Exhibit 10.38

 

Dated this 17 May 2012

 

BY:

 

ARLINGTON TANKERS LTD

 

IN FAVOUR OF:

 

NORDEA BANK FINLAND plc,

NEW YORK BRANCH, as Collateral Agent

and Administrative Agent

 

in respect of the shares of:

 

VICTORY LTD.

 




 

SECONDARY SHARE CHARGE

273 Credit Facility

 




 

Conyers Dill & Pearman Limited

Barristers & Attorneys

Hamilton, Bermuda

VER/Doc Ref: 1308175

 

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TABLE OF CONTENTS

 

	
1.
    	
INTERPRETATION
    	
4
    
	
2.
    	
CHARGOR’S   REPRESENTATIONS AND WARRANTIES
    	
7
    
	
3.
    	
CHARGOR’S   COVENANTS
    	
8
    
	
4.
    	
SECURITY
    	
9
    
	
5.
    	
DEALINGS   WITH CHARGED PROPERTY
    	
10
    
	
6.
    	
PRESERVATION   OF SECURITY
    	
11
    
	
7.
    	
ENFORCEMENT   OF SECURITY
    	
13
    
	
8.
    	
FURTHER   ASSURANCES
    	
16
    
	
9.
    	
INDEMNITIES
    	
17
    
	
10.
    	
POWER   OF ATTORNEY
    	
18
    
	
11.
    	
EXPENSES
    	
19
    
	
12.
    	
NOTICES
    	
19
    
	
13.
    	
ASSIGNMENTS
    	
20
    
	
14.
    	
MISCELLANEOUS
    	
21
    
	
15.
    	
LAW   AND JURISDICTION
    	
21
    


 

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THIS SHARE CHARGE is made on the 17 May 2012

 

BY:

 

Arlington Tankers Ltd, a company incorporated under the laws of Bermuda and having its registered office at Clarendon House, 2 Church Street, Hamilton HM 11 (the “Chargor”); and

 

IN FAVOUR OF:

 

Nordea Bank Finland plc, New York Branch, as collateral agent and administrative agent, a company incorporated under the laws of Finland, acting through its New York branch, with its registered address at 437 Madison Avenue, 21st Floor, New York, NY 10022 (the “Chargee”).

 

WHEREAS:

 

(A)                               By a loan agreement dated on or around the date of this Charge (as amended, restated, modified and/or otherwise supplemented from time to time) (the “Loan Agreement”) made among General Maritime Subsidiary II Corporation, a Marshall Islands corporation (the “Borrower”), General Maritime Corporation, a Marshall Islands corporation (the Parent), General Maritime Subsidiary Corporation, a Marshall Islands corporation, the Chargor, the Chargee, as collateral agent and administrative agent and the other parties from time to time party thereto, the Chargee agreed to provide certain loan facilities to the Borrower on the terms and conditions therein set out.

 

(B)                               The Borrower may at any time and from time to time after the date hereof enter into, or guarantee the obligations of one or more entities that may become a pledgor under a pledge agreement dated on or around the date of this Charge.

 

(C)                               As security for the obligations of the Borrower under the Loan Agreement, the Chargor has agreed to charge, inter alia, its interest in all of the shares beneficially owned by the Chargor in Victory Ltd. a company incorporated under the laws of Bermuda (the “Company”).

 

(D)                               The Company is authorised to issue 12,000 shares having a par value of US$1.00 each of which has been issued as fully paid to, is beneficially owned by, and is registered in the name of the Chargor.

 

(E)                                It is a condition precedent to the effectiveness of the Loan Agreement that, among other things, the Chargor shall execute this Charge in favour of the Chargee and the same is executed by the Chargor in consideration of the Loan Agreement providing for the continuation of outstanding term loans, the

 

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conversion of revolving commitments into term loans to the Borrower and the exchange of the termination value of and interest on a certain swap for a term loan to the Borrower and for other good and valuable consideration (the sufficiency of which the Chargor hereby acknowledges).

 

(F)                                 This Charge is subject to the provisions of the Intercreditor Agreements.

 

NOW THIS CHARGE WITNESSES as follows:

 

1.                              INTERPRETATION

 

1.1               In this Charge, unless the context otherwise requires, the following words and expressions shall have the following meanings:

 

	
“Business Day”
    	
 
    	
has the same meaning as in the Loan Agreement;
    
	
 
    	
 
    	
 
    
	
“Charge”
    	
 
    	
means this secondary share charge;
    
	
 
    	
 
    	
 
    
	
“Charged Property”
    	
 
    	
means all of the issued shares of the Company as described in Recital   (D) and all other shares in the Company from time to time legally or   beneficially owned by the Chargor during the Security Period (together the   “Charged Shares”) and all dividends or other distributions, interest and   other moneys paid or payable after the date hereof in connection therewith   and all interests in and all rights accruing at any time to or in respect of   all or any of the Charged Shares and all and any other property that may at   any time be received or receivable by or otherwise distributed to the Chargor   in respect of or in substitution for, or in addition to, or in exchange for,   or on account of, any of the foregoing, including, without limitation, any   shares or other securities resulting from the division, consolidation,   change, conversion or reclassification of any of the Charged Shares, or the   reorganization, merger or consolidation of the Company with any other body
    


 

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corporate, or the occurrence of any event which results in the   substitution or exchange of the Charged Shares, and all proceeds of any and   all of the foregoing;
    
	
 
    	
 
    	
 
    
	
“Charged Shares”
    	
