EXHIBIT 4.10
______________________________________________________________________________
______________________________________________________________________________
P.D. Gram & Co. ans, Manager
Barber Ship Management A.S., Technical Adviser
CalPetro Tankers (Bahamas I) Limited
___________________________________________
Management and Remarketing Agreement
___________________________________________
______________________________________________________________________________
______________________________________________________________________________
Table Of Contents
Page
ARTICLE I
DEFINITIONS
ARTICLE II
ADMINISTRATIVE MANAGEMENT OF THE OWNER
Section 2.01 Appointment of Manager as Manager of Administrative Obligations
of Owner................................................................. 1
Section 2.02 Administrative Responsibilities of Manager............................... 2
ARTICLE III
ADMINISTRATIVE MANAGEMENT OF THE VESSEL
Section 3.01 Appointment of Manager as Manager of the Vessel.......................... 2
Section 3.02 Responsibilities of the Manager.......................................... 2
Section 3.03 Manager to Act as Attorney-in-Fact of Owner.............................. 3
Section 3.04 Manager to Act as Owner's Remarketing Agent.............................. 4
Section 3.05 Manager's Remarketing Obligations........................................ 4
Section 3.06 Manager's Activities on Behalf of Owner
ARTICLE IV
TECHNICAL ADVISER OBLIGATIONS
Section 4.01 Appointment of Technical Adviser......................................... 5
Section 4.02 Responsibilities of the Technical Adviser Prior to Termination of
Initial Charter.......................................................... 5
ARTICLE V
GENERAL PROVISIONS REGARDING
THE MANAGER AND THE TECHNICAL ADVISER
Section 5.01 No Duties Except As Specified in Agreement or Instructions............... 6
Section 5.02 Resignation of Manager................................................... 7
Section 5.03 Resignation of Technical Adviser......................................... 7
Section 5.04 Indemnification.......................................................... 7
Section 5.05 Compensation............................................................. 8
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 Amendment................................................................ 9
Section 6.02 Severability............................................................. 9
Section 6.03 Notices.................................................................. 9
Section 6.04 Captions................................................................. 9
Section 6.05 Governing Law............................................................ 9
Section 6.06 No Demise................................................................ 9
Section 6.07 No Partnership........................................................... 9
Section 6.08 Counterparts............................................................. 9
Section 6.09 Survival................................................................. 10
Section 6.10 Integration.............................................................. 10
Section 6.11 Reproduction of Documents................................................ 10
Section 6.12 General Interpretive Principles.......................................... 10
This Management and Remarketing Agreement, dated as of ____________ 1,
1995 (the "Agreement"), among CalPetro Tankers (Bahamas I) Limited, a company
organized under the laws of The Commonwealth of the Bahamas (the "Owner"), P.D.
Gram & Co. ans, a company organized under the laws of the Kingdom of Norway (the
"Manager") and Barber Ship Management A.S., a company organized under the laws
of the Kingdom of Norway (the "Technical Adviser").
PRELIMINARY STATEMENT
Concurrently herewith, the Owner is purchasing the m.t. ___________
(the "Vessel") pursuant to the Purchase Agreement (the "Purchase Agreement"),
dated as of the date hereof, between the Owner and Chevron Transport Corporation
(the "Initial Charterer"). The Owner is obtaining loans (the "Loans") to
finance its acquisition of the Vessel from California Petroleum Transport
Corporation (the "Lender"). As security for the Loans, the Owner is, inter
alia, granting to the Lender a mortgage on the Vessel (the "Mortgage") and an
assignment of this Agreement. The Vessel will be bareboat chartered to the
Initial Charterer pursuant to a Bareboat Charter (the "Initial Charter"), dated
as of the date hereof, between the Owner and the Initial Charterer. The Owner
desires to engage the Manager to provide management services for the Vessel and
the Owner and the Technical Adviser to provide technical advice with respect to
the Vessel.
The Manager and the Technical Adviser are willing to provide such
services as to the Owner pursuant to this Agreement upon the terms and subject
to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and of other good and valuable consideration, the
receipt of which is hereby acknowledged, the Owner, the Manager and the
Technical Adviser hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings
assigned to such terms in Schedule 1 to this Agreement, and the definitions of
such terms shall be equally applicable to both the singular and plural forms of
such terms.
