LOAN AGREEMENT for a secured multi-currency loan facility of up to US$30,000,000
EXHIBIT
10.14
Private
and confidential
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Dated: 29th May, 2006
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Staloudi
Shipping Corporation
-
and
-
Deutsche
Schiffsbank Aktiengesellschaft
TABLE
OF CONTENTS
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CLAUSE
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HEADINGS
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PAGE
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1.
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PURPOSE
AND LOAN AMOUNT
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1
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2.
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CURRENCY
DENOMINATION OF THE LOAN
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1
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3.
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DRAWDOWN
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4
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4.
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TERM
OF THE LOAN
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5
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5.
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INTEREST
AND INTEREST PERIODS
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5
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6.
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REPAYMENT
- PREPAYMENT
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8
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7.
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FEES-
COMMITMENT COMMISSION
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11
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8.
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PAYMENTS
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11
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9.
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COSTS,
EXPENSES AND DAMAGES
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12
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10.
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SECURITIES
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14
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11.
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INSURANCES
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15
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12.
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AVAILABILITY
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16
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13.
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EVENTS
OF XXXXXXX
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00
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00.
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REPRESENTATIONS
AND WARRANTIES - COVENANTS
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18
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15.
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JUDGEMENT
CURRENCY
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21
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16.
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WAIVERS
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22
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17.
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INVALIDITY-INCREASED
COST
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22
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18.
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SURVIVAL
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23
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19.
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FURTHER
ASSURANCE
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23
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20.
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NOTICES
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24
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21.
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ASSIGNMENT
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24
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22.
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MISCELLANEOUS
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24
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23.
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APPLICABLE
LAW
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25
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24.
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CHANGE
OF LAW
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25
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25.
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EXECUTION
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26
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| SCHEDULE |
| 1. |
NOTICE
OF DRAWING
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THIS
AGREEMENT
is made
this 29th day
of May, 2006
BETWEEN
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(1)
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STALOUDI
SHIPPING CORPORATION,
a
company organised and existing under the laws of the Republic of
Liberia
having its registered office at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx
(hereinafter the “Borrower”
which expression shall include its permitted successors and assigns);
and
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(2)
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DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT,
Bremen and Hamburg, acting through its office in Bremen, Xxxxxxx 00,
00000 Xxxxxx, Xxxxxxx Xxxxxxxx of Germany, (hereinafter called the
“Bank”
which expression shall include its successors and permitted
assigns).
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BY
WHICH IT IS AGREED
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1.
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PURPOSE
AND LOAN AMOUNT
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This
Agreement sets out the terms and conditions upon which the Bank will make
available to the Borrower a floating interest rate loan facility (with currency
option in relation to Tranche A only) in the sum of up to the lesser of
(i) US$30,000,000 (United States Dollars thirty million) (hereinafter
called the “Loan”
which
expression shall also mean the balance thereof at any time outstanding hereunder
and in the currencies it is then denominated) and (ii) 80% of the market
value of the Vessel as determined at around the time of the Drawdown Date
pursuant to Clause 10.3, for the purpose of partly financing the
construction cost of the Vessel (as hereinafter defined), such loan facility to
be made by way of two (2) Tranches as follows:
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(a)
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Tranche
A in the amount of up to Twenty five million five hundred thousand
Dollars
($25,500,000) or the equivalent thereof in an Alternative Currency
(hereinafter called “Tranche A”,
which expression shall also mean the balance thereof at any time
outstanding hereunder and in the currency it is then denominated);
and
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(b)
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Tranche
B in the amount of up to Four million five hundred thousand Dollars
($4,500,000) (hereinafter called “Tranche B”,
which expression shall also mean the balance thereof at any time
outstanding hereunder, and together with Tranche A, the “Tranches”).
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2.
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CURRENCY
DENOMINATION OF THE
LOAN
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2.1
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Subject
to the conditions and provisions of this Agreement, the whole amount
of
the Loan shall be advanced in Dollars or at the Borrower’s written request
Tranche A shall be advanced in another Alternative Currency as
provided in Clause 2.3 and Tranche B shall be advanced in
Dollars.
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2.2
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In
this Agreement the following terms shall have the meanings given
to them
below:
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“Alternative
Currency”
means
any of the Canadian Dollars, Dollars, Euro, Swiss Francs, Sterling Pounds and
Japanese Yen which are freely transferable
1
and
freely convertible and available to the Bank in the London Interbank
Eurocurrency Market or, as the case may be within the zone of the European
Economic and Monetary Union;
“Banking
Day”
means a
day (other than a Saturday or Sunday) on which banks and financial markets
in
London, Frankfurt/Main, Hamburg and Bremen are open for business and, in respect
of a day on which a payment is required to be made hereunder, a day on which
banks and financial markets are open for business in the main financial centre
of the country in which such payment is to be made;
“Canadian
Dollar”
or
“CAD”
means
the lawful currency of Canada;
“Conversion
Notice”
means a
notice given from time to time by the Borrower to the Bank for the conversion
of
the Tranche A at the spot or forward Rate of Exchange (as the case may be)
from one currency to another Alternative Currency for value on the first day
of
the next following Interest Period. In case of forward Conversion Notice the
Borrower may cancel and/or change the same until the third Banking Day before
the commencement of the next following Interest Period, bearing all costs and
expenses and losses in respect thereof;
“converted
into”
means
actually following a Conversion Notice from the Borrower or notionally converted
by the Bank (as the case may be) at the Rate of Exchange for purchase in the
German Foreign Exchange Market at 11:00 a.m. local time by Tranche A
of the currency in which Tranche A is then denominated with the currency in
which Tranche A is to be denominated at least three (3) Banking Days
before and for value on the commencement of the relevant Interest Period (as
the
case may be);
“Dollars”
and
“$”
means
the lawful currency for the time being of the United States of America in
immediately available and transferable funds or such other funds as are
customary for same day settlement of international Dollar
transactions;
“Drawdown
Date”
means
the date upon which the Borrower has requested that the Loan be advanced to
it
pursuant to Clause 3, or thereafter the date on which the Loan is actually
advanced to the Borrower hereunder;
“Euro”
and
“€“
means
the
lawful currency of the European Monetary Union as more particularly described
in
the Treaty in the European Union (Maastricht) 1992 and the Council
Regulation 235/97 as amended from 1 January, 1999 by 1103/1997 and
974/1998 and the relevant European Community and national
legislation;
“Interest
Period”
shall
have the meaning given to it in Clause 5.1;
“Japanese
Yen”
and
“JPY”
means
the lawful currency for the time being of Japan;
“Loan
Currency”
means in
relation to Tranche A, the currency in which Tranche A is from time to
time being denominated and in relation to Tranche B, Dollars;
2
“Manager”
means
for the time being Safety Management Overseas S.A., of Panama, having its
registered office in Panama and an office established in Greece (32 Xxxxxx
Xxxxxxxxx, XXXxx 00000, XX 00000 Xxxxx, Xxxxxx) pursuant to the Greek
laws 89/67, 378/68, 27/75 and 814/79 (as amended) or any other person
appointed by the Borrower, with the consent of the Bank, as the manager of
the
Vessel and includes its successors in title;
“Original
Dollar Amount”
means
such amount of principal which would then be outstanding (and whether or not
then payable) had the Loan at all times been denominated in Dollars as it would
have been reduced from time to time by repayments and prepayments under this
Agreement if the same had been made in Dollars;
“Pledged
Account”
means an
account of the Borrower or the Manager or any other company acceptable to the
Bank (hereinafter called the “Pledgor”)
opened
or to be opened with the Bank whereto the Pledged Deposit shall be deposited
and
maintained;
“Pledged
Deposit”
means,
an amount equal to fifteen per cent (15%) of the amount of the Loan outstanding
at any relevant time under this Agreement deposited into the Pledged
Account;
“Rate
of Exchange”
means
the spot or forward (as the case may be) rate of exchange for purchase in the
German Foreign Exchange Market at 11:00 hours (local time) of the relevant
date of one currency by another in the amount required for the relevant
transaction as such rate is determined by the Bank in its usual practice (in
respect of which rate the Bank shall be guided by and shall be as near as
possible to the rate of exchange published on the Reuters Screen at the relevant
time) and offered to the Borrower;
“Security
Documents”
shall
have the meaning given to them in Clause 10;
“Sterling
Pounds”
or
“₤”
means
the lawful currency of the United Kingdom;
“Swiss
Francs”
means
the lawful currency for the time being of Switzerland;
“Vessel”
means
the dry bulkcarrier of 87,000 dwt constructed at IHIMU Yokohama, Japan
delivered to the Borrower and registered in the ownership of the Borrower under
Cyprus flag with the name “STALO”.
