareholders’ loans
incurred in connection with the Additional Works’ Contract of the Vessel being
purchased by it.


2.3                               Each of the Borrowers hereby (a)
irrevocably instructs the Banks and the Agent to credit both Pre-Delivery
Advances on the Drawdown Date to the Cash Collateral Account, (b) undertakes


to pay to the credit of the Cash Collateral Account on or prior to the
Drawdown Date of the Pre-Delivery Advances any and all amounts required so that
the amount credited to the Cash Collateral Account is equal to the amount of
the L/C Facility, provided however that the Agent shall (and is hereby irrevocably
instructed by the Borrowers to effect the relevant payments) at the written
request of the Borrowers’ and with the prior written consent of the L/C Bank
make the following payments to the Builder from funds credited to the Cash
Collateral Account subject to (i) no Event of Default having occurred, co no
prior demand in respect of the relevant sum under a Letter of Credit having
been made and (iii) the conditions precedent referred to in Clause 16.2 having
been duly fulfilled to the satisfaction of the Security Trustee:


 


 


18














(a)                                  an
amount of up to Euros One million Twenty-Five thousand Two hundred Fifty
(€1,025,250) towards payment to the Builder of the Steel Cutting Instalment for
each Vessel on the Steel Cutting Instalment Payment Date in respect thereof,


(b)                                  an
amount of up to Euros One million Twenty-Five thousand Two hundred Fifty
(€1,025,250) towards payment to the Builder of the Keel Laying Instalment for
each Vessel on the Keel Laying Instalment Payment Date in respect thereof;


(c)                                  the
amount of up to Euros One million Three hundred Sixty-Seven thousand
(€1,367,000) towards payment to the Builder of the Launching Instalment for
each Vessel on the Launching Instalment Payment Date in respect thereof;


(d)                                  the
amount of up to Euros Two million Seven hundred Thirty-Four thousand
(€2,734,000) towards payment to the Builder of the Delivery Instalment for each
Vessel on the Delivery Instalment Payment Date in respect thereof.


2.4                               Subject
to the terms of this Agreement, each of the Banks shall make their respective
Commitment available to the Borrowers on each Drawdown Date in respect thereof.


2.5                               All
the liabilities and obligations of the Borrowers under this Agreement shall,
whether expressed to be so or not, be Joint and several so that each Borrower
shall be jointly and severally responsible with the other Borrower for all
liabilities and obligations of the Borrowers under this Agreement and so that
such liabilities and obligations shall not be impaired by:


1.                                      any
failure of this Agreement to be legal, valid, binding and enforceable in
relation to either of the Borrowers whether as a result of lack of corporate
capacity, due authorisation, effective execution or otherwise;


2.                                      any
giving of time, forbearance, indulgence, waiver or discharge in relation to
either of the Borrowers or to any other party of the Security Documents; or


3.                                      any
other matter or event whatsoever which might have the effect of impairing all
or any of the liabilities and obligations of either of the Borrowers.


2.6                               Each
of the Borrowers declares that it is and will, throughout the Security Period,
remain a principal debtor for all amounts owing under this Agreement and
neither of the Borrowers shall in any circumstances be construed to be a surety
for the obligations of the other Borrower hereunder.


2.7                               Until
all sums owing to the Creditor Parties by the Borrowers under this Agreement
and the other Finance Documents have been paid in full neither of the Borrowers
(hereinafter called “Creditor Borrower”) will without the prior written consent
of the Agent ask, demand, sue for, take or receive from the other Borrower or
any other member of the Group (hereinafter called “Debtor Borrower’) by set-off
or any other manner the whole or any part of all present and future sums,
liabilities and obligations payable or owing by the Debtor Borrower to the
Creditor Borrower whether actual or contingent jointly or severally or
otherwise howsoever (such sums being hereinafter called the “Subordinated
Liabilities”) so long as any Senior Liabilities are outstanding to the Banks
(for which purpose “Senior Liabilities” shall mean all present and future sums,
liabilities and obligations whatsoever payable or owing by the Borrowers (or
either of them) pursuant to the Finance Documents or any of them or otherwise
whatsoever, whether actual or contingent jointly or severally or otherwise
howsoever).


2.8                               The
Creditor Parties may, but will not be bound to, enquire as to the proposed or
actual application of an Advance, but will not be bound to monitor or verify
that application or be responsible for, or for the consequences of, that
application.


3                                         AVAILABILITY—COMMITMENTS BY THE BANKS—POSITION OF THE
BANKS AND THE INSTRUCTING GROUP


 


19

















 


3.1                               Subject
as herein provided each Advance is available to the Borrowers for drawing until
its Applicable Availability Date. Any Advance or any part thereof which remains
undrawn at the close of business in Athens on its Applicable Availability Date
shall be automatically cancelled.


3.2                               The
Banks severally agree with the Borrowers to make the Facility available in the
proportionate amount of their Commitments to the Total Commitments on the terms
and conditions set out in this Agreement. In the event that any Bank fails to
make available its Commitment in respect of any Advance neither the Agent, nor
any other Creditor Party shall be liable to the Borrowers to make available all
or any part of such Commitment nor to compensate the Borrowers for such
failure.


3.3                               Notwithstanding
any other term of this Agreement, the interests of the Banks and the L/C Bank
under this Agreement and the L/C Facility Agreement are several and the
aggregate of the amounts outstanding at any time hereunder or under the L/C
Facility Agreement or under the other Finance Documents from the Borrowers to
each Bank or the L/C Bank (as the case may be) is a separate and independent
debt; accordingly each Bank and the L/C Bank shall be entitled to sue for any
amount which has become due and payable by the Borrowers to it under this
Agreement and the L/C Facility Agreement without joining the Arranger, the
Agent, the Security Trustee or any other Bank as additional parties in the
proceedings.


3.4                               However,
without the prior consent of the Instructing Group, a Bank or the L/C Bank may
not bring proceedings in respect of:


(a)                                  any
other liability or obligation of any Security Party under or connected with a
Finance Document; or


(b)                                  any
misrepresentation or breach of warranty by any Security Party in or connected
with a Finance Document.


3.5                               The
obligations of the Banks and the L/C Bank under this Agreement, the L/C
Facility Agreement and the other Finance Documents are several; and a failure
of a Bank or the L/C Bank to perform its respective obligations under this
Agreement or the L/C Facility Agreement or any other Finance Documents shall
not result in:


(a)                                  the
obligations of the other Banks or the lic Bank being increased; nor


(b)                                  any
Security Party or any other Bank or the L/C Bank being discharged (in whole or
in part) from its obligations under any Finance Document;


and
in no circumstances shall a Bank or the L/C Bank have any responsibility for a
failure of another Bank to perform its obligations under this Agreement or any
other Finance Documents.


3.6                               Every
Bank, the L/C Bank and each Security Party shall be bound by:


(a)                                  any
determination made, or action taken, by the Instructing Group under any
provision of a Finance Document;


(b)                                  any
instruction or authorisation given by the Instructing Group to any Servicing
Bank under or in connection with any Finance Document;


(c)                                  any
action taken (or in good faith purportedly taken) by the Servicing Bank in
accordance with such an instruction or authorisation.


3.7                               However,
the Borrowers and each other Security Party:


(a)                                  shall
be entitled to assume that the Instructing Group has duly given any instruction
or authorisation which, under any provision of a Finance Document, is 


 


 


20

















 


required in relation to any
action which the Servicing Bank has taken or is about to take; and


(b)                                  shall
not be entitled to require any evidence that such an instruction or
authorisation has been given.


3.8                               In
Clauses 3.6 and 3.7 references to action taken include (without limitation) the
granting of any waiver or consent, an approval of any document and an agreement
to any matter.


3.9                               Nothing
contained in this Agreement and no action taken by the Creditor Parties
pursuant to this Agreement or under the other Finance Documents shall be deemed
to constitute the Creditor Parties as a partnership, association, joint venture
or other entity.


4                                         NOTICE OF DRAWDOWN


4.1                               The
Borrowers may make a request for an Advance by
sending to the Agent a duly completed Notice of Drawdown subject to
the conditions in this Clause 4.


4.2                               All
Advances shall be subject to the following conditions being complied with to
the Agent’s and the Security Trustee’s satisfaction-


4.2.1                                             on
the Drawdown Date of an Advance the conditions precedent set out in Clause 16
in respect thereof shall have either been satisfied or have been waived by the
Security Trustee acting with the authorisation of all Banks {whether with or
without conditions) and the undertakings in Clause 19 so far as they are
relevant on such Drawdown Date have at all times been complied with; and


4.2.2                                             on
the date of a Notice of Drawdown and on the relevant Drawdown Date of that
Advance no Event of Default or Potential Event of Default has occurred and is
continuing or might result from the relevant Advance being paid to the
Borrowers; and


4.2.3                                             on
each date of a Notice of Drawdown the representations and warranties set out in
Clause 14 and the other Security Documents are true and correct; and


4.2.4                                             the
Agent shall have received a Notice of Drawdown not later than 11.00 a.m.
(London time) on the third (3rd) Business Day prior to the relevant Drawdown
Date (or such shorter period as may be agreed by the Agent) from the Borrowers
setting out such proposed Drawdown Date.


4.3                               A
Notice of Drawdown once made shall be irrevocable.


5                                         INTEREST


5.1                               On
each Interest Payment Date the Borrowers shall pay to the Agent for the account
of the Banks for the period elapsed accrued interest at the Interest Rate on
the amount of each Advance in Euros.


5.2                               Interest
shall be calculated on the basis of the actual number of days elapsed and a
three hundred and sixty (360) day year or on such basis as the Agent may
determine in accordance with market practice.


5.3                               Each
determination of an Interest Rate hereunder shall be made by the Agent on each
day on which quotations would ordinarily be given by leading banks in the
European Interbank market for deposits in Euros for delivery on the first day
of the relevant Interest Period and shall be promptly notified by the Agent to
the Borrowers and the Banks.


6                                         INTEREST PERIODS


 


 


21

















 


6.1                               Subject
to Clause 6.2, the Interest Periods shall be periods of a duration of three
(3), six (6) or nine (9) months (or such other periods as the Banks and the
Borrowers may agree) as selected by the Borrowers by written notice to be
received by the Agent not later than 11.00 a.m. (London time) on the relevant
Nomination Date.


6.2                               Notwithstanding
the provisions of Clause 6.1:


6.2.1                                             Subject
to the provisions of Clause 6.2.5, the initial Interest Period in respect of the
Advance first to occur under each Tranche shall commence on the Drawdown Date
thereof and shall end on the expiry date thereof and the initial Interest
Period in respect of any subsequent Advance in respect of the relevant Tranche
shall commence on the Drawdown Date thereof and shall end on the last day of
the then current Interest Period in respect of the Advance or Advances
previously drawn down in respect of that Tranche and upon expiration of the
first Interest Period of the Advance last to occur in respect of a Tranche, all
Advances in respect of such Tranche shall be consolidated into and shall be
treated in all respects as a single Advance and each subsequent Interest Period
for such consolidated single Advance shall commence on the expiry of the preceding
Interest Period in respect thereof;


6.2.2                                             if
any Interest Period would otherwise end on a day which is not a Business Day,
that Interest Period shall be extended to the next succeeding day which is a
Business Day unless such next succeeding Business Day falls in another calendar
month in which event the Interest Period shall end upon the immediately
preceding Business Day;


6.2.3                                             if
any Interest Period commences on the last Business Day in a calendar month or
if there is no numerically corresponding day in the month in which that
Interest Period ends, that Interest Period shall end on the last Business Day
in that later month;


6.2.4                                             no
Interest Period shall extend beyond the Final Maturity Date; and


6.2.5                                             if
the Borrowers fall to select an Interest Period in accordance with the above,
such Interest Period shall be of three (3) months duration or of such other
duration as the Agent may in its sole discretion select.


7                                         SUBSTITUTE BASIS


7.1                               If
a Bank determines (which determination shall be conclusive) that-


7.1.1                                             at
11.00 a.m. (London time) on any Interest Determination Date such Bank was not
being offered by banks in the European Interbank Market deposits in Euros in
the required amount and for the required period; or


7.1.2                                             such
deposits are not available by reason of circumstances affecting the European
Interbank Market; or


7.1.3                                             such
deposits are not available to such Bank in such market; or


7.1.4                                             adequate
and reasonable means do not or will not exist for such Bank to obtain or

ascertain the Interest Rate applicable to the next succeeding Interest Period;
or


7.1.5                                             Euros
will or may not be freely transferable,


then,
and in any such case the Agent shall give notice of any such event to the
Borrowers and, in case any of the above occurs on the Interest Determination
Date prior to a Drawdown Date the Borrowers’ right to borrow the part of the
Facility which remains available for borrowing shall be suspended during the
continuation of such circumstances.


7.2                               If,
however, any of the events described in Clause 7.1 occurs on any other Interest
Determination Date relative to the Facility or any part thereof, then the
duration of the 


 


 


22

















 


relevant Interest Period shall
be up to one (1) month and during such Interest Period the Interest Rate
applicable to the Facility or the relevant part thereof shall be the rate per
annum determined by the Banks rounded upwards to the nearest whole multiple of
one sixteenth per cent (1/16th%) to be the aggregate of the Applicable Margin
and the cost (expressed as a percentage rate per annum) to the Banks of funding
the amount of the Facility or the relevant part thereof during such Interest
Period.


7.3                               During
such Interest Period the Borrowers and the Banks shall negotiate in good faith
in order to agree an Interest Rate and Interest Period satisfactory to the
Borrowers and the Banks to be substituted for those which but for the
occurrence of any such event as specified in this Clause would have applied. If
the Borrowers and the Banks are unable to agree on such an Interest Rate and
Interest Period by the day which is two (2) Business Days before the end of the
Interest Period referred to above, the Borrowers shall repay the Facility
together with accrued interest thereon at the Interest Rate set out above
together with all other amounts due under this Agreement but without any
prepayment fee, on the last day of such Interest Period.


8                                         PREPAYMENT


8.1                               The
Borrowers shall be obliged to prepay such part of the Facility as provided in
Clause 8.2 herebelow together with interest and all other sums due to the
Creditor Parties in respect of such part of the Facility if a Mortgaged Vessel
(i) is sold or the Shipbuilding Contract for that Vessel is assigned,
transferred, sold or novated to and in favour of any person (the “Sale
Reduction”) or (ii) becomes a Total Loss or (iii) the Mortgage over such
Mortgaged Vessel is discharged pursuant to paragraph (c) herebelow as follows:


(a)                                  in
the case of a Sale Reduction on or before the date on which either (i) the
delivery of the relevant Mortgaged Vessel to its buyer or (ii) the assignment,
transfer, novation or sale of the Shipbuilding Contract for the relevant Vessel
is completed or;


(b)                                  in
the case of the Total Loss on the earlier of (i) the date falling 180 days
after the date of the occurrence of such Total Loss and (ii) the date of
receipt by the Security Trustee of the proceeds of insurance relating to such
Total Loss; or


(c)                                  in
the case that a Mortgage over a Mortgaged Vessel is discharged (other than in
the circumstances referred to in paragraph (a) above and where the Borrowers
and the other Security Parties have discharged, all their obligations under the
Finance Documents) on or before the date of such Mortgage is discharged.


8.2                               In
case that any of the events referred to in Clause 8.1 occurs in respect of a
Vessel prior to the Final Availability Date, the Borrowers shall be obliged to
prepay the Tranche relevant to such Vessel in full, whereas in case that any
such event occurs after the Final Availability Date, the Borrowers shall be
obliged to prepay the higher of (i) the Tranche related to such Vessel in full
and (ii) a part of the Facility equal to the Relevant Amount.


8.3                               For
the purposes of Clause 8.2, the following terms shall have the following
meanings:


(a)                                  the
term “Relevant Amount” shall mean an amount in Euros equal to the higher of


(A)                              such
amount as shall ensure that immediately after such prepayment, the Security
Value shall not be less than the Security Requirement; and


(B)                                such
amount as shall ensure that X is not lower than Y,


(b)                                  “X”
is the ratio (expressed as a percentage) of


(A)                              the
market value of the Mortgaged Vessel other than the Mortgaged Vessel lost or
sold as determined in accordance with Clause 17.1;


 


 


23

















 


 


(B)                                to
the aggregate amount of the Facility after deducting the amount of the relevant
prepayment,


immediately after the relevant prepayment is made; and


(c)                                  “Y”
is the ratio (expressed as a percentage) of


(A)                              the
market value of the Mortgaged Vessels (including the Mortgaged Vessel lost or
sold) as determined in accordance with Clause 17.1


(B)                                to
the aggregate amount of the Facility without deducting the amount of the
relevant prepayment,


immediately before the relevant prepayment is made.


