EXHIBIT 10.4
EXECUTION COPY
ESCROW AND PLEDGE AGREEMENT, dated as of November 24, 2004
(the "Agreement"), between ULTRAPETROL (BAHAMAS) LIMITED, a
Bahamian corporation (the "Company"), and MANUFACTURERS AND
TRADERS TRUST COMPANY, a New York banking corporation, as Escrow
Agent (the "Escrow Agent").
This Agreement is being entered into in connection with (i) the
Purchase Agreement (the "Purchase Agreement"), dated November 24, 2004, among
the Company, the Subsidiary Guarantors (as named therein), the Pledgors (as
named therein) and Credit Suisse First Boston LLC, as the Initial Purchaser, and
(ii) the Indenture (the "Indenture"), dated as of November 24, 2004, among the
Company, the Subsidiary Guarantors (as named therein), the Pledgors (as named
therein) and Manufacturers and Traders Trust Company ("MT&T"), as trustee (MT&T
or any successor trustee, the "Trustee").
Pursuant to the Purchase Agreement, the Company is selling (the
"Offering") $180,000,000 in aggregate principal amount of its 9% First Preferred
Ship Mortgage Notes Due 2014 (the "Securities"). Concurrently with the closing
of such sale, the Company will deposit with the Escrow Agent as hereinafter
provided, approximately $30.0 million of the net proceeds thereof. Such funds
will be used (a) to purchase additional Vessels and pay for certain delivery,
maintenance and repair costs as set forth herein or (b) to fund the Special
Mandatory Redemption and for no other purposes other than as set forth herein.
Accordingly, the Company and the Escrow Agent agree as follows:
1. Definitions. Capitalized terms used but not defined herein have the
respective meanings specified in the Indenture. In addition, the following terms
shall have the following meanings when used herein:
"Escrow Account" means an account established by the Escrow Agent in
the name of "Manufacturers and Traders and Trust Company," as Escrow Agent
for the Company.
"Initial Deposit" means an amount of cash equal to $30,000,000.00.
"Permitted Investments" means (i) Treasury Securities; (ii)
investments in time deposits, certificates of deposit or money market
deposits maturing within 90 days of the date of acquisition thereof,
entitled to U.S. Federal deposit insurance for the full amount thereof or
issued by a bank or trust company which is organized under the laws of the
United States or any state thereof having capital and surplus in excess of
$500 million; (iii) any proprietary money-market funds of MT&T or any of
its subsidiaries for which funds it or one of its affiliates serves as
investment advisor or to which it provides other services and receives
compensation therefor or any other non-proprietory money market mutual
funds of investment grade; or (iv) any other Temporary Cash Investment;
provided, however, that no investment bearing a maturity date shall mature
later than the Special Mandatory Redemption Date.
"Special Mandatory Redemption" means the redemption on January 30,
2006 (the "Special Mandatory Redemption Date"), by the Company of
Securities at a redemption price of 101% of the principal amount of the
Securities, plus accrued and unpaid interest to the redemption date, in the
event the amount of cash and the fair market value (as determined by the
Board of Directors in good faith) of all Permitted Investments the Escrow
Account exceeds $1.0 million after the close of business on December 31,
2005.
"Treasury Securities" means debt obligations issued or guaranteed by
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the government of the United States of America or any agency thereof for
which the full faith and credit of the United States of America is pledged
to secure payment in full at maturity and which are not redeemable at the
option of the issuer prior to maturity.
2. Delivery and Acceptance of Escrowed Property. (a) (i) On the date
hereof, the Escrow Agent shall establish the Escrow Account into which the
Escrow Agent will, concurrently with the execution and delivery hereof, deposit
the Initial Deposit received from the Company.
(ii) The Company may, concurrently with such cash deposit, deliver to
the Escrow Agent (A) a written confirmation or sales order for delivery to
the Escrow Account which sets forth the cost of Permitted Investments to be
acquired by the Company and their principal amount at maturity, if
applicable, and (B) irrevocable instructions directing the Escrow Agent to
release some or all of the cash constituting the Initial Deposit to the
seller of such Permitted Investments in an amount equal to the purchase
price thereof against delivery of such Treasury Securities.
(b) The Initial Deposit, together with the interest, dividends and
distributions thereon, less any amounts released pursuant to the terms of this
Agreement, shall from time to time constitute the "Escrowed Property." The
Escrow Agent further agrees to invest any portion of the Escrowed Property
represented by cash in Permitted Investments as directed in writing from time to
time by the Company. Any funds received by the Escrow Agent for which the
Company has not given written investment instructions shall be invested in an
interest bearing Permitted Investment at a non-United States (i.e., offshore)
financial institution or mutual fund selected by the Escrow Agent in his sole
discretion.
(c) The obligation and liability of the Escrow Agent to make the
payments and transfers required by this Agreement shall be limited to the
Escrowed Property and any other moneys on deposit with it pursuant to this
Agreement. The Escrow Agent shall not be liable for any loss resulting from any
investment made pursuant to this Agreement in compliance with the provisions
hereof.