 
    	
has the meaning assigned thereto in the definition of Charged   Property and beneficial owner thereof;
    
	
 
    	
 
    	
 
    
	
“Discharge of Priority Obligations”
    	
 
    	
means the discharge of the First Priority Obligations as such term is   defined in the Intercreditor Agreements;
    
	
 
    	
 
    	
 
    
	
“Event of Default”
    	
 
    	
has the meaning attributed to such term in Section 10 of the Loan Agreement;
    
	
 
    	
 
    	
 
    
	
“Intercreditor Agreements”
    	
 
    	
means: (i) the intercreditor agreement dated on or around the   date of this Charge entered into among the Chargor, the Chargee, in its   capacity as first priority agent and collateral agent, the second priority   agent, the Parent, General Maritime Subsidiary Corporation, as second   priority borrower, General Maritime Subsidiary II Corporation, as first   priority borrower, each Subsidiary Guarantor party thereto (as defined in the   Loan Agreement) and the other parties thereto; and (ii) the secondary   intercreditor agreement dated on or around the date of this Charge entered   into among the Chargor, the Chargee, in its capacity as second priority agent   and collateral agent, and the first priority agent, General Maritime Corporation,   General Maritime Subsidiary Corporation, as first priority borrower, General   Maritime Subsidiary II Corporation, as second priority borrower, each   Subsidiary Guarantor and the other parties thereto;
    
	
 
    	
 
    	
 
    
	
“Loan”
    	
 
    	
has the meaning assigned to such term in the Loan Agreement;
    


 

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“Parties”
    	
 
    	
means the parties to this Charge collectively; “Party” means any one   of them;
    
	
 
    	
 
    	
 
    
	
“Secured Obligations”
    	
 
    	
means all of the present and future payments and other obligations of   the Chargor to the Chargee and the Borrower under this Charge, the Loan   Agreement and the Credit Documents (as defined in the Loan Agreement);
    
	
 
    	
 
    	
 
    
	
“Security Interest”
    	
 
    	
means any charge, mortgage, pledge, lien, security interest or other   encumbrance; and
    
	
 
    	
 
    	
 
    
	
“Security Period”
    	
 
    	
means the period commencing on the date of execution of this Charge   and terminating upon discharge of the security created by this Charge by   payment in full of the Secured Obligations.
    


 

1.2               In this Charge unless the context otherwise requires:

 

(a)                references to statutory provisions shall be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time and shall include references to any provisions of which they are re-enactments (whether with or without modification);

 

(b)                references to Clauses and schedules are references to Clauses hereof and schedules hereto; references to sub-Clauses or paragraphs are, unless otherwise stated, references to sub-Clauses of the Clauses hereof or paragraphs of the schedule in which the reference appears;

 

(c)                 references to the singular shall include the plural and vice versa and references to the masculine shall include the feminine and/or neuter and vice versa;

 

(d)                references to persons shall include companies, partnerships, associations and bodies of persons, whether incorporated or unincorporated;

 

(e)                 references to assets include property, rights and assets of every description; and

 

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(f)                  references to any document are to be construed as references to such document as amended or supplemented from time to time.

 

2.                              CHARGOR’S REPRESENTATIONS AND WARRANTIES

 

The Chargor hereby represents and warrants to the Chargee that:

 

2.1               The authorised share capital of the Company consists of the shares described in Recital (D) hereof and such shares are beneficially owned and registered as described in the said recital;

 

2.2               The Chargor is a company duly organised, validly existing and in good standing under the laws of Bermuda;

 

2.3               The Company is under no obligation, nor is it liable to become under any obligation, to issue any further shares nor, without limiting the generality of the foregoing, has the Company created any option to acquire shares in the Company or any securities exchangeable for or convertible into shares of the Company;

 

2.4               Entry into this Charge by the Chargor and enforcement hereof by the Chargee will not contravene the terms of any agreement to which the Chargor is bound or to which the Charged Property are subject or the memorandum of association or bye-laws of the Company;

 

2.5               The Chargor is the legal and beneficial owner of all of the Charged Property free from any Security Interest (other than those created by this Charge, any other Permitted Liens (as defined in Loan Agreement) or in accordance with the Intercreditor Agreements) and any options, warrants or rights of pre-emption;

 

2.6               The Chargor has full power and authority (i) to be the legal and beneficial owner of the Charged Property, (ii) to execute and deliver this Charge and (iii) to comply with the provisions of, and perform all its obligations under, this Charge;

 

2.7               This Charge constitutes the Chargor’s legal, valid and binding obligations enforceable against the Chargor in accordance with its terms except as such enforcement may be limited by any relevant bankruptcy, insolvency, administration or similar laws affecting creditors’ rights generally;

 

2.8               The entry into and performance by the Chargor of this Charge does not violate (i) any law or regulation of any governmental or official authority, or (ii) any agreement, contract or other undertaking to which the Chargor is a party or which is binding upon the Chargor or any of its assets;

 

2.9               All consents, licences, approvals and authorisations required in connection with the entry into, performance, validity and enforceability of this Charge have been obtained and are in full force and effect; and

 

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2.10        The Chargor has taken all corporate and other action required to approve its execution, delivery and performance of this Charge.

