Exhibit 10.10


 


LOAN AGREEMENT, DATED SEPTEMBER 21,
2004,


BY AND BETWEEN AEGEAN MARINE
PETROLEUM


S.A., AS BORROWER, AND THE
ROYAL BANK OF


SCOTLAND PLC, AS LENDER


 





















 


Date 24 September 2004


 


 


AEGEAN
MARINE PETROLEUM S.A.


as Borrower


 


– and –


 


THE ROYAL
BANK OF SCOTLAND PLC


as Lender


 


 










 


LOAN
AGREEMENT


 










 


relating to

a US$25,000,000 revolving credit and letter of credit issuance and refinancing
facility


 


 


WATSON,
FARLEY & WILLIAMS


London


 





















 


INDEX


 


	
  Clause

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2

  	
   

  	
  FACILITY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3

  	
   

  	
  UTILISATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4

  	
   

  	
  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5

  	
   

  	
  INTEREST

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
   

  	
  INTEREST PERIODS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7

  	
   

  	
  DEFAULT INTEREST

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8

  	
   

  	
  REDUCTION OF LETTERS OF CREDIT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9

  	
   

  	
  SETTLEMENT OF LETTERS OF CREDIT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10

  	
   

  	
  INDEMNITY OF THE BORROWER

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11

  	
   

  	
  REPAYMENT, PREPAYMENT AND
  CANCELLATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12

  	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13

  	
   

  	
  UNDERTAKINGS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14

  	
   

  	
  PAYMENTS AND CALCULATIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  15

  	
   

  	
  EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  16

  	
   

  	
  FEES AND EXPENSES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  17

  	
   

  	
  INDEMNITIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  18

  	
   

  	
  NO SET-OFF OR TAX DEDUCTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  19

  	
   

  	
  ILLEGALITY, ETC

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  20

  	
   

  	
  INCREASED COSTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  21

  	
   

  	
  SET-OFF

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  22

  	
   

  	
  TRANSFERS AND CHANGES IN
  FACILITY OFFICES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  23

  	
   

  	
  VARIATIONS AND WAIVERS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  24

  	
   

  	
  NOTICES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  25

  	
   

  	
  SUPPLEMENTAL

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  26

  	
   

  	
  LAW AND JURISDICTION

  	
   

  



 


	
  SCHEDULE 1 PART A FORM OF UTILISATION
  NOTICE - ADVANCE

  	
   

  



 





















 


	
  SCHEDULE 1 PART B FORM OF
  UTILISATION NOTICE - LETTER OF CREDIT

  	
   

  
	
   

  	
   

  
	
  SCHEDULE 2 CONDITION PRECEDENT DOCUMENTS

  	
   

  
	
   

  	
   

  
	
  SCHEDULE 3 CALCULATION OF MANDATORY COST RATE

  	
   

  
	
   

  	
   

  
	
  EXECUTION PAGE

  	
   

  
	
   

  	
   

  
	
  APPENDIX
  A FORM OF DEED OF ASSIGNMENT

  	
   

  
	
   

  	
   

  
	
  APPENDIX
  B FORM OF ACCOUNT SECURITY DOCUMENT

  	
   

  



 





















 


THIS REVOLVING CREDIT AGREEMENT is made on 24 September 2004


 


BETWEEN


 


(1)                                  AEGEAN MARINE PETROLEUM S.A., a company incorporated in Liberia and acting
through its branch at 42 Hatzikyriakou Street, 185 38 Piraeus, Greece (the “Borrower”); and


 


(2)                                  THE ROYAL BANK OF SCOTLAND PLC, a company incorporated in Scotland and
acting through its office at 5th Floor, 135, Bishopsgate, London EC2M 3UR
(together with its successors and assigns, the “Lender”).


 


WHEREAS the
Lender has agreed to make available to the Borrower a revolving credit facility
of up to US$25,000,000 for the purpose of purchasing and transporting fuel
cargoes and payment of other expenses incidental to the supply of bunkers and
lubricants to customers.


 


IT IS AGREED as follows:


 


1                                         INTERPRETATION


 


1.1                               Definitions. 
Subject to Clause 1.4, in this Agreement:


 


“Account Security Document” means the account security document in the form set out in Appendix B;


 


“Administration Notice” means a notice appointing an administrator, a notice of intended
appointment and any other notice which is required by law (generally or in the
case concerned) to be filed with the court or given to a person before, or in
connection with, the appointment of an administrator;


 


“Advance”
means the principal amount of each borrowing by the Borrower under this
Agreement, whether by way of:


 


(a)                                  a borrowing under Clause 3; or


 


(b)                                 a borrowing under Clause 9.2(b);


 


“Aggregate Liabilities” means, at any time, the aggregate of the Loan and the Outstandings;


 


“Availability Period” means the period commencing on the date of this Agreement and ending
on:


 


(a)                                  the date falling 1 month before the
Termination Date (or such later date as the Lender may agree with the
Borrower); or


 


(b)                                 if earlier, the date on which the Lender’s
obligation to make the Facility available is fully cancelled or terminated;


 


“Available Commitment” means, at any time, the Commitment less the amount of the Aggregate
Liabilities at that time;


 


“Beneficiary”
means, in relation to an L/C, the person in whose favour the L/C has been
issued under this Agreement;


 


“Business Day”
means a day on which banks are open in London and Greece and, in respect of a
day on which payment is required to be made under this Agreement, also in New
York City;


 





















 


“Cash Collateral Account” means an account in the name of the Borrower
with the Lender at its branch at 61 Akti Miaouli, 185 10 Piraeus, Greece,
designated “RBS re Aegean Marine Petroleum S.A. : Cash Collateral Account - RBS
575595”, or any other account (with that or another office of the Lender or
with a bank or financial institution other than the Lender) designated by the
Lender as the Cash Collateral Account for the purposes of this Agreement;


 


“Commitment” means $25,000,000, as such amount may be reduced, cancelled or
terminated in accordance with this Agreement;


 


“Contractual Currency” has the meaning given in Clause 17.4;


 


“Customer”
means each person from whom Receivables are due;


 


“Deed of Assignment” means the deed of assignment in the form set out in Appendix A;


 


“Dollars” and
“$” means the lawful currency for the
time being of the United States of America;


 


“Event of Default” means any of the events or circumstances described in Clause 15.1;


 


“Facility Reset Date” has the meaning given in Clause 3.2;


 


“Facility”
means the facility granted pursuant to Clause 2.1;


 


“Financial Indebtedness” means, in relation to a person (the “debtor”),
a liability of the debtor:


 


(a)                                  for principal, interest or any other sum
payable in respect of any moneys borrowed or raised by the debtor;


 


(b)                                 under any loan stock, bond, note or other
security issued by the debtor;


 


(c)                                  under any acceptance credit, guarantee or
letter of credit facility made available to the debtor;


 


(d)                                 under a financial lease, a deferred purchase
consideration arrangement or any other agreement having the commercial effect
of a borrowing or raising of money by the debtor;


 


(e)                                  under any foreign exchange transaction,
interest or currency swap or any other kind of derivative transaction entered
into by the debtor or, if the agreement under which any such transaction is
entered into requires netting of mutual liabilities, the liability of the
debtor for the net amount; or


 


(f)                                    under a guarantee, indemnity or similar
obligation entered into by the debtor in respect of a liability of another
person which would fall within paragraphs (a) to (e) if the
references to the debtor referred to the other person;


 


“Guarantee”
means the guarantee to be provided by the Guarantor to the Lender in respect of
the Facility in a form acceptable to the Lender;


 


“Guarantor”
means Mr Dimitris Melissanidis, holder of Greek identification card number
X092475, of 42 Hatzikyriakou Street, 18538 Piraeus, Greece;


 


“Interest Period” means a period determined in accordance with Clause 6;


 


2





















 


“Letter of Credit” or “L/C” means each letter of credit
issued or to be issued by the Lender in favour of a Beneficiary in such form as
is agreed between the Lender and the Borrower;


 


“L/C Issue Request” means, in relation to an L/C, a notice in the form of Schedule 1 Part B
(or in any other form which the Lender approves or reasonably requires);


 


“L/C Obligations” means, in relation to an L/C, the actual and contingent, certain and
future obligations and liabilities owed by the Borrower to the Beneficiary and
secured by the L/C;


 


“LlBOR”
means, for an Interest Period or other relevant period, the rate per annum at
which the Lender offers deposits in Dollars to leading banks in the London
Interbank Market at or about 11.00 a.m. (London time) on the Quotation
Date for that Interest Period or other period for a period equal to that
Interest Period or other period and for delivery on the first Business Day of
it;


 


“Loan” means
the principal amount for the time being outstanding under this Agreement;


 


“Loan Period”
means the period commencing on the date of this Agreement and ending on the
date on which the Lender notifies the Borrower that:


 


(a)                                  all amounts which have become due for payment
by the Borrower under this Agreement and the Security Documents have been paid;


 


(b)                                 no amount is owing or has accrued (without
yet having become due for payment) under this Agreement or the Security
Documents;


 


(c)                                  there are no Outstandings;


 


(d)                                 the Borrower has no future or contingent
liability under Clauses 16, 17, or 18 or any other provision of this Agreement
or the Security Documents; and


 


(e)                                  the Lender does not consider that there is a
significant risk that any payment or transaction under this Agreement or the
Security Documents would be set aside, or would have to be reversed or
adjusted, in any present or possible future bankruptcy of the Borrower or in
any present or possible future proceeding relating to this Agreement or the
Security Documents;


 


“Mandatory Cost Rate” means, in relation to the Loan or any overdue amount referred to in
Clause 7:


 


(a)                                  the additional rate of interest calculated in
accordance with the provisions of Schedule 3; and


 


(b)                                 the cost calculated as a percentage rate per
annum incurred by the Lender as a result of compliance with any applicable
regulatory or central bank requirements, including any reserve costs imposed by
the European Central Bank or the European System of Central Banks;


 


“Margin”
means 1.75 per cent. per annum;


 


“Outstanding L/C Amount” means, in relation to an L/C, the maximum amount for which the L/C was
issued less the aggregate amount of all reductions to it which have been made
in accordance with the provisions of Clause 8;


 


“Outstandings”
means, at any time, the aggregate of the Outstanding L/C Amounts;


 


3





















 


“Payment Currency” has the meaning given in Clause 17.4;


 


“Pertinent Jurisdiction”, in relation to a company, means:


 


(a)                                  England and Wales;


 


(b)                                 the country under the laws of which the
company is incorporated or formed;


 


(c)                                  a country in which the company’s central
management and control is or has recently been exercised;


 


(d)                                 a country in which the overall net income of
the company is subject to corporation tax, income tax or any similar tax;


 


(e)                                  a country in which assets of the company
(other than securities issued by, or loans to, related companies) having a
substantial value are situated, in which the company maintains a permanent
place of business, or in which a Security Interest created by the company must
or should be registered in order to ensure its validity or priority; and


 


(f)                                    a country the courts of which have
jurisdiction to make a winding up, administration or similar order in relation
to the company or which would have such jurisdiction if their assistance were
requested by the courts of a country referred to in paragraphs (b) or (c) above;


 


“Potential Event of Default” means an event or circumstance which, with the giving of any notice,
the lapse of time, a determination of the Lender and/or the satisfaction of any
other condition, would constitute an Event of Default;


 


“Qualifying Receivables” means Receivables which, at the relevant time:


 


(a)                                  have been assigned to the Lender pursuant to
the Deed of Assignment;


 


(b)                                 have been included in a Schedule of
Receivables submitted, together with the copies of documents, receipt(s) and
invoice(s) relating to such Receivables required to be submitted pursuant to
Clause 3.1, to the Lender pursuant to Clause 4.1(c) and:


 


(c)                                  (i)                                     in the case of Receivables due in respect of
lubricants, are payable within 60 days of the date of the relevant receipt and
are not overdue for payment; and


 


(ii)                                  in the case of Receivables due in respect of
oil bunkering, are payable within 30 days of the date of the relevant receipt
and are not overdue for payment by more than 15 days;


 


“Quotation Date”
means, in relation to any Interest Period (or any other period for which an
interest rate is to be determined under any provision of this Agreement), the
day on which quotations would ordinarily be given by leading banks in the
London Interbank Market for deposits in the currency in relation to which such
rate is to be determined for delivery on the first day of the Interest Period
or other period;


 


“Receivables”
means sums due and owing by Customers to the Borrower in respect of oil
bunkering and/or lubricant sales;


 


“Renewal Date” means the first anniversary of the date of
this Agreement, and thereafter each subsequent anniversary of such date;


 


4





















 


“Schedule of Receivables” means a Schedule in the form of the Schedule to the Deed of
Assignment (or in such other form as the Lender may approve) and submitted or
to be submitted to the Lender pursuant to Clause 3.1;


 


“Security Documents” means:


 


(a)                                  the Deed of Assignment;


 


(b)                                 any Schedule of Receivables;


 


(c)                                  the Account Security Document;


 


(d)                                 the Guarantee; and


 


(e)                                  any other documents designated as such by the
parties hereto;


 


“Security Interest” means:


 


(a)                                  a mortgage, charge (whether fixed or
floating), pledge, lien or any other security interest of any kind; and


 


(b)                                 any arrangement entered into by a person (A) the
effect of which is to place another person (B) in a position which is
similar, in economic terms, to the position in which B would have been had he
held a security interest over an asset of A; but this paragraph (b) does
not apply to a right of set off or combination of accounts conferred by the
standard terms of business of a bank or financial institution;


 


“Settlement Amount” means, in relation to each demand made under an L/C, the amount
payable by the Lender to the Beneficiary in respect of the demand;


 


“Settlement Date” means, in relation to each demand made under an L/C, the date on which
payment of the Settlement Amount is due to the Beneficiary in respect of the
demand;


 


“Termination Date” means the date on which the Facility terminates in accordance with
Clause 2.3;


 


“Utilisation”
means any utilisation of the Facility by the Borrower, whether by way of:


 


(a)                                  the issue by the Lender of an L/C; or


 


(b)                                 the making by the Lender of an Advance;


 


“Utilisation Date” means, in relation to each Utilisation, the date requested by the
Borrower for the Utilisation to be made or (as the context requires) the date
on which the Utilisation is actually made; and


 


“Utilisation Notice” means a notice in the form set out in Schedule 1 Part A or Part B
(as relevant) or in any other form which the Lender approves or reasonably
requires.