3. Disbursement of Escrowed Property. (a) On any date (a "Release
Date"), the Escrow Agent will release Escrowed Property to or at the order of
the Company, provided that the Escrow Agent shall have received a written
request in the form of Exhibit A hereto (the "Release Certificate") from the
Company, signed by two Officers of the Company, at least 5 Business Days prior
to such Release Date, and provided that the following conditions have been
satisfied, in the reasonable judgment of the Escrow Agent, prior to or
simultaneous with the release of Escrowed Property:
(i) If the Company proposes to consummate on the date of the release
of the Requested Amount, one or more Acquisition Contracts in connection
with the acquisition of one or more additional Vessels, the Escrow Agent
shall have received:
(A)(1) fully executed mortgage releases and satisfaction documents
(the "Release Documents") from the holders of any existing indebtedness
with respect to such additional Vessels, which Release Documents shall be
in appropriate form for recording or registration in the appropriate
governmental offices, as to which the Escrow Agent shall be entitled to
rely on the Opinion of Counsel (as defined below) to the Company described
in clause (iv) below and (2) evidence satisfactory to the Escrow Agent to
the effect that any existing indebtedness had been, or will be, repaid as
of such Date;
(B) fully executed mortgages and related deeds of covenant, if
required, and fully executed related assignments of insurance, assignments
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of time charter and assignments of freights and hires, all substantially in
the form of Exhibit D hereto (the "Security Agreements") with respect to
each such additional Vessel, dated the date such additional Vessel is to be
tendered to the Trustee which Security Agreements shall be in appropriate
form for recording a registration in the appropriate governmental offices
if required by applicable law in order to perfect the security interest
therein created, as to which the Escrow Agent shall be entitled to rely on
the Opinion of Counsel to the Company described in clause (iv) below;
(C) original certificates representing the Capital Stock of the
Restricted Subsidiary acquiring such additional Vessel of which the Company
or a Wholly Owned Subsidiary that is a Subsidiary Guarantor is the record
and beneficial owner (unless such Restricted Subsidiary is already a
Subsidiary Guarantor), together with an Officers' Certificate in the form
of Exhibit B hereto;
(D) copies, certified to be true and complete by an Officer of the
Company, of one or more fully executed Acquisition Contracts covered by
such Release Certificate;
(E) copies, certified to be true and complete by an Officer of the
Company, of any Charters related to such additional Vessels;
(F) the report of an insurance broker required by Section 3(U)(viii)
of the form mortgage or deed of covenant attached hereto as part of Exhibit
D, with respect to insurance policies maintained in respect of each such
additional Vessel, which report shall include loss payable clauses
substantially in the form set forth in Schedule 1 to the assignments of
insurances attached hereto as part of Exhibit D;
(G) with respect to oceangoing vessels, a classification certificate,
dated as of a date not more than 30 days prior to the Release Date, from a
classification society with respect to each such additional Vessel;
(H) a Guarantee Agreement executed by the owner of such additional
Vessel as a new Subsidiary Guarantor (if not already a Subsidiary
Guarantor), substantially in the form of Exhibit F hereto; and
(I) written appraisals by two independent Appraisers of the value of
such additional Vessel as of a date within 90 days prior to such Release
Date.
(ii) If such Release Request is made in connection with the execution
(but not the consummation) of one or more Acquisition Contracts in respect
of one or more additional Vessels, the Escrow Agent shall have received:
(A) copies, certified to be true and complete by an Officer of the
Company, of one or more fully executed Acquisition Contracts covered by
such Release Requests;
(B) a fully executed Officers' Certificate of the Company
substantially in the form of Exhibit B hereto;
(C) to the extent available, copies, certified to be true and complete
by an Officer of the Company, of any Charters related to the additional
Vessels, to the extent such Charters will continue after consummation of
the Acquisition Contracts:
(iii) If such Release Request is made in connection with, or within
six months after, the acquisition of an additional Vessel with Escrowed
Property, for the purpose of necessary maintenance, repair (including
structural modifications) or drydocking expenses in relation to such
vessel, the Escrow Agent shall have received
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(A) a fully executed Officers' Certificate of the Company
substantially in the form of Exhibit B hereto;
(B) all invoices or written estimates of the cost of such maintenance,
repair or drydocking expenses in relation to the additional Vessel;
(iv) The Escrow Agent shall have received one or more signed opinions
of counsel substantially in the form of Exhibit E hereto with such changes
as may be necessary to conform to the legal requirements of the relevant
jurisdiction (the "Opinion of Counsel"); and
(v) The Escrow Agent shall have received any other documents or
certificates reasonably requested by the Escrow Agent to establish that the
conditions described in Section 3(a) have been complied with in all
material respects.
(b) Notwithstanding paragraph 3(a) above, if the Escrow Agent receives
a notice from the Trustee or otherwise becomes aware that a Default or Event of
Default has occurred and is continuing, the Escrow Agent will not release any
Escrowed Property to the Company unless and until the Escrow Agent receives a
notice from the Trustee that such Default or Event of Default, as the case may
be, is not continuing or has been waived in accordance with the terms of the
Indenture.
4. Disbursement of Escrowed Property in Connection with Special
Mandatory Redemption. If the Escrow Agent receives notice or otherwise becomes
aware that the Securities have become subject to the Special Mandatory
Redemption pursuant to paragraph 6 of the Securities and Article 3 of the
Indenture, the Escrow Agent shall (i) liquidate all Escrowed Property then held
by it not later than the third Business Day prior to the Special Mandatory
Redemption Date and (ii) release all the Escrowed Property to the Paying Agent
on the Special Mandatory Redemption Date.
To the extent that, after the close of business on December 31, 2005,
the amount of cash and the fair market value (as determined by the Board of
Directors in good faith) of securities (including the Permitted Investments) on
deposit in the Escrow Account with the Escrow Agent is equal to or less than
$1.0 million, such cash and Permitted Investment will be promptly released to
the Company, free of any lien of the Indenture or the Escrow Agreement, and the
Escrow Agreement will be terminated.
