Exhibit 10.4
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CalPetro Holdings Limited, Designated Representative
California Petroleum Transport Corporation
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Designated Representative Agreement
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This Designated Representative Agreement, dated as of December 1, 1994
(the "Agreement"), among California Petroleum Transport Corporation (the
"California Petroleum"), a corporation organized under the laws of the State of
Delaware, and CalPetro Holdings Limited (the "Designated Representative"), a
company organized under the laws of the Kingdom of Norway.
PRELIMINARY STATEMENT
Concurrently herewith, California Petroleum is (a) entering into
an Indenture (the "Serial Indenture"), dated as of the date hereof, among
California Petroleum, Chemical Trust Company of California, as trustee (the
"Serial Indenture Trustee") and, solely for purposes of the Trust Indenture Act
of 1939, as amended, Chevron Corporation ("Chevron") pursuant to which
California Petroleum is issuing certain mortgage notes (the "Serial Mortgage
Notes") in the aggregate principal amount of $__________, (b) entering into an
Indenture (the "Term Indenture"), dated as of the date hereof, between
California Petroleum and Chemical Trust Company of California, as trustee (the
"Term Indenture Trustee") pursuant to which California Petroleum is issuing
certain mortgage notes (the "Term Mortgage Notes") in the aggregate principal
amount of $__________ and (c) entering into a Collateral Trust Agreement (the
"Collateral Agreement"), dated as of the date hereof, among California
Petroleum, the Serial Indenture Trustee, the Term Indenture Trustee and
Chemical Trust Company of California, as collateral trustee (the "Collateral
Trustee"). California Petroleum desires to engage the Designated
Representative to perform certain obligations, provide certain notices and
furnish certain consents for and on behalf of California Petroleum under and
pursuant to the Serial Indenture, the Term Indenture and the Collateral
Agreement.
The Designated Representative is willing obligations, provide such
notices and furnish such consents for and on behalf of California Petroleum
pursuant to this Agreement upon the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in condideration of the mutual covenants and
agreements herein contained and of other good and valuable consideration, the
receipt of which is hereby acknowledged, California Petroleum and the Designated
Representative hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement and not otherwise defined
herein shall have the meanings assigned to such terms in the Collateral
Agreement.
ARTICLE II
DUTIES OF THE DESIGNATED REPRESENTATIVE
Section 2.01 Appointment of Designated Representative.
California Petroleum hereby appoints the Designated Representative and the
Designated Representative hereby accepts
its appointment as the designated representative of California Petroleum under
the Serial Indenture, the Term Indenture and the Collateral Agreement.
Section 2.02 Responsibilities of the Designated Representative.
The Designated Representative hereby covenants and agrees with California
Petroleum that the Designated Representative shall or shall cause its designee
to do the following:
(a) Prepare and file, or cause to be prepared and filed, the
annual financial statements and annual tax returns of California Petroleum, if
required;
(b) Prepare and file any and all information, documents and
reports required in order to comply with Section 13 or 15(d) of the Exchange
Act;
(c) Pursuant to Section 3.3 of the Serial Indenture, appoint a
Serial Indenture Trustee in the manner described in Section 5.9 of the Serial
Indenture so that there shall at all times be an indenture trustee under the
Serial Indenture;
(d) Pursuant to Section 3.3 of the Term Indenture, appoint a Term
Indenture Trustee in the manner described in Section 5.9 of the Term Indenture
so that there shall at all times be an indenture trustee under the Term
Indenture;
(e) Pursuant to Sections 3.5(a), (b) and (c) of the Serial
Indenture and Sections 3.5(a), (b) and (c) of the Term Indenture, file with the
Serial Indenture Trustee and the Term Indenture Trustee, respectively, the
annual reports, information, documents and reports described therein;
(f) Pursuant to Section 3.5(d) of the Serial Indenture and
Section 3.5(d) of the Term Indenture, file with the Serial Indenture Trustee
and the Term Indenture Trustee, respectively, the certificate described therein;
(g) Pursuant to Section 10.5 of the Serial Indenture and Section
9.5 of the Term Indenture, provide to the Serial Indenture Trustee and the Term
Indenture Trustee, respectively, the Officer's Certificates and Opinions of
Counsel described therein;
(h) Pursuant to Section 11.2 of the Serial Indenture and Section
10.2 of the Term Indenture, provide to the Serial Indenture Trustee and the
Term Indenture Trustee, respectively, the notices described therein;
(i) Pursuant to Section 10.4 of the Term Indenture, (i) provide
to the Term Indenture Trustee the written statements described therein and (ii)
deliver to the Term Indenture Trustee the purchased or otherwise acquired
Mortgage Notes in satisfaction of the mandatory sinking fund payment in the
manner described therein;
(j) Pursuant to Sections 12.2(a) and (b) of the Serial Indenture
and Sections 11.2(a) and (b) of the Term Indenture, provide to the Serial
Indenture Trustee and the Term Indenture Trustee, respectively, the Opinions of
Counsel described therein;
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(k) Pursuant to Sections 12.4(b) and (d) of the Serial Indenture
and Sections 11.4(b) and (d) of the Term Indenture, provide to the Serial
Indenture Trustee and the Term Indenture Trustee, respectively, the requests
and Opinions of Counsel described therein;
(l) Pursuant to Section 3.03(d) of the Collateral Agreement,
direct the Collateral Trustee to disburse funds to the Owners as described
therein;
(m) Pursuant to Section 5.01 of the Collateral Agreement, provide
to the Collateral Trustee the requests described therein; and
(n) Pursuant to Section 6.07(a) of the Collateral Agreement,
appoint a successor collateral trustee in the manner described therein.