 


1.2                               Construction of certain terms.  In this
Agreement, a reference to:


 


“asset”
includes every kind of property, asset, interest or right, including any
present, future or contingent right to any revenues or other payment;


 


“claims” and “losses” includes:


 


5





















 


(a)                                  any claim or demand, including any in the
nature of or asserted as a total or partial defence, abatement, set-off or
counterclaim;


 


(b)                                 any legal or administrative action; and


 


(c)                                  any loss, liability or expense,


 


including (in all cases covered by paragraphs (a), (b) or (c)) any
item which relates to tax and any item the amount or final amount of which
remains open or unknown;


 


“company”
includes any partnership, joint venture and unincorporated association;


 


“contingent liability” means a liability which is not certain to arise and/or the amount of
which remains unascertained;


 


“document”
includes a deed; also a letter, lax or telex;


 


“expense”
means any kind of cost, charge or expense (including all legal costs, charges
and expenses and cost of business class travel) and any applicable value added
or other tax;


 


“law”
includes any order or decree, any form of delegated legislation, any treaty or
international convention and any regulation, directive or decision of the
Council of the European Union or the European Commission;


 


“legal or administrative action” means any legal proceeding or arbitration
and any administrative or regulatory action or investigation;


 


“liability”
includes every kind of debt or liability (present or future, certain or
contingent), whether incurred as principal or surety or otherwise, and where
any person is under an obligation to guarantee a liability, or to indemnify or
hold another person harmless in respect of it, such obligations shall exist
notwithstanding that the relevant liability has not been paid or discharged by
the person entitled to or claiming the benefit of the guarantee, indemnity or
hold harmless obligation as the case may be;


 


“months”
shall be construed in accordance with Clause 1.3;


 


“official consent” and “official requirement” shall
include respectively:


 


(a)                                  any consent, authorisation or clearance; and


 


(b)                                 any requirement, directive, request,
guideline or notice (whether general or specific and whether or not having the
force of law);


 


of or issued by any fiscal, monetary or banking authority or any other
governmental, official or public authority of any kind, including the Council
of the European Union or the European Commission; and “official requirement”
also includes a resolution of the United Nations or of its Security Council;


 


“person”
includes any company, any state, political sub-division of a state and local or
municipal authority and any international organisation;


 


“regulation”
includes any regulation, rule, official directive, request or guideline (either
having the force of law or compliance with which is reasonable in the ordinary
course of business of the party concerned) of any governmental body, agency,
department or regulatory, self-regulatory or other authority or organisation;


 


6





















 


“successor”
includes any person who is entitled (by assignment, novation, merger or
otherwise) to any other person’s rights under this Agreement or the Security
Documents (or any interest in those rights) or who, as administrator,
liquidator or otherwise, is entitled to exercise those rights; and in
particular references to a successor include a person to whom those rights (or
any interest in those rights) are transferred or pass as a result of a merger,
division, reconstruction or other reorganisation of it or any other person; and


 


“tax”
includes any present or future tax, duty, impost, levy or charge of any kind
which is imposed by any state, any political sub-division of a state or any
local or municipal authority (including any such imposed in connection with
exchange controls), and any connected penalty, interest or fine.


 


1.3                               Meaning of “month”.  A
period of one or more “months” ends
on the day in the relevant calendar month numerically corresponding to the day
of the calendar month in which the period started (“the
numerically corresponding day”), but:


 


(a)                                  on the Business Day following the numerically
corresponding day if the numerically corresponding day is not a Business Day
or, if there is no later Business Day in the same calendar month, on the
Business Day preceding the numerically corresponding day; or


 


(b)                                 on the last Business Day in the relevant
calendar month, if the period started on the last Business Day in a calendar
month or if the last calendar month of the period has no numerically
corresponding day;


 


and “month” and “monthly” shall be construed accordingly.


 


1.4                               General interpretation.  In
this Agreement:


 


(a)                                  references to, or to a provision of, this
Agreement, the Security Documents or any other document are references to it as
amended or supplemented, whether before the date of this Agreement or
otherwise;


 


(b)                                 references to, or to a provision of, any law
include any amendment, extension, re-enactment or replacement, whether made
before the date of this Agreement or otherwise;


 


(c)                                  words denoting the singular number shall
include the plural and vice versa;


 


(d)                                 Clauses 1.1 to 1.3 and the foregoing
provisions of this Clause 1.4 apply unless the contrary intention appears; and


 


(e)                                  references in Clause 1.1 to a document being
in the form of a particular Appendix include references to that form with any
modifications to that form which the Lender approves or reasonably requires.


 


1.5                               Headings.  In
interpreting this Agreement or the Security Documents, all clause, sub-clause
and other headings in this Agreement or the Security Documents shall be
entirely disregarded.


 


1.6                               Exclusion of restrictive
principles of interpretation.  Any principle requiring any provision of this
Agreement or the Security Documents (including this Clause 1.6) to be construed
narrowly or against the Lender is excluded.


 


2                                         FACILITY


 


2.1                               Amount of Facility. 
Subject to the other provisions of this Agreement, the Lender shall make
a revolving credit and letter of credit issuance and refinancing facility not
exceeding $25,000,000 available to the Borrower for the Availability Period.


 


7





















 


2.2                               Purpose of Facility.  The
Borrower undertakes with the Lender to use each Utilisation only for the
purpose stated in the preamble to this Agreement.


 


2.3                               Termination. 
Unless renewed in accordance with Clause 2.4, the Facility shall
terminate on the next Renewal Date.


 


2.4                               Renewal.  If
the Lender shall have received at least 45 Business Days’ prior written notice
from the Borrower requesting renewal of the Facility, such notice to expire on
the next Renewal Date, it shall give written notice to the Borrower no later
than 5 Business Days prior to such Renewal Date either, at its sole and absolute
discretion, agreeing to renew or rejecting the Borrower’s request for renewal.
If the Lender agrees to renew, the Facility shall continue until the following
Renewal Date.


 


2.5                               Increase in Facility.  The
Borrower may request that the Lender increase the amount of the Commitment by
giving at least 45 Business Days’ prior written notice to the Lender, such
notice to expire on the next Renewal Date, specifying the additional amount
requested. The Lender shall give written notice to the Borrower no later than 5
Business Days prior to such Renewal Date either, at its sole and absolute
discretion, agreeing to so increase the Commitment or rejecting the Borrower’s
request.


 


3                                         UTILISATION


 


3.1                               Submission of Schedule of
Receivables.  On each Facility Reset Date the Borrower
shall submit to the Lender:


 


(a)                                  a Schedule of Receivables duly executed
as a deed by the Borrower and setting out details of Receivables in respect of
which the Borrower may wish to submit Utilisation Notices, provided that:


 


(i)                                     no more than 5 per cent. of the aggregate of
all such Receivables set out in such Schedule of Receivables shall be due
from any one Customer (except the United States Navy); and


 


(ii)                                  such Receivables shall not have been
contained in a Schedule of Receivables previously delivered under this
Agreement;


 


(b)                                 in respect of each Receivable contained in a Schedule of
Receivables submitted to the Lender under Clause 3.1(a), a copy of the
bunkering confirmation issued by the Borrower to the relevant Customer together
with a copy of the Customer’s confirmation of such bunkering confirmation,
together evidencing the contract entered into between the Borrower and the
Customer in relation to such Receivable and complying with the following
requirements:


 


(i)                                     such bunkering confirmation when read
together with the relevant Customer’s confirmation shall include, whether
expressly or by incorporation, all the terms of such contract between the
Borrower and the Customer;


 


(ii)                                  in the case of Receivables relating to oil
bunkers and/or lubricants supplied to the
Customer by the Borrower or its employees, such bunkering confirmation when
read together with the relevant Customer’s confirmation shall refer to and
incorporate the Borrower’s standard terms and conditions;


 


(iii)                               in the case of Receivables relating to oil
bunkers and/or lubricants supplied to the Customer by any parties other than
the Borrower or its employees, such bunkering confirmation shall contain the
following wording:


 


8





















 


“AMP’s standard terms and conditions to
apply, except as regards operational matters at the place of delivery, in
relation to which supplier’s terms and conditions shall apply”;


 


(c)                                  in respect of each Receivable contained in a Schedule of
Receivables submitted to the Lender under Clause 3.1(a), a copy of the receipt
for the oil bunkers and/or lubricants supplied (as relevant) complying with the
following requirements:


 


(i)                                     such receipt shall have been duly signed by
the master or chief engineer on behalf of the vessel to which the Borrower has
supplied such oil bunkers and/or lubricants (as relevant) as evidence of the
relevant Customer’s irrevocable payment obligations, free from any rights of
set-off or other deduction;


 


(ii)                                  in the case of oil bunkering receipts or
lubricant sales receipts issued by any parties other than the Borrower or its
employees, such receipt shall:


 


(A)                              contain an express acknowledgement to the
effect that the relevant third party has supplied the relevant Receivables to
the Customer for and on behalf of the Borrower; and


 


(B)                                set out the number of the relevant bunkering
confirmation to which such receipt relates;


 


(iii)                               in the case of oil bunkering receipts, such
receipt shall be dated no more than 45 days before the relevant Utilisation
Date and shall have a payment tenor of no more than 30 days;


 


(iv)                              in the case of lubricant sales receipts, such
receipt shall be dated no more than 60 days before the relevant Utilisation
Date and shall have a payment tenor of no more than 60 days;


 


(d)                                 for each copy of a receipt delivered under
Clause 3.1(c), a certificate duly signed by an officer of the Borrower,
certifying that the copy of the relevant receipt is true and up to date;


 


(e)                                  for each copy of a receipt delivered under
Clause 3.1(c), a carbon copy of the relevant invoice issued to the relevant
Customer, complying with the following requirements:


 


(i)                                     in the case of oil bunkering invoices, such
invoice shall have a payment tenor of no more than 30 days as of the date of
the relevant receipt; and


 


(ii)                                  in the case of lubricant sales invoices, such
invoice shall have a payment tenor of no more than 60 days as of the date of
the relevant receipt.


 


3.2                               Facility Reset Date.  The
first Facility Reset Date shall be the date on which the Borrower delivers to
the Lender the first Schedule of Receivables and each subsequent Facility
Reset Date shall be the day (the “numerically corresponding day”) in each
subsequent calendar month during the Availability Period numerically
corresponding to the day in the relevant calendar month which was the first
Facility Reset Date, but if the numerically corresponding day is not a Business
Day, the subsequent Facility Reset Date shall be on the Business Day following
the numerically corresponding day or, if there is no later Business Day in the
same calendar month, the Business Day preceding the numerically corresponding
day, but so that in the next following month the Facility Reset Date shall
revert to the numerically corresponding day.