ARTICLE II
ADMINISTRATIVE MANAGEMENT OF THE OWNER
Section 2.01 Appointment of Manager as Manager of Administrative
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Obligations of Owner. The Owner hereby appoints the Manager and the Manager
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hereby accepts its appointment as manager of the administrative and corporate
obligations of the Owner.
Section 2.02 Administrative Responsibilities of Manager. (a) The
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Manager hereby covenants and agrees with the Owner that the Manager shall or
shall cause its designee to do the following:
(i) issue the shares of the Owner's capital stock;
(ii) maintain the register of shareholders;
(iii) maintain the books and records and the company minutes of the
Owner;
(iv) call and hold the annual general meeting of the shareholders of
the Owner;
(v) prepare and file the annual financial statements and annual tax
returns of the Owner, if required;
(vi) provide all office staff and accommodation of the Owner;
(vii) prepare and submit invoices to the Owner or to the Owner's
assignee for the cost and expense of (A) registering the Vessel in the name of
the Owner under the laws of the Registration Jurisdiction, (B) recording the
Mortgage under the laws of the Registration Jurisdiction, (C) maintaining the
documentation of the Vessel under the laws of the Registration Jurisdiction, (D)
the annual corporate fees of the Owner, (E) the annual fees of the officers and
directors of the Owner, (F) the annual premiums for directors and officers
liability insurance for the directors and officers of the Owner and (G) any
other expenses properly incurred on behalf of the Owner.
(b) The Owner hereby acknowledges that the Manager has designated BDO
Binder to perform the administrative and corporate responsibilities set forth in
Section 2.02(a) hereof.
ARTICLE III
ADMINISTRATIVE MANAGEMENT OF THE VESSEL
Section 3.01 Appointment of Manager as Manager of the Vessel. The
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Owner hereby appoints the Manager and the Manager hereby accepts its appointment
to act as administrative manager of the Vessel from and after the date hereof to
the date the Vessel is disposed of by the Owner.
Section 3.02 Responsibilities of the Manager. From and after the
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Closing Date, the Manager hereby covenants and agrees with the Owner that:
(a) From and after the Closing Date to the date the Initial Charterer
terminates the Initial Charter pursuant to the provisions thereof (the
"Termination Date"), the Manager shall monitor and enforce the performance by
the Initial Charterer of its obligations under and pursuant to the Initial
Charter. Thereafter, if the Owner enters into an Acceptable Replacement Charter
or Substitute Charter, the Manager shall monitor and enforce the performance by
any
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subsequent charterer (a "Subsequent Charterer") of its obligations under and
pursuant to an Acceptable Replacement Charter or Substitute Charter. In no event
shall the Manager be responsible for the costs and expenses incurred in
connection with the enforcement of the Initial Charter, any Acceptable
Replacement Charter or Substitute Charter.
(b) The Manager shall review the insurance certificates provided by
the Initial Charterer (or Subsequent Charterer) pursuant to the terms of the
Initial Charter (or Acceptable Replacement Charter or Substitute Charter) to
determine whether such certificates comply with the terms of the Initial Charter
(or Acceptable Replacement Charter or Substitute Charter); provided, however,
that in no event shall the Manager be liable for the placement of additional
insurance on the Vessel or the payment or advancement of any premiums or calls.
(c) The Manager shall handle and process any claims arising in
connection with the insurances of the Vessel in accordance with Clause 11 of the
Initial Charter (or the pertinent provisions of the Acceptable Replacement
Charter or Substitute Charter).
(d) The Manager shall review any and all assignments and subcharters
of the Vessel to determine if they meet the requirements of the Initial Charter
(or Acceptable Replacement Charter or Substitute Charter).
(e) The Manager shall review any and all approvals or consents
requested by the Initial Charterer (or Subsequent Charterer) pursuant to the
terms of the Initial Charter (or Acceptable Replacement Charter or Substitute
Charter) and advise the Owner or the Owner's assignee with respect to same.
(f) The Manager shall provide the services of such officers and other
staff of suitable skills and experience from among the members of the staff of
the Manager as may be necessary in order properly to perform the services
referred to herein.
(g) The Manager shall provide office equipment and the use of
accounting or computing equipment when required and the necessary executive,
clerical and secretarial personnel for the performance of the services herein
set out.
(h) The Manager shall keep all such books and records of things done
and transactions performed on behalf of the Owner as the Owner or the Trustee
may require.