5. Disbursement of Escrowed Property upon the Occurrence of Remedies
Trigger Event. (a) If the Escrow Agent receives a notice from the Trustee that
the principal of and interest on the Securities then outstanding have become
immediately due and payable pursuant to Section 6.02 of the Indenture (an
"Acceleration Event") and such acceleration is not rescinded on or prior to the
earlier of five Business Days after receipt of such notice and the Special
Mandatory Redemption Date (a "Remedies Trigger Event"), the Escrow Agent will
liquidate all Escrowed Property then held by it in accordance with paragraph (b)
below.
(b) Upon the occurrence and during the continuance of a Remedies
Trigger Event (so long as the acceleration related thereto has not been
rescinded), but not otherwise, the Escrow Agent may, without notice except as
specified below, sell the Escrowed Property or any part thereof in one or more
parcels at public or private sale, at any exchange, broker's board or at any of
the Escrow Agent's offices or elsewhere, for cash, on credit or for future
delivery, upon such terms as the Escrow Agent may determine to be commercially
reasonable, and the Escrow Agent, the Trustee or any holder of the Securities
may be the purchaser of any or all of the Escrowed Property so sold and
thereafter hold the same, absolutely, free from any right or claim of whatsoever
kind. The Company agrees that, to the extent notice of sale shall be required by
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law, at least 2 Business Days' notice to the Company of the time and place of
any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Escrow Agent shall not be obligated to
make any sale of Escrowed Property regardless of notice of sale having been
given. The Escrow Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned. The
Escrow Agent shall incur no liability as a result of the sale of the Escrowed
Property, or any part thereof, at any private sale conducted in a commercially
reasonable manner. The Company hereby waives any claims against the Escrow Agent
arising by reason of the fact that the price at which any Escrowed Property may
have been sold at such a private sale was less than the price which might have
been obtained at a public sale, even if the Escrow Agent accepts the first offer
received and does not offer such Escrowed Property to more than one offeree.
(c) Upon the occurrence and during the continuance of a Remedies
Trigger Event (so long as the acceleration related thereto has not been
rescinded), any cash held by the Escrow Agent as Escrowed Property and all cash
proceeds received by the Escrow Agent in respect of any sale of, collection
from, or other realization upon, all or any part of the Escrowed Property
pursuant to Section 5(b), shall be released by the Escrow Agent to the Paying
Agent for payment to the holders of the Securities.
(d) This Agreement shall create a continuing Lien on the Escrowed
Property that shall (i) remain in full force and effect until the earlier of (A)
the payment in full of the Securities and the other Obligations and (B) the
release of all Escrowed Property in accordance with the provisions of this
Agreement, (ii) be binding upon the Company and its successors and assigns and
(iii) enure to the benefit of the Escrow Agent, the holders of the Securities
and their respective successors, transferees and assigns.
6. Security Interest in Favor of Escrow Agent; Escrowed Property. (a)
To secure the full and punctual payment when due and the full and punctual
performance of all amounts that may be payable from time to time under the
Indenture, the Security Agreements and the Securities, the Company hereby grants
to the Escrow Agent, for the benefit of the Escrow Agent, the Trustee and the
holders of the Securities, a security interest in all its right, title and
interest in and to the following, other than such of the following which are
released from the Lien of this Agreement pursuant to Section 3 hereof:
(i) the Initial Deposit and all certificates or instruments
representing any of the Permitted Investments; and
(ii) all interest, dividends, cash, instruments and other property and
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any of the foregoing.
(b) Any and all cash, certificates or instruments representing or
evidencing the Escrowed Property shall be delivered to and held by or on behalf
of the Escrow Agent and shall be in suitable form for transfer by delivery, or
shall be accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to the Escrow Agent. The Escrow
Agent shall have the right, at any time after the occurrence and during the
continuance of an Event of Default, in its discretion and without notice to the
Company, to transfer to or to register in the name of the Escrow Agent or any of
its nominees any or all the Escrowed Property. In addition, the Escrow Agent
shall have the right at any time to exchange certificates or instruments
representing or evidencing Escrowed Property for certificates or instruments of
different denominations.
(c) The Company hereby represents and warrants with respect to any
Escrowed Property:
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(i) it is the legal and beneficial owner of the Escrowed Property and
has full corporate power, authority and legal right to pledge all the
Escrowed Property; and
(ii) the pledge pursuant to Section 6(a) made in accordance with the
terms of the Indenture creates a valid and perfected first priority Lien on
the Escrowed Property securing the payment and performance of all amounts
that may be payable from time to time under the Indenture, the Security
Agreements and the Securities.
(d) The Company agrees that at any time and from time to time, at the
expense of the Company, the Company will promptly execute and deliver all
further instruments and documents and take all further action that may be
necessary or that the Escrow Agent may reasonably request in order to perfect
and protect any Lien granted or purported to be granted hereby or to enable the
Escrow Agent to exercise and enforce its rights and remedies hereunder with
respect to any Escrowed Property.
(e) (i) The Escrow Agent shall be entitled to receive and retain as
collateral in the Escrow Account all interest and dividends paid and
distributions made in respect of the Permitted Investments. Any such
interest or dividends shall, if received by the Company, be received in
trust for the benefit of the Escrow Agent, be segregated from the other
property or funds of the Company and be forthwith delivered to the Escrow
Agent as collateral in the same form as so received (with any necessary
endorsement).