 


3.3                               Utilisation. 
Subject to the fulfilment of the conditions precedent contained in
Clause 4 and the following conditions, the Borrower may request a Utilisation
to be made by


 


9





















 


ensuring that the Lender receives a completed Utilisation Notice not
later than 11.00 a.m. (Piraeus time) 2 Business Days prior to the intended
Utilisation Date.


 


3.4                               Availability.  The
conditions referred to in Clause 3.3 are that:


 


(a)                                  a Utilisation Date has to be a Business Day
during the Availability Period;


 


(b)                                 the amount of a Utilisation has to be a
minimum of $5,000,000 (or such other amount as is agreed by the Lender) or such
other amount as is available pursuant to Clause 3.4(c);


 


(c)                                  the aggregate of the Aggregate Liabilities
and the Utilisation then to be made shall not exceed the lower of:


 


(i)                                     the Commitment; and


 


(ii)                                  the aggregate of:


 


(A)                              80 per cent. of the face value of the
aggregate of all Qualifying Receivables which are included in the latest Schedule of
Receivables submitted to the Lender pursuant to Clause 4.l(c); and


 


(B)                                the sum then standing to the credit of the
Cash Collateral Account; and


 


(d)                                 in the case of a Utilisation consisting of
the issue of an L/C, such L/C shall specify an expiry date occurring not later
than the Termination Date.


 


3.5                               Utilisation Notice irrevocable.  Each
Utilisation Notice must be signed by a duly authorised signatory of the
Borrower and, once served, the Utilisation Notice cannot be revoked without the
prior consent of the Lender.


 


3.6                               Disbursement of Utilisation. 
Subject to the provisions of this Agreement, the Lender shall on each
Utilisation Date make the relevant Advance to the Borrower and/or issue the
relevant L/C to the relevant Beneficiary, and payment to the Borrower of the
Advance shall be made to the account which the Borrower specifies in the
Utilisation Notice.


 


4                                         CONDITIONS PRECEDENT


 


4.1                               Documents, fees and no default.  The
Lender’s obligation to make a Utilisation is subject to the following
conditions precedent:


 


(a)                                  that, on or before the service of the first
Utilisation Notice, the Lender receives the documents described in Schedule 2
in form and substance satisfactory to it and its lawyers;


 


(b)                                 that, on or before the service of the first
Utilisation Notice, the Lender receives the arrangement fee referred to in

Clause 16.1(a), all accrued commitment fees payable pursuant to Clause 16.1(b) and
has received payment of the expenses referred to in Clause 16.2 if they have,
prior thereto, been demanded;


 


(c)                                  that, on the Facility Reset Date immediately
preceding each Utilisation Notice, the Lender received a Schedule of
Receivables together with all other documentation required to be provided under
Clause 3.1 complying in all respects with Clause 3.1;


 


 (d)                              that both at the date of each Utilisation
Notice and at each Utilisation Date:


 


(i)                                     no Event of Default or Potential Event of
Default has occurred and is continuing or would result from the borrowing of
the Advance or the issue of the L/C;


 


10





















 


(ii)                                  the representations and warranties in Clause
12.1 and those (if any) in the Security Documents would be true and not
misleading if repeated on each of those dates with reference to the
circumstances then existing;


 


(e)                                  that the Lender has received, and found to be
acceptable to it, any further opinions, consents, agreements and documents in
connection with this Agreement or the Security Documents which the Lender may
request by notice to the Borrower prior to the relevant Utilisation Date.


 


4.2                               Waivers of conditions precedent.  If
the Lender, at its discretion, permits a Utilisation to be made before certain
of the conditions referred to in Clause 4.1 are satisfied, the Borrower shall
ensure that those conditions are satisfied within 5 Business Days after the
Utilisation Date (or such longer period as the Lender may specify).


 


5                                         INTEREST


 


5.1                               Payment of normal interest. 
Subject to the provisions of this Agreement, interest on:


 


(a)                                  each Advance; and


 


(b)                                 the Loan,


 


shall be paid by the Borrower on the Facility Reset Date in respect of (i) the
Interest Period in respect of such Advance or the Loan ending on that Facility
Reset Date and (ii) each other Interest Period (if any) in respect of such
Advance or the Loan commencing on or after the immediately preceding Facility
Reset Date.


 


5.2                               Normal Rate of Interest. 
Subject to the provisions of this Agreement, the rate of interest on:


 


(a)                                  each Advance; and


 


(b)                                 the Loan,


 


in each case in respect of each Interest Period applicable to it, shall
be the aggregate of the Margin and LIBOR and the Mandatory Cost Rate for that
Interest Period.


 


6                                         INTEREST PERIODS


 


6.1                               Commencement of Interest
Periods.


 


(a)                                  The first Interest Period in respect of each
Advance shall commence on the relevant Utilisation Date or, in the case of an
Advance pursuant to Clause 9.2(b), on the relevant Settlement Date and shall
end:


 


(i)                                     on the same day as the then current Interest
Period in respect of the Loan (excluding such Advance); or


 


(ii)                                  if such Advance is the only Advance then outstanding,
on the last day of the Interest Period determined under Clause 6.2.


 


(b)                                 On the expiry of the first Interest Period in
respect of each Advance, such Advance shall be amalgamated with the Loan
(excluding such Advance) for the purposes of calculation of interest and
determination of Interest Periods.


 


(c)                                  Each subsequent Interest Period shall
commence on the expiry of the previous Interest Period.


 


11





















 


6.2                               Duration of Interest Periods. 
Subject to Clause 6.3, each Interest Period in respect of an Advance or,
as the case may be, the Loan (excluding such Advance) shall be one week or one
month as selected by the Lender and notified by it to the Borrower not later
than 2 Business Days after the commencement of each Interest Period, provided
that, if a Facility Reset Date would otherwise occur during an Interest Period,
such Interest Period shall be the period commencing on the expiry of the
previous Interest Period and ending on such Facility Reset Date.


 


6.3                               No Interest Period to extend
beyond Termination Date.  No Interest Period shall end after the
Termination Date and any Interest Period which would otherwise extend beyond
the Termination Date shall instead end on the Termination Date.


 


7                                         DEFAULT INTEREST


 


7.1                               Payment of default interest on
overdue amounts.  The Borrower shall pay interest in accordance
with the following provisions of this Clause 7 on any amount payable by the
Borrower under this Agreement which the Lender does not receive on or before the
relevant date, that is:


 


(a)                                  the date on which this Agreement provides
that such amount is due for payment; or


 


(b)                                 where this Agreement provides that such
amount is payable on demand, the date on which the demand is served; or


 


(c)                                  if such amount has become immediately due and
payable under Clause 15.4, the date on which it became immediately due and
payable.


 


7.2                               Default rate of interest. 
Interest shall accrue on an overdue amount from (and including) the
relevant date until the date of actual payment (as well after as before
judgment) at the rate per annum determined by the Lender to be 2 per cent.
above:


 


(a)                                  in the case of an overdue amount of
principal, the higher of the rates set out at paragraphs (a) and (b) of
Clause 7.3; or


 


(b)                                 in the case of any other overdue amount, the
rate set out at paragraph (b) of Clause 7.3. 


 


7.3                               Calculation of default rate of
interest.  The rates referred to in Clause 7.2 are:


 


(a)                                  the rate applicable to the overdue principal
amount immediately prior to the relevant date (but only for any unexpired part
of any then current Interest Period);


 


(b)                                 the Margin plus, in respect of successive
periods of any duration (including at call) up to 3 months which the Lender may
select from time to time:


 


(i)                                     LIBOR and the Mandatory Cost Rate; or


 


(ii)                                  if the Lender determines that Dollar deposits
for any such period are not being made available to it by leading banks in the
London Interbank Market in the ordinary course of business, a rate from time to
time determined by the Lender by reference to the cost of funds to it from such
other sources as the Lender may from time to time determine plus the Mandatory
Cost Rate.


 


7.4                               Notification of interest periods
and default rates.  The Lender shall promptly notify the Borrower
of each interest rate determined by it under Clause 7.3 and of each period
selected by it for the purposes of paragraph (b) of that Clause; but this
shall not be taken to imply that the Borrower is liable to pay such interest
only with effect from the date of the Lender’s notification.


 


12





















 


7.5                               Payment of accrued default
interest.  Subject to the other provisions of this
Agreement, any interest due under this Clause shall be paid on the last day of
the period by reference to which it was determined.


 


7.6                               Compounding of default interest.  Any
such interest which is not paid at the end of the period by reference to which
it was determined shall thereupon be compounded.


 


8                                         REDUCTION OF LETTERS OF
CREDIT


 


8.1                               Reduction of Outstanding L/C
Amounts.  The Outstanding L/C Amount of an L/C shall not
be treated as reduced for the purposes of this Agreement unless and until:


 


(a)                                  the Lender has received a written
confirmation from the Beneficiary of such L/C of the amount of such reduction;
or


 


(b)                                 the Lender has notified the Borrower in
writing that (notwithstanding the absence of a written confirmation from the
Beneficiary of such L/C) it is satisfied that its liability under the L/C has
been irrevocably reduced or discharged; or


 


(c)                                  the amount of the L/C irrevocably and
unconditionally reduces in accordance with its terms; or


 


(d)                                 the expiry date of the L/C elapses and the
Lender has notified the Borrower in writing that it is satisfied that no claim
or demand has been made, or may thereafter be made, under the L/C.


 


8.2                               Reduction of Outstandings.  If
the Outstanding L/C Amount of an L/C has been reduced pursuant to Clause 8.1
above, the Outstandings shall be reduced by an equal amount.


 


9                                         SETTLEMENT
OF LETTERS OF CREDIT


 


9.1                               Notification of Settlement
Amounts.  The Lender shall, immediately after receiving
a demand from, or after being notified by, a Beneficiary that it is required to
make payment under an L/C, notify the Borrower that such payment is due and of
the Settlement Amount and the Settlement Date.


 


9.2                               Borrower’s settlement.  The
Borrower shall immediately after notification from the Lender under Clause 9.1,
notify the Lender:


 


(a)                                  that it will reimburse the Settlement Amount,
whereupon it shall pay to the Lender the Settlement Amount in Dollars on the
Settlement Date; or


 


(b)                                 that it wishes to refinance the Settlement
Amount, whereupon, subject to the satisfaction of the conditions precedent
contained in Clause 4.1(d)(i) and (ii), the Lender shall be deemed to have
made an Advance to the Borrower on the Settlement Date in the principal amount
equal to such Settlement Amount.


 


9.3                               Borrower’s failure to settle.  If
the Borrower fails to notify the Lender on or prior to the Settlement Date
pursuant to Clause 9.2, the Borrower shall be deemed to have delivered a notice
in accordance with Clause 9.2(b).


 


10                                  INDEMNITY OF THE BORROWER


 


10.1                        Borrower’s undertaking to
indemnify.  The Borrower agrees that it shall:


 


(a)                                  pay to the Lender upon demand by the Lender
an amount equal to each amount paid by the Lender to a Beneficiary under any
L/C and which is not:


 


13





















 


(i)                                     otherwise fully reimbursed, paid or repaid by
the Borrower under this Agreement; or


 


(ii)                                  refinanced in accordance with Clause 9.2(b);


 


(b)                                 indemnify, as a principal and independent
debtor, the Lender on demand against all actions, claims, demands, liabilities,
costs, losses, damages and expenses incurred, suffered or sustained or any
penalty or other expenditure which may result or which the Lender may incur,
suffer or sustain in connection with or arising out of or in relation to any
L/C Obligations and/or the payment under or other performance of an L/C.


 


10.2                        Letter of Credit payments.  The Borrower:


 


(a)                                  irrevocably authorises the Lender to make any
payment demanded from it pursuant to an L/C if that demand is made in
accordance with its terms;


 


(b)                                 accepts that any demand for payment made by
the Beneficiary pursuant to an L/C and which is made in accordance with its
terms shall be conclusive evidence that the Lender was liable to make payment
under that L/C and any payment which the Lender makes pursuant to any such
demand shall be accepted by the Borrower as binding upon the Borrower; and


 


(c)                                  acknowledges and agrees that the Lender shall
not in any circumstances whatsoever be liable to the Borrower in respect of any
loss or damage suffered by the Borrower by reason of the Lender making a
payment to the Beneficiary in connection with any payment demanded under an
L/C.


 


10.3                        Continuing indemnities.  The
liabilities and obligations of the Borrower under the indemnities set out in
Clause 10.1 shall remain in force as a continuing security until:


 


(a)                                  the full, prompt and complete performance of
all the terms of such indemnities including the proper and valid payment of all
amounts that may become due to the Lender under this Clause 10.3; and


 


(b)                                 subject to Clause 10.4, an absolute discharge
or release of the Borrower signed by the Lender;


 


and accordingly the Borrower
shall not have, as regards those indemnities, any of the rights or defences of
a surety.


