Exhibit
10.34


 


Private &
Confidential


 


 


LOAN
AGREEMENT

for a

Loan of up to US$64,750,000

to

THE CORPORATIONS SET OUT IN SCHEDULE 1



provided by

THE BANKS AND FINANCIAL INSTITUTIONS SET OUT IN SCHEDULE 2



Arranger, Agent, Security Agent and Account Bank

AEGEAN BALTIC BANK S.A.



Swap Providers

AEGEAN BALTIC BANK S.A.

and

HSH NORDBANK AG


 


 





 

















 


Contents


 


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1

  	
  Purpose
  and definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  2

  	
  The
  Total Commitment and the Advances

  	
  15

  
	
   

  	
   

  	
   

  
	
  3

  	
  Interest
  and Interest Periods

  	
  18

  
	
   

  	
   

  	
   

  
	
  4

  	
  Repayment
  and prepayment

  	
  20

  
	
   

  	
   

  	
   

  
	
  5

  	
  Fees,
  commitment commission and expenses

  	
  24

  
	
   

  	
   

  	
   

  
	
  6

  	
  Payments
  and taxes; accounts and calculations

  	
  25

  
	
   

  	
   

  	
   

  
	
  7

  	
  Representations
  and warranties

  	
  27

  
	
   

  	
   

  	
   

  
	
  8

  	
  Undertakings

  	
  32

  
	
   

  	
   

  	
   

  
	
  9

  	
  Conditions

  	
  39

  
	
   

  	
   

  	
   

  
	
  10

  	
  Events
  of Default

  	
  40

  
	
   

  	
   

  	
   

  
	
  11

  	
  Indemnities

  	
  44

  
	
   

  	
   

  	
   

  
	
  12

  	
  Unlawfulness
  and increased costs

  	
  45

  
	
   

  	
   

  	
   

  
	
  13

  	
  Security,
  set-off and pro-rata payments

  	
  47

  
	
   

  	
   

  	
   

  
	
  14

  	
  Accounts

  	
  49

  
	
   

  	
   

  	
   

  
	
  15

  	
  Assignment,
  transfer and lending office

  	
  50

  
	
   

  	
   

  	
   

  
	
  16

  	
  Arranger,
  Agent and Security Agent

  	
  53

  
	
   

  	
   

  	
   

  
	
  17

  	
  Notices
  and other matters

  	
  61

  
	
   

  	
   

  	
   

  
	
  18

  	
  Governing
  law and jurisdiction

  	
  66

  
	
   

  	
   

  
	
   

  	
   

  
	
  Schedule 1
  The Borrowers and their Ships

  	
   

  
	
   

  	
   

  
	
  Schedule 2
  The Banks and their Commitments

  	
   

  
	
   

  	
   

  
	
  Schedule 3
  Form of Drawdown Notice

  	
   

  
	
   

  	
   

  
	
  Schedule 4
  Documents and evidence required as conditions precedent to the Loan being
  made

  	
   

  
	
   

  	
   

  
	
  Schedule 5
  Form of Transfer Certificate

  	
   

  
	
   

  	
   

  
	
  Schedule 6
  Contract Instalment Advances per Ship

  	
   

  
	
   

  	
   

  
	
  Schedule 7
  Form of Corporate Guarantee

  	
   

  
	
   

  	
   

  
	
  Schedule 8
  Form of Pre-delivery Security Assignment

  	
   

  



 

















 


	
  Schedule 9
  Form of Master Swap Agreement

  	
   

  
	
   

  	
   

  
	
  Schedule 10
  Form of Master Agreement Security Deed

  	
   

  
	
   

  	
   

  
	
  Schedule 11
  Form of Trust Deed

  	
   

  



 

















 


THIS AGREEMENT is dated October 2006 and made BETWEEN:


 


(1)                        THE CORPORATIONS whose
names and registered addresses are set out in schedule 1 as joint and several
Borrowers;


 


(2)                        AEGEAN BALTIC BANK S.A. as Arranger, Agent, Security Agent and Account Bank;


 


(3)                        THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set out in schedule 2 as Banks; and


 


(4)                       AEGEAN BALTIC BANK S.A. and HSH NORDBANK AG as Swap Providers.


 


IT IS AGREED as follows:


 


1                        Purpose and definitions


 


1.1       Purpose


 


This Agreement sets out the terms and conditions upon and subject to
which the Banks agree, according to their several obligations, to make
available to the Borrowers, jointly and severally, in forty two (42) Advances,
a loan of up to Sixty four million seven hundred and fifty thousand Dollars ($64,750,000)
for the purpose of financing part of the construction and acquisition cost of
the Ships.


 


1.2       Definitions


 


In this Agreement, unless the context otherwise requires:


 


“ABB  Master Agreement Security Deed” means the security deed
executed or (as the context may require) to be executed by the Borrowers in
favour of the Security Agent in relation to certain of the rights of the
Borrowers under the ABB Master Swap Agreement in the form set out in schedule 10;


 


“ABB  Master Swap Agreement” means the agreement made or (as the
context may require) to be made between the ABB Swap Provider and the
Borrowers, comprising an ISDA Master Agreement (including the Schedule thereto)
in the form set out in schedule 9 and includes any Designated Transactions from
time to time entered into thereunder and any Confirmations from time to time
exchanged thereunder and governed thereby;


 


“ABB Swap Provider”
means Aegean Baltic Bank S.A. of 28 Diligianni Street, 145 62 Kifissia, Greece
(or of such other address as may last have been notified to the other parties
to this Agreement pursuant to clause 17.1.3 or the ABB Master Swap Agreement)
and includes its successors in title;


 


“Account Bank” means Aegean Baltic Bank
S.A. of 28 Diligianni Street, 145 62 Kifissia, Greece (or of such other address
as may last have been notified to the other parties to this Agreement pursuant
to clause 17.1.3) or such other bank as may be designated by the Agent as the
Account Bank for the purposes of this Agreement and includes its successors in
title;


 


“Account Pledges” means, together, the
Operating Account Pledges and the Retention Account Pledge and “Account Pledge” means any of them;


 


“Accounts” means, together, the
Operating Accounts and the Retention Account and “Account”
means any of them;


 


“Additional Cost” means, in relation to
each Ship, One million six hundred thousand Dollars ($1,600,000) or such other
lesser sum in Dollars as may be payable by the relevant Borrower to Iota
pursuant to the Supervision Agreement in respect of such Ship, as the cost for
the services provided by Iota thereunder and “Additional
Costs” means any or all of them;


 


1

















 


“Additional Cost Advance” means, in
relation to each Ship and the Tranche relevant to such Ship, an Advance of up
to $1,250,000 made or (as the context may require) to be made available to the
Borrowers for the purpose of financing part of the Additional Cost in respect
of such Ship and “Additional Cost Advances”
means any or all of them;


 


“Advance” means each borrowing of a
proportion of the Total Commitment by the Borrowers or (as the context may
require) the principal amount of such borrowing, it includes (a) each of the
four (4) Contract Instalment Advances for each Ship, (b) the Delivery Advance
for each Ship and (c) the Additional Cost Advance for each Ship and, in
relation to a Ship and the Tranche relevant to such Ship, means:


 


(i)                           the four (4) Contract Instalment Advances for such Ship;


 


(ii)                        the Delivery Advance for such Ship; and


 


(iii)                     the Additional Cost Advance for such Ship,


 


and “Advances” means any or all of
them;


 


“Aegean Marine Guarantee”
means the corporate guarantee executed or (as the context may require) to be
executed by the Aegean Marine Guarantor in favour of the Security Agent in the
form set out in schedule 7;


 


“Aegean Marine Guarantor” means Aegean
Marine Petroleum Network Inc. of Trust Company Complex, Ajeltake Road, Ajeltake
Island, Majuro, Republic of the Marshall Islands MH96960 and includes its
successors in title;


 


“Aegean Shipholdings Guarantee” means the corporate guarantee
executed or (as the context may require) to be executed by the Aegean Shipholdings
Guarantor in favour of the Security Agent in the form set out in schedule 7;


 


“Aegean Shipholdings Guarantor” means Aegean Shipholdings
Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic
of Marshall Islands MH96960 and includes its successors in title;


 


“Agent” means Aegean Baltic Bank S.A. of
28 Diligianni Street, 145 62 Kifissia, Greece (or of such other address as may
last have been notified to the other parties to this Agreement pursuant to
clause 17.1.3) or such other person as may be appointed as agent by the Banks
and the Swap Providers pursuant to clause 16.13 and includes its successors in
title;


 


“Applicable Accounting Principles” means
US GAAP;


 


“Approved Broker” means each of Arrow
Research Ltd. of London, England, Astrup Fearnley A/S of Oslo, Norway, H.
Clarkson & Company Ltd. of London, England, Maersk Broker K/S of
Copenhagen, Denmark, Simpson Spence & Young Ltd. of London, England, R.S.
Platou Shipbrokers of Oslo, Norway and Barry Rogliano Salles of Paris, France and
includes their respective successors in title and “Approved
Brokers” means any or all of them;


 


“Arranger” means Aegean Baltic Bank S.A.
of 28 Diligianni Street, 145 62 Kifissia, Greece (or such other address as may
last have been notified to the other parties to this Agreement pursuant to
clause 17.1.3) and includes its successors in title;


 


“Balloon Instalment” has, in respect of
each Tranche, the meaning ascribed thereto in clause 4.1.1;


 


“Banking Day” means a day on which
dealings in deposits in Dollars are carried on in the London Interbank
Eurocurrency Market and (other than Saturday or Sunday) on which banks are open
for business in London, Hamburg, Athens, Piraeus and New York City (or any
other relevant place of payment under clause 6);


 


2

















 


“Banks” means the banks and financial
institutions listed in schedule 1 and includes their respective successors in
title and Transferee Banks and “Bank” means any
of them;


 


“Borrowed Money” means Indebtedness in
respect of (i) money borrowed or raised and debit balances at banks, (ii) any
bond, note, loan stock, debenture or similar debt instrument, (iii) acceptance
or documentary credit facilities, (iv) receivables sold or discounted
(otherwise than on a non-recourse basis), (v) deferred payments for assets or
services acquired, (vi) finance leases and hire purchase contracts, (vii)
swaps, forward exchange contracts, futures and other derivatives, (viii) any
other transaction (including without limitation forward sale or purchase
agreements) having the commercial effect of a borrowing or raising of money or
of any of (ii) to (vii) above and (ix) guarantees in respect of Indebtedness of
any person falling within any of (i) to (viii) above;


 


“Borrower” means each of the corporations listed in Part A of
schedule 1 under the column headed “Borrower”, each being a corporation
incorporated in The Republic of Liberia whose registered office is as specified
opposite such corporation’s name in the column headed “Registered Office” in
Part A of schedule 1 and includes its successors in title and, in relation to a
Ship, means the corporation set out opposite the name of such Ship in the
column headed “Owning Company” in Part B of schedule 1 and “Borrowers” means any or all of them;


 


“Borrowers’ Security Documents” means,
at any relevant time, such of the Security Documents as shall have been
executed by any of the Borrowers at such time;


 


“Builder” means Qingdao Hyundai
Shipbuilding Co. Ltd. of Lingshanwei Jiaonan, PC 266427, Qingdao Shandong
Province, The People’s Republic of China and includes its successors in title;


 


“Casualty Amount” means, in relation to
each Ship, Five hundred thousand Dollars ($500,000) or the equivalent in any
other currency;


 


“Classification” means, in relation to
each Ship, the highest class available for a vessel of her type with the
relevant Classification Society or such other classification as the Agent
shall, at the request of a Borrower, have agreed in writing shall be treated as
the Classification in relation to such Borrower’s Ship for the purposes of the
relevant Ship Security Documents;


 


“Classification Society” means, in
relation to each Ship, Lloyd’s Register of Shipping or such other
classification society (being a member of the International Association of
Classification Societies (“IACS”)) which the Agent shall, at the request of a
Borrower, have agreed in writing shall be treated as the Classification Society
in relation to such Borrower’s Ship for the purposes of the relevant Ship
Security Documents;


 


“Code” means the International
Management Code for the Safe Operation of Ships and for Pollution Prevention
constituted pursuant to Resolution A. 741 (18) of the International Maritime
Organisation and incorporated into the International Convention on Safety of
Life at Sea 1974 (as amended) and includes any amendments or extensions thereto
and any regulation issued pursuant thereto;


 


“Commitment” means, in relation to each
Bank, the amount set out opposite its name in the column headed “Commitment” in
schedule 2 and/or, in the case of a Transferee Bank, the amount transferred as
specified in the relevant Transfer Certificate, as reduced in each case by any
relevant term of this Agreement;


 


“Compulsory Acquisition” means, in
relation to a Ship, requisition for title or other compulsory acquisition,
requisition, appropriation, expropriation, deprivation, forfeiture or
confiscation for any reason of that Ship 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;


 


“Confirmation” shall have, in relation
to any continuing Designated Transaction, the meaning ascribed to it in the
Master Swap Agreement under which the relevant Designated Transaction is
entered into;


 


3

















 


“Contract” means, in relation to each
Ship, the shipbuilding contract dated 18 October 2006 made between the relevant
Borrower and the Builder, as may be amended and supplemented from time to time
with the prior written consent of the Agent (acting on the instructions of the
Majority Banks), relating to the construction and sale by the Builder, and the
purchase by such Borrower, of such Ship and “Contracts”
means any or all of them;


 


“Contract Assignment Consent and Acknowledgement”
means, in relation to each Ship, the acknowledgement of notice of, and consent
to, the assignment in respect of the Contract for such Ship given or (as the
context may require) to be given by the Builder in the form scheduled to the
relevant Pre-delivery Security Assignment and “Contract
Assignment Consents and Acknowledgements” means any or all of them;


 


“Contract Instalment Advance” means, in
relation to each Ship and the Tranche relevant to such Ship, each of the four
(4) Advances of such Tranche in the amount of (a) up to $1,000,000, in the case
of the first such Advance for the relevant Ship, (b) up to $1,500,000, in the
case of each of the second and third such Advances for the relevant Ship and (c)
up to $2,000,000, in the case of the fourth such Advance for the relevant Ship,
each made or (as the context may require) to be made available to the Borrowers
to finance the payment of an instalment of the Contract Price in respect of
such Ship falling due before the Delivery Date for such Ship, in each case as
set out in more detail in schedule 6 and “Contract Instalment
Advances” means any or all of them;


 


“Contract Price” means, in relation to
each Ship, Ten million Dollars ($10,000,000) or such other lesser sum in
Dollars as may be payable by the relevant Borrower to the Builder pursuant to
the Contract in respect of such Ship as the purchase price for such Ship
thereunder and “Contract Prices” means any or all
of them;


 


“Contribution” means, in relation to
each Bank, the principal amount of the Loan owing to such Bank at any relevant
time;


 


“Corporate Guarantees” means, together,
the Aegean Marine Guarantee and the Aegean Shipholdings Guarantee and “Corporate Guarantee” means either of them;


 


“Corporate Guarantors” means, together,
the Aegean Marine Guarantor and the Aegean Shipholdings Guarantor and “Corporate Guarantor” means either of them;


 


“Creditors” means, together, the Arranger,
the Agent, the Security Agent, the Account Bank, the Swap Providers and the
Banks and “Creditor” means any of them;


 


“Deed of Covenant” means, in relation to each Ship, the deed
of covenant and/or general assignment collateral to the Mortgage over that Ship
executed or (as the context may require) to be executed by the relevant
Borrower in favour of the Security Agent and/or any other Creditors in such
form as the Agent (acting on the instructions of the Majority Banks in their
sole discretion) may require, and “Deeds of Covenant”
means any or all of them;


 


“Default” means any Event of Default or
any event or circumstance which with the giving of notice or lapse of time or
the satisfaction of any other condition (or any combination thereof) would
constitute an Event of Default;


 


“Delivery” means, in relation to each Ship,
the delivery of such Ship by the Builder to, and the acceptance of such Ship
by, the relevant Borrower in accordance with the relevant Contract;


 


“Delivery Advance” means, in relation to
each Ship and the Tranche relevant to such Ship, an Advance of up to $2,000,000
made or (as the context may require) to be made available to the Borrowers for
the purpose of financing the final instalment of the Contract Price in respect
of such Ship and “Delivery Advances”
means any or all of them;


 


“Delivery Date” means, in relation to
each Ship, the date on which the Delivery of such Ship occurs;


 


4

















 


“Designated Transaction” means a transaction
which fulfils the following requirements:


 


(a)                        it is entered into by the Borrowers with the relevant Swap Provider pursuant
to either Master Swap Agreement as contemplated by clause 2.9; and


 


(b)                       its purpose is the hedging of the Borrowers’ exposure under this
Agreement to fluctuations of LIBOR in relation to the funding of one or more
Tranches (or any part thereof) for a period expiring no later than the final
Repayment Date of the relevant Tranche(s) (or the relevant part thereof);


 


“DOC” means a document of compliance
issued to an Operator in accordance with rule 13 of the Code;


 


“Dollars” and “$”
mean the lawful currency of the United States of America and in respect of all
payments to be made under any of the Security Documents mean funds which are
for same day settlement in the New York Clearing House Interbank Payments
System (or such other US dollar funds as may at the relevant time be customary
for the settlement of international banking transactions denominated in U.S.
dollars);


 


“Drawdown Date” means, in relation to
each Advance, any date, being a Banking Day falling during the Drawdown Period
for such Advance, on which the relevant Advance is, or is to be, made
available;


 


“Drawdown Notice” means, in relation to
each Advance, a notice substantially in the form of schedule 3 in respect
of such Advance;


 


“Drawdown Period” means, in relation to
each Advance, the period commencing on the date of this Agreement and ending on
the Termination Date or the period ending on such earlier date (if any) on
which (a) the aggregate amount of the Advances is equal to the Total Commitment
or (b) the Total Commitment is reduced to zero pursuant to clauses 4.3, 4.7, 10.2
or 12 or (c) the Delivery of the Ship relevant to such Advance takes place;


 


“Early Termination Date” shall have, in
relation to any continuing Designated Transaction, the meaning ascribed to it
in the Master Swap Agreement under which the relevant Designated Transaction is
entered into;


 


“Earnings” means, in relation to a Ship,
all moneys whatsoever from time to time due or payable to a Borrower during the
Security Period arising out of the use or operation of such Borrower’s Ship
including (but without limiting the generality of the foregoing) all freight,
hire and passage moneys, income arising out of pooling arrangements,
compensation payable to such Borrower in the event of requisition of such
Borrower’s Ship for hire, remuneration for salvage or towage services,
demurrage and detention moneys and damages for breach (or payment for variation
or termination) of any charterparty or other contract for the employment of
such Borrower’s Ship;


 


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


 


“Environmental Affiliate” means any
agent or employee of any Borrower or any other Relevant Party or any person
having a contractual relationship with any Borrower or any other Relevant Party
in connection with any Relevant Ship or its operation or the carriage of cargo
and/or passengers thereon and/or the provision of goods and/or services on or
from any Relevant Ship;


 


“Environmental Approval” means any
consent, authorisation, licence or approval of any governmental or public body
or authorities or courts applicable to any Relevant Ship or its operation or
the carriage of cargo and/or passengers thereon and/or the provision of goods
and/or services on or from any Relevant Ship required under any Environmental
Law;


 


5

















 


“Environmental Claim” means any and all
enforcement, clean-up, removal or other governmental or regulatory actions or
orders instituted or completed pursuant to any Environmental Law or any
Environmental Approval together with claims made by any third party relating to
damage, contribution, loss or injury, resulting from any actual or threatened
emission, spill, release or discharge of a Pollutant from any Relevant Ship;


 


“Environmental Laws” means all national,
international and state laws, rules, regulations, treaties and conventions
applicable to any Relevant Ship pertaining to the pollution or protection of
human health or the environment including, without limitation, the carriage of
Pollutants and actual or threatened emissions, spills, releases or discharges
of Pollutants;


 


“Event of Default” means any of the
events or circumstances described in clause 10.1;


 


“Fee Letter” means the fee letter of
even date herewith executed or (as the context may require) to be executed
between the Borrowers, the Corporate Guarantors, the Personal Guarantor, the
Manager, the Agent and the Arranger;


 


“First Repayment Date” means, in
relation to each Tranche (and subject to clause 6.3), the date falling three
(3) months after the earlier of (a) the Drawdown Date of the Delivery Advance
relevant to such Tranche and (b) the last day of the Drawdown Period for the
Delivery Advance relevant to such Tranche;


 


“Flag State” means such state or
territory designated in writing by the Majority Banks, at the request of a
Borrower, as being the “Flag State” of
such Borrower’s Ship for the purposes of the relevant Ship Security Documents;


 


“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 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, the Aegean Marine Guarantor and its Subsidiaries from time to time
and “member of the Group” shall be construed
accordingly;


 


“HSH  Master Agreement Security Deed” means the security deed
executed or (as the context may require) to be executed by the Borrowers in
favour of the Security Agent in relation to certain of the rights of the
Borrowers under the HSH Master Swap Agreement in the form set out in schedule 10;


 


“HSH  Master Swap Agreement” means the agreement made or (as the
context may require) to be made between the HSH Swap Provider and the
Borrowers, comprising an ISDA Master Agreement (including the Schedule thereto)
in the form set out in schedule 9 and includes any Designated Transactions from
time to time entered into thereunder and any Confirmations from time to time
exchanged thereunder and governed thereby;


 


“HSH Swap Provider”
means HSH Nordbank AG of Gerhart-Hauptmann-Platz 50, 20095 Hamburg, Germany (or
of such other address as may last have been notified to the other parties to
this Agreement pursuant to clause 17.1.3 or the HSH Master Swap Agreement) and
includes its successors in title;


 


“Indebtedness” means any obligation for
the payment or repayment of money, whether as principal or as surety and
whether present or future, actual or contingent;


 


“Insurances” means, in relation to a
Ship, all policies and contracts of insurance (which expression includes all
entries of that Ship in a protection and indemnity or war risks association)
which are from time to time during the Security Period in place or taken out or
entered into by or for the benefit of the relevant Borrower (whether in the
sole name of such Borrower, or in the joint names of such Borrower and the
Security Agent and/or any other Creditor or otherwise) in respect of such
Borrower’s Ship and her Earnings or otherwise howsoever in connection with


 


6

















 


such Ship and all benefits thereof (including claims of whatsoever
nature and return of premiums);


 


“Interest Payment Date” means the last
day of an Interest Period;


 


“Interest Period” means, in relation to
any Advance or Tranche, each period for the calculation of interest in respect
of such Advance or, as the case may be, Tranche ascertained in accordance with
clauses 3.2 and 3.3;


 


“Iota” means Iota Corporation of 80
Broad Street, Monrovia, Liberia and includes its successors in title;


 


“ISPS Code” means the International Ship
and Port facility Security Code constituted pursuant to resolution A.924(22) of
the International Maritime Organization now set out in Chapter XI-2 of the
International Convention for the Safety of Life at Sea 1974 (as amended) as
adopted by a Diplomatic conference of the International Maritime Organisation
on Maritime Security in December 2002 and includes any amendments or extensions
thereto and any regulation issued pursuant thereto;


 


“ISSC” means an International Ship
Security Certificate issued in respect of a Ship pursuant to the ISPS Code;


 


“LIBOR” means in relation to a particular period:


 


(a)                        the rate per annum for deposits of Dollars for a period equivalent
to such period at or around 11:00 a.m. on the Quotation Date for such period as
displayed on Reuters BBA page LIBOR01 
(and, for the purposes of this Agreement, “Reuters BBA
page LIBOR01” means the display designated as “Reuters BBA page
LIBOR01” on the Reuters Service or such other page as may replace “Reuters BBA
page LIBOR01” on the Reuters Service for the purpose of displaying rates
comparable to that rate or on such other service as may be nominated by the
British Bankers’ Association for the purpose of displaying BBA Interest Settlement
Rates (as defined in the British Bankers’ Association’s Recommended Terms and
Conditions (“BBAIRS” terms) dated August, 1996)
for Dollars)); or


 


(b)                       if on such date no such rate is displayed, LIBOR for such period
shall be the rate per annum determined by the Agent to be the arithmetic mean
of the rates per annum (rounded upward if necessary to the nearest one
sixteenth (1/16th) of one per cent) quoted to the Agent by each Bank at the
request of the Agent as the rate for deposits in Dollars in an amount
comparable with the amount in relation to which LIBOR is to be determined and
for a period equal to the relevant period offered to that Bank by prime banks
in the London Interbank Market at or about 11:00 a.m. on the Quotation Date for
such period;


 


“Listing” means the successful listing
of all the shares in the Aegean Marine Guarantor on the New York Stock
Exchange, NASDAQ or any other stock exchange acceptable to the Agent;


 


“Listing Date” means the date when
Listing shall have taken place;


 