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2.3
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Tranche A
(or such part thereof as the Borrower and the Bank shall agree) shall
be
advanced or converted into an Alternative Currency available to the
Bank
in the London Interbank Eurocurrency Market or, as the case may be
within
the zone of the European Economic and Monetary
Union.
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2.4
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The
advancing or maintaining of Tranche A (or a part thereof) in an
Alternative Currency is subject to the fact that the then applicable
currency regulations do not, in the reasonable opinion of the Bank,
adversely affect the position of the Bank in relation
thereto.
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2.5
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If
an Alternative Currency is not available (in the opinion of the Bank)
to
the Bank Tranche A (or the relevant part thereof) shall be
denominated in Euro.
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3
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2.6
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Provided
that the Borrower is not in default hereunder or under the Security
Documents and that the Bank has received from the Borrower a duly
signed
Conversion Notice not less than three (3) Banking Days prior to the
Drawdown Date or the end of the first and each following Interest
Period
for value on the first day of the next following Interest Period,
the Bank
shall convert Tranche A (or such part thereof as the Borrower and the
Bank shall agree) into an Alternative
Currency.
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2.7
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Tranche A
shall not be divided into more than two Alternative Currencies (including
Dollar) at any time and any notice specifying otherwise shall be
invalid.
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2.8
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In
the event that Tranche A (or a part thereof) is denominated in a
currency other than Dollars and the Bank should determine on the
last day
of each Interest Period and if such Interest Period is longer than
three
(3) months, at the end of each three-month interval(s) during such
Interest Period (the “Adjustment
Date(s)”)
that Tranche A when converted (notionally) into Dollars at the spot
Rate of Exchange is greater than 110% of the Original Dollar Amount
on
such day, the Borrower shall provide to the Bank such additional
securities as shall be acceptable to the Bank (and which shall equal
in
value the Excess Amount, and for the purposes of this
Clause “Excess
Amount”
shall mean that part of Tranche A, when Tranche A is converted
(notionally) into Dollars at the Spot Rate of Exchange on the relevant
day, by which exceeds the 105% of the Original Dollar Amount) and
shall
sign and execute such documents in respect thereof as it will be
required
under the applicable law(s) PROVIDED ALWAYS that if at any subsequent
Adjustment Date Tranche A when converted (notionally) into Dollars
falls below 105% of the Original Dollar Amount, the Bank shall at
the
request of the Borrower release such additional securities granted
to the
Bank hereunder.
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2.9
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The
Borrower shall be obliged to make all payments in respect of principal
of
each Tranche and interest thereon and other payments (or prepayments)
under this Agreement in respect of or by reference to the relevant
Tranche
(or such part thereof) in the relevant Loan
Currency.
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3.
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DRAWDOWN
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3.1
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The
Borrower may drawdown the full amount of the Loan on the Drawdown
Date and
in the currency(ies) specified in the Notice of Drawing referred
to in
Clause 3.2, such date being not later than 15th May,
2006 (the “Termination
Date”)
or such later date as the Bank in its sole discretion may agree in
writing. Any portion of the Loan not drawn by the Termination Date
shall
be cancelled and shall thereafter not be available to the Borrower,
unless
the parties hereto agree otherwise.
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3.2
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The
Borrower may make a request for the advance of the Loan by sending
to the
Bank a duly completed Notice of Drawing substantially in the form
of
Schedule 1 hereto (which shall be revocable up until the fourth
Banking day, prior to the specified Drawdown Date - whereafter it
will be
irrevocable) to be received by the Bank not later than 12:00 a.m.
(Hamburg/Bremen time) three (3) Banking Days prior to the Drawdown
Date.
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4
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4.
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TERM
OF THE LOAN
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4.1
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The
Loan is to be made available to the Borrower for a period commencing
on
the Drawdown Date and ending, subject to the terms and conditions
of this
Agreement, ten (10) years
thereafter.
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4.2
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The
period commencing on the date hereof and terminating upon all the
moneys
payable or to become payable at any time pursuant to this Agreement
and/or
the Security Documents shall have been paid and discharged in full
is
herein called the “Security
Period”.
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5.
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INTEREST
AND INTEREST PERIODS
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5.1
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The
Borrower shall pay interest on the Loan (or such relevant part) in
respect
of each Interest Period relating thereto (hereinafter the “Interest”)
on the last day of such Interest Period at the rate per annum determined
by the Bank to be the aggregate (hereinafter the “Basic
Rate”)
of:
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(a)
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in
the case the Loan or any part thereof is denominated in Dollars or
an
Alternative Currency: (i) the Margin and (ii) Libor;
and
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(b)
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in
the case Tranche A or any part thereof is denominated in
Euro: (i) the Margin and
Euribor.
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5.2
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In
this Agreement:
|
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(a)
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“Interest
Period”
shall mean each period for the calculation of Interest in respect
of the
Loan (or such part thereof) ascertained in accordance with Clause 5.3
and 5.4;
|
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(b)
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“Margin”
shall mean zero point fifty five per centum (0.55%) per
annum;
|
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(c)
|
“Libor”
shall mean the rate of interest applicable to the Loan (or the relevant
part thereof) for each Interest Period relative thereto and being
the rate
per annum determined by the Bank to be equal (rounded upwards, if
necessary, to the nearest one sixty-fourth of one per centum (1/64%))
to
the offered rate for deposits in Dollars or, as the case may be,
the
relevant for a term co-extensive with such Interest Period as set
forth on
the Reuters Page FRBD at approximately 11:00 a.m. London time on the
second Banking Day prior to the commencement of such Interest Period;
provided
always
that if such offer rate is not available, for whatsoever reason,
on the
Reuters Page FRBD at approximately 11:00 a.m. London time then Libor
for such Interest Period shall mean the rate per annum determined
by the
Bank to be the arithmetic mean (rounded upwards, if necessary, to
the
nearest one sixty-fourth of one per centum (1/64%)) of the rates
communicated by the Reference Banks to the Bank as the rates at which
each
such Reference Bank would offer a deposit in Dollars or, as the case
may
be, the relevant Alternative Currency for a period equal to such
Interest
Period in an amount equivalent to or comparable with the amount of
the
Loan or the relevant part (thereof) to prime banks in the London
Interbank
Market at approximately 11:00 a.m. London time on the second Banking
Day prior
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5
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to
the commencement of such Interest Period; provided
always,
that if any of the Reference Banks fails so to communicate a rate,
Libor
shall be determined by reference to the rate or rates offered by
the
remaining Reference Bank or Reference
Banks;
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(d)
|
“Euribor”
means, in relation to a particular period and to amounts denominated
in
Euro:
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(i)
|
the
rate for deposits in Euro equivalent to or comparable to the amount
of
Tranche A (or the relevant part thereof) for a period equivalent to
such period at or about 11:00 a.m. (Brussels time) on the second
Banking Day before the first day of such period as displayed on Reuters
page 284 Euribor
(or such other page as may replace such page 000 Xxxxxxx)
on such system or on any other system of the information vendor for
the
time being; and
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(ii)
|
if
on such date no such rate is so displayed, Euribor for a period equivalent
to such period shall be the arithmetic mean (rounded upwards, if
necessary, to one sixty-fourth of one per centum (1/64%)) of the
rates
quoted to the Bank by each of the Reference Banks at the request
of the
Bank as such Reference Bank’s offered rate per annum to prime banks within
the zone of the European Economic and Monetary Union for deposits
in Euro
for an amount approximately equivalent to or comparable with the
amount to
which Euribor is to be determined at 11:00 a.m. (Brussels time) on
the second Banking Day prior to the beginning of such period for
delivery
on the first day of that period and for the number of days comprised
therein; and
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(e)
|
“Reference
Banks”
shall mean Deutsche Schiffsbank Aktiengesellschaft, The Royal Bank
of
Scotland, Plc. and Barclays Bank
Plc.
|
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5.3
|
The
Borrower may by written notice to the Bank not later than 11:00 a.m.
(Hamburg time) three (3) Banking Days prior to the Drawdown Date and
thereafter on the second Banking Day prior to the commencement of
each
Interest Period select at its option in relation to the Loan (but
not in
relation to a part thereof) whether the length of the ensuing Interest
Period shall be of one (1), three (3), six (6) or twelve (12) months
or request an Interest Period of a different duration to which the
Bank,
in this case at its option, may
agree.
|
If
the
Borrower fails to make a selection or request in respect of an Interest Period
in accordance with the provisions of this Clause, the Borrower shall be deemed
to have selected for such an Interest Period either a duration of six
(6) months or, in case that funds in the amount of the Loan are not
available for six (6) months, any other of the aforesaid periods which the
Bank may reasonably and in good faith determine.