Section 2.03 Designated Representative to Act as
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Attorney-in-Fact of California Petroleum. California Petroleum hereby
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constitutes the Designated Representative, and its successors and assigns, its
true and lawful attorney, irrevocably, with full power in its own name, in the
name of its agents or nominees or in the name of California Petroleum or
otherwise, to execute any and all documents, instruments, agreements and
applications for and on behalf of California Petroleum relating to or in
connection with the performance by the Designated Representative of the
responsibilities described in Section 2.02 hereof.
ARTICLE IV
GENERAL PROVISIONS REGARDING
THE DESIGNATED REPRESENTATIVE
Section 4.01 No Duties Except As Specified in Agreement or
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Instructions. (a) The Designated Representative shall have no duty or
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obligation to make or advance any payment, register, record, or otherwise take
or refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Designated Representative is a party, except
as expressly provided by the terms of this Agreement or expressly agreed to in
writing by the Designated Representative and California Petroleum. No implied
duties or obligations shall be read into this Agreement against the Designated
Representative.
(b) Under no circumstances shall the Designated Representative be
liable for (i) California Petroleum's obligations under the Serial Indenture,
the Term Indenture, the Collateral Agreement or any of the Security Documents
or (ii) the validity or sufficiency of the Term Indenture, the Serial
Indenture, the Collateral Agreement or any of the Security Documents. The
Designated Representative shall not assume any liability, duty or obligation to
any Person, other than as expressly provided for herein.
(c) The Designated Representative shall have no duty to conduct
any affirmative investigation, other than as specifically set forth in this
Agreement, as to the any other party's performance of its obligations under the
Serial Indenture, the Term Indenture, the Collateral Agreement or any other
Security Document.
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(d) No provision of this Agreement shall be construed to relieve
the Designated Representative from liability for its own grossly negligent
action, its own grossly negligent failure to act or its own willful misconduct.
The duties and obligations of the Designated Representative shall be determined
solely by the express provisions of this Agreement and the Designated
Representative shall not be liable except for the performance of its respective
duties and obligations as specifically set forth in this Agreement. No implied
covenants or obligations shall be read into this Agreement against the
Designated Representative and, in the absence of bad faith on the part of the
Designated Representative, the Designated Representative may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Designated
Representative and conforming to the requirements of this Agreement.
(e) The Designated Representative may consult with counsel and
any advice or opinion of counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion of
counsel.
(f) The right of the Designated Representative to perform any
discretionary act enumerated in this Agreement shall not be construed as a
duty, and the Designated Representative shall not be answerable for other than
its gross negligence or willful misconduct in the performance of such act, and
the delivery hereunder to the Designated Representative, of any notice,
document or report shall not give rise to an affirmative obligation on the part
of the Designated Representative to take any action with respect thereto,
except as otherwise expressly provided herein.
Section 4.02 Resignation of Designated Representative. The
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Designated Representative may resign its duties at any time upon 60 days prior
written notice to California Petroleum, the Serial Indenture Trustee, the Term
Indenture Trustee and the Collateral Trustee. The Designated Representative
may only be removed by California Petroleum with cause upon 60 days prior
written notice to the Designated Representative, the Serial Indenture Trustee,
the Term Indenture Trustee and the Collateral Trustee. In the event of the
resignation or removal of the Designated Representative, a successor designated
representative shall be appointed by California Petroleum. California
Petroleum shall give the Serial Indenture Trustee, the Term Indenture Trustee
and the Collateral Trustee notice of the successor designated representative's
acceptance of such appointment and shall cause such successor to execute any
and all documents requested by California Petroleum to evidence such
successor's acceptance of all of the obligations of the Designated
Representative pursuant to this Agreement.