 


10.4                        Discharges.  Any such discharge or release
referred to in Clause 10.3, and any composition or arrangement which the
Borrower may effect with the Lender, shall be deemed to be made subject to the
condition that it will be void if any payment or security which the Lender, may
previously have received or may thereafter receive is set aside under any
applicable law or proves to have been for any reason invalid.


 


10.5                        No impairment. 
Without limiting the generality of Clauses 10.3 and 10.4, the Borrower
shall neither be discharged from any of its liabilities or obligations under
Clause 10.1 by, nor have any claim against the Lender in respect of:


 


(a)                                  any misrepresentation or non-disclosure
respecting the affairs or condition of the Lender made to the Borrower by any
person; or


 


(b)                                 a Beneficiary and/or the Lender releasing or
granting any time or any indulgence whatsoever or making any settlement,
composition or arrangement with the Borrower, a Beneficiary, the Guarantor or
any other person; or


 


14





















 


(c)                                  a Beneficiary and/or the Lender asserting or
pursuing, failing or neglecting to assert or pursue, or delaying in asserting
or pursuing, or waiving, any of their rights or remedies against the Borrower,
a Beneficiary, the Guarantor or any other person; or


 


(d)                                 a Beneficiary and/or the Lender and/or the
Borrower, with the consent of the Borrower (or with or without the consent of
the Borrower in the case of any variation agreed between a Beneficiary and the
Borrower or the person whose obligations are guaranteed thereby), making,
whether expressly or by conduct, any variation to any L/C Obligations or an
L/C; or


 


(e)                                  a Beneficiary and/or the Lender and/or the
Borrower:


 


(i)            taking, accepting, varying, dealing with,
enforcing, abstaining from enforcing, surrendering or releasing any security in
relation to a Beneficiary or the Lender or the Borrower or any other person in
such manner as it or they think fit; or


 


(ii)           claiming, proving for, accepting or
transferring any payment in respect of the obligations and liabilities of the
Borrower and/or a Beneficiary relative to any L/C Obligations or under this
Agreement in any composition by, or winding up of, the Borrower and/or any
third party or abstaining from so claiming, proving, accepting or transferring;
or


 


(f)                                    any assignment or transfer by a Beneficiary
of, or any succession to, any of its rights relative to any L/C Obligations or
an L/C.


 


10.6                        Provision of cash collateral
security.  Forthwith upon, or at any time following:


 


(a)                                  the occurrence of an Event of Default; or


 


(b)                                 the service of a notice under Clause 15.2(a);
or


 


(c)                                  the service of a notice under Clause 19.1,


 


then in any such circumstances the Lender shall be entitled (but not
obliged) to demand payment by the Borrower of, and the Borrower forthwith upon
such demand shall pay to the Lender for credit to the Cash Collateral Account,
such amount as shall be the aggregate of:


 


(i)            any Settlement Amount then due from the
Borrower to the Lender but not settled in accordance with Clause 9.2(a); and


 


(ii)                                  the Outstandings.


 


10.7                        Application of cash collateral
security.  Subject always to the overriding provisions
of Clause 18, moneys received by the Lender pursuant to Clause 10.6 shall be
applied (as between the Borrower on the one hand and the Lender on the other)
in the following manner:


 


(a)                                  first, in or towards payment of any
Settlement Amount then due from the Borrower to the Lender pursuant to Clause
9.2(a) and not reimbursed;


 


(b)                                 secondly, in payment to the Lender for
application from time to time by it (and the Borrower hereby irrevocably
authorises the Lender so to apply any such moneys) in or towards payment of, or
reimbursement to the Lender for, any amount which the Lender shall or may at
any time and from time to time thereafter pay or be or become liable to pay to
a Beneficiary under or pursuant to or in connection with an L/C (including any
amount payable under Clause 10.8); and


 


15





















 


(c)                                  thirdly, in or towards payment of all other
sums which may be owing to the Lender under or in connection with an L/C.


 


10.8                        Negotiation with Beneficiaries
after Event of Default.  The Borrower:


 


(a)                                  irrevocably authorises the Lender to
negotiate with any Beneficiary at any time after the occurrence of any Event of
Default or Potential Event of Default with a view to arranging for the
prepayment by the Lender, for the account of the Borrower of any L/C
Obligations; and


 


(b)                                 agrees that at any time after the occurrence
of any Event of Default or Potential Event of Default the Lender shall be
entitled (but not, so far as the Borrower is concerned, bound) to pay to a
Beneficiary, in such manner and upon such terms as the Lender and the
Beneficiary shall agree, any L/C Obligations.


 


11                                  REPAYMENT, PREPAYMENT AND
CANCELLATION


 


11.1                        Repayment of Loan.  The
Loan shall be repaid as provided in Clauses 11.2, 11.3 and 11.4.


 


11.2                        Application of the Cash Collateral
Account.  On each Facility Reset Date the Lender shall
apply the whole of the amount standing to the credit of the Cash Collateral
Account (excluding any amounts resulting from a payment under Clause 10.6):


 


(a)                                  FIRST: in or towards repayment of the Loan
and payment of interest on the Loan due on such Facility Reset Date as provided
in Clause 5.1;


 


(b)                                 SECONDLY: in or towards satisfaction of any
other amounts then due and payable under this Agreement in such order of
application and/or such proportions as the Lender may specify by notice to the
Borrower;


 


(c)                                  THIRDLY: if on such Facility Reset Date
Outstandings exceed 80 per cent. of the Qualifying Receivables, in retention of
such amount as is necessary so as to ensure that the Outstandings do not exceed
80 per cent. of the Qualifying Receivables; and


 


(d)                                 FOURTHLY: any surplus shall be paid to the
Borrower.


 


11.3                        Further repayment provisions.  If on
any Facility Reset Date the amount applied in accordance with Clause 11.2 is
insufficient to repay the Loan in its entirety, the Borrower shall on such
Facility Reset Date repay the whole of the then outstanding balance of the
Loan.


 


11.4                        Payments on Termination Date.  On the
Termination Date, the Borrower shall repay the Loan and pay to the Lender all
other sums then accrued or owing under this Agreement.


 


11.5                        Voluntary prepayment.  Subject to the following conditions, the
Borrower may prepay the whole or part of an Advance.


 


11.6                        Conditions for voluntary
prepayment.  The conditions referred to in Clause 11.5 are:


 


(a)                                  that the Lender has received from the
Borrower at least 5 days’ prior written notice specifying the amount to be
prepaid and the date on which the prepayment is to be made;


 


(b)                                 that the amount to be prepaid shall be a
minimum of US$5,000,000 (or such other amount as is agreed by the Lender); and


 


(c)                                  that the Borrower has provided evidence
satisfactory to the Lender that any official consent required by the Borrower
in connection with the prepayment has been obtained


 


16





















 


and remains in force, and that any official
requirement relevant to this Agreement which affects the Borrower has been
complied with.


 


11.7                        Effect of notice of prepayment.  A
prepayment notice may not be withdrawn or amended without the consent of the
Lender and the amount specified in the prepayment notice shall become due and
payable by the Borrower on the date for prepayment specified in the prepayment
notice.


 


11.8                        Amounts payable on prepayment.  A
prepayment shall be made together with accrued interest (and any other amount
payable under Clause 17 or otherwise) in respect of the amount prepaid and, if
the prepayment is not made on the last day of an Interest Period together with
any sums payable under Clauses 17.1(b) and 17.2 but without premium or
penalty.


 


11.9                        Reborrowing permitted.  Subject to the terms of this Agreement, any
amount repaid or prepaid may be re-borrowed, provided that following a
prepayment under this Clause 11 the Borrower may not submit a Utilisation Notice
before the next following Facility Reset Date.


 


11.10                 Withdrawal of surplus from Cash Collateral
Account.  The Borrower may at
any time during the Loan Period by giving 2 Business Days’ prior written notice
to the Lender request that the Lender pay an amount equal to or more man
$100,000 from the Cash Collateral Account to such account as the Borrower may
specify in such notice, and the Lender shall act in accordance with such
request provided that:


 


(a)                                  the amount retained in the Cash Collateral
Account after such payment shall be sufficient:


 


(i)                                     to enable the Lender to apply any amounts
required to be applied on the next Facility Reset Date in accordance with
Clauses 11.2(a) to 11.2(c); and


 


(ii)                                  to ensure that at such time the Aggregate
Liabilities do not exceed 80 per cent. of the sum of the Qualifying Receivables
and the amount retained in the Cash Collateral Account; and


 


(b)                                 no Event of Default or Potential Event of
Default has then occurred and is continuing.


 


12                                  REPRESENTATIONS AND
WARRANTIES


 


12.1                        General.  The
Borrower represents and warrants to the Lender as follows.


 


12.2                        Status.  The
Borrower is duly incorporated and validly existing and in good standing under
the laws of Liberia.


 


12.3                        Corporate power.  The
Borrower has the corporate capacity, and has taken all corporate action and
obtained all official consents necessary for it:


 


(a)                                  to execute this Agreement and the Security
Documents;


 


(b)                                 to borrow under this Agreement and to make
all the payments contemplated by, and to comply with, this Agreement; and


 


(c)                                  to make all payments contemplated by, and to
comply with, the Documents.


 


12.4                        Official consents in force.  All
the official consents referred to in Clause 12.3 remain in force and nothing
has occurred which makes any of them liable to revocation.


 


17





















 


12.5                        Legal validity.


 


(a)                                  This Agreement constitutes the Borrower’s
legal, valid, binding and enforceable obligations; and


 


(b)                                 the Security Documents create legal, valid
and binding Security Interests enforceable in accordance with their terms over
all the assets to which they, by their terms, relate;


 


in each case, subject to any relevant insolvency laws affecting
creditors’ rights generally.


 


12.6                        No third party Security
Interests.  At the time of execution and delivery of this
Agreement and the Security Documents:


 


(a)                                  the Borrower will have the right to create
all the Security Interests which the Security Documents purport to create; and


 


(b)                                 no third party will have any Security
Interest or any interest, right of claim over, in or in relation to, any asset
to which any such Security Interest, by its terms, relates.


 


12.7                        No conflicts.  The
execution by the Borrower of this Agreement and the Security Documents, and the
borrowing by the Borrower of a Utilisation, and its compliance with this
Agreement and the Security Documents will not involve or lead to a
contravention of:


 


(a)                                  any law or official requirement applicable to
it; or


 


(b)                                 the constitutional documents of the Borrower;
or


 


(c)                                  any contractual or other obligation or
restriction which is binding on the Borrower or any of its assets.


 


12.8                        No withholding taxes.  All
payments which the Borrower is liable to make under this Agreement and the
Security Documents may be made without deduction or withholding for or on
account of any tax payable under any law of any Pertinent Jurisdiction.


 


12.9                        No default.  No
Event of Default or Potential Event of Default has occurred and is continuing.


 


12.10                 Information.  All
information which has been provided in writing by or on behalf of the Borrower
to the Lender in connection with this Agreement and the Security Documents
satisfied the requirements of Clause 13.5; all audited and unaudited accounts
which have been so provided satisfied the requirements of Clause 13.7; and mere
has been no material adverse change in the financial position or state of
affairs of the Borrower from that disclosed in the latest of those accounts.


 


12.11                 No litigation.  No
legal or administrative action involving the Borrower has been commenced or
taken or, to the Borrower’s knowledge, is likely to be commenced or taken
which, in either case, would be likely to have a material adverse effect on the
Borrower’s financial position or profitability.


 


12.12                 Compliance with certain
undertakings.  At the date of this Agreement, the Borrower is
in compliance with the provisions of Clauses 13.2, 13.4 and 13.9 and the
provisions of the Security Documents.


 


12.13                 Taxes paid.  The
Borrower has paid all taxes applicable to, or imposed on, or in relation to,
the Borrower or its business.


 


12.14                 Repetition.  The
representations and warranties of the Borrower set out in Clauses 12.2 to 12.14
shall survive the execution of this Agreement and the Security Documents and
the making of each Utilisation and shall, subject to Clause 12.15, be deemed to
be


 


18





















 


repeated at the beginning of each Interest Period, with reference to
the facts and circumstances existing at each such time, as if made at each such
time.


 


12.15                 Qualification to repetition.  The
repeating provisions of Clause 12.14 shall not apply to the representations and
warranties contained in Clauses 12.8 and 12.11.