“Loan” means the aggregate principal
amount owing to the Banks under this Agreement at any relevant time;


 


“Majority Banks”
means at any relevant time Banks (i) the aggregate of whose Contributions
exceeds Sixty six point six per cent (66.6%) of the Loan or (ii) (if no
principal amounts are outstanding under this Agreement) the aggregate of whose
Commitments exceeds Sixty six point six per cent (66.6%) of the Total
Commitment;


 


“Management Agreement” means, in relation to
each Ship, the management agreement made or (as the context may require) to be
made between the relevant Borrower and the Manager in a form previously agreed
in writing by the Agent (acting on the instructions of the Majority Banks),


 


7

















 


providing
(inter alia) for the Manager to manage
such Ship and “Management Agreements”
means any or all of them;


 


“Manager” means Aegean Bunkering
Services Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro,
Republic of the Marshall Islands MH96960 or any other person appointed by a
Borrower, with the prior written consent of the Agent, as the manager of such
Borrower’s Ship and includes its successors in title;


 


“Manager’s Undertaking” means, in relation to each Ship, the
manager’s undertaking and assignment in respect of that Ship executed or (as
the context may require) to be executed by the Manager in favour of the
Security Agent and/or any other Creditors in such form as the Agent may require
in its sole discretion and “Manager’s Undertakings”
means any or all of them;


 


“Margin” means, in relation to each
Tranche:


 


(a)        for each
part of the Pre-Delivery Period for such Tranche:


 


(i)                          falling in the Pre-Listing Period, one point three zero per cent
(1.30%) per annum; and


 


(ii)                       falling in the Post-Listing Period, one point one five zero per cent
(1.150%) per annum; or


 


(b)       for each part of the Post-Delivery Period for such Tranche:


 


(i)                          falling in the Pre-Listing Period, one point one eight seven five
per cent (1.1875%) per annum; and


 


(ii)                       falling in the Post-Listing Period, one point zero five zero per
cent (1.050%) per annum;


 


“Master Agreement Security Deed” means:


 


(a)                         in relation
to the ABB Master Swap Agreement and the ABB Swap Provider, the ABB Master
Agreement Security Deed; or


 


(b)                        in relation to
the HSH Master Swap Agreement and the HSH Swap Provider, the HSH Master
Agreement Security Deed,


 


and “Master Agreement Security Deeds” means either or both of
them;


 


“Master Swap Agreement” means:


 


(a)        in
relation to the ABB Swap Provider, the ABB Master Swap Agreement; or


 


(b)       in
relation to the HSH Swap Provider, the HSH Master Swap Agreement,


 


and “Master Swap Agreements” means either or both of them;


 


“month” means 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 on which it started, provided
that (a) if the period started on the last Banking Day in a calendar month
or if there is no such numerically corresponding day, it shall end on the last
Banking Day in such next calendar month and (b) if such numerically
corresponding day is not a Banking Day, the period shall end on the next
following Banking Day in the same calendar month but if there is no such
Banking Day it shall end on the preceding Banking Day and “months”
and “monthly” shall be construed
accordingly;


 


8

















 


“Mortgage” means, in relation to each Ship, the first
priority or (as the case may be) preferred mortgage over that Ship executed or
(as the context may require) to be executed by the relevant Borrower in favour
of the Security Agent and/or any other Creditors in such form as the Agent
(acting on the instructions of the Majority Banks in their sole discretion) may
require and “Mortgages” means any or all of
them;


 


“Mortgaged Ship” means, at any relevant
time, any Ship which is at such time subject to a Mortgage and/or the Earnings,
Insurances and Requisition Compensation of which are subject to an Encumbrance
pursuant to the relevant Ship Security Documents and a Ship shall, for the
purposes of this Agreement, be deemed to be a Mortgaged Ship as from whichever
shall be the earlier of (a) the Drawdown Date of the Delivery Advance for that
Ship and (b) the date that the Mortgage of that Ship shall have been executed
and registered in accordance with this Agreement until whichever shall be the
earlier of (i) the payment in full of the amount required to be paid by the
Agent pursuant to clause 4.3 following the sale or Total Loss of such Ship
and (ii) the date on which all moneys owing under the Security Documents have
been repaid in full;


 


“Operating Account” means, in relation
to each Borrower and its Ship, an interest bearing Dollar account of that
Borrower opened with the Account Bank and includes any sub-accounts thereof and
any other account designated in writing by the Agent to be an Operating Account
for that Borrower and its Ship for the purposes of this Agreement and “Operating Accounts” means any or all of them;


 


“Operating Account Pledge” means, in
relation to each Ship and the relevant Operating Account, the first priority
pledge executed or (as the context may require) to be executed between the
relevant Borrower, the Banks, the Swap Providers, the Agent and the Account
Bank in respect of such Operating Account in such form as the Agent (acting on
the instructions of the Majority Banks in their sole discretion) may require
and “Operating Account Pledges” means any or
all of them;


 


“Operator” means any person who is from
time to time during the Security Period concerned in the operation of a Ship
and falls within the definition of “Company” set
out in rule 1.1.2 of the Code;


 


“Permitted Encumbrance” means any
Encumbrance in favour of the Creditors or any of them created pursuant to the
Security Documents and Permitted Liens;


 


“Permitted Liens” means, in relation to
a Ship, any lien on that Ship for master’s, officer’s or crew’s wages
outstanding in the ordinary course of trading, any lien for salvage and any
ship repairer’s or outfitter’s possessory lien for a sum not (except with the
prior written consent of the Agent) exceeding the Casualty Amount for such Ship;


 


“Personal Guarantee” means the personal guarantee executed or
(as the context may require) to be executed by the Personal Guarantor in favour
of the Banks, the Swap Providers and the Agent in such form as the Agent shall
require in its sole discretion and/or (as the context may require) any
substitute personal guarantee accepted by the Banks pursuant to clause 10.1.27;


 


“Personal Guarantor” means such individual as may be agreed
by the Banks in writing or (as the context may require) any substitute
individual who issues a personal guarantee accepted by the Banks pursuant to
clause 10.1.27;


 


“Pollutant” means and includes
pollutants, contaminants, toxic substances, oil as defined in the United States
Oil Pollution Act of 1990 and all hazardous substances as defined in the United
States Comprehensive Environmental Response, Compensation and Liability Act
1980;


 


“Post-Delivery Period” means, in
relation to a Tranche, the period starting on the Drawdown Date of the Delivery
Advance of such Tranche and ending on the date when all moneys owing under this
Agreement and the other Security Documents have been repaid in full;


 


9

















 


“Post-Listing Period” means the period
from the date falling immediately after the Listing Date until all moneys owing
under this Agreement and the other Security Documents have been repaid in full;


 


“Pre-Delivery Period” means, in relation
to a Tranche, the period starting on Drawdown Date of the first Contract
Instalment Advance of such Tranche to be drawn down and ending on the day
falling immediately prior to the Drawdown Date of the Delivery Advance of such
Tranche;


 


“Pre-delivery Security Assignment”
means, in relation to each Ship, the assignment of the Contract and the Refund
Guarantees in respect of such Ship executed or (as the context may require) to
be executed by the relevant Borrower in favour of the Security Agent in the
form set out in schedule 8 and “Pre-delivery Security
Assignments” means any or all of them;


 


“Pre-Listing Period” means the period
form the date of this Agreement until the Listing Date;


 


“Quotation Date” means, in relation to
any period for which LIBOR is to be determined under this Agreement, the date
on which quotations would customarily be provided by leading banks in the
London Interbank Market for deposits in the relevant currency for delivery on
the first day of that period;


 


“Refund Guarantee” means, in relation to
each Ship, the letter of guarantee issued or (as the context may require) to be
issued by Agricultural Bank of China, Qingdao Branch as Refund Guarantor in
favour of the relevant Borrower in respect of the Builder’s obligations under
the Contract in respect of such Ship and any further guarantee(s) to be issued
by a Refund Guarantor in respect of such obligations, pursuant to any agreement
supplemental to such Contract, and any extensions, renewals or replacements
thereto or thereof, in each case in form and substance acceptable to the Agent
(acting on the instructions of the Majority Banks in their sole discretion) and
“Refund Guarantees” means any or all of
them;


 


“Refund Guarantee Assignment Consent and
Acknowledgement” means, in relation to each Ship and to each Refund
Guarantee in respect of such Ship, an acknowledgement of notice of, and consent
to, the assignment in respect of that Refund Guarantee given or (as the context
may require) to be given by a Refund Guarantor, in the form scheduled to the
relevant Pre-delivery Security Assignment and “Refund
Guarantee Assignment Consents and Acknowledgements” means any or all
of them;


 


“Refund Guarantor” means, in relation to
each Refund Guarantee, Agricultural Bank of China, Qingdao Branch of Qingdao, The
People’s Republic of China and/or any other bank or financial institution
acceptable to the Agent in its sole discretion and appointed by the Builder to
issue that Refund Guarantee and includes their respective successors in title and
“Refund Guarantors” means any or all of
them;


 


“Registry” means, in relation to a Ship,
such registrar, commissioner or representative of the relevant Flag State who
is duly authorised and empowered to register such Ship, the relevant Borrower’s
title to such Ship and the relevant Mortgage under the laws and flag of the relevant
Flag State;


 


“Regulatory Agency” means the Government
Entity or other organisation in a Flag State which has been designated by the
Government of that Flag State to implement and/or administer and/or enforce the
provisions of the Code;


 


“Related Company”:


 


(a)                        of a person who is a Creditor, 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 engaged
in the bunkering business or the provision of bunkering services and which is:


 


10

















 


(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 Jurisdiction” means any
jurisdiction in which or where any Security Party is incorporated, resident,
domiciled, has a permanent establishment, carries on, or has a place of
business or is otherwise effectively connected;


 


“Relevant Party” means any of the
Borrowers, the Borrowers’ Related Companies, any other Security Party (other
than the Builder and the Refund Guarantors) and their respective Related
Companies;


 


“Relevant Ship” means the Ships and any
other vessel from time to time (whether before or after the date of this
Agreement) owned, managed or crewed by, or chartered to, any Relevant Party;


 


“Repayment Dates” means, in respect of each
Tranche (and subject to clause 6.3), the First Repayment Date in respect of
such Tranche and each of the dates falling at three (3) monthly intervals after
such First Repayment Date up to and including the earlier of (a) the date falling
one hundred and seventeen (117) months after such First Repayment Date and (b)
31 December 2019;


 


“Requisition Compensation” means, in
relation to a Ship, all sums of money or other compensation from time to time
payable during the Security Period by reason of the Compulsory Acquisition of
such Ship;


 


“Restricted Companies” means the
Borrowers, their respective Related Companies and the other Security Parties
and their respective Related Companies;


 


“Retention Account” means an interest bearing
Dollar account of the Borrowers opened or (as the context may require) to be
opened jointly by the Borrowers with the Account Bank and includes any
sub-accounts thereof and any other account designated in writing by the Agent
to be a Retention Account for the purposes of this Agreement;


 


“Retention Account Pledge” means the
first priority pledge executed or (as the context may require) to be executed
between the Borrowers, the Banks, the Agent and the Account Bank in respect of
the Retention Account in such form as the Agent (acting on the instructions of
the Majority Banks in their sole discretion) shall require;


 


“Retention Amount” means, in relation to
any Retention Date in respect of a Tranche, such sum as shall be the aggregate
of:


 


(a)                                 one-third (1/3rd) of the repayment
instalment in respect of such Tranche falling due for payment pursuant to
clause 4.1.1 (as the same may have been reduced by any prepayment) on the
next Repayment Date for such Tranche after the relevant Retention Date; and


 


(b)                                the applicable fraction (as hereinafter defined) of the aggregate
amount of interest falling due for payment in respect of each part of such Tranche
during and at the end of each Interest Period for such Tranche current at the
relevant Retention Date and, for this purpose, the expression “applicable fraction” in relation to each Interest Period for
a Tranche shall mean a fraction having a numerator of one and a denominator
equal to the number of Retention Dates for such Tranche falling within the
relevant Interest Period;


 


“Retention Dates” means, in relation to
each Tranche, the date falling thirty (30) days after the earlier of (a) the Drawdown
Date of the Delivery Advance of such Tranche and (b) the last day of


 


11

















 


the Drawdown Period for the Delivery Advance of such Tranche, and each
of the dates falling at monthly intervals after such date and prior to the
final Repayment Date for such Tranche;


 


“SAFE” means the State Administration
for Foreign Exchange of The People’s Republic of China;


 


“Security Agent”
means Aegean Baltic Bank S.A. of 28 Diligianni Street,
145 62 Kifissia, Greece (or
of such other address as may last have been notified to the other parties to
this Agreement pursuant to clause 17.1.3) or such other person as may be
appointed as security agent and trustee by the Banks, the Agent and the Swap Providers pursuant
to clause 16.14 and includes its successors in title;


 


“Security Documents” means this
Agreement, the Fee Letter, the Master Swap Agreements, the Master Agreement
Security Deeds, the Mortgages, the Deeds of Covenant, the Account Pledges, the
Manager’s Undertakings, the Corporate Guarantees, the Personal Guarantee, the
Pre-delivery Security Assignments, the Contract Assignment Consents and
Acknowledgements, the Refund Guarantee Assignment Consents and Acknowledgements
and any other documents as may have been or shall from time to time after the
date of this Agreement be executed to guarantee and/or secure all or any part
of the Loan, interest thereon and other moneys from time to time owing by the
Borrowers or any other Security Party pursuant to this Agreement, the Master
Swap Agreements or any other Security Documents (whether or not any such
document also secures moneys from time to time owing pursuant to any other
document or agreement);


 


“Security Party” means each Borrower,
the Manager, the Builder, each Refund Guarantor, each Corporate Guarantor, the
Personal Guarantor or any other person who may at any time be a party to any of
the Security Documents (other than the Creditors);


 


“Security Period” means the period
commencing on the date hereof and terminating upon discharge of the security
created by the Security Documents by payment of all monies payable thereunder;


 


“Security Requirement” means the amount
in Dollars (as certified by the Agent whose certificate shall, in the absence
of manifest error, be conclusive and binding on the Borrowers and the other Creditors)
which is, at any relevant time during the period commencing on the earlier of (a)
the Drawdown Date of the last Delivery Advance to be drawn down and (b) the last
day of the last Drawdown Period to elapse, and ending on the date when all
amounts owing under this Agreement and the other Security Documents have been
paid in full, One hundred and twenty five per cent (125%) of the aggregate of (i)
the Loan and (ii) the aggregate Swap Exposure under both Master Swap Agreements;


 


“Security Value” means the amount in
Dollars (as certified by the Agent whose certificate shall, in the absence of
manifest error, be conclusive and binding on the Borrowers and the Creditors)
which is, at any relevant time, the aggregate of (a) the market value of the
Mortgaged Ships as most recently determined in accordance with clause 8.2.2 and
(b) the market value of any additional security for the time being actually
provided to the Creditors or any of them pursuant to clause 8.2;


 


“Ship” means each of the 5,500 dwt double-hull class oil
tankers listed in Part B of schedule 1 under the column headed “Hull No.”, each
to be constructed and sold by the Builder to the relevant Borrower pursuant to
the relevant Contract and to be registered on the Delivery Date for such Ship
in the ownership of such Borrower through the relevant Registry under the laws
and flag of the relevant Flag State and “Ships” means
any or all of them;


 


“Ship Security Documents” in relation to
each Ship, means the Mortgage, the Deed of Covenant and the Manager’s Undertaking
in respect of such Ship;


 


“SMC” means a safety management
certificate issued in respect of a Ship in accordance with rule 13 of the Code;


 


12

















 


“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;


 


“Supervision Agreement” means, in
relation to each Ship, the contract dated 19 October 2006 made between the
relevant Borrower and Iota, as may be amended and supplemented from time to
time with the prior written consent of the Agent, relating to the provision of
design, building supervision, representation, turn-key delivery services and
the procurement of machinery and supplies by Iota to such Borrower and “Supervision Agreements” means any or all of them;


 


“Swap Exposure” means, as at any
relevant time and in relation to a Master Swap Agreement, the amount certified
by the relevant Swap Provider to the Agent to be the aggregate net amount in
Dollars which would be payable by the Borrowers to such Swap Provider under
(and calculated in accordance with) section 6(e) (Payments on Early
Termination) of such Master Swap Agreement if an Early Termination Date had
occurred at the relevant time in relation to all continuing Designated
Transactions under that Master Swap Agreement;


 


“Swap Provider” means:


 


(a)        in
relation to the ABB Master Swap Agreement, the ABB Swap Provider; or


 


(b)       in
relation to the HSH Master Swap Agreement, the HSH Swap Provider,


 


and “Swap Providers”
means either or both of them;


 


“Taxes” includes all present and future
taxes, levies, imposts, duties, fees or charges of whatever nature together
with interest thereon and penalties in respect thereof and “Taxation” shall be construed accordingly;


 


“Termination Date” means 31 December 2009 or such later date
as the Agent (acting on the instructions of the Majority Banks) in its sole
discretion may agree in writing;


 


“Total Commitment” means, at any
relevant time, the aggregate of all the Banks’ Commitments at such time;


 


“Total Loss” means, in relation to a
Ship:


 


(a)                                 the actual, constructive, compromised or arranged total loss of such
Ship; or


 


(b)                                the Compulsory Acquisition of such Ship; or


 


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


 


“Tranche” means, in relation to each
Ship, a tranche of the Loan of up to Nine million two hundred and fifty
thousand Dollars ($9,250,000) drawn down or (as the context may require) to be
drawn down in six (6) Advances (being the four (4) Contract Instalment Advances,
the Delivery Advance and the Additional Cost Advance in respect of such Ship)
and “Tranches” means any or all of them;


 


“Transaction” has, in relation to a
Master Swap Agreement, the meaning given to it in such Master Swap Agreement;


 


13

















 


“Transfer Certificate” means a
certificate in substantially the form set out in schedule 5;


 


“Transferee Bank” has the meaning
ascribed thereto in clause 15.3;


 


“Transferor Bank” has the meaning
ascribed thereto in clause 15.3;


 


“Trust Deed” means a trust deed in the
form, or substantially in the form, set out in schedule 11;


 


“Trust Property” means (i) the security,
powers, rights, titles, benefits and interests (both present and future)
constituted by and conferred on the Security Agent under or pursuant to the
Security Documents (including, without limitation, the benefit of all
covenants, undertakings, representations, warranties and obligations given,
made or undertaken to the Security Agent in the Security Documents), (ii) all
moneys, property and other assets paid or transferred to or vested in the
Security Agent or any agent of the Security Agent or any receiver or received
or recovered by the Security Agent or any agent of the Security Agent or any receiver
pursuant to, or in connection with, any of the Security Documents whether from
any Security Party or any other person and (iii) all moneys, 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 Agent or any agent of the Security Agent or any receiver
in respect of the same (or any part thereof); and


 


“Underlying Documents” means, together,
the Contracts, the Refund Guarantees, the Supervision Agreements and the
Management Agreements and “Underlying Document”
means any of them.


 


1.3       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.


 


1.4       Construction
of certain terms


 


In this Agreement, unless the context otherwise requires:


 


1.4.1                                 references to clauses and schedules are to be construed as
references to clauses of, and schedules to, this Agreement and
references to this Agreement include its schedules;


 


1.4.2                                 references to (or to any specified provision of) this Agreement or
any other document shall be construed as references to this Agreement, that
provision or that document as in force for the time being and as amended in
accordance with terms thereof, or, as the case may be, with the agreement of
the relevant parties;


 


1.4.3                                 references to a “regulation”
include any present or future regulation, rule, directive, requirement, request
or guideline (whether or not having the force of law) of any agency, authority,
central bank or government department or any self-regulatory or other national
or supra-national authority;


 


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


 


1.4.5                                 references to a time of day are to Greek time;


 


1.4.6                                 references to a person shall be construed as references to an individual,
firm, company, corporation, unincorporated body of persons or any Government
Entity;


 


1.4.7                                 references to a “guarantee”
include references to an indemnity or other assurance against financial loss
including, without limitation, an obligation to purchase assets or services as
a consequence of a default by any other person to pay any Indebtedness and “guaranteed” shall be construed accordingly; and


 


14

















 


1.4.8                                 references to any enactment shall be deemed to include references to
such enactment as re-enacted, amended or extended.


 


1.5       Majority
Banks


 


Where this Agreement or any other Security Document provides for any
matter to be determined by reference to the opinion of the Majority Banks or to
be subject to the consent or request of the Majority Banks or for any action to
be taken on the instructions in writing of the Majority Banks, such opinion,
consent, request or instructions shall (as between the Banks) only be regarded
as having been validly given or issued by the Majority Banks if all the Banks
shall have received prior notice of the matter on which such opinion, consent,
request or instructions are required to be obtained and the relevant majority
of such Banks shall have given or issued such opinion, consent, request or
instructions but so that (as between the Borrowers and the Banks) the Borrowers
shall be entitled (and bound) to assume that such notice shall have been duly
received by each relevant Bank and that the relevant majority shall have been
obtained to constitute Majority Banks whether or not this is in fact the case.


 


1.6                    Banks’ Commitment


 


For the purposes of the definition of “Majority
Banks” in clause 1.2, references to the Commitment of a Bank
shall, if the Total Commitment has, at any relevant time, been reduced to zero,
be deemed to be a reference to the Commitment of that Bank immediately prior to
such reduction to zero.


 


2                        The Total Commitment and the
Advances


 


2.1       Agreement
to lend


 


The Banks, relying upon each of the representations and warranties in
clause 7, agree to lend to the Borrowers, jointly and severally, upon and
subject to the terms of this Agreement, the principal sum of up to Sixty four
million seven hundred and fifty thousand Dollars ($64,750,000) in forty two (42)
Advances comprising seven (7) Tranches. The obligation of each Bank under this
Agreement shall be to contribute that proportion of each Advance which, as at
the Drawdown Date of such Advance, its Commitment bears to the Total
Commitment.


 


2.2       Obligations
several


 


The obligations of the Banks under this Agreement are several according
to their respective Commitments and/or Contributions; the failure of any Bank
to perform such obligations or the failure of either Swap Provider to perform
its obligations under the relevant Master Swap Agreement shall not relieve any
other Creditor or any Borrower of any of their respective obligations or
liabilities under this Agreement or, as the case may be, either Master Swap
Agreement nor shall any Creditor be responsible for the obligations of any
other Creditor (except for its own obligations, if any, as a Bank or a Swap
Provider) under this Agreement or either Master Swap Agreement.


 


2.3       Interests
several


 


Notwithstanding any other term of this Agreement (but without prejudice
to the provisions of this Agreement relating to or requiring action by the
Majority Banks) the interests of the Creditors are several and the amount due
to any Creditor is a separate and independent debt. Each Creditor shall have
the right to protect and enforce its rights arising out of this Agreement and
it shall not be necessary for any other Creditor to be joined as an additional
party in any proceedings for this purpose.


 


2.4       Drawdown


 


Subject to the terms and conditions of this Agreement, each Advance
shall be made to the Borrowers following receipt by the Agent from the
Borrowers of a Drawdown Notice not later than 10:00 a.m. on the third Banking
Day before the date, which shall be a Banking Day falling


 


15

















 


within the Drawdown Period for such Advance, on which the Borrowers
propose such Advance is made. A Drawdown Notice shall be effective on actual
receipt by the Agent and, once given, shall, subject as provided in
clause 3.6.1, be irrevocable.


 


2.5       Timing and
limitation of Advances


 


2.5.1                                 The aggregate amount of the Loan shall not exceed the lesser of:


 


(a)              Sixty
four million seven hundred and fifty thousand Dollars ($64,750,000);


 


(b)             the
aggregate of:


 


(i)                           eighty per cent (80%) of the aggregate of the Contract Prices; and


 


(ii)                        eighty per cent (80%) of the aggregate of the Additional Costs; and


 


(c)              the
amount in Dollars equal to eighty per cent (80%) of the aggregate market values
of the Ships as determined in accordance with schedule 4, Part 4, paragraph 19,


 


and each Advance shall, subject to the following
provisions of this clause 2.5, be for such amount as is specified in the Drawdown Notice for that Advance.


 


2.5.2                                 The aggregate amount of each Tranche shall not exceed the lower of:


 


(a)              Nine
million two hundred and fifty thousand Dollars ($9,250,000);


 


(b)             the
aggregate of:


 


(i)                           eighty per cent (80%) of the Contract Price of the Ship relevant to
such Tranche; and


 


(ii)                        eighty per cent (80%) of the Additional Cost of the Ship relevant to
such Tranche; and


 


(c)              the
amount in Dollars equal to eighty per cent (80%) of the market value of the
Ship relevant to such Tranche as determined in accordance with schedule 4, Part
4, paragraph 19.


