CALL OPTION AGREEMENT
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EHLERMANN
RINDFLEISCH GADOW RECHTSANWĂLTE
PARTNERSCHAFT MBB
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M/T "STENAWECO ENERGY"
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BALLINDAMM 26. 20095 HAMBURG
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TELEFON +49 40 37 48 14 - 0
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TELEFAX +49 40 37 48 14 - 30
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INTERNET WWW.ERG-LEGAL.COM
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I. | Pursuant to the terms and conditions of a bareboat charter contract dated 30th December, 2014 (as from time to time amended, varied or supplemented the "Charter") and made between the Owners as owners and the Option Holder as charterer, the Owners agreed to charter the Owner's Marshall Islands flag vessel "STENAWECO ENERGY", IMO No. 9683984 (the "Vessel") to the Option Holder. |
II. | The Vessel was originally sold to the Owners by the Option Holder pursuant to a memorandum of agreement dated 30th December, 2014 (as from time to time amended, varied or supplemented the "MOA") and made beween the Option Holder as seller and the Owners as buyer. |
III. | Pursuant to clause 61.2.3 of the Charter, it shall be a condition precedent of the Charter that the Owners and the Option Holder execute a call option agreement on the terms and conditions detailed herein. |
1 | DEFINITIONS AND INTERPRETATION |
1.1 | Words and expressions defined in the Charter and not defined in this Agreement shall have the same meaning when used in this Agreement. |
1.2 | In this Agreement: |
1.2.1 | words denoting the plural number include the singular and vice versa; |
1.2.2 | words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or authorities and vice versa; |
1.2.3 | references to Recitals and Clauses are references to recitals and clauses of this Agreement; |
1.2.4 | references to this Agreement include the Recitals; |
1.2.5 | the headings and contents page(s) are for the purposes of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Agreement; |
1.2.6 | references to any document are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time; |
1.2.7 | references to statutes or provisions of statutes are references to those statutes, or those provisions, as from time to time amended, replaced or re-enacted; |
1.2.8 | references to the Owners include its successors, transferees and assignees. |
2 | CONDITIONS PRECEDENT |
3 | CALL OPTION AND DEFAULT CALL OPTION |
3.1 | Commencing on the third anniversary of the Delivery Date and unless the Owners has served a Default Notice to the Option Holder, the Option Holder shall have the option (the "Call Option") to purchase the Vessel from the Owners for the Call Option Price on a Call Option Date. The Call Option shall be exercisable by prior notice in writing (the "Call Option Notice") to the Owners. |
3.2 | Notwithstanding Clause 3.1, in the event that the Owners has served a Default Notice on the Option Holder after the Delivery Date the Option Holder shall be entitled to exercise a Call Option and purchase the Vessel by delivering a Call Option Notice to the Owners. |
3.3 | The Call Option Notice must - |
3.3.1 | specify the Call Option Date, which |
3.3.1.1 | shall not be earlier than the first Banking Day falling 90 days after the Owners' receipt of the Call Option Notice for purposes of exercising a Call Option under Clause 3.1; or |
3.3.1.2 | shall not be earlier than 10 Banking Days after the Default Notice and not later than the first Banking Day falling 30 days after the Default Notice for purposes of |
3.3.2 | attach the Option MOA, duly populated and executed by the Option Holder. |
3.4 | Subject to Clause 6, once served, any Call Option Notice and the Call Option Date specified in it shall be irrevocable without the written consent of the Owners. |
3.5 | Following service of a Call Option Notice, the Owners shall be obliged to sell and the Option Holder shall be obliged to purchase the Vessel on the basis of the Option MOA for the Call Option Price on the Call Option Date. Upon service of Call Option Notice the attached Option MOA shall be deemed to constitute a binding contract between the parties without needing to be separately executed. |
4 | OPTION PREMIUM |
5 | COMPLETION |
6 | TERMINATION |
6.1 | In the event that a Default Notice is served by the Owners and unless the Option Holder delivers a Call Option Notice in terms of Clause 3.3.1.2, on the first Banking Day falling 30 days after the Default Notice: |
6.1.1 | the Call Option shall immediately cease to be exercisable; and |
6.1.2 | with immediate effect the parties shall cease to be obliged to fulfil the obligations of seller and buyer under the Option MOA with regard to the Call Option being exercised, although the Owners shall be entitled to retain any amount paid by way of deposit and apply it against any amount due under the Charter. |
6.2 | In the event that a Default Notice is served by the Owners on the third anniversary of the Delivery Date or thereafter, any Call Option Notice that may have been served under Clause 3.3.1.1 shall be deemed revoked and considered void. |
6.3 | In the event that the Charter terminates through the effluxion of time and the Call Option has not been exercised, the Call Option shall lapse and the Option Holder shall have no claim whatsoever on the Vessel. |
7 | OWNERS' RIGHT TO SELL |
8 | PAYMENT |