 


13                                  UNDERTAKINGS


 


13.1                        General.  The
Borrower undertakes with the Lender to comply with the following provisions of
this Clause 13 at all times during the Loan Period, except as the Lender may
otherwise permit.


 


13.2                        Negative pledge.  The
Borrower shall not create or permit to arise any Security Interest over any
Qualifying Receivables.


 


13.3                        No disposal of assets.  The
Borrower shall not (except in the ordinary course of business or operations, in
which case the Borrower shall give 60 days’ prior written notice to the Lender
of the same) either in a single transaction or in a series of transactions,
whether related or not and whether voluntarily or involuntarily; sell,
transfer, grant a lease of otherwise dispose of to any person:


 


(a)                                  all or more than 15 per cent (in value) of
its assets; or


 


(b)                                 any debt payable to it or any right (present,
future or contingent right) to receive a payment, including any right to
damages or compensation.


 


13.4                        No change of business.  The
Borrower shall not engage in any business or activities other than the business
and activities carried on by it at the date of this Agreement.


 


13.5                        Information provided to be
accurate.  All financial and other information which is
provided in writing by or on behalf of the Borrower under, or in connection
with, this Agreement and the Security Documents shall be true and not
misleading and shall not omit any material fact or consideration.


 


13.6                        Provision of financial
statements.  The Borrower shall send to the Lender:


 


(a)                                  as soon as possible, but in no event later
than 4 months after the end of each financial year of the Borrower, the audited
accounts of the Borrower;


 


(b)                                 as soon as possible, but in no event later
than 4 months after the end of each financial year of the ultimate parent
company of the Borrower, the audited consolidated accounts of such ultimate parent
company of the Borrower and its subsidiaries (if such accounts are in fact
drawn up);


 


(c)                                  as soon as possible, but in no event later
than 2 months after the end of each half-year in each financial year of the
Borrower, the unaudited accounts of the Borrower which are certified as to
their correctness by the chief financial officer of the Borrower;


 


(d)                                 as soon as possible, but in no event later
than 1 month after they are produced, any management accounts of the Borrower.


 


13.7                        Form of financial statements.  All
accounts (audited and unaudited) delivered under Clause 13.6 shall:


 


(a)                                  be prepared in accordance with all applicable
laws and generally accepted accounting principles consistently applied;


 


19





















 


(b)                                 give a true and fair view of the state of
affairs of the Borrower or ultimate parent company of the Borrower and its
subsidiaries, as relevant, at the date of those accounts and of its profit for
the period to which those accounts relate; and


 


(c)                                  fully disclose or provide for all significant
liabilities of the Borrower or ultimate parent company of the Borrower and its
subsidiaries, as relevant.


 


13.8                        Shareholder and creditor notices.  The
Borrower shall send the Lender, at the same time as they are despatched, copies
of all communications which are despatched to the Borrower’s shareholders or
creditors or any class of them.


 


13.9                        Official consents.  The
Borrower shall maintain in force and promptly obtain or renew, and shall
promptly send certified copies to the Lender of, all official consents
required:


 


(a)                                  for the Borrower to perform its obligations
and liabilities under this Agreement and the Security Documents; and


 


(b)                                 for the validity or enforceability of this
Agreement and the Security Documents;


 


and the Borrower shall comply with the terms of all such official
consents.


 


13.10                 Maintenance of obligations.  The
Borrower shall:


 


(a)                                  at its own cost, do all that it reasonably
can to ensure that each of this Agreement and the Security Documents validly
creates the liabilities, obligations and, as appropriate, the Security
Interests which it purports to create; and


 


(b)                                 without limiting the generality of paragraph (a) above,
at its own cost, promptly register, file, record or enrol this Agreement and the
Security Documents with any court or authority in all relevant jurisdictions,
pay any stamp, registration or similar tax in all relevant jurisdictions in
respect of this Agreement and the Security Documents, give any notice or take
any other step which may be or become necessary or desirable for this Agreement
and the Security Documents to be valid, enforceable or admissible in evidence
or to ensure or protect the priority of any Security Interest which it creates;
and


 


(c)                                  ensure that its liabilities under this
Agreement are secured by, and in accordance with, the Security Documents
subject to any relevant insolvency laws affecting creditors’ rights generally.


 


13.11                 Notification of litigation.  The
Borrower shall provide the Lender with details of any legal or administrative
action involving the Borrower as soon as such action is instituted or it
becomes apparent to the Borrower that it is likely to be instituted, unless it
is clear that the legal or administrative action cannot be considered material in
the context of this Agreement and the Security Documents.


 


13.12                 Confirmation of no default.  The
Borrower shall, within 2 Business Days after service by the Lender of a written
request, serve on the Lender a notice which is signed by 2 directors of the Borrower
and which:


 


(a)                                  states that no Event of Default or Potential
Event of Default has occurred; or


 


(b)                                 states that no Event of Default or Potential
Event of Default has occurred, except for a specified event or matter, of which
all material details are given.


 


13.13                 Notification of default.  The
Borrower shall notify the Lender as soon as the Borrower becomes aware of:


 


(a)                                  the occurrence of an Event of Default or a
Potential Event of Default; or


 


20





















 


(b)                                 any matter which indicates that an Event of
Default or a Potential Event of Default may have occurred;


 


and
shall thereafter keep the Lender fully up-to-date with all developments.


 


13.14                 Provision of further information.
 The Borrower shall, as soon as practicable
after receiving the request, provide the Lender with any additional financial
or other information relating to the Borrower, its businesses or to any other
matter relevant to, or to any provision of, this Agreement or the Security
Documents which may be requested by the Lender at any time.


 


14                                  PAYMENTS AND CALCULATIONS


 


14.1                        Payments of Receivables.  The
Borrower shall procure that each Customer pays all Receivables due from it
which are the subject of a Schedule of Receivables to the Cash Collateral
Account when due.


 


14.2                        Other payments.  All
payments to be made by the Borrower to the Lender under this Agreement and the
Security Documents shall be made to the Lender:


 


(a)                                  by not later than 11.00 a.m. (New York
time) on the due date;


 


(b)                                 in same day Dollar funds settled through the
New York Clearing House Interbank Payments System (or in such other Dollar
funds and/or settled in such other manner as the Lender shall specify as being
customary at the time for the settlement of international transactions of the
type contemplated by this Agreement); and


 


(c)                                  to the account of the Lender at American
Express Bank Limited, 23rd Floor, American Express Tower, 200 Vesey Street, New
York, NY 10285-2300, U.S.A. (Account No 000261123), or to such other account
with such other bank as the Lender may from time to time notify to the
Borrower.


 


14.3                        Payment on non-Business Day.  If any
payment by the Borrower under this Agreement or a Security Document would
otherwise fall due on a day which is not a Business Day:


 


(a)                                  the due date shall be extended to the next
succeeding Business Day; or


 


(b)                                 if the next succeeding Business Day falls in
the next calendar month, the due date shall be brought forward to the
immediately preceding Business Day;


 


and interest shall be payable during any extension under paragraph (a) at
the rate payable on the original due date.


 


14.4                        Basis for calculation of periodic
payments. All interest and
commitment fee and any other payments under this Agreement which are of an
annual or periodic nature shall accrue from day to day and shall be calculated
on the basis of the actual number of days elapsed and a 360 day year.


 


14.5                        Lender accounts. The Lender shall maintain an account showing
the amounts advanced by the Lender and all other sums owing to the Lender from
the Borrower under this Agreement and the Security Documents and all payments
in respect of those amounts made by the Borrower.


 


14.6                        Accounts prima facie evidence. If the account maintained under Clause 14.5
shows an amount to be owing by the Borrower to the Lender, that account shall
be prima facie evidence that that amount is owing to the Lender.


 


21





















 


15                                  EVENTS OF DEFAULT


 


15.1                        Events of Default.  An Event of Default occurs if:


 


(a)                                  the Borrower or the Guarantor fails to pay
when due or (if so payable) on demand any sum payable under this Agreement or
the Security Documents or under any document relating to this Agreement or the
Security Documents; or


 


(b)                                 any breach occurs of Clause 4.2, 13.2, 13.3
or 13.4; or


 


(c)                                  any breach by the Borrower or the Guarantor
occurs of any provision of this Agreement or the Security Documents (other than
a breach covered by paragraph (a) or (b) above) unless, in the
opinion of the Lender, such default is capable of remedy and such default is
remedied to the satisfaction of the Lender within 10 days after written notice
from the Lender requesting action to remedy the same; or


 


(d)                                 (subject to any applicable grace period
specified in this Agreement or the Security Documents) any breach by the
Borrower or the Guarantor occurs of any provision of this Agreement or the Security Documents (other
than a breach covered by paragraph (a), (b) or (c) above); or


 


(e)                                  any representation, warranty or statement
made by, or by an officer of, the Borrower or the Guarantor in this Agreement
or the Security Documents or in a Utilisation Notice or any other notice or
document relating to this Agreement or the Security Documents is untrue or
misleading when it is made or deemed to be repeated; or


 


(f)                                    any of the following occurs in relation to
any Financial Indebtedness of the Borrower or the Guarantor:


 


(i)            any Financial Indebtedness of the Borrower or
the Guarantor is not paid when due or, if so payable, on demand; or


 


(ii)           any Financial Indebtedness of the Borrower or
the Guarantor becomes due and payable or capable of being declared due and
payable prior to its stated maturity date as a consequence of any event of
default; or


 


(iii)          a lease or hire purchase agreement creating
any Financial Indebtedness of the Borrower or the Guarantor is terminated by
the lessor or owner or becomes capable of being terminated as a consequence of
any termination event; or


 


(iv)                              any overdraft, loan, note issuance,
acceptance credit, letter of credit, guarantee, foreign exchange or other
facility, or any swap or other derivative contract of transaction, relating to
any Financial Indebtedness of the Borrower or the Guarantor ceases to be
available or becomes capable of being terminated as a result of any event of
default, or cash cover is required, or becomes capable of being required, in
respect of such a facility as a result of any event of default; or


 


(v)                                 any Security Interest securing any Financial
Indebtedness of the Borrower or the Guarantor becomes enforceable; or


 


(g)                                 any of the following occurs:


 


(i)                                     the Borrower or the Guarantor becomes, in the
opinion of the Lender, unable to pay its debts as they fall due; or


 


(ii)                                  any assets of the Borrower or the Guarantor
are subject to any form of execution, attachment, arrest, sequestration,
distress or any form of freezing order in respect of


 


22





















 


a sum of, or
sums aggregating, $250,000 or more or the equivalent in another currency; or


 


(iii)                               any
administrative receiver or other receiver is appointed over any asset of the Borrower; or


 


(iv)                              any
step is taken in relation to the appointment of an administrative receiver of
the Borrower; or


 


(v)                                 an
administrator is appointed (whether by the court or otherwise) in respect of
the Borrower;


 


(vi)                              a
resolution is passed, an application to a court is made or any other step is
taken by a creditor of the Borrower (other than the holder of Security
Interests which together relate to all or substantially all of the assets of
the Borrower) for the appointment of an administrator in respect of the
Borrower, unless:


 


(A)                              the
proposed administration is being contested in good faith, on substantial
grounds and not with a view to some other insolvency law procedure being implemented
instead;


 


(B)                                the
application is dismissed or withdrawn within 30 days of being made; and


 


(C)                                the
Borrower will continue to carry on business in the ordinary way and without
being the subject of any actual, interim or pending insolvency law procedure;
or


 


(vii)         an
Administration Notice is given or filed, a resolution is passed, an application
to a court is made or any other step is taken by:


 


(A)                              the
members of the Borrower,


 


(B)                                the
directors of the Borrower, or


 


(C)                                a creditor that is a holder of Security
Interests which together relate to all or substantially all of the assets of
the Borrower,


 


for or with a view to the
appointment of an administrator in respect of the Borrower; or


 


(viii)        a resolution is passed, an application to a
court is made or any other step is taken by a government minister or public or
regulatory authority of a Pertinent Jurisdiction for or with a view to the
appointment of an administrator in respect of the Borrower; or


 


(ix)                                a petition is presented to a court, a resolution
is passed, or any other step is taken for or with a view to the appointment of
a provisional liquidator in respect of the Borrower unless:


 


(A)                              the proposed appointment is being contested
in good faith, on substantial grounds and not with a view to some other
insolvency law procedure being implemented instead;


 


(B)                                the petition is dismissed or withdrawn within
30 days of being presented; and


 


23





















 


(C)                                the Borrower will continue to carry on
business in the ordinary way and without being the subject of any actual,
interim or pending insolvency law procedure; or


 