 


2.5.3                                 The aggregate amount of the four (4) Contract Instalment Advances
for each Ship shall not exceed Six million Dollars ($6,000,000) and:


 


(a)              the
first Contract Instalment Advance for a Ship shall not exceed the lower of (i) One
million Dollars ($1,000,000) and (ii) fifty per cent (50%) of the first
instalment of the Contract Price for that Ship;


 


(b)             each
of the second and third Contract Instalment Advances for a Ship shall not
exceed the lower of (i) One million five hundred thousand Dollars ($1,500,000) and
(ii) seventy five per cent (75%) of the second or (as the case may be) third instalment
of the Contract Price for that Ship;


 


(c)              the
fourth Contract Instalment Advance for a Ship shall not exceed the lower of (i)
Two million Dollars ($2,000,000) and (ii) one hundred per cent (100%) of the
fourth instalment of the Contract Price for that Ship; and


 


(d)             each
Contract Instalment Advance for a Ship:


 


(i)                           shall be applied in or towards payment to the Builder of the
relevant instalment of the Contract Price for that Ship;


 


16

















 


(ii)                        shall be made when such instalment has become due and payable, as
specified in more detail in the third column of schedule 6 opposite the
relevant Contract Instalment Advance; and


 


(iii)                     shall be paid by the Agent to the Builder, unless the relevant
Borrower has already paid such instalment to the Builder when it was due, in
which case the relevant Contract Instalment Advance shall be advanced to the
Borrowers in refinancing of such payment.


 


2.5.4                                 Each Delivery Advance:


 


(a)              shall
not exceed the lower of:


 


(i)                           Two million Dollars ($2,000,000);


 


(ii)                        one hundred per cent (100%) of the fifth instalment of the Contract
Price for that Ship;


 


(iii)                     the amount in Dollars which, when added to the aggregate amount of
the Contract Instalment Advances for the relevant Ship actually drawn down,
will produce a figure equal to eighty per cent (80%) of the Contract Price for
that Ship;


 


(iv)                    the amount in Dollars which, when added to the aggregate amount of
the Contract Instalment Advances for the relevant Ship actually drawn down,
will produce a total figure of Eight million Dollars ($8,000,000); and


 


(v)                       the amount in Dollars which, when added to the aggregate amount of
the Contract Instalment Advances for the relevant Ship actually drawn down,
will produce a figure equal to eighty per cent (80%) of the market value of
that Ship as determined in accordance with schedule 4, Part 4, paragraph 19;


 


(b)             shall
be applied in or towards payment in full to the Builder of the final instalment
of the Contract Price for the relevant Ship;


 


(c)              shall
be made on the Delivery Date of the relevant Ship when such final instalment
has become due and payable; and


 


(d)             shall
be paid by the Agent to the Builder, unless the relevant Borrower has already
paid such instalment to the Builder when it was due, in which case the relevant
Delivery Advance shall be advanced to the Borrowers in refinancing of such
payment.


 


2.5.5                                 Each Additional Cost Advance:


 


(a)              shall
not exceed the lower of:


 


(i)                           One million two hundred and fifty thousand Dollars ($1,250,000);


 


(ii)                        eighty per cent (80%) of the Additional Cost of the Ship relevant to
such Additional Cost Advance; and


 


(iii)                     the amount in Dollars which, when added to the aggregate of the
Contract Instalment Advances and the Delivery Advance for the relevant Ship
actually drawn down, will produce a figure equal to eighty per cent (80%) of
the market value of such Ship as determined in accordance with schedule 4, Part
4, paragraph 19;


 


(b)             may
not be drawn down unless the Contract Instalment Advances and the Delivery
Advance for that Ship have also been drawn down;


 


(c)              may
only be drawn down simultaneously with the Delivery Advance for that Ship; and


 


17

















 


(d)             shall
be applied in or towards payment to Iota of part of the Additional Cost for the
relevant Ship and shall be paid by the Agent to Iota, unless the relevant
Borrower has already paid the Additional Cost (or part thereof) for that Ship
to Iota when it was due, in which case the relevant Additional Cost Advance (or
part thereof) shall be advanced to the Borrowers in refinancing of such
payment.


 


2.6       Availability


 


Upon receipt of a Drawdown Notice for an Advance complying with the
terms of this Agreement, the Agent shall promptly notify each Bank and each
Bank shall, on the Drawdown Date for the relevant Advance, make available to
the Agent its portion of such Advance for payment by the Agent in accordance
with clause 6.2. The Borrowers acknowledge that payment of any Advance or
part thereof to the Builder, Iota or the Borrowers or any of them (as the case
may be) in accordance with clause 6.2 shall satisfy the obligation of the Banks
to lend that Advance to the Borrowers under this Agreement.


 


2.7       Termination
of Total Commitment


 


Any part of the Total Commitment which remains undrawn and uncancelled
by the Termination Date shall thereupon be automatically cancelled.


 


2.8       Application
of proceeds


 


Without prejudice to the Borrowers’ obligations under clause 8.1.3,
no Creditor shall have any responsibility for the application of the proceeds
of the Loan or any part thereof by the Borrowers.


 


2.9       Derivative
transactions


 


2.9.1                                 If, at any time during the Security Period, the Borrowers wish to
enter into interest rate swap or other derivative transactions so as to hedge
all or any part of their exposure under this Agreement to interest rate
fluctuations, they shall advise the Swap Providers in writing.


 


2.9.2                                 Any such swap or other derivative transaction shall be concluded
with either or both the Swap Providers under the relevant Master Swap Agreements
Provided however that no such swap or other derivative transaction shall be
concluded unless the relevant Swap Provider first agrees to it in writing. For
the avoidance of doubt, other than the relevant Swap Provider’s agreement in
writing referred to in the preceding sentence no prior approval is required by
the Borrowers from all or any of the Banks, the Agent, the Security Agent or
the Account Bank before concluding any such swap or other derivative
transaction. If and when any such swap or other derivative transaction has been
concluded, it shall constitute a Designated Transaction under the relevant
Master Swap Agreement, and the Borrowers shall sign a Confirmation with the relevant
Swap Provider and advise the Banks and the other Swap Provider through the
Agent promptly after concluding any such Designated Transaction.


 


3                        Interest and Interest Periods


 


3.1       Normal
interest rate


 


The Borrowers shall pay interest on each Tranche in respect of each Interest
Period relating thereto on each Interest Payment Date (or, in the case of
Interest Periods of more than three (3) months, by instalments, the first
instalment three (3) months from the commencement of the Interest Period and
the subsequent instalments at intervals of three (3) months or, if shorter, the
period from the date of the preceding instalment until the Interest Payment
Date relative to such Interest Period) at the rate per annum determined by the
Agent to be the aggregate of (a) the Margin and (b) LIBOR for such
Interest Period.


 


18

















 


3.2       Selection
of Interest Periods


 


The Borrowers may by notice received by the Agent not later than 10:00
a.m. on the third Banking Day before the beginning of each Interest Period
specify whether such Interest Period shall have a duration of three (3) months,
six (6) months, nine (9) months, twelve (12) months or such other period as the
Borrowers may select and the Agent (acting on the instructions of the Majority
Banks) may agree.


 


3.3       Determination
of Interest Periods


 


Every Interest Period shall be of the duration specified by the
Borrowers pursuant to clause 3.2 but so that:


 


3.3.1                                 the first Interest Period in respect of each Advance shall commence
on the date on which such Advance is drawn down and each subsequent Interest
Period shall commence on the last day of the previous Interest Period for such
Advance;


 


3.3.2                                 the first Interest Period in respect of each Advance in respect of a
Ship (after the first Advance to be drawn down in respect of such Ship) shall
end on the same day as the then current Interest Period for the Tranche for
such Ship and, on the last day of such Interest Period, such Advances shall be
consolidated into, and shall thereafter constitute, the Tranche in respect of
such Ship;


 


3.3.3                                 if any Interest Period in respect of a Tranche would otherwise
overrun a Repayment Date for such Tranche, then, in the case of the last
Repayment Date for such Tranche, such Interest Period shall end on such Repayment
Date, and in the case of any other Repayment Date or Repayment Dates for such Tranche,
the relevant Tranche shall be divided into parts so that there is one part in
the amount of the repayment instalment or instalments due on each Repayment
Date for such Tranche falling during that Interest Period and having an
Interest Period ending on the relevant Repayment Date and another part in the
amount of the balance of the relevant Tranche having an Interest Period
ascertained in accordance with clause 3.2 and the other provisions of this
clause 3.3; and


 


3.3.4                                 if the Borrowers fail to specify the duration of an Interest Period
in accordance with the provisions of clause 3.2 and this clause 3.3
such Interest Period shall have a duration of three (3) months or such other
period as shall comply with this clause 3.3.


 


3.4       Default
interest


 


If the Borrowers fail to pay any sum (including, without limitation,
any sum payable pursuant to this clause 3.4) on its due date for payment
under any of the Security Documents (other than the Master Swap Agreements),
the Borrowers shall pay interest on such sum on demand from the due date up to
the date of actual payment (as well after as before judgment) at a rate
determined by the Agent pursuant to this clause 3.4. The period beginning
on such due date and ending on such date of payment shall be divided into
successive periods of not more than three (3) months as selected by the Agent
each of which (other than the first, which shall commence on such due date)
shall commence on the last day of the preceding such period. The rate of
interest applicable to each such period shall be the aggregate (as determined
by the Agent) of (a) two per cent (2%) per annum, (b) the Margin and (c) LIBOR
for such period. Such interest shall be due and payable on the last day of each
such period as determined by the Agent and each such day shall, for the
purposes of this Agreement, be treated as an Interest Payment Date, provided
that if such unpaid sum is an amount of principal which became due and payable
by reason of a declaration by the Agent under clause 10.2.2 or a
prepayment pursuant to clauses 4.3, 8.2.1(a) or 12.1, on a date other than
an Interest Payment Date relating thereto, the first such period selected by
the Agent shall be of a duration equal to the period between the due date of
such principal sum and such Interest Payment Date and interest shall be payable
on such principal sum during such period at a rate of two per cent (2%) above
the rate applicable thereto immediately before it shall have become so due and
payable. If, for the reasons specified in clause 3.6.1, the Agent is
unable to determine a rate in accordance with the foregoing provisions of this
clause 3.4, each Bank shall promptly notify the Agent of the cost of


 


19

















 


funds to such Bank and interest on any sum not paid on its due date for
payment shall be calculated at a rate determined by the Agent to be two per
cent (2%) per annum above the aggregate of the Margin and the cost of funds to
such Bank.


 


3.5       Notification
of Interest Periods and interest rate


 


The Agent shall notify the Borrowers and the Banks promptly of the
duration of each Interest Period and of each rate of interest (or, as the case
may be default interest) determined by it under this clause 3.


 


3.6       Market
disruption; non-availability


 


3.6.1                                 If and whenever, at any time prior to the commencement of any
Interest Period:


 


(a)              the
Agent shall have determined (which determination shall, in the absence of
manifest error, be conclusive) that adequate and fair means do not exist for
ascertaining LIBOR during such Interest Period; or


 


(b)             none
or only one of the Banks supplies the Agent with a quotation for the purposes
of calculating LIBOR (where such a quotation is required having regard to
paragraph (b) of the definition of “LIBOR” in clause 1.2); or


 


(c)              the
Agent shall have received notification from Banks with Contributions aggregating
not less than one-third (1/3) of the Loan (or, prior to
the Drawdown Date of the first Advance to be drawn down from Banks with
Commitments aggregating not less than one-third (1/3) of
the Total Commitment), that deposits in Dollars are not available to such Banks
in the London Interbank Market in the ordinary course of business in sufficient
amounts to fund the Loan or part thereof or their Contributions for such
Interest Period,


 


the Agent shall forthwith give notice (a “Determination
Notice”) thereof to the Borrowers and to each of the Banks. A
Determination Notice shall contain particulars of the relevant circumstances
giving rise to its issue. After the giving of any Determination Notice the
undrawn amount of the Total Commitment shall not be borrowed until notice to
the contrary is given to the Borrowers by the Agent.


 


3.6.2                                 During the period of ten (10) days after any Determination Notice
has been given by the Agent under clause 3.6.1, each Bank shall certify an
alternative basis (the “Alternative Basis”)
for maintaining its Contribution. The Alternative Basis may at the relevant
Bank’s sole and unfettered discretion include (without limitation) alternative
interest periods, alternative currencies or alternative rates of interest but
shall include a margin above the cost of funds to such Bank equivalent to the
Margin. The Agent shall calculate the arithmetic mean of the Alternative Bases
provided by the relevant Banks (the “Substitute Basis”)
and certify the same to the Borrowers, the Banks and the Swap Providers. The
Substitute Basis so certified shall be binding upon the Borrowers, and shall
take effect in accordance with its terms from the date specified in the
Determination Notice until such time as the Agent notifies the Borrowers that
none of the circumstances specified in clause 3.6.1 continues to exist
whereupon the normal interest rate fixing provisions of this Agreement shall
apply.


 


4                        Repayment and prepayment


 


4.1       Repayment


 


4.1.1                                 The Borrowers shall repay each Tranche by forty (40) repayment
instalments, one such instalment to be repaid on each of the Repayment Dates
for such Tranche. Subject to the provisions of this Agreement, the amount of
each of the repayment instalments (other than the final repayment instalment) for
each Tranche shall be $125,000 and the amount of the final repayment instalment
for each Tranche shall be $4,375,000 (comprising a repayment instalment of $125,000
and a balloon payment of $4,250,000 (each such balloon payment in relation to a
Tranche, the “Balloon Instalment” for that
Tranche)).


 


20

















 


4.1.2                                 If the Total Commitment in respect of any Contract Instalment
Advance, the Delivery Advance or the Additional Cost Advance relating to a Ship,
is not drawn down in full, the amount of the repayment instalments in respect
of the Tranche for such Ship (including the relevant Balloon Instalment) shall
be reduced proportionately.


 


4.2       Voluntary
prepayment


 


The Borrowers may prepay any Tranche in whole or part (such part being
in an amount of Five hundred thousand Dollars ($500,000) or any larger sum
which is an integral multiple of Five hundred thousand Dollars ($500,000)) on
any Interest Payment Date relating to the part of the Tranche to be repaid
without premium or penalty.


 


4.3       Prepayment
on Total Loss and Sale


 


4.3.1                                 Before first drawdown


 


On a Ship becoming a Total Loss or suffering damage or being involved
in an incident which in the reasonable opinion of the Agent may result in such
Ship being subsequently determined to be a Total Loss or on the Contract for a Ship
being assigned, transferred, sold or novated to or in favour of any person, in
each case before any Advance for such Ship is drawn down, the obligation of the
Banks to advance any Advance for such Ship (or part thereof) shall immediately
cease and the Total Commitment shall be reduced accordingly.


 


4.3.2                                 After first drawdown but prior to Delivery


 


On a Ship becoming a Total Loss or suffering damage or being involved
in an incident which in the reasonable opinion of the Agent may result in such
Ship being subsequently determined to be a Total Loss or on the Contract for a Ship
being assigned, transferred, sold or novated to or in favour of any person, in
each case after any Contract Instalment Advance for such Ship has been drawn
down but prior to the drawing of the Delivery Advance for such Ship, the
obligation of the Banks to advance any other Advance (or part thereof) for such
Ship shall immediately cease, the Total Commitment shall be reduced accordingly
and the Borrowers shall immediately prepay the outstanding Contract Instalment Advances
for such Ship in full.


 


4.3.3                                 Thereafter


 


(a)              If a Mortgaged Ship is sold (with the prior
consent of the relevant Creditors pursuant to the relevant Ship Security
Documents) or becomes a Total Loss prior to the last day of the last Drawdown
Period to elapse, then the Borrowers shall, on the Disposal Reduction Date for
such Mortgaged Ship, prepay the Tranche relevant to such Mortgaged Ship in full
(subject to clause 4.3.3(c)).


 


(b)             If a Mortgaged Ship is sold (with the prior
consent of the relevant Creditors pursuant to the relevant Ship Security
Documents) or becomes a Total Loss after the Drawdown Periods for all the
Advances have elapsed, then the Borrowers shall, on the Disposal Reduction Date
for such Mortgaged Ship, prepay the higher of (i) the full amount of the
Tranche relevant to such Mortgaged Ship and (ii) a part of the Loan equal to
the Relevant Amount (subject to clause 4.3.3(c)).


 


(c)              Notwithstanding
sub-paragraphs (a) and (b) of this clause 4.3.3, if a Mortgaged Ship is sold
(with the prior consent of the relevant Creditors pursuant to relevant Ship
Security Documents) or becomes a Total Loss and an Event of Default shall have
occurred and be continuing, then the Borrowers shall, on the Disposal Reduction
Date for such Mortgaged Ship, prepay such proportion of the Loan as the Banks
may require in their absolute discretion.


 


21

















 


4.3.4                                 Defined terms


 


For the purposes of this clause 4.3:


 


(a)              “Disposal Reduction
Date” means:


 


(i)                           in relation to a Mortgaged Ship which has
become a Total Loss, its Total Loss Reduction Date; and


 


(ii)                        in relation to a Mortgaged Ship which is sold
in accordance with the provisions of the relevant Ship Security Documents, the
date of completion (and immediately prior to completion) of such sale by the
transfer of title to such Mortgaged Ship to the purchaser in exchange for
payment of the relevant purchase price;


 


(b)             “Total Loss  Reduction Date” means, in relation to a Mortgaged Ship which
has become a Total Loss, the date which is the earlier of:


 


(i)                           the date falling ninety (90) days after that on
which such Mortgaged Ship became a Total Loss; and


 


(ii)                        the date upon which the relevant insurance
proceeds are or Requisition Compensation is, received by the relevant Borrower
(or the relevant Creditors, as such Borrower’s assignees pursuant to the
relevant Ship Security Documents);


 


(c)              “Relevant Amount”
means, in relation to a Mortgaged Ship which has been lost or sold, an amount in
Dollars equal to the higher of:


 


(A)                    such amount as shall ensure that, immediately
after the relevant 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;


 


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


 


(i)                           the market value of the Mortgaged Ships
(excluding the relevant Mortgaged Ship lost or sold) as determined in
accordance with clause 8.2.2


 


to


 


(ii)                        the aggregate amount of the Loan after
deducting the amount of the relevant prepayment,


 


immediately
after the relevant prepayment is made; and


 


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


 


(i)                           the market value of the Mortgaged Ships
(including the relevant Mortgaged Ship lost or sold) as determined in
accordance with clause 8.2.2


 


to


 


(ii)                        the aggregate amount of the Loan without
deducting the amount of the relevant prepayment,


 


immediately
before the relevant prepayment is made.


 


22

















 


4.3.5                                 Interpretation


 


For the purpose of this Agreement, a Total Loss in respect of a Ship shall
be deemed to have occurred:


 


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


 


(b)             in
the case of a constructive total loss of a Ship, upon the date and at the time
notice of abandonment of such Ship is given to the insurers of such Ship for
the time being;


 


(c)              in
the case of a compromised or arranged total loss of a Ship, 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 Ship;


 


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


 


(e)              in
the case of hijacking, theft, condemnation, capture, seizure, arrest, detention
or confiscation of a Ship (other than where the same amounts to Compulsory
Acquisition of such Ship) by any Government Entity, or by persons purporting to
act on behalf of any Government Entity, which deprives the relevant Borrower of
the use of such Ship for more than thirty (30) 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.


 


4.3.6                                 Application of Total Loss and sale proceeds


 


Any insurance moneys or Requisition Compensation or proceeds of sale
received by the Security Agent or any other Creditors (as the case may be) in
respect of such Total Loss or sale of a Mortgaged Ship under the relevant Ship
Security Documents, shall be applied in or towards making any prepayment and
paying any other moneys required under clauses 4.3 and 4.4 and provided no
Event of Default has occurred and is continuing, the balance (if any) shall be
paid to the relevant Borrower.


 


4.4       Amounts
payable on prepayment


 


Any prepayment of all or part of the Loan under this Agreement shall be
made together with:


 


4.4.1                                 accrued interest on the amount to be prepaid to the date of such
prepayment;


 


4.4.2                                 any additional amount payable under clauses 6.6 or 12.2; and


 


4.4.3                                 all other sums payable by the Borrowers to the Creditors under this
Agreement or any of the other Security Documents including, without limitation,
any accrued commitment commission payable under clause 5.1 and any amounts
payable under clause 11.


 


4.5       Notice of
prepayment; reduction of repayment instalments


 


4.5.1                                 No prepayment may be effected under clause 4.2 unless the Borrowers
shall have given the Agent at least fifteen (15) days’ prior written notice of
their intention to make such prepayment. Every notice of prepayment shall be
effective only on actual receipt by the Agent, shall be irrevocable, shall
specify the Tranche and the amount thereof to be prepaid and shall oblige the
Borrowers to make such prepayment on the date specified.


 


4.5.2                                 Any amount prepaid pursuant to clause 4.2 in respect of a Tranche shall
be applied in reducing the repayment instalments (including the relevant
Balloon Instalment) of the relevant Tranche under clause 4.1 in inverse order
of their due dates for payment.


 


23

















 


4.5.3                                 Any amounts prepaid pursuant to clause 4.3.3(b) shall be applied,
first, in full prepayment of the Tranche relevant to the Ship lost or sold and,
secondly, in reducing the repayment instalments (including the relevant Balloon
Instalments) of the other Tranches under clause 4.1.1 proportionately (and
proportionately as between such other Tranches).


 


4.5.4                                 Any amount prepaid pursuant to clause 4.3.3(c) shall be applied in
reducing such Tranches, and in such manner, as the Banks may require in their
absolute discretion.


 


4.5.5                                 Any amount prepaid pursuant to clause 8.2.1(a) shall be applied in
prepayment of all Tranches proportionately as between them and in reduction of
the repayment instalments (including the Balloon Instalments) of each Tranche
under clause 4.1.1 in inverse order of their due dates for payment.


 


4.5.6                                 The Borrowers may not prepay the Loan or any part thereof save as
expressly provided in this Agreement. No amount prepaid under this Agreement
may be re-borrowed.


 


4.6       Unwinding
of Designated Transactions


 


On or prior to any repayment or prepayment of all or part of the Loan (including,
without limitation, pursuant to clauses 4.2, 4.3 or 8.2.1(a) or any other
provision of this Agreement), the Borrowers shall, upon the request of the
Agent, wholly or partially reverse, offset, unwind, cancel, close out, net out
or otherwise terminate one or more of the continuing Designated Transactions
under the Master Swap Agreements or either of them so that the notional
principal amount of the continuing Designated Transactions thereafter remaining
under both Master Swap Agreements does not, and will not in the future (taking
into account the scheduled amortisation), exceed the amount of the Loan as
reducing from time to time thereafter pursuant to clause 4.1.


 


4.7       Cancellation
of Commitments


 


The Borrowers may at any time during the
relevant Drawdown Period(s) by notice to the Agent (effective only on actual
receipt) cancel, with effect from a date not less than thirty (30) days after
the receipt by the Agent of such notice, the whole or any part (being Five hundred
thousand Dollars ($500,000) or any larger sum which is an integral multiple of
Five hundred thousand Dollars ($500,000)) of the Total Commitment which is then
available for drawing but has not then been borrowed or requested in a Drawdown
Notice. Any such notice of cancellation, once given, shall be irrevocable,
shall specify the Advance(s) and the amount thereof to be cancelled and upon
such cancellation taking effect the Commitment of each Bank shall be reduced
proportionately.


 


5                        Fees, commitment commission
and expenses


 


5.1       Fees


 


The Borrowers
shall pay to the Agent:


 


5.1.1                                 for the account of the Arranger and the Banks, an arrangement and
participation fee of such amount and payable at such times and in such manner
as specified in the Fee Letter. Such arrangement and participation fee shall be
distributed by the Agent to the Arranger and the Banks in such proportions as
separately agreed between the Arranger and each Bank; and


 


5.1.2                                 for the account of each Bank, on 3 January 2007 and on each of the
dates falling at three (3) monthly intervals thereafter until the last day of
the last Drawdown Period to elapse and on such day, commitment commission
computed from 3 October 2006 (in the case of the first payment of commission)
and from the date of the preceding payment of commission (in the case of each
subsequent payment), at the rate of zero point two five per cent (0.25%) per
annum on the daily undrawn amount of such Bank’s Commitment.


 


The fee and
commission referred to in clause 5.1 shall be payable by the Borrowers to the
Agent, whether or not any part of the Total Commitment is ever advanced and
shall be, in each case, non-refundable.


 


24

















 


5.2       Expenses


 


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


 


5.2.1                                 in connection with the negotiation, preparation, execution and,
where relevant, registration of the Security Documents (including, for the
avoidance of doubt, any expenses incurred by the Creditors or any of them in
connection with the legal opinions obtained pursuant to schedule 4) and of any
amendment or extension of or the granting of any waiver or consent under, any
of the Security Documents and the syndication of the Loan; and


 


5.2.2                                 in contemplation of, or otherwise in connection with, the
enforcement of, or preservation of any rights under, any of the Security
Documents, or otherwise in respect of the moneys owing under any of the Security
Documents,


 


together with interest at the rate referred to in clause 3.4 from
the date on which such expenses were incurred to the date of payment (as well
after as before judgment).