(ii) As long as no Event of Default shall have occurred and be
continuing and until written notice thereof from the Escrow Agent to the
Company, the Company shall be entitled to exercise any and all voting and
other consensual rights relating to Permitted Investments or any part
thereof for any purpose; provided, however, that no vote shall be cast, and
no consent, waiver or ratification given or action taken, which would be
inconsistent with or violate any provision of this Agreement, the
Indenture, the Security Agreements or the Securities.
(iii) Upon the occurrence and during the continuance of an Event of
Default, all rights of the Company to exercise the voting and other
consensual rights that it would otherwise be entitled to exercise pursuant
to Section 6(e)(ii) shall cease upon notice from the Escrow Agent to the
Company and upon the giving of such notice all such rights shall thereupon
be vested in the Escrow Agent who shall thereupon have the sole right to
exercise such voting and other consensual rights.
(iv) In order to permit the Escrow Agent to exercise the voting and
other consensual rights which it may be entitled to exercise pursuant to
Section 6(e)(iii), and to receive all interest, dividends and distributions
which it may be entitled to receive under Section 6(e)(i), the Company
shall, if necessary, upon written request from the Escrow Agent, from time
to time execute and deliver to the Escrow Agent such instruments as the
Escrow Agent may reasonably request.
(f) The Company hereby appoints the Escrow Agent as the Company's
attorney-in-fact, with full authority in the place and stead of the Company and
in the name of the Company or otherwise, from time to time in the Escrow Agent's
discretion but only after the occurrence and during the continuance of an Event
of Default, to take any action and to execute any instrument which the Escrow
Agent may deem necessary or advisable in order to accomplish the purposes of
this Section 6, including to receive, endorse and collect all instruments made
payable to the Company representing any dividend, interest payment or other
distribution in respect of the Escrowed Property or any part thereof and to give
full discharge for the same. This power, being coupled with an interest, is
irrevocable.
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(g) If the Company fails to perform any agreement contained in this
Section 6, the Escrow Agent may itself (but shall not be obligated to) perform,
or cause performance of, such agreement, and the expenses of the Escrow Agent
incurred in connection therewith shall be payable by the Company under Section
7.
(h) Upon the release of any Escrowed Property to or upon the order of
the Company pursuant to Section 3, such Escrowed Property shall be delivered to
or upon the order of the Company, free and clear of any and all interests of the
Escrow Agent, the Trustee and the holders of the Securities.
(i) The Company shall comply with (i) TIA ss. 314(b), relating to
Opinions of Counsel regarding the Lien of this Agreement and (ii) TIA ss.
314(d), relating to the release of Escrowed Property from the Lien of this
Agreement and Officers' Certificates or other documents regarding fair value of
the Escrowed Property, to the extent such provisions are applicable. Any
certificate or opinion required by TIA ss. 314(d) may be executed and delivered
by an Officer of the Company to the extent permitted by TIA ss. 314(d).
7. Compensation and Indemnity. The Company shall pay to the Escrow
Agent from time to time reasonable compensation for its services. The Company
shall reimburse the Escrow Agent upon request for all reasonable out-of-pocket
expenses incurred or made by it, including costs of collection, in addition to
the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Escrow Agent's
agents, counsel, accountants and experts. The Company shall indemnify the Escrow
Agent and hold it harmless from and against any and all damages, suits, actions,
loss, liability or expense (including reasonable attorneys' fees) incurred by it
in connection with the administration of this Agreement and the performance of
its duties hereunder, including adequate advances against costs that may be
incurred by it. The Escrow Agent shall notify the Company promptly of any claim
for which it may seek indemnity. Failure by the Escrow Agent to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Escrow Agent may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not reimburse any expense or indemnify against any loss, liability or
expense incurred by the Escrow Agent through the Escrow Agent's own wilful
misconduct, negligence or bad faith. The indemnification provisions of this
Section 7 shall survive the termination of this Agreement.
To secure the Company's payment obligations in this Section, the
Escrow Agent shall have a security interest in the Escrowed Property pursuant to
Section 6.
8. Modifications, Waivers and Amendments. The Escrow Agent shall not
be bound by any modification, amendment, termination (except as provided in
Section 11 hereof), cancelation, rescission or supercession of this Agreement
unless the same shall be in writing and signed by the parties hereto, and, if
its rights, duties, immunities or indemnities as Escrow Agent are affected
thereby, unless it shall have given its prior written consent thereto. This
Agreement may not be modified or amended or terminated (except as provided in
Section 11 hereof) without the prior written consent of holders of all the Notes
(except as permitted without such consent pursuant to the Indenture).
9. Concerning the Escrow Agent. (a) The Escrow Agent shall exercise
the same degree of care toward the Escrowed Property as it exercises toward its
own similar property and shall not be held to any higher standard of care under
this Agreement, nor be deemed to owe any fiduciary duty to the Company.
(b) The Escrow Agent may act upon any instrument or other writing
believed by it in good faith to be genuine and to have been signed or presented
by the proper person, and shall not be liable to any party hereto in connection
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with the performance of its duties hereunder, except for its own negligence,
wilful misconduct or bad faith. The duties of the Escrow Agent shall be
determined only with reference to this Agreement and applicable laws, and the
Escrow Agent is not charged with any knowledge of or any duties or
responsibilities in connection with any other document or agreement. If in doubt
as to its duties and responsibilities hereunder, the Escrow Agent may consult
with counsel of its choice and shall be protected in any action taken or omitted
in good faith in connection with the advice or opinion of such counsel.
(c) The Escrow Agent may execute any of its powers or responsibilities
hereunder and exercise any rights hereunder either directly or by or through its
agents or attorneys.