(i) The Manager shall prepare and deliver to the Owner and the Trustee
on each __________ of each year commencing ________________, 1996, an annual
report describing the current conditions in the tanker market (e.g., supply of
----
vessels and new buildings, current charterhire rates for the long-term bareboat
market and for the spot market).
Section 3.03 Manager to Act as Attorney-in-Fact of Owner. The Owner
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hereby constitutes the Manager, 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 the Owner or otherwise, to execute any
and all documents, instruments, agreements and applications for and on behalf of
the Owner relating to or in connection with (i) the registration of the Vessel
under the laws of the Registration Jurisdiction, (ii) the monitoring and
enforcement of the terms
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and conditions of the Initial Charter (or Acceptable Replacement Charter or
Substitute Charter) and (iii) the performance by the Owner of its obligations
under the Initial Charter (or Acceptable Replacement Charter or Substitute
Charter) as the Manager may deem to be necessary or advisable.
Section 3.04 Manager to Act as Owner's Remarketing Agent. The Owner
-------------------------------------------
hereby appoints and the Manager accepts appointment as the Owner's exclusive
marketing agent with respect to the sale and/or charter of the Vessel on the
terms and conditions set forth in this Agreement.
Section 3.05 Manager's Remarketing Obligations. (a) The Manager
---------------------------------
shall commence marketing of the Vessel upon receipt of written notice (the
"Commencement Notice") from the Owner (which notice shall also be provided to
the Technical Adviser) stating that the Initial Charterer has given the Owner
notice of the Initial Charter's election to terminate the Initial Charter.
(b) The Manager shall promptly consult with the Nominated Brokers,
solicit bids for and advise the Owner and the Trustee, as assignee of the Owner,
as to the availability of an Acceptable Replacement Charter.
(c) In the event that the Manager notifies the Trustee, as assignee of
the Owner, and the Owner that an Acceptable Replacement Charter is commercially
unavailable, then the Manager shall be directed by notice in writing from the
Owner or the Trustee, as assignee of the Owner, to solicit bids for the sale of
the Vessel, either directly or through the Nominated Brokers or such other
brokers as may be appointed with the consent of the Owner and the Trustee.
(d) The Manager shall forward to the Trustee the highest cash bid for
the sale of such Vessel received after the receipt of the Commencement Notice to
the date which is one week prior to the next succeeding principal payment date
(the "Remarketing Period") that will result when added to the Termination
Payment made by the Initial Charterer in the realization of net proceeds of sale
of such Vessel in an amount of US Dollars that shall be not less than the then
outstanding principal balance of the Term Loan, together with accrued interest
thereon; provided, however, if there are no such bids, the Manager shall forward
to the Trustee all other cash bids received during the Remarketing Period by the
Manager for the sale of the Vessel. The Trustee shall instruct the Manager
whether or not to accept any such bid.
(e) In the event that there are no bids for the sale of the Vessel or
the Trustee instructs the Manager not to accept any bid for the sale of the
Vessel, then the Manager shall consult with the Owner, the Trustee and the
Nominated Brokers, or such other brokers as may be appointed with the consent of
the Owner and the Trustee, and shall attempt to recharter the Vessel upon such
terms as it shall, in its sole discretion, deem appropriate so long as (i) such
charter is an arms' length agreement, (ii) the charterhire payable thereunder
during the term thereof is an amount sufficient to (A) make the mandatory
sinking fund payments, together with all interest payable thereon, due on the
Term Mortgage Notes, (B) pay Recurring Fees and Taxes for such Vessel, (C) to
pay the Management Fees and Technical Advisor's Fees for such Vessel and (D) to
pay the amount of fees and expenses of the Indenture Trustee and Collateral
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Trustee allocable to such Vessel and (iii) such charter terminates no later than
_____________, 2015.
(f) If the Manager is unable to obtain any bids for the recharter of
the Vessel, it shall promptly advise the Owner and the Trustee and recommend
what alternatives are available for the employment or disposition of the Vessel.
Section 3.06 Manager's Activities on Behalf of Owner. In connection
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with the performance of its services hereunder on behalf of the Owner, the
Manager shall not perform such services from an office or fixed place of
business in the United States within the meaning of sections 864 or 887(b)(4) of
the Code and shall use its best efforts to avoid treatment of the Owner as being
engaged in a trade or business in the United States or having any such office or
fixed place of business in the United States.