 


5.3       Value
added tax


 


All fees and expenses payable pursuant to this clause 5 shall be
paid together with value added tax or any similar tax (if any) properly
chargeable thereon. Any value added tax chargeable in respect of any services
supplied by the Creditors or any of them under this Agreement shall, on
delivery of the value added tax invoice, be paid in addition to any sum agreed
to be paid hereunder.


 


5.4             Stamp
and other duties


 


The Borrowers shall pay all stamp, documentary, registration or other
like duties or taxes (including any duties or taxes payable by any of the
Creditors) imposed on or in connection with any of the Underlying Documents,
the Security Documents or the Loan and shall indemnify the Creditors or any of
them against any liability arising by reason of any delay or omission by the
Borrowers to pay such duties or taxes.


 


6                        Payments and taxes; accounts
and calculations


 


6.1       No set-off
or counterclaim


 


The Borrowers acknowledge that in performing their obligations under
this Agreement, the Banks will be incurring liabilities to third parties in
relation to the funding of amounts to the Borrowers, such liabilities matching
the liabilities of the Borrowers to the Banks and that it is reasonable for the
Banks to be entitled to receive payments from the Borrowers gross on the due
date in order that each of the Banks is put in a position to perform its
matching obligations to the relevant third parties. Accordingly, all payments
to be made by the Borrowers under any of the Security Documents shall be made
in full, without any set-off or counterclaim whatsoever and, subject as
provided in clause 6.6, free and clear of any deductions or withholdings,
in Dollars on the due date to such account at such bank and in such place as
the Agent may from time to time specify for this purpose. Save as otherwise
provided in this Agreement or any relevant Security Documents, such payments
shall be for the account of all Banks and the Agent shall distribute such
payments in like funds as are received by the Agent to the Banks rateably in
accordance with their respective Commitment (if prior to the first drawdown) or
Contribution (if following the first drawdown).


 


6.2       Payment by
the Banks


 


All sums to be advanced by the Banks to the Borrowers under this
Agreement shall be remitted in Dollars on the Drawdown Date for the relevant
Advance to the account of the Agent at such bank as the Agent may have notified
to the Banks and shall be paid by the Agent on such date in like funds as are
received by the Agent to the account specified in the Drawdown Notice for such
Advance.


 


25

















 


6.3       Non-Banking
Days


 


When any payment under any of the Security Documents would otherwise be
due on a day which is not a Banking Day, the due date for payment shall be
extended to the next following Banking Day unless such Banking Day falls in the
next calendar month in which case payment shall be made on the immediately
preceding Banking Day.


 


6.4       Calculations


 


All interest and other payments of an annual nature under any of the
Security Documents shall accrue from day to day and be calculated on the basis
of actual days elapsed and a three hundred and sixty (360) days year.


 


6.5       Certificates
conclusive


 


Any certificate or determination of the Agent as to any rate of
interest or any other amount pursuant to and for the purposes of any of the
Security Documents shall, in the absence of manifest error, be conclusive and
binding on the Borrowers and on the Banks.


 


6.6       Grossing-up
for Taxes - by the Borrowers


 


6.6.1                                 If at any time the Borrowers or any of them are required to make any
deduction or withholding in respect of Taxes from any payment due under any of
the Security Documents for the account of any Creditor or if the Agent or the
Security Agent is required to make any deduction or withholding from a payment to
another Creditor or withholding in respect of Taxes from any payment due under
any of the Security Documents, the sum due from the Borrowers or any of them in
respect of such payment shall be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, the relevant Creditor
receives on the due date for such payment (and retains, free from any liability
in respect of such deduction or withholding), a net sum equal to the sum which
it would have received had no such deduction or withholding been required to be
made and the Borrowers shall indemnify each Creditor against any losses or
costs incurred by it by reason of any failure of the Borrowers or any of them
to make any such deduction or withholding or by reason of any increased payment
not being made on the due date for such payment. The Borrowers shall promptly
deliver to the Agent any receipts, certificates or other proof evidencing the
amounts (if any) paid or payable in respect of any deduction or withholding as
aforesaid.


 


6.6.2                                 For the avoidance of doubt, clause 6.6.1 does not apply in respect
of sums due from the Borrowers to a Swap Provider under or in connection with either
Master Swap Agreement as to which sums the provisions of section 2(d)
(Deduction or Withholding for Tax) of the relevant Master Swap Agreement shall
apply.


 


6.7       Loan
account


 


Each Bank shall maintain, in accordance with its usual practice, an
account evidencing the amounts from time to time lent by, owing to and paid to
it under the Security Documents. The Agent and/or the Security Agent shall
maintain a control account (being, in the case of any Mortgage which is in
statutory form, the “Account Current” referred to in such Mortgage) showing the
Loan and other sums owing by the Borrowers under the Security Documents and all
payments in respect thereof being made from time to time. The control account
shall, in the absence of manifest error, be conclusive as to the amount from
time to time owing by the Borrowers under the Security Documents.


 


6.8       Agent may assume receipt


 


Where any sum is to be paid under the Security
Documents to the Agent or, as the case may be, the Security Agent for the
account of another person, the Agent or, as the case may be, the Security Agent
may assume that the payment will be made when due and the Agent or, as the case
may be, the Security Agent may (but shall not be obliged to) make such sum
available to


 


26

















 


the person so entitled. If it proves to be the case
that such payment was not made to the Agent or, as the case may be, the
Security Agent, then the person to whom such sum was so made available shall on
request refund such sum to the Agent or, as the case may be, the Security Agent
together with interest thereon sufficient to compensate the Agent or, as the
case may be, the Security Agent for the cost of making available such sum up to
the date of such repayment and the person by whom such sum was payable shall
indemnify the Agent or, as the case may be, the Security Agent for any and all
loss or expense which the Agent or, as the case may be, the Security Agent may
sustain or incur as a consequence of such sum not having been paid on its due
date.


 


6.9       Partial
payments


 


If, on any date on which a payment is due to be made by the Borrowers
under any of the Security Documents, the amount received by the Agent from the
Borrowers falls short of the total amount of the payment due to be made by the
Borrowers on such date then, without prejudice to any rights or remedies available
to the Agent, the Security Agent and the Banks under any of the Security
Documents, the Agent shall apply the amount actually received from the
Borrowers in or towards discharge of the obligations of the Borrowers under the
Security Documents in the following order, notwithstanding any appropriation
made, or purported to be made, by the Borrowers:


 


6.9.1                                 first, in or towards payment, on a pro-rata basis, of any unpaid
costs and expenses of the Agent and the Security Agent under any of the
Security Documents;


 


6.9.2                                 secondly, in or towards payment, on a pro rata basis, of any fees
and accrued commitment commission payable to the Arranger, the Agent or any of
the other Creditors under, or in relation to, the Security Documents which
remain unpaid;


 


6.9.3                                 thirdly, in or towards payment to the Banks, on a pro rata basis, of
any accrued interest which shall have become due under any of the Security
Documents but remains unpaid;


 


6.9.4                                 fourthly, in or towards payment to the Banks, on a pro rata basis,
of any principal amount which shall have become due but remains unpaid;


 


6.9.5                                 fifthly, in or towards payment to the Banks, on a pro rata basis,
for any loss suffered by reason of any such payment in respect of principal not
being effected on an Interest Payment Date relating to the part of the Loan
repaid;


 


6.9.6                                 sixthly, in or towards payment to a Swap Provider of any sums owing
to it under the relevant Master Swap Agreement (and if sums are owing under
both Master Swap Agreements, proportionately as between the Swap Providers);
and


 


6.9.7                                 seventhly, in or towards payment to the relevant person of any other
sum which shall have become due under any of the Security Documents but remains
unpaid (and, if more than one such sum so remains unpaid, on a pro rata basis).


 


The order of application set out in clauses 6.9.2
to 6.9.6 may be varied by the Agent if the Majority Banks so direct, without
any reference to, or consent or approval from, the Borrowers.


 


7                        Representations and warranties


 


7.1       Continuing
representations and warranties


 


The Borrowers jointly and severally represent and warrant to each
Creditor that:


 


7.1.1                                 Due incorporation


 


each of the Borrowers and each of the other Security Parties (other
than the Personal Guarantor) are duly incorporated and validly existing in good
standing, under the laws of the Republic of Liberia as Liberian corporations
(in the case of the Borrowers), under the laws of


 


27

















 


the Republic of the Marshall Islands as Marshall Islands corporations (in
the case of the Corporate Guarantors and the Manager) and under the laws of
their respective countries of incorporation as limited liability companies (in
the case of the other Security Parties) and have power to carry on their
respective businesses as they are now being conducted and to own their
respective property and other assets;


 


7.1.2                                 Corporate power


 


each of the Borrowers has power to execute, deliver and perform its
obligations under the Underlying Documents and the relevant Borrowers’ Security
Documents to which it is or is to be a party and to borrow the Total Commitment
and each of the other Security Parties has power to execute and deliver and
perform its obligations under the Security Documents to which it is or is to be
a party; all necessary corporate, shareholder and other action has been taken
to authorise the execution, delivery and performance of the same and no
limitation on the powers of any Borrower to borrow will be exceeded as a result
of borrowing the Loan;


 


7.1.3                                 Binding obligations


 


the Underlying Documents and the Security Documents constitute or will,
when executed, constitute valid and legally binding obligations of the relevant
Security Parties enforceable in accordance with their respective terms;


 


7.1.4                                 No conflict with other obligations


 


the execution and delivery of, the performance of their obligations
under, and compliance with the provisions of, the Underlying Documents and the
Security Documents by the relevant Security Parties will not (i) contravene any
existing applicable law, statute, rule or regulation or any judgment, decree or
permit to which any of the Borrowers or any other Security Party 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 Borrowers or any other Security Party 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 Borrowers or any other
Security Party (other than the Personal Guarantor) or (iv) result in the
creation or imposition of or oblige any of the Borrowers or any of their
Related Companies or any other Security Party to create any Encumbrance (other
than a Permitted Encumbrance) on any of the undertakings, assets, rights or
revenues of any of the Borrowers or their Related Companies or any other
Security Party;


 


7.1.5                                 No litigation


 


no litigation, arbitration or administrative proceeding is taking
place, pending or, to the knowledge of the officers of any of the Borrowers,
threatened against any of the Borrowers or any of their Related Companies or
any other Security Party which could have a material adverse effect on the
business, assets or financial condition of any of the Borrowers or any of their
Related Companies or any other Security Party;


 


7.1.6                                 No filings required


 


save for the registration of the Mortgages in the relevant register
under the laws of the relevant Flag State through the relevant Registry, it is
not necessary to ensure the legality, validity, enforceability or admissibility
in evidence of any of the Underlying Documents or any of the Security 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 any of the Underlying Documents or
the Security Documents and each of the Underlying Documents and the Security
Documents is in proper form for its enforcement in the courts of each Relevant
Jurisdiction;


 


28

















 


7.1.7                                 Choice of law


 


the choice of English law to govern the Underlying Documents and the
Security Documents (other than the Mortgages, the Personal Guarantee and the
Account Pledges), the choice of (i) the law of the relevant Flag State to
govern each Mortgage and (ii) Greek law to govern the Account Pledges and the Personal
Guarantee, and the submissions by the Security Parties to the non-exclusive
jurisdiction of the English courts or (as the case may be) the Greek courts,
are valid and binding;


 


7.1.8                                 No immunity


 


neither the Borrowers nor any other Security Party nor any of their
respective assets is entitled to immunity on the grounds of sovereignty or
otherwise from any legal action or proceeding (which shall include, without
limitation, suit, attachment prior to judgement, execution or other
enforcement);


 


7.1.9                                 Financial statements correct and complete


 


the audited consolidated
financial statements of the Group in respect of the financial year ended on 31 December
2005 as delivered to the Agent have been prepared in accordance with the
Applicable Accounting Principles which have been consistently applied and
present fairly and accurately the consolidated financial position of the Group as
at such date and the consolidated results of the operations of the Group for
the financial year ended on such date and, as at such date, neither the Aegean
Marine Guarantor nor any other member of the Group had any significant
liabilities (contingent or otherwise) or any unrealised or anticipated losses
which are not disclosed by, or reserved against or provided for in, such financial
statements;


 


7.1.10                           Consents obtained


 


every consent, authorisation, licence or approval of, or registration
with or declaration to, governmental or public bodies or authorities or courts
required by any Security Party to authorise, or required by any Security Party
in connection with, the execution, delivery, validity, enforceability or
admissibility in evidence of each of the Underlying Documents and each of the
Security Documents to which it is or is to be a party or the performance by
each Security Party of its obligations under the Security Documents or the
Underlying Documents to which it is or is to be a party has been obtained or
made and is in full force and effect and there has been no default in the
observance of any of the conditions or restrictions (if any) imposed in, or in
connection with, any of the same; and


 


7.1.11                           Shareholdings


 


each of the Borrowers is a wholly-owned direct Subsidiary of the Aegean
Shipholdings Guarantor, each of the Aegean Shipholdings Guarantor and the
Manager is a wholly-owned direct Subsidiary of the Aegean Marine Guarantor and
all of the shares in the Aegean Marine Guarantor are legally and ultimately
beneficially owned by such persons as disclosed by or on behalf of the Borrowers
or any other Security Party to the Arranger and/or the Agent in the negotiation
of this Agreement.


 


7.2              Initial
representations and warranties


 


The Borrowers
jointly and severally further represent and warrant to each Creditor that:


 


7.2.1                                 Pari passu


 


the obligations of each Borrower under this Agreement are direct,
general and unconditional obligations of such Borrower and rank at least pari
passu with all other present and future unsecured and unsubordinated
Indebtedness of such Borrower except for obligations which are mandatorily preferred
by operation of law and not by contract;


 


29

















 


7.2.2                                 No default under other Indebtedness


 


(a)              none
of the Borrowers nor any of their respective Related Companies nor any other
Security Party is (nor would with the giving of notice or lapse of time or the
satisfaction of any other condition or combination thereof be) in breach of or
in default under any agreement relating to Indebtedness to which it is a party
or by which it may be bound; and


 


(b)             neither
the Builder nor any Refund Guarantor is (nor would with the giving of notice or
lapse of time or the satisfaction of any other condition or combination thereof
be) in breach of or in default under any agreement relating to Borrowed Money
to which it is a party or by which it may be bound;


 


7.2.3                                 Information


 


the information, exhibits and reports furnished by or on behalf of any
Security Party to the Creditors or any of them in connection with the
negotiation and preparation of the Security Documents are true and accurate in
all material respects and not misleading, do not omit material facts and all
reasonable enquiries have been made to verify the facts and statements
contained therein; there are no other facts the omission of which would make
any fact or statement therein misleading;


 


7.2.4                                 No withholding Taxes


 


no Taxes are imposed by withholding or otherwise on any payment to be
made by any Security Party under the Underlying Documents or the Security
Documents to which such Security Party is or is to be a party or are imposed on
or by virtue of the execution or delivery by the Security Parties of the
Underlying Documents or the Security Documents or any other document or
instrument to be executed or delivered under any of the Security Documents;


 


7.2.5                                 No Default


 


no Default has occurred and is continuing;


 


7.2.6                                 No Default under Contracts or Refund Guarantees


 


no Borrower is in default of any of its obligations under the relevant
Contract or the relevant Supervision Agreement or any of its obligations upon
the performance or observance of which depends the continued liability of any
Refund Guarantor in accordance with the terms of any Refund Guarantee relating
to such Borrower’s Ship;


 


7.2.7                                 No Encumbrance in respect of pre-delivery security


 


no Borrower has previously charged, encumbered or assigned the benefit
of any of its rights, title and interest in or to the relevant Contract, the
relevant Supervision Agreement or any Refund Guarantee relating to such
Borrower’s Ship and such benefit and all such rights, title and interest are
freely assignable and chargeable in the manner contemplated by the Security
Documents;


 


7.2.8                                 The Ships


 


each Ship will, on the Drawdown Date of the Delivery Advance relevant
to such Ship, be:


 


(a)              in
the absolute ownership of the relevant Borrower who will, on and after such
Drawdown Date, be the sole, legal and beneficial owner of such Ship;


 


(b)             registered
through the offices of the relevant Registry as a ship under the laws and flag
of the relevant Flag State;


 


(c)              operationally
seaworthy and in every way fit for service; and


 


30

















 


(d)             classed
with the relevant Classification free of all requirements and recommendations
of the relevant Classification Society;


 


7.2.9                                 Ships’ employment


 


none of the Ships is nor will, on or before the Drawdown Date of the
Delivery Advance relevant to such Ship, be subject to any charter or contract
or to any agreement to enter into any charter or contract which, if entered
into after the date of the relevant Ship Security Documents would have required
the consent of the Agent or, as the context may require, the Security Agent
and, on or before the Drawdown Date of the Delivery Advance relevant to such
Ship, there will not be any agreement or arrangement whereby the Earnings of
such Ship may be shared with any other person;


 


7.2.10                           Freedom from Encumbrances


 


no Ship, nor its Earnings, Insurances or Requisition Compensation nor
the Accounts nor any other properties or rights which are, or are to be, the subject
of any of the Security Documents nor any part thereof will be, on the Drawdown
Date of the Delivery Advance relevant to such Ship, subject to any Encumbrance
(other than any Permitted Encumbrances);


 


7.2.11                           Compliance with Environmental Laws and Approvals


 


except as may already have been disclosed by the Borrowers in writing
to, and acknowledged in writing by, the Agent:


 


(a)              the
Borrowers and the other Relevant Parties and, to the best of the Borrowers’
knowledge and belief (having made due enquiry), their respective Environmental
Affiliates have complied with the provisions of all Environmental Laws;


 


(b)             the
Borrowers and the other Relevant Parties and, to the best of the Borrowers’
knowledge and belief (having made due enquiry), their respective Environmental
Affiliates have obtained all Environmental Approvals and are in compliance with
all such Environmental Approvals; and


 


(c)              neither
the Borrowers nor any other Relevant Party nor, to the best of the Borrowers’
knowledge and belief (having made due enquiry), any of their respective
Environmental Affiliates has received notice of any Environmental Claim that
the Borrowers or any other Relevant Party or any such Environmental Affiliate
is not in compliance with any Environmental Law or any Environmental Approval;


 


7.2.12                           No Environmental Claims


 


except as may already have been disclosed by the Borrowers in writing
to, and acknowledged in writing by, the Agent, there is no Environmental Claim
pending or, to the best of the Borrowers’ knowledge and belief, threatened
against any of the Borrowers or any of the Ships or any other Relevant Party or
any other Relevant Ship or to the best of the Borrowers’ knowledge and belief
(having made due enquiry) any of their respective Environmental Affiliates;


 


7.2.13                           No potential Environmental Claims


 


except as may already have been disclosed by the Borrowers in writing
to, and acknowledged in writing by, the Agent, there has been no emission,
spill, release or discharge of a Pollutant from any of the Ships or any other
Relevant Ship owned by, managed or crewed by or chartered to the Borrowers nor,
to the best of the Borrowers’ knowledge and belief (having made due enquiry),
from any Relevant Ship owned by, managed or crewed by or chartered to any other
Relevant Party which could give rise to an Environmental Claim;


 


31

















 


7.2.14                           No material adverse change


 


there has been no material adverse change in the financial position or
the business of any Security Party or any other member of the Group, from that
described by or on behalf of the Borrowers to the Creditors or any of them in
the negotiation of this Agreement;


 


7.2.15                           Copies true and complete


 


the copies or originals of the Underlying Documents delivered or to be
delivered to the Agent pursuant to clause 9.1 are, or will when delivered
be, true and complete copies or, as the case may be, originals of such
documents; and such documents constitute valid and binding obligations of the
parties thereto enforceable in accordance with their respective terms and there
have been no amendments or variations thereof or defaults thereunder;


 


7.2.16                           ISPS Code


 


on the Drawdown Date of the Delivery Advance for a Ship, the relevant
Borrower shall have a valid and current ISSC in respect of that Ship and such
Ship shall be in compliance with the ISPS Code; and


 


7.2.17                           Borrowers’ own account


 


in relation to
the borrowing by each Borrower of the Loan, the performance and discharge of
its obligations and liabilities under the Security Documents and the
transactions and other arrangements effected or contemplated by this Agreement,
each Borrower is acting for its own account and that the foregoing will not
involve or lead to a contravention of any law, official requirement or other
regulatory measure or procedure which has been implemented by any relevant
regulatory authority or otherwise to combat “money
laundering” (as defined in Article 1 of the Directive
(91/308/EEC) of the Council of the European Communities (as amended)).


 


7.3              Repetition
of representations and warranties


 


On and as of
each Drawdown Date and (except in relation to the representations and
warranties in clause 7.2) on each Interest Payment Date, the Borrowers
shall:


 


(a)              be
deemed to repeat the representations and warranties in clauses 7.1 and 7.2
as if made with reference to the facts and circumstances existing on such day;
and


 


(b)             be
deemed to further represent and warrant to each of the Creditors that the then
latest audited financial statements delivered to the Agent by the Borrowers (if
any) have been prepared in accordance with the Applicable Accounting Principles
which have been consistently applied and present fairly and accurately the consolidated
financial position of the Group as at the end of the financial period to which
the same relate and the consolidated results of the operations of the Group for
the financial period to which the same relate and, as at the end of such
financial period, no member of the Group had any significant liabilities
(contingent or otherwise) or any unrealised or anticipated losses which are not
disclosed by, or reserved against or provided for in, such financial
statements.


 


8                        Undertakings


 


8.1       General


 


The Borrowers jointly and severally undertake with each Creditor that,
from the date of this Agreement and so long as any moneys are owing under any
of the Security Documents and while all or any part of the Total Commitment
remains outstanding, each Borrower will:


 


32

















 


8.1.1                                 Notice of Default


 


(a)              promptly
inform the Agent of any occurrence of which it becomes aware which might
adversely affect the ability of any Security Party to perform its obligations
under any of the Security Documents or the Underlying Documents to which it is
or is to be a party and, without limiting the generality of the foregoing, will
inform the Agent of any Default forthwith upon becoming aware thereof and will
from time to time, if so requested by the Agent, confirm to the Agent in
writing that, save as otherwise stated in such confirmation, no Default has
occurred and is continuing; and


 


(b)             promptly
inform the Agent of any occurrence of which it becomes aware which might
adversely affect the ability or rights of any Borrower to make any claims under
the Contract or the Supervision Agreement or any Refund Guarantee relating to
such Borrower’s Ship or which might reduce or release any of the obligations of
the Builder under such Contract or of Iota under such Supervision Agreement or
of the relevant Refund Guarantor under such Refund Guarantee (as the case may
be);


 


8.1.2                                 Consents and licences


 


without prejudice to clauses 7.1 and 9, obtain or cause to be
obtained, maintain in full force and effect and comply in all material respects
with the conditions and restrictions (if any) imposed in, or in connection
with, every consent, authorisation, licence or approval of governmental or
public bodies or authorities or courts and do, or cause to be done, all other
acts and things which may from time to time be necessary or desirable under
applicable law for the continued due performance of all the obligations of the
Security Parties under each of the Security Documents and the Underlying
Documents;


 


8.1.3                                 Use of proceeds


 


use the Loan or, as the case may be, the Advances exclusively for the
purposes specified in clauses 1.1 and 2.5;


 


8.1.4                                 Pari passu


 


ensure that its obligations under this Agreement shall, without
prejudice to the provisions of clause 8.3 and the security intended to be
created by the Security Documents, at all times rank at least pari passu with
all its other present and future unsecured and unsubordinated Indebtedness with
the exception of any obligations which are mandatorily preferred by law and not
by contract;


 


8.1.5                                 Financial statements


 


prepare or cause to be prepared:


 


(a)              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 ending on 31 December 2006) and cause the same to be
reported on by their auditors;


 


(b)             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 30 June 2006); and


 


(c)              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 Agent 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;


 


33

















 


8.1.6                                 Delivery of reports


 


deliver to the Agent sufficient copies for all the Banks of every
report, circular, notice or like document issued by any Relevant Party to its
shareholders or creditors generally;


 


8.1.7                                 Provision of further information


 


provide the Agent, and procure that the Corporate Guarantors and the
Manager shall provide the Agent, with such financial or other information
concerning any Borrower, their 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 Ships) as the Agent, any Bank or the Swap
Providers (each acting through the Agent) may from time to time require;


 


8.1.8                                 Obligations under Security Documents


 


and will procure that each of the other Security Parties will, duly and
punctually perform each of the obligations expressed to be assumed by it under
the Security Documents and the Underlying Documents to which it is a party;


 


8.1.9                                 Compliance with Code


 


and will procure that any Operator will, comply with and ensure that
the Ships and any Operator complies with the requirements of the Code,
including (but not limited to) the maintenance and renewal of valid
certificates pursuant thereto throughout the Security Period;


 


8.1.10                           Withdrawal of DOC and SMC


 


and will procure that any Operator will, immediately inform the Agent
if there is any threatened or actual withdrawal of such Operator’s DOC or the
SMC in respect of any of the Ships;


 


8.1.11                           Issuance of DOC and SMC


 


and will procure that any Operator will, promptly inform the Agent upon
the issue to any of the Borrowers or any Operator of a DOC and to any of the
Ships of an SMC or the receipt by any of the Borrowers or any Operator of
notification that its application for the same has been refused;


 


8.1.12                           ISPS Code compliance


 


and will procure that the Manager or any Operator will:


 


(a)              from
the Drawdown Date of the Delivery Advance of a Ship and at all times
thereafter, maintain a valid and current ISSC respect of that Ship;


 


(b)             immediately
notify the Agent in writing of any actual or threatened withdrawal, suspension,
cancellation or modification of the ISSC in respect of a Ship; and


 


(c)              procure
that, from the Drawdown Date of the Delivery Advance of a Ship and at all times
thereafter, that Ship complies with the ISPS Code; and


 


8.1.13                           Charters


 


provided it has first obtained the consent of the Security Agent or any
other Creditors in accordance with the relevant Ship Security Documents and/or
clause 8.5, (i) deliver to the Agent, a certified copy of each time charter or
other contract of employment of its Ship with a tenor (including any options to
extend) exceeding twelve (12) months, forthwith after its execution, (ii)
forthwith on the Agent’s request execute (1) a specific assignment of any such


 


34














 


time charter or other contract of employment in favour of the Security
Agent in a form acceptable to the Agent in its sole discretion and (2) any
notice of assignment required in connection therewith in a form acceptable to
the Agent in its sole discretion, and promptly procure the acknowledgement of
any such notice of assignment by the relevant charterer in a form acceptable to
the Agent in its sole discretion, and (iii) pay all legal and other costs
incurred by any Creditor in connection with any such specific assignments,
forthwith following the Agent’s demand.