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5.4
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The
first Interest Period in respect of the Loan shall commence on the
Drawdown Date and subsequent Interest Periods shall commence forthwith
upon the expiry of the previous Interest Period. Interest shall be
calculated on the Loan as from the commencing date of each Interest
Period
to the last day of such Interest Period and shall be paid on the
last day
of such Interest
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6
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Period
or, in the case of Interest Periods of more than six (6) months, by
instalments, the first such instalment being payable six (6) months
from the commencement of the Interest Period and the subsequent
instalments at intervals of six (6) months thereafter or, if shorter,
the period from the date of the preceding instalment until the last
day of
the relevant Interest Period.
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5.5
|
In
the event that a Repayment Instalment or Instalments (as such terms
are
defined hereinafter) fall due on a day of an Interest Period other
than
the last day of such an Interest Period, the Interest to be paid
by the
Borrower in relation to such an Interest Period shall be the aggregate
of
(i) the interest accruing on the Repayment Instalment or Instalments
from the beginning of such Interest Period to the date when each
such
Repayment Instalment was made and (ii) the Interest accruing on the
balance of the Loan (namely the amount of the Loan outstanding after
the
Repayment Instalment or Instalments have been made) from the date
when the
last such Repayment Instalment was made during the Interest Period
in
question to the last day of such an Interest
Period.
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5.6
|
In
the event that the Borrower fails to pay on its due date any amount
payable under this Agreement (other than of disbursements and expenses
referred to in Clause 9.5) the Borrower shall pay interest
(hereinafter “Default
Interest”)
on such sum, on demand, from the due date thereof up to the date
of actual
payment, at a rate (hereinafter “Default
Rate”)
determined by the Bank to be the aggregate of (i) one per centum
(1%) p.a. and (ii) the funding cost of the Bank. If for the
reason specified in Clause 5.7(b) the Bank is unable to determine a
rate in accordance with the provisions of this Clause 5.6, the
Default Interest on any sum not paid on its due date for payment
shall be
calculated at a rate determined to be one and one half per centum
per
annum (1-1/2%) above the aggregate of (i) the Margin and
(ii) the cost of funds to the
Bank.
|
|
5.7
|
If
two Banking Days, prior to the commencement of an Interest Period,
including the initial Interest Period, the Bank shall reasonably
determine
(such reasonable determination to be conclusive and binding upon
the
Borrower) that:
|
|
(a)
|
the
relevant Loan Currency will not be available to the Bank in such
amounts
as are required for the funding of the Loan or the relevant part
thereof
for such Interest Period, or
|
|
(b)
|
by
reason of changes affecting the London Interbank Eurocurrency Market
or,
as the case may be within the zone of the European Economic and Monetary
Union adequate and fair means do not exist for ascertaining Libor,
or
Euribor, or
|
|
(c)
|
the
applicable currency regulations do forbid, aggravate or restrict
the
granting or maintaining of the Loan or the relevant part thereof
in the
relevant Loan Currency, or
|
|
(d)
|
the
rate at which deposits in the relevant Loan Currency are offered
by the
Reference Banks to prime banks in London doesn’t accurately reflect the
cost of the Bank of making or maintaining the Loan or the relevant
part
thereof during such Interest
Period,
|
7
then
the
Bank shall forthwith give notice thereof to the Borrower, and the Borrower
and
the Bank shall enter into negotiations in order to find a mutually satisfactory
alternative basis for the advance or, as the case may be, the continuation
of
the Loan. This alternative basis may include alternative currencies, alternative
interest rates or alternative interest periods, but shall include a margin
above
the cost of the funds to the Bank equal to the Margin. If within thirty
(30) days from the notice of the Bank being received by the Borrower the
parties hereto have not agreed on any such alternative basis, the Loan shall
be
(i) if not advanced, cancelled or (ii) if advanced, repaid. The
Borrower shall have the right to repay the Loan, without premium or penalty,
on
the last day of such thirty-days or, if agreed by the parties hereto, earlier,
together with accrued interest thereon calculated on a daily basis from the
expiry of the Interest Period in question up to the date of such repayment
at a
rate being the aggregate of (i) the Margin, (ii) the rate, or
arithmetic means of rates, at which the Bank was able to fund the Loan from
time
to time during the period of negotiations and (iii) all other amounts due
under this Agreement.
|
5.8
|
Interest
and Default Interest shall be calculated on the basis of exact number
of
days elapsed and a year of 360 days unless Tranche A is
denominated in Pounds Sterling being the lawful currency of the United
Kingdom for the time being in which case Interest and Default Interest
shall be calculated on the basis of exact number of days elapsed
and a
year of 365 days.
|
|
6.
|
REPAYMENT
- PREPAYMENT
|
|
6.1
|
The
Loan shall be repaid as follows: (i) Tranche A by (i) twenty
(20) consecutive semi-annual Repayment Instalments, commencing with
the first Repayment Instalment on the date falling six (6) months
from the Drawdown Date; each of such Repayment Instalments shall
be in the
amount of $637,500 (six hundred thirty seven thousand five hundred)
or its
equivalent in the Alternative Currency in which Tranche A is at the
relevant time denominated, (ii) by an additional payment of
$12,750,000 (twelve million seven hundred fifty thousand) or its
equivalent in the Alternative Currency in which Tranche A is at the
relevant time denominated (the “Tranche A
Balloon Instalment”)
which shall be payable together with the last Repayment Instalment
one
hundred and twenty (120) months from the Drawdown Date (the
“Final
Maturity Date”)
and (b) Tranche B by (i) twenty (20) consecutive
semi-annual Repayment Instalments, commencing with the first Repayment
Instalment on the date falling six (6) months from the Drawdown Date;
each of such Repayment Instalments shall be in the amount of $112,500
(one
hundred twelve thousand five hundred), (ii) an additional payment of
$2,250,000 (two million two hundred fifty thousand) (the “Tranche B
Balloon Instalment”
and together with the Tranche A Balloon Instalment, the “Balloon
Instalments”)
which shall be payable together with the last Repayment Instalment
one
hundred and twenty (120) months from the Drawdown
Date.
|
Provided
always,
that:
|
(i)
|
For
the purpose of calculating the amount of each Repayment Instalment
of
Tranche A (or the relevant part thereof) in case of conversion of
|
8
|
Tranche
A (or the relevant part thereof) from one currency into another currency,
the following provisions shall
apply:
|
|
aa)
|
in
case the whole (but not part only) of Tranche A is at any time converted
into one currency, the amount to be repaid on each Repayment Date
subsequent to such conversion shall be equivalent to the percentage
(which, in this Clause 6.1, is referred to as the “Relevant
Repayment Percentage”)
of the amount of Tranche A (outstanding prior to the payment of the
relevant Repayment Instalment) set out in column 3 of the table below
opposite to such Repayment Instalment (or such other percentages
or
amounts respectively as the Borrower may reasonably request and the
Bank
in its absolute discretion may from time to time agree) converted
at the
Rate of Exchange applied on the conversion of Tranche A in such
currency; and
|
|
bb)
|
in
case Tranche A is at any time denominated in two currencies, the
amount to be repaid on each Repayment Date subsequent to the relevant
conversion in respect of each part of Tranche A, as a proportion of
the Relevant Repayment Percentage of Tranche A, shall be the same as
the proportion of Tranche A which such part represents converted at
the Rate of Exchange applied on the conversion of such part of
Tranche A in the relevant
currency:
|
|
(1)
Repayment
Instalment
Number
|
(2)
Number
of
months
from the
Drawdown
Date
|
(3)
Relevant
Repayment
Percentage
(%) of the
amount
of Tranche A
(prior
to repayment
due
on such date)
|
(4)
Estimated
Original
Dollar
Amount
(after
repayment
due
on such date)
|
|||
|
1
|
6
|
2,5000
|
24,862,500
|
|||
|
2
|
12
|
2,5641
|
24,225,000
|
|||
|
3
|
18
|
2,6316
|
23,587,500
|
|||
|
4
|
24
|
2,7027
|
22,950,000
|
|||
|
5
|
30
|
2,7778
|
22,312,500
|
|||
|
6
|
36
|
2,8571
|
21,675,000
|
|||
|
7
|
42
|
2,9412
|
21,037,500
|
|||
|
8
|
48
|
3,0303
|
20,400,000
|
|||
|
9
|
54
|
3,1250
|
19,762,500
|
|||
|
10
|
60
|
3,2258
|
19,125,000
|
|||
|
11
|
66
|
3,3333
|
18,487,500
|
|||
|
12
|
72
|
3,4483
|
17,850,000
|
|||
|
13
|
78
|
3,5714
|
17,212,500
|
|||
|
14
|
84
|
3,7037
|
16,575,000
|
|||
|
15
|
90
|
3,8462
|
15,937,500
|
|||
|
16
|
96
|
4,0000
|
15,300,000
|
|||
|
17
|
102
|
4,1667
|
14,662,500
|
|||
|
18
|
108
|
4,3478
|
14,025,000
|
|||
|
19
|
114
|
4,5455
|
13,387,500
|
|||
|
20
|
120
|
100,0000
|
Ø
|
9
|
(i)
|
that
in case the amount of the Loan drawn by the Borrower is less than
$30,000,000 then the amount of each of the Repayment Instalments
and the
Balloon Instalments shall be reduced pro-rata;
and
|
|
(ii)
|
on
the Final Maturity Date the Borrower shall pay to the Bank any and
all
amounts then outstanding or payable under this Agreement and the
Security
Documents including, but without limitation, any exposure from currency
fluctuations pursuant to
Clause 2.