8.4                               For
the purposes of this Agreement, a Total Loss shall be deemed to have occurred:


(a)                                  in
the case of an actual total loss of a Mortgaged Vessel, on the actual date and
at the time a Mortgaged Vessel was lost or if such date is not known, on the
date on which a Mortgaged Vessel was last reported;


(b)                                  in
the case of a constructive total loss of a Mortgaged Vessel, upon the date and
at the time notice of abandonment of a Mortgaged Vessel is given to the
insurers of a for the time being (provided a claim for such total loss is
admitted by such insurers) or, if such insurers do not admit such a claim, or,
in the event that such notice of abandonment is not given by the Owner thereof
to the insurers of such Mortgaged Vessel, on the date and at a time on which
the Incident which may result, in such Mortgaged Vessel being subsequently
determined to be a total loss has occurred;


(c)                                  in
the case of a compromised or arranged total loss of a Mortgaged Vessel, on the
date upon which a binding agreement as to such compromised or arranged total
loss has been entered into by the insurers of such Mortgaged Vessel; or


(d)                                  In
the case of Compulsory Acquisition of a Mortgaged Vessel, on the date upon
which the relevant requisition of title or other compulsory acquisition occurs;
and


(e)                                  in
the case of hijacking, theft, condemnation, capture, seizure, arrest, detention
or confiscation of a Mortgaged Vessel (other than where the same amounts to
Compulsory Acquisition of such Mortgaged Vessel by any Government Entity, or by
persons purporting to act on behalf of any Government Entity) which deprives
the Owner thereof of the use of the such Mortgaged Vessel for more than thirty
days, upon the expiry of the period of thirty (30) days after the date upon
which the relevant hijacking, theft, condemnation, capture, seizure, arrest,
detention or confiscation occurred.


8.5                               On
giving not less than thirty (30) days’ prior written notice to the Agent the
Borrowers may prepay all or any part of a Tranche (but if in part the amount to
be prepaid shall be €500,000 or a multiple thereof) at the end of the then
current Interest Period. The Borrowers shall obtain any consent or approval
from the relevant authorities that may be necessary to make any such prepayment
of a Tranche or part thereof and if it fails to obtain and/or comply with the
terms of such consent or approval and in consequence thereof the Banks have to
repay the amount prepaid or the Banks incur any penalty or loss then the
Borrowers shall indemnify the Banks forthwith against all amounts so repaid
and/or against all such penalties and losses incurred.


8.6                               Prepayments
made under Clause 8.1 in respect of a Vessel shall first be applied as follows:
(a) if made prior to the Final Availability Date: (i) towards prepayment in
full of the Tranche relating to such Vessel and (ii) unless an Event of Default
has occurred, the balance (after making the payment referred to in
sub-paragraph (i) above) shall be 


 


 


24

















 


released to the Borrowers and
(b) if made after the Final Availability Date: firstly towards prepayment in
full of the Tranche relating to such Vessel and secondly if required under
Clause 8.2 towards prepayment of the Repayment Instalments and the Balloon
Instalment of the other Tranche on a pro rata basis and/or thirdly any balance
shall be released to the Borrowers.


8.7                               Prepayments
under Clause 8.5 in respect of a Tranche shall be applied in reducing the
Repayment Instalments and the Balloon Payment of such Tranche in inverse order
of maturity.


8.8                               Any
prepayment of the Facility made or deemed to be made under this Agreement
shall, be made together with accrued interest and any other amount payable in
accordance with Clauses 12 and/or 24 and/or 25 and (if made otherwise, than at the
end of an Interest Period relative to the amounts prepaid) such additional
amount (if any) as the Agent may certify as necessary to compensate the
Creditor Parties for any Broken Funding Costs incurred or to be incurred by
them as a result of such prepayment.


8.9                               Any
notice of prepayment given by the Borrowers under this Agreement shall be
irrevocable and the Borrowers shall be bound to prepay in accordance with each
such notice.


8.10                        The
Borrowers may not prepay all or any part of the Facility except in accordance
with the express terms of this Agreement


9                                         APPLICATION OF PROCEEDS AND EARNINGS


9.1                               Save
as provided in Clause 9.1.4, all Proceeds received by the Agent and/or the Security Trustee shall,
notwithstanding anything to the contrary whether express or Implied in any of
the Finance Documents, be applied as follows:


9.1.1                                             first,
toward reimbursing each Creditor Party in respect of all losses, costs,
charges, fees (including without limitation legal fees and fees due to the
Banks and/or the Security Trustee and/or the Agent under Clause 23) including
interest thereon that they have incurred in connection with the exercise of its
respective powers under the Finance Documents.


9.1.2                                             second,
to the Banks in respect of the amount lent and owing hereunder including
Interest thereupon and if the Proceeds are insufficient to pay such amounts
then unless otherwise agreed between the Banks, the Banks shall each receive a
proportion of the Proceeds in the proportionate amount of their Commitment
under the Facility and shall be applied by the Banks first against interest and
then against principal;


9.1.3                                             third,
to the Creditor Parties (other than the L/C Bank) in respect of all other
amounts which may be owing to such Creditor Parties under this Agreement and
any of the Finance Documents Including, but not limited, to Broken Funding
Costs;


9.1.4                                             fourth,
to the L/C Bank In respect of any amounts which may be owing to it under the
L/C Facility Agreement provided however that any and all monies received by the
Agent and/or the L/C Bank held in the Cash Collateral Account under the other
Accounts’ Charge shall first be applied towards any amounts due to the L/C Bank
under the L/C Facility Agreement and the L/C Bank shall be entitled to exercise
its rights thereunder at such time and in such manner as it deems appropriate
in its sole discretion without consulting with or obtaining the consent of any
other Creditor Party and in order to exercise such rights to give any and all
necessary instructions to the Agent provided however that after payment in full
of all amounts due to the L/C Bank under the L/C Facility Agreement any
remaining balance shall be applied towards any amounts due to the other
Creditor Parties under this Agreement; and


 


 


25

















 


 


9.1.5                                             fifth,
once the Indebtedness has been repaid to the Creditor Parties to the full
satisfaction of the Agent and the Security Trustee, any balances shall be paid
to the Borrowers.


9.2                               The
Agent may, with the authorisation of all the Banks (and, In the case of an
application pursuant to Clause 9.1.4 of the L/C Bank) by notice to Borrowers,
the other Security Parties and the other Creditor Parties provide for a
different manner of application from that set out in Clause 9.1 either as regards
a specified sum or sums or as regards sums in a specified category or
categories.


9.3                               The
Agent may give notices under Clause 9.2 from time to time in respect of sums
which may be received or recovered in the future.


9.4                               This
Clause 9 and any notice which the Agent gives under Clause 9.2 shall override
any right of appropriation possessed, and any appropriation made, by a Borrower
or any other Security Party.


9.5                               If
any Proceeds recovered by any Creditor Party have to be repaid by such Creditor
Party on the ground of unfair or fraudulent preference or on any other ground,
the Creditor Party shall have the same rights hereunder and/or under the other
Finance Documents against the Borrowers as if such amounts had never been
applied in payment of the Indebtedness.


9.6                               The
Borrowers covenant to ensure and procure that all the Earnings shall be
assigned to the Security Trustee and shall be paid into the Earnings Account
which shall be charged to the Creditor Parties pursuant to the Accounts Charge
Agreement Unless and until the Security Trustee gives notice to the Borrowers
that it requires that all Earnings be paid directly to the Security Trustee
(which notice may only be given by the Security Trustee if an Event of Default
or Potential Event of Default has occurred), all amounts in the Earnings
Account shall be applied as follows-


9.6.1                                             first,
towards the payment of fees and costs and any other sums that are due and
payable by the Borrowers to the Creditor Parties;


9.6.2                                             second,
towards payment to the Retention Account of the amounts required to be
transferred to the credit thereof in accordance with Clause 21; and


9.6.3                                             third,
any balance thereafter remaining in the Earnings Account shall be available to
the Borrowers.


10                                  REPAYMENT


10.1                        Subject
to the other provisions of this Agreement each Tranche shall be repaid by the

Borrowers to the Banks as follows:


(a)                                  by
forty (40) consecutive quarterly Repayment Instalments, with the first twelve
(12) such instalments being in the amount of One hundred and Fifty thousand
Euros (€150,000) each and the remaining twenty eight (28) such instalments
being in the amount of One hundred and Ten thousand Euros (€110,000) each, and
each one such instalment to be repaid on each of the Repayment Dates for the
relevant Tranche; and


(b)                                  by
a final payment of One million Seven hundred Seventy thousand Euros (€
1,770,000).


10.2                        If
the Total Commitments in respect
of either Tranche are not drawn down in full, the amount of the Repayments
Instalments and the Balloon Payment in respect of that Tranche shalt be reduced
proportionately.


10.3                        Any
amounts repaid or prepaid under
this Agreement may not be reborrowed.


 


 


26

















 


11                                  EVIDENCE OF DEBT


The
Agent, the Security Trustee, each Bank and the L/C Bank shall maintain in
accordance with their usual practice accounts evidencing the amounts from time
to time lent and/or guaranteed and/or owing hereunder or under the L/C
Agreement and in any legal action or proceedings
arising out of or in connection with
this Agreement and/or the L/C Facility Agreement and/or the other Finance
Documents the entries made in such, accounts shall be conclusive evidence
(absent manifest error) of the existence and the amounts of the liabilities of
the Borrowers hereunder and/or thereunder.


12                                  PAYMENTS—SET OFF-PRO RATA SHARING OF PAYMENTS


12.1                        All
amounts payable under this Agreement and/or the other Finance Documents by the
Borrowers, including amounts payable under this Clause 12, shall be paid
in full to the Agent on behalf of the Creditor Parties without set-off or
counterclaim or retention and free and clear of and without any deduction or
withholding for or on account of any Taxes or any charges or otherwise present
or future. In the event that the Borrowers are required by law to make any such
deduction or withholding from any payment hereunder, then the Borrowers shall
forthwith pay to the Agent such
additional amount as will result in the immediate receipt by the Agent of the
full amount which would have been received hereunder had no such deduction or
withholding been made and the Borrowers shall immediately forward to the Agent
official receipts of the relevant taxation or other authority or other evidence
acceptable to the Agent of the amount deducted or withheld as aforesaid,
provided that in the event that it shall be illegal for the Borrowers to pay
such additional amount as is referred to in this Clause 12.1 then the
Indebtedness shall be repayable by the Borrowers to the Creditor Parties on
demand. Nothing in this Clause 12.1 shall interfere with the right of the Agent
or the Banks to arrange their respective tax affairs in whatever manner they think fit.


12.2                        All
payments which are to be made in Euros by the Borrowers under this Agreement
and/or the other Finance Documents shall be made in Euros in immediately available and freely
transferable and convertible funds not later than 11 a.m. (Brussels time) on
the date upon which the relevant payment is due to such bank and as the Agent may from time to time nominate
by written notice to the Borrowers;


12.3                        In
the event of a failure by the Borrowers to pay any amount on the date on which
such amount is due and payable pursuant to this Agreement and/or the L/C
Facility Agreement and/or the other Finance Documents and irrespective of any
notice by the Agent or any other person to the Borrowers in respect of such
failure, the Borrowers shall pay interest on such amount on demand from the
date of such failure up to the date of actual payment (as well after as before
judgment) at the Default Rate for such period as the Agent may select at or
about 11.00 a.m. (Brussels time) on the Business Day immediately following that
on which the Agent becomes aware of the failure and, for so long as the failure
continues, at such rate as shall be recalculated on the same basis thereafter.
Any interest which shall have accrued under this Clause 12.3 in respect of an
unpaid sum shall be due and payable and shall be paid by the Borrowers at the
end of the period by reference to which it is calculated or such other date or
dates as the Agent may specify by written notice to the Borrowers.


12.4                        Without
limitation to Clause 9 and subject to Clause 12.5 the Agent shall pay promptly
to the order of each Bank, its Proportionate Share of every sum of money
received by the Agent pursuant to the Finance Documents and shall pay promptly
to the order of each Creditor Party every other sum of money received by the
Agent pursuant to the Finance Documents and which may be due to that Creditor
Party and until so paid each such amount shall be held by the Agent on trust
absolutely for that Lender or Creditor Party, as the case may be.


12.5                        Any
amounts payable pursuant to Clause 23 and any amounts which, by the terms of
the Finance Documents or any of them, shall be paid to the Agent for the
account of the Agent alone or, as the context may require, specifically for the
account of one or more of 


 


 


27

















 


the Creditor Parties shall not
be distributed in accordance with Clause 12.4 but will be held by the Agent for
its own benefit or as the context may require transferred by the Agent to the
relevant Creditor Party.


12.6                        Without
prejudice to the foregoing and irrespective of any notice by the Agent or any
other person to the Borrowers in respect of the Borrowers’ failure to make any
payment when due, the Borrowers shall indemnify each Creditor Party against any
damages, losses or expenses (including losses incurred in paying overdraft
interest or in liquidating or employing deposits from third parties acquired to
make, fund or maintain the Commitment of each Bank or the Facility or any part
thereof) which the Creditor Parties or any of them may sustain or incur as a
consequence of the failure by Me Borrowers to pay any amount when due and
payable under this Agreement and/or the Security Documents and/or as a
consequence of the occurrence of any Event of Default. Furthermore the
Borrowers undertake to indemnify each Creditor Party against any loss incurred
by the Creditor Parties or any of them as a result of any judgment or order
being given or made for the payment of any amount due under this Agreement
and/or the L/C Facility Agreement and/or the other Finance Documents and such
judgment or order being expressed in a currency other than that in which the
payment was due or payable under this Agreement and/or the L/C Facility
Agreement and/or the other Finance Documents and as a result of any variation
having occurred in rates of exchange between the date on which the currency is
converted for the purpose of such judgment or order and the date of actual
payment thereof. This indemnity shall constitute a separate and independent
liability of the Borrowers and shall continue in force and effect
notwithstanding any such judgment or order as aforesaid.


12.7                        My
prepayment or repayment of principal made or deemed to be made under this
Agreement shall, if made otherwise than at the end of an Interest Period
relative to the amounts prepaid or repaid, be made together with accrued interest
thereon and such additional amount (if any) as the Agent may certify as
necessary to compensate the Creditor Parties for any damages or losses, as the
case may be, incurred or to be incurred by the Banks in connection with such
prepayment or repayment (including but not limited to losses on account of
funds borrowed in order to make, fund or maintain the Commitment or the
Facility or any part thereof prepaid or repaid).


12.8                        If
the Borrowers give a Notice of Drawdown pursuant to Clause 4 and the Banks make
arrangements on the basis of such notice to acquire Euros in the European
Interbank Market to fund the Advance(s) or any part thereof and the Borrowers
are not permitted or otherwise fail to borrow in accordance with such Notice of
Drawdown (either on account of any condition precedent not being fulfilled or
otherwise) the Borrowers shall indemnify the Banks against any damages, losses
or expenses which the Banks may incur (either directly or Indirectly) as a
consequence of the failure by the Borrowers to borrow in accordance with the
Notice of Drawdown.


12.9                        Each
Creditor Party may without prior notice but following the occurrence of an
Event of Default which Is continuing:


(a)                                  apply
any balance (whether or not then due) which at any time stands to the credit of
any account in the name of the Borrowers at any office in any country of that
Creditor Party in or towards satisfaction of any sum then due from the
Borrowers to that Creditor Party under any of the Finance Documents; and


(b)                                  for
that purpose:


(a)                                break, or alter the maturity of, all or
any part of a deposit of the Borrowers;


(b)                               convert or translate all or any part of a
deposit or other credit balance into Euros; and/or


 


 


28

















 


(c)                                enter into any other transaction or make
any entry with regard to the credit balance which the Creditor Party concerned
considers appropriate.


12.10                 No
Creditor Party shall be obliged to exercise any of its rights under Clause
12.9; and those rights shall be without prejudice and in addition to any right
of set-off, combination of accounts, charge, lien or other right or remedy to
which a Creditor Party is entitled (whether under the general law or any
document).


12.11                 For
the purposes of Clauses 12.9 and 12.10, a sum payable by the Borrowers to the
Agent or the Security Trustee for distribution to, or for the account of, a
Bank shall be treated as a sum due to that Bank; and each Bank’s proportion of
a sum so payable for distribution to, or for the account of, the Banks shall be
treated as a sum due to such Bank.