(x)            a petition is presented to a court, a
resolution is passed or any other step is taken for or with a view to the
winding up of the Borrower, save that this paragraph does not apply to a fully
solvent winding up of the Borrower which is, or is to be, effected for the
purposes of an amalgamation or reconstruction previously approved by the Lender
and effected not later than 3 months after the commencement of the winding up;
or


 


(xi)           the Guarantor or, in any proceedings, a
lawyer acting for the Guarantor makes any formal declaration of bankruptcy or
any formal statement to the effect that the Guarantor is insolvent or likely to
become insolvent; or


 


(xii)          any meeting of the members or directors, or
of any committee of the board or senior management, of the Borrower is held or
summoned for the purpose of considering a resolution or proposal to authorise
or take any action of a type described in paragraphs (v) to (xi) above or
a step preparatory to such action, or (with or without such a meeting) the
members, directors or such a committee resolve or agree that that such an
action or step should be taken or should be taken if certain conditions
materialise or fail to materialise; or


 


(xiii)         in any country other than England, any event
occurs or any proceedings are opened or commenced or any step is taken which,
in the opinion of the Lender, is similar to any of the foregoing; or


 


(h)                             the Guarantor, the Borrower or the Borrower’s
directors petition or apply to a court for, or the Guarantor, the Borrower or
the Borrower’s directors take any steps to obtain or submit or present a
document setting out the proposed terms of, or any other proposal for, any form
of moratorium, suspension or deferral of payments, reorganisation of the
Guarantor’s or the Borrower’s debt (or certain of the Guarantor’s or the
Borrower’s debt) or arrangement with all or a substantial proportion (by number
or value) of the Guarantor’s or the Borrower’s creditors or of any class of
them or any such moratorium, suspension or deferral of payments, reorganisation
or arrangement is effected by court order, by the filing of documents with a
court, by means of a contract or in any other way at all; or


 


(i)                                 the Borrower ceases or suspends carrying on
its business or a part of its business which, in the opinion of the Lender, is
material in the context of this Agreement or the Security Documents; or


 


(j)                                    it becomes unlawful in any Pertinent
Jurisdiction or impossible:


 


(i)                                     for the Borrower or the Guarantor to
discharge any liability under this Agreement or to comply with any other
obligation which the Lender considers material under this Agreement or the
Security Documents; or


 


(ii)                                  for the Lender to exercise or enforce any
right under this Agreement or the Security Documents; or


 


(k)                             any official consent necessary to enable the
Borrower to comply with any provision which the Lender considers material of
this Agreement or the Security Documents is not granted, expires without being
renewed, is revoked or becomes liable to revocation or any condition of such a
consent is not fulfilled; or


 


24





















 


(1)                                  without
the prior written consent of the Lender there is a change in the legal and beneficial ownership, or in the ultimate
beneficial ownership, of the shares in the Borrower from that existing at the
date of this Agreement and disclosed to the Lender; or


 


(m)                               any provision which the Lender considers
material of this Agreement or the Security Documents proves to have been or
becomes invalid or unenforceable; or


 


(n)                                 any other event occurs or any other
circumstances arise or develop including, without limitation a change in the
financial position, state of affairs or prospects of the Borrower or the
Guarantor, in the light of which the Lender considers that there is a
significant risk that the Borrower or the Guarantor is, or will later become,
unable to discharge its liabilities and obligations under this Agreement or the
Security Documents, as appropriate, as they fall due.


 


15.2                        Actions following an Event of
Default.  On, or at any time after, the occurrence of an
Event of Defeult, the Lender may:


 


(a)                                  serve on the Borrower a notice stating that
the Commitment and all liabilities and obligations of the Lender to the
Borrower under this Agreement are terminated; and/or


 


(b)                                 serve on the Borrower a notice stating that
the Loan, all accrued interest and all other amounts accrued or owing under
this Agreement and the Security Documents are immediately due and payable or
are due and payable on demand; and/or


 


(c)                                  take any other action which, as a result of
the Event of Default or any notice served under paragraph (a) or (b) above,
the Lender is entitled to take under this Agreement, the Security Documents or
any applicable law.


 


15.3                        Termination of obligations.  On the
service of a notice under paragraph (a) of Clause 15.2, the Commitment and
all the liabilities and obligations of the Lender to the Borrower under this
Agreement shall terminate.


 


15.4                        Acceleration of Loan.  On the
service of a notice under paragraph (b) of Clause 15.2, the Loan, all
accrued interest and all other amounts accrued or owing from the Borrower under
this Agreement and the Security Documents shall become immediately due and
payable or, as the case may be, payable on demand.


 


15.5                        Multiple notices; action without
notice.  The Lender may serve notices under paragraphs
(a) and (b) of Clause 15.2 simultaneously or on different dates and
it may take any action referred to in that Clause if no such notice is served
or simultaneously with, or at any time after, the service of both or either of
such notices.


 


15.6                        Exclusion of Lender
liability.  Neither the Lender nor any receiver or
manager appointed by the Lender, shall have any liability to the Borrower or
the Guarantor for any loss caused by an exercise of rights under this Agreement
or the Security Documents or by any failure or delay to exercise such a right
except that this does not exempt the Lender or a receiver or manager from
liability for losses shown to have been directly and mainly caused by the
dishonesty or the wilful misconduct of the Lender’s own officers and employees
or (as the case may be) such receiver’s or manager’s own partners or employees.


 


15.7                        Interpretation.  In
Clause 15.1(f), references to an event of default or a termination event
include any event, howsoever described, which is similar to an event of default
in a facility agreement or a termination event in a finance lease; and, in
Clause 15.1(g), “petition” includes an application.


 


16                                  FEES AND EXPENSES


 


16.1                        Fees.  The
Borrower shall pay to the Lender:


 


25





















 


(a)                                  on the earlier of the first Utilisation Date
and the date falling 10 Business Days after the date of this Agreement, an
arrangement fee of $100,000;


 


(b)                                 monthly in arrears during the Availability
Period and on the last day thereof a commitment fee at the rate of 0.3 per cent.
per annum on the amount of the Available Commitment;


 


(c)                                  on each Renewal Date which is not a
Termination Date, a renewal fee at the rate of $50,000; and


 


(d)                                 on each Utilisation Date on which the Lender
issues an L/C pursuant to a Utilisation Notice, a processing fee of $500 in
respect of each L/C so issued.


 


16.2                        Costs of negotiation, preparation
etc.  The Borrower shall pay to the Lender on its demand the amount of all
expenses incurred by the Lender in connection with the negotiation,
preparation, execution or registration of this Agreement, the Security
Documents or any related document or with any transaction or matter relating to
a transaction contemplated by this Agreement, the Security Documents or a
related document, Provided that,
if the Borrower shall have paid the arrangement fee referred to in Clause 16.1(a) above,
the Lender shall apply $35,000 of such fee towards satisfaction of the Borrower’s
obligation under this Clause 16.2.


 


16.3                        Costs of variation, amendments,
enforcement etc.  The Borrower shall pay to the Lender, on the
Lender’s demand, the amount of all expenses incurred by the Lender in
connection with:


 


(a)                                  any amendment or supplement to this
Agreement, the Security Documents, or any proposal for such an amendment to be
made;


 


(b)                                 any consent or waiver by the Lender under or
in connection with this Agreement, the Security Documents, or any request for
such a consent or waiver; and


 


(c)                                  any step taken by the Lender with a view to
the protection, exercise or enforcement of any right created by this Agreement,
the Security Documents or for any similar purpose.


 


There shall be recoverable under paragraph (c) the full amount of
all legal expenses, whether or not such as would be allowed under rules of
court or any taxation or other procedure carried out under such rules.


 


16.4                        Documentary taxes.  The Borrower shall promptly pay any tax payable on or by reference to
this Agreement or the Security Documents, and shall, on the Lender’s demand,
fully indemnify the Lender against any liabilities and expenses resulting from
any failure or delay by the Borrower to pay such a tax.


 


16.5                        Certification of amounts.  A
notice which is signed by 2 officers of the Lender, which states that a
specified amount, or aggregate amount, is due to the Lender under this Clause
16 and which indicates (without necessarily specifying a detailed breakdown)
the matters in respect of which the amount, or aggregate amount, is due shall
be prima facie evidence that the amount, or aggregate amount, is due.


 


17                                  INDEMNITIES


 


17.1                        Indemnities regarding Utilisations and payment of
Aggregate Liabilities.  The Borrower shall fully indemnify the Lender on
its demand in respect of all claims and losses which are made or brought
against or incurred by the Lender, or which the Lender reasonably and with due
diligence estimates that it will incur, as a result of or in connection with:


 


26





















 


(a)                                  an Advance not being borrowed or an L/C not
being issued on the date specified in the Utilisation Notice for any reason
other than a default by the Lender;


 


(b)                                 the receipt or recovery of all or any part of
a Utilisation or an overdue sum otherwise than on the last day of an Interest
Period or other relevant period;


 


(c)                                  any failure (for whatever reason) by the
Borrower to make payment of any amount due under this Agreement or the Security
Documents on the due date or, if so payable, on demand (after giving credit for
any default interest paid by the Borrower on the amount concerned under Clause
7);


 


(d)                                 the occurrence and/or continuance of an Event
of Default or a Potential Event of Default and/or the acceleration of repayment
of the Loan under Clause 15;


 


and
in respect of any tax (other than tax on its overall net income) for which the
Lender is liable in connection with any amount paid or payable to the Lender
(whether for its own account or otherwise) under this Agreement or the Security
Documents.


 


17.2                        Breakage costs. 
Without limiting its generality, Clause 17.1 covers any claim or loss,
including a loss of a prospective profit, incurred by the Lender:


 


(a)                                  in liquidating or employing deposits from
third parties acquired or arranged to fund or maintain all or any part of the
Loan and/or any overdue amount (or an aggregate amount which includes the Loan
or any overdue amount); and


 


(b)                                 in terminating, or otherwise in connection
with, any interest and/or currency swap or any other transaction entered into
(whether with another legal entity or with another office or department of the
Lender) to hedge any exposure arising under this Agreement or a number of
transactions of which this Agreement is one.


 


17.3                        Miscellaneous indemnities.  The
Borrower shall fully indemnify the Lender on its demand in respect of all
claims and losses which may be made or brought against, or incurred by, the
Lender, in any country, in relation to:


 


(a)                                  any action taken, or omitted or neglected to
be taken, under, or in connection with, this Agreement or the Security
Documents by the Lender;


 


(b)                                 any other event, matter or question which
occurs or arises at any time during the Loan Period and which has any
connection with, or any bearing on, this Agreement or the Security Documents,
any payment or other transaction relating to this Agreement or the Security
Documents;


 


other than claims and losses which are shown to have been directly and
mainly caused by the gross negligence or the wilful misconduct of the Lender’s
own officers or employees.


 


17.4                        Currency indemnity.  If
any sum due from the Borrower to the Lender under this Agreement or the
Security Documents or under any order or judgment relating to this Agreement or
the Security Documents has to be converted from the currency in which this
Agreement or the Security Documents provided for the sum to be paid (the “Contractual Currency”) into another currency (the “Payment Currency”) for the purpose of:


 


(a)                                  making or lodging any claim or proof against
the Borrower whether in its liquidation, any arrangement involving it or
otherwise; or


 


(b)                                 obtaining an order or judgment from any court
or other tribunal; or


 


(c)                                  enforcing any such order or judgment,


 


27





















 


the Borrower shall indemnify the Lender against the loss arising when
the amount of the Payment Currency actually received by the Lender is converted
at the available rate of exchange into the Contractual Currency.


 


In this Clause 17.4, the “available rate of exchange” means the rate at
which the Lender is able at the opening of business (Piraeus time) on the
Business Day after it receives the sum concerned to purchase the Contractual
Currency with the Payment Currency.


 


This Clause 17.4 creates a separate liability of the Borrower which is
distinct from its other liabilities under this Agreement or the Security
Documents and which shall not be merged in any judgment or order relating to
those other liabilities.


 


17.5                        Certification of amounts.  A notice which is signed by 2 officers of the Lender, which states that
a specified amount, or aggregate amount, is due to the Lender under this Clause
17 and which indicates (without necessarily specifying a detailed breakdown)
the matters in respect of which the amount, or aggregate amount, is due shall
be prima facie evidence that the amount, or aggregate amount, is due.


 


18                                  NO SET-OFF OR TAX DEDUCTION


 


18.1                        No deductions.  All amounts due from the Borrower under this Agreement and the Security
Documents shall be paid;


 


(a)                                  without any form of set-off; cross-claim or
condition; and


 


(b)                                 free and clear of any tax deduction except a
tax deduction which the Borrower is required by law to make.