ARTICLE IV
TECHNICAL ADVISER OBLIGATIONS
Section 4.01 Appointment of Technical Adviser. The Owner hereby
--------------------------------
appoints and the Technical Adviser hereby accepts its appointment as Technical
Adviser with respect to the Vessel.
Section 4.02 Responsibilities of the Technical Adviser Prior to
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Termination of Initial Charter. (a) Upon receipt of a notice from the Manager
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requesting that the Vessel be inspected, the Technical Adviser shall inspect the
Vessel and furnish a copy of the report regarding such inspection to the
Manager, the Owner and the Trustee.
(b) At the time of the special survey of the Vessel, the Technical
Adviser shall inspect the Vessel and furnish a copy of the report regarding such
inspection to the Manager, the Owner and the Trustee.
(c) Immediately after receipt of the Commencement Notice, the
Technical Adviser shall inspect the Vessel and furnish a copy of the report
regarding such inspection to the Manager, the Owner and the Trustee.
(d) In the event the Initial Charterer redelivers the Vessel to the
Owner and if the Manager notifies the Technical Adviser that the Manager deems
an inspection advisable, the Technical Adviser shall inspect the Vessel to
determine the condition and fitness of the Vessel and her machinery and
equipment to determine what repairs or work is necessary in order to place the
Vessel in the same or as good structure, state and condition in which the Vessel
was in as of the Closing Date, ordinary wear and tear excepted; provided,
however, in no event shall the Technical Adviser or the Manager be liable or
responsible for the payment or advancement of any amounts required in connection
with the repair of the Vessel.
(e) In the event a diver's survey is conducted pursuant to the terms
of the Initial Charter, the Technical Adviser shall send a representative to
observe the survey and shall thereafter furnish a copy of the written report
relating to such survey to the Manager, the Owner
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and the Trustee; provided, however, in no event shall the Technical Adviser or
the Manager be liable or responsible for the payment or advancement of any
amounts required in connection with the repair of the Vessel.
(f) On or about ______________ of each year commencing ___________,
1996, the Technical Adviser shall prepare and deliver to the Manager, the Owner
and the Trustee an annual report on the condition of the Vessel as of such date.
Section 4.03 Responsibilities of the Technical Adviser After
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Termination of Initial Charter. From and after the Initial Charterer terminates
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the Initial Charter, the Owner may engage the Technical Adviser to provide
technical management services for the Owner. The Owner and the Technical
Adviser shall enter into an agreement at that time with respect to the nature of
the services to be provided by the Technical Adviser and the Technical Adviser's
compensation therefor.
ARTICLE V
GENERAL PROVISIONS REGARDING
THE MANAGER AND THE TECHNICAL ADVISER
Section 5.01 No Duties Except As Specified in Agreement or
---------------------------------------------
Instructions. (a) Neither the Manager nor the Technical Adviser shall have any
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duty or obligation to manage, make any payment in respect of, register, record,
sell, repair, advance any amounts in connection with the repair of, dispose of
or otherwise deal with the Vessel or any part thereof, or otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which either the Manager or the Technical Adviser is a
party, except as expressly provided by the terms of this Agreement. No implied
duties or obligations shall be read into this Agreement against either the
Manager or the Technical Adviser.
(b) Under no circumstances shall either the Manager or the Technical
Adviser be liable for (i) the Owner's obligations under the Loan Agreements, the
Loans, the Security Documents, the Initial Charter or the indebtedness evidenced
by the Securities or (ii) the validity or sufficiency of the Loan Agreements or
any of the Security Documents. Neither the Manager nor the Technical Adviser
shall assume any liability, duty or obligation to any Person, other than as
expressly provided for herein.
(c) Neither the Manager nor the Technical Adviser shall have any duty
to conduct any affirmative investigation, other than as specifically set forth
in this Agreement, as to the Initial Charterer's (or Acceptable Replacement
Charterer's or Subsequent Charterer's) performance of its obligations under the
Initial Charter or the condition of the Vessel.
(d) No provision of this Agreement shall be construed to relieve the
Manager or the Technical Adviser 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 Manager and the Technical Adviser shall be
determined solely by the express provisions of this Agreement and neither the
Manager nor the Technical Adviser shall be liable except for the performance of
its respective duties and obligations as specifically set forth in this
Agreement.
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No implied covenants or obligations shall be read into this Agreement against
the Manager or the Technical Adviser and, in the absence of bad faith on the
part of the Manager and the Technical Adviser, the Manager and the Technical
Adviser 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 Manager or the Technical Adviser, respectively, and conforming
to the requirements of this Agreement.