 


8.2              Security
value maintenance


 


8.2.1                                 Security shortfall


 


If, at any time after the earlier of (i) the Drawdown Date of the last
Delivery Advance to be drawn down and (ii) the last day of the last Drawdown
Period to elapse, the Security Value shall be less than the Security
Requirement, the Agent (acting on the instructions of the Majority Banks) shall
give notice to the Borrowers requiring that such deficiency be remedied and
then the Borrowers shall either:


 


(a)              prepay
within a period of thirty (30) days of the date of receipt by the Borrowers of
the Agent’s said notice such sum in Dollars as will result in the Security
Requirement after such prepayment (taking into account any other repayment of
the Loan made between the date of the notice and the date of such prepayment)
being equal to the Security Value; or


 


(b)             within
thirty (30) days of the date of receipt by the Borrowers of the Agent’s said
notice constitute to the satisfaction of the Majority Banks such further
security for the Loan and any amounts owing under the Master Swap Agreements as
shall be acceptable to the Banks having a value for security purposes (as
determined by the Agent in its absolute discretion) at the date upon which such
further security shall be constituted which, when added to the Security Value,
shall not be less than the Security Requirement as at such date.


 


The provisions of clauses 4.4 and 4.5 shall apply to prepayments
under clause 8.2.1(a).


 


8.2.2                                 Valuation of Mortgaged Ships


 


Each Mortgaged Ship shall, for the purposes of this Agreement, be
valued in Dollars as and when the Agent (acting on the instructions of the
Majority Banks) shall require (and at least once every calendar year) by two
(2) Approved Brokers selected by the Borrowers or, failing such selection by
the Borrowers, appointed by the Agent in its discretion. Each such valuation shall
be made without, unless required by the Agent, physical inspection, and on the
basis of a sale for prompt delivery for cash at arm’s length, on normal
commercial terms, as between a willing buyer and a willing seller, without
taking into account the benefit of any charterparty or other engagement concerning
the relevant Mortgaged Ship. The arithmetic mean of such two (2) valuations
shall constitute the value of such Mortgaged Ship for the purposes of this
clause 8.2.


 


The value of
each Mortgaged Ship determined in accordance with the provisions of this
clause 8.2.2 shall be binding upon the parties hereto until such time as
any further such valuation shall be obtained.


 


8.2.3                                 Information


 


The Borrowers jointly and severally undertake with the Creditors to
supply to the Agent and to any such shipbrokers such information concerning the
relevant Mortgaged Ship and its condition as such shipbroker may require for
the purpose of making any such valuation.


 


8.2.4                                 Costs


 


All costs in connection with the Agent obtaining any valuation of each
of the Mortgaged Ships referred to in clause 8.2.2, any valuation referred to
in schedule 4, Part 4, paragraph 19 and


 


35

















 


any valuation either of any additional security for the purposes of
ascertaining the Security Value at any time or necessitated by the Borrowers
electing to constitute additional security pursuant to clause 8.2.1(b),
shall be borne by the Borrowers.


 


8.2.5                                 Valuation of additional security


 


For the purposes of this clause 8.2, the market value of any
additional security provided or to be provided to the Creditors or any of them
shall be determined by the Majority Banks in their absolute discretion without
any necessity for the Majority Banks assigning any reason therefor.


 


8.2.6                                 Documents and evidence


 


In connection with any additional security provided in accordance with
this clause 8.2, the Agent shall be entitled to receive such evidence and
documents of the kind referred to in schedule 4 as may in the Agent’s
opinion be appropriate and such favourable legal opinions as the Agent shall in
its absolute discretion require.


 


8.3              Negative
undertakings


 


The Borrowers
jointly and severally undertake with each Creditor that, from the date of this
Agreement and so long as any moneys are owing under the Security Documents and
while all or any part of the Total Commitment remains outstanding, they will
not, without the prior written consent of the Agent (acting on the instructions
of the Majority Banks):


 


8.3.1                                 Negative pledge


 


permit any Encumbrance (other than a Permitted Encumbrance) to subsist,
arise or be created or extended over all or any part of their respective
present or future undertakings, assets, rights or revenues to secure or prefer
any present or future Indebtedness or other liability or obligation of any Relevant
Party or any other person;


 


8.3.2                                 No merger


 


merge or consolidate with any other person or enter into any demerger,
amalgamation, corporate reconstruction or redomiciliation of any kind;


 


8.3.3                                 Disposals


 


sell, transfer, abandon, lend or otherwise dispose of or cease to
exercise direct control over any part (being, either alone or when aggregated
with all other disposals falling to be taken into account pursuant to this
clause 8.3.3, material in the opinion of the Agent in relation to the
undertaking, assets, rights and revenues of a Borrower taken as a whole) of their
present or future undertaking, assets, rights or revenues (otherwise than by
transfers, sales or disposals for full consideration in the ordinary course of
trading, which however shall exclude any assets, rights or revenues which are the
subject of the Security Documents) whether by one or a series of transactions
related or not;


 


8.3.4                                 Other business


 


undertake any business other than the ownership and operation of the
Ships and will procure that neither Corporate Guarantor will, without the prior
written consent of the Agent (acting on the instructions of the Majority
Banks), undertake any business other than that conducted by such Corporate
Guarantor at the date of this Agreement;


 


8.3.5                                 Acquisitions


 


acquire any further assets other than the Ships and rights arising
under contracts entered into by or on behalf of the Borrowers in the ordinary
course of their businesses of owning, operating and chartering the Ships;


 


36

















 


8.3.6                                 Other obligations


 


incur any obligations except for obligations arising under the
Underlying Documents or the Security Documents or contracts entered into in the
ordinary course of their business of owning, operating and chartering the
Ships;


 


8.3.7                                 No borrowing


 


incur any Borrowed Money except for Borrowed Money pursuant to the
Security Documents;


 


8.3.8                                 Repayment of borrowings


 


repay or prepay the principal of, or pay interest on or any other sum
in connection with any of their Borrowed Money except for Borrowed Money
pursuant to the Security Documents;


 


8.3.9                                 Guarantees


 


issue any guarantees or indemnities or otherwise become directly or
contingently liable for the obligations of any person, firm, or corporation
except (a) pursuant to the Security Documents and (b) for guarantees or
indemnities from time to time required in the ordinary course by any protection
and indemnity or war risks association with which a Ship is entered, guarantees
required to procure the release of a Ship from any arrest, detention,
attachment or levy or guarantees or undertakings required for the salvage of a
Ship;


 


8.3.10                           Loans


 


make any loans or grant any credit (save for normal trade credit in the
ordinary course of business) to any person or agree to do so;


 


8.3.11                           Sureties


 


permit any Indebtedness of any Borrower to any person (other than the
Creditors pursuant to the Security Documents) to be guaranteed by any person
(save for guarantees or indemnities from time to time required in the ordinary
course by any protection and indemnity or war risks association with which a
Ship is entered, guarantees required to procure the release of a Ship from any
arrest, detention, attachment or levy or guarantees or undertakings required
for the salvage of a Ship);


 


8.3.12                           Share capital and distribution


 


purchase or otherwise acquire for value any shares of their capital or
declare or pay any dividends or distribute any of their present or future
assets, undertakings, rights or revenues to any of their shareholders Provided always that following the Listing Date, the Borrowers
may declare or pay dividends to their respective shareholders in respect of any
financial year if no Default shall have occurred at the time of declaration or
payment of such dividends or would occur as a result thereof;


 


8.3.13                           Subsidiaries


 


form or acquire any Subsidiaries;


 


8.3.14                           Shareholdings


 


permit any change in the legal and/or ultimate beneficial ownership of any
of the shares in any of the Borrowers, the Aegean Shipholdings Guarantor, the
Manager or the Aegean Marine Guarantor from that specified in clause 7.1.11 Provided however that following the Listing Date such
restriction, insofar as it relates to the shares in the Aegean Marine
Guarantor, shall only apply in respect of the ultimate beneficial ownership of
thirty five per cent (35%) of the issued shares in the Aegean Marine Guarantor
which shall at all times after the Listing Date remain ultimately beneficially
owned by the persons who are the ultimate


 


37

















 


beneficial owners of all of the shares in the Aegean Marine Guarantor
on the date of this Agreement as specified in clause 7.1.11 Provided further that, in any event, such persons shall not,
at any time after the Listing Date, ultimately beneficially own in aggregate
less issued shares in the Aegean Marine Guarantor than any other person; or


 


8.3.15                           Hedging arrangements


 


enter into any
interest rate, currency or other swaps, forward exchange contracts, futures or
other derivative transactions with any person other than with the Swap Providers
pursuant to the Master Swap Agreements and other than on terms and conditions
agreed between the relevant Swap Provider and the Borrowers.


 


8.4              Pre-delivery
positive undertakings


 


The Borrowers
hereby jointly and severally undertake and agree with each Creditor that they
will:


 


8.4.1                                 Conveyance on default


 


where any Ship is (or is to be) sold in exercise of any power contained
in the relevant Pre-delivery Security Assignment or otherwise conferred on the
Security Agent or any other Creditor, procure that the relevant Borrower shall
execute, forthwith upon request by the Agent, such form of conveyance of such
Ship as the Agent may require;


 


8.4.2                                 Flag State


 


not later than thirty (30) days prior to the Delivery Date of a Ship,
obtain the Agent’s written approval of the Flag State for such Ship; and


 


8.4.3                                 Mortgage


 


immediately upon Delivery of a Ship, procure that the relevant Borrower
shall execute, and procure the registration of, the Mortgage for such Ship
under the laws and flag of the relevant Flag State.


 


8.5              Pre-delivery
negative undertaking


 


The Borrowers
hereby jointly and severally further undertake and agree with each Creditor
that they will not, without the prior written consent of the Agent acting on
the instructions of the Majority Banks (which consent the Agent and the Banks
shall have full liberty to withhold) and then, if such consent is given, only
subject to such conditions as the Agent (acting on the instructions of the
Majority Banks) may impose, let or agree to let any Ship:


 


8.5.1                                 on demise charter for any period; or


 


8.5.2                                 by any time or consecutive voyage charter for a term which exceeds
or which by virtue of any optional extensions therein contained may exceed twelve
(12) months’ duration; or


 


8.5.3                                 on terms whereby more than two (2) months’ hire (or the equivalent)
is payable in advance; or


 


8.5.4                                 below the market rate prevailing at the time when the relevant Ship
is fixed.


 


38

















 


9                        Conditions


 


9.1                    Documents and evidence


 


9.1.1                                 Commitments


 


The obligation of each Bank to make its Commitment available shall be
subject to the condition that the Agent or its duly authorised representative
shall have received, not later than two (2) Banking Days before the date of
this Agreement, the documents and evidence specified in Part 1 of schedule 4,
in form and substance satisfactory to the Agent.


 


9.1.2                                 First Contract Instalment Advances


 


The obligation of the Banks to make available the first Contract
Instalment Advance in respect of any Ship shall be subject to the condition
that the Agent or its duly authorised representative shall have received, on or
prior to the drawdown of the first Contract Instalment Advance for such Ship,
the documents and evidence specified in Part 2 of schedule 4 in respect of
such Ship, in form and substance satisfactory to the Agent.


 


9.1.3                                 Second, third and fourth Contract Instalment Advances


 


The obligation of the Banks to make available any of the second, the
third or the fourth Contract Instalment Advance in respect of any Ship shall be
subject to the condition that the Agent or its duly authorised representative
shall have received, on or prior to the drawdown of the relevant Contract
Instalment Advance for such Ship, the documents and evidence specified in Part
3 of schedule 4 in respect of such Ship and such Advance, in form and substance
satisfactory to the Agent.


 


9.1.4                                 Delivery Advances


 


The obligation of the Banks to make available the Delivery Advance in
respect of any Ship shall be subject to the condition that the Agent or its
duly authorised representative shall have received, on or prior to the drawdown
of the Delivery Advance for such Ship, the documents and evidence specified in
Part 4 of schedule 4 in respect of such Ship, in form and substance satisfactory
to the Agent.


 


9.1.5                                 Additional Cost Advances


 


The obligation of the Banks to make available the Additional Cost Advance
in respect of any Ship shall be subject to the condition that the Agent or its
duly authorised representative shall have received, on or prior to the drawdown
of the Additional Cost Advance for such Ship, the documents and evidence
specified in Part 5 of schedule 4 in respect of such Ship, in form and
substance satisfactory to the Agent.


 


9.2              General
conditions precedent


 


The obligation
of the Banks to make any Advance available shall be subject to the further
conditions that, at the time of the giving of the Drawdown Notice for such
Advance, and at the time of the making of such Advance:


 


9.2.1                                 the representations and warranties contained in (a) clauses 7.1,
7.2 and 7.3(b) of this Agreement, (b) clause 4 of each Corporate Guarantee and
(c) clause 3.1 of, and the schedule to, the Personal Guarantee, are true and
correct on and as of each such time as if each was made with respect to the facts
and circumstances existing at such time; and


 


9.2.2                                 no Default shall have occurred and be continuing or would result
from the making of the relevant Advance.


 


39

















 


9.3              Waiver
of conditions precedent


 


The conditions
specified in this clause 9 are inserted solely for the benefit of the
Banks and may be waived by the Agent (acting on the instructions of the
Majority Banks) in whole or in part and with or without conditions.


 


9.4              Further
conditions precedent


 


Not later than five (5) Banking Days prior to each Drawdown Date and
not later than five (5) Banking Days prior to each Interest Payment Date, the
Agent (acting on the instructions of the Majority Banks) may request and the
Borrowers shall, not later than two (2) Banking Days prior to such date,
deliver to the Agent on such request further relevant certificates and/or
favourable opinions as to any or all of the matters which are the subject of
clauses 7, 8, 9 and 10.


 


10                 Events of Default


 


10.1             Events


 


There shall be an Event of Default if:


 


10.1.1                           Non-payment: any
Security Party fails to pay any sum payable by it under any of the Security
Documents at the time, in the currency and in the manner stipulated in the
Security Documents or the Underlying Documents (and so that, for this purpose,
sums payable on demand shall be treated as having been paid at the stipulated
time if paid within three (3) Banking Days of demand); or


 


10.1.2                           Master Swap Agreements:
(a) an Event of Default or Potential Event of Default (in each case as defined
in the relevant Master Swap Agreement) has occurred and is continuing with a
Borrower as the Defaulting Party (as defined in the relevant Master Swap
Agreement) under either Master Swap Agreement or (b) an Early Termination Date
has occurred or has been or become capable of being effectively designated
under either Master Swap Agreement by the relevant Swap Provider or (c) either
Master Swap Agreement is terminated, cancelled, suspended, rescinded or revoked
or otherwise ceases to remain in full force and effect for any reason; or


 


10.1.3                           Breach of Insurance and certain other obligations: any of the Borrowers or, as the context may require, the Manager
or any other person fails to obtain and/or maintain the Insurances for any of
the Mortgaged Ships or if any insurer in respect of such Insurances cancels the
Insurances or disclaims liability by reason, in either case, of mis-statement
in any proposal for the Insurances or for any other failure or default on the
part of any of the Borrowers or any other person or any of the Borrowers
commits any breach of or omits to observe any of the obligations or
undertakings expressed to be assumed by them under clauses 8.2 or 8.3 or
8.4 or 8.5 or either Corporate Guarantor commits any breach of or omits to
observe any of the obligations or undertakings expressed to be assumed by it
under clauses 5.2 or 5.3 of the relevant Corporate Guarantee; or


 


10.1.4                           Breach of other obligations: any Security Party commits any breach of or omits to observe any
of its obligations or undertakings expressed to be assumed by it under any of
the Security Documents (other than those referred to in clauses 10.1.1,
10.1.2 and 10.1.3 above) and, in respect of any such breach or omission which
in the opinion of the Agent (following consultation with the Banks) is capable
of remedy, such action as the Agent (acting on the instructions of the Majority
Banks) may require shall not have been taken within fourteen (14) days of the
Agent notifying the relevant Security Party of such default and of such
required action; or


 


10.1.5                           Misrepresentation: any
representation or warranty made or deemed to be made or repeated by or in
respect of any Security Party in or pursuant to any of the Security Documents
or in any notice, certificate or statement referred to in or delivered under
any of the Security Documents is or proves to have been incorrect or misleading
in any material respect; or


 


40

















 


10.1.6                           Cross-default: any
Indebtedness of any Security Party or any other Restricted Company is not paid
when due or any Indebtedness of any Security Party or any other Restricted
Company becomes (whether by declaration or automatically in accordance with the
relevant agreement or instrument constituting the same) due and payable prior
to the date when it would otherwise have become due (unless as a result of the
exercise by the relevant Security Party or any other Restricted Company of a
voluntary right of prepayment), or any creditor of any Security Party or any
other Restricted Company becomes entitled to declare any such Indebtedness due
and payable or any facility or commitment available to any Security Party or
any other Restricted Company relating to Indebtedness is withdrawn, suspended
or cancelled by reason of any default (however described) of the person
concerned unless the relevant Security Party or other Restricted Company shall
have satisfied the Agent that such withdrawal, suspension or cancellation will
not affect or prejudice in any way the relevant Security Party’s or other
Restricted Company’s ability to pay its debts as they fall due and fund its
commitments, or any guarantee given by any Security Party or other Restricted
Company in respect of Indebtedness is not honoured when due and called upon; or


 


10.1.7                           Legal process: any
judgment or order made against any Security Party or other Restricted Company
is not stayed or complied with within seven (7) days or a creditor attaches or
takes possession of, or a distress, execution, sequestration or other process
is levied or enforced upon or sued out against, any of the undertakings,
assets, rights or revenues of any Security Party or other Restricted Company
and is not discharged within seven (7) days; or


 


10.1.8                           Insolvency: any
Security Party or other Restricted Company is unable or admits inability to pay
its debts as they fall due; suspends making payments on any of its debts or
announces an intention to do so; becomes insolvent; has assets the value of
which is less than the value of its liabilities (taking into account contingent
and prospective liabilities); or suffers the declaration of a moratorium in
respect of any of its Indebtedness; or


 


10.1.9                           Reduction or loss of capital: a meeting is convened by any Security Party (other than the Personal
Guarantor) or other Restricted Company for the purpose of passing any
resolution to purchase, reduce or redeem any of its share capital; or


 


10.1.10                     Winding up: any
corporate action, legal proceedings or other procedure or step is taken for the
purpose of winding-up any Security Party (other than the Personal Guarantor) or
other Restricted Company or an order is made or resolution passed for the
winding up of any Security Party or other Restricted Company or a notice is
issued convening a meeting for the purpose of passing any such resolution; or


 


10.1.11                     Administration: any
petition is presented, notice given or other step is taken for the purpose of
the appointment of an administrator of any Security Party (other than the
Personal Guarantor) or other Restricted Company or the Agent believes that any
such petition or other step is imminent or an administration order is made in
relation to any Security Party (other than the Personal Guarantor) or other
Restricted Company; or


 


10.1.12                     Appointment of receivers and managers: any administrative or other receiver is appointed of any Security
Party or other Restricted Company or any part of its assets and/or undertaking
or any other steps are taken to enforce any Encumbrance over all or any part of
the assets of any Security Party or other Restricted Company; or


 


10.1.13                     Compositions: any
corporate action, legal proceedings or other procedures or steps are taken, or
negotiations commenced, by any Security Party or other Restricted Company or by
any of its creditors with a view to the general readjustment or rescheduling of
all or part of its indebtedness or to proposing any kind of composition,
compromise or arrangement involving such company and any of its creditors; or


 


10.1.14                     Analogous proceedings:
there occurs, in relation to any Security Party or other Restricted Company, in
any country or territory in which any of them carries on business or to the
jurisdiction of whose courts any part of their assets is subject, any event
which, in the reasonable opinion of the Agent, appears in that country or
territory to correspond with, or have an effect equivalent or similar to, any
of those mentioned in clauses 10.1.7 to 10.1.13


 


41

















 


(inclusive) or any Security Party or other
Restricted Company otherwise becomes subject, in any such country or territory,
to the operation of any law relating to insolvency, bankruptcy or liquidation;
or


 


10.1.15                     Cessation of business:
any Security Party or other Restricted Company or any other Restricted Company
suspends or ceases or threatens to suspend or cease to carry on its business;
or


 


10.1.16                     Seizure: all or a
material part of the undertaking, assets, rights or revenues of, or shares or
other ownership interests in, any Security Party or other Restricted Company
are seized, nationalised, expropriated or compulsorily acquired by or under the
authority of any government; or


 


10.1.17                     Invalidity: any of the
Security Documents and the Underlying Documents shall at any time and for any reason
become invalid or unenforceable or otherwise cease to remain in full force and
effect, or if the validity or enforceability of any of the Security Documents
and the Underlying Documents shall at any time and for any reason be contested
by any Security Party or other Restricted Company which is a party thereto, or
if any such Security Party or Restricted Company shall deny that it has any, or
any further, liability thereunder; or


 


10.1.18                     Unlawfulness: it
becomes impossible or unlawful at any time for any Security Party, to fulfil
any of the covenants and obligations expressed to be assumed by it in any of
the Security Documents or for a Creditor to exercise the rights or any of them
vested in it under any of the Security Documents or otherwise; or


 


10.1.19                     Repudiation: any
Security Party repudiates any of the Security Documents or does or causes or
permits to be done any act or thing evidencing an intention to repudiate any of
the Security Documents; or


 


10.1.20                     Encumbrances enforceable: any Encumbrance (other than Permitted Liens) in respect of any of
the property (or part thereof) which is the subject of any of the Security
Documents becomes enforceable; or


 


10.1.21                     Material adverse change: there occurs, in the opinion of the Agent (following consultation
with the Banks), a material adverse change in the financial position or
business of any Security Party or any other member of the Group by reference to
the financial position or (as the case may be) business of such Security Party
as described by or on behalf of any Borrower or any other Security Party to the
Creditors or any of them in the negotiation of this Agreement; or


 


10.1.22                     Arrest: any Ship is
arrested, confiscated, seized, taken in execution, impounded, forfeited,
detained in exercise or purported exercise of any possessory lien or other
claim or otherwise taken from the possession of the relevant Borrower and the
relevant Borrower shall fail to procure the release of such Ship within a
period of seven (7) days thereafter; or


 


10.1.23                     Registration: the
registration of any Ship under the laws and flag of the relevant Flag State is
cancelled or terminated without the prior written consent of the Majority Banks
or the registration of such Ship is not renewed at least forty-five (45) days
prior to the expiry of such registration; or


 


10.1.24                     Unrest: the Flag State
of any Ship becomes involved in hostilities or civil war or there is a seizure
of power in the Flag State of any Ship by unconstitutional means; or