Section 4.03 Indemnification. California Petroleum shall
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indemnify the Designated Representative and its successors and assigns, and
hold them harmless against and from, any and all liabilities, obligations,
losses, damages, taxes, penalties, claims, actions, suits, costs, expenses
(including legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may be imposed on, incurred by or asserted at
any time against the Designated Representative (whether or not indemnified
against by other parties) in any way relating to or arising out of this
Agreement, the Serial Indenture, the Term Indenture, the Collateral Agreement
or any Security Document; provided, however, that California Petroleum shall
not be required to indemnify the Designated Representative for Expenses arising
or
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resulting from its own willful misconduct or gross negligence or for expenses
arising from the Designated Representative's failure to perform the duties
specifically set forth in this Agreement expressly agreed to in writing by the
Designated Representative and California Petroleum.
Section 4.04 Compensation. (a) As compensation for its services
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hereunder, the Designated Representative shall receive a fee (the "Designated
Representative's Fee"), payable semi-annually in arrears on each Payment Date as
provided in Section 3.03 of the Collateral Agreement equal to $15,000 per annum
for the period from March __, 1995 to but not including March __, 1998.
Thereafter the Designated Representative's Fee shall increase each year by an
amount equal to 4%.
(b) Whenever any payment to the Designated Representative under
this Agreement shall be due on a day other than a Business Day, the date of
payment thereof shall be extended to the next succeeding Business Day, unless
such extension would cause payment to be made in the next succeeding calendar
month, in which case such date shall be advanced to the next preceding Business
Day.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 Amendment. This Agreement may be amended from time
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to time by written agreement signed by the parties hereto upon the written
consent of the parties hereto.
Section 5.02 Severability. If any provision of this Agreement
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is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such
circumstances shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case or circumstance, or of rendering
any other provision or provisions herein contained invalid, inoperative, or
unenforceable to any extent whatsoever. The invalidity of any one or more
phrases, sentences, clauses or Sections of this Agreement contained, shall not
affect the remaining portions of this Agreement, or any part thereof.
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Section 5.03 Notices. All demands, notices and communications
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hereunder shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Designated Representative, at the following
address: Bryggegaten 5, Aker Brygge, P.O. Box 1803 VIKA, 0123 Oslo, Norway, (b)
in the case of California Petroleum, at the following address: c/0 J H
Management Corporation, Room 6/9, One International Place, Boston,
Massachusetts 02110-2624, or at other such address as shall be designated by
such party in a written notice to the other parties.
Section 5.04 Captions. The captions or headings in this
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Agreement are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Agreement.
Section 5.05 Governing Law. This Agreement shall be governed by
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and interpreted in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
Section 5.06 No Partnership. Nothing herein contained shall be
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deemed or construed to create a partnership or joint venture among the parties
hereto and the services of each party shall be rendered as an independent
contractor and not as agent for any other party.
Section 5.07 Counterparts. This Agreement may be executed in
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any number of counterparts and by different parties hereto on separate
counterpart, each of which shall be deemed to be an original. Such
counterparts shall constitute one and the same agreement.
Section 5.08 Survival. The representations, covenants and
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agreements contained in or made pursuant to this Agreement in respect of either
party hereto shall survive the execution and delivery of this Agreement and
shall continue in effect so long as such party's obligations hereunder remain
outstanding.
Section 5.09 Integration. This Agreement and the Schedule and
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Exhibits hereto constitute the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, understandings or representations pertaining to the subject
matter hereof, whether oral or written. There are no warranties,
representations or other agreements between the parties in connection with the
subject matter hereof except as specifically set forth or incorporated herein.
Section 5.10 Reproduction of Documents. This Agreement and all
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documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made in the regular course
of business) and that any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence.
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Section 5.11 General Interpretive Principles. For purposes of
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this Agreement except as otherwise expressly provided or unless the context
otherwise requires:
(a) the defined terms in this Agreement shall include the plural
as well as the singular, and the use of any gender herein shall be deemed to
include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections", "Subsections",
"paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, paragraphs and other subdivisions
of this Indenture;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
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IN WITNESS WHEREOF, the Designated Representative and California
Petroleum have caused this Indenture to be duly executed and delivered by their
respective officers thereunto duly authorized and their respective seals, duly
attested, to be hereunto affixed, all as of the day and year first above
written.
CALPETRO HOLDINGS LIMITED, as Designated Representative
By:
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Name:
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Title:
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CALIFORNIA PETROLEUM TRANSPORT CORPORATION
By:
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Name:
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Title:
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