(e) The Manager and the Technical Adviser 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 Manager and the Technical Adviser to perform any
discretionary act enumerated in this Agreement shall not be construed as a duty,
and neither the Manager nor the Technical Adviser shall be answerable for other
than its gross negligence or willful misconduct in the performance of such act,
and the delivery hereunder to the Manager or the Technical Adviser,
respectively, of any notice, document or report shall not give rise to an
affirmative obligation on the part of the Manager or the Technical Adviser to
take any action with respect thereto, except as otherwise expressly provided
herein.
Section 5.02 Resignation of Manager. The Manager may resign its
----------------------
duties at any time upon 30 days prior written notice to the Owner and the
Trustee. The Manager may be removed by the Owner with or without cause upon 30
days prior written notice to the Manager and the Trustee; provided, however, if
the Owner removes the Manager without cause, the Manager shall be entitled to
receive the compensation described in Section 5.05(a) hereof through the date
which is 90 days after the receipt of such notice. In the event of the
resignation or removal of the Manager, a successor manager shall be appointed by
the Owner. The Owner shall give the Trustee notice of the successor manager's
acceptance of such appointment and shall cause such successor to execute any and
all documents requested by the Trustee to evidence such successor's acceptance
of all of the obligations of the Manager pursuant to this Agreement.
Section 5.03 Resignation of Technical Adviser. The Technical Adviser
--------------------------------
may resign its duties at any time upon 30 days prior written notice to the Owner
and the Trustee. The Technical Adviser may be removed by the Owner with or
without cause upon 30 days prior written notice to the Technical Adviser and the
Trustee; provided, however, if the Owner removes the Technical Adviser without
cause the Technical Adviser shall be entitled to receive the compensation
described in Section 5.05(b) hereof through the date which is 90 days after the
receipt of such notice. In the event of the resignation or removal of the
Technical Adviser, a successor technical adviser shall be appointed by the
Owner. The Owner shall give the Trustee notice of the successor technical
adviser's acceptance of such appointment and shall cause such successor to
execute any and all documents requested by the Trustee to evidence such
successor's acceptance of all of the obligations of the Technical Adviser
pursuant to this Agreement.
Section 5.04 Indemnification. (a) The Owner shall indemnify the
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Manager 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
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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 Manager (whether or not indemnified against by other parties) in any way
relating to or arising out of this Agreement, the Indentures or any Security
Document; provided, however, that the Owner shall not be required to indemnify
the Manager for Expenses arising or resulting from its own willful misconduct or
gross negligence.
(b) The Owner shall indemnify the Technical Adviser and its successors
and assigns, and hold them harmless against and from, any and all Expenses which
may be imposed on, incurred by or asserted at any time against the Technical
Adviser (whether or not indemnified against by other parties) in any way
relating to or arising our of this Agreement, the Indenture or any Security
Document; provided, however, that the Owner shall not be required to indemnify
the Technical Adviser for Expenses arising or resulting from its own willful
misconduct or gross negligence.
Section 5.05 Compensation. (a) For the first three years of the term
------------
of this Agreement, the Manager shall receive as compensation for its services
hereunder an amount equal to $13,625 per annum, payable semi-annually in arrears
on each Payment Date as provided in Section 3.03 of the Collateral Trust
Agreement. In addition, the Manager shall be entitled to a fee equal to the
product of (i) $3,000 and (ii) a fraction the numerator of which is one (1) and
the denominator of which is the number of Vessels subject to the lien of the
Collateral Trust Agreement per annum during such period, payable annually in
arrears. Thereafter, the Manager's compensation for its services hereunder
shall increase by four percent (4%) per annum.
(b) For the first three years of the term of this Agreement, the
Technical Adviser shall receive as compensation for its services hereunder an
amount equal to $10,000 per annum, payable semi-annually in arrears on each
Payment Date as provided in the Section 3.03 of the Collateral Trust Agreement.
Thereafter, the Technical Adviser's compensation for its services shall
increase by four percent (4%) per annum. In addition, the Technical Adviser
shall be entitled to an inspection fee of $600 per inspection together with the
reimbursement of its reasonable travel costs and expenses incurred in connection
with each inspection performed by the Technical Adviser pursuant to the terms of
this Agreement and the fees, charges and reasonable travel costs and expenses of
any sub-contractor hired by the Technical Adviser in connection therewith.