|
In
this
Agreement “Repayment
Instalments”
shall
mean the twenty (20) consecutive semi-annual instalments described in this
Clause 6.1 and in the singular shall mean any of them.
|
6.2
|
The
Borrower may prepay without premium or penalty the whole or any part
of
the Loan on the last day of any Interest Period relating thereto,
provided
that:
|
|
(a)
|
the
Bank shall have received from the Borrower not less than 10 Banking
Days
prior written notice of its intention to make such
prepayment;
|
|
(b)
|
the
amount of any such partial prepayment shall be equal to the amount
of a
Repayment Instalment or the equivalent thereof in the relevant Loan
Currency or a higher integral multiple
thereof;
|
|
(c)
|
no
amount prepaid can be re-borrowed;
|
|
(d)
|
each
prepayment shall be made together with accrued interest on the amount
prepaid and all other sums payable thereon under the terms of this
Agreement and if such prepayment is not made on the last day of an
Interest Period relating to the amount prepaid together with any
loss the
Bank has suffered as a result of such a prepayment being made on
a date
other than the last day of an Interest Period and, for the purpose
of this
Clause, shall mean the difference between the applicable Libor or
(as the
case may be) Euribor rate for the relevant Interest Period and the
interest rate the Bank may obtain by depositing the amount so prepaid;
and
|
|
(e)
|
the
amount of any such partial prepayment shall be applied against the
Repayment Instalments outstanding at the time of such prepayment
in direct
order of maturity.
|
|
6.3
|
In
case the Vessel becomes a Total Loss or suffers damage or is involved
in
an incident which may, in the reasonable opinion of the Bank, result
in
the Vessel being subsequently determined to be a Total Loss (i) prior
to the Drawdown Date, this Agreement shall be cancelled or (ii) in
case the Loan has been already advanced, the Borrower shall prepay
the
Loan, without penalty, premium or prepayment fee, within one hundred
and
twenty (120) days of such Total Loss or, as the case may be, after
the
date on which the incident which may, in the reasonable opinion of
the
Bank, result in the Vessel being subsequently determined to be a
Total
Loss occurred or, if earlier, on the date upon which the insurance
proceeds in respect of such Total Loss are or Requisition Compensation
is
received by the Borrower (or the Bank pursuant to the Security
|
10
|
Documents),
together with accrued interest to the date of prepayment and all
other
sums including, without limitation, any amounts payable by the Borrower
to
the Bank under this Agreement and the Security Documents. For the
purpose
of this Agreement a Total Loss shall be deemed to have
occurred:
|
|
(a)
|
in
the case of an actual total loss of the Vessel, on the actual date
and at
the time the Vessel was lost or, if such date is not known, on the
date
the Vessel was last reported;
|
|
(b)
|
in
the case of constructive total loss of the Vessel, on the actual
date and
at the time notice of abandonment of the Vessel is given to the insurers
of the Vessel for the time being, (provided a claim for total loss
is
admitted by such insurers) or, if such insurers do not admit such
a claim,
at the date and at the time at which a total loss is subsequently
and
finally adjudged by a competent court of law to have
occurred;
|
|
(c)
|
in
the case of a compromised or arranged total loss, on the date upon
which a
binding agreement as to such compromised or arranged total loss has
been
entered into by the insurers of the
Vessel;
|
|
(d)
|
in
the case of requisition of title or other compulsory acquisition,
on the
date upon which the relevant requisition of title or other compulsory
acquisition occurs (hereinafter “Compulsory
Acquisition”);
and
|
|
(e)
|
in
the case of hijacking, theft, condemnation, confiscation capture,
detention or seizure of the Vessel (other than where the same amounts
to
compulsory acquisition of the Vessel) by any government entity, which
deprives the Borrower of the use of the Vessel, on the expiry of
the
period of sixty (60) days following the date upon which the relevant
hijacking, theft, condemnation confiscation, capture, detention or
seizure
occurred.
|
|
7.
|
FEES-
COMMITMENT COMMISSION
|
|
7.1
|
The
Bank will charge to the Borrower an arrangement fee of $55,000 (Dollars
fifty five thousand) which is due and payable on the Drawdown
Date.
|
|
8.
|
PAYMENTS
|
|
8.1
|
Unless
otherwise agreed by the Bank all moneys owed by the Borrower hereunder
are
payable in the currency in which they have become due and are payable
free
and clear of any deductions of whatsoever nature to such account
and with
such bank as the Bank shall notify to the Borrower from time to
time.
|
|
8.2
|
The
Borrower shall continue to be under its payment obligation pursuant
hereto
until the relevant amount due has been credited to the account notified
by
the Bank to the Borrower in accordance with
Clause 8.1.
|
|
8.3
|
In
case a payment date is not a Banking Day at the place where such
payment
is to be made then the payment shall be made on the first following
Banking Day unless the first following Banking Day falls in the next
succeeding calendar month in which case the payment shall be made
on the
preceding Banking Day.
|
11
|
8.4
|
All
moneys received by the Bank under or pursuant to this Agreement and/or
any
of the Security Documents shall be applied by the Bank in the following
manner:
|
|
(a)
|
firstly:
in or towards payment of all unpaid fees and expenses which may be
owing
to the Bank under this Agreement or any of the Security
Documents;
|
|
(b)
|
secondly:
in or towards payment of any arrears of interest owing in respect
of the
Loan or any part thereof;
|
|
(c)
|
thirdly:
in or towards repayment of the
Loan;
|
|
(d)
|
fourthly:
in or towards payment to the Bank of any loss suffered by reason
of any
such payment in respect of principal not being effected on the last
day of
the Interest Period relating to the part of the Loan
repaid;
|
|
(e)
|
fifthly:
in or towards payment to the Bank of any other sums owing to it under
any
of the Security Documents; and
|
|
(f)
|
sixthly:
the surplus (if any) shall be paid to the Borrower or to whomsoever
else
may be entitled to receive such
surplus.
|
|
9.
|
COSTS,
EXPENSES AND DAMAGES
|
|
9.1
|
Subject
to the provisions of this Agreement, the Borrower undertakes to pay
to the
Bank on demand:
|
|
(a)
|
all
reasonable expenses (including legal, printing and out-of-pocket
expenses)
incurred by the Bank in connection with the negotiation, preparation,
execution and, where relevant registration of this Agreement and
any of
the Security Documents (as hereinafter defined);
and
|
|
(b)
|
all
reasonable expenses (including legal and out-of-pocket expenses)
incurred
by the Bank in contemplation of, or preservation of any rights under,
this
Agreement and/or any of the Security Documents (as hereinafter defined),
or otherwise in respect of the moneys owing under this Agreement
and/or
any of the Security Documents (as hereinafter
defined);
|
Provided
always,
that
any expenses incurred by virtue of Clause 17 hereof coming into operation
shall be equally borne by the Borrower and the Bank.
|
9.2
|
The
Borrower shall bear all state and local taxes and dues which are
levied
outside the Federal Republic of Germany on the capital, the repayments,
the interest and other payments, today or in future related to this
Loan.
This provision concerns all taxes and dues of any kind, whether of
direct
or indirect personal or real character (as e.g. withholding tax,
income
tax, capital tax, trade tax and turnover tax), whether they are levied
on
any payment made by the Borrower to the Bank under and in accordance
with
the terms of this Agreement and/or any of the Security Documents
(as
hereinafter defined) or on the property mortgaged to the Bank by
the
Borrower for reason of any legal or real events (herein collectively
referred to as “taxes”).
This provision must be understood in its
|
12
|
broadest
sense so as to entitle the Bank which fixes the rate of interest
without
regard to any non-German taxes, to pass on to the Borrower any taxes
accruing outside the Federal Republic of Germany. Such taxes and
dues will
be charged to the Borrower also if for reason of any legal or
authoritative regulations they are to be collected from the Bank.