12.12                 Save
as provided in Clause 9.1.4, if any Creditor Party at any time shall receive or
recover from the Borrowers or any other Security Party pursuant to this
Agreement or other Finance Documents (whether by way of voluntary or
involuntary payment, by virtue of an exercise of its legal rights including,
but not limited, to any right of set-off, counterclaim or otherwise howsoever)
the whole or any part of any amounts due from the Borrowers to such Creditor
Party hereunder otherwise than by distribution from the Agent under the terms
of this Agreement, then:


(a)                                  such
Creditor Party (hereinafter called the “Paying Creditor Party”) shall (and is
hereby irrevocably authorised to that effect by the Borrowers) promptly and, in
any event after five (5) Banking Days of such receipt or recovery, pay to the
Agent the full amount or (as the case may be) an amount equal to the equivalent
of the full amount so received or recovered after deducting any expenses
incurred by the Paying Creditor Party, in obtaining such amounts:


(b)                                  as
between the Borrowers on the one hand and the Paying Creditor Party on the
other, the Borrowers shall (save to the extent of any amount available for
distribution to the Paying Creditor Party pursuant to Clause 12.12(c)) remain
or again become indebted to the Paying Creditor Party as the case may be
hereunder in the amount so paid as if it had not been received or recovered as
aforesaid; and


(c)                                  the
Agent shall treat the amount so paid as if it were a payment by the Borrowers
on account of amounts due from the Borrowers hereunder for distribution to the
Paying Creditor Party and the other Creditor Parties in the proportions in
which the Paying Creditor Party and the other Creditor Parties would have been
entitled to receive such amount had it been paid by the Borrowers.


13                                  CHANGE OF CIRCUMSTANCES


13.1                        If—


13.1.1                                      any
law, regulation, treaty or official directive (whether or not having the force
of law) or the interpretation thereof by any authority charged with the
administration thereof (of which the Banks at the date of execution of this
Agreement are not aware):


(a)                                  subjects any Bank and/or any holding
company thereof to any Tax with respect to payments of principal or interest in
connection with the Facility or any other amount payable hereunder (other than
Tax assessed, levied or collected on the overall net income of such Bank); or


(b)                                 changes the basis of Taxation of payments
to any Bank and/or any holding company thereof of principal or interest in connection
with the Facility or of any other amount payable hereunder (other than a change
in the rate of Tax on the overall net income of such Bank); or


 


 


29

















 


(c)                                  imposes, modifies or deems applicable any
reserve and/or special deposit requirements against or in respect of assets or
liabilities of, or deposits with or for the account of, or loans or credit
extended by, any office of any Bank; or


(d)                                 imposes on any Bank any other condition
affecting this Agreement, its Commitment or the Facility or any part thereof or
its funding; or


13.1.2                                      any
Bank complies with any request, law, regulation or directive from any
applicable fiscal or monetary authority (whether or not having the force of
law), and as a result of any of the foregoing either directly or indirectly-


(a)                                  the cost to any Bank of making, funding
or maintaining its Commitment in respect of the Facility or any part thereof is
increased; or


(b)                                 the amount of principal, Interest or
other amount payable to any Bank or the effective return to such Bank hereunder
is reduced; or


(c)                                  any Bank makes any payment or loses any
interest or other return calculated by reference to the gross amount of any sum
receivable by it from the Borrowers hereunder,


then and in each such case upon demand from time to time the Borrowers
shall pay to the Agent for the account of the relevant Bank such amount as
shall compensate the relevant Bank for such increased cost, reduction, payment
or lost interest or other return. If such Bank is entitled to make a claim
pursuant to this Clause 13 the Agent shall notify the Borrowers of the event by
reason of which they are so entitled. The Agent shall submit to the Borrowers a
certificate setting out details of the event giving rise to such compensation,
the amount thereof and the manner in which it has been calculated and in the
absence of manifest error such certificate shall be conclusive.


Provided
however that for the purposes of this Clause 13.1 the word “regulation” shall
be deemed to include any regulation which relates to capital adequacy or
liquidity controls or which affects the manner in which the relevant Bank
allocates capital resources to its obligations under this Agreement (including,
without limitation, the implantation of any regulations which may replace those
set out in the statement of the Basle Committee on Banking Regulations and
Supervisory Practices dated July 1998 and entitled “International Convergence
of Capital Measurement and Capital Structures”) which is introduced, or
altered, or the interpretation or application of which is altered, after the
date of this Agreement;


13.2                        If
any amount payable by the Borrowers hereunder and/or under the L/C Facility
Agreement and/or under the other Finance Documents whether in respect of
principal, interest or otherwise or any recipient of any such amount by reason
of its receiving such amount is or becomes subject at any time to Taxation in
any relevant jurisdiction, the Borrowers will indemnify any such recipient of
such amount in respect of such Tax liability so that such recipient receives or
retains a net sum equal to the amount it would have received or retained had
there been no such Tax liability but if such recipient shall be or becomes
entitled to any Tax credit or relief in respect of any such Tax liability or
deduction and if the recipient in its sole determination actually receives (and
is entitled to retain) a benefit from such Tax credit or relief in its country
of domicile, incorporation or residence, that recipient shall, subject to any
laws or regulations applicable thereto, pay to the Borrowers after such benefit
is effectively received by that recipient such amount (which shall be
conclusively certified by that recipient) as shall ensure that the net amount
actually retained by that recipient is equal to the amount which would have
been retained if there had been no such
liability or deduction. In
addition the Borrowers shall indemnify the Bank and each recipient of any sum
payable by the Borrowers under this Agreement and/or under the Security
Documents against any liability for Taxes In the United Kingdom, the Federal
Republic of Germany or the
Republic of Greece or the Republic of Marshall Islands or the Republic of
Liberia or any other relevant jurisdiction, imposed on any of them or on any agent, branch, employee,
representative or representative office of 


 


 


30

















 


any of them by virtue of the
negotiation, preparation or execution of
this Agreement and/or the other Finance Documents, the performance of
any duty or discharge of any
liability hereunder and/or under the other Finance Documents or the receipt of any payment
hereunder and/or under the other Finance Documents. Nothing in this Clause 13.2
shall interfere with the right of the Creditor Parties to arrange their
respective tax affairs in
whatever manner they think fit.


13.3                        Notwithstanding
anything to the contrary herein contained, if any change in law, regulation or treaty or in the interpretation or
application thereof by any authority charged with the administration thereof
shall make It unlawful for the Agent or any of the Banks to make, fund or maintain the
Commitment of any Bank or the Facility, the Agent may, by written notice
thereof to the Borrowers, declare that the Banks’ duty to provide the Borrowers
with the Commitment or the Facility shall be terminated forthwith whereupon the
Borrowers will prepay forthwith (or if permitted by law on the next following
Interest Payment Date) the Facility together with all interest accrued thereon
and all fees and other amounts payable to the Banks hereunder (including, but
not limited to, Broken Funding Costs). The Banks’ duties and liabilities
hereunder and their Commitment shall be cancelled on the giving of such notice.
In any such event, but without prejudice to the aforesaid liability of the
Borrowers to prepay the Facility, the Borrowers, the Agent and the Banks shall
negotiate in good faith with a view to agreeing the terms for making the
Facility available from another jurisdiction, or funding the Facility from
alternative sources, or otherwise
restructuring the Facility on a basis
which is not unlawful. If the said terms are not agreed within thirty (30) days
then the negotiations shall forthwith terminate.


14                                  REPRESENTATIONS AND WARRANTIES


14.1                        Each
of the Borrowers hereby represents and warrants to each Creditor Party that the
following matters are true at the time of this Agreement and warrants that they
shall remain true throughout the Security Period:


14.1.1                                      Each
of the Borrowers and the other Corporate Security Parties is a corporation duly
formed and validly existing under the laws of the country of its incorporation
and each of them has the power and authority to own its assets and carry on
business in each jurisdiction in which it owns assets or carries on business;


14.1.2                                      each
of the Borrowers and the other Security Parties has the power to enter into
this Agreement and into the other Subject Documents to which it/he is a party
and to perform and discharge its/his duties and liabilities hereunder and
thereunder and to borrow hereunder and it/he has taken all necessary action
(whether corporate or otherwise) required to authorise the execution, delivery
and performance of this Agreement and such other Subject Documents to which
it/he is a party and the borrowings to be made hereunder


14.1.3                                      the
execution, delivery and performance of this Agreement and the other Subject
Documents, will not violate or exceed the powers granted to each of the
Borrowers and any other Security Party by, or any provision of, any law or
regulation in any jurisdiction to which the Borrowers and any other Security
Party is subject, any order or decree of any governmental agency or court of or
in any jurisdiction to which the Borrowers or either of them and any other
Security Party is subject, the articles of incorporation and by-laws of each of
the Borrowers and the other Corporate Security Parties or any mortgage, deed,
contract or agreement to which the Borrowers or either of them is a party and
which is binding upon the Borrowers or either of them or any other Security
Party, as the case may be, or their assets, and will not cause any Encumbrance
to arise over or attach to all or any part of its revenues or assets nor
require the Borrowers or either of them or any other Security Party to create
any such Encumbrance other than any Encumbrance to be created hereunder;


14.1.4                                      all
consents, licences, approvals, registrations, authorisations or declarations
(including, without limitation, all foreign exchange approvals) in any
jurisdiction to which any Security Party is subject required to enable each
Borrower to borrow 


 


 


31

















 


hereunder and each Security
Party to lawfully to enter into and perform and discharge its/his respective
duties and liabilities under this Agreement and the other Subject Documents to
which it/he is a party, to ensure that the duties and liabilities of the
Borrowers or either of them and the other Security Parties hereunder and
thereunder are legal, valid and enforceable in accordance with the terms of
this Agreement and the terms of the other Subject Documents respectively and to
make this Agreement and the Subject. Documents admissible in evidence in such
aforesaid jurisdictions, have been obtained or made and are in full force and
effect;


14.1.5                                      this
Agreement and each of the Subject Documents, constitute the legal, valid,
binding and unconditional duties and liabilities of the Borrowers or either of
them and the other Security Parties, which are parties thereto, enforceable
against such of the Borrowers and the other Security Parties, as are parties
thereto, in accordance with the terms thereof save as provided by any
bankruptcy, insolvency or similar laws of general application;


14.1.6                                      none
of the Borrowers and the other Security Parties has failed to pay when due any
material amount or to perform any material duty under the provisions of any
agreement relating to indebtedness to which it/he is a party or by which it/he
may be bound and no event has occurred and is continuing which constitutes, or
which with the giving of notice or lapse of time or both would constitute, a
material breach or default by the Borrowers or the other Security Parties or
any of them under any such agreement;


14.1.7                                      no
litigation or administrative proceedings before or of any court, arbitration
tribunal or governmental authority are pending or, to the knowledge of the
Borrowers, is threatened against the Borrowers, the other Security Parties or any
of them or their assets which might have a material adverse effect on the
business, assets or financial condition of the Borrowers or the other Security
Parties or any of them or the Borrowers’ or the other Security Parties’ ability
to perform and discharge their respective duties and liabilities hereunder and
under the other Subject Documents;


14.1.8                                      the
Financial Statements are complete and correct and present fairly the position
of the Borrowers and/or the Group as of such date and the results of the
operations of the Borrowers and/or the Group ended on such date, and have been
prepared in accordance with the Applicable Accounting Principles consistently
applied and give a true and fair view of the financial condition, assets and
liabilities of the Borrowers and/or the Group at the date to which such
Financial Statements have been prepared and since that date there has been no
adverse change in the financial conditions of the business, assets or operation
of the Borrowers and/or the Group, taken as a whole;


14.1.9                                      the
information provided to the Servicing Banks (or any of them) in relation to
this transaction is true and correct in all material respects and does not omit
any information necessary to make any of the information so provided not
misleading;


14.1.10                               each
of the Borrowers is a wholly-owned direct Subsidiary of AEGEAN SHIPHOLDINGS,
each of AEGEAN SHIPHOLDINGS and the Manager is a wholly-owned direct subsidiary
of AEGEAN PETROLEUM NETWORK and no less than 35% of all the issued voting share
capital of AEGEAN PETROLEUM NETWORK is ultimately beneficially owned by Mr.
Dimitrios Melissanidis, Mr. Peter Georgiopoulos and their respective immediate
families;


14.1.11                               it
is not necessary or advisable to ensure the legality, validity, enforceability
or admissibility in evidence of this Agreement and the other Subject Documents
(with the exception of the Mortgages) that any of them be filed, recorded or
enrolled with any governmental authority or agency or that they be stamped with
any stamp, registration or similar transaction tax;


 


 


32

















 


14.1.12                               the
selection of English law to govern this Agreement is a valid and binding
selection and the submission to the jurisdiction of the High Court of Justice
in England is a valid and binding submission;


14.1.13                               none
of the Borrowers and the other Security Parties is entitled to claim any
immunity in relation to itself/himself or its/his assets under any law or in
any jurisdiction in connection with any legal proceedings, set-off or
counterclaim relating to this Agreement and the other Finance Documents to
which it/he is a party or in connection with the enforcement of any judgment or
order arising from such proceedings;


14.1.14                               no
Taxes are imposed by withholding or otherwise on any payment to be made by the
Borrowers or the other Security Parties under this Agreement or any other
Finance Document or any other document or agreement to be executed or delivered
pursuant hereto or thereto; and


14.1.15                               each
of the Borrowers, and the other members of the Group and their respective
directors, officers and employees are in full compliance with all Environmental
Laws which are currently applicable to its business and to all property owned
or occupied by it, and all applicable consents, permits, licences, approvals,
rulings, variations, exemptions or other authorisations required under laws of
that kind have been obtained, are in full force an effect and are being
complied with fully and there are no facts or circumstances entitling any of
the same to be revoked, suspended, amended, varied or withdrawn.


14.2                        The
Borrowers hereby further represent and warrant that:


14.2.1                                      on
the Drawdown Date of each Advance related to a Vessel, the Shipbuilding
Contract in respect of that Vessel and the Refund Guarantee issued in respect
thereof shall be in full force and effect and no event of default shalt have
occurred thereunder;


14.2.2                                      on
the Drawdown Date of each Additional Works’ Advance related to a Vessel the
Additional Works’ Contract in respect of that Vessel shall be in full force and
effect and no event of default shall have occurred thereunder,


14.2.3                                      on
the Drawdown Date of each Delivery Advance and each Additional Works’ Advance
relating to a Vessel the following matters will be true and shall remain true
until full payment of all amounts payable hereunder:


(a)                                  the
relevant Vessel will be duly registered in the name of its Owner under a flag
acceptable to the Banks;


(b)                                  the
relevant Vessel will be in the absolute and unencumbered ownership of the Owner
thereof, save as contemplated by this Agreement and the Finance Documents;


(c)                                  the
relevant Vessel will maintain the highest class with the Classification Society
free of all recommendations and qualifications of the Classification Society;


(d)                                  the
relevant Vessel will be operationally seaworthy;


(e)                                  the
relevant Vessel will comply with all relevant laws, regulations and
requirements (statutory or otherwise), including without limitation, the ISM
Code, and the ISM Code Documentation the ISPS Code and the ISPS Documentation
as are applicable to (i) ships registered under the law of the flag she is
flying and (ii) engaged in the same or a similar service as such Vessel is or
is to be engaged;


 


 


33

















 


(f)                                    the
Mortgage relating to the relevant Vessel will have been duly recorded against
such Vessel as a valid first priority ship mortgage in accordance with the laws
of her flag;


(g)                                 the
relevant Vessel will be insured in accordance with the provisions of this

Agreement in respect of Insurances;


(h)                                 the
relevant Vessel will be managed by the Manager under the terms of the

Approved Management Agreement, relating thereto;


(i)                                    the
Owner of the relevant Vessel and the Manager will have complied with the
provisions of ail Environmental Laws in respect of that Vessel;


(j)                                    the
Owner of the relevant Vessel and the Manager will have obtained all
Environmental Approvals and will be in compliance with all such Environmental
Approvals in respect of that Vessel;


(k)                                the
Owner of the relevant Vessel and the Manager shall have not received any notice
of any Environmental Claim that alleges that either the Owner or the Manager is
not in compliance with any Environmental Law or any Environmental Approval in
respect of that Vessel;


(l)                                    there
shall be no Environmental Claim pending against either Owner and/or the Manager
and/or either Vessel;


(m)                              no
Environmental Incident shall have occurred which could or might give rise to
any Environmental Claim against either Owner and/or the Manager and/or either
Vessel; and


(n)                                 the
relevant Vessel will have unconditionally been delivered by the Builder to and
accepted by the Owner thereto pursuant to the relevant Shipbuilding Contract
and the full amount of the purchase price payable in respect thereof (including
any amount in addition to the part being financed hereunder) will have been
duly paid to the Builder.


14.3                        The
Borrowers hereby finally jointly and severally represent, warrant and confirm
to each other Party to this Agreement that:


14.3.1                                      each
Borrower enters into this Agreement for its own account and receives the
Facility or any part thereof for its sole benefit; and


14.3.2                                      each
Borrower will promptly inform the Creditor Parties (by written notice to the
Agent) if it is not, or ceases to be, such beneficiary and will then set down
in writing the name(s) and the address(es) of the relevant beneficiary(ies).


14.4                        The
representations and warranties of the Borrowers set out in Clause 14.1 and 14.2
and 14.3 above shall survive the execution of this Agreement and shall be
deemed to be repeated on each Drawdown Date and each Interest Payment Date with
respect to the facts and circumstances existing at each such time as if made at
such time.


15                                  SECURITIES


The
Borrowers hereby agree that the Finance Documents shall secure with first
priority the due payment of the Indebtedness.