 


10.1.25                     Environment: any
Borrower and/or any other Relevant Party and/or any of their respective
Environmental Affiliates fails to comply with any Environmental Law or any
Environmental Approval or any of the Ships or any other Relevant Ship is
involved in any incident which gives rise or may give rise to an Environmental
Claim; or


 


10.1.26                     P&I: any Borrower
or the Manager or any other person fails or omits to comply with any
requirements of the protection and indemnity association or other insurer with
which a Ship is


 


42

















 


entered for insurance or insured against
protection and indemnity risks (including oil pollution risks) to the effect
that any cover (including, without limitation, any cover in respect of
liability for Environmental Claims arising in jurisdictions where such Ship
operates or trades) is or may be liable to cancellation, qualification or
exclusion at any time; or


 


10.1.27                     Personal Guarantor:
the Personal Guarantor passes away or is found to be of unsound mind by a court
of a Relevant Jurisdiction, unless there shall have been delivered to the Agent
a substitute guarantee or other security acceptable to the Banks within seven
(7) days of either of such events occurring; or


 


10.1.28                     Shareholdings: there
is any change in the legal and/or ultimate beneficial ownership of any of the
shares of any of the Borrowers, either of the Corporate Guarantors or the
Manager from that existing on the date of this Agreement as specified in clause
7.1.11 save for any change in respect of the shares in the Aegean Marine
Guarantor following the Listing Date which does not result in (a) less than
thirty five per cent (35%) of the issued shares in the Aegean Marine Guarantor
being ultimately beneficially owned by the persons who are the ultimate
beneficial owners of all the shares in the Aegean Marine Guarantor on the date
of this Agreement as specified in clause 7.1.11 (for the purposes of this
clause the “beneficial owners”) or (b) the
beneficial owners ultimately beneficially owning in aggregate less issued
shares in the Aegean Marine Guarantor than any other person; or


 


10.1.29                     Termination or variation of, or dispute under, Contracts
or Supervision Agreements:  any Contract or Supervision Agreement is
terminated or rescinded for any reason whatsoever; or any Contract or
Supervision Agreement is frustrated; or any Contract or Supervision Agreement is
varied in any manner not permitted by or pursuant to the relevant Pre-delivery
Security Assignment or this Agreement; or there is any material dispute or
litigation or any other material proceedings between the relevant parties under
or in respect of any Contract or Supervision Agreement; or


 


10.1.30                     Termination of Refund Guarantees:  any Refund Guarantee is
repudiated, cancelled, rescinded or otherwise terminated or expires (other than
by the return of such Refund Guarantee by the relevant Borrower to the Builder
and/or any Refund Guarantor following the Delivery of the relevant Ship); or


 


10.1.31                     Non-Delivery of Ship or non-drawing of Delivery
Advance:  any
Ship is not delivered to, and accepted by, the relevant Borrower under the
relevant Contract or the Delivery Advance for such Ship is not drawn down, in
either case, on or before the end of the Drawdown Period for the Delivery
Advance relevant to such Ship; or


 


10.1.32                     Payments under Refund Guarantees:  any claim made under any
Refund Guarantee is not paid within twenty (20) Banking Days of it being made
and whether or not such claim has been referred to arbitration pursuant to the
relevant Refund Guarantee Provided however that, if there is a related claim
made under the relevant Contract which has been referred to arbitration
thereunder, it shall not be an Event of Default unless the relevant claim under
the relevant Refund Guarantee has not been paid within one hundred and eighty
(180) days of it being made; or


 


10.1.33                     Accounts: moneys are
withdrawn from any of the Accounts other than in accordance with clause 14;
or


 


10.1.34                     Licenses, etc:  any license, authorisation, consent or
approval at any time necessary to enable any Security Party to comply with its
obligations under the Security Documents or the Underlying Documents is revoked
or withheld or modified or is otherwise not granted or fails to remain in full
force and effect or if any exchange control or other law or regulation shall
exist which would make any transaction under the Security Documents or the
Underlying Documents or the continuation thereof, unlawful or would prevent the
performance by any Security Party of any term of any of the Security Documents
or the Underlying Documents; or


 


10.1.35                     Listing: following the
Listing Date, the shares of the Aegean Marine Guarantor are de-listed or
suspended from, or cease to trade (whether temporarily or permanently) on, the
New York


 


43

















 


Stock Exchange, NASDAQ or any other stock
exchange (as the case may be) where such shares are listed at such time; or


 


10.1.36                     Material events: any
other event occurs or circumstance arises which, in the reasonable opinion of the
Agent (following consultation with the Banks), is likely materially and
adversely to affect either (i) the ability of any Security Party to perform all
or any of its obligations under or otherwise to comply with the terms of any of
the Security Documents or any of the Underlying Documents or (ii) the security
created by any of the Security Documents.


 


10.2       Acceleration


 


The Agent may,
and if so requested by the Majority Banks shall, without prejudice to any other
rights of the Banks, at any time after the occurrence of an Event of Default by
notice to the Borrowers declare that:


 


10.2.1                           the obligation of each Bank to make available its Commitment shall
be terminated, whereupon the Total Commitment shall be reduced to zero
forthwith; and/or


 


10.2.2                           the Loan and all interest and commitment commission accrued and all
other sums payable under the Security Documents have become due and payable,
whereupon the same shall, immediately or in accordance with the terms of such
notice, become due and payable.


 


10.3       Demand
basis


 


If, pursuant
to clause 10.2.2, the Agent declares the Loan to be due and payable on
demand, the Agent may (and if so instructed by the Majority Banks shall) by
written notice to the Borrowers (a) call for repayment of the Loan on such date
as may be specified whereupon the Loan shall become due and payable on the date
so specified together with all interest accrued and all other sums payable
under this Agreement or (b) withdraw such declaration with effect from the date
specified in such notice.


 


10.4       Position
of Swap Providers


 


Neither the
Agent nor the Security Agent shall be obliged, in connection with any action
taken or proposed to be taken under or pursuant to the foregoing provisions of
this clause 10, to have any regard to the requirements of the Swap Providers
except to the extent that either such Swap Provider is also a Bank.


 


11                 Indemnities


 


11.1    Miscellaneous
indemnities


 


The Borrowers
shall on demand indemnify each Creditor, without prejudice to any of such
Creditor’s other rights under any of the Security Documents, against any loss
(including loss of Margin) or expense which such Creditor shall certify as
sustained or incurred by it as a consequence of:


 


11.1.1                           any default in payment of any sum under any of the Security
Documents when due;


 


11.1.2                           the occurrence of any other Event of Default;


 


11.1.3                           any prepayment or reduction of a Tranche or part thereof being made
under clauses 4.3, 8.2.1(a) or 12.1 or any other repayment or prepayment
of a Tranche or part thereof being made otherwise than on an Interest Payment
Date relating to the part of the Tranche prepaid or repaid; or


 


11.1.4                           any Advance not being made for any reason (excluding any default by
the Agent or any Bank) after the Drawdown Notice for such Advance has been
given,


 


44

















 


including, in
any such case, but not limited to, any loss or expense sustained or incurred by
the relevant Creditor in maintaining or funding its Contribution or, as the
case may be, its Commitment (or any part thereof) or in liquidating or re-employing
deposits from third parties acquired to effect or maintain its Contribution or,
as the case may be, its Commitment (or any part thereof) or any other amount
owing to such Creditor.


 


11.2       Currency
indemnity


 


If any sum due
from any of the Borrowers under any of the Security Documents or any order or
judgment given or made in relation thereto has to be converted from the
currency (the “first currency”) in which the same
is payable under the relevant Security Document or under such order or judgment
into another currency (the “second currency”)
for the purpose of (a) making or filing a claim or proof against the Borrowers
or any of them, (b) obtaining an order or judgment in any court or other
tribunal or (c) enforcing any order or judgment given or made in relation to
any of the Security Documents, the Borrowers shall indemnify and hold harmless
each Creditor from and against any loss suffered as a result of any difference
between (i) the rate of exchange used for such purpose to convert the sum in
question from the first currency into the second currency and (ii) the rate or
rates of exchange at which the relevant Creditor may in the ordinary course of
business purchase the first currency with the second currency upon receipt of a
sum paid to it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof. Any amount due from the Borrowers under this
clause 11.2 shall be due as a separate debt and shall not be affected by
judgment being obtained for any other sums due under or in respect of any of
the Security Documents and the term “rate of exchange”
includes any premium and costs of exchange payable in connection with the
purchase of the first currency with the second currency.


 


11.3       Environmental
indemnity


 


The Borrowers
shall indemnify each Creditor on demand and hold it harmless from and against
all costs, expenses, payments, charges, losses, demands, liabilities, actions,
proceedings (whether civil or criminal), penalties, fines, damages, judgements,
orders, sanctions or other outgoings of whatever nature which may be suffered,
incurred or paid by, or made or asserted against such Creditor at any time,
whether before or after the repayment in full of principal and interest under
this Agreement, relating to, or arising directly or indirectly in any manner or
for any cause or reason whatsoever out of an Environmental Claim made or
asserted against such Creditor if such Environmental Claim would not have been,
or been capable of being, made or asserted against such Creditor if it had not
entered into any of the Security Documents and/or exercised any of its rights,
powers and discretions thereby conferred and/or performed any of its
obligations thereunder and/or been involved in any of the transactions
contemplated by the Security Documents.


 


11.4       Central
Bank or European Central Bank reserve requirements indemnity


 


The Borrowers
shall on demand promptly indemnify each Bank against any cost incurred or loss
suffered by such Bank as a result of its complying with the minimum reserve
requirements of the European Central Bank and/or with respect to maintaining
required reserves with the relevant national Central Bank to the extent that
such compliance relates to such Bank’s Commitment and/or Contribution or
deposits obtained by it to fund the whole or part of its Contribution and to
the extent such cost or loss is not recoverable by such Bank under clause 12.2.


 


12                 Unlawfulness
and increased costs


 


12.1       Unlawfulness


 


If it is or
becomes contrary to any law or regulation for any Bank to contribute to an
Advance or to maintain its Commitment or fund the Loan, such Bank shall
promptly, through the Agent, give notice to the Borrowers whereupon (a) such
Bank’s Commitment shall be reduced to zero and (b) the Borrowers shall be
obliged to prepay such Bank’s Commitment either (i) forthwith or (ii) on a
future specified date not being earlier than the latest date permitted by the
relevant law or


 


45

















 


regulation together
with interest accrued to the date of prepayment and all other sums payable by
the Borrowers under this Agreement and/or the Master Swap Agreements or any of
them.


 


12.2    Increased
costs


 


If the result
of any change in, or in the interpretation or application of, or the
introduction of, any law or any regulation, request or requirement (whether or
not having the force of law, but, if not having the force of law, with which a
Bank or, as the case may be, its holding company habitually complies), including
(without limitation) those relating to Taxation, capital adequacy, liquidity,
reserve assets, cash ratio deposits and special deposits, is to:


 


12.2.1                           subject any Bank to Taxes or change the basis of Taxation of any
Bank with respect to any payment under any of the Security Documents (other
than Taxes or Taxation on the overall net income, profits or gains of such Bank
imposed in the jurisdiction in which its principal or lending office under this
Agreement is located); and/or


 


12.2.2                           increase the cost to, or impose an additional cost on, any Bank or
its holding company in making or keeping such Bank’s Commitment available or
maintaining or funding all or part of such Bank’s Contribution; and/or


 


12.2.3                           reduce the amount payable or the effective return to any Bank under
any of the Security Documents; and/or


 


12.2.4                           reduce any Bank’s or its holding company’s rate of return on its
overall capital by reason of a change in the manner in which it is required to
allocate capital resources to such Bank’s obligations under any of the Security
Documents; and/or


 


12.2.5                           require any Bank or its holding company to make a payment or forgo a
return on or calculated by reference to any amount received or receivable by
such Bank under any of the Security Documents; and/or


 


12.2.6                           require any Bank or its holding company to incur or sustain a loss
(including a loss of future potential profits) by reason of being obliged to
deduct all or part of its Commitment or the Loan from its capital for
regulatory purposes,


 


then and in each
such case (subject to clause 12.3):


 


(a)          such
Bank shall notify the Borrowers in writing of such event promptly upon its
becoming aware of the same; and


 


(b)         the
Borrowers shall on demand made at any time whether or not such Bank’s
Contribution has been repaid, pay to the Agent for the account of such Bank the
amount which such Bank specifies (in a certificate setting forth the basis of
the computation of such amount but not including any matters which such Bank or
its holding company regards as confidential) is required to compensate such
Bank and/or (as the case may be) its holding company for such liability to
Taxes, cost, reduction, payment , forgone return or loss.


 


For the
purposes of this clause 12.2 “holding company”
means the company or entity (if any) within the consolidated supervision of
which a Bank is included.


 


12.3       Exception


 


Nothing in
clause 12.2 shall entitle any Bank to receive any amount in respect of
compensation for any such liability to Taxes, increased or additional cost,
reduction, payment, foregone return or loss to the extent that the same is the
subject of an additional payment under clause 6.6.


 


46

















 


13                 Security, set-off and pro-rata payments


 


13.1       Application
of moneys


 


All moneys
received by the Agent and/or the Security Agent under or pursuant to any of the
Security Documents and expressed to be applicable in accordance with the
provisions of this clause 13.1, shall be applied in the following manner:


 


13.1.1                           first, in or towards payment of all unpaid costs and expenses which
may be owing to the Agent and/or the Security Agent or either of them under any
of the Security Documents;


 


13.1.2                           secondly, in or towards payment of any unpaid fees and commitment
commission payable to the Creditors or any of them;


 


13.1.3                           thirdly, in or towards payment of any arrears of interest owing in
respect of the Loan or any part thereof;


 


13.1.4                           fourthly, in or towards repayment of the Loan (whether the same is
due and payable or not);


 


13.1.5                           fifthly, in or towards payment to any Bank for any loss suffered by
reason of any such payment in respect of principal not being effected on an
Interest Payment Date relating to the part of the Loan repaid;


 


13.1.6                           sixthly, in or towards payment to a Swap Provider of any sums owing
to it under the relevant Master Swap Agreement (and if any sums are owing under
both Master Swap Agreements, proportionately as between such Swap Providers);


 


13.1.7                           seventhly, in or towards payment to any Creditor of any other sums
owing to it under any of the Security Documents; and


 


13.1.8                           eighthly, the surplus (if any) shall be paid to the Borrowers or to
whomsoever else may be entitled to receive such surplus.


 


13.2  Set-off


 


13.2.1                           The Borrowers authorise each Creditor (without prejudice to any of
such Creditor’s rights at law, in equity or otherwise), at any time after the
occurrence of an Event of Default and without notice to the Borrowers, to apply
any credit balance to which the Borrowers or any of them is then entitled
standing upon any account of the Borrowers or any of them with any branch of
such Creditor in or towards satisfaction of any sum due and payable from the
Borrowers or any of them to such Creditor under any of the Security Documents. For
this purpose, each Creditor is authorised to purchase with the moneys standing
to the credit of such account such other currencies as may be necessary to
effect such application.


 


13.2.2                           No Creditor shall be obliged to exercise any right given to it by
this clause 13.2. Each Creditor shall notify the Borrowers through the
Agent forthwith upon the exercise or purported exercise of any right of set-off
giving full details in relation thereto and the Agent shall inform the other
Creditors.


 


13.2.3                           Nothing in this clause 13.2 shall be effective to create a charge or
other security interest.


 


13.3  Pro rata
payments


 


13.3.1                           If at any time any Bank (the “Recovering Bank”)
receives or recovers any amount owing to it by the Borrowers under this
Agreement by direct payment, set-off or in any manner other than by payment
through the Agent pursuant to clauses 6.1 or 6.9 (not being a payment
received from a Transferee Bank or a sub-participant in such Bank’s
Contribution or any other payment of an amount due to the Recovering Bank for
its sole account pursuant to clauses 3.6, 5, 6.6, 11.1, 11.2, 12.1, or
12.2), the Recovering Bank shall, within two (2) Banking Days of such receipt
or recovery (a “Relevant Receipt”) notify the
Agent of the


 


47

















 


amount of the Relevant Receipt. If the
Relevant Receipt exceeds the amount which the Recovering Bank would have
received if the Relevant Receipt had been received by the Agent and distributed
pursuant to clause 6.1 or 6.9 (as the case may be) then:


 


(a)          within
two (2) Banking Days of demand by the Agent, the Recovering Bank shall pay to
the Agent an amount equal (or equivalent) to the excess;


 


(b)         the
Agent shall treat the excess amount so paid by the Recovering Bank as if it
were a payment made by the Borrowers and shall distribute the same to the Banks
(other than the Recovering Bank) in accordance with clause 6.9; and


 


(c)          as
between the Borrowers and the Recovering Bank the excess amount so
re-distributed shall be treated as not having been paid but the obligations of
the Borrowers to the other Banks shall, to the extent of the amount so
re-distributed to them, be treated as discharged.


 


13.3.2                           If any part of the Relevant Receipt subsequently has to be wholly or
partly refunded by the Recovering Bank (whether to a liquidator or otherwise)
each Bank to which any part of such Relevant Receipt was so re-distributed
shall on request from the Recovering Bank repay to the Recovering Bank such
Bank’s pro-rata share of the amount which has to be refunded by the Recovering
Bank.


 


13.3.3                           Each Bank shall on request supply to the Agent such information as
the Agent may from time to time request for the purposes of this
clause 13.3.


 


13.3.4                           Notwithstanding the foregoing provisions of this clause 13.3,
no Recovering Bank shall be obliged to share any Relevant Receipt which it
receives or recovers pursuant to legal proceedings taken by it to recover any
sums owing to it under this Agreement with any other party which has a legal
right to, but does not, either join in such proceedings or commence and
diligently pursue separate proceedings to enforce its rights in the same or
another court (unless the proceedings instituted by the Recovering Bank are
instituted by it without prior notice having been given to such party through
the Agent).


 


13.4  No release


 


For the
avoidance of doubt it is hereby declared that failure by any Recovering Bank to
comply with the provisions of clause 13.3 shall not release any other
Recovering Bank from any of its obligations or liabilities under clause 13.3.


 


13.5  No charge


 


The provisions
of this clause 13 shall not, and shall not be construed so as to,
constitute a charge by a Bank over all or any part of a sum received or
recovered by it in the circumstances mentioned in clause 13.3.


 


13.6  Further assurance


 


The Borrowers
jointly and severally undertake with each Creditor that the Security Documents
shall both at the date of execution and delivery thereof and so long as any
moneys are owing under any of the Security Documents be valid and binding
obligations of the respective parties thereto and rights of each Bank
enforceable in accordance with their respective terms and that they will, at
their expense, execute, sign, perfect and do, and will procure the execution,
signing, perfecting and doing by each of the other Security Parties of, any and
every such further assurance, document, act or thing as in the reasonable
opinion of the Majority Banks may be necessary or desirable for perfecting the
security contemplated or constituted by the Security Documents.


 


48

















 


13.7  Conflicts


 


In the event
of any conflict between this Agreement and any of the other Borrowers’ Security
Documents, the provisions of this Agreement shall prevail.


 


14                 Accounts


 


14.1  General


 


The Borrowers
jointly and severally undertake with each Creditor that they will:


 


14.1.1                           on or before the Drawdown Date of the first Advance to be drawn
down, open each of the Accounts; and


 


14.1.2                           procure that all moneys payable to each Borrower in respect of the
Earnings of such Borrower’s Ship shall, unless and until the Agent (acting on
the instructions of the Majority Banks) directs to the contrary pursuant to the
provisions of the relevant Deed of Covenant, be paid to the such Borrower’s
Operating Account, Provided however that if any of the moneys paid to any of
the Operating Accounts are payable in a currency other than Dollars, the
Account Bank shall (and each Borrower in respect of its own Operating Account
hereby irrevocably instructs the Account Bank to) convert such moneys into
Dollars at the Account Bank’s spot rate of exchange at the relevant time for
the purchase of Dollars with such currency and the term “spot rate of
exchange” shall include any premium and costs of exchange payable in
connection with the purchase of Dollars with such currency.


 


14.2  Operating
Accounts: withdrawals


 


Unless the
Agent (acting on the instructions of the Majority Banks) otherwise agrees in
writing, no Borrower shall be entitled to withdraw any moneys from its Operating
Account at any time from the date of this Agreement and so long as any moneys
are owing under the Security Documents save that, unless and until a Default
shall occur and the Agent (acting on the instructions of the Majority Banks)
shall direct to the contrary, each Borrower may withdraw moneys from its
Operating Account for the following purposes:


 


14.2.1                           to transfer to the Retention Account on each Retention Date all or
part of the Retention Amount for such Retention Date;


 


14.2.2                           to pay any amount to the Agent in or towards payments of any
instalments of interest or principal or any other amounts then payable pursuant
to the Security Documents;


 


14.2.3                           to pay the proper and reasonable expenses of its Ship;


 


14.2.4                           to pay the proper and reasonable expenses of administering its
affairs; and


 


14.2.5                           to pay dividends to the extent permitted by clause 8.3.12.


 


14.3  Retention
Account: credits and withdrawals


 


14.3.1                           The Borrowers hereby jointly and severally undertake with each
Creditor that they will, from the date of this Agreement and so long as any
moneys are owing under the Security Documents, on each Retention Date pay to
the Account Bank for credit to the Retention Account, the Retention Amount for
such Retention Date provided however that, to the extent that there are moneys
standing to the credit of the Operating Accounts (or any of them) as at any
Retention Date, such moneys shall, up to an amount equal to the Retention
Amount for such Retention Date, be transferred to the Retention Account on that
Retention Date (and the Borrowers hereby irrevocably authorise the Account Bank
to effect each such transfer) and to that extent the Borrowers’ obligations to
make the payments referred to in this clause 14.3.1 shall have been
fulfilled upon such transfer being effected. The obligation of the Borrowers
under this clause 14.3.1 to pay moneys to the credit of the Retention Account
shall cease to exist on the date falling after the Listing Date when the Aegean
Marine Guarantor shall have complied with the financial undertakings contained
in clause 5.3.1 of the Aegean Marine Guarantee Provided
always that no Event of Default shall have occurred as at such date.


 


49

















 


14.3.2                           Unless and until there shall occur an Event of Default (whereupon
the provisions of clause 14.4 shall apply), each Retention Amount in
respect of a Tranche credited to the Retention Account together with interest
from time to time accruing or at any time accrued thereon shall be applied by
the Account Bank (and the Borrowers hereby irrevocably authorise the Account
Bank so to apply the same) upon each Repayment Date for the relevant Tranche
and/or on each day that interest is payable pursuant to clause 3.1 on such
Tranche, in or towards payment to the Agent of the relevant instalment then
falling due for repayment or, as the case may be, the relevant amount of
interest then due. Each such application by the Account Bank shall constitute a
payment in or towards satisfaction of the Borrowers’ corresponding payment
obligations under this Agreement but shall be strictly without prejudice to the
obligations of each of the Borrowers to make any such payment to the extent
that the aforesaid application by the Account Bank is insufficient to meet the
same.


 


14.3.3                           Unless the Agent (acting on the instructions of the Majority Banks)
otherwise agrees in writing and subject to clause 14.3.2, none of the
Borrowers shall be entitled to withdraw any moneys from the Retention Account
at any time from the date of this Agreement and so long as any moneys are owing
under the Security Documents.


 


14.4       Application
of Accounts


 


At any time
after the occurrence of an Event of Default, the Agent may (and on the
instructions of the Majority Banks shall), without notice to the Borrowers,
instruct the Account Bank to apply all moneys then standing to the credit of
the Accounts or any of them (together with interest from time to time accruing
or accrued thereon) in or towards satisfaction of any sums due to the Creditors
or any of them under the Security Documents in the manner specified in
clause 13.1.


 


14.5       Charging
of Accounts


 


The Accounts
and all amounts from time to time standing to the credit thereof shall be
subject to the security constituted and the rights conferred by the Account
Pledges.


 


15                 Assignment,
transfer and lending office


 


15.1  Benefit and
burden


 


This Agreement
shall be binding upon, and enure for the benefit of, the Creditors and the
Borrowers and their respective successors in title.


 


15.2  No assignment
by Borrowers


 


No Borrower
may assign or transfer any of its rights or obligations under this Agreement.