 

3.                      CHARGOR’S COVENANTS

 

The Chargor hereby covenants with the Chargee:

 

3.1               To pay all amounts, interests, expenses, claims, liabilities, losses, costs, duties, fees, charges or other moneys as are stated in this Charge to be payable by the Chargor or to be recoverable from the Chargor by the Chargee (or in respect of which the Chargor agrees in this Charge to indemnify the Chargee) at the times and in the manner specified in this Charge provided that the liability of the Chargor under this Clause shall be limited to the amount realised by a disposal of the Charged Property by or on behalf of or with the consent of the Chargee;

 

3.2               To pay interest on any such amounts, interests, expenses, claims, liabilities, losses, costs, duties, fees, charges or other moneys referred to in Clause 3.1 from the date on which the relevant amount, interest, expense, liability, loss, cost, duty, fee, charge or other money is paid or discharged by the Chargee until the date of reimbursement thereof to the Chargee (both before and after any relevant judgment) at the rate described in Section 2.07 of the Loan Agreement such interest to be compounded in accordance with Section 2.07 of the Loan Agreement and payable on demand;

 

3.3               That the Chargor will on demand of the Chargee and at the expense of the Chargor, execute and deliver to the Chargee or to such person or persons as the Chargee may nominate such additional charge or charges of the Charged Property (or any part thereof) for the purpose of further securing the payment and discharge of all Secured Obligations, each such additional charge to be in such form as the Chargee may reasonably require;

 

3.4               That the Chargor will not without the prior written consent of the Chargee:

 

(a)                permit any person other than the Chargor, the Chargee or any transferee nominated by the Chargee on enforcement of this Charge to be the registered holder of any of the Charged Shares;

 

(b)                permit any variation of the rights attaching to the Charged Shares;

 

(c)                 take or permit any action which might result in an increase or reduction in the authorised share capital of the Company or the number of shares that the Company is authorised to issue or the issued shares or share capital of the Company;

 

(d)                effect or permit the Company to be continued to another jurisdiction outside of Bermuda;

 

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(e)                 effect or permit the appointment of any new or further directors or officers of the Company;

 

(f)                  effect or permit any scheme of arrangement, merger, amalgamation or other reorganisation applicable to the Company; or

 

(g)                 save in accordance with Clause 8.2, permit any amendment to the memorandum of association or bye-laws of the Company.

 

4.                      SECURITY

 

4.1               In consideration of the Chargee making the Loan available to the Borrower and as a continuing security for the Secured Obligations, the Chargor as legal and beneficial owner hereby assigns and agrees to assign to the Chargee all benefits present and future, actual and contingent accruing in respect of the Charged Property and all the Chargor’s right, title and interest to and in the Charged Property including (without limitation) all voting and other consensual powers pertaining to the Charged Shares and hereby charges and agrees to charge in favour of the Chargee all of its interest in the Charged Property by way of a first fixed charge. The security created pursuant to this Clause 4.1 is subject to the Intercreditor Agreements.

 

4.2               Subject to the Intercreditor Agreements, the Chargor hereby agrees to deliver, or cause to be delivered, to the Chargee within 14 days of the Discharge of Priority Obligations:

 

(a)                duly executed undated share transfers in respect of the Charged Shares in favour of the Chargee or its nominees in the form set out in Schedule 1;

 

(b)                all share certificates representing the Charged Shares;

 

(c)                 an executed undated proxy made in respect of the Charged Shares in favour of the Chargee in respect of all general meetings of the Company in the form set out in Schedule 2;

 

(d)                executed but undated letters of resignation and release together with letters of authority to date the same from each of the directors, alternate directors and officers of the Company in the form set out in Schedule 3; and

 

(e)                 an undertaking from the Company to register transfers of the Charged Shares to the Chargee or its nominee in the form set out in Schedule 4.

 

4.3               If consent is given in accordance with Clause 3.4(c) the Chargor will deliver, or cause to be delivered, to the Chargee immediately upon the issue of any further Charged Shares, the items listed in Clauses 4.2(a), 4.2(b), 4.2(c) and 4.2(e) in respect of all such further Charged Shares.

 

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4.4               If consent is given in accordance with Clause 3.4(e) the Chargor will deliver, or cause to be delivered, to the Chargee immediately upon the appointment of any further director, alternate director or officer of the Company an undated, signed letter of resignation from such further director, alternate director or officer in a form acceptable to the Chargee.

 

4.5               The Chargor hereby covenants that during the Security Period it will remain the legal and the beneficial owner of the Charged Property (subject only to the Security Interests hereby created or otherwise created in favour of the Chargee or in accordance with the terms of the Intercreditor Agreements) and that it will not sell, assign, transfer or otherwise dispose of any of its interest in the Charged Property (other than with respect to the dividend or distribution payments described in Clause 5.1(b), without the prior consent in writing of the Chargee.

 

4.6               The Chargor shall remain liable to perform all the obligations assumed by it in relation to the Charged Property and the Chargee shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Chargor to perform its obligations in respect thereof.

 

4.7               Upon the Chargee being satisfied that the Secured Obligations have been unconditionally and irrevocably paid and discharged in full, and following a written request therefor from the Chargor, the Chargee will, subject to being indemnified to its reasonable satisfaction for the costs and expenses incurred by the Chargee in connection therewith, release the security constituted by this Charge.

 

5.                      DEALINGS WITH CHARGED PROPERTY

 

5.1               Unless and until an Event of Default has occurred:

 

(a)                the Chargor shall be entitled to exercise all voting and/or consensual powers pertaining to the Charged Property or any part thereof for all purposes not inconsistent with the terms of this Charge and/or the Loan Agreement;

 

(b)                the Chargor shall be entitled to receive and retain any dividends, interest or other moneys or assets accruing on or in respect of the Charged Property or any part thereof; and

 

(c)                 the Chargor shall be entitled to receive all notices pertaining to the Charged Shares.