 


18.2                        Grossing-up for taxes.  If
the Borrower is required by law to make a tax deduction from any payment:


 


(a)                                  the Borrower shall notify the Lender as soon
as it becomes aware of the requirement;


 


(b)                                 the Borrower shall pay the tax deducted to
the appropriate taxation authority promptly, and in any event before any fine
or penalty arises; and


 


(c)                                  the amount due in respect of the payment
shall be increased by the amount necessary to ensure that the Lender receives
and retains (free from any liability relating to the tax deduction) an amount
which, after the tax deduction, is equal to the full amount which it would
otherwise have received.


 


18.3                        Evidence of payment of taxes.  Within
one month after making any tax deduction, the Borrower shall deliver to the Lender
documentary evidence satisfactory to the Lender that the tax had been paid to
the appropriate taxation authority.


 


18.4                        Exclusion of tax on overall net
income.  In this Clause 18, “tax
deduction” means any deduction or withholding for or on account of
any present or future tax except tax on the Lender’s overall net income.


 


19                                  ILLEGALITY, ETC


 


19.1                        Illegality.  This
Clause 19 applies if the Lender notifies the Borrower that it has become, or
will with effect from a specified date, become:


 


(a)                                  unlawful or prohibited as a result of the
introduction of a new law, an amendment to an existing law or a change in the
manner in which an existing law is or will be interpreted or applied; or


 


28





















 


(b)                                 contrary to, or inconsistent with, an
official requirement,


 


for the Lender to maintain or give effect to any of its liabilities and
obligations under this Agreement in the manner contemplated by this Agreement.


 


19.2                        Notification and effect of
illegality.  On the Lender notifying the Borrower under
Clause 19.1, the Lender’s obligation to make any further Utilisations shall
terminate; and thereupon or, if later, on the date specified in the Lender’s
notice under Clause 19.1 as the date on which the notified event would become
effective the Borrower shall prepay the Loan in full in accordance with Clause
11.


 


20                                  INCREASED COSTS


 


20.1                        Increased costs.  This
Clause 20 applies if the Lender notifies the Borrower that it considers that:


 


(a)                                  the result of the introduction or alteration
after the date of this Agreement of a law or an official requirement or an
alteration after the date of this Agreement in the manner in which a law is
interpreted or applied (disregarding any effect which relates to the
application to payments under this Agreement of a tax on the Lender’s overall
net income); or


 


(b)                                 the effect of complying with any official
requirement (including any which relates to capital adequacy or liquidity
controls or which affects the manner in which the Lender allocates capital
resources to its obligations under this Agreement) which is introduced, or
altered, or the interpretation or application of which is altered, after the
date of this Agreement,


 


is that the Lender (or a parent company of it) has
incurred or will incur an “increased cost”.


 


20.2                        Meaning of “increased cost”.  In
this Clause 20, “increased cost” means:


 


(a)                                  an additional or increased cost incurred as a
result of, or in connection with, the Lender having entered into, or being a
party to, this Agreement or having taken an assignment of rights under this
Agreement, or funding or maintaining a Utilisation or performing its
obligations under this Agreement, or of having outstanding all or any part of a
Utilisation or other unpaid sums; or


 


(b)                                 a reduction in the amount of any payment to
the Lender under this Agreement or in the effective return which such a payment
represents to the Lender or on its capital;


 


(c)                                  an additional or increased cost of funding
all or maintaining all or any of the Utilisations comprised in a class of
advances formed by or including an Advance or (as the case may require) the
proportion of that cost attributable to a Utilisation; or


 


(d)                                 a liability to make a payment, or a return
foregone, which is calculated by reference to any amounts received or
receivable by the Lender under this Agreement,


 


but not:


 


(i)                                     an item attributable to a change in the rate
of tax on the overall net income of the Lender (or a parent company of it); or


 


(ii)                                  an item covered by the Mandatory Cost Rate;
or


 


(iii)                               an item covered by the indemnity for tax in
Clause 17.1; or


 


29





















 


(iv)                              an item covered by the grossing-up provisions
in Clause 18.2; or


 


(v)                                 an item arising directly out of the
implementation by the applicable authorities having jurisdiction over the
Lender of the matters set out in the statement of the Basle Committee on
Banking Regulations and Supervisory Practices dated July 1988 and entitled
“International Convergence of Capital Measurement and Capital Standards”, to
the extent and according to the timetable provided for in the statement.


 


For the purposes of this Clause 20.2, the Lender may in good faith
allocate or spread costs and/or losses among its assets and liabilities (or any
class thereof) on such basis as it considers appropriate.


 


20.3                        Payment of increased costs.  The
Borrower shall pay to the Lender, on its demand, the amounts which the Lender
from time to time notifies the Borrower that it has specified to be necessary
to compensate it for the increased cost.


 


20.4                        Notice of prepayment.  If
the Borrower is not willing to continue to compensate the Lender for the
increased cost under Clause 20.3, the Borrower may give the Lender not less
than 14 days’ notice of its intention to prepay a Utilisation at the end of an
Interest Period.


 


20.5                        Prepayment. 
Notice under Clause 20.4 shall be irrevocable; and on the date specified
in its notice of intended prepayment, the Borrower shall prepay (without
premium or penalty) a Utilisation, together with accrued interest thereon at
the applicable rate plus the Mandatory Cost Rate and the Margin.


 


20.6                        Provisions for prepayment. 
Clauses 11.6(c), 11.7 and 11.9 shall apply in relation to the prepayment.


 


21                                  SET-OFF


 


21.1                        Application of credit balances.  The
Lender may without prior notice:


 


(a)                                  apply any balance (whether or not then due)
which at any time stands to the credit of any account in the name of the
Borrower at any office of the Lender in any country in or towards satisfaction
of any sum then due from the Borrower to the Lender under this Agreement or the
Security Documents; and


 


(b)                                 for that purpose:


 


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


 


(ii)                                  convert or translate all or any part of a
deposit or other credit balance into Dollars;


 


(iii)                               enter into any other transaction or make any
entry with regard to the credit balance which the Lender considers appropriate.


 


21.2                        Existing rights unaffected.  The
Lender shall not be obliged to exercise any of its rights under Clause 21.1;
and those rights shall be without prejudice and in addition to any right of
set-off, combination of accounts, charge, lien or other right or remedy to
which the Lender is entitled (whether under the general law or any document).


 


21.3                        No Security Interest.  This
Clause 21 gives the Lender a contractual right of set-off only, and does not
create an equitable charge or other Security Interest over any credit balance
of the Borrower.


 


30





















 


22                                  TRANSFERS AND CHANGES IN FACILITY
OFFICES


 


22.1                        Transfer by Borrower.  The
Borrower may not, without the consent of the Lender:


 


(a)                                  transfer any of its rights, liabilities or
obligations under this Agreement or the Security Documents; or


 


(b)                                 enter into any merger, de-merger or other
reorganisation, or carry out any other act, as a result of which any of its
rights, liabilities or obligations would vest in, or pass to, another person.


 


22.2                        Assignment by Lender.  The
Lender may assign all or any of the rights and interests which it has under, or
by virtue of, this Agreement or the Security Documents without the consent of
the Borrower.


 


22.3                        Rights of assignee.  In
respect of any breach of a warranty, undertaking, condition or other provision
of this Agreement or the Security Documents, or any misrepresentation made in,
or in connection with, this Agreement or the Security Documents, a direct or
indirect assignee of any of the Lender’s rights or interests under, or by
virtue of, this Agreement or the Security Documents shall be entitled to
recover damages by reference to the loss incurred by that assignee as a result
of the breach or misrepresentation irrespective of whether the Lender would
have incurred a loss of that kind or amount.


 


22.4                        Sub-participation; subrogation
assignment. The Lender may
sub-participate all or any part of its rights and/or obligations and/or
liabilities under, or in connection with, this Agreement or the Security
Documents without the consent of, or any notice to, the Borrower; and the
Lender may assign, in any manner and terms agreed by it, all or any part of
those rights to an insurer or surety who has become subrogated to them.


 


22.5                        Disclosure of information.  The Lender may disclose to a potential assignee or sub-participant any information
which the Lender has received in relation to the Borrower or its affairs under
or in connection with this Agreement or the Security Documents unless the
information is clearly of a confidential nature.


 


22.6                        Change of facility office. The Lender may change its facility office by
giving notice to the Borrower and the change shall become effective on the
later of:


 


(a)                                  the date on which the Borrower receives the
notice; and


 


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


 


23                                  VARIATIONS AND WAIVERS


 


23.1                        Variations, waivers etc. by
Lender.  A document shall be effective to vary, waive,
suspend or limit any provision of this Agreement or the Security Documents or
the Lender’s rights or remedies under such a provision or the general law, only
if the document is signed or specifically agreed to by fax or telex by the
Borrower and the Lender.


 


23.2                        Exclusion of other or implied
variations. Except for a
document which satisfies the requirements of Clauses 23.1, no document, and no
act, course of conduct, failure or neglect to act, delay or acquiescence on the
part of the Lender (or any person acting on its behalf) shall result in the
Lender (or any person acting on its behalf) being taken to have varied, waived,
suspended or limited, or being precluded (permanently or temporarily) from
enforcing, relying on or exercising:


 


(a)                                  a provision of this Agreement or the Security
Documents; or


 


31





















 


(b)                                 an Event of Default; or


 


(c)                                  a breach by the Borrower of an obligation or
liability under this Agreement or the Security Documents or the general law; or


 


(d)                                 any right or remedy conferred by this
Agreement or by the general law;


 


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


 


24                                 NOTICES


 


24.1                        General.  Unless otherwise specifically provided, any notice under, or in connection
with, this Agreement or the Security Documents shall be given by letter, fax or
telex; and references in this Agreement or the Security Documents to written
notices, notices in writing and notices signed by particular persons shall be
construed accordingly.


 


24.2                        Addresses for communications. A notice shall be sent:


 


(a)                                in the case of notices to the Borrower, to:


 


	
   

  	
   

  	
  Aegean
  Marine Petroleum S.A.

  	
   

  	
   

  
	
   

  	
   

  	
  42
  Hatzikyriakou Street

  	
   

  	
   

  
	
   

  	
   

  	
  Piraeus
  185 38

  	
   

  	
   

  
	
   

  	
   

  	
  Greece

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
   

  	
  John
  Bekas

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tel.
  No:

  	
   

  	
  +30
  210 458600 

  
	
   

  	
   

  	
  Fax
  No:

  	
   

  	
  +30
  210 4586245

  
							



 


(b)                                 in the case of notices to the Lender, to each
of:


 


	
   

  	
  The Royal Bank of Scotland plc

  
	
   

  	
  5th Floor

  	
   

  
	
   

  	
  135 Bishopsgate

  	
   

  
	
   

  	
  London EC2M 3UR

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  John Franklin / John Lane

  
	
   

  	
   

  	
  Risk & Portfolio Management

  
	
   

  	
   

  	
   

  
	
   

  	
  Tel. No:

  	
  + 44 207 085 6392

  
	
   

  	
   

  	
  + 44 207 085 6389

  
	
   

  	
  Fax No:

  	
  + 44 207 085 8762

  
	
   

  	
   

  	
   

  
	
   

  	
  The Royal Bank of Scotland plc

  
	
   

  	
  61 Akti Miaouli

  
	
   

  	
  185 10 Piraeus

  
	
   

  	
  Greece

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Shipping Department

  
	
   

  	
   

  	
   

  
	
   

  	
  Tel. No:

  	
  + 30 210 459 6500

  
	
   

  	
  Fax No:

  	
  + 30 210 459 6600

  



 


or to such other address as the relevant party may notify the other.


 


32





















 


24.3                        Effective date of notices.  Subject to Clauses 24.4 and 24.5:


 


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


 


(b)                                 a notice which is sent by telex or fax shall
be deemed to be served, and shall take effect, 2 hours after its transmission
is completed.


 


24.4                        Service outside business
hours.  However, if under Clause 24.3 a
notice would be deemed to be served:


 


(a)                                  on a day which is not a business day in the
place of receipt; or


 


(b)                                 on such a business day, but after 5 p.m.
local time;


 


the notice shall (subject to Clause 24.5) be deemed to be served, and
shall take effect, at 9 a.m. on the next day which is such a business day.


 


24.5                        Illegible
notices.  Clauses 24.3 and 24.4 do
not apply if the recipient of a notice notifies the sender within one hour
after the time at which the notice would otherwise be deemed to be served that
the notice has been received in a form which is illegible in a material respect.