16                                  CONDITIONS PRECEDENT


16.1                        Notwithstanding
the provisions of Clauses 3 and 4, the obligation of the Banks to make
available either Pre-Delivery Advance under this Agreement is subject to the
condition 


 


 


34

















 


that the Security Trustee shall
have received the following documents or evidence in form and substance
satisfactory to the Security Trustee and its legal advisers on or prior to the
Drawdown Date of either Pre-Delivery Advance:


16.1.1                                      a
copy, certified as a true copy by the secretary of each Corporate Security
Party of the resolutions of the board of directors and of the shareholders of
each Corporate Security Party authorising the transaction contemplated hereby
and authorising a person or persons to sign or execute on behalf of each
Corporate Security Party this Agreement, the relevant Notice of Drawdown, the
Acknowledgement (as in the form of Schedule 4 hereof) and the other Finance
Documents as is a party thereto;


16.1.2                                      the
originals of any power or powers of attorney granted pursuant to Clause 161.1;


16.1.3                                      copies,
duly certified as a true copy by the respective secretaries of each Corporate
Security Party of the certificate of incorporation, the articles of
incorporation and by-laws of each Corporate Security Party and evidence
satisfactory to the Security Trustee that each Corporate Security Party is in
good standing;


16.1.4                                      a
list specifying the directors and officers of each Corporate Security Party
(together with their specimen signatures) and specifying the authorised and
issued share capital of each Corporate Security Party;


16.1.5                                      the
Corporate Guarantees duly executed by each Corporate Guarantor;


16.1.6                                      certified
copies of all documents (with a certified translation if an original is not in
English) evidencing any other necessary action (including but without
limitation governmental approval, consents, licences, authorisations,
validations or exemptions which the Security Trustee or its legal advisers may
require) required by the Security Parties or any of them with respect to this
Agreement and the other Finance Documents relating to the drawdown of the
Advances;


16.1.7                                      the
Cash Collateral Account Charge Agreement duly executed by the Borrowers and
each of the Earnings Accounts Charge Agreements duly executed by each relevant
Borrower


16.1.8                                      evidence
that each of the Accounts has been duly opened with the Agent and that all
board resolutions, mandates, signature cards and other documents or evidence
required in connection with the operating, maintenance and operation of such
accounts have been duly delivered to the Agent;


16.1.9                                      the
opinion letters from English, Greek and Marshall Islands legal counsels, all acceptable
to the Security Trustee and in form and substance satisfactory to all the Banks
in respect of this Agreement and the other Finance Documents;


16.1.10                               a
letter from Messrs. RICHES CONSULTING to the Security Trustee confirming
acceptance of their appointment as agents for service under Clause 36.4;


16.1.11                               payment
to the Agent of the fees referred to in sub-clause 23.1


16.1.12                               certified
copies of the Shipbuilding Contract and the Refund Guarantee first to be issued
together with such evidence as the Security Trustee and/or its legal advisers
shall require in relation to the due authorisation and execution (i) by the
Builder of each Shipbuilding Contract and all documents to be executed by the
Builder pursuant thereto and (ii) by the Refund Guarantor of such Refund
Guarantee;


16.1.13                               the
Assignments of the Shipbuilding Contracts and the Assignments of the Refund
Guarantees both duly executed by each Borrower and notices thereof,


16.1.14                               the
acknowledgements of receipt by the Builder and by the Refund Guarantor to the
Security Trustee of the notices of the Assignments of the Shipbuilding
Contracts and 


 


 


35

















 


the Assignments of the Refund
Guarantee first to be issued in respect of each Vessel duly notarised;


16.1.15                               evidence
that the Manager has been appointed by technical supervisor under each
Shipbuilding Contract and has accepted its appointment;


16.1.16                               evidence
that all instalments and amounts payable under each Shipbuilding Contract prior
to the Drawdown Date of either Pre-Delivery Advance have been duly paid;


16.1.17                               certified
copies of the Additional Works’ Contracts together with such evidence as the
Security Trustee and its legal advisers shall require in relation the
authorisation and execution by IOTA of each Additional Works’ Contract and all
documents to be executed by IOTA pursuant thereto;


16.2                        The
agreement of the Banks and the L/C Bank to permit the release from the Cash
Collateral Account of any amount for payment of an Instalment in respect of a
Vessel as provided in Clause 2.3 shall be subject to the conditions referred to
in Clause 2.3 and to the further condition that the Security Trustee shall have
received the following documents or evidence in form and substance satisfactory
to the Security Trustee and its legal advisers on or prior to the date of such
release in respect of such Vessel:


16.2.1                                      in
respect of a Pre-Delivery Instalment certified copies of: (a) the confirmation
issued by the Classification Society evidencing the completion of the relevant
part of the relevant Vessel’s construction to the satisfaction of the
Classification Society; (b) the Builders invoice in respect of the relevant
Instalment; and (c) the relevant Refund Guarantee in respect of the relevant
Vessel duly issued and delivered to the Owner thereof any confirmation from the
Refund Guarantor that any Refund Guarantee(s) already in place remain(s) in
full force and effect; and (d) acknowledgement of receipt of the notice of
assignment of the relevant Refund Guarantee duly notarised;


16.2.2                                      in
respect of each Delivery Instalment certified copies of: (a) the confirmation
issued by the Classification Society evidencing the completion of the relevant
part of the relevant Vessel’s construction to the satisfaction of the Classification
Society; (b) the Builder’s invoice corresponding to such Instalment; (c) the
bill of sale in respect of the relevant Vessel; (d) a Builder’s certificate in
respect of the relevant Vessel; and (e) the protocol of delivery and acceptance
in respect of the relevant Vessel duly signed by the Builder and the Owner
thereof.


16.3                        The
agreement of the Banks to permit the drawdown of a Delivery Advance in respect
of a Vessel Is subject to the condition that the Security Trustee shall have
received (in addition to the documents and evidence referred to in Clauses 16.1
and 16.2 the following documents or evidence in form and substance satisfactory
to the Security Trustee and its legal advisers on or prior to the Drawdown Date
of such Advance in respect of that Vessel:


16.3.1                                      evidence
that the relevant Vessel is duly registered in the ownership of the Owner
thereof under a flag acceptable to the Banks, free from registered Encumbrances
other than the Mortgage to be registered thereon;


16.3.2                                      the
Vessel’s Security Documents in respect of the relevant Vessel duly executed by
the Owner thereof and the Mortgage duty registered with the appropriate flag
authorities;


16.3.3                                      the
notices of assignment of the Earnings and the Insurances of the relevant Vessel
duly signed by the Owner thereof;


16.3.4                                      evidence
that save for the Encumbrances created by the relevant Vessel’s Security
Documents there is no Encumbrance whatsoever on each relevant Vessel;


 


 


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16.3.5                                      evidence
that the relevant Vessel is insured in accordance with the provisions of this
Agreement;


16.3.6                                      evidence
that the relevant Vessel is classed at the highest classification status with
her Classification Society;


16.3.7                                      certified
copies of the classification and international safety and trading certificates
of the relevant Vessel issued by the Classification Society of the relevant
Vessel free of overdue recommendations or other conditions or notations
affecting her class;


16.3.8                                      if
requested by the Banks, charter free market valuation of the relevant Vessel on
the basis of Clause 17.1 issued by reputable sale and purchase brokers
appointed by the Security Trustee, acting with the authorisation of the
Instructing Group certifying the market value of the relevant Vessel at the
expense of the Owner thereof;


16.3.9                                      certified
copy of the Approved Management Agreement in respect of the relevant Vessel;


16.3.10                               copies
of ISM Code Documentation in relation to the relevant Vessel (i.e. SMC) and the
Manager (i.e. DOC) and ISPS Code Documentation; and


16.3.11                               certified
copies of the Purchase Documents in respect of the relevant Vessel together
with such evidence as the Security Trustee and/or its legal advisers shall
require in relation to the authorisation and execution of the Purchase
Documents on behalf of the Builder.


16.4                        The
agreement of the Banks to permit the drawdown of an Additional Works’ Advance
in respect of a Vessel is subject to the condition that the Security Trustee
shall have received the following documents or evidence in form and substance
satisfactory to the Security Trustee and its legal advisers on or prior to the
Drawdown Date of such Additional Works’ Advance:


16.4.1                                      evidence
that any balance (in addition to the relevant Additional Works’ Advance) due to
IOTA has been or will immediately on drawdown of the relevant Additional Works’
Advance be paid to IOTA:


16.4.2                                      receipt
from IOTA evidencing payment in full of the Additional Works for the Vessel
relevant to such Additional Works Advance;


16.4.3                                      a
detailed list prepared by IOTA and countersigned by the Owner of the relevant
Vessel setting out all the equipment and the Owners’ supplies in accordance
with the Additional Works’ Contract in respect of such Vessel;


16.4.4                                      evidence
in form and substance satisfactory to the Agent in its sole discretion that the
additional specialised equipment included into the list to be provided pursuant
to Clause 16.4.3 above has been installed In the relevant Vessel together with
copies of all appropriate technical certificates verifying the above
installation;


16.5                        Furthermore
the obligation of the Banks to make the Advances is subject to the following
further conditions:


16.5.1                                      that
both at the date of a Notice of Drawdown and on each Drawdown Date-


(a)                                  no
Event of Default or Potential Event of Default has occurred and is continuing
or might result from the making of the relevant Advance(s); and


(b)                                  the
representations and warranties of the Borrowers in Clause 14 and the
representations and warranties of the Borrowers and other parties to the
Subject Documents set out in the Subject Documents are true and accurate as of
each 


 


 


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such date, as if made on each
such date with reference to the facts then subsisting.


16.5.2                                      that
the Security Trustee shall have received, and found to be satisfactory to it in
all respects, such further opinions, consents, agreements and documents in
connection with this Agreement and the Subject Documents as the Security
Trustee may request by notice to the Borrowers prior to each Drawdown Date.


PROVIDED
HOWEVER THAT the Agent may (with the prior written consent of all the Banks)
allow any Advance to be drawn down and also may (with the prior written consent
of all the Banks and the L/C Bank) allow sums to be released from the Cash
Collateral Account notwithstanding that all conditions specified in the
respective sub-clauses of this Clause 16 have not been fulfilled and in this
event each of the Borrowers hereby covenants to fulfil and procure the fulfilment
of such conditions within five (5) Business days after the relevant Drawdown
Date or the relevant date of release of funds from the Cash Collateral Account
(as the case may be) or at such other time specified by the Agent with the
prior written consent of the Banks and in the case of release of funds from the
Cash Collateral Account, the Banks and the L/C Bank and the advance of any part
of the Loan, shall not be taken as a waiver of the Agent and Bank’s right to
require production of all documents and evidence required by Clause 16.1.


17                                  MAINTENANCE OF SECURITY


17.1                        If
the Agent reasonably requires at any time and from time to time and at least
every twelve (12) months, each Mortgaged Vessel shall be valued in Euros by two
Approved S & P Brokers chosen by the Security Trustee, acting with the
authorisation of the Instructing Group and the Market Value of each Mortgaged
Vessel shall be the average of such two valuations which shall be made without
physical inspection (unless otherwise required by the Security Trustee), and on
the basis of an arm’s-length purchase by a willing buyer from a willing seller
and without taking into account any charterparty. The fees of the Approved S &
P Brokers appointed to give such valuations and all other costs arising in
connection with the obtaining of any such valuations shall be paid by the
Borrowers.


17.2                        In
the event that at any time during the Security Period after the earlier of (i)
the Drawdown Date of the Delivery Advance last to occur and (ii) the Final Availability
Date the Security Value shall be less than the Security Requirement applicable
at the relevant time, then the Borrowers shall within twenty (20) Banking Days
of receipt of a notice from the Security Trustee advising the Borrowers of the
amount of such deficiency (which notice shall be conclusive) either provide to the Security Trustee and/or the Creditor
Parties additional security (valued in accordance with normal banking practice)
which shall in all respects be acceptable and satisfactory to the Banks in
their sole discretion so that the Security Value together with the value of any
additional security (valued as aforesaid) provided to the Security Trustee
and/or the Creditor Parties pursuant to this Clause 17 is at least equal to the
Security Requirement or prepay part
of the Facility in accordance with Clause 8 so that the Security Value together
with the value of any additional security (valued as aforesaid) provided to the
Security Trustee and/or the Creditor Parties pursuant to this Clause is at
least equal to the Security Requirement applicable at the relevant time.


18                                  GENERAL UNDERTAKINGS


18.1                        The
Borrowers hereby jointly and severally undertake with each Creditor Party to
comply with the following provisions of this Clause 18 at all relevant times
during the Security Period, except as the Security Trustee may, with the
authorization of the Instructing Group, otherwise permit:


18.1.1                                      to
prepare or cause to be prepared: consolidated financial statements of the Group
in accordance with. the Applicable Accounting Principles consistently applied
in respect of each financial year (starting with the financial year ended on 31
December 2006) 


 


 


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and cause the same to be
reported on by their auditors; consolidated financial statements of the Group
in accordance with the Applicable Accounting Principles consistently applied in
respect of each financial quarter (starting with the financial quarter ending
31 March 2007; unaudited financial statements of the Borrowers in accordance
with the Applicable Accounting Principles consistently applied in respect of
each financial year; and, in each case, deliver as many copies of the same as
the Security Trustee may reasonably require as soon as practicable but not later
than ninety (90) days (in the case of the audited financial statements) or
forty five (45) days (in the case of the unaudited financial statements) after
the end of the financial period to which they relate;


18.1.2                                      to
deliver the Security Trustee sufficient copies for all the Banks of every
report, circular, notice or like document issued by the Borrowers or the
Corporate Guarantors to their shareholders or creditors generally;


18.1.3                                      to
provide the Security Trustee with such financial or other Information
concerning any Borrower, the Corporate Guarantors, their respective Related
Companies, the other Security Parties and their respective Related Companies
and their respective affairs (including, without limitation, their activities,
financial standing, Indebtedness and operations and the performance of the
Vessels) as the Security Trustee may from time to time require;


18.1.4                                      to
obtain promptly at any time and from time to time such registrations, licenses,
consents and approvals as may be required in respect of this Agreement and the
other Subject Documents under any applicable law or regulation to enable the
Borrowers to perform and discharge their duties and liabilities hereunder and
thereunder and promptly supply the Security Trustee with copies thereof;


18.1.5                                      to
deliver to the Security Trustee translations into English (certified by an
authorized translator) of any documents which have to be delivered to the
Creditor Parties or any of them under the terms of this Agreement or the other
Finance Documents, the originals of which are not in the English language and
execute any further document required by the Security Trustee in order to perfect or complete the security
created by the Finance Documents;


18.1.6                                      to
maintain their corporate existence under the laws of the Republic of the
Marshall Islands and comply with all relevant legislation applicable to them;


18.1.7                                      to
promptly notify the Security Trustee in writing of any Event of Default or any Potential Event of Default and of the steps (if any) which are being taken to nullify or mitigate
its effect and of any dispute between any one or more of the Builder, the
Refund Guarantor, the Borrowers, and the Corporate Guarantors, under the
Subject Documents or any of them and of any occurrence of which they become
aware which might adversely affect their ability to perform and discharge their
duties and liabilities under this Agreement and/or the other Subject Documents;


18.1.8                                      not
to dissolve, merge into or consolidate
with any other company or partnership and ensure and procure that no change in
the management or the legal or beneficial ownership of the Borrowers, the
Corporate Guarantors and the Vessels shall be effected;


18.1.9                                      unless
otherwise permitted by the Security Trustee (acting with the authorisation of
the Instructing Group), not to amend, modify, vary or supplement or terminate
or agree to any amendment, modification, variation or supplement or
cancellation of any of the Subject Documents;


18.1.10                               not
to engage in any business or activity, apart from the ownership and operation
of the Vessel owned by each Borrower and activities ancillary thereto as
permitted by this Agreement and the other Finance Documents;


 


 


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18.1.11                               to ensure that at all times the
claims of the Creditor Parties against the Security Parties under this
Agreement and/or the other Finance Documents rank at least pari passu with the claims of all their
other unsecured creditors save those whose claims are preferred by any
bankruptcy, insolvency or other similar laws of general application;


18.1.12                               not to and ensure and procure
that the Manager shall not make any advances, grant any credit or give any
guarantee or indemnity to or for the benefit of any person or otherwise
voluntarily assume any liability, whether actual or contingent, in respect of
any obligations of any person, firm or company (save and except in connection
with the ordinary course of operation of trading of the Vessels or, only in the
case of the Manager, in the ordinary course of operation and trading of any
other vessel managed by it);


18.1.13                               not to issue any further shares
or alter any rights attaching to their issued shares in existence at the date
of this Agreement;


18.1.14                               not to convey, assign, transfer,
sell or otherwise dispose of or deal with the Vessels or either of them;


18.1.15                               not to sell, lease, transfer or
otherwise dispose of, by one or more transactions or series of transactions
(whether related or not), the whole or any part of their assets (other than the
Vessels) or rights whether present or future;