(d) Nothing in this Agreement shall be deemed to impose upon the
Escrow Agent any duty to qualify to do business or to act as agent or otherwise
in any jurisdiction other than the State of Maryland.
(e) The Escrow Agent shall not be responsible for and shall not be
under a duty to examine into or pass upon the validity, binding effect,
execution or sufficiency of this Agreement, any agreement amendatory or
supplemental hereto or of any certificates delivered to it hereunder.
(f) The Escrow Agent makes no representation as to the validity,
value, genuineness or collectability of any security or other document or
instrument held by or delivered to it.
(g) The Escrow Agent shall not be called upon to advise any party as
to selling or retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder.
(h) The Escrow Agent shall have the right at any time to resign
hereunder by giving written notice of its resignation to the Company at the
address set forth herein or at such other address as the Company shall provide,
at least 60 days prior to the date specified for such resignation to take
effect. Upon the effective date of such resignation, all cash and other payments
and all other property then held by the Escrow Agent hereunder shall be
delivered by it to a successor escrow agent. If no successor escrow agent is
appointed, the Escrow Agent may apply to a court of competent jurisdiction for
such appointment.
(i) In the event that the Escrow Agent should at any time be
confronted with inconsistent claims or demands to the Escrowed Property, the
Escrow Agent shall have the right, but not the duty, to interplead the parties
in any court of competent jurisdiction and request that such court determine the
respective rights of the parties with respect to the Escrowed Property. In the
event the Escrow Agent no longer holds any Escrowed Property, it shall be
released from any obligation or liability as a consequence of any such claims or
demands.
10. Notices. All notices required to be given hereunder shall be in
writing and shall be deemed given when received at the following addresses until
such time as the parties hereto designate a different or additional address or
addresses:
To the Company:
Ultrapetrol (Bahamas) Limited
c/o H&J Corporate Services Ltd.
Shirlaw House
87 Shirley Street
P.O. Box SS-19084
Nassau, Bahamas
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with a copy to:
Ravenscroft Shipping Inc.
3251 Ponce de Leon Blvd.
Coral Gables, FL 33134
Attention of: Leonard Hoskinson
To the Escrow Agent:
Manufacturers and Traders Trust Company
Corporate Trust Administration
25 South Charles Street
Baltimore, MD 21201
Attention of: Robert D. Brown
Facsimile: 410-244-4236
11. Miscellaneous. (a) This Agreement sets forth exclusively the
duties of the Escrow Agent with respect to any and all matters pertinent hereto
and no implied duties or obligations shall be read into this Agreement against
the Escrow Agent.
(b) This Agreement may be executed in any number of counterparts, each
of which shall be an original and all of which, when taken together, shall
constitute one agreement.
(c) This Agreement shall terminate when all Escrowed Property has been
disbursed pursuant to Section 3, 4 or 5, or if the Securities and the other
Obligations shall be repaid in full or the Company has exercised either its
covenant defeasance or legal defeasance option in accordance with the terms of
the Indenture and thereafter the Escrow Agent shall have no further obligation
or liability hereunder.
(d) This Agreement shall be governed by the laws of the State of New
York.
(e) By the execution and delivery of this Agreement, the Company (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed CT Corporation System (and any successor entity), as its
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to this Agreement that may be instituted in any
federal or state court in the State of New York, Borough of Manhattan or brought
by the Escrow Agent (whether in its individual capacity or in its capacity as
Escrow Agent under this Agreement), and acknowledges that CT Corporation System
has accepted such designation, (ii) submits to the jurisdiction of any such
court in any such suit or proceeding, and (iii) agrees that service of process
upon CT Corporation System and written notice of said service to the Company
shall be deemed in every respect effective service of process upon the Company
in any such suit or proceeding. The Company further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation System in full force and effect so long as this Agreement shall
be in full force and effect.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
ULTRAPETROL (BAHAMAS) LIMITED
By: /s/ Leonard J. Hoskinson
------------------------
Name: Leonard J. Hoskinson
Title: Secretary
MANUFACTURERS AND TRADERS TRUST
COMPANY, as Escrow Agent,
By: /s/ Robert D. Brown
-------------------
Name: Robert D. Brown
Title: Vice President
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EXHIBIT A to
Escrow Agreement
[Form of Release Certificate]
Manufacturers and Traders Trust Company
Corporate Trust Administration
25 South Charles Street
Baltimore, MD 21201
Attention of Robert D. Brown
[Date]
Ultrapetrol (Bahamas) Ltd.
Escrow and Pledge Agreement
Release Certificate
Dear Sirs:
Reference is made to that Escrow and Pledge Agreement, dated as of
November 24, 2004 between you, as Escrow Agent, and the undersigned (the "Escrow
Agreement"). Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Escrow Agreement or the Indenture, as the case
may be.
As of the date hereof, to the knowledge of the undersigned, no Default
or Event of Default under the Indenture dated as of November 24, 2004 has
occurred and is continuing. The undersigned hereby requests that Escrowed
Property in an amount equal to $__________ (the "Requested Amount") be released
to the undersigned (or pursuant to the undersigned's further written
instructions) on [ ], which date is not less than 5 days after the date hereof.