Such
taxes and dues collected from the Bank must be reimbursed by the
Borrower
within thirty (30) days after it is informed to this effect. Any
failure of the Borrower to remit to the Bank full payments required
hereunder for any reason whatsoever shall constitute a default for
non-payment as defined under
Clause 13.
|
|
9.3
|
Within
thirty days of each payment by the Borrower hereunder of tax or in
respect
of taxes, the Borrower shall deliver to the Bank evidence satisfactory
to
the Bank (including all relevant tax receipts) that such tax has
been duly
remitted to the appropriate
authority.
|
|
9.4
|
If
the Bank should become liable to any tax (other than on overall income
or
aggregate property) or be subject to any reserve requirement against
any
assets of, deposits with or loans by the Bank or special deposit
requirement the result of which will be to increase the cost to the
Bank
of making or maintaining the Loan or to reduce the amounts of moneys
otherwise receivable by the Bank hereunder in either case by an amount
the
Bank shall deem material, then the Borrower will pay to the Bank
on demand
such additional interest on the Loan as will compensate the Bank
for such
additional cost or such reduction (as the case may
be).
|
|
9.5
|
All
amounts so disbursed or expended by the Bank shall bear interest
at 1%
p.a. over the Bank’s funding cost from the 31st
day after receipt of the relevant invoice by the Borrower until the
time
of refunding or repayment thereof.
|
|
9.6
|
In
case interest for the Loan has been fixed and the Borrower does not
take
the Loan or any part thereof or does not meet with the agreed conditions
precedent set out in Clause 12 or the Bank for one of the reasons
mentioned under Clause 13 refuses disbursement of the Loan or the
Bank prematurely demands repayment of the Loan or any part thereof
in
accordance with the terms of this Agreement, the Bank is entitled
either
to insist on performance or to withdraw from this Agreement and to
claim
damages for non-performance.
|
|
9.7
|
The
Borrower shall on demand (and it is hereby expressly undertaken by
the
Borrower to) indemnify the Bank, without prejudice to any of the
other
rights of the Bank under any of the Security Documents, against any
expense or loss, which the Bank shall prove as sustained or incurred
as a
consequence of:
|
|
(i)
|
in
liquidating or employing deposits from third parties acquired or
arranged
to fund or maintain all or any part of the Loan and/or any overdue
amount
(or an aggregate amount which includes the Loan or any overdue amount);
and
|
|
(ii)
|
in
terminating, or otherwise in connection with, any interest and/or
currency
swap or any other transaction entered into (whether with another
legal
entity or with another office or department of the Bank) to hedge
any
exposure arising under this Agreement or that part which the Bank
determines is fairly attributable to this
|
13
|
Agreement
of the amount of the liabilities, expenses or losses (including losses
of
prospective profits) incurred by it in terminating, or otherwise
in
connection with, a number of transactions of which this Agreement
is
one.
|
|
10.
|
SECURITIES
|
|
10.1
|
To
secure all its obligations under this Agreement, the Borrower shall
execute and deliver and/or shall procure the execution and delivery
to the
Bank (as the case may be) of the following Security Documents (as
hereinafter defined) and notices all to be substantially in the form
of
the relevant Schedules attached
hereto:
|
|
(a)
|
Mortgage
|
a
first
priority statutory Cyprus ship mortgage over the Vessel and the Deed of Covenant
supplemental thereto (herein together referred to as the “Mortgage”).
|
(b)
|
Assignment
of Vessel’s Insurances, Earnings and Requisition
Compensation
|
In
relation to the Vessel, a first priority assignment in respect of: (i) All
claims and benefits under all insurance policies and Protection and Indemnity
Insurances and the proceeds thereof which have been or will be arranged pursuant
to the terms hereof and of the Mortgage. The Borrower shall execute and deliver
notices of assignment and cause the Vessel’s insurers to attach such notice to
the insurance policies. (ii) All charter hire, freights and other earnings
or income or claims for income of the Vessel or any other amount due or to
become due under any charter or other employment contract (including
compensation or other indemnity) (herein “Earnings”).
The
Bank is entitled to notify such assignment to any relevant party at any time
during the Security Period (as hereinafter defined). (iii) All sums of
money or other compensation from time to time payable by reason of requisition
for title or other compulsory acquisition of the Vessel, otherwise than by
requisition for hire. (All the aforesaid assignments hereinafter referred to
as
the “Assignment”);
|
(c)
|
Manager’s
Undertaking
|
an
undertaking (the “Manager’s
Undertaking”)
to be
executed by the Manager in favour of the Bank, whereby the Manager would agree
to subordinate all and any claims it may have against the Borrower and/or the
Vessel under the relevant Management Agreement or otherwise, to the claims
and
rights of the Bank pursuant to this Agreement, such undertaking to be in form
satisfactory to the Bank; and
|
(d)
|
Account
Pledge Agreement
|
an
agreement to be made between the Pledgor and the Bank for the creation of a
pledge in favour of the Bank over the Pledged Account, in form to be agreed
between the Bank and the Borrower and the Pledgor.
14
|
10.2
|
The
Mortgage, the Assignment, the Account Pledge Agreement and the Manager’s
Undertaking and as the context may require this Agreement and any
other
documents which may now or hereafter be executed as security for
the
repayment of the Loan, interest thereon and Default Interest and
any other
moneys payable hereunder and under the Security Documents are herein
collectively referred to as “the
Security Documents”.
|
|
10.3
|
The
Borrower hereby undertakes that if the aggregate of (i) the market
value of the Vessel as established by an expert valuer mutually accepted
to the Bank and the Borrower at the end of June and December of each
year
during the Security Period (provided that any such valuation is considered
necessary by the Bank) and (ii) the market value of any additional
security for the time being actually provided to the Bank pursuant
to
Clauses 2.8 and 10.3 (excluding the Pledged Deposit) falls below One
hundred and twenty percent (120%) of the Loan it will within fifteen
days
of being notified by the Bank to the Borrower of such shortfall
either:
|
|
(a)
|
provide
the Bank with additional pledged cash deposits in favour of the Bank
in an
amount equal to such shortfall in an account and manner to be determined
by the Bank; or
|
|
(b)
|
prepay
(subject to, and in accordance with Clause 6) such part of the Loan
as will ensure that the aggregate of (i) the market value (determined
as aforesaid) of the Vessel and (ii) the market value of any such
additional security is after such prepayment at least One hundred
and
twenty percent (120%) of the Loan.
|
|
11.
|
INSURANCES
|
|
11.1
|
The
Borrower must at its cost and expense, and in accordance with the
provisions of this Agreement and of the Mortgage, effect prior to
Drawdown
Date and maintain during the whole Security Period the insurances
(herein
“Insurances”)
in respect of the Vessel on terms and conditions and with brokers
and
insurers acceptable to the Bank covering her market value but in
any event
in an amount not less than 115% of the Loan
against:
|
|
·
|
hull
and machinery marine and other associated risks in the London/New
York and
European Markets;
|
|
·
|
war
risks with the Hellenic Mutual War Risks
Association;
|
|
·
|
protection
and indemnity (including the usual oil pollution as provided in
Clause 5.1(b) of the Deed of Covenant referred to in
Clause 10.1(a)) risks with a protection and indemnity association
which is a member of the International Group of P&I
Clubs;
|
|
·
|
(when
applicable) lay-up insurance
|
|
·
|
and
otherwise as set forth in more detail in the
Mortgage.
|
|
11.2
|
At
the expense of the Borrower, the Bank will take out during the Security
Period a mortgagee’s interest insurance on the London Market and on
conditions
|
15
|
acceptable
to the Bank in an amount equal to 110% of the amount of the Loan,
provided
however,
that the cost of such insurance shall not exceed the cost which the
Borrower would have incurred, had the Borrower taken such insurance
on the
same conditions of cover through its own London broker, and provided
further,
that if the Bank decides to effect such insurance on other conditions
(German wording) the Bank shall pay the difference (if any) of the
cost of
such insurance cover and the London market
cover.
|
|
11.3
|
If
the Vessel navigates in an “additional Premium Area” as declared from time
to time by the Hellenic Mutual War Risks Association or by insurance
underwriters, the Borrower will (a) take out appropriate insurance
cover and (b) notify the Bank. Failure of the Borrower to notify the
Bank will not constitute an Event of
Default.
|
|
12.