 

5.2               The Chargor shall pay all calls, instalments or other payments, and shall discharge all other obligations, which may become due in respect of any of the Charged Property and in an Event of Default, the Chargee may if it thinks fit make such payments or discharge such obligations on behalf of the Chargor.

 

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Any sums so paid by the Chargee in respect thereof shall be repayable on demand and pending such repayment shall constitute part of the Secured Obligations.

 

5.3               The Chargee shall not have any duty to ensure that any dividends, distributions, interest or other moneys and assets receivable in respect of the Charged Property are duly and punctually paid, received or collected as and when the same become due and payable or to ensure that the correct amounts (if any) are paid or received on or in respect of the Charged Property or to ensure the taking up of any (or any offer of any) stocks, shares, rights, moneys or other property paid, distributed, accruing or offered at any time by way of redemption bonus, rights, preference, or otherwise on or in respect of, any of the Charged Property.

 

5.4               Subject to the terms of the Intercreditor Agreements, the Chargor hereby authorises the Chargee to arrange at any time and from time to time (whether before or after the occurrence of an Event of Default) for the Charged Property or any part thereof to be registered in the name of the Chargee (or its nominee) thereupon to be held as so registered subject to the terms of this Charge.

 

6.                      PRESERVATION OF SECURITY

 

6.1               It is hereby agreed and declared that:

 

(a)                the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;

 

(b)                the security so created shall be in addition to and shall not in any way be prejudiced or affected by any of the other documents which may cerate a Security Interest on or in respect of the whole or any part of the Charged Property except in accordance with the terms of the Intercreditor Agreements;

 

(c)                 the Chargee shall not be bound to enforce any other security before enforcing the security created by this Charge except in accordance with the terms of the Intercreditor Agreements;

 

(d)                no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be

 

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exercised from time to time and as often as the Chargee may deem expedient; and

 

(e)                 any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only for the purpose and upon the terms for which it is given.

 

6.2               Any settlement or discharge under this Charge between the Chargee and the Chargor shall be conditional upon no security or payment to the Chargee by the Company or the Chargor or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Chargee shall be entitled to recover from the Chargor on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred.

 

6.3               The rights of the Chargee under this Charge and the Security Interest hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Company, the Chargor, the Chargee or any other person:

 

(a)                any time or waiver granted to or composition with the Company or any other person;

 

(b)                the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company or any other person;

 

(c)                 any legal limitation, disability, incapacity or other circumstances relating to the Company or any other person;

 

(d)                any amendment or supplement to the Loan Agreement or any other document or security;

 

(e)                 the dissolution, liquidation, reconstruction or reorganisation of the Company or any other person; or

 

(f)                  the unenforceability, invalidity or frustration of any obligations of the Company or any other person under the Loan Agreement or any other document or security.

 

6.4               Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargor shall not by virtue of any payment made hereunder on account of the Secured

 

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Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge or by virtue of any relationship between or transaction involving, the Chargor and the Company (whether such relationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or a party subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Charge):

 

(a)                exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Chargee or any person;

 

(b)                exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;

 

(c)                 exercise any right of set-off or counterclaim against the Company or any such co-surety;

 

(d)                receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety; or

 

(e)                 unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as a creditor of the Company or any such co-surety in competition with the Chargee.

 

6.5               The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Chargee any such payment (including an amount equal to any such set-off), distribution (other than such dividend or distribution payments described in Clause 5.1(b) or benefit of such security, indemnity or claim in fact received by it.

 

6.6               Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as it may think fit, any moneys received, recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.

 

7.                      ENFORCEMENT OF SECURITY

 

The enforcement of security under this Section 7 is subject to terms, conditions and provisions of the Intercreditor Agreements.

 

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7.1               Upon the occurrence of an Event of Default the Security Interest hereby constituted shall become immediately enforceable and the power of sale and other powers specified in Section 30 of the Conveyancing Act 1983 (applied in respect of personal property as well as real property) as varied or amended by this Charge shall be immediately exercisable and the Chargee may, at any time, without notice to, or consultation with, or the consent of, the Chargor:

 

(a)                solely and exclusively exercise all voting and/or consensual powers pertaining to the Charged Property or any part thereof and may exercise such powers in such manner as the Chargee may think fit; and/or

 

(b)                remove the then existing directors and officers (with or without cause) by dating and presenting the undated, signed letters of resignation delivered pursuant to this Charge; and/or

 

(c)                 receive and retain all dividends, interest, distributions or other moneys or assets accruing on or in respect of the Charged Property or any part thereof, such dividends, interest, distributions or other moneys or assets to be held by the Chargee, until applied in the manner described in Clause 7.5, as additional security charged under and subject to the terms of this Charge and any such dividends, interest, distributions or other moneys or assets received by the Chargor after such time shall be held in trust by the Chargor for the Chargee and paid or transferred to the Chargee on demand; and/or

 

(d)                appoint by instrument any person to be a receiver of the Charged Property (the “Receiver”) and remove any Receiver so appointed and appoint another or others in his stead; and/or

 

(e)                 sell, transfer, grant options over or otherwise dispose of the Charged Property or any part thereof at such place and in such manner and at such price or prices as the Chargee may deem fit, and thereupon the Chargee shall have the right to deliver, assign and transfer in accordance therewith the Charged Property so sold, transferred, granted options over or otherwise disposed of; and/or

 

(f)                  complete any undated blank share transfer forms of all or any part of the Charged Property by dating the same and/or inserting its name or the name of its nominee as transferee.