18.1.16                               not to borrow any money or
permit any such borrowing to continue or incur any indebtedness whatsoever
other than the Facility or other than by way of subordinated shareholders’
loans or enter into any agreement for payment on deferred terms (otherwise than
on customary suppliers’ credit terms) or any equipment lease or contract hire
agreement other than in the ordinary course of business;


18.1.17                               not to authorise or accept any
capital commitments (save and except in connection with the purchase of and the
ordinary course of operation or trading of the Vessels);


18.1.18                               not to declare or pay dividends
or make any distributions to their shareholders in any form whatsoever;


18.1.19                               from time to time (but not more
than once every six (6) months) on request by the Security Trustee, to deliver
to it a certificate signed by a director or officer of each of the Borrowers
confirming that, save as may be notified in detail in such certificate, no
Event of Default or Potential Event of Default has occurred and is then
subsisting to be accompanied by such evidence as to the information and matters
contained in such certificate as the Security Trustee and/or the other Creditor
Parties may from time to time reasonably require;


18.1.20                               to pay and to ensure and procure
that the other Security Parties shall pay all Taxes, assessments and other
governmental charges when the same fall due, except to the extent that the same
are being contested in good faith by appropriate proceedings and adequate
reserves have been set aside for their payment if such proceedings fail and
ensure and procure that all relevant tax returns of the Borrowers and the other
Security Parties shall be properly and timely filed;


18.1.21                               without prejudice to their
obligations under Clause 18.1.6 to send (or procure that it is sent) to the
Security Trustee for distribution to the other Creditor Parties as soon as the
same is instituted (or, to the knowledge of the Borrowers threatened), details
of any litigation, arbitration or administrative proceedings against or
involving the Borrowers the other Security Parties (or any of them) or the
Vessels or either of them which is likely to have a material adverse effect on the
Borrowers, the other Security Parties (or any of them) or the operation of the
Vessels;


 


 


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18.1.22                               not to amend their articles of
incorporation and by-laws or other constitutional documents;


18.1.23                               not to amend, modify, vary,
supplement, terminate, cancel or rescind or agree to any amendment,
modifications, variation, supplement, termination, cancellation or rescission
of any of the Subject Documents


18.1.24                               not to change, cause or permit
any change in, the legal and/or ultimate beneficial ownership of any of the
shares in any of the Borrowers, AEGEAN SHIPHOLDINGS or the Manager from that
specified in clause 14.1.10;


18.1.25                               not to change, cause or permit
any change in, the ultimate beneficial ownership of any shares in AEGEAN
PETROLEUM NETWORK which would result in the persons specified in clause 14.1.10
being the ultimate beneficial owners of less than thirty five per cent (35%) of
the total voting share capital of AEGEAN PETROLEUM NETWORK at any time or any
person (other than those referred to in clause 14.1.10) having the ultimate
beneficial ownership of more shares in AEGEAN PETROLEUM NETWORK than the
persons specified in clause 14.1.10 have at any time; and


18.1.26                               to ensure and procure that each
Corporate Guarantor shall comply with its obligations under the Corporate
Guarantee to which it is a party.


19                                  OPERATIONAL
UNDERTAKINGS


19.1                        The Borrowers hereby undertake
with the Creditor Parties that on the Delivery Date of each Vessel and
throughout the Security Period thereafter, shall comply with the following
provisions of this Clause 19 except as the Security Trustee may, with the
authorization of the Instructing Group, otherwise permit:


19.1.1                                      to procure that each Vessel
shall be duly registered under the laws and the flag approved by the Creditor
Parties in the ownership of the Owner thereof and not do or suffer to be done
anything whereby the registration may be forfeited or imperilled;


19.1.2                                      to appoint and/or keep the
Manager appointed as manager of the Vessels and not vary or terminate this
appointment;


19.1.3                                      not save as contemplated in the
Finance Documents, to create, incur or permit to subsist any Encumbrance over
the Vessels, the Earnings, the Insurances or the Requisition Compensation or
all or any of the present or future assets of the Borrowers or either of them
(other than any Permitted Encumbrance);


19.1.4                                      not at any time to represent to
a third party that the Creditor Parties (or any of them) are carrying cargo in
the Vessels or either of them or are in any way connected or associated with an
operation or carriage being undertaken by them or have any operational interest
in the Vessels or either of them;


19.1.5                                      not to voyage or time charter
the Vessels or either of them or place them/her under contract for employment
(a) for any period which when aggregated with any optional periods of extension
contained in the said charter or contract, would exceed twelve (12) months or
(b) at a charter rate which is below the market rate at the time of the charter
fixture and in case of a Vessel being employed for more than twelve (12)
months, after having obtained the Security Trustee’s consent acting on the
instructions of the Instructing Group, the Security Trustee shall be furnished
with (i) details and documentary evidence satisfactory to the Security Trustee
In its sole discretion in respect of the new employment and (ii) upon Security
Trustee’s request, a specific assignment in favour of the Security Trustee of
the benefit of such charter together with a notice of any such assignment
addressed to the relevant charterer and endorsed with an acknowledgement of
receipt by the relevant charterer all in form and substance satisfactory to the
Security Trustee;


 


 


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19.1.6                                      not to demise charter the
Vessels or either of them for any period whatsoever;


19.1.7                                      not without the prior written
consent of the Security Trustee to put a Vessel into the possession of any
person for the purpose of work being done upon her in an amount exceeding or
likely to exceed US$300,000 (or the equivalent in any other currency) unless
the Borrowers shall have satisfied the Security Trustee that the cost of such
work is fully recoverable under the Insurances (save for any applicable
deductible) or such person shall first have given to the Security Trustee and
in terms satisfactory to it a written undertaking not to exercise any lien on a
Vessel or her Earnings or Insurances for the cost of such work or otherwise;


19.1.8                                      to give the Security Trustee
reasonable prior notice of any dry-docking of either Vessel so that the
Security Trustee (if it so requires) can arrange for a representative to be
present;


19.1.9                                      to notify the Security Trustee
of any intended laying-up or de-activation of either Vessel;


19.1.10                               to provide the Security Trustee
with such copies of the trading certificates of each Vessel as the Security
Trustee may from time to time require;


19.1.11                               to hold or procure that the
Manager shall hold all appropriate ISM Code Documentation and ISPS Code
Documentation and provide the Agent upon request from time to time with copies
of the relevant ISM Code Documentation and ISPS Code Documentation duly issued
to the Manager and the Vessels and the Owners pursuant to the ISM Code and the
ISPS Code respectively;


19.1.12                               to keep, or procure that there
is kept, on board a Vessel a copy of all relevant ISM Code Documentation and
ISPS Code Documentation;


19.1.13                               as soon as an Owner becomes
aware, to inform the Security Trustee immediately should the Document of
Compliance and/or the Safety Management Certificate and/or the international
Ship Security Certificate issued in connection with the relevant ISM Code
Documentation or ISPS Code Documentation in respect of a Vessel be cancelled, rescinded,
suspended or amended in any way;


19.1.14                               to notify the Security Trustee
promptly upon being made aware thereof upon the

occurrence of:


(a)                                  any Environmental Claim against
the Owners or either of them or the Manager or the Vessels or either of them;


(b)                                  any Environmental Incident which
may give rise to an Environmental Claim which could or might materially affect
the interests of the Owners, the Manager or any of them;


(c)                                  any claim for breach of the ISM
Code or the ISPS Code being made against the Owners, an ISM Responsible Person,
the Manager or any of them or otherwise in connection with the Vessels or
either of them; and


(d)                                  any other matter, event or
incident actual or threatened, the effect of which would lead to the ISM Code
or the ISPS Code not being complied with;


and to keep the Security Trustee advised in writing on a regular basis
and in such detail as the Security Trustee shall require of the relevant Owner’s,
the ISM Responsible Person’s, the Manager’s or any other person’s proposed or
actual response to any of those events or matters;


19.1.15                               to permit, or procure that the
Security Trustee shall have the right at any time on reasonable notice to
inspect or survey each Vessel or instruct a duly authorised


 


 


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independent surveyor to carry
out such survey on its behalf to ascertain the condition of such Vessel and
satisfy itself that such Vessel is being properly repaired and maintained,
provided that such inspections shall not unreasonably interfere with such
Vessel’s running or operation (and the costs of such inspection or survey shall
be payable by the Borrowers);


19.1.16                               to promptly provide the Security
Trustee with information concerning the classification status and insurance of
the Vessels from time to time as and when so required in writing by the
Security Trustee;


19.1.17                               to ensure that the Owners shall
execute and deliver to the Security Trustee such documents of transfer as the
Security Trustee may require in the event of sale of the Vessels pursuant to
any power of sale contained in the Mortgage over the relevant Vessel or which
the Security Trustee may have in law;


19.1.18                               to provide the Security Trustee
with a certificate of ownership and encumbrances relative to the Vessels issued
by the relevant registry of the Vessels; and


19.1.19                               upon becoming aware, to notify
the Security Trustee immediately by telefax of any recommendation or
requirement imposed by the Classification Society, the Insurers or by any other
competent authority in respect of a Vessel that is not complied with in
accordance with its terms;


19.1.20                               to ensure that each Owner shall
carry on each Vessel with the Vessel’s papers a properly certified copy of the
Mortgage over such Vessel and exhibit the same to any person having a legal
interest in, or having business with, such Vessel and to any representative of
the Security Trustee, and place and keep prominently in the Chart Room and in
the Master’s cabin of such Vessel a framed notice printed in plain type of such
size that the paragraph of reading matter shall cover a space not less than six
inches wide and nine inches high reading as follows:


“NOTICE OF MORTGAGE


This Vessel is owned by [______] and is subject to a first preferred
(priority] mortgage in favour of AEGEAN BALTIC BANK S.A. (and HSH NORDBANK AG).
Under the terms of said Mortgage, neither the Owner, nor the Master nor any
other person has any right, power or authority to create, incur or permit to be
imposed upon this Vessel any other lien whatsoever other than for crew’s wages
and salvage”


19.1.21                               to pay when due and payable all
taxes, assessments, levies, governmental charges, fines and penalties lawfully
imposed on and enforceable against the Vessels unless contested In good faith
by the Owners by the appropriate proceedings;


19.1.22                               if any writ or proceedings shall
be issued against the Vessels or either of them shall be otherwise attached,
arrested or detained by any proceeding in any court or tribunal or by any
government or other authority, to Immediately notify tie Security Trustee
thereof by telefax confirmed by letter and within fourteen (14) days thereafter
cause that Vessel to be released;


19.1.23                               not to cause or permit the
Vessels or either of them to be operated in any manner contrary to any law or
regulation in any relevant jurisdiction including but not limited to the ISM
Code and the ISPS Code and not to engage in any unlawful trade or carry any
cargo that will expose the Vessels or either of them to penalty, forfeiture or
capture and in the event of hostilities in any part of the world (whether a war
be declared or not) not employ the Vessels or either of them or voluntarily
suffer their/her employment in carrying any contraband goods;


19.1.24                               to promptly pay all tolls, dues
and outgoings in respect of each Vessel and all wages, allotments, insurance
and pension contributions of the Master and crew of each Vessel when due and
make all deductions from the wages in respect of any tax


 


 


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liability, accounting to the
relevant authority for them and if the Security Trustee at any time has
reasonable cause to believe that such payments may not be being made, to
produce to the Security Trustee at its request evidence confirming that all
such amounts have been paid when due;


19.1.25                               at all times to maintain each
Vessel in a seaworthy condition and in good running order and repair in
accordance with first class ship ownership and ship management practice and
keep each Vessel in such condition as will entitle them/her to be classed at
the highest classification status with their/her Classification Society free of
all recommendations and qualifications (other than those which have been or are
being complied with in accordance with their terms and which are not by their
terms overdue for compliance), follow any interim operational provisos to such
recommendations and qualifications and when so requested to provide the
Security Trustee with a certificate issued by the relevant Classification
Society confirming that such classification is maintained;


19.1.26                               to submit each Vessel regularly
to such periodical or other surveys as may be required for classification
purposes and, if so required by the Security Trustee in writing, supply to the
Security Trustee copies of all survey reports issued in respect thereof;


19.1.27                               at all times to comply with all
legal requirements whether imposed by enactment, regulation, common law or
otherwise and have on board each Vessel as and when legally required valid
certificates showing compliance therewith;


19.1.28                               without prejudice to the
generality of Clause 19.1.27, to obtain and maintain any and ail Environmental
Approvals required in respect of each Vessel and comply or procure that the
Manager or any charterer of either Vessel (including without limitation the
Time Charterer) will at all times comply with the ISM Code, the ISPS Code, the
ISPS Code Documentation, all Environmental Laws, and all other laws and
regulations relating to each Vessel, its ownership, operation, manning and
management or to the business of the each Owner and/or the Manager;


19.1.29                               not remove or permit the removal
of any part of the Vessels or either of them or any equipment belonging thereto
nor make or permit any alterations to be made in the structure, type or speed
of the Vessels or either of them which materially reduce the value of the
Vessels or either of them (unless such removal or alteration is required by
statute or by the Classification Society); and


19.1.30                               in the event of Compulsory
Acquisition of a Vessel execute any assignment that the Security Trustee may
request in relation to any and all amounts which the relevant Government Entity
shall be liable to pay as compensation for such Vessel or for its use and if
received by the Owner thereof to pay such amounts immediately to the Agent.


19.2                        The Borrowers hereby irrevocably
agree and undertake to ensure and procure that -


19.2.1                                      the Security Trustee, or its
authorised representatives may, without prior notification, communicate
directly with the Classification Society concerning maintenance, repair,
classification and seaworthiness of the Vessels, and to the same extent with
any regulatory authority having jurisdiction over the Vessels;


19.2.2                                      the Owners shall unconditionally
authorise the Classification Society or regulatory authority, at the request of
the Security Trustee, to give information to it, or its authorised
representatives and to conduct inspections and surveys of the Vessels, as if
requested by the Owners;


provided that the Security Trustee will not,
without prior consultation with the Borrowers, take any action under this
Clause 19.2 unless an Event of Default or Potential Event of Default has
occurred.


 


 


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19.3                        The Borrowers shall throughout
the Security Period duly observe and perform all of the covenants, obligations
and conditions which are required to be observed and performed on their part
under this Agreement and each of the other Finance Documents to which they are
a party and shall use their best endeavours to procure that all covenants,
obligations and conditions required to be observed and performed, and
undertakings made, by any of the other Security Parties under any of the
Subject Documents shall be observed and complied with in their entirety.


20                                  INSURANCE
UNDERTAKINGS


20.1                        The Borrowers hereby also
undertake with the Creditor Parties to comply or to ensure and procure that the
Manager shall comply with the following provisions of this Clause 20.1 from the
Delivery Date of each Vessel at all times during the Security Period, except as
the Security Trustee may, with the authorisation of the Instructing Group
otherwise permit, at the expense of the Borrowers and upon such terms and
conditions, in such amounts and with such Insurers as shall from time to time
be approved in writing by the Security Trustee and, if so required by the
Security Trustee (but without, as between the Security Trustee and the
Borrowers and/or the Manager, liability on the part of the Security Trustee for
premiums or calls) with the Security Trustee named as co-assured:


20.1.1                                      to insure and keep insured each
Vessel in Euros or such other currency as may be approved in writing by the
Security Trustee for the full insurable value of each Vessel but in no event
for an aggregate amount in respect of the Mortgaged Vessels which is less than
one hundred twenty per cent (120%) of the Facility against fire and usual
marine (including Excess Risks) and War Risks covered by hull and machinery
policies;


20.1.2                                      to enter each Vessel in the name
of the Owner thereof for her full value and tonnage against all Protection and
Indemnity Risks in a protection and indemnity association approved by the
Security Trustee with unlimited liability if available otherwise with the least
limited liability for the time being US$1,000,000,000 in relation to oil
pollution risks and to comply with the rules of such protection and indemnity
association from time to time in effect and if so requested by the Security
Trustee to obtain excess oil spillage and pollution insurance in excess of the
limit of the protection and indemnity association with the highest possible
cover;


20.1.3                                      if either Vessel enters the
territorial waters of the USA (or other jurisdiction having legislation similar
to the US Oil Pollution Act 1990) for any reason whatsoever to take out such
additional insurance to cover such risks as may be necessary in order to obtain
a Certificate of Financial Responsibility from the United States Coastguard;


20.1.4                                      to pay to the Security Trustee
upon first demand all premiums and other amounts payable by the Security
Trustee in effecting a Mortgagees’ Interest Insurance policy (“MII”) and a Mortgagees’ Interest Additional Perils Insurance
(“MAPI”) in relation to the Vessels in
the name of the Security Trustee, upon such terms and conditions and with such
insurers and for such amount as the Security Trustee may require which amount
shall not be less than one hundred and twenty per cent (120%) (as regards MII)
and one hundred and ten per cent (110%) (as regards MAPI) of the Facility;


20.1.5                                      to effect such additional
Insurances that shall (in the reasonable opinion of the Security Trustee) be
necessary or advisable.