|
AVAILABILITY
|
|
12.1
|
The
Loan will be made available as soon as the Borrower has complied
with the
following conditions:
|
|
(a)
|
the
Borrower shall have accepted the terms hereof, such acceptance to
be
evidenced by the execution of this Agreement by a duly authorised
officer
or attorney on the Borrower’s
behalf;
|
|
(b)
|
the
Bank shall have obtained sufficient proof that the Borrower is duly
constituted and is legally existing and in good standing pursuant
to the
laws of the place of its
incorporation;
|
|
(c)
|
the
Bank shall have received (i) a copy, certified by the Secretary or
the Assistant Secretary or a Director of the Borrower to be a true
and
complete copy, of resolutions of the Board of Directors of the Borrower
authorising execution of this Agreement and the Security Documents
to
which it is or is to be a party as well as all other relevant documents
and (ii) the original of any Power of Attorney issued by the Borrower
pursuant to the aforesaid
resolutions;
|
|
(d)
|
the
Bank shall have received evidence satisfactory to it that the Vessel
is
duly registered and documented in the name of the Borrower under
Cyprus
flag free and clear of any encumbrances, liens and debts of any kind
or
nature whatsoever with the exception of the Mortgage and the
Assignment;
|
|
(e)
|
the
agreed Security Documents and notices referred to hereinabove have
been
duly executed by authorised signatories, registered in accordance
with the
relevant laws of the place of registration and delivered to the Bank’s
lawyers;
|
|
(f)
|
the
Bank shall have received evidence satisfactory to it, that the Insurances
in respect of the Vessel have been effected in accordance with the
provisions of this Agreement and the Mortgage and are in effect and
that
the interest of the Bank in respect of such Insurances has been duly
noted;
|
16
|
(g)
|
the
Bank shall have obtained copies of all class certificates in respect
of
the Vessel;
|
|
(h)
|
the
Bank or its lawyer shall have received evidence that all relevant
governmental or quasi governmental approvals, consents or licenses
as
referred to herein or otherwise required in respect of the Loan and
its
repayment to the Bank have been obtained and are in full force and
effect;
|
|
(i)
|
the
Bank shall have received all such further documents including legal
opinions as the Bank may deem reasonably
necessary;
|
|
(j)
|
the
Bank shall have received a copy (duly certified to be a true and
complete)
of the management agreement (herein the “Management
Agreement”)
in respect of the Vessel entered into between the Borrower and the
Manager; and
|
|
(k)
|
the
written confirmation (in terms satisfactory to the Bank) that the
person
named in Clause 23.1 has accepted its appointment by the Borrower and
the Manager as their agent for the acceptance of service of legal
process
in respect of any proceedings hereunder and under the Security
Documents.
|
|
13.
|
EVENTS
OF DEFAULT
|
|
13.1
|
The
Bank may by notice given to the Borrower declare that all amounts
outstanding under this Agreement shall become immediately due and
payable
and any obligation of the Bank to make further advances shall cease
automatically without any further act on the part of the Bank, if
one or
more of the following events (herein “Event(s)
of Default”)
shall occur:
|
|
(a)
|
if
the Borrower fails to pay when is due any instalment of principal
or
interest or other sums payable hereunder;
or
|
|
(b)
|
if
the Borrower materially defaults in the performance or observance
of any
other obligation, covenant, agreement, term, undertaking, condition
or
provision contained in this Agreement and the Security Documents
and such
default is not remedied within fourteen (14) days after it was
brought to the Borrower’s attention;
or
|
|
(c)
|
if
any representation or warranty made in this Agreement or in any of
the
Security Documents or in any certificate, statement or other document
delivered in connection with the execution and delivery hereof or
thereof
shall prove to have been incorrect in any material respect when made;
or
|
|
(d)
|
if
the Borrower becomes insolvent or bankrupt or becomes unable to pay
its
debts as they mature or makes any composition with or assignment
for the
benefit of its creditors or applies for or consents to or sustains
the
appointment of an insolvency trustee or receiver in respect of its
assets
or a substantial part thereof or ceases or threatens to cease to
carry on
business; or
|
17
|
(e)
|
if
the Loan or any part thereof has not been utilised for its intended
purpose; or
|
|
(f)
|
if
the Vessel without prior written approval of the Bank is sold or
otherwise
disposed with or abandoned (with the exception of a Total Loss),
during
the Security Period; or
|
|
(g)
|
if
any other loan granted to the Borrower is in default;
or
|
|
(h)
|
if
the Borrower fails to execute and deliver any amendment to the Mortgage
or
any other Security Document to which is or is to be a party or other
instrument reasonably judged necessary or expedient by the Bank to
effectuate the intent of this Agreement to the satisfaction of the
Bank;
or
|
|
(i)
|
if
it becomes unlawful for the Borrower to pay its debts under the relevant
Security Documents; or
|
|
(j)
|
if
the Mortgage does not receive the agreed priority or if its legal
validity
or priority is contested and defeated;
or
|
|
(k)
|
if
the Borrower’s assets pass to any person or company by way of universal
succession without the prior written approval of the Bank;
or
|
|
(l)
|
if
the class of the Vessel is suspended;
or
|
|
(m)
|
if
the Borrower has not proved to the Bank within two weeks after being
requested that maritime liens or rights of detention in respect of
the
Vessel or that all claims ranking in priority of a mortgage under
any
applicable law have been duly discharged and satisfied, unless such
liens,
rights of detention or claims are defended against in Court or sufficient
security has been provided by the Borrower to the relevant third
parties
in respect of such liens, detention, rights and/or claims;
or
|
|
(n)
|
if
without the prior written consent of the Bank, there is a change
in the
beneficial ownership, control of the Borrower and the Vessel or a
change
of the Manager,
|
provided
however
that no
demand by the Bank shall be required under this Clause 13.1 if an Event of
Default under sub-Clause (d) of this Clause 13.1 shall have
occurred.
|
14.
|
REPRESENTATIONS
AND WARRANTIES -
COVENANTS
|
|
14.1
|
The
Borrower hereby represents and warrants
that:
|
|
(a)
|
the
execution and delivery by the Borrower and by any other party (other
than
the Bank) of this Agreement and the Security Documents to which each
is or
is to be a party is within the respective party’s corporate authority, has
been duly authorised by proper corporate action and does not and
will not
contravene any provision of any applicable law or of the respective
party’s statutes or of any agreement binding upon
it;
|
18
|
(b)
|
the
Borrower has obtained all approvals and consents from all relevant
governmental and quasi-governmental authorities necessary under any
applicable law for the execution and delivery by it of this Agreement,
the
Security Documents to which is or is to be a party and of any document
or
instrument delivered or to be delivered pursuant hereto and thereto
and
for the performance by it of any and all of its obligations hereunder
and
thereunder;
|
|
(c)
|
to
the knowledge of the Borrower’s directors, there are no actions, suits or
proceedings pending or threatened to be taken against, or affecting
the
Borrower or its property before any court or tribunal or before any
governmental or quasi-governmental authority nor is the Borrower
in
default with respect to any order, writ, injunction, claim or demand
of
any court or any governmental or quasi-governmental authority, which
may,
in both the abovementioned cases, substantially affect its solvency
or its
ability to pay its debt or perform its obligations or affect a substantial
part of its property;
|
|
(d)
|
this
Agreement, the consummation of the transactions herein contemplated
and
the fulfilment of the terms hereof and the compliance by the Borrower
with
all of the terms and conditions of this Agreement and the Security
Documents to which is or is to be a party and all documents and
instruments referred to herein and/or delivered pursuant hereto or
thereto
will not result in any breach by it of the terms, conditions or provisions
of, or constitute a default under its corporate papers, any indenture,
a
bank loan or credit agreement or instrument by which the Borrower
is bound
and will not result in the creation of any lien, charge or encumbrance
(other than the Mortgage and the Assignment) upon any of its property
or
assets;
|
|
(e)
|
the
Borrower is duly incorporated and legally existing and in good standing
under the law of the place of its
incorporation;
|
|
(f)
|
the
Borrower will not engage itself in any further business resulting
in any
obligation whatsoever other than those incurred in the ordinary course
of
its business or in connection with the operation of the
Vessel;
|
|
(g)
|
any
proceedings taken in relation to this Agreement and the Security
Documents, the choice of the laws as outlined in Clause 24 and any
judgment obtained in relation to this Agreement will be recognised
and
enforced;
|
|
(h)
|
to
the extent that it may in any relevant jurisdiction claim for itself
or
its assets immunity from suit, execution, attachment (whether in
aid of
execution, before judgment or otherwise) or other legal process and
to the
extent that in any such jurisdiction there may be attributed to itself
or
its assets such immunity (whether or not claimed) the Borrower hereby
irrevocably agrees not to claim and hereby irrevocably waives such
immunity to the full extent permitted by the laws of such
jurisdiction;
|
|
(i)
|
except
with the prior consent of the Bank, the Borrower will, neither by
single
transaction nor by a series of transactions whether related or not
|
19
|
and
whether voluntarily or involuntarily, entered into, sell, transfer,
lease
or otherwise dispose of all or of a substantial part of its
assets;
|
|
(j)
|
except
with the prior consent of the Bank, the Borrower will not enter into
any
amalgamation, merger or consolidation with any other party or do
or
consent to be done anything analogous to the
foregoing;
|
|
(k)
|
the
Borrower by entering this Agreement and the other Security Documents
is
acting on its own behalf and for its own account;
and
|
|
(l)
|
it
has complied with all legal, quasi-legal or other requirements (including
compliance with the provisions of the ISM Code) relative to or imposed
upon its business and/or the
Vessel.