"Release Request 1":
[This Release Request is being made in connection with the execution
of an Acquisition Contract to acquire a Vessel or Vessels and (i) such
Acquisition Contract has been signed by the applicable seller, is in full force
and effect as of the date of the Release Certificate and the signers of the
Release Certificate are not aware of any default thereunder by the Company or
the applicable seller, (ii) the Requested Amount does not exceed 90.9% of the
amount required to pay a deposit to the applicable seller, or to pay other
pre-delivery expenses, in each case called for by the Acquisition Contract, and
(iii) the balance of the cash needed to pay such deposit will come from one or
more sources other than from the Incurrence of Indebtedness or the proceeds of
an Asset Sale.]
Page 11
"Release Request 2":
[This Release Request is being made in connection with the acquisition
of a Vessel or Vessels pursuant to an Acquisition Contract and release of
Requested Amount, and (i) the Requested Amount made pursuant to any Release
Request 2 together with any amounts previously released pursuant to any Release
Request 1 with respect to the acquisition of such Vessel or Vessels does not
exceed 90.9% of the sum of the amounts payable to the applicable seller pursuant
to the Acquisition Contract plus the related transaction costs incurred by the
Company, including the reasonable fees and expenses of counsel, (ii) the Vessel
or Vessels proposed to be acquired pursuant to the Acquisition Contract will
have an Appraised Value, as of a date not more than 30 days prior to the
acquisition date of such Vessel or Vessels, of at least 110% of the aggregate
amount of Escrowed Proceeds used (pursuant to all Release Requests (as defined
below) made in respect of such Vessel or Vessels) to acquire or repair such
Vessel or Vessels, and (iii) the balance of the cash needed to acquire and
repair such Vessel or Vessels will come from one or more sources other than the
Incurrence of Indebtedness or the proceeds of an Asset Sale.]
"Release Request 3":
[This Release Request is being in connection with, or within six
months after, the acquisition of a Vessel by the Company with Escrowed Proceeds,
(i) the Company has undertaken or is undertaking necessary maintenance, repair
(including structural modifications) or drydocking expenses, including survey
expenses, relating to such Vessel, (ii) the Requested Amount does not exceed
90.9% of the amount of such expenses, and (iii) the balance of the cash needed
to perform such maintenance and repair such Vessel or Vessels will come from one
or more sources other than the Incurrence of Indebtedness or the proceeds of an
Asset Sale.]
The Release Request 1, Release Request 2 and Release Request 3 are
collectively referred to as the "Release Requests".
Very truly yours,
ULTRAPETROL (BAHAMAS) LIMITED,
by
-----------------------------------
Name:
Title:
by
-----------------------------------
Name:
Title:
Page 12
EXHIBIT B to
Escrow Agreement
Form of Officers' Certificate
for Release Date
This certificate is being delivered pursuant to Section 3(a) of the
Escrow and Pledge Agreement dated as of November 24, 2004 (the "Escrow
Agreement"), between Ultrapetrol (Bahamas) Limited (the "Company") and
Manufacturers and Traders Trust Company, as Escrow Agent (the "Escrow Agent").
Capitalized terms used but not defined herein have the meanings given such terms
in the Escrow Agreement or the Indenture, as the case may be. The Company hereby
certifies through the undersigned officers that:
1. [The Company and the applicable seller have executed the
following Acquisition Contracts or other sale and purchase
contracts to acquire an additional Vessel(s):
Ship Name:
Seller:
Deposit Amount:
Purchase Price:
Appraised Value:]
[The Company has undertaken or is undertaking [necessary
maintenance, repair or drydocking expenses relating to an
additional Vessel]:
Ship Name:
Cost of [Maintenance][Conversion]:
[The Company is required to pay [a deposit] [pre-delivery
expenses] called for by the Acquisition Contract]:
Ship Name:
Cost of [Deposit]
[Pre-Delivery Expenses]:
2. All conditions precedent in the Escrow Agreement for the release
of Escrowed Property on the Release Date have been satisfied or
will be satisfied concurrently with the release of the Escrowed
Property described below in paragraph 7.
3. The Company, or a Wholly Owned Subsidiary that is a Subsidiary
Guarantor of either of them as the case may be, is the record and
beneficial owner of the Pledged Shares, free and clear of any
Lien, except for the Lien created by the Indenture.
4. The Company directs that the following amounts be released from
the Escrow Account to the following parties by wire transfer as
provided below or, if no wire transfer instructions are provided,
by check to the parties indicated (any amounts described below to
be paid to the undersigned represent reimbursements of amounts
previously paid by the undersigned in satisfaction of deposit
amounts payable to the applicable seller(s) in respect of one or
more Acquisition Contracts listed in paragraph 1 above):
Name Amount Wire Instructions
- ---- ------ -----------------
IN WITNESS WHEREOF, Ultrapetrol (Bahamas) Limited, through the
undersigned officers, has signed this Certificate this day of , .
ULTRAPETROL (BAHAMAS) LIMITED,
by
-----------------------------------
Name:
Title:
by
-----------------------------------
Name:
Title:
Page 13
EXHIBIT C
[INTENTIONALLY OMITTED]
Page 14
EXHIBIT D to
Escrow Agreement
[Forms of Security Agreements]
[To be provided by Seward & Kissel]
Page 15
EXHIBIT E to
Escrow Agreement
Form of Opinion of Counsel
This opinion is being delivered pursuant to Section 3(a) of the Escrow
and Pledge Agreement dated as of November 24, 2004 (the "Escrow Agreement"),
between Ultrapetrol (Bahamas) Limited (the "Company") and Manufacturers and
Traders Trust Company, as Escrow Agent (the "Escrow Agent"). Capitalized terms
used but not defined herein have the meanings given such terms in the Escrow
Agreement or the Indenture, as the case may be. We are of opinion that:
1. All conditions precedent in the Escrow Agreement to the release of
Escrowed Property on the date hereof have been satisfied in all material
respects or will be satisfied in all material respects immediately after
the release of the Escrowed Property as described in the Officers'
Certificate delivered pursuant to Section 3(a) of the Escrow Agreement.