 


15.3  Transfers by
Banks


 


Any Bank (the “Transferor Bank”) may at any time cause all or any part of
its rights, benefits and/or obligations under this Agreement and the Security
Documents to be transferred to any other bank or financial institution (a “Transferee Bank”) by delivering to the Agent a Transfer
Certificate duly completed and duly executed by the Transferor Bank and the
Transferee Bank. No such transfer is binding on, or effective in relation to,
the Borrowers or the Agent unless (i) it is effected or evidenced by a Transfer
Certificate which complies with the provisions of this clause 15.3 and is
signed by or on behalf of the Transferor Bank, the Transferee Bank and the
Agent (on behalf of itself, the Borrowers and the other Creditors) and (ii)
such transfer of rights under the other Security Documents has been effected
and registered. Upon signature of any such Transfer Certificate by the Agent,
which signature shall be effected as promptly as is practicable after such
Transfer Certificate has been delivered to the Agent, and subject to the terms
of such Transfer Certificate, such Transfer Certificate shall have effect as
set out below.


 


50

















 


The following
further provisions shall have effect in relation to any Transfer Certificate:


 


15.3.1                           a Transfer Certificate may be in respect of a Bank’s rights in
respect of all, or part of, its Commitment and shall be in respect of the same
proportion of its Contribution;


 


15.3.2                           a Transfer Certificate shall only be in respect of rights and
obligations of the Transferor Bank in its capacity as a Bank and shall not
transfer its rights and obligations as the Agent, or in any other capacity, as
the case may be and such other rights and obligations may only be transferred
in accordance with any applicable provisions of this Agreement;


 


15.3.3                           a Transfer Certificate shall take effect in accordance with English
law as follows:


 


(a)          to the
extent specified in the Transfer Certificate, the Transferor Bank’s payment
rights and all its other rights (other than those referred to in
clause 15.3.2 above) under this Agreement are assigned to the Transferee
Bank absolutely, free of any defects in the Transferor Bank’s title and of any
rights or equities which the Borrowers had against the Transferor Bank;


 


(b)         the
Transferor Bank’s Commitment is discharged to the extent specified in the
Transfer Certificate;


 


(c)          the
Transferee Bank becomes a Bank with a Contribution and/or a Commitment of the
amounts specified in the Transfer Certificate;


 


(d)         the
Transferee Bank becomes bound by all the provisions of this Agreement and the
Security Documents which are applicable to the Banks generally, including those
about pro-rata sharing and the exclusion of liability on the part of, and the
indemnification of, the Arranger, the Agent and the Security Agent and to the
extent that the Transferee Bank becomes bound by those provisions, the
Transferor Bank ceases to be bound by them;


 


(e)          an
Advance or part of an Advance which the Transferee Bank makes after the
Transfer Certificate comes into effect ranks in point of priority and security
in the same way as it would have ranked had it been made by the Transferor
Bank, assuming that any defects in the Transferor Bank’s title and any rights
or equities of any Security Party against the Transferor Bank had not existed;
and


 


(f)            the
Transferee Bank becomes entitled to all the rights under this Agreement which
are applicable to the Banks generally, including but not limited to those
relating to the Majority Banks and those under clauses 3.6, 5 and 12 and
to the extent that the Transferee Bank becomes entitled to such rights, the
Transferor Bank ceases to be entitled to them;


 


15.3.4                           the rights and equities of the Borrowers or of any other Security
Party referred to above include, but are not limited to, any right of set-off
and any other kind of cross-claim; and


 


15.3.5                           the Borrowers, the Account Bank, the Security Agent, the Arranger, the
Swap Providers and the Banks hereby irrevocably authorise and instruct the
Agent to sign any such Transfer Certificate on their behalf and undertake not
to withdraw, revoke or qualify such authority or instruction at any time. Promptly
upon its signature of any Transfer Certificate, the Agent shall notify the
Borrowers, the Transferor Bank and the Transferee Bank.


 


15.4  Reliance on
Transfer Certificate


 


15.4.1                           The Agent shall be entitled to rely on any Transfer Certificate believed
by it to be genuine and correct and to have been presented or signed by the
persons by whom it purports to have been presented or signed, and shall not be
liable to any of the parties to this Agreement and the Security Documents for
the consequences of such reliance.


 


51

















 


15.4.2                           The Agent shall at all times during the continuation of this
Agreement maintain a register in which it shall record the name, Commitments,
Contributions and administrative details (including the lending office) from
time to time of the Banks holding a Transfer Certificate and the date at which
the transfer referred to in such Transfer Certificate held by each Bank was
transferred to such Bank, and the Agent shall make the said register available
for inspection by any Bank or any Borrower during normal banking hours upon
receipt by the Agent of reasonable prior notice requesting the Agent to do so.


 


15.4.3                           The entries on the said register shall, in the absence of manifest
error, be conclusive in determining the identities of the Commitments, the
Contributions and the Transfer Certificates held by the Banks from time to time
and the principal amounts of such Transfer Certificates and may be relied upon
by the Agent and the other Security Parties for all purposes in connection with
this Agreement and the Security Documents.


 


15.5  Transfer fees
and expenses


 


If any Bank
causes the transfer of all or any part of its rights, benefits and/or
obligations under the Security Documents, the Borrowers shall pay to the Agent
on demand all costs, fees and expenses (including, but not limited to, legal
fees and expenses), and all value added tax thereon, verified by the Agent as
having been incurred by such Bank in connection with such transfer.


 


15.6  Documenting
transfers


 


If any Bank
assigns all or any part of its rights or transfers all or any part of its
rights, benefits and/or obligations as provided in clause 15.3, the
Borrowers jointly and severally undertake, immediately on being requested to do
so by the Agent and at the cost of the Transferor Bank, to enter into, and
procure that the other Security Parties shall (at the cost of the Transferor
Bank) enter into, such documents as may be necessary or desirable to transfer
to the Transferee Bank all or the relevant part of such Bank’s interest in the
Security Documents and all relevant references in this Agreement to such Bank
shall thereafter be construed as a reference to the Transferor Bank and/or its
Transferee Bank (as the case may be) to the extent of their respective
interests.


 


15.7  Sub-participation


 


A Bank may
sub-participate all or any part of its rights and/or obligations under the
Security Documents without the consent of, or notice to, the Borrowers.


 


15.8  Lending office


 


Each Bank shall
lend through its office at the address specified in schedule 2 or, as the
case may be, in any relevant Transfer Certificate or through any other office
of such Bank selected from time to time by it through which such Bank wishes to
lend for the purposes of this Agreement. If the office through which a Bank is
lending is changed pursuant to this clause 15.8, such Bank shall notify
the Agent promptly of such change and the Agent shall notify the Borrowers, the
Security Agent, the Account Bank, the Swap Providers and the other Banks.


 


15.9  Disclosure of
information


 


A Bank may
disclose to a prospective assignee, transferee or to any other person who may
propose entering into contractual relations with such Bank in relation to this
Agreement such information about the Borrowers and/or the other Security
Parties as such Bank shall consider appropriate.


 


52

















 


16                 Arranger,
Agent and Security Agent


 


16.1  Appointment of
the Agent


 


Each Bank and each
Swap Provider irrevocably appoints the Agent as its agent for the purposes of
this Agreement and such of the Security Documents to which it may be
appropriate for the Agent to be party. By virtue of such appointment, each of
the Banks and each of the Swap Providers hereby authorises the Agent:


 


16.1.1                           to execute such documents as may be approved by the Majority Banks
for execution by the Agent; and


 


16.1.2                           (whether or not by or through employees or agents) to take such
action on such Bank’s or such Swap Provider’s behalf and to exercise such
rights, remedies, powers and discretions as are specifically delegated to the
Agent by this Agreement and/or any other Security Document, together with such
powers and discretions as are reasonably incidental thereto.


 


16.2  Agent’s actions


 


Any action
taken by the Agent under or in relation to this Agreement or any of the other
Security Documents whether with requisite authority or on the basis of
appropriate instructions, received from the Banks and/or the Swap Providers (or
as otherwise duly authorised) shall be binding on all the Banks and the Swap
Providers.


 


16.3  Agent’s duties


 


The Agent
shall:


 


16.3.1                           promptly notify each Bank and each Swap Provider of the contents of
each notice, certificate or other document received by it from the Borrowers
under or pursuant to clauses 8.1.1, 8.1.5 and 8.1.7; and


 


16.3.2                           (subject to the other provisions of this clause 16) take (or
instruct the Security Agent to take) such action or, as the case may be,
refrain from taking (or authorise the Security Agent to refrain from taking)
such action with respect to the exercise of any of its rights, remedies, powers
and discretions as agent, as the Majority Banks may direct.


 


16.4  Agent’s rights


 


The Agent may:


 


16.4.1                           in the exercise of any right, remedy, power or discretion in
relation to any matter, or in any context, not expressly provided for by this
Agreement or any of the other Security Documents, act or, as the case may be,
refrain from acting (or authorise the Security Agent to act or refrain from acting)
in accordance with the instructions of the Banks and/or the Swap Providers, and
shall be fully protected in so doing;


 


16.4.2                           unless and until it shall have received directions from the Majority
Banks, take such action or, as the case may be, refrain from taking such action
(or authorise the Security Agent to take or refrain from taking such action) in
respect of a Default of which the Agent has actual knowledge as it shall deem
advisable in the best interests of the Banks and the Swap Providers (but shall
not be obliged to do so);


 


16.4.3                           refrain from acting (or authorise the Security Agent to refrain from
acting) in accordance with any instructions of the Banks and/or the Swap
Providers to institute any legal proceedings arising out of or in connection
with this Agreement or any of the other Security Documents until it and/or the
Security Agent has been indemnified and/or secured to its satisfaction against
any and all costs, expenses or liabilities (including legal fees) which it
would or might incur as a result;


 


53

















 


16.4.4                           deem and treat (i) each Bank as the person entitled to the benefit
of the Contribution of such Bank for all purposes of this Agreement unless and
until a notice shall have been filed with the Agent pursuant to
clause 15.3 and shall have become effective, and (ii) the office set
opposite the name of each of the Banks in schedule 2 unless and until a
written notice of change of lending office shall have been received by the
Agent and the Agent may act upon any such notice unless and until the same is
superseded by a further such notice;


 


16.4.5                           rely as to matters of fact which might reasonably be expected to be
within the knowledge of any Security Party upon a certificate signed by any director
or officer of the relevant Security Party on behalf of the relevant Security
Party; and


 


16.4.6                           do anything which is in its opinion necessary or desirable to comply
with any law or regulation in any jurisdiction.


 


16.5  No liability of
Arranger or Agent


 


Neither the Arranger
nor the Agent nor any of their respective employees and agents shall:


 


16.5.1                           be obliged to make any enquiry as to the use of any of the proceeds
of the Loan unless (in the case of the Agent) so required in writing by a Bank,
in which case the Agent shall promptly make the appropriate request to the
Borrowers; or


 


16.5.2                           be obliged to make any enquiry as to any breach or default by the
Borrowers or any of them or any other Security Party in the performance or
observance of any of the provisions of this Agreement or any of the other
Security Documents or as to the existence of a Default unless (in the case of
the Agent) the Agent has actual knowledge thereof or has been notified in
writing thereof by a Bank or a Swap Provider, in which case the Agent shall
promptly notify the Banks and the Swap Providers of the relevant event or
circumstance; or


 


16.5.3                           be obliged to enquire whether or not any representation or warranty
made by the Borrowers or any of them or any other Security Party pursuant to
this Agreement or any of the other Security Documents is true; or


 


16.5.4                           be obliged to do anything (including, without limitation, disclosing
any document or information) which would, or might in its opinion, be contrary
to any law or regulation or be a breach of any duty of confidentiality or
otherwise be actionable or render it liable to any person; or


 


16.5.5                           be obliged to account to any Bank or either Swap Provider for any
sum or the profit element of any sum received by it for its own account; or


 


16.5.6                           be obliged to institute any legal proceedings arising out of or in
connection with this Agreement or any of the other Security Documents other
than on the instructions of the Majority Banks; or


 


16.5.7                           be liable to any Bank or either Swap Provider for any action taken
or omitted under or in connection with this Agreement or any of the other
Security Documents unless caused by its gross negligence or wilful misconduct.


 


For the
purposes of this clause 16, neither the Arranger nor the Agent shall be
treated as having actual knowledge of any matter of which the corporate finance
or any other division outside the agency or loan administration department of
the Arranger or the person for the time being acting as the Agent may become
aware in the context of corporate finance, advisory or lending activities from
time to time undertaken by the Arranger or, as the case may be, the Agent for
any Security Party or any other person which may be a trade competitor of any
Security Party or may otherwise have commercial interests similar to those of
any Security Party.


 


54

















 


16.6    Non-reliance
on Arranger or Agent


 


Each Bank and each
Swap Provider acknowledges that it has not relied on any statement, opinion,
forecast or other representation made by the Arranger or the Agent to induce it
to enter into this Agreement or any of the other Security Documents and that it
has made and will continue to make, without reliance on the Arranger or the
Agent and based on such documents as it considers appropriate, its own
appraisal of the creditworthiness of the Security Parties and its own
independent investigation of the financial condition, prospects and affairs of
the Security Parties in connection with the making and continuation of such
Bank’s Commitment or Contribution under this Agreement. Neither the Arranger
nor the Agent shall have any duty or responsibility, either initially or on a
continuing basis, to provide any Bank or either Swap Provider with any credit
or other information with respect to any Security Party whether coming into its
possession before the making of the Loan or at any time or times thereafter
other than as provided in clause 16.3.1.


 


16.7    No
responsibility on Arranger or Agent for Borrowers’ performance


 


Neither the Arranger
nor the Agent shall have any responsibility or liability to any Bank or either
Swap Provider:


 


16.7.1                           on account of the failure of any Security Party to perform its
obligations under any of the Security Documents; or


 


16.7.2                           for the financial condition of any Security Party; or


 


16.7.3                           for the completeness or accuracy of any statements, representations
or warranties in any of the Security Documents or any document delivered under
any of the Security Documents; or


 


16.7.4                           for the execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of any of the Security Documents or
of any certificate, report or other document executed or delivered under any of
the Security Documents; or


 


16.7.5                           to investigate or make any enquiry into the title of the Borrowers
or any other Security Party to the Ships or any other security or any part
thereof; or


 


16.7.6                           for the failure to register any of the Security Documents with any
official or regulatory body or office or elsewhere; or


 


16.7.7                           for taking or omitting to take any other action under or in relation
to any of the Security Documents or any aspect of any of the Security
Documents; or


 


16.7.8                           on account of the failure of the Security Agent to perform or
discharge any of its duties or obligations under the Security Documents; or


 


16.7.9                           otherwise in connection with this Agreement or its negotiation or
for acting (or, as the case may be, refraining from acting) in accordance with
the instructions of the Banks or the Swap Providers.


 


16.8    Reliance on
documents and professional advice


 


Each of the Arranger
and the Agent 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 selected or approved by it (including those in the Arranger’s
or, as the case may be, the Agent’s employment).


 


16.9    Other
dealings


 


Each of the Arranger
and the Agent may, without any liability to account to the Banks or the Swap
Providers, accept deposits from, lend money to, and generally engage in any
kind of


 


55

















 


banking or
other business with, and provide advisory or other services to, any Security
Party or any of its Related Companies or any of the Banks or the Swap Providers
as if it were not the Arranger or, as the case may be, the Agent.


 


16.10  Rights of Agent
as Bank; no partnership


 


With respect
to its own Commitment and Contribution (if any) the Agent shall have the same
rights and powers under the Security Documents as any other 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 “Banks”
shall, unless the context clearly otherwise indicates, include the Agent in its
individual capacity as a Bank. This Agreement shall not and shall not be
construed so as to constitute a partnership between the parties or any of them.


 


16.11  Amendments and
waivers


 


16.11.1                     Subject to clause 16.11.2, the Agent may, with the consent of
the Majority Banks (or if and to the extent expressly authorised by the other
provisions of any of the Security Documents) and, if so instructed by the
Majority Banks, shall:


 


(a)          agree
(or authorise the Security Agent to agree) amendments or modifications to any
of the Security Documents with the Borrowers and/or any other Security Party; and/or


 


(b)         vary or
waive breaches of, or defaults under, or otherwise excuse performance of, any
provision of any of the other Security Documents by the Borrowers and/or any
other Security Party (or authorise the Security Agent to do so).


 


Any such action so authorised and effected by the Agent shall be
documented in such manner as the Agent shall (with the approval of the Majority
Banks) determine, shall be promptly notified to the Banks and the Swap Providers
by the Agent and (without prejudice to the generality of clause 16.2)
shall be binding on the Banks and the Swap Providers.


 


16.11.2                     Except with the prior written consent of the Banks and the Swap
Providers, the Agent shall have no authority on behalf of the Banks and the
Swap Providers to agree (or authorise the Security Agent to agree) with the
Borrowers and/or any other Security Party any amendment or modification to any
of the Security Documents or to grant (or authorise the Security Agent to
grant) waivers in respect of breaches or defaults or to vary or excuse (or
authorise the Security Agent to vary or excuse) performance of or under any of
the Security Documents by the Borrowers or any of them and/or any other
Security Party, if the effect of such amendment, modification, waiver or excuse
would be to:


 


(a)          reduce
the Margin;


 


(b)         postpone
the due date or reduce the amount of any payment of principal, interest or
other amount payable by any Security Party under any of the Security Documents;


 


(c)          change
the currency in which any amount is payable by any Security Party under any of
the Security Documents;


 


(d)         increase
any Bank’s Commitment;


 


(e)          extend the
Termination Date;


 


(f)            change
any provision of any of the Security Documents which expressly or implied
requires the approval or consent of all the Banks such that the relevant
approval or consent may be given otherwise than with the sanction of all the
Banks;


 


(g)         change
the order of distribution under clauses 6.9 and 13.1;


 


(h)         change
this clause 16.11;


 


56

















 


(i)             change
the definition of “Majority Banks”
in clause 1.2; or


 


(j)             release
any Security Party from the security constituted by any Security Document
(except as required by the terms thereof or by law) or change the terms and
conditions upon which such security or guarantee may be, or is required to be,
released.


 


16.12  Reimbursement
and indemnity by Banks


 


Each Bank
shall reimburse the Agent (rateably in accordance with such Bank’s Commitment
or, if after the drawdown of the first Advance to be drawn down, in accordance
with such Bank’s Contribution), to the extent that the Agent is not reimbursed
by the Borrowers, for the costs, charges and expenses incurred by the Agent
which are expressed to be payable by the Borrowers under clause 5.1 including
(in each case) the fees and expenses of legal or other professional advisers.
Each Bank shall on demand indemnify the Agent (rateably in accordance with such
Bank’s Commitment or, if after the drawdown of the first Advance to be drawn
down, in accordance with such Bank’s Contribution) against all liabilities,
damages, costs and claims whatsoever incurred by the Agent in connection with
any of the Security Documents or the performance of its duties under any of the
Security Documents or any action taken or omitted by the Agent under any of the
Security Documents, unless such liabilities, damages, costs or claims arise
from the Agent’s own gross negligence or wilful misconduct.


 


16.13  Retirement of
Agent


 


16.13.1                     The Agent may, having given to the Borrowers and each of the Banks and
each of the Swap Providers not less than fifteen (15) days’ notice of its
intention to do so, retire from its appointment as Agent under this Agreement,
provided that no such retirement shall take effect unless there has been appointed
by the Banks and the Swap Providers as a successor agent:


 


(a)          a
Related Company of the Agent nominated by the Agent which the Banks and the
Swap Providers hereby irrevocably and unconditionally agree to appoint or,
failing such nomination,


 


(b)         a Bank
nominated by the Majority Banks or, failing such a nomination,


 


(c)          any
reputable and experienced bank or financial institution nominated by the
retiring Agent.


 


Any
corporation into which the retiring Agent may be merged or converted or any
corporation with which the Agent may be consolidated or any corporation
resulting from any merger, conversion, amalgamation, consolidation or other
reorganisation to which the Agent shall be a party shall, to the extent
permitted by applicable law, be the successor Agent under this Agreement and
the other Security Documents without the execution or filing of any document or
any further act on the part of any of the parties to this Agreement and the
other Security Documents save that notice of any such merger, conversion,
amalgamation, consolidation or other reorganisation shall forthwith be given to
each Security Party and the Banks and the Swap Providers. Prior to any such
successor being appointed, the Agent agrees to consult with the Borrowers as to
the identity of the proposed successor and to take account of any reasonable
objections which the Borrowers may raise to such successor being appointed.


 


16.13.2                     Upon any such successor as aforesaid being appointed, the retiring
Agent shall be discharged from any further obligation under the Security
Documents (but shall continue to have the benefit of this clause 16 in
respect of any action it has taken or refrained from taking prior to such
discharge) and its successor and each of the other parties to this Agreement shall
have the same rights and obligations among themselves as they would have had if
such successor had been a party to this Agreement in place of the retiring
Agent. The retiring Agent shall (at the expense of the Borrowers) provide its
successor with copies of such of its records as its successor reasonably
requires to carry out its functions under the Security Documents.


 


57

















 


16.14  Appointment and
retirement of Security Agent


 


16.14.1                     Appointment


 


Each of the Banks, the Swap Providers and the Agent irrevocably
appoints the Security Agent as its security agent and trustee for the purposes
of this Agreement and the Security Documents to which the Security Agent is or
is to be a party, in each case on the terms set out in this Agreement. By
virtue of such appointment, each of the Banks, the Swap Providers and the Agent
hereby authorises the Security Agent (whether or not by or through employees or
agents) to take such action on its behalf and to exercise such rights,
remedies, powers and discretions as are specifically delegated to the Security
Agent by this Agreement and/or the Security Documents to which the Security
Agent is or is intended to be a party, together with such powers and
discretions as are reasonably incidental thereto.


 


16.14.2                     Retirement


 


Without prejudice to clause 16.13, the Security Agent may, having given
to the Borrowers and each of the Banks and the Swap Providers not less than
fifteen (15) days’ notice of its intention to do so, retire from its
appointment as Security Agent under this Agreement and any Trust Deed, provided
that no such retirement shall take effect unless there has been appointed by
the Banks, the Swap Providers and the Agent as a successor security agent and
trustee:


 


(a)          a
Related Company of the Security Agent nominated by the Security Agent which the
Agent, the Banks and the Swap Providers hereby irrevocably and unconditionally
agree to appoint or, failing such nomination,


 


(b)         a bank
or trust corporation nominated by the Majority Banks or, failing such a
nomination,


 


(c)          any
bank or trust corporation nominated by the retiring Security Agent,


 


and, in any
case, such successor security agent and trustee shall have duly accepted such
appointment by delivering to the Agent (i) written confirmation (in a form
acceptable to the Agent) of such acceptance agreeing to be bound by this
Agreement in the capacity of Security Agent as if it had been an original party
to this Agreement and (ii) a duly executed Trust Deed.


 


Any corporation
into which the retiring Security Agent may be merged or converted or any
corporation with which the Security Agent may be consolidated or any
corporation resulting from any merger, conversion, amalgamation, consolidation
or other reorganisation to which the Security Agent shall be a party shall, to
the extent permitted by applicable law, be the successor Security Agent under
this Agreement, any Trust Deed and the other Security Documents referred to in
clause 16.14.1 without the execution or filing of any document or any further
act on the part of any of the parties to this Agreement, any Trust Deed and the
other Security Documents save that notice of any such merger, conversion,
amalgamation, consolidation or other reorganisation shall forthwith be given to
each Security Party and the Banks and the Swap Providers. Prior to any such
successor being appointed, the Security Agent agrees to consult with the
Borrowers as to the identity of the proposed successor and to take account of
any reasonable objections which the Borrowers may raise to such successor being
appointed.


 


Upon any such
successor as aforesaid being appointed, the retiring Security Agent shall be
discharged from any further obligation under the Security Documents (but shall
continue to have the benefit of this clause 16 in respect of any action it
has taken or refrained from taking prior to such discharge) and its successor
and each of the other parties to this Agreement shall have the same rights and
obligations among themselves as they would have had if such successor had been
a party to this Agreement in place of the retiring Security Agent. The retiring
Security Agent shall (at the expense of the Borrowers) provide its successor
with


 


58

















 


copies of such
of its records as its successor reasonably requires to carry out its functions
under the Security Documents.


 


16.15  Powers and
duties of the Security Agent


 


16.15.1                     The Security Agent shall have no duties, obligations or liabilities
to any of the Banks, the Swap Providers and the Agent beyond those expressly
stated in any of the Security Documents. Each of the Agent, the Banks and the
Swap Providers hereby authorises the Security Agent to enter into and execute:


 


(a)          each of
the Security Documents to which the Security Agent is or is intended to be a
party; and


 


(b)         any and
all such other Security Documents as may be approved by the Agent in writing
(acting on the instructions of the Majority Banks) for entry into by the
Security Agent,


 


and, in each and every case, to hold any and all security thereby
created upon trust for the Banks, the Swap Providers and the Agent in the
manner contemplated by this Agreement.


 


16.15.2                     Subject to clause 16.15.3 the Security Agent may, with the
prior consent of the Majority Banks communicated in writing by the Agent,
concur with any of the Security Parties to:


 


(a)          amend,
modify or otherwise vary any provision of the Security Documents to which the
Security Agent is or is intended to be a party; or


 


(b)         waive
breaches of, or defaults under, or otherwise excuse performance of, any
provision of the Security Documents to which the Security Agent is or is
intended to be a party.