 

7.2               The Chargor hereby waives the entitlement conferred by Section 29 of the Conveyancing Act 1983 (to the extent applicable) and agrees that Section 31 of that Act (to the extent applicable) shall not apply to the security created by this Charge. For the avoidance of doubt, the powers of the Chargee by virtue of this Charge shall not be limited to those specified in Section 30 of the Conveyancing

 

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Act 1983. For the purpose of all powers conferred by statute, the Secured Obligations shall be deemed to have become due and payable on the date hereof.

 

7.3               The Chargee shall not be obliged to make any enquiry as to the nature or sufficiency of any payment received by it under this Charge or to make any claim or to take any action to collect any moneys assigned by this Charge or to enforce any rights or benefits assigned to the Chargee by this Charge or to which the Chargee may at any time be entitled hereunder.

 

7.4               Upon any sale of the Charged Property or any part thereof by the Chargee, the purchaser shall not be bound to see or enquire whether the Chargee’s power of sale has become exercisable in the manner provided in this Charge and the sale shall be deemed to be within the power of the Chargee, and the receipt of the Chargee for the purchase money shall effectively discharge the purchaser who shall not be concerned with the manner of application of the proceeds of sale or be in any way answerable therefor.

 

7.5               All moneys received by the Chargee pursuant to this Charge shall be applied in accordance with Section 4.1 of the Intercreditor Agreements.

 

7.6               Neither the Chargee nor its agents, managers, officers, employees, delegates or advisers shall be liable for any claim, demand, liability, loss, damage, cost or expense incurred or arising in connection with the exercise or purported exercise of any rights, powers and discretions hereunder in the absence of fraud or dishonesty.

 

7.7               The Chargee shall not by reason of the taking of possession of the whole or any part of the Charged Property or any part thereof be liable to account as mortgagee-in-possession or for anything except actual receipts or be liable for any loss upon realisation or for any default or omission for which a mortgagee-in-possession might be liable.

 

7.8               In addition to all other rights or powers vested in the Chargee hereunder or by statute or otherwise, the Receiver may take such action in relation to the enforcement of this Charge to:

 

(a)                take possession of, redeem, collect and get in all or any part of the Charged Property;

 

(b)                raise or borrow money and grant security therefor over all or any part of the Charged Property;

 

(c)                 appoint an attorney or accountant or other professionally qualified person to assist him in the performance of his functions;

 

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(d)                do all acts and to execute in the name and on behalf of the Chargor any document or deed in respect of all or any part of the Charged Property;

 

(e)                 in the name of the Chargor or in his own name, bring, prosecute, enforce, defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Charged Property and to submit to arbitration, negotiate, compromise and settle any such applications, claims, disputes, actions, suits or proceedings;

 

(f)                  sell, call in, collect and convert to money the Charged Property or any of it at such place and in such manner and at such price or prices as he shall think fit;

 

(g)                 exercise any powers, discretion, voting or other rights or entitlements in relation to the Charged Property and generally to carry out any other action which he may in his sole discretion deem appropriate in relation to the enforcement of this Charge;

 

(h)                make any arrangement or compromise which he shall think expedient; and

 

(i)                    do all such other acts and things as may be considered to be incidental or conducive to any of the matters or powers aforesaid and which the Receiver lawfully may or can do as agent for the Chargor.

 

7.9               Every Receiver shall, so far as it concerns responsibility for his acts, be deemed to be an agent of the Chargor, which shall be solely responsible for his acts and defaults and for the payment of his remuneration and no Receiver shall at any time act as agent for the Chargee.

 

7.10        Every Receiver shall be entitled to remuneration for his services at a rate to be fixed by agreement between him and the Chargee (or, failing such agreement, to be fixed by the Chargee) appropriate to the work and responsibilities involved, upon the basis of current industry practice.

 

8.                      FURTHER ASSURANCES

 

8.1               The Chargor shall execute and do all such assurances, acts and things as the Chargee in its absolute discretion may require for:

 

(a)                perfecting, protecting or ensuring the priority of the Security Interest hereby created (or intended to be created);

 

(b)                preserving or protecting any of the rights of the Chargee under this Charge;

 

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(c)                 ensuring that the security constituted by this Charge and the covenants and obligations of the Chargor under this Charge shall inure to the benefit of any assignee of the Chargee;

 

(d)                facilitating the appropriation or realisation of the Charged Property or any part thereof; or

 

(e)                 exercising any power, authority or discretion vested in the Chargee under this Charge,

 

in any such case, forthwith upon demand by the Chargee and at the expense of the Chargor.

 

8.2               Without limitation to the generality of Clause 8.1, the Chargor covenants with the Chargee that it will on demand of the Chargee procure any amendment to the memorandum of association or bye-laws of the Company necessary or, in the opinion of the Chargee desirable, in order to give effect to the terms of this Charge or any documents or transactions provided for herein.

 

8.3               The Chargor shall provide such assurances and do all acts and things the Receiver may in his absolute discretion require for the purpose of exercising the powers (or giving effect to the exercise of the powers) conferred on the Receiver hereunder and the Chargor hereby irrevocably appoints the Receiver to be the lawful attorney in fact of the Chargor to do any act or thing and to exercise all the powers of the Chargor for the purpose of exercising the powers (or giving effect to the exercise of the powers) conferred on the Receiver hereunder.