2. [If this opinion is being delivered in respect of a new Subsidiary
Guarantor, add--] The Guarantee Agreement constitutes a valid and legally
binding obligation of the Guarantor party thereto, enforceable against such
Guarantor in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
3. The applicable Subsidiary Guarantor is a corporation validly
existing and in good standing under the laws of [ ], and has all requisite
corporate and legal right, power and authority to own its vessel and to
transact the business it purports to transact. The applicable Subsidiary
Guarantor has all requisite corporate and legal right, power and authority
to execute and deliver the Security Agreements, Charters and the Guarantee
Agreement, if applicable, to which it is a party and to consummate the
transactions contemplated thereby and to perform its obligations
thereunder.
4. Neither the execution and delivery and performance of the Security
Agreements relating to each additional Vessel, which Security Agreements,
if required by applicable law in order to perfect the security interests
therein created, are in appropriate form for recording or registration in
the appropriate governmental offices, will not result in a breach or
Page 16
violation of any of the terms and provisions of, or constitute a default
under, any statute, rule, regulation or order of any New York or Federal
governmental agency or body or any court having jurisdiction over the
Company or any Subsidiary of the Company or any of their respective
properties, or to our knowledge, or any agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject.
5. Neither the execution and delivery of the Security Agreements or
Guarantee Agreement nor performance thereof nor the consummation of the
transactions contemplated thereby will result in any violation of or be in
conflict with or constitute a default under any term or provision of (i)
the Articles of Incorporation or By-laws of the applicable Subsidiary
Guarantor or (ii)(a) to our knowledge, any term or provision of any
agreement, indenture, mortgage instrument or license that is material to
the applicable Subsidiary Guarantor or (b) any statute, law, governmental
rule, regulation or ordinance or order of any court, arbitrator or
governmental authority and, in the case of each (a) and (b), applicable to
it or its properties or assets, or result in the creation of (or impose any
obligation on the applicable Subsidiary Guarantor to create) any Lien
(other than the Lien of the Indenture and the Lien of the applicable
mortgage) upon any of the properties or assets of the applicable Subsidiary
Guarantor pursuant to any such term or provision.
6. The applicable Subsidiary Guarantor has, by all necessary corporate
and shareholder action, duly authorized the execution and delivery of, and
the performance of its obligations under each of the Security Agreements
relating to each additional Vessel to which the Company or a Subsidiary
Guarantor is a party, each Guarantee Agreement, if applicable, and each
Charter to which a Subsidiary Guarantor is a party.
7. Subject to the consummation of the transactions herein described
the applicable Subsidiary Guarantor has title of record to the additional
Vessel free and clear of any Liens (as defined in the Indenture) of record,
except for the lien of the related Mortgage and Permitted Liens.
8. The Guarantee Agreement has been duly authorized, executed and
delivered by the applicable Subsidiary Guarantor.
9. All filing, registration and recording fees required in connection
with any Security Agreement relating to each additional Vessel or other
fees necessary to assure the validity, effectiveness and priority of any
liens, charges and encumbrances created thereby have been paid.
10. No authorization, consent, license, permission, permit or approval
(including exchange control approval) of or action by, and no notice to or
filing with, any governmental authority or regulatory body is required for
the execution, delivery and performance of any of the Security Agreements
or the Guarantee Agreements by the respective parties thereto and no such
authorization, consent, license, permission, permit, approval, action,
notice or filing is required for the exercise by the Trustee of the rights
and remedies granted to it under any of the Security Agreements, except for
the filing and registration of the Mortgages in the office of the
applicable flag jurisdiction.
11. Upon the recording of the Mortgages in the office of the
applicable flag jurisdiction, each Mortgage will create of record the first
priority mortgage lien covering the related Mortgaged Vessel which it
purports to create [subject to standard or customary qualifications].
12. The security interests created by each Security Agreement (other
than the Mortgages) do not require any action to be taken under or pursuant
Page 17
to the laws of the appropriate flag jurisdiction in order to create or
perfect such security interests or to permit the Trustee to enforce its
rights under the Security Agreements creating the same.
13. The choice of New York law to govern the Security Agreements and
Guarantee Agreement constitutes a valid choice of law. The submission by
the applicable Subsidiary Guarantor to the non-exclusive jurisdiction of
any Federal or state court in the Borough of Manhattan, The City of New
York (a "New York Court") is a valid submission insofar as the appropriate
law is concerned, provided that CT Corporation System has accepted its
appointment by the applicable Subsidiary Guarantor as its agent to accept
service of process in the United States of America.
14. Neither the applicable Subsidiary Guarantor nor any of its
property have any immunity from the jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise).
15. To our knowledge there are no legal or governmental actions, suits
or proceedings now pending or threatened against the applicable Subsidiary
Guarantor, or to which any of the properties of the applicable Subsidiary
Guarantor all subject, except actions, suits and proceedings of the
character normally incident to the business conducted by the applicable
Subsidiary Guarantor (none of which calls into question the validity or
legality of the Security Agreements or Guarantee Agreement or any action
taken or to be taken pursuant thereto).
16. In a suit on the events before a court of the jurisdiction of the
applicable Subsidiary Guarantor, such court will respect and enforce the
agreement of the parties as to judgment currency.