|
|
14.2
|
The
above representations and warranties shall be deemed repeated as
of each
date throughout the Security
Period.
|
|
14.3
|
The
Borrower hereby covenants and undertakes with the Bank to immediately
notify the Bank if:
|
|
(a)
|
the
Borrower’s entire business is substantially reduced, the operation of the
Vessel is suspended or laid-up for more than two months or a change
in the
Vessel’s management occurs;
|
|
(b)
|
the
Vessel is deleted from her present ships’ register or loses the right to
fly the flag of her home country;
|
|
(c)
|
the
Vessel is arrested or put to public auction or the Borrower otherwise
wholly or partly loses its power of disposal of the
Vessel;
|
|
(d)
|
the
Vessel becomes involved in maritime or other court proceedings or
is being
encumbered with a mortgage by court
order;
|
|
(e)
|
the
Vessel sustains an average damage or has been salvaged from distress
at
sea or has made use of third party
assistance;
|
|
(f)
|
maritime
liens, a right of retention or claims due under ship mortgages are
put
forward against the Vessel;
|
|
(g)
|
the
Vessel has become a Total Loss (as defined in the Mortgage), has
been
abandoned or becomes unworthy for repair;
and
|
|
(h)
|
the
Vessel has lost her assigned
classification.
|
|
14.4
|
The
Borrower hereby undertakes with the Bank that as and from the date
of this
Agreement and throughout the Security Period, without the prior written
consent of the Bank (not to be unreasonably withheld) the
Borrower:
|
|
(a)
|
shall
not incur or agree to incur any indebtedness or material liability
(whether by way of loan, credit facilities or otherwise) nor shall
it make
any commitments other than those occurring in the ordinary course
of the
trading or the management of the
Vessel;
|
20
|
(b)
|
subject
to Clause 13.1(m), shall not issue or agree to issue or procure the
issue of any guarantee in favour of any person or legal entities
other
than in connection with the ordinary trading and operation of the
Vessel;
|
|
(c)
|
shall
not mortgage, charge or otherwise encumber the Vessel, her Insurances
or
her Earnings or any of its other assets or rights other than in favour
of
the Bank;
|
|
(d)
|
shall
not issue any further shares in its
capital;
|
|
(e)
|
shall
not make any payment of principal or interest to any of its shareholders
in respect of any loans or loan capital made available to it by such
shareholders;
|
|
(f)
|
so
long as an Event of Default has occurred and is continuing, shall
not
declare or pay any dividends upon any of its outstanding shares or
stock
or otherwise dispose of any assets to any of its shareholders in
cash or
in any other manner;
|
|
(g)
|
shall
not pay out of its funds to any company or person except in connection
with the administration of the Borrower, the management and the operation
and/or repair of the Vessel or the servicing of the Loan or as otherwise
permitted by or pursuant to this Agreement and the relevant Security
Document to which it is a party;
|
|
(h)
|
shall
not permit any change in the ownership of its share capital (or any
part
hereof) and/or any change in the ownership or the management of the
Vessel; and
|
|
(i)
|
shall
not appoint as manager of the Vessel any person other than the Manager
and
then upon such terms and conditions as the Bank shall in its discretion
approve.
|
|
14.5
|
The
Borrower may procure the Pledged Account to be opened by the Pledgor
and
the Pledged Deposit be maintained therein throughout the Security
Period.
The amount of the Pledged Deposit for the time being standing to
the
credit of the Pledged Account shall bear interest at the LIBOR for
deposits in Dollars for periods equal to the Interest Periods fixed
for
the Loan and in an amount comparable with the amount of the Pledged
Deposit; such interest to be credited to the Pledged Account at the
expiry
of each such period.
|
|
15.
|
JUDGEMENT
CURRENCY
|
|
15.1
|
If
for obtaining judgment in any court it is necessary or advisable
for the
Bank to convert any amount owed pursuant hereto into another currency
then
such conversion shall be deemed to be made at the rate of exchange
prevailing the day before the Bank’s action is brought into court with
prime banks in the country of such
court.
|
|
15.2
|
If
in such case due to alterations of the exchange rate the amount finally
received by the Bank shall be insufficient to cover the amount owed,
then
the Borrower
|
21
|
shall
pay to the Bank the amount required to compensate for such remaining
debt.
|
|
16.
|
WAIVERS
|
|
16.1
|
No
failure or delay on the part of the Bank to exercise any power or
right
hereunder shall operate as a waiver thereof, nor shall any single
or
partial exercise by the Bank of any such power or right preclude
any other
or further exercises thereof or the exercise of any other right.
The
remedies provided herein are cumulative and not exclusive of any
remedies
provided by law.
|
|
17.
|
INVALIDITY-INCREASED
COST
|
|
17.1
|
In
the event that this Agreement, the Security Documents or any of the
documents or instruments which may from time to time be delivered
hereunder or thereunder or any provision thereof shall be deemed
invalidated by present or future law of any nation or by decision
of any
court this shall not effect the validity and/or enforceability of
all or
any other part(s) hereof or thereof and in such case the parties
shall
execute and deliver such other and further agreements and/or any
other
documents and/or instruments and do such things as the Bank in its
sole
reasonable discretion may deem to be necessary to carry out the intent
of
this Agreement.
|
|
17.2
|
If
the result of (a) any change in, or in the interpretation or
application of, or the introduction of, any law or any regulation,
directive, request or requirement (whether or not having the force
of law,
but, if not having the force of law, with which the Bank or, as the
case
may be, its holding company habitually complies) by any governmental
authority in any country the laws or regulations of which are applicable
on the Bank or (b) compliance by the Bank with any request from any
applicable fiscal or monetary authority (whether or not having the
force
of law, but, if not having the force of law, with which the Bank
or, as
the case may be, its holding company habitually complies), including
(without limitation) those relating to Taxation, stock or capital
adequacy, any type of liquidity, reserve assets, cash ratio deposits
and
special deposits or other banking or monetary controls or requirements
which affects the manner in which the Bank allocates capital resources
to
its obligations hereunder, is to:
|
|
(a)
|
the
cost to the Bank of making the Loan or any part thereof or maintaining
or
funding the Loan is increased or an additional cost on the Bank is
imposed; and/or
|
|
(b)
|
subject
the Bank to taxes or change the basis of taxation (other than taxes
or
taxation on the overall net income of the Bank) in respect of any
payments
to the Bank under this Agreement or any of the other Security Documents
is
changed; and/or
|
|
(c)
|
the
amount payable or the effective return to the Bank under any of the
Security Documents is reduced;
and/or
|
|
(d)
|
the
Bank’s rate of return on its overall capital by reason of a change in
the
manner in which it is required to allocate capital resources to the
Bank’s
obligations under any of the Security Document is reduced;
and/or
|
22
|
(e)
|
require
the Bank to make a payment or forgo a return on or calculated by
references to any amount received or receivable by it under any of
the
Security Documents is required;
and/or
|
|
(f)
|
require
the Bank to incur or sustain a loss (including a loss of future potential
profits) by reason of being obliged to deduct all or part of the
Loan from
its capital for regulatory
purposes,
|
then
and
in each case the Borrower shall pay to the Bank, from time to time, upon demand,
such additional moneys as shall indemnify the Bank for any increased or
additional cost, reduction, payment, foregone return or loss
whatsoever.
|
17.3
|
The
Bank will promptly notify the Borrower of any intention to claim
indemnification pursuant to Clause 17.2 and such notification will be
a conclusive and full evidence binding on the Borrower as to the
amount of
any increased cost or reduction and the method of calculating the
same. A
claim under Clause 17.2 may be made at any time and must be
discharged by the Borrower within seven (7) days of demand. It shall
not be a defence to a claim by the Bank under this Clause 17.2 that
any increased cost or reduction could have been avoided by the Bank.