20.2                        The Borrowers further undertake
with the Creditor Parties to comply or to ensure that the Manager shall comply
with the following provisions of this Clause 20.2 at all times during the
Security Period except as the Security Trustee may with the authorisation of
the Instructing Group otherwise permit:


20.2.1                                      to renew the Insurances at least
ten (IO) Business Days before the Insurances expire (or give the Security
Trustee evidence satisfactory to it that such Insurances will be renewed upon
their stated expiry dates) and to procure that the Approved Brokers or


 


 


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the Insurers (as the case may
be) shall promptly confirm in writing to the Security Trustee the terms and
conditions of such renewal as and when the same occurs;


20.2.2                                      punctually to pay all premiums,
calls, contributions or other sums payable in respect of the Insurances and to
produce evidence of payment when so required in writing by the Security
Trustee;


20.2.3                                      to arrange for the execution of
such guarantees as may from time to time be required by any Protection and
Indemnity or War Risks association;


20.2.4                                      to procure that the Insurance
Documents shall be deposited with the Approved Brokers or the Insurers (as the
case may be) and that the Approved Brokers or the Insurers (as the case may be)
shall provide the Security Trustee with pro forma copies thereof and shall
issue to the Security Trustee a letter or letters of undertaking In such form
as the Security Trustee shall reasonably require;


20.2.5                                      to procure that the Protection
and Indemnity and/or War Risks associations in which the Vessels are entered
shall provide the Security Trustee with a letter or letters of undertaking in
such form as may be reasonably required by the Security Trustee and shall
provide the Security Trustee with a copy of the certificate of entry and, if so
requested by the Security Trustee, a copy of each certificate of financial
responsibility for pollution by oil or other substances issued by such
Protection and Indemnity and/or War Risks association in relation to the
Vessels;


20.2.6                                      to procure that the interest of
the Security Trustee is endorsed on the Insurance Documents by means of a
Notice of Assignment in the form in Schedule 3 to the Assignment Agreements or
such other form as the Security Trustee may require and that the Insurance Documents
(including all certificates of entry in any Protection and Indemnity and/or War
Risks association) shall contain a loss payable clause during the Security
Period in the form in Schedule 4 or Schedule 5 (as may be appropriate) to the
Assignment Agreements or such other form as the Security Trustee may require;


20.2.7                                      to procure that the Insurance
Documents shall provide that the lien or set off for unpaid premiums or calls
shall be limited to only the premiums or calls due in relation to the Insurances
on the Vessels and the Insurers shall not cancel any of the Insurances by
reason of non-payment of premium or calls due in respect of other vessels or in
respect of other insurances and for fourteen (14) days prior written notice to
be given to the Security Trustee by the Insurers (such notice to be given even
If the Insurers have not received an appropriate enquiry from the Security
Trustee) in the event of cancellation or termination of the Insurances and in
the event of the non-payment of the premium or calls, the right to pay the said
premium or calls within a reasonable time;


20.2.8                                      promptly to provide the Security
Trustee with full information regarding any casualties or damage to a Vessel in
an amount in excess of USD 300,000 or its equivalent in any other currency or
in consequence whereof a Vessel have become or may become a Total Loss;


20.2.9                                      at the request in writing of the
Security Trustee to provide the Security Trustee, at the Borrowers’ cost (but
not more often than once in every twelve (12) months), with a detailed report
issued by a firm of marine Insurance brokers or consultants appointed by the
Borrowers and approved by the Security Trustee in relation to the Insurances;


20.2.10                               not to do any act nor
voluntarily suffer nor permit any act to be done whereby any Insurances shall
or may be suspended or avoided and not to suffer nor permit the Vessels or
either of them to engage in any voyage nor to carry any cargo not permitted
under the Insurances in effect without first obtaining the Insurers’ consent
for such voyage or the carriage of such cargo and complying with such
requirements as to extra premiums or otherwise as the Insurers may prescribe;


 


 


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20.2.11                               not to employ the Vessels or either
of them, or offer the Vessels or either of them to be employed, otherwise than
in conformity with the terms of the Insurance Documents (including any express
or implied warranties they contain), without first obtaining the Insurers’
consent to such other employment and complying with such requirements as to
extra premiums or otherwise as the Insurers may prescribe, or arranging for
additional insurance;


20.2.12                               (without limitation to the
generality of the foregoing) in particular not to permit the Vessels or either
of them to enter or trade to any zone which is declared a war zone by any
government or by the Insurers in respect of War Risks unless there shall have
been effected by the Owners and at their expense such special insurance or the
consent of the Insurers to enter or trade into such zone is obtained and the
relevant Owner(s) is(are) complying with such requirements as to extra premiums
or otherwise as the Insurers may prescribe;


20.2.13                               to procure that all amounts
payable under the Insurances are paid in accordance with the relevant loss
payable clause under Clause 20.2.6 and to apply all amounts as are paid to the
Owners for the purpose of making good the loss and fully repairing all damage
in respect of which the said amounts shall have been received;


20.2.14                               should a Vessel be laid up for
any period, to arrange ‘lay-up’ Insurances for such Vessel during such period,
at their own cost and upon such terms and conditions, in such amounts and with
such Insurers as shall from time to time be approved in writing by the Security
Trustee; and


20.2.15                               to ensure and procure that
during the period prior to the Delivery Date of each Vessel, such Vessel shall
be insured in accordance with the terms of the Shipbuilding Contract in respect
thereof.


21                                  [INTENTIONALLY
LEFT BLANK]


22                                  EVENTS OF
DEFAULT


22.1                        Each of the following events
shall constitute an Event of Default (whether such event shall occur or come
about voluntarily or involuntarily or by operation of law or regulation or
pursuant to, or in compliance with any judgment, decree or order of any court
or other authority):


22.1.1                                      the Borrowers shall fail to pay
when due any amount (whether in respect of principal, interest or otherwise)
under this Agreement or any of the other Finance Documents to which it is a
party on the due date;


22.1.2                                      any representation, warranty or
statement made by any Party (other than the Creditor Parties) in this Agreement
or in the other Finance Documents or any certificate, statement or opinion
delivered or made hereunder or under the other Finance Documents or in
connection herewith or with the other Finance Documents shall be incorrect or
inaccurate when made in any material respect;


22.1.3                                      an event of default or a
potential event of default under any of the Subject Documents (as defined
therein) shall have occurred;


22.1.4                                      the Borrowers or either of them
shall fail duly and punctually to perform or observe any other term of this
Agreement or the other Finance Documents to which each of the Borrowers is a
party and such failure, if capable of remedy, shall continue for fourteen (14)
days after the Security Trustee shall have given to the Borrowers notice of
such failure;


22.1.5                                      except where contested in good
faith by the appropriate proceedings, any other indebtedness of the Borrowers
or either of them shall become due and payable or, with the giving of notice or
lapse of time or both, capable of being declared due and


 


 


47

















 


payable, prior to its stated
maturity by reason of any circumstance entitling the creditor(s) thereof to
declare such indebtedness due and payable and such indebtedness is not paid
within fourteen (14) days thereof;


22.1.6                                      the Borrowers or either of them
shall enter into voluntary or involuntary bankruptcy, liquidation or
dissolution, or shall become insolvent, or an administrator, administrative
receiver, receiver or liquidator shall be appointed of all or a material part
of their undertakings or assets or proceedings are commenced by or against them
under any reorganisation, arrangement, readjustment of debts, dissolution or
liquidation law or regulation;


22.1.7                                      the Borrowers or either of them
shall cease or threaten to cease to carry on its business;


22.1.8                                      there shall be a transfer or
disposal of all or a substantial part of the assets of the Borrowers or either
of them, whether by one or a series of transactions, related or not, without
the prior written consent of the Security Trustee acting with the authorisation
of the Instructing Group;


22.1.9                                      there is a considerable
deterioration in the financial position of the Borrowers or either of them or
any Security Party or any other member of the Group which in the reasonable
opinion of the Security Trustee is likely to affect the ability of the
Borrowers or either of them to pay all amounts due from time to time under this
Agreement and/or the other Finance Documents;


22.1.10                               any governmental or other
consent, licence or authority required to make this Agreement and/or the other
Finance Documents legal, valid, binding, enforceable and admissible in evidence
or required to enable the Borrowers or either of them to perform their/its
duties and discharge their/its liabilities hereunder or under the other Finance
Documents is withdrawn or ceases to be in full force and effect unless the
Borrowers or either of them procure that such consent, licence or authority is
reinstated or re-issued to the satisfaction of the Security Trustee within
fifteen (15) days of the said withdrawal or cessation; or


22.1.11                               any of the events referred to in
Clauses 22.1.1, 22.1.2, 22.1.3, 22.1.4, 22.1.5, 22.1.6, 22.1.7, 22.1.8, 22.1.9
or 21.1.10 occurs, mutatts mutandis, in
respect of any other Security Party;


22.1.12                               any Encumbrance which may for
the time being affect any of the assets of the Borrowers or either of them or
any of the other Security Parties which are considered, in the opinion of the
Security Trustee, to be material becomes enforceable;


22.1.13                               any event occurs which would
result in the crystallisation of any floating charge over the whole or any part
of the assets of the Borrowers or either of them or any other Security Party;


22.1.14                               for any reason the Security
Trustee certifies that in its opinion the security constituted by any of the
Finance Documents is or may be in jeopardy in any respect;


22.1.15                               the country of domicile of the
Borrowers or either of them or of any other relevant jurisdiction affected by
the financing herein provided becomes involved in hostilities or civil war or
there is a seizure of power in that country by unconstitutional means if in any
such case, the event could in the opinion of the Security Trustee reasonably be
expected to have a material adverse effect on the ability of the Borrowers or
either of them to comply with their/its obligations under any Subject Document;


22.1.16                               all or a material part of the
undertaking, assets, rights or revenues of the Borrowers or either of them are
seized, nationalised, expropriated or compulsorily acquired by or under the
authority of any government or
governmental authority without the payment


 


 


48

















 


of compensation equivalent to
their full value in a currency which is freely convertible into Euros;


22.1.17                               there occur any circumstances of
a national or international financial, political, military, social or economic
nature which, in the opinion of the Security Trustee may have a material
adverse effect on the financial condition of the Borrowers or either of them or
of any of the other Security Parties or may imperil, delay or prevent
fulfilment by the Borrowers or either of them of their/its obligations under
any Subject Document;


22.1.18                               any Advance is applied or used
other than strictly for the purposes referred to in Clause 2.2;


22.1.19                               an Owner sells, transfers, disposes
of or encumbers its Vessel or any interest or share therein, or agree so to do
(other than Permitted Encumbrances) without the prior written consent of the
Security Trustee;


22.1.20                               the Subject Documents or any of
them shall cease, in whole or in part, to be valid, binding and enforceable;


22.1.21                               a Vessel is arrested or detained
and such arrest or detention is not released within fourteen (14) days, or an
order for the sale of such Vessel is made by a court of competent jurisdiction
or the Owner thereof ceases to retain possession and/or control of its Vessel
for a period in excess of fourteen (14) days;


22.1.22                               a Vessel is a Total Loss and the
Agent and/or the Security Trustee shall not have received within one hundred
eighty (180) days following the occurrence of the Total Loss (or such earlier
date as the Total Loss claim is paid) from the Insurers the insurance proceeds
paid in conformity with the terms of Clauses 8.1 and 8.2 or an equal amount
from the Borrowers or either of them in case the Insurers do not accept the
relevant Total Loss claim;


22.1.23                               a Vessel is laid up for a period
exceeding thirty (30) days without the prior written consent of the Banks or
the Agent or the Security Trustee, as the case may be;


22.1.24                               either Vessel is not delivered
to and/or accepted by the Owner thereof by the Final Availability Date;


22.1.25                               any one or more of the
Shipbuilding Contracts, the Additional Works’ Contracts, the Refund Guarantees
or any other Subject Document is amended or varied in any material (in the
opinion of the Security Trustee) way or rescinded or terminated for any reason
whatsoever without the Security Trustee’s prior written consent acting with the
authorisation of the Instructing Group;


22.1.26                               the Refund Guarantor fails to
make any payment due by it to the relevant Owner under any Refund Guarantee;


22.1.27                               there is any change in the legal
and/or ultimate beneficial ownership of any of the shares of any of the
Borrowers, AEGEAN SHIPHOLDINGS or the Manager from that existing on the date of
this Agreement as specified in clause 14.1.10;


22.1.28                               there is any change in the
ultimate beneficial ownership of any shares in AEGEAN PETROLEUM NETWORK, which
would result in the persons specified in clause 14.1.10 being the ultimate
beneficial owners of less than thirty five per cent (35%) of the total voting
share capital of AEGEAN PETROLEUM NETWORK or any person (other than those
referred to in clause 14.1.10) having the ultimate beneficial ownership of more
shares in AEGEAN PETROLEUM NETWORK than the persons specified in clause 14.1.10
have at any time;


 


 


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22.1.29                               the shares of AEGEAN PETROLEUM
NETWORK are de-listed or suspended from, or cease to trade (whether temporarily
or permanently) on the New York Stock Exchange; or


22.1.30                               if an Event of Default occurs
under and as defined in the 1./C Facility Agreement or any of the other
security documents executed pursuant thereto.


22.2                        Upon the occurrence of an Event
of Default and at any time thereafter, the Security Trustee may (and if
instructed by an Instructing Group shall) by written notice to the Borrowers -


(a)                                  declare all or any part of the
indebtedness (including such unpaid interest as shall have accrued) immediately
due and payable whereupon the Indebtedness (or the part of the Indebtedness
referred to in the Security Trustee’s notice) shall immediately become due and
payable without any further demand or notice of any kind; and/or


(b)                                  declare that the Commitment of
the Banks shall be cancelled, whereupon the same shall be cancelled; and/or


(c)                                  take such Enforcement Action as
instructed by an Instructing Group


22.3                        The Security Trustee and the
other Creditor Parties may take any other action, exercise any other right or
pursue any other remedy conferred upon the Security Trustee and/or any other
Creditor Party by this Agreement and/or the other Finance Documents or by any
applicable taw or regulation or otherwise as a consequence of such Event of
Default.


23                                  FEES


23.1                        In addition to the fees paid
upon on the date of acceptance of the Commitment Letter by the Borrowers and, inter alias, certain Corporate Guarantors,
the Borrowers have agreed to pay to the Agent for the account of the Arranger
and the Lenders a non refundable fee (the “Arrangement Fee”) equal to 0.3750%
of the aggregate amount of the Total Commitments out of which 1/3rd thereof
shall be paid on the date hereof and an amount equal to the remaining 2/3rds
thereof shall be paid on the Drawdown Date of the Advance first to occur.


23.2                        The Borrowers shall pay to the
Agent for the account of each Bank an availability fee of zero point forty per
cent (0.40%) per annum on the from time to time available and undrawn amount of
each Advance (the “Availability Fee”), such Availability Fee for each Advance
shall accrue from the day to day for a period starting on the date of execution
of the Commitment Letter and ending on the Drawdown Date of the Advance it
relates or on the Applicable Availability Date in respect thereof, whichever is
earlier, shall be calculated upon the exact number of days which have elapsed
on the basis of a year consisting of three hundred sixty (360) days and shall
be payable quarterly in arrears and on the Drawdown Date of the Advance it
relates or the Applicable Availability Date in respect thereof, as the case may
be.


24                                  EXPENSES


24.1                        The Borrowers shall reimburse
each Creditor Party on demand for ail reasonable charges and expenses incurred
by the Creditor Parties or any of them in connection with the preparation,
negotiation and conclusion of this Agreement and the other Finance Documents
(including, but not limited to, all costs and expenses of the Creditor Parties
or any of them in connection with any assignment, transfer and
sub-participation of their rights under this Agreement and the other Finance
Documents) including fees and expenses of legal advisers and reasonable
out-of-pocket expenses.


24.2                        The Borrowers shall reimburse
each Creditor Party on demand for all charges and expenses (including legal
fees) incurred by any Creditor Party in or in connection with the


 


 


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exercise of the Security Trustee’s
and/or the other Creditor Parties’ rights and powers under this Agreement and
the other Finance Documents (including but not limited to the fees and charges
of auditors, brokers, surveyors and legal counsel instructed by the Security
Trustee and/or the other Creditor Parties) and with the actual, attempted or
purported enforcement of, or preservation of rights under, this Agreement or
the other Finance Documents.


25                                  INDEMNITY


The Borrowers hereby jointly and severally undertake and agree to
indemnify the Creditor Parties, upon the Agent’s first demand, from and against
any losses, costs or expenses (including legal expenses) which they incur in
consequence of any Event of Default including (but without limitation) all
losses, premiums and penalties incurred or to be incurred in liquidating or
redeploying deposits made by third parties or funds acquired or arranged to
effect or maintain the Facility or any part thereof.