(c) Whenever any payment to the Manager or the Technical Adviser 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.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 Amendment. This Agreement may be amended from time to
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time by written agreement signed by the parties hereto upon the written consent
of the Trustee.
Section 6.02 Severability. If any provision of this Agreement 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.
Section 6.03 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 Manager, at the following address: Bryggegaten 5,
Aker Brygge, P.O. Box 1803 VIKA, 0123 Oslo, Norway, (b) in the case of the
Technical Adviser, at the following address: _____________________________, (c)
in the case of the Owner, at the following address: United House, 14-16 Nelson
Street, Douglas, Isle of Man, (d) in the case of the Trustee, at the following
address: ___________________________, or at other such address as shall be
designated by such party in a written notice to the other parties.
Section 6.04 Captions. The captions or headings in this 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 6.05 Governing Law. This Agreement shall be governed by and
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interpreted in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law.
Section 6.06 No Demise. Nothing herein contained shall be construed
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as creating a demise of the Vessel to the Manager or to the Technical Adviser.
Section 6.07 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 6.08 Counterparts. This Agreement may be executed in any
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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.
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Section 6.09 Survival. The representations, covenants and 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 6.10 Integration. This Agreement and the Schedule and
-----------
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 6.11 Reproduction of Documents. This Agreement and all
-------------------------
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.
Section 6.12 General Interpretive Principles. For purposes of 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 Manager, the Technical Adviser and the Owner
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.
P.D. GRAM & CO. AS, as Manager
By:___________________________________
Name:_________________________________
Title:________________________________
BARBER SHIP MANAGEMENT GROUP, as Technical Adviser
By:___________________________________
Name:_________________________________
Title:________________________________
CALPETRO TANKERS (BAHAMAS I) LIMITED, as Owner
By:___________________________________
Name:_________________________________
Title:________________________________
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SCHEDULE 1
DEFINED TERMS USED IN THE MANAGEMENT AND REMARKETING AGREEMENT
"Acceptable Replacement Charter" means any replacement charter which
satisfies each of the following requirements: (i) the charter is a bareboat
charter and requires that the charterer thereunder "gross up" charterhire
payments to indemnify and hold the Holders of the Securities harmless from any
withholding tax imposed on the charterhire payments or on the payments on the
Securities; (ii) the charterhire payments payable during the non-cancelable term
of such replacement charter, after giving effect to (1) any "gross up" of such
amounts as a result of any withholding tax on such charterhire payments, (2) the
receipt of the Termination Payment and (3) all fees and expenses incurred in
connection with the recharter of the Vessel, provide sufficient funds for the
payment in full of (A) the Allocated Principal Amount of the Term Mortgage Notes
for the related Vessel and interest thereon in accordance with the revised
schedule of sinking fund and principal payments, that is applicable upon
termination of the related Initial Charter, (B) the amount of Recurring Fees and
Taxes for such Vessel, (C) the amount of Management Fees and Technical Advisor's
Fees for such Vessel, (D) the amount of fees and expenses of the Indenture
Trustee, the Collateral Trustee and the Designated Representative allocable to
such Vessel and (E) an amount at least equal to 30% of the estimated amounts, on
a per annum basis, referred to in clauses (B), (C) and (D) above for
miscellaneous or unexpected expenses; and (iii) the Rating Agencies shall have
confirmed in writing to the Trustee that the terms and conditions of such
proposed charter will not result in the withdrawal or reduction of the then
current ratings of the Term Mortgage Notes.
"Agreement" means this Management and Remarketing Agreement, dated as of
____________ 1, 1995, among the Owner, the Manager and the Technical Adviser.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, or in the city and state where
the Trustee's principal offices are located, are authorized or are obligated by
law, executive order or governmental decree to be closed.
"Closing Date" means ____________ __, 1995.
"Collateral Trust Agreement" means the collateral trust agreement, dated as
of the date hereof, among the Lender, the Collateral Trustee and the Trustee.
"Collateral Trustee" means Chemical Trust Company of California, not in its
individual capacity but solely as collateral trustee under the Collateral Trust
Agreement.
"Code" means the United States Internal Revenue Code of 1986 and the
corresponding provisions of any successor statute.
"Commencement Date" means the date on which the Vessel is accepted by the
Initial Charterer under the Initial Charter.