Any
amount due from the Borrower under this Clause 17.3 shall be due as a
separate debt and shall not be affected by judgement being obtained
for
any other sums due under or in respect of this
Agreement.
|
|
17.4
|
If
any additional amounts are required to be paid by the Borrower to
the Bank
by virtue of Clause 17.2, the Borrower shall be entitled, on giving
the Bank not less than five (5) days prior notice in writing, to
prepay the Loan and accrued
interest
|
thereon,
together with all other Outstanding Indebtedness on the fifth (5th)
day
from the date of receipt of such notice by the Bank. Any such notice, once
given, shall be irrevocable.
|
18.
|
SURVIVAL
|
|
18.1
|
All
of the covenants, representations and warranties made herein, in
the
Security Documents or in any of the documents or instruments executed
and/or delivered pursuant hereto shall survive the making of the
Loan and
shall be binding upon the Borrower until all obligations of the Borrower
arising pursuant to the terms hereof and thereof have been paid and
performed in full.
|
|
19.
|
FURTHER
ASSURANCE
|
|
19.1
|
The
Bank reserves the right to obtain legal opinions from its counsel
in any
relevant country (always at the expense of the Borrower) as to the
validity and enforceability of this Agreement, the Security Documents
and
all documents and instruments delivered pursuant thereto and the
Borrower
agrees and undertakes to take all such steps and actions including,
but
not limited to, any alterations to this Agreement, and any of the
Security
Documents or any other documents or instruments relating thereto
as may be
deemed necessary by such opinion or
opinions.
|
23
|
20.
|
NOTICES
|
|
20.1
|
All
statements, requests, consents and other notices (hereinafter called
“Notices”)
hereunder shall be in writing (letter or fax) in English
language;
|
|
20.2
|
Notices
addressed to either of the parties hereto shall be deemed to be received
by the relevant party when received, however, in the case of a letter
seven days after despatch and in the case of a facsimile with a
confirmation report, on the same day, provided always that in the
case of
a facsimile, same was sent on a Banking Day during office
hours.
|
|
20.3
|
If
the date of despatch was not a Banking Day or the time of despatch
was not
during office hours such facsimile shall be deemed to have been received
at the opening of business on the next Banking
Day.
|
|
20.4
|
Notices
to the Borrower shall be addressed
to:
|
SAFETY
MANAGEMENT OVERSEAS S.A.
00
Xxxxxx
Xxxxxxxxx,
XX
Xxx
00000, XX 00000 Xxxxx,
Xxxxxx,
Xxxxxx
Telefax
No.: 30210 895 6900
(Attention:
Xx. X. Xxxxxxxxxxxx)
|
20.5
|
Notices
to the Bank shall be addressed to:
|
DEUTSCHE
SCHIFFSBANK AG
Xxxxxxx
00
00000
Xxxxxx
Xxxxxxx
Xxxxxxxx of Germany
Telefax
No.: 0049 421 323539
|
21.
|
ASSIGNMENT
|
|
21.1
|
The
Borrower may not assign all or any part of its rights or obligations
hereunder without the prior written consent of the Bank. The Bank
is
entitled to assign all or any part of its rights hereunder, provided
that
the Bank shall have received the prior written consent of the Borrower
for
any such assignment, provided
always,
that (i) the Borrower shall not be responsible for any costs or
expenses arising in connection with the Bank effecting any such assignment
and (ii) any assignee of the Bank shall only be entitled to the
benefit of the provisions of Clauses 9.2 or 9.4 to the same extent
that the Bank would have been had no such assignment been
made.
|
|
22.
|
MISCELLANEOUS
|
|
22.1
|
The
Borrower during the lifetime of the Loan shall submit to the Bank
at its
own expense without being requested an income and expenditure statement
in
respect of the operation of the Vessel immediately after its completion
and, if such statement has not been completed within six (6) months
after the end of the relevant financial year to submit a provisional
income and expenditure statement.
|
24
|
22.2
|
The
Borrower have to procure translation made by a sworn or certified
translator of all documents which are not available in English or
German
language.
|
|
22.3
|
The
terms and conditions of the Security Documents shall apply and are
deemed
to be an integral part of this Agreement, however, in case of conflict
this Agreement shall prevail.
|
|
22.4
|
The
Bank shall maintain in accordance with its usual practice a loan
account
evidencing the amounts from time to time borrowed by the Borrower,
owing
to the Bank (in the relevant Loan Currency), and paid to the Bank
(whether
in respect of principal, interest or otherwise) hereunder and under
the
Security Documents.
|
|
23.
|
APPLICABLE
LAW
|
|
23.1
|
The
terms and conditions set out in this Agreement shall, unless otherwise
specifically provided, be governed by and construed in accordance
with the
laws of the Federal Republic of Germany and the Borrower hereby submits
to
the jurisdiction of the Courts of the City of Hamburg. However, the
Bank
reserves the right to choose as place of jurisdiction any place where
the
Borrower has any asset or any place of business of the Borrower.
The
Borrower agrees that any writ, notice of judgment or other legal
process
or document in connection with such proceedings may be served on
the
Borrower by delivering the same to any person at the Borrower’s registered
office or principal place of business or (without prejudice to any
other
method of service under applicable law) to Messrs. Safety Management
Overseas S.A., (Attention: Xx. X. Xxxxxxxxxxxx) presently located at
Alassia Building, Defteras Xxxxxxxxxx 00, 00000 Xxxxxxx, Xxxxxx,
who are
hereby appointed as the agent of the Borrower for service of legal
process
in respect of any such proceedings and such service shall be deemed
good
service on the Borrower.
|
|
24.
|
CHANGE
OF LAW
|
|
24.1
|
If
the introduction of or any change in any applicable law, treaty or
regulation or in the interpretation thereof by any authority charged
with
the administration thereof shall make it unlawful for the Bank to
maintain, fund or perform its obligations under this Agreement then
the
Bank shall forthwith give notice thereof to the Borrower whereupon
the
Bank will be discharged from its obligations under this Agreement
and the
Borrower shall, on demand by the Bank, prepay the Loan, if permitted
by
applicable law, (i) at the end of the then current Interest Period or
(ii) on the next day on which a payment under this Agreement is due,
whatever is the earlier, together with accrued interest thereon and
any
other unpaid amounts due to the Bank
hereunder.
|
25
|
25.
|
EXECUTION
|
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed by their duly authorised officers or attorneys as of the day and year
first above written.
|
STALOUDI
SHIPPING
CORPORATION
|
DEUTSCHE
SCHIFFSBANK
AKTIENGESELLSCHAFT
|
|||
| By: |
/s/
Xxxxxx Xxxxxxxxxxxx
|
By: |
/s/
Xxxxxxxxxx X. Xxxxxxx
|
|
|
Xxxxxx
Xxxxxxxxxxxx
Attorney-in-Fact
|
Xxxxxxxxxx X.
Xxxxxxx
Attorney-in-Fact
|
|||
26
SCHEDULE 1
NOTICE
OF DRAWING
|
To:
|
DEUTSCHE
SCHIFFSBANK AKTIENGESELLSCHAFT
|
Xxxxxxx
00,
00000
Xxxxxx,
Xxxxxxx
Xxxxxxxx of Germany
(the
“Bank”)
29th
May,
2006
RE:
Loan Agreement dated 29th
May, 2006 made between (1) STALOUDI SHIPPING CORPORATION, of Liberia (the
“Borrower”) and (b) the Bank in respect of a loan facility of up to
US$30,000,000 (the “Loan Agreement”).
We
refer
to the Loan Agreement and hereby give you notice that we wish to draw the Loan
in the amount of (US$30,000,000) (Unites States Dollars thirty million) on
_______ May, 2006 and we select a first Interest Period in respect of the Loan
of ________ months. The funds should be remitted to _______ [name
and number of account] with
_______, New York, USA.
We
confirm that:
|
(a)
|
no
event or circumstance has occurred and is continuing which constitutes
an
Event of Default;
|
|
(b)
|
the
representations and warranties contained in Clause 14 of the Loan
Agreement and the representations and warranties contained in each
of the
other Security Documents are true and correct at the date hereof
as if
made with respect to the facts and circumstances existing at such
date;
|
|
(c)
|
the
borrowing to be effected by the drawing of the Loan will be within
our
corporate powers, has been validly authorised by appropriate corporate
action and will not cause any limit on our borrowings (whether imposed
by
statute, regulation, agreement or otherwise) to be exceeded;
and
|
|
(d)
|
to
the best of our knowledge and belief there has been no material adverse
change in our financial position or in the consolidated financial
position
of ourselves and the other Security Parties from that described by
us to
the Bank in the negotiation of the Loan
Agreement.
|
27
Words
and
expressions defined in the Loan Agreement shall have the same meanings when
used
herein.
|
SIGNED
by
Mr.
Xxxxxx Xxxxxxxxxxxx
for
and on behalf of
the
Borrower
Staloudi
Shipping Corporation
of
Liberia, in the presence of:
|
)
)
)
)
)
)
|
_____________________________
Attorney-in-Fact
|
28