 

9.                      INDEMNITIES

 

9.1               The Chargor will indemnify and save harmless the Chargee, the Receiver and each agent or attorney appointed under or pursuant to this Charge from and against any and all expenses, claims, liabilities, losses, taxes, costs, duties, fees and charges reasonably suffered, incurred or made by the Chargee, the Receiver or such agent or attorney:

 

(a)                in the exercise or purported exercise of any rights, powers or discretions vested in them pursuant to this Charge;

 

(b)                in the preservation or enforcement of the Chargee’s rights under this Charge or the priority thereof; or

 

(c)                 on the release of any part of the Charged Property from the security created by this Charge,

 

and the Chargee, the Receiver or such agent or attorney may retain and pay all sums in respect of the same out of money received under the powers conferred

 

17











 

by this Charge. All amounts recoverable by the Chargee, the Receiver or such agent or attorney or any of them shall be recoverable on a full indemnity basis.

 

9.2               If, under any applicable law or regulation, and whether pursuant to a judgment being made or registered against the Chargor or the bankruptcy or liquidation of the Chargor or for any other reason any payment under or in connection with this Charge is made or falls to be satisfied in a currency (the “Payment Currency”) other than the currency in which such payment is due under or in connection with this Charge (the “Contractual Currency”), then to the extent that the amount of such payment actually received by the Chargee when converted into the Contractual Currency at the rate of exchange, falls short of the amount due under or in connection with this Charge, the Chargor, as a separate and independent obligation, shall indemnify and hold harmless the Chargee against the amount of such shortfall. For the purposes of this Clause, “rate of exchange” means the rate at which the Chargee is able on or about the date of such payment to purchase the Contractual Currency with the Payment Currency and shall take into account any premium and other costs of exchange with respect thereto.

 

10.               POWER OF ATTORNEY

 

10.1        The Chargor, by way of security and in order more fully to secure the performance of its obligations hereunder, hereby irrevocably appoints the Chargee and the persons deriving title under it jointly and also severally to be its attorney:

 

(a)                to execute and complete in favour of the Chargee or its nominees or of any purchaser any documents which the Chargee may from time to time require for perfecting its title to or for vesting any of the assets and property hereby charged or assigned in the Chargee or its nominees or in any purchaser and to give effectual discharges for payments;

 

(b)                to take and institute on non-payment (if the Chargee in its sole discretion so decides) all steps and proceedings in the name of the Chargor or of the Chargee for the recovery of such moneys, property and assets hereby charged and to agree accounts;

 

(c)                 to make allowances and give time or other indulgence to any surety or other person liable;

 

(d)                otherwise generally to act for it and in its name and on its behalf; and

 

(e)                 to sign, execute, seal and deliver and otherwise perfect and do any such legal assignments and other assurances, charges, authorities and documents over the moneys, property and assets hereby charged, and all such deeds, instruments, acts and things (including, without limitation, those referred to in Clause 8) which may be required for the full exercise

 

18











 

of all or any of the powers conferred or which may be deemed proper on or in connection with any of the purposes aforesaid.

 

10.2        The power hereby conferred shall be a general power of attorney and the Chargor hereby ratifies and confirms and agrees to ratify and confirm any instrument, act or thing which any such attorney may execute or do. In relation to the power referred to herein, the exercise by the Chargee of such power shall be conclusive evidence of its right to exercise the same.

 

10.3        Notwithstanding the rights of the Chargee under Clauses 10.1 and 10.2, the Chargee’s rights under the power of attorney shall be subject to the Intercreditor Agreements.

 

11.               EXPENSES

 

11.1        The Chargor shall pay to the Chargee on demand all costs, fees and expenses (including, but not limited to, legal fees and expenses) and taxes thereon incurred by the Chargee or for which the Chargee may become liable in connection with:

 

(a)                the negotiation, preparation and execution of this Charge;

 

(b)                the preserving or enforcing of, or attempting to preserve or enforce, any of its rights under this Charge or the priority hereof;

 

(c)                 any variation of, or amendment or supplement to, any of the terms of this Charge; and/or

 

(d)                any consent or waiver required from the Chargee in relation to this Charge,

 

and in any case referred to in paragraphs (c) and (d) of this Clause 8.1 regardless of whether the same is actually implemented, completed or granted, as the case may be.

 

11.2        The Chargor shall pay promptly any stamp, documentary and other like duties and taxes to which this Charge may be subject or give rise and shall indemnify the Chargee on demand against any and all liabilities with respect to or resulting from any delay or omission on the part of the Chargor to pay any such duties or taxes.

 

12.               NOTICES

 

Any notice required to be given hereunder shall be in writing in the English language and shall be served by sending the same by prepaid recorded post, facsimile or by delivering the same by hand to the address of the Party or Parties in question as set out below (or such other address as such Party or Parties shall

 

19











 

notify the other Parties of in accordance with this Clause). Any notice sent by post as provided in this Clause shall be deemed to have been served five Business Days after despatch and any notice sent by facsimile as provided in this Clause shall be deemed to have been served at the time of despatch and in proving the service of the same it will be sufficient to prove in the case of a letter that such letter was properly stamped, addressed and placed in the post; and in the case of a facsimile that such facsimile was duly despatched to a current facsimile number of the addressee.

 

Chargor

 

	
Name:
    	
Forster Darling
    
	
 
    	
c/o Fleetwood Management Ltd.
    