26                                  STAMP DUTIES


The Borrowers shall pay any and all stamp, registration and similar
taxes and charges of whatsoever nature, which may be payable or determined to
be payable on, or in connection with, the execution, registration,
notarisation, performance or enforcement of this Agreement or the other Finance
Documents. The Borrowers shall indemnify the Creditor Parties against any and
all liabilities with respect to or resulting from delay or omission on the part
of the Borrowers to pay any such taxes.


27                                  VARIATIONS
AND WAIVERS


27.1                        Subject to Clause 27.2, a
document shall be effective to vary, waive, suspend or limit any provision of a
Finance Document, or any Creditor Party’s rights or remedies under such a
provision or the general law, only if the document is signed, or specifically
agreed to by fax by the Borrowers, by the Security Trustee on behalf and with
the consent of the Instructing Group, by the Agent and the Security Trustee in
their own rights, and, if the document relates to a Finance Document to which a
Security Party is party, by that Security Party.


27.2                        However, as regards the
following, Clause 27.1 applies as if the words “by the Security Trustee on
behalf and with the consent of the Instructing Group” were replaced by the
words “by or on behalf and with the consent of every Bank”:


(a)                                  a change in the definition of
the Applicable Margin or in the definition of EURIBOR;


(b)                                  a change to the date for, or the
amount of, any payment of principal, interest, fees, or other sum payable under
this Agreement;


(c)                                  a change to any Bank’s
Commitment;


(d)                                  an extension of the Availability
Period;


(e)                                  a change to the definition of “Instructing
Group” or “Finance Documents”;


(f)                                    a change of the Manager as
manager of the Vessels or the terms and conditions of management of the
Vessels;


(g)                                 a change to the preamble or to
Clauses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15, 17, 22 or 36;


(h)                                 a change to this Clause 27;


 


 


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(i)                                    (I)    any release of, or material variation to, an Encumbrance,
guarantee, indemnity or subordination arrangement set out in a Finance
Document; and


(j)                                    any other change or matter as
regards which this Agreement or another Finance Document expressly provides
that each Bank’s consent is required.


27.3                        Except for a document which
satisfies the requirements of Clauses 27.1 and 27.2, no document, and no act, course of conduct, failure or neglect to act, delay or acquiescence on the part of the Creditor
Parties or any of them (or any
person acting on behalf of any of them) shall result in the Creditor Parties or
any of them (or any person acting
on behalf of any of them) being taken to have
varied, waived, suspended or limited, or being precluded (permanently or temporarily)
from enforcing, relying on or exercising:


(a)                                  a provision of this Agreement or
another Finance Document; or


(b)                                  an Event of Default; or


(c)                                  a breach by the Borrowers or
either of them or any other Security Party of an obligation under a Finance
Document or the general law; or


(d)                                  any right or remedy conferred by
any Finance Document or by the general law;


and there shall not be implied into any Finance Document any term or
condition requiring any such provision to be enforced,
or such right or remedy to be exercised, within a certain or reasonable time.


28                                  PARTIAL
INVALIDITY


In the event that any term or condition of this Agreement is rendered
or declared illegal, invalid or inoperative in whole or in part by any statute,
rule or regulation or any decision of any court or tribunal of competent
Jurisdiction then such determination or declaration shall neither affect nor
impair the validity of any other term or condition of this Agreement which
(save as aforesaid) will remain in full force and effect nor the legality,
validity or enforceability of such term or condition under the law of any other
jurisdiction.


29                                  THE
ARRANGER, THE AGENT, THE SECURITY TRUSTEE, THE L/C BANK AND THE BANKS


29.1                        Each Bank and the L/C Bank irrevocably appoints: (i) the
Arranger as arranger of the Facility and the L/C Facility, (ii) the Agent (acting on the instructions from time
to time of an Instructing Group) shall act as its agent for the purposes of
this Agreement and such of the other Finance Documents to which it may be
appropriate for the Agent to be party and otherwise in connection with the
administration of the Facility and the L/C Facility and all payments and
repayments of the Indebtedness, and (iii) the Security Trustee as security
trustee for the purposes of the Finance Documents and to receive, hold,
administer and enforce the Finance Documents for the benefit of the Banks and
the L/C Bank and each Bank and the L/C Bank authorises the Arranger, the Agent
and the Security Trustee (whether or not by or through employees or agents) to
take such action on such Bank’s or L/C Bank’s behalf and to exercise such
rights, remedies, powers and discretions as are specifically delegated to them
by this Agreement and the other Finance Documents, together with such powers
and discretion’s as are reasonably incidental thereto. The Arranger, the Agent
and the Security Trustee shall not however, have any duties, obligations or
liabilities to the Banks or to the L/C Bank beyond those expressly stated in
this Agreement and the other Finance Documents.


29.2                        Each Servicing Bank shall:


29.2.1                                      promptly send to each of the
other Creditor Parties details of each communication received by it from the
Borrowers under this Agreement or any other Finance


 


 


52

















 


Document, except that details of
any communication relating to a Bank or to the L/C Bank shall be sent only to
that Bank or the L/C Bank as appropriate;


29.2.2                                      (in the case of the Security
Trustee) promptly send to each of the other Creditor Parties a copy of any
legal opinion delivered under this Agreement or any other Finance Document and
of any document or information received by it under Clause 16;


29.2.3                                      subject to the other provisions
of this Clause 29, act in accordance with any instructions from the Instructing
Group or, if so instructed by the Instructing Group, refrain from exercising a
right, power or discretion vested in it under this Agreement or any other
Finance Document; and


29.2.4                                      have only those duties,
obligations and responsibilities, of an administrative nature, expressly
specified in this Agreement and the other Finance Documents.


29.3                        Each Servicing Bank may:


29.3.1                                      perform any of its functions
under this Agreement and the other Finance Documents by or through its personnel
or agents;


29.3.2                                      refrain from doing anything
under this Agreement and the other Finance Documents until it has received
instructions from the Instructing Group as to whether (and, if it is to be, the
way in which) it is to be done and shall in all cases be fully protected when
acting, or (if so instructed) refraining from acting, in accordance with
instructions from the Instructing Group;


29.3.3                                      treat (a) each Bank as the
person entitled to repayment of that part of the Facility of which it is a
lender and has been advanced by it unless all or part of the relevant Banks’
Commitment has been transferred to another bank (or the Agent has received
notice of assignment of all or part of it) in accordance with Clause 31
whereupon such other bank shall be entitled to repayment of its share in the
Commitments advanced and (b) the office notified by each Bank to the Agent for
this purpose before the signing of this Agreement (or, as the case may be, set
out in the relevant Transfer Certificate) as its facility office unless the
Agent has received from such Bank or such other bank a notice of change of
facility office. Each Servicing Bank may act on any such certificate until it
is superseded by a further transfer;


29.3.4                                      refrain from disclosing any
document or information if such disclosure (and may refrain from doing anything
which) would or might in its opinion be contrary to any law, be a breach of any
duty of secrecy or confidentiality or otherwise render it liable to any person
and may do anything which is in its opinion necessary to comply with any law;


29.3.5                                      assume that no Event of Default
or Potential Event of Default has occurred unless an officer of the relevant
Servicing Bank (as the case may be) acquires actual knowledge to the contrary;
and


29.3.6                                      refrain from taking any step (or
further step) to protect or enforce the rights of any person under this
Agreement and the other Finance Documents until it has been indemnified (or
received confirmation that it will be so indemnified) and/or secured to its satisfaction
against any and all costs, losses, expenses or liabilities (including legal
fees) which it would or might sustain or incur as a result.


29.4                        Each Servicing Bank may:


29.4.1                                      rely on any communication,
certificate, legal opinion or other document believed by it to be genuine;


 


 


53

















 


29.4.2                                      rely as to any matter of fact
which might reasonably be expected to be within the knowledge of any person on
a statement by or on behalf of that person;


29.4.3                                      obtain and pay for such legal or
other expert advice or services as may to it seem necessary or desirable and
rely on any such advice;


29.4.4                                      provide to any person engaged to
provide expert advice or services in connection with this Agreement and the
other Finance Documents, copies of all information in its possession or to
which it is entitled under or in connection with this Agreement and the other
Finance Documents; and


29.4.5                                      retain for its own benefit and
without liability to account any fee or other sum receivable by it for its own
account.


29.5                        The Arranger, the Agent and the
Security Trustee each agrees and declares, and each of the Banks and the L/C
Bank acknowledges, that, subject to the terms and conditions of this Clause,
the Agent and the Security Trustee hold the Trust Property on trust for the
Banks and the L/C Bank in accordance with their respective Proportionate
Shares, absolutely. Each of the Banks and the L/C Bank agrees that the
obligations, rights and benefits vested in the Agent and the Security Trustee
shall be performed and exercised in accordance with this Clause. The Agent and
the Security Trustee shall have the benefit of all of the provisions of this
Agreement benefiting them in their capacity as agent and security trustee for
the Banks and the L/C Bank, and all the powers and discretion conferred on
trustees by the Trustee Act 1925 (to the extent not inconsistent with this
Agreement). In addition:-


29.5.1                                      each of the Agent and the
Security Trustee (and any attorney, agent or delegate of the Agent and/or the
Security Trustee) may indemnify itself or himself out of the Trust 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 Trust Property or in connection with the exercise or purported exercise
of the rights, trusts, powers and discretions vested in the Agent and/or the
Security Trustee or any other such person by or pursuant to the Security
Documents or in respect of anything else done or omitted to be done in any way
relating to the Security Documents; and


29.5.2                                      the Banks and the L/C Bank
acknowledge that the Agent and/or the 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


29.6                        The perpetuity period of the
trusts constituted or evidenced by this Agreement shall remain in full force
and effect until the earlier of the expiration of a period of eighty (60) years
from the date of this Agreement and the expiration of the Security Period.


29.7                        The Security Trustee and the
other Servicing Banks may not, except to the extent expressly authorised by the
other provisions of this Agreement or any Finance Document, agree amendments or
modifications to any of the Finance Documents, without the prior written
instructions of the Instructing Group or all the Banks as applicable.


29.8                        With respect to any sums due to
any Servicing Bank for its own account under this Agreement and/or the other
Finance Documents, such Servicing Bank shall have the same rights and powers
under this Agreement as the Banks and the L/C Bank and may exercise the same as
though it were not performing the duties and functions delegated to it under
this Agreement and the term “Bank” or “L/C Bank” shall, unless the context
clearly otherwise indicates, include each Servicing Bank in its individual
capacity.


29.9                        No Servicing Bank shall:


29.9.1                                      (save if otherwise expressly
provided herein) be obliged to request any certificate or opinion under this
Agreement or any of the other Finance Documents unless so


 


 


54

















 


required in writing by the
Instructing Group, in which case the relevant Servicing Bank shall promptly
make the appropriate request or be obliged to make any enquiry as to any
default in the performance or observance of any of the provisions of this Agreement
or the other Finance Documents or as to the existence of an Event of Default
unless such Servicing Bank has actual knowledge thereof or has been notified in
writing thereof by any other
Creditor Party, in which case such Servicing Bank shall promptly notify the
other Creditor Parties of the relevant event or circumstance; or


29.9.2                                      be liable to any other Creditor
Party for any action taken or omitted under or in connection with this
Agreement and the other Finance Documents unless caused by its gross negligence
or wilful misconduct.


29.10                 Each Servicing Bank shall
(subject to its being indemnified to its satisfaction) take such action or, as
the case may be, refrain from taking such action with respect to any Event of
Default of which it has actual knowledge, as the Instructing Group may
reasonably direct.


29.11                 Each Bank and the L/C Bank
acknowledges that It has not relied on any statement, opinion, forecast or
other representation made by any Servicing Bank to induce it to enter into this
Agreement and/or the other Finance Documents and that it has made and will
continue to make, without reliance on any Servicing Bank and based on such
documents as it considers appropriate, its own appraisal of the
creditworthiness of the Borrowers and its own independent investigation of the
financial condition and affairs of the Borrowers in connection with the making
and continuation of the Facility under this Agreement. No Servicing Bank shall
have any duty or responsibility, either initially or on a continuing basis, to
provide the other Creditor Parties with any credit or other information with
respect to the Borrowers.


29.12                 No Servicing Bank shall have any
responsibility to any Bank or any other Creditor Party on account of the
failure of the Borrowers to perform their obligations under this Agreement
and/or the other Finance Documents or for the financial condition of the
Borrowers or for the completeness or accuracy of any statements,
representations or warranties in this Agreement and/or the other Finance Documents
or any document delivered under this Agreement and/or the other Finance
Documents or for the execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of this Agreement and/or the other
Finance Documents or of any certificate, report or other document executed or
delivered under this Agreement and/or the Security Documents or otherwise in
connection with the Facility or any part thereof made available pursuant to
this Agreement or its negotiation or for acting (or, as the case may be,
refraining from acting) in accordance with the instructions of the Instructing
Group. Each Servicing Bank shall be entitled to rely on any communication,
instrument or document believed by it to be genuine and correct and to have been
signed or sent by the proper person and shall be entitled to rely as to legal
or other professional matters on opinions and statements of any legal or other
professional advisers.


29.13                 Each Servicing Bank may, without
any liability to account to the Banks or to the L/C Bank or to any other
Creditor Party, accept deposits from, lend money to, and generally engage in
any kind of banking or trust business with, the Borrowers or any Bank or the L/C
Bank as if it were not a Servicing Bank.


29.14                 Each Bank (to the extent not
being reimbursed by the Borrowers) shall reimburse each Servicing Bank in the
proportion borne by its commitment to the Total Commitments, for the charges
and expenses incurred by such Servicing Bank in connection with the
negotiation, preparation, syndication, execution and, where relevant,
registration of this Agreement and the other Finance Documents and/or in
contemplation of, or otherwise in connection with, the enforcement of, or the
preservation of any rights under, or in carrying out its respective duties
under, this Agreement and the other Finance Documents including (in each case)
the fees and expenses of legal or other professional advisers. Each Bank (to
the extent not being reimbursed by the Borrowers) shall indemnify each Servicing
Bank in the proportion borne by its Commitment to the Total Commitments


 


 


55

















 


against all liabilities,
damages, costs and claims whatsoever incurred by each Servicing Bank in
connection with this Agreement and the other Finance Documents or any action
taken or omitted by such Servicing Bank under this Agreement and the Security
Documents, unless such liabilities, damages, costs or claims arise from such
Servicing Bank’s own gross negligence or wilful misconduct.


29.15                 Each Servicing Bank shall have
full power to determine all questions and doubts arising in relation to the
interpretation or application of any of the provisions of this Agreement or any
of the Security Documents as it affects such Servicing Bank and every such
determination (whether made upon a question actually raised or implied in the
acts or proceedings of such Servicing Bank) shall be conclusive.


29.16                 In its capacity as trustee in
relation to the Finance Documents and in relation to the Trust Property, the
Security Trustee -


29.16.1                               shall, without prejudice to any
of the powers, discretions and immunities conferred upon trustees by law (and
to the extent not inconsistent with the provisions of this Agreement or any of
the other Finance Documents), have all the same powers and discretions as a
natural person acting as the beneficial owner of such property and/or as are
conferred upon the Security Trustee by this Agreement and/or any other Finance
Document provided that the Security Trustee may only exercise such powers and
discretions to the extent that the Security Trustee is authorised so to
exercise the same in accordance with the provisions of this Agreement and/or
any other Finance Document;


29.16.2                               shall be entitled to invest
moneys forming part of the Trust Property and which, in the opinion of the
Security Trustee may not be paid out promptly following receipt in the name or
under the control of the Security Trustee in any of the investments for the
time being authorised by law for the investment by trustees of trust moneys or
in any other property or investments whether similar to the aforesaid or not or
by placing the same on deposit in the name or under the control of the Security
Trustee as the Security Trustee may think fit without being under any duty to
diversify its investments and the Security Trustee may at any time vary or
transpose any such property or investments for or into any others of a like
nature and shall not be responsible for any loss due to depreciation in value
or otherwise of such property or investments (and on the basis that any
investment of any part or all of the Trust Property may, at the discretion of
the Security Trustee be made or retained in the names of nominees); and


29.16.3                               may, in the conduct of Its
obligations under and in respect of the Finance Documents (otherwise than in
relation to its right to make any declaration, determination or decision),
instead of acting personally, employ and pay any agent (whether being a lawyer
or any other person) to transact or concur in transacting any business and to
do or concur in doing any acts required to be done by the Security Trustee
(including the receipt and payment of money) on the basis that -


29.16.3.1                                             any such agent engaged in any
profession or business shall be entitled to be paid all usual professional and
other charges for business transacted and acts done by him or any partner or
employee of his in connection with such trusts; and


29.16.3.2                                             the 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 agent if the Security Trustee shall have exercised
reasonable care in the selection and instructions of such agent.