8.1 | Any payment required to be made under this Agreement or the Option MOA by the Option Holder shall be made to the Earnings Account or such other account as the Owners may specify unless otherwise indicated herein and shall be made net of all commissions and without any set-off or counterclaim whatsoever and free and clear of and without withholding or deduction for, or on account of, any present or future income, freight, stamp and other taxes, levies, imposts, duties, fees, charges, restrictions or conditions of any nature (collectively "Taxes"). If the Option Holder is required by law to make any withholding or deduction from any such payment, the sum due from the Option Holder in respect of such payment will be increased to the extent necessary to ensure that, after making such withholding or deduction, the Owners receive a net sum equal to the amount which it would have received had no such withholding or deduction been required to be made. The Option Holder will promptly deliver to the Owners any receipts, certificates or other proof evidencing the amounts, if any, paid or payable in respect of any such withholding or deduction as aforesaid. |
8.2 | Time shall be of the essence for the making of any payments or serving of any notices under this Agreement. |
9 | COMMUNICATION |
10 | RIGHTS OF THIRD PARTIES |
11 | INDEMNITY |
12 | GOVERNING LAW |
12.1 | This Agreement and the Option MOA attached to it, and any non-contractual obligations arising out of or in connection with them shall be governed and construed in accordance with English law and the courts of England and Wales shall have exclusive jurisdiction to determine the same. |
12.2 | The Option Holder hereby appoints Top Properties (London) Limited of 8 Duke Street London |
EXECUTED and DELIVERED as a DEED
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/s/ John Hartigan
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by
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JOHN HARTIGAN
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As Attorney in Fact
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for and on behalf of
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ECO ENERGY LLC
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In the presence of:
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EXECUTED and DELIVERED as a DEED
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by
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ANDREAS LOUKA
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/s/ Andreas Louka
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for and on behalf of
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MONTE CARLO 71 SHIPPING
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COMPANY LIMITED
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In the presence of:
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DIMITRA KARKALEYSI
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/s/ Dimtra Karkaleysi
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(a) | The Call Option Price shall be - |
(i.) | in the event that the Option Holder delivers a Call Option Notice under Clause 3.1, the Call Option Base Price set out below plus or minus any amounts referred to in paragraphs (b), (c), and (d): |
Call Option Date falling on
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Call Option Base Price
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Third Anniversary of the Delivery Date
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USD 25,850,000
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Fourth Anniversary of the Delivery Date
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USD 24,800,000
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Fifth Anniversary of the Delivery Date
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USD 23,650,000
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Sixth Anniversary of the Delivery Date
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USD 22,525,000
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Seventh Anniversary of the Delivery Date
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USD 21,200,000
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(ii.) | in the event that the Option Holder delivers a Call Option Notice under Clause 3.2, the Call Option Base Price set out below plus any amounts referred to in paragraphs (b)(i.) and (d): |
Call Option Date falling on
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Call Option Base Price
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First Anniversary of the Delivery Date
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USD 30,000,000
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Second Anniversary of the Delivery Date
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USD 29,500,000
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Third Anniversary of the Delivery Date
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USD 25,850,000
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Fourth Anniversary of the Delivery Date
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USD 24,800,000
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Fifth Anniversary of the Delivery Date
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USD 23,650,000
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Sixth Anniversary of the Delivery Date
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USD 22,525,000
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Seventh Anniversary of the Delivery Date
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USD 21,200,000
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(b) | The Call Option Price shall be - |
(i.) | increased by any break funding or swap termination costs as well as any other costs and expenses arising from the exercise of the Call Option for which the Owners may be liable; or |
(ii.) | reduced by any break funding or swap termination gain arising from the exercise of the Call Option to which the Owners may be entitled. |
(c) | To the extent that the Fair Market Value falls below USD 35,000,000, the Call Option Base Price shall be reduced by the Committed Capital Reduction Factor. |
(d) | In addition to and concurrently with the payment of the Call Option Price, the Option Holder shall pay to the Owners any and all other amounts owed by the Option Holder to the Owners under or in connection with this Agreement which are due but unpaid on the Call Option Date. |