 


24.6                        Valid notices.  A
notice under or in connection with this Agreement shall not be invalid by
reason that its contents or the manner of serving it do not comply with the
requirements of this Agreement or the Security Documents if:


 


(a)                                  the failure to serve it in accordance with
the requirements of this Agreement or the Security Documents has not caused any
party to suffer any significant loss or prejudice; or


 


(b)                                 in the case of incorrect and/or incomplete
contents, it should have been reasonably clear to the party on which the notice
was served what the correct or missing particulars should have been.


 


24.7                        English language.  Any
notice under or in connection with this Agreement or the Security Documents
shall be in English.


 


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


 


25                                  SUPPLEMENTAL


 


25.1                        Rights cumulative, non-exclusive.  The
rights and remedies which this Agreement and the Security Documents give to the
Lender are:


 


(a)                                  cumulative;


 


(b)                                 may be exercised as often as appears
expedient; and


 


(c)                                  not, unless this Agreement or the Security
Documents explicitly and specifically states so, to be taken to exclude or
limit any right or remedy conferred by any law.


 


25.2                        Severability of provisions.  If
any provision of this Agreement is or subsequently becomes void, unenforceable
or illegal, that shall not affect the validity, enforceability or legality of
the other provisions of this Agreement or of the provisions of the Security
Documents.


 


33





















 


25.3                        Counterparts.  This Agreement
may be executed in any number of counterparts.


 


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


 


26                                  LAW AND JURISDICTION


 


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


 


26.2                        Exclusive English jurisdiction. 
Subject to Clause 26.3, the courts of England shall have exclusive
jurisdiction to settle any disputes which may arise out of or in connection
with this Agreement.


 


26.3                        Choice of forum for the exclusive
benefit of the Lender.  Clause 26.2 is for the exclusive benefit of
the Lender, which reserves the rights:


 


(a)                                  to commence proceedings in relation to any
matter which arises out of, or in connection with, this Agreement in the courts
of any country other than England and which have or claim jurisdiction to that
matter; and


 


(b)                                 to commence such proceedings in the courts of
any such country or countries concurrently with, or in addition to proceedings
in England or without commencing proceedings in England.


 


26.4                        Process agent. The Borrower irrevocably appoints Riches
Consulting at its office for the time being, presently at Old Jarretts
Farmhouse, Brantridge Lane, Balcombe, West Sussex, RH17 6JR, England, to act as
its agent to receive and accept on its behalf any process or other document
relating to any proceedings in the English courts which are connected with this
Agreement.


 


26.5                        Lender’s rights unaffected. 
Nothing in this Clause 26 shall exclude or limit any right which the
Lender may have (whether under the law of any country, an international
convention or otherwise) with regard to the bringing of proceedings, the service
of process, the recognition or enforcement of a judgment or any similar or
related matter in any jurisdiction.


 


26.6                        Meaning of “proceedings”.  In
this Clause 26, “proceedings” means proceedings of
any kind, including an application for a provisional or protective measure.


 


AS WITNESS
the hands of the duly authorised officers or attorneys of the parties the day
and year first before written.


 


34





















 


SCHEDULE 1


 


PART A


 


FORM OF UTILISATION NOTICE - ADVANCE


 


	
  To:

  	
   

  	
  The
  Royal Bank of Scotland plc

  
	
   

  	
   

  	
  5th
  Floor

  
	
   

  	
   

  	
  135
  Bishopsgate

  
	
   

  	
   

  	
  London

  
	
   

  	
   

  	
  EC2M
  3UR

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:
  John Franklin/John Lane

  
	
   

  	
   

  	
  Risk &
  Portfolio Management

  
	
   

  	
   

  	
   

  
	
  And:

  	
   

  	
  The
  Royal Bank of Scotland plc

  
	
   

  	
   

  	
  61
  Akti Miaouli

  
	
   

  	
   

  	
  185
  10 Piraeus

  
	
   

  	
   

  	
  Greece

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:
  Shipping Department

  



 


[•]


 


FORM OF UTILISATION NOTICE


 


1                                          We
refer to the letter of credit issuance, revolving credit and refinancing
facility agreement (the “Loan Agreement”)
dated [•] September 2004
and entered into by ourselves, as Borrower, and yourselves, as Lender, in
connection with a letter of credit issuance, revolving credit and refinancing
facility of up to US$25,000,000.  Terms
defined in the Loan Agreement have their defined meanings when used in this Utilisation
Notice.


 


2                                          We
request to borrow an Advance as follows:


 


(a)                                  amount:
US$[•];


 


(b)                                 Utilisation
Date: [•];


 


(c)                                  payment
instructions : account of [•]
and numbered [•] with
[•] of [•].


 


3                                          We
represent and warrant that:


 


(a)                                  the
representations and warranties in Clause 12 of the Loan Agreement would remain
true and not misleading if repeated on the date of this notice with reference
to the circumstances now existing;


 


(b)                                 no
Event of Default or Potential Event of Default has occurred or will result from
the borrowing of the Advance.


 


35





















 


4                                          This notice cannot be revoked without the
prior consent of the Lender.


 


 




	
   

  
	
  [Name of Signatory]

  






 


 


Authorised Signatory


for and on behalf of


AEGEAN MARINE PETROLEUM SA.


 


36





















 


SCHEDULE 1


 


PART B


 


FORM OF
UTILISATION NOTICE - LETTER OF CREDIT


 


	
  To:

  	
   

  	
  The Royal Bank of Scotland plc

  
	
   

  	
   

  	
  5th Floor

  
	
   

  	
   

  	
  135 Bishopsgate

  
	
   

  	
   

  	
  London

  
	
   

  	
   

  	
  EC2M 3UR

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention: John Franklin/John Lane

  
	
   

  	
   

  	
  Risk & Portfolio Management

  
	
   

  	
   

  	
   

  
	
  And:

  	
   

  	
  The Royal Bank of Scotland plc

  
	
   

  	
   

  	
  61 Akti Miaouli

  
	
   

  	
   

  	
  185 10 Piraeus

  
	
   

  	
   

  	
  Greece

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention: Shipping Department

  



 


[•]


 


Dear
Sirs


 


UTILISATION NOTICE - LETTER OF CREDIT


 


1                                          We refer to the letter of credit issuance,
revolving credit and refinancing facility agreement (the “Loan
Agreement”) dated [•] September 2004 and made between
ourselves, as Borrower, and yourselves, as Lender, in connection with a letter
of credit issuance, revolving credit and refinancing facility of up to
US$25,000,000. Terms defined in the Loan Agreement have their defined meanings
when used in this Utilisation Notice.


 


2                                          We request the issue of an L/C in the form
attached as follows:


 


(a)                                  amount of the L/C: [•];


 


(b)                                 Utilisation Date: [•];


 


(c)                                  expiry date of the L/C: [•];


 


(d)                                 delivery instructions: [•].


 


3                                          We represent and warrant that:


 


(a)                                  the representations and warranties in Clause
12 of the Loan Agreement would remain true and not misleading if repeated on
the date of this notice with reference to the circumstances now existing;


 


37





















 


(b)                                 no Event of Default or Potential Event of
Default has occurred or will result from the issue of the L/C.


 


4                                          This notice
cannot be revoked without the prior consent of the Lender.


 


 




	
   

  
	
  [Name of Signatory]

  






 


 


Authorised Signatory


for and on behalf of


AEGEAN MARINE PETROLEUM SA.


 


38





















 


SCHEDULE 2


 


CONDITION
PRECEDENT DOCUMENTS


 


The
following are the documents referred to in Clause 4.1(a).


 


1                                          A duly executed original of this Agreement
and the Guarantee, the Account Charge and the Deed of Assignment (and of each
document required to be delivered by this Agreement and the Guarantee, the
Account Charge and the Deed of Assignment).


 


2                                          Original Liberian certificate of goodstanding
in respect of the Borrower.


 


3                                          Copies of the articles of incorporation and
by-laws of the Borrower.


 


4                                          Copies of resolutions of directors of the
Borrower authorising the execution of this Agreement and the Security Documents
authorising named officers to give the Utilisation Notices and other notices
under this Agreement and the Security Documents.


 


5                                          The original of any power of attorney under
which this Agreement and the Security Documents are executed on behalf of the
Borrower.


 


6                                          Copies of all official consents which the
Borrower requires to enter into, or make any payment under, this Agreement and
the Security Documents.


 


7                                          Documentary evidence that the agent for
service of process named in Clause 26.4 has accepted its appointment.


 


8                                          Favourable legal opinions from lawyers
appointed by the Lender on such matters concerning the laws of Liberia and such
other relevant jurisdictions as the Lender may require.


 


9                                          If the Lender so requires, in respect of any
of the documents referred to above, a certified English translation prepared by
a translator approved by the Lender.


 


Each of the documents specified in paragraphs 3, 4 and 6 above and
every other copy document delivered under this Schedule shall be certified
as a true and up to date copy by a director or the secretary (or equivalent
officer) of the Borrower.


 


39





















 


SCHEDULE 3


 


CALCULATION
OF MANDATORY COST RATE


 


The
Mandatory Cost Rate is an addition to the interest rate on an Advance to
compensate the Lender for the cost attributable to an Advance resulting from
the imposition from time to time under, or pursuant to, the Bank of England Act
1998 (the “Act”) and/or by the Bank of England
and/or the Financial Services Authority (the “FSA”)
(or other United Kingdom governmental authorities or agencies) of a requirement
to pay fees to the FSA calculated by reference to liabilities used to fund an
Advance.


 


The
Mandatory Cost Rate shall be the rate determined by the Lender to be the rate
resulting from the application of the following formula:


 


	
  F x 0.01

  
	
  300

  



 


where on the day of application of the formula, F is the rate of charge
payable by the Lender to the FSA pursuant to paragraph 2.02 of the Fees
Regulations (but where, for the purpose, the figure at paragraph 2.02b of the
Fees Regulations shall be deemed to be zero) and expressed in pounds per £1
million of the Fee Base of the Lender.


 


The Mandatory Cost Rate attributable to an Advance or other sum for any
period shall be calculated at or about 11.00 am on the first day of that period
for the duration of that period.


 


The determination of the Mandatory Cost Rate in relation to any period
shall, in the absence of manifest error, be conclusive and binding on the
Borrower.


 


If there is any change in circumstances (including the imposition of
alternative or additional requirements) which, in the reasonable opinion of the
Lender, renders or will render the above formula (or any element of the formula
or the defined term used in the formula) inappropriate or inapplicable, the
Lender (following consultation with the Borrower) shall be entitled to vary the
same by giving notice to the Borrower. Any such variation shall, in the absence
of manifest error, be conclusive and binding on the Borrower and shall apply
from the date specified in such notice.


 


For the purposes of this Schedule:


 


“Fee Base”
has the meaning given to that term for the purposes of, and shall be calculated
in accordance with, the Fees Regulations.


 


“Fees Regulations” means, as appropriate, either:


 


(c)                                  the Banking Supervision (Fees) Regulations
2001; or


 


(d)                                 such regulations as from time to time may be
in force, relating to the payment of fees for banking supervision in respect of
periods subsequent to 31st March 2002.


 


40





















 


EXECUTION PAGE


 


	
  SIGNED
  by Theodora
  Papadogianni

  	
  )

  
	
   

  	
  )

  
	
  for
  and on behalf of

  	
  )

  
	
  AEGEAN MARINE

  	
  )

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
  PETROLEUM S.A.

  	
  )

  
	
  in
  the presence of:

  	
  )

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Basil K. Spiliopoulos

  	
   

  	
   

  
	
  BASIL K. SPILIOPOULOS

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  )

  
	
   

  	
  )

  
	
  for
  and on behalf of

  	
  )

  
	
  THE ROYAL BANK

  	
  )

  
	
  OF SCOTLAND PLC

  	
  )

  
	
  in
  the presence of:

  	
  )

  
					



 


41





















 


EXECUTION
PAGE


 


	
  SIGNED
  by Theodora
  Papadogianni

  	
  )

  
	
   

  	
  )

  
	
  for
  and on behalf of

  	
  )

  
	
  AEGEAN MARINE

  	
  )

  
	
  PETROLEUM S.A.

  	
  )

  
	
  in
  the presence of:

  	
  )

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  )

  
	
   

  	
  )

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
  for
  and on behalf of

  	
  )

  	
   

  
	
  THE ROYAL BANK

  	
  )

  	
   

  
	
  OF SCOTLAND PLC

  	
  )

  	
   

  
	
  in
  the presence of:

  	
  )

  	
  /s/ [ILLEGIBLE]

  	
   

  



 


42