 


Any such action so authorised and effected by the Security Agent shall
be promptly notified to the Banks, the Swap Providers and the Agent by the
Security Agent and shall be binding on the other Creditors.


 


16.15.3                     The Security Agent shall not concur with any Security Party with
respect to any of the matters described in clause 16.11.2 without the
consent of the Banks communicated in writing by the Agent.


 


16.15.4                     The Security Agent shall (subject to the other provisions of this
clause 16) take such action or, as the case may be, refrain from taking
such action, with respect to any of its rights, powers and discretions as
security agent and trustee, as the Agent may direct. Subject as provided in the
foregoing provisions of this clause, unless and until the Security Agent shall
have received such instructions from the Agent, the Security Agent may, but
shall not be obliged to, take (or refrain from taking) such action under or
pursuant to the Security Documents referred to in clause 16.14.1 as the
Security Agent shall deem advisable in the best interests of the Creditors
provided that (for the avoidance of doubt), to the extent that this
clause might otherwise be construed as authorising the Security Agent to
take, or refrain from taking, any action of the nature referred to in
clause 16.15.2 - and for which the prior consent of the Banks is expressly
required under clause 16.15.3 - clauses 16.15.2 and 16.15.3 shall apply to
the exclusion of this clause.


 


16.15.5                     None of the Banks nor the Agent nor the Swap Providers shall have
any independent power to enforce any of the Security Documents referred to in
clause 16.14.1 or to exercise any rights, discretions or powers or to
grant any consents or releases under or pursuant to such Security Documents or
any of them or otherwise have direct recourse to the security and/or guarantees
constituted by such Security Documents or any of them except through the
Security Agent.


 


16.15.6                     For the purpose of this clause 16, the Security Agent may, rely
and act in reliance upon any information from time to time furnished to the
Security Agent by the Agent (whether pursuant to clause 16.15.7 or
otherwise) unless and until the same is superseded by further such information,
so that the Security Agent shall have no liability or responsibility to any
party as a


 


59

















 


consequence of placing reliance on and
acting in reliance upon any such information unless the Security Agent has
actual knowledge that such information is inaccurate or incorrect.


 


16.15.7                     Without prejudice to the foregoing each of the Agent, the Swap
Providers and the Banks (whether directly or through the Agent) shall provide
the Security Agent with such written information as it may reasonably require
for the purpose of carrying out its duties and obligations under the Security
Documents referred to in clause 16.14.1.


 


16.15.8                     Each Bank shall reimburse the Security Agent (rateably in accordance
with such Bank’s Commitment or Contribution), to the extent that the Security
Agent is not reimbursed by the Borrowers, for the costs, charges and expenses
incurred by the Agent which are expressed to be payable by the Borrowers under
clause 5.2 including (in each case) the fees and expenses of legal or other
professional advisers. Each Bank shall on demand indemnify the Security Agent
(rateably in accordance with such Bank’s Commitment or Contribution) against
all liabilities, damages, costs and claims whatsoever incurred by the Security
Agent in connection with any of the Security Documents or the performance of
its duties under any of the Security Documents or any action taken or omitted
by the Security Agent under any of the Security Documents, unless such
liabilities, damages, costs or claims arise from the Security Agent’s own gross
negligence or wilful misconduct.


 


16.16  Trust
provisions


 


16.16.1                     The trusts constituted or evidenced in or by this Agreement and the
Trust Deed shall remain in full force and effect until whichever is the earlier
of:


 


(a)          the
expiration of a period of eighty (80) years from the date of this Agreement;
and


 


(b)         receipt
by the Security Agent of confirmation in writing by the Agent that there is no
longer outstanding any Indebtedness (actual or contingent) which is secured or
guaranteed or otherwise assured by or under any of the Security Documents,


 


and the parties to this Agreement declare that the perpetuity period
applicable to this Agreement and the trusts declared by the Trust Deed shall
for the purposes of the Perpetuities and Accumulations Act 1964 be the period
of eighty (80) years from the date of this Agreement.


 


16.16.2                     In its capacity as trustee in relation to the Security Documents
specified in clause 16.14.1, the Security Agent 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 any of those
Security 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 Agent by any of those Security Documents.


 


16.16.3                     It is expressly declared that, in its capacity as trustee in
relation to the Security Documents specified in clause 16.14.1, the
Security Agent shall be entitled to invest moneys forming part of the security
and which, in the opinion of the Security Agent, may not be paid out promptly
following receipt in the name or under the control of the Security Agent 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 Agent as the Security Agent may think fit
without being under any duty to diversify its investments and the Security
Agent 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. Any
investment of any part or all of the security may, at the discretion of the
Security Agent, be made or retained in the names of nominees.


 


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16.17  Independent
action by Creditors


 


None of the
Creditors shall enforce, exercise any rights, remedies or powers or grant any
consents or releases under or pursuant to, or otherwise have a direct recourse
to the security and/or guarantees constituted by any of the Security Documents
without the prior written consent of the Majority Banks but, Provided such
consent has been obtained, it shall not be necessary for any other Creditor to
be joined as an additional party in any proceedings for this purpose.


 


16.18  Common Agent
and Security Agent


 


The Agent and
the Security Agent have entered into the Security Documents in their separate
capacities (a) as agent for the Banks and the Swap Providers under and pursuant
to this Agreement (in the case of the Agent) and (b) as security agent and
trustee for the Banks, the Swap Providers and the Agent under and pursuant to
this Agreement, to hold the guarantees and/or security created by the Security
Documents specified in clause 16.14.1 on the terms set out in such
Security Documents (in the case of the Security Agent). However, from time to
time the Agent and the Security Agent may be the same entity. When the Agent
and the Security Agent are the same entity and any Security Document provides
for the Agent to communicate with or provide instructions to the Security Agent
(and vice versa), it will not be necessary for there to be any such formal
communications or instructions on those occasions.


 


16.19  Co-operation to
achieve agreed priorities of application


 


The Banks, the
Swap Providers and the Agent shall co-operate with each other and with the
Security Agent and any receiver under the Security Documents in realising the
property and assets subject to the Security Documents and in ensuring that the
net proceeds realised under the Security Documents after deduction of the
expenses of realisation are applied in accordance with clause 13.1 (unless
otherwise expressly provided for in any such Security Document).


 


16.20  Prompt
distribution of proceeds


 


Moneys
received by any of the Creditors (whether from a receiver or otherwise)
pursuant to the exercise of (or otherwise by virtue of the existence of) any
rights and powers under or pursuant to any of the Security Documents shall
(after providing for all costs, charges, expenses and liabilities and other
payments ranking in priority) be paid to the Agent for distribution (in the
case of moneys so received by any of the Creditors other than the Agent or the
Security Agent) and shall be distributed by the Agent or, as the case may be,
the Security Agent (in the case of moneys so received by the Agent or, as the
case may be, the Security Agent) in each case in accordance with
clause 13.1. The Agent or, as the case may be, the Security Agent shall
make each such application and/or distribution as soon as is practicable after
the relevant moneys are received by, or otherwise become available to, the Agent
or, as the case may be, the Security Agent save that (without prejudice to any
other provision contained in any of the Security Documents) the Agent or, as
the case may be, the Security Agent (acting on the instructions of the Majority
Banks) or any receiver may credit any moneys received by it to a suspense
account for so long and in such manner as the Agent or such receiver may from
time to time determine with a view to preserving the rights of the Agent and/or
the Security Agent and/or the Account Bank and/or the Arranger and/or the Banks
and/or the Swap Providers or any of them to provide for the whole of their
respective claims against the Borrowers or any other person liable.


 


17        Notices and other matters


 


17.1    Notices


 


Every notice,
request, demand or other communication under this Agreement or (unless
otherwise provided therein) under any of the other Security Documents shall:


 


17.1.1                           be in writing delivered personally or by first-class prepaid letter
(airmail if available) or facsimile transmission or other means of
telecommunication in permanent written form;


 


61

















 


17.1.2                           be deemed to have been received, subject as otherwise provided in
the relevant Security Document, in the case of a letter, when delivered
personally or three (3) days after it has been put in to the post and, in the
case of a facsimile transmission or other means of telecommunication in
permanent written form, at the time of despatch (provided that if the date of
despatch is not a business day in the country of the addressee or if the time
of despatch is after the close of business in the country of the addressee it
shall be deemed to have been received at the opening of business on the next
such business day); and


 


17.1.3                           be sent:


 


(a)          if to
the Borrowers or any of them at:


 


	
  c/o Aegean
  Bunkering Services Inc.

  	
   

  
	
  42
  Hadjikyriakou Street

  	
   

  
	
  185 38
  Piraeus

  	
   

  
	
  Greece

  	
   

  
	
   

  
	
  Fax no:

  	
  +30
  210 458 6242

  
	
  Attn:

  	
  Mr A.
  Manitsas

  
			



 


(b)         if to
the Arranger and/or Agent and/or the Account Bank and/or the Security Agent at:


 


	
  Aegean
  Baltic Bank S.A.

  	
   

  
	
  28
  Diligianni Street

  	
   

  
	
  145 62
  Kifissia

  	
   

  
	
  Greece

  	
   

  
	
   

  
	
  Fax No:

  	
  +30
  210 62 34 192

  
	
  Attn:

  	
  Business
  Development

  
			



 


(c)          if to a
Bank, to its address or fax number specified in schedule 2 or in any relevant
Transfer Certificate; and


 


(d)         if to a
Swap Provider, to its address or fax number specified in paragraph (a) of Part
4 of the Schedule to the relevant Master Swap Agreement,


 


or to such other address and/or numbers as is notified by one party to
the other parties under this Agreement.


 


17.2    Notices
through the Agent


 


Every notice,
request, demand or other communication under this Agreement or (unless
otherwise provided therein) any other Security Document to be given by the
Borrowers or any of them to any other party (other than the Swap Providers),
shall be given to the Agent for onward transmission as appropriate and if it is
to be given to the Borrowers it shall (except otherwise provided in the
Security Documents) be given to the Agent.


 


17.3    No implied
waivers, remedies cumulative


 


No failure or
delay on the part of a Creditor to exercise any power, right or remedy under
any of the Security Documents shall operate as a waiver thereof, nor shall any
single or partial exercise by such Creditor of any power, right or remedy
preclude any other or further exercise thereof or the exercise of any other
power, right or remedy. The remedies provided in the Security Documents are
cumulative and are not exclusive of any remedies provided by law.


 


17.4    English
language


 


All certificates,
instruments and other documents to be delivered under or supplied in connection
with any of the Security Documents shall be in the English language or shall be
accompanied by a certified English translation upon which the Creditors or any
of them shall be entitled to rely.


 


62

















 


17.5    Borrowers’
obligations


 


17.5.1                           Joint and several


 


Notwithstanding anything to the contrary contained in any of the
Security Documents, 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 the
Security Documents to which it is, or is to be, a party notwithstanding that
the other Borrowers which are intended to sign or to be bound may not do so or
be effectually bound and notwithstanding that any of the Security Documents may
be invalid or unenforceable against the other Borrowers, whether or not the
deficiency is known to any of the Creditors.


 


17.5.2                           Borrowers as principal debtors


 


Each Borrower acknowledges and confirms that it is a principal and
original debtor in respect of all amounts which may become payable by the
Borrowers in accordance with the terms of this Agreement or any of the other
Security Documents and agrees that the Creditors may also continue to treat it
as such, whether or not any Creditor is or becomes aware that such Borrower is
or has become a surety for the other Borrowers.


 


17.5.3                           Indemnity


 


The Borrowers hereby agree jointly and severally to keep the Creditors
fully indemnified on demand against all damages, losses, costs and expenses
arising from any failure of any Borrower to perform or discharge any purported
obligation or liability of the other Borrowers which would have been the
subject of this Agreement or any other Security Document had it been valid and
enforceable and which is not or ceases to be valid and enforceable against the
other Borrowers on any ground whatsoever, whether or not known to a Creditor
including, without limitation, any irregular exercise or absence of any
corporate power or lack of authority of, or breach of duty by, any person
purporting to act on behalf of the other Borrowers (or any legal or other
limitation, whether under the Limitation Acts or otherwise or any disability or
death, bankruptcy, unsoundness of mind, insolvency, liquidation, dissolution,
winding up, administration, receivership, amalgamation, reconstruction or any
other incapacity of any person whatsoever (including, in the case of a
partnership, a termination or change in the composition of the partnership) or
any change of name or style or constitution of any Security Party).


 


17.5.4                           Liability unconditional


 


None of the obligations or liabilities of the Borrowers under this
Agreement or any other Security Document shall be discharged or reduced by
reason of:


 


(a)          the
death, bankruptcy, unsoundness of mind, insolvency, liquidation, dissolution,
winding-up, administration, receivership, amalgamation, reconstruction or other
incapacity of any person whatsoever (including, in the case of a partnership, a
termination or change in the composition of the partnership) or any change of
name or style or constitution of any Borrower or any other person liable;


 


(b)         the
Agent (acting on the instructions of the Majority Banks) granting any time,
indulgence or concession to, or compounding with, discharging, releasing or
varying the liability of, any Borrower or any other person liable or renewing,
determining, varying or increasing any accommodation, facility or transaction
or otherwise dealing with the same in any manner whatsoever or concurring in,
accepting, varying any compromise, arrangement or settlement or omitting to
claim or enforce payment from any Borrower or any other person liable; or


 


(c)          anything
done or omitted which but for this provision might operate to exonerate the
Borrowers or any of them.


 


63

















 


17.5.5                           Recourse to other security


 


The Creditors shall not be obliged to make any claim or demand or to
resort to any Security Document or other means of payment now or hereafter held
by or available to it for enforcing this Agreement or any of the Security
Documents against any Borrower or any other person liable and no action taken
or omitted by any Creditor in connection with any such Security Document or
other means of payment will discharge, reduce, prejudice or affect the
liability of the Borrowers under this Agreement and the Security Documents to
which any of them is, or is to be, a party.


 


17.5.6                           Waiver of Borrowers’ rights


 


Each Borrower agrees with each Creditor that, from the date of this
Agreement and so long as any moneys are owing under any of the Security
Documents and while all or any part of the Total Commitment remains
outstanding, it will not, without the prior written consent of the Agent
(acting on the instructions of the Majority Banks):


 


(a)          exercise
any right of subrogation, reimbursement and indemnity against the other
Borrowers or any other person liable under the Security Documents;


 


(b)         demand
or accept repayment in whole or in part of any Indebtedness now or hereafter
due to such Borrower from the other Borrowers or from any other person liable
or demand or accept any guarantee, indemnity or other assurance against
financial loss or any document or instrument created or evidencing an
Encumbrance in respect of the same or dispose of the same;


 


(c)          take
any steps to enforce any right against the other Borrowers or any other person
liable in respect of any such moneys; or


 


(d)         claim
any set-off or counterclaim against the other Borrowers or any other person
liable or claiming or proving in competition with any Creditor in the
liquidation of the other Borrowers or any other person liable or have the
benefit of, or share in, any payment from or composition with, the other
Borrowers or any other person liable or any other Security Document now or
hereafter held by any Creditor for any moneys owing under this Agreement or for
the obligations or liabilities of any other person liable but so that, if so
directed by the Agent, it will prove for the whole or any part of its claim in
the liquidation of the other Borrowers or other person liable on terms that the
benefit of such proof and all money received by it in respect thereof shall be
held on trust for the Banks and applied in or towards discharge of any moneys
owing under this Agreement in such manner as the Agent (acting on the
instructions of the Majority Banks) shall deem appropriate.


 


17.5.7                           Maximum liability


 


(a)          Each
Borrower shall be entitled to rights of contribution as against the other
Borrowers however, such rights of contribution shall (i) not in any way (except
as otherwise expressly set forth in clause 17.5.7(b) below) condition or
lessen the liability of each Borrower as a joint and several borrower for the
whole of the obligation owed to the Creditors hereunder, and under the Security
Documents and (ii) be fully subject and subordinate to the rights of the
Creditors against the Borrowers hereunder, and under the Security Documents.


 


(b)         Notwithstanding
anything to the contrary contained in this Agreement, or any of the Security
Documents, in the event that any court or other judicial body of competent
jurisdiction determines that legal principles of fraudulent conveyances,
fraudulent transfers or similar concepts are applicable in evaluating the
enforceability against any particular Borrower or its assets of this Agreement
or any Security Document granted by the Borrowers as security for their respective
obligations thereunder and that under such principles, this Agreement or such
other Security Document would not be enforceable against such Borrower or its
assets unless the following provisions of this


 


64

















 


clause 17.5.7(b) had effect, then, the
maximum liability of any of the Borrowers hereunder, (the “Maximum
Liability Amount”) shall be limited so that in no event shall such
amount exceed the lesser of (i) the obligations of the Borrowers hereunder (in the
principal amount of up to Sixty four million seven hundred and fifty thousand
Dollars ($64,750,000), plus interest, expenses and fees and any amounts owing
under the Master Swap Agreements from time to time), and (ii) an amount equal
to the aggregate, without double counting, of (A) ninety-five per cent (95%) of
such Borrower’s Adjusted Net Worth (as hereinafter defined) on the date hereof,
on the date of commencement of a case under the Bankruptcy Code of the United
States of America, as amended (11 U.S.C. ss 101-1330) (the “Bankruptcy Code”) or any similar legislation in any other
jurisdiction, in which such Borrower is a debtor, or on the date enforcement of
this Agreement is sought (the “Determination Date”),
whichever is greater, (B) the aggregate fair value of such Borrower’s
Subrogation and Contribution Rights (as hereinafter defined) and (C) the amount
of any Valuable Transfer (as hereinafter defined) to such Borrower; provided
that any Borrower’s liability under this Agreement shall further be limited to
the extent, if any, required so that the obligations of any Borrower under this
Agreement shall not be subject to avoidance under Section 548 of the
Bankruptcy Code or any similar provision under the legislation of any other
relevant jurisdiction, or to being set aside or annulled under any applicable
law relating to fraudulent transfers or fraudulent conveyances. In determining
the limitations, if any, on the amount of any Borrower’s obligations hereunder
pursuant to the preceding sentence, any rights of subrogation or contribution
(collectively the “Subrogation and
Contribution Rights”) which such Borrower may have on the
Determination Date with respect to the Funding Borrower (as hereinafter
defined) under applicable law shall be taken into account.


 


(c)          As used
herein “Adjusted Net Worth” of each Borrower
shall mean, as of any date of determination thereof, an amount equal to the
lesser of (i) an amount equal to the excess of (A) the amount of the present
fair saleable value of the assets of such Borrower over (B) the amount that
will be required to pay such Borrower’s probable liability on its then existing
debts, including contingent liabilities, as they become absolute and matured,
and (ii) an amount equal to the excess of (aa) the sum of such Borrower’s
property at a fair valuation over (bb) the amount of all liabilities of such
Borrower, contingent or otherwise, as such terms are construed in accordance
with applicable federal and state laws in the United States of America, or the
laws of other applicable jurisdictions, governing determinations of the
insolvency of debtors.


 


(d)         In
determining the Adjusted Net Worth of each Borrower for purposes of calculating
the Maximum Liability Amount for such Borrower, the liabilities of such
Borrower to be used in such determination pursuant to each clause of the
preceding sentence shall in any event exclude (i) the liabilities of such
Borrower under this Agreement, (ii) any liabilities of such Borrower
subordinated in right of payment to this Agreement and (iii) any liabilities of
such Borrower for Subrogation and Contribution Rights to the other Borrowers.


 


(e)          As used
herein “Valuable Transfer” shall mean, in
respect of each Borrower, (i) all loans, advances or capital contributions made
to such Borrower with proceeds of the Loan, (ii) all debt securities or other
obligations of such Borrower acquired from such Borrower or retired by such
Borrower with proceeds of the Loan and transferred, absolutely and not as
collateral, to such Borrower, (iii) the fair market value of all property
acquired with proceeds of the Loan and transferred, absolutely and not as
collateral, to such Borrower, (iv) all equity securities of such Borrower
acquired from such Borrower with proceeds of the Loan and (v) the value of any
other economic benefits in accordance with applicable federal and state laws,
or the laws of other applicable jurisdictions, governing determinations of the
insolvency of debtors, in each case accruing to such Borrower as a result of
the Loan.


 


(f)            Without
in any way modifying or affecting the obligations of any of the Borrowers
hereunder, in the event any of the Borrowers shall make any payment or payments
to the Creditors under this Agreement in an aggregate amount in excess of such


 


65

















 


Borrower’s Percentage (such Borrower the “Funding Borrower”; the Borrowers other than the Funding
Borrower, the “Other Borrowers”), the Other
Borrowers shall contribute to the Funding Borrower an amount equal to the Other
Borrowers’ Percentage of such payment or payments made by the Funding Borrower.
For the purposes hereof, the Funding Borrower’s or Other Borrowers’ Percentage
shall be determined as of the date on which such payment was made by reference
to the ratio of (i) the Funding Borrower’s or Other Borrowers’ Adjusted Net
Worth as of such date to (ii) the aggregate Adjusted Net Worth of all the
Borrowers (including the Funding Borrower) as of such date. Nothing in this
paragraph shall affect each Borrower’s several liability to the Creditors
for the entire amount of the obligations of the Borrowers under this Agreement
(up to the limitations set forth in the preceding paragraph) or in any other
manner impair any right or remedy of the Creditors hereunder. The limitations
provided above are intended solely to preserve the rights of the Agent under
this Agreement to the maximum extent permitted by applicable law and none of
the Borrowers nor any other person shall have any right hereunder that it would
not otherwise have under applicable law.


 


18                 Governing law and jurisdiction


 


18.1    Law


 


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


 


18.2    Submission to
jurisdiction


 


The Borrowers
jointly and severally agree, for the benefit of each Creditor, that any legal
action or proceedings arising out of or in connection with this Agreement
against the Borrowers or any of them or any of their assets may be brought in
the English courts. Each of the Borrowers irrevocably and unconditionally
submits to the jurisdiction of such courts and irrevocably designates, appoints
and empowers Riches Consulting at present of Old 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 a Creditor to take proceedings
against the Borrowers 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 Borrowers or any of
them may have against any Creditor arising out of or in connection with this
Agreement.


 


18.3    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.


 


66

















 


	
  SIGNED by

  	
  )

  	
   

  
	
  for
  and on behalf of

  	
  )

  	
   

  	
   

  
	
  KERKYRA MARINE S.A.

  	
  )

  	
  Attorney-in-fact

  
	
  as
  Borrower

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
  )

  	
   

  
	
  for
  and on behalf of

  	
  )

  	
   

  	
   

  
	
  ITHAKI MARINE S.A.

  	
  )

  	
  Attorney-in-fact

  
	
  as Borrower

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
  )

  	
   

  
	
  for
  and on behalf of

  	
  )

  	
   

  	
   

  
	
  CEPHALLONIA MARINE S.A.

  	
  )

  	
  Attorney-in-fact

  
	
  as
  Borrower

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
  )

  	
   

  
	
  for
  and on behalf of

  	
  )

  	
   

  	
   

  
	
  PAXOI MARINE S.A.

  	
  )

  	
  Attorney-in-fact

  
	
  as
  Borrower

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by 

  	
  )

  	
   

  
	
  for
  and on behalf of

  	
  )

  	
   

  	
   

  
	
  ZAKYNTHOS MARINE S.A.

  	
  )

  	
  Attorney-in-fact

  
	
  as
  Borrower

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
  )

  	
   

  
	
  for
  and on behalf of

  	
  )

  	
   

  	
   

  
	
  LEFKAS MARINE S.A.

  	
  )

  	
  Attorney-in-fact

  
	
  as
  Borrower

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
  )

  	
   

  
	
  for
  and on behalf of

  	
  )

  	
   

  	
   

  
	
  KYTHIRA MARINE S.A.

  	
  )

  	
  Attorney-in-fact

  
	
  as
  Borrower

  	
  )

  	
   

  



 


67

















 


	
  SIGNED by

  	
  )

  	
   

  	
   

  
	
  and
  by

  	
  )

  	
  Authorised
  Signatory

  
	
  for
  and on behalf of

  	
  )

  	
   

  
	
  AEGEAN BALTIC BANK S.A.

  	
  )

  	
   

  
	
  as
  Arranger, Agent, Security Agent, Account Bank, Bank

  	
  )

  	
   

  	
   

  
	
  and Swap
  Provider

  	
  )

  	
  Authorised
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
  )

  	
   

  
	
  for
  and on behalf of

  	
  )

  	
   

  
	
  HSH NORDBANK AG

  	
  )

  	
   

  	
   

  
	
  as
  Bank and Swap Provider

  	
  )

  	
  Attorney-in-fact

  



 


68