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"Commencement Notice" shall have the meaning assigned to such term in
Section 3.05(a) of this Agreement.
"Expenses" shall have the meaning assigned to such term in Section 5.04 of
this Agreement.
"Holder" means the Person in whose name a Security is registered in the
related securities register.
"Indentures" means the Indenture, dated as of ____________ 1, 1995 between
the Lender and the Trustee pursuant to which the Term Mortgage Notes will be
issued and the Indenture, dated as of ____________ 1, 1995 between the Lender
and the Trustee pursuant to which the Serial Mortgage Notes will be issued.
"Initial Charter" means with respect to each Vessel, the Bareboat Charter,
dated as of ____________ 1, 1995, between the Initial Charterer and the Owner.
"Initial Charterer" means Chevron Transport Corporation.
"Lender" means California Petroleum Transport Corporation.
"Loan Agreements" means the Loan Agreement, dated as of ____________ 1,
1995, between the Owner and the Lender, as it may be supplemented or amended
from time to time in accordance with its terms, pursuant to which the Lender
makes the Serial Loans to the Owner and the Loan Agreement, dated as of
____________ 1, 1995, between the Owner and the Lender, as it may be
supplemented or amended from time to time in accordance with its terms, pursuant
to which the Lender makes the Term Loan to the Owner.
"Loans" means, collectively, the Serial Loans and the Term Loan.
"Manager" means P.D. Gram & Co. as, a company organized under the laws of
the Kingdom of Norway.
"Mortgage" shall mean the First Preferred Ship Mortgage, dated the Closing
Date, from the Owner to the Lender.
"Nominated Brokers" means McQuilling Brokerage Partners, Inc. and ACM
Shipping Limited.
"Optional Termination Date" means the [8th, 10th, 12th or 14th] [9th, 11th,
13th or 15th] [10th, 12th, 14th or 16th] [11th, 13th or 15th] anniversary of the
Commencement Date.
"Owner" means CalPetro Tankers (Bahamas I) Limited, a company organized
under the laws of The Commonwealth of the Bahamas.
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"Payment Date" means each __________ and ____________, commencing
___________, 1995.
"Person" means an individual, a partnership, a corporation, a joint
venture, an unincorporated association, a joint-stock company, a trust, or other
entity or a government or any agency or political subdivision thereof.
"Purchase Agreement" means the Vessel Purchase Agreement, dated as of
_________________, 1995 between the Owner and the Initial Charterer wherein the
Owner purchases the Vessel from the Initial Charterer.
"Rating Agencies" means Moody's Investors Service, Inc., Standard & Poor's
Rating Group and Duff & Phelps Credit Rating Co.
"Registration Jurisdiction" means the jurisdiction in which the Vessel is
or will be registered.
"Remarketing Period" shall have the meaning assigned to such term in
Section 3.05(d) of this Agreement.
"Securities" means, collectively, the Term Mortgage Notes and the Serial
Mortgage Notes.
"Serial Mortgage Notes" means the Serial First Preferred Term Mortgage
Notes which will mature serially from _____________, 1996 to _____________, 2006
issued in the initial aggregate amount of $167,500,000 concurrently with the
offering of the Term Mortgage Notes.
"Serial Loans" means the loans from the Lender to the Owner in the amount
of $__________.
"State" means any state of the United States of America and, in addition,
the District of Columbia.
"Subsequent Charterer" shall have the meaning assigned to such term in
Section 3.02(a) of this Agreement.
"Substitute Charter" means a replacement charter after the termination of
the Initial Charter which is not an Acceptable Replacement Charter.
"Technical Adviser" means Barber Ship Management Group, a company organized
under the laws of the Kingdom of Norway.
"Term Loan" means the loan from the Lender to the Owner in the amount of
$__________.
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"Term Mortgage Notes" means __% First Preferred Mortgage Notes Due 2015 in
the initial aggregate amount of $117,900,000 issued by California Petroleum
under the Indenture.
"Termination Date" means the date on which the Initial Charter is
terminated by the Initial Charterer pursuant to the terms thereof.
"Termination Payment" means the payment made by the Initial Charterer
pursuant to the Initial Charter in the event the Initial Charterer elects to
terminate the Initial Charter on any Optional Termination Date.
"Trustee" means Chemical Trust Company of California, not in its individual
capacity but solely as indenture trustee under the Indentures.
"Vessel" means the m.t. ______________.
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