17. No stamp or registration or similar taxes, duties, imposts or
other charge are payable in respect of enforcement of the Security
Agreements or Guarantee Agreement.
Page 18
EXHIBIT F to
Escrow Agreement
Form of Guarantee Agreement
[____] SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") dated as of ________, __, among ULTRAPETROL (BAHAMAS)
LIMITED, a Bahamas corporation (the "Company"), the guarantors
listed on the signature pages hereto (the "Guarantors"), and
MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking
corporation (the "Trustee"), to the INDENTURE (the "Indenture")
dated as of November 24, 2004 among the Company, the Pledgors,
the guarantors named therein (the "Subsidiary Guarantors"), and
the Trustee.
WHEREAS, Sections 9.01(4), (5) and (8) of the Indenture provide that
without the consent of any Securityholder, the Company, the Pledgors, the
Subsidiary Guarantors and the Trustee may amend the Indenture to provide
additional security for and to add additional Guarantees with respect to the
Securities, including Subsidiary Guarantees, or to make any change that does not
adversely affect the rights of any Securityholder;
WHEREAS, Section 4.12 of the Indenture requires the Company to cause
[____] to become a Subsidiary Guarantor, and [____] is hereby agreeing to become
a Subsidiary Guarantor;
Page 19
WHEREAS, the entry into this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a
valid agreement of the Company and the Guarantors in accordance with its terms
have been done.
NOW, THEREFORE, and in consideration of the premises, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Securityholders, as follows:
SECTION 1. [NEW GUARANTOR] hereby agrees to become a Subsidiary
Guarantor under the Indenture and, together with each other Subsidiary
Guarantor, hereby unconditionally and irrevocably guarantees, jointly and
severally, to each Holder and to the Trustee and its successors and assigns (a)
the full and punctual payment of principal of and interest on the Securities
when due, whether at maturity, by acceleration, by redemption, by required
repurchase or otherwise, and all other monetary obligations of the Company and
the Subsidiary Guarantors under the Indenture and the Securities and of the
Subsidiary Guarantors under the Security Agreements and (b) the full and
punctual performance within applicable grace periods of all other obligations of
the Company and the Subsidiary Guarantors under the Indenture, the Security
Agreements and the Securities (all the foregoing being hereinafter collectively
called the "Obligations"). Each Guarantor further agrees that the Obligations
may be extended or renewed, in whole or in part, without notice or further
assent from such Guarantor and that such Guarantor will remain bound under the
Indenture notwithstanding any extension or renewal of any Obligation. The
Guarantor is subject to all the provisions of the Indenture applicable to a
Subsidiary Guarantor.
SECTION 2. The Indenture, as supplemented and amended by this
Supplemental Indenture and all other indentures supplemental thereto, is in all
respects ratified and confirmed, and the Indenture, this Supplemental Indenture
and all indentures supplemental thereto shall be read, taken and construed as
one and the same instrument.
SECTION 3. If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Supplemental
Indenture by any of the provisions of the Trust Indenture Act, such required
provision shall control.
SECTION 4. All covenants and agreements in this Supplemental Indenture
by the Subsidiary Guarantor shall bind its successors and assigns, whether so
expressed or not.
SECTION 5. In case any provision in this Supplemental Indenture shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 6. Nothing in this Supplemental Indenture, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Securityholders any benefit or any legal or
equitable right, remedy or claim under this Supplemental Indenture.
SECTION 7. THIS SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 8. All terms used in this Supplemental Indenture not otherwise
defined herein that are defined in the Indenture shall have the meanings set
forth therein.
Page 20
SECTION 9. This Supplemental Indenture may be executed in any number
of counterparts, each of which shall be an original, but all of which, when
taken together, shall constitute one and the same instrument.
SECTION 10. The recitals contained herein shall be taken as statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of the
Indenture, this Supplemental Indenture or of the Securities and shall not be
accountable for the use or application by the Company of the Securities or the
proceeds thereof.
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be
duly executed as of the date first written above.
ULTRAPETROL (BAHAMAS) LIMITED, as
principal obligor,
by
----------------------------------
Name:
Title:
SUBSIDIARY GUARANTORS:
BAYHAM INVESTMENTS S.A.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
BALDWIN MARITIME INC.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
CAVALIER SHIPPING INC.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
CORPORACION DE NAVEGACION
MUNDIAL S.A.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
DANUBE MARITIME INC.,
By:
Page 21
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
GENERAL VENTURES INC.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
imperial maritime ltd. (bahamas) inc.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
KATTEGAT SHIPPING INC.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
KINGLY SHIPPING LTD.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
MAJESTIC MARITIME LTD.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
MASSENA PORT S.A.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
MONARCH SHIPPING LTD.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
NOBLE SHIPPING LTD.,
Page 22
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
OCEANPAR S.A.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
OCEANVIEW MARITIME INC.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
PARFINA S.A.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
PARKWOOD COMMERCIAL CORP.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
PRINCELY INTERNATIONAL FINANCE CORP.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
REGAL INTERNATIONAL INVESTMENTS S.A.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
RIVERVIEW COMMERCIAL CORP.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
SOVEREIGN MARITIME LTD.,
Page 23
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
STANMORE SHIPPING INC.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
TIPTON MARINE INC.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
ULTRAPETROL INTERNATIONAL S.A.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
ULTRAPETROL S.A.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
UP OFFSHORE (HOLDINGS) LTD.,
By:
-----------------------------
Name: Leonard J. Hoskinson
Title: Attorney-in-Fact
539428
Page 24