30                                  RETIREMENT
OF THE SERVICING BANKS


30.1                        Each Servicing Bank may and if
requested by the Instructing Group shall (which the Instructing Group may only
request if they have good cause to do so) retire from its appointment under
this Agreement and the other Finance Documents at any time and by


 


 


56

















 


giving not less than 30 days
prior written notice to that effect to each of the other parties hereto,
provided that no such retirement shall be effective until a successor for such
Servicing Bank is appointed in accordance with the following provisions of this
Clause 30:


30.1.1                                      If any Servicing Bank gives
notice of its retiring pursuant to Clause 30.1, during the period of such
notice:


(a)                                  the retiring Servicing Bank may
appoint as successor Servicing Bank a banking corporation or financial
institution or related company owned by such retiring Servicing Bank by at
least 50% or another Bank or a banking corporation or financial institution or
related company owned by one of the Banks by at least 50%, without requiring
for such appointment the prior written consent and/or consultation of the
Instructing Group and/or the Borrowers, or such appointment not being
applicable;


(b)                                  the Instructing Group may
appoint as successor Servicing Bank any of the Banks, or failing such appointment;


(c)                                  the retiring Servicing Bank may
appoint as successor Servicing Bank any reputable and experienced bank or
financial institution or related company approved by the Instructing Group; or


30.1.2                                      if during the period of such
notice no successor is so appointed pursuant to sub-clauses 30.1.1(a), (b) and
(c), the retiring Servicing Bank may appoint a successor Servicing Bank itself
any reputable and experienced bank or financial institution nominated by such
retiring Servicing Bank;


and either the provisions of Clause 30.1.1 or 30.1.2 have been complied
with.


30.2                        Upon any such successor as
aforesaid being appointed, the retiring Servicing Bank shall be discharged from any further obligation
under this Agreement and the other Finance Documents and its successor and each
of the other parties to this Agreement and/or the other Finance Documents shall
have the same rights and obligations among themselves as they would have had if
such successor had been a party to this Agreement and/or the other Finance Documents
in place of the retiring Servicing Bank and the parties to this Agreement
and/or the other Finance Documents and the successor agent, successor paying
agent and the security trustee shall, prior to such retirement, execute such
amendments to this Agreement and/or the other Finance Documents as may be
necessary as a result of such substitution.


31                                  ASSIGNMENTS
AND TRANSFERS


31.1                        This Agreement shall be binding
upon and endure to the benefit of each party hereto and its successors and
permitted assigns and transferees.


31.2                        No Borrower (in any of its
capacities) shall be entitled to assign or transfer all or any of its rights,
benefits and obligations hereunder or under the Subject Documents.


31.3                        Any Bank may at any time assign
to any one or more banks or other financial institutions all or any part of
such Bank’s rights and benefits hereunder or transfer in accordance with Clause
31.5 all or any part of such Bank’s rights, benefits and obligations to any
bank or financial institution.


31.4                        If any Bank assigns all or any
of its rights and benefits hereunder in accordance with Clause 31.3, then,
unless and until the, relevant Bank, as transferor, the transferee and the
Borrowers have duly completed and duly executed a Transfer Certificate in
accordance with Clause 31.5, the other parties hereto shall not be obliged to
recognise such assignee as having the rights against each of them which it
would have had if it had been a party hereto.


 


 


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31.5                        Subject
to the provisions of Clauses 31.6, 31.7, 31.8 and 31.9, if any Bank wishes to
transfer all or any part of its Commitment as contemplated in Clause 31.3, then
such transfer may be effected by the delivery to the Agent of a duly completed
and duly executed Transfer Certificate and upon the later of the date of
receipt by the Agent of such Transfer Certificate and the date of transfer
specified therein:


(a)                                  to
the extent that the Bank in question seeks to transfer its rights and/or
obligations, the Borrowers (on the one hand) and the Bank in question (on the
other) shall be released from all further obligations towards the other;


(b)                                  the
Borrowers (on the one hand) and the Transferee (on the other) shall assume
obligations towards the other identical to those released pursuant to Clause
31.5(a);


(c)                                  the
Commitment of such Bank party to such Transfer Certificate shall be reduced by
the amount expressed in such Transfer Certificate to be transferred to the
Transferee;


(d)                                  the
Transferee party to such Transfer Certificate shall become a party to this
Agreement as a Bank entitled to the rights and liable to observe the
obligations of a Bank with a Commitment equal to the amount expressed in such
Transfer Certificate to be transferred to such Transferee; and


(e)                                  the
other parties hereto shall acquire the same rights and benefits (including but
not limited to rights in the trust declared by the Security Trustee in Clause
29) and assume the same obligations between themselves vis-à-vis the Transferee
as they would have acquired and assumed had such Transferee been an original
party hereto as the Bank with a Commitment equal to the amount expressed in
such Transfer Certificate to be transferred to the Transferee.


31.6                        Each
of the parties hereto confirms that (a) the delivery to a Transferee of a
Transfer Certificate signed by a Bank constitutes an irrevocable offer by each
of the parties hereto to accept such Transferee (subject to the conditions set
out herein) as a Bank party hereto with the rights and obligations so expressed
to be transferred and (b) such offer may be accepted by such Transferee by the
execution of such Transfer Certificate by such Transferee and (c) the
provisions of this Agreement shall apply to the contract between the parties
thereto arising as a result of the acceptance of such offer.


31.7                        The
Transferee and all other relevant parties undertake to execute all further
documents, at the expense of the Transferee, to give effect and validity to the
required transfer of all interests in the Trust Property and Security Documents
in consequence of the Transfer Certificate.


31.8                        On
the date on which a transfer takes effect pursuant to this Clause 31 the
Transferee in respect of such transfer shall pay to the Agent for its own
account a fee of US$1,000.


31.9                        The
Agent shall not be obliged to accept any Transfer Certificate received by it
hereunder and no such Transfer Certificate may take effect on any day on or
after the receipt by the Agent of the Notice of Drawdown and prior to the
Drawdown Date.


31.10                 The
Borrowers, the Arranger, the Agent, the Security Trustee, each Bank and the Lit
Bank irrevocably authorises the Agent to sign Transfer Certificates on its
behalf.


31.11                 The
Agent shall promptly notify the other Creditor Parties of the receipt by it of
any Transfer Certificate, identifying in such notice the parties thereto in
their respective capacities and the portion of the Commitment transferred (as
specified in such Transfer Certificate}.


31.12                 The
Agent shall be fully entitled to rely on any Transfer Certificate delivered to
it in accordance with the foregoing provisions which is complete and regular on
its face as


 


58

















 


regards its contents and
purportedly signed on behalf of the Bank and the Transferee and shall have no
liability or responsibility to any party as a consequence of placing reliance
upon and acting in accordance with any such Transfer Certificate.


31.13                 Any
Bank may provide or disclose to any actual or potential Transferee or assignee
or to any person who may otherwise enter into contractual relations with such
Bank in relation to this Agreement, a copy of this Agreement, copies of all
information provided by the Borrowers pursuant to each Subject Document to
which it is party, details of drawings made by the Borrowers thereunder,
information regarding the performance of the Borrowers of their obligations
thereunder.


31.14                 A
Bank may change its lending office by giving notice to the Agent and the change
shall become effective on the later of:


(a)                                  on
the date of which the Agent receives a notice; and


(b)                                  the
date, if any, specified in the notice as the date on which the change shall
come into effect.


31.15                 On
receiving such a notice, the Agent shall notify the Borrowers and the other
Creditor Parties and until the Agent receives such a notice, it shall be
entitled to assume that a Bank is acting through its lending office of which
the Agent last had notice.


32                                  LANGUAGE


Each
document, instrument, certificate or statement referred to herein or to be
delivered hereunder by the Borrowers shall, if not in the English language, be
accompanied by an English translation thereof certified by the Borrowers, which
translation shall prevail in the case of conflict with the non-English version.


33                                  NON-IMMUNITY


33.1                        The
Borrowers do not have any right of Immunity from set-off, suit or execution,
attachment or other legal process under the laws of England or any other
jurisdiction.


33.2                        The
exercise by the Borrowers of their rights and performance and discharge of
their duties and liabilities hereunder will constitute commercial acts done and
performed for private and commercial purposes.


33.3                        To
the extent that the Borrowers may in any jurisdiction, in which proceedings may
at any time be taken for the enforcement of this Agreement and/or any of the
other Finance Documents, claim for themselves or their assets immunity from
suit, judgment, execution, attachment (whether in aid of execution, before
judgment or otherwise) or other legal process, and to the extent that in any
such jurisdiction there may be attributed to itself or its assets any such
immunity (whether or not claimed), the Borrowers hereby irrevocably agree not
to claim and hereby irrevocably waive any such immunity to the full extent permitted
by the laws of such jurisdiction.


34                                  NOTICES


34.1                        Unless
otherwise specifically provided, any notice under or in connection with any
Finance Document shall be given by letter or fax; and references in the Finance
Documents to written notices, notices in writing and notices signed by
particular persons shall be construed accordingly.


34.2                        A
notice shall be sent:


(a)                                  to
the Borrowers:         C/o AEGEAN
BUNKERING SERVICES INC.


                                                        42,
Hadjikyriakou Street 


 


59

















 


Piraeus 185 38, Greece 


Fax nr: + (30 210) 458 6242


(b)                                  to
a Bank:                                                                  At
the address below its name in Schedule 1 or (as 

the case may require) in the relevant Transfer Certificate


(c)                                  to
the Arranger, the Agent

and

the Security Trustee:                                                   AEGEAN
BALTIC BANK S.A.


28 Diligianni Street

145 62 Kifissia

Greece

Fax No: + (30 210) 623 4192/3


 


(d)                                  to
the L/C Bank:                                                                                HSH
NORDBANK AG 

Gerhart-Hauptmann-Platz 50 

20095 Hamburg

Germany

Fax Nr: 004940 333334118


or
to such other address as the relevant party may notify the Servicing Banks or,
if the relevant party is a Creditor Party or a Servicing Bank, the L/C Bank,
the Borrowers, the other Creditor Parties and the Security Parties.


34.3                        Subject
to Clauses 34.4 and 34.5:


34.3.1                                      a
notice which is delivered personally or posted shall be deemed to be served,
and shall take effect, at the time when it is delivered;


34.3.2                                      a
notice which is sent by fax shall be deemed to be served, and shall take
effect, 2 hours after its transmission is completed.


34.4                        However,
if under Clause 34.3 a notice would be deemed to be served:


34.4.1                                      on
a day which is not a Business Day in the place of receipt; or


34.4.2                                      on
such a Business Day, but after 5 p.m. local time;


the
notice shall (subject to Clause 34.5) be deemed to be served, and shall take effect,
at 9 a.m. on the next day which is such a Business Day.


34.5                        Clauses
34.3 and 34.4 do not apply if the recipient of a notice notifies the sender
within one hour after the time at which the notice would otherwise be deemed to
be served that the notice has been received in a form, which is illegible in a
material respect.


34.6                        A
notice under or in connection with a Finance Document shall not be invalid by
reason that the manner of serving it does not comply with the requirements of
this Agreement or, where appropriate, any other Finance Document under which it
is served if the failure to serve it in accordance with the requirements of
this Agreement or other Finance Document, as the case may be, has not caused
any party to suffer any significant loss or prejudice.


34.7                        Any
notice under or in connection with a Finance Document shall be in English.


34.8                        In
this Clause “notice” includes any demand, consent, authorisation, approval,
instruction, waiver or other communication.


35                                  SUPPLEMENTAL


 


60

















 


35.1                        The
rights and remedies which the Finance Documents give to each Creditor Party
are:


35.1.1                                      cumulative;


35.1.2                                      may
be exercised as often as appears expedient; and


35.1.3                                      shall
not, unless a Finance Document explicitly and specifically states so, be taken
to exclude or limit any right or remedy conferred by any law.


35.2                        If
any provision of a Finance Document is or subsequently becomes void,
unenforceable or illegal, that shall not affect the validity, enforceability or
legality of the other provisions of that Finance Document or of the provisions
of any other Finance Document.


35.3                        A
Finance Document may be executed in any number of counterparts.


35.4                        A
person who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any
term of this Agreement.


36                                  LAW AND JURISDICTION


36.1                        This
Agreement shall in all respects be governed by, and construed in accordance
with, English law.


36.2                        Subject
to Clause 36.3, the courts of England shall have exclusive jurisdiction to
settle any disputes, which may arise out of or in connection with this
Agreement.


36.3                        Clause
36.2 is for the exclusive benefit of the Creditor Parties, each of which
reserves the right


36.3.1                                      to
commence proceedings in relation to any matter which arises out of or in
connection with this Agreement in the courts of the Republic of Greece and/or
any country other than England or Greece and which have or claim jurisdiction
to that matter; and


36.3.2                                      to
commence such proceedings in the courts of any such country or countries
concurrently with or In addition to proceedings in England or Greece or without
commencing proceedings in England or Greece.


The
Borrowers shall not commence any proceedings in any country other than England
in relation to a matter, which arises out of or in connection with this
Agreement.


36.4                        Each
of the Borrowers irrevocably appoints Messrs. RICHES CONSULTING, presently at
Old Jarretts Farm House, Brantbridge Lane, Balcombe, West Sussex, RH176JR,
England to act as its agent to receive and accept on its behalf any process or
other document relating to any proceedings in the English courts which are
connected with this Agreement.


36.5                        Each
of the Borrowers irrevocably designates and appoints Mr. SPYRIDON FOKAS, an
attorney-at-law with offices at 53, Filonos Street, Piraeus, Greece, as agent
for the service of process in Greece (“antilditos”)
and agrees to consider any legal process or any demand or notice
made served on behalf of the Creditor Parties and/or the Security Trustee on
the said agent as being made to the Borrowers. The designation of such an
authorized agent (“antiklitoe) shall
remain irrevocable until all Indebtedness shall have been paid in full in
accordance with the terms of this Agreement and the other Finance Documents.


36.6                        Each
of the Borrowers 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, and any claim that those proceedings have been brought in an
inconvenient or 


 


61

















 


inappropriate forum, and irrevocably agrees that a judgment in
any proceedings commenced in any such court shalt be conclusive and binding on
it and may be enforced in the courts of any other jurisdiction.


36.7                        Nothing
in this Clause 36 shall exclude or limit any right which any Creditor Party may
have (whether under the law of any country, an international convention or
otherwise) with regard to the bringing of proceedings, the service of process,
the recognition or enforcement of a judgment or any similar or related matter
in any jurisdiction.


36.8                        In
this Clause 36, “proceedings” means proceedings of any kind, including an application
for a provisional or protective measure or enforcement court order (diatagi piiromis).


37                                  THIS AGREEMENT AND THE OTHER FINANCE DOCUMENTS


In
case of any conflict between the provisions of this Agreement and any of the
other Finance Documents the provisions of this Agreement shall prevail.


AS
WITNESS the hands of the duty authorised representatives of the parties hereto
the day and year first before written,


THE
BORROWERS


	
  Signed by

  _____________________________

  The duly authorized attorney-in-fact

  for and on behalf of

  OCEAN
  DYNAMIC CORP.

  in the presence of:

  	
  )

  )

  )

  )

  )

  )

  )

  
	
   

  	
   

  
	
  Signed by

  _____________________________

  The duly authorized attorney-in-fact

  for and on behalf of

  SEA
  GLOBAL S.A.

  in the presence of:

  	
  )

  )

  )

  )

  )

  )

  )

  



THE
BANKS


	
  Signed by

  _____________________________

  The duly authorized attorney-in-fact

  for and on behalf of

  HSH
  NORDBANK AG

  in its capacity as Bank

  in the presence of:

  	
  )

  )

  )

  )

  )

  )

  )

  



 


 


62

















 


	
   

  	
   

  
	
  Signed by

  _____________________________

  The duly authorized attorney-in-fact

  for and on behalf of

  AEGEAN
  BALTIC BANK S.A.

  in its capacity as Bank

  in the presence of:

  	
  )

  )

  )

  )

  )

  )

  )

  
	
   

  	
   

  



THE L/C
BANK


	
  Signed by

  _____________________________

  The duly authorized attorney-in-fact

  for and on behalf of

  HSH NORDBANK
  AG

  in its capacity as the L/C Bank

  in the presence of:

  	
  )

  )

  )

  )

  )

  )

  )

  
	
   

  	
   

  
	
  Signed by

  _____________________________

  The duly authorized attorney-in-fact

  for and on behalf of

  OCEAN
  DYNAMIC CORP.

  in the presence of:

  	
  )

  )

  )

  )

  )

  )

  )

  



THE
ARRANGER, THE AGENT AND SECURITY TRUSTEE


	
  Signed by

  _____________________________

  The duly authorized attorney-in-fact

  for and on behalf of

  AEGEAN
  BALTIC BANK S.A.

  in its capacity as the Arranger,

  the Agent and Security Trustee

  in the presence of:

  	
  )

  )

  )

  )

  )

  )

  )

  
	
   

  	
   

  



 


 


SK 23250 0002 821903 v2


 


 


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