	
 
    	
 
    
	
Address:
    	
The Hayward Building
    
	
 
    	
22 Bermudiana Road
    
	
 
    	
 
    
	
Fax:
    	
+1 441 295 5133
    
	
 
    	
 
    
	
Chargee:
    	
Nordea Bank Finland plc, New York Branch
    
	
 
    	
 
    
	
Name:
    	
Martin Lunder
    
	
 
    	
 
    
	
Address:
    	
437 Madison Avenue, 21st Floor
    
	
 
    	
 
    
	
 
    	
New York, NY 10022
    
	
 
    	
 
    
	
Fax:
    	
212-421-4420
    


 

13.                           ASSIGNMENTS

 

13.1        This Charge and all non-contractual obligations arising out of or in connection with it shall be binding upon and shall inure to the benefit of the Chargor and the Chargee and each of their respective successors and (subject as hereinafter provided) assigns and references in this Charge to any of them shall be construed accordingly.

 

13.2        The Chargor may not assign or transfer all or any part of its rights and/or obligations under this Charge.

 

13.3        The Chargee may not assign or transfer all or any part of its rights or obligations under this Charge to any assignee or transferee without the consent of the Chargor such consent not to be unreasonably withheld, provided that no such consent shall be required if an Event of Default affecting the Chargor has

 

20











 

occurred and is continuing. The Chargee shall notify the Chargor promptly following any such assignment or transfer.

 

14.               MISCELLANEOUS

 

14.1        The Chargee, at any time and from time to time, may delegate by power of attorney or in any other manner to any person or persons all or any of the powers, authorities and discretions which are for the time being exercisable by the Chargee under this Charge in relation to the Charged Property or any part thereof. Any such delegation may be made upon such terms and be subject to such regulations as the Chargee may think fit. The Chargee shall not be in any way liable or responsible to the Chargor for any loss or damage arising from any act, default, omission or misconduct on the part of any such delegate provided the Chargee has acted reasonably in selecting such delegate.

 

14.2        This Charge (together with any documents referred to herein) constitutes the whole agreement between the Parties relating to its subject matter and no variations hereof shall be effective unless made in writing and signed by each of the Parties.

 

14.3        The headings in this Charge are inserted for convenience only and shall not affect the construction of this Charge.

 

14.4        This Charge may be executed in counterparts each of which when executed and delivered shall constitute an original but all such counterparts together shall constitute one and the same instrument.

 

14.5        If any of the Clauses, paragraphs, conditions, covenants or restrictions of this Charge or any deed or document emanating from it shall be found to be void but would be valid if some part thereof were deleted or modified, then such Clause, sub-Clause, paragraph, condition, covenant or restriction shall apply with such deletion or modification as may be necessary to make it valid and effective.

 

15.               LAW AND JURISDICTION

 

This Charge shall be governed by and construed in accordance with the laws of Bermuda and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of Bermuda, provided that nothing in this Clause shall affect the right of the Chargee to serve process in any manner permitted by law or limit the right of the Chargee to take proceedings with respect to this Charge against the Chargor in any jurisdiction nor shall the taking of proceedings with respect to this Charge in any jurisdiction preclude the Chargee from taking proceedings with respect to this Charge in any other jurisdiction, whether concurrently or not.

 

21









 

IN WITNESS whereof the Chargor has caused this Deed to be duly executed and delivered the day and year first before written.

 

 

	
SIGNED as a DEED
    	
)
    	
 
    
	
By Jeffrey D. Pribor
    	
)
    	
 
    
	
Authorised signatory for
    	
)
    	
/s/ Jeffrey D. Pribor
    
	
ARLINGTON TANKERS LTD.
    	
)
    	
 
    
	
in the presence of:
    	
)
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
Daniel Michaelson
    	
 
    	
/s/ Daniel Michaelson
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Address:
    	
1177 Avenue of the Americas
    	
 
    	
 
    
	
 
    	
New York, NY 10036
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Occupation:
    	
Attorney
    	
 
    	
 
    


 











 

	
SIGNED as a DEED by
    	
)
    	
 
    
	
By Victor Richards
    	
)
    	
 
    
	
Authorised signatory for
    	
)
    	
 
    
	
By NORDEA BANK FINLAND plc,
    	
)
    	
/s/ Victor Richards
    
	
NEW YORK BRANCH in the presence of:
    	
)
    	
Authorised Signatory
    
	
[ILLEGIBLE]
    	
)
    	
 
    


 

 

	
Name:
    	
Angela Atherden
    	
 
    
	
 
    	
Witness
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Address:
    	
Clarendon House
    	
 
    
	
 
    	
2 Church Street
    	
 
    
	
 
    	
Hamilton HM 11
    	
 
    
	
 
    	
Bermuda
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Occupation:
    	
Attorney
    	
 
    


 











 

SCHEDULE 1

 

SHARE TRANSFER FORM

 

[Separately Attached]

 

24











 

SHARE TRANSFER FORM

 

VICTORY LTD.

(the “Company”)

 

FOR VALUE RECEIVED -

 

We, Arlington Tankers Ltd. (the “Transferor”) hereby sell, assign, transfer and deliver unto Nordea Bank Finland plc, New York Branch (the “Transferee”)                               shares of the Company, representing all the issued share capital of the Company.

 

 

DATED this                               day of

 

 

	
Signed by:
    	
 
    	
In the presence of:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
/s/ Jeffrey D. Probor
    	
 
    	
/s/ Santo Anthony Cipolla
    
	
Transferor
    	
 
    	
Witness
    
	
Jeffrey D. Probor
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Transferee
    	
 
    	
Witness
    


 











 

SCHEDULE 2

 

PROXY

 

[Separately Attached]

 

25











 

instrument which provides the Chargee with substantially the same control over the Company as contemplated herein. This irrevocable proxy shall be governed by the laws of Bermuda and the Shareholder irrevocably submits to the jurisdiction of the courts of Bermuda in relation to the matters contained herein.

 

 

Executed and Delivered as a Deed

 

This             day of

 

 

	
SIGNED as a DEED by Jeffrey D. Pribor
    	
 
    	
 
    
	
ARLINGTON TANKERS LTD.
    	
 
    	
/s/ Jeffrey D. Pribor
    
	
in the presence of:
    	
 
    	
Director
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Name: 
    	
Santo Anthony Cipolla
    	
 
    	
/s/ Santo Anthony Cipolla
    
	
 
    	
 
    	
Witness
    
	
 
    	
 
    	
 
    
	
Address: 
    	
c/o Kramer Levin Naftalis & Frankel LLP
    	
 
    	
 
    
	
 
    	
1177 Avenue of the Americas
    	
 
    	
 
    
	
 
    	
New York, NY 10036
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Occupation: 
    	
Paralegal
    	
 
    	
 
    
					


 











 

SCHEDULE 3

 

LETTER OF RESIGNATION AND RELEASE

 

[Separately Attached]

 

26











 

LETTER OF RESIGNATION AND RELEASE

 

To:                                                                             Victory Ltd.

22 Bermudiana Road

Hamilton HM 11

Bermuda

 

And to:                                                       Fleetwood Management Limited

22 Bermudiana Road

Hamilton HM 11

Bermuda

 

I, Brian Kerr, hereby tender my resignation as a Director of the Company with effect from the date of this letter.

 

I confirm that I have no claims or rights of action against the Company for compensation for loss of office.

 

 

	
/s/ Brian Kerr
    	
 
    	
Date:
    
	
Brian Kerr
    	
 
    	
 
    


 











 

LETTER OF RESIGNATION AND RELEASE

 

To:                                                                             Victory Ltd.

22 Bermudiana Road

Hamilton HM 11

Bermuda

 

And to:                                                       Fleetwood Management Limited

22 Bermudiana Road

Hamilton HM 11

Bermuda

 

I, Dean Scaglione, hereby tender my resignation as a Director of the Company with effect from the date of this letter.

 

I confirm that I have no claims or rights of action against the Company for compensation for loss of office.

 

 

	
/s/ Dean Scaglione
    	
 
    	
Date:
    
	
Dean Scaglione
    	
 
    	
 
    


 









 

AUTHORITY TO DATE LETTER OF RESIGNATION AND RELEASE

 

[Separately Attached]

 

27











 

LETTER OF RESIGNATION AND RELEASE

 

To:                                                                             Victory Ltd.

22 Bermudiana Road

Hamilton HM 11

Bermuda

 

And to:                                                       Fleetwood Management Limited

22 Bermudiana Road

Hamilton HM 11

Bermuda

 

I, Brian Kerr, hereby tender my resignation as a Director of the Company with effect from the date of this letter.

 

I confirm that I have no claims or rights of action against the Company for compensation for loss of office.

 

 

	
/s/ Brian Kerr
    	
 
    	
Date:
    
	
Brian Kerr
    	
 
    	
 
    


 











 

LETTER OF RESIGNATION AND RELEASE

 

To:                                                                             Victory Ltd.

22 Bermudiana Road

Hamilton HM 11

Bermuda

 

And to:                                                       Fleetwood Management Limited

22 Bermudiana Road

Hamilton HM 11

Bermuda

 

I, Dean Scaglione, hereby tender my resignation as a Director of the Company with effect from the date of this letter.

 

I confirm that I have no claims or rights of action against the Company for compensation for loss of office.

 

 

	
/s/ Dean Scaglione
    	
 
    	
Date:
    
	
Dean Scaglione
    	
 
    	
 
    


 











 

SCHEDULE 4

 

UNDERTAKING

 

[Separately Attached]

 

28











 

UNDERTAKING

 

We, Victory Ltd., (the “Company”) hereby irrevocably UNDERTAKE and COVENANT with Nordea Bank Finland PLC, New York Branch, as Collateral Agent (“Nordea” together with any nominees appointed by Nordea, from time to time the “Transferee”) to register all transfers of Charged Shares submitted to the Company for registration by the Transferee pursuant to the due exercise of rights under the share charge (as defined below) as soon as practical following the submission of such transfers accompanied by evidence of any required consent of the Bermuda Monetary Authority to such transfers.

 

This Undertaking is given pursuant to Clause 4 of the Share Charge (the “Share Charge”) of even date herewith between Arlington Tankers Ltd. and the Transferee, and any capitalised terms used herein and not otherwise defined herein shall have the meanings given such terms in the Share Charge.

 

IN WITNESS whereof the Company has caused this Deed to be duly executed and delivered this               day of May 2012.

 

	
SIGNED as a DEED by Brian Kerr
    	
 
    	
 
    
	
VICTORY LTD.
    	
 
    	
/s/ Brian Kerr
    
	
in the presence of:
    	
 
    	
Director
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Name: 
    	
Daniel Michaelson
    	
 
    	
/s/ Daniel Michaelson
    
	
 
    	
 
    	
Witness
    
	
Address:
    	
1177 Avenue of the Americas
    	
 
    	
 
    
	
 
    	
New York, NY 10036
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Occupation: 
